of the It remains further, in treating of the mansion, or dwell- of the ing-house, to enquire as to the person who is to be deemed ownership the owner of it, in order to be able to state correctly in the mansionindictment the name of the party in whose dwelling-house house. the burglary is alleged to have been committed. This subject is rather of a complicated nature: but, from the cases which have been hitherto decided, it seems that the material point to be ascertained will be, whether the ownership remains with the proper owner of the dwelling-house, and is exercised by him, either by his own occupation, or by that of other persons on his account; or whether the proper owner has given such an interest to other persons, in the whole or in parts of the dwelling-house, as to constitute an ownership in such other persons. occupation are part of 928] The owner of a dwelling-house may exercise his owner- Ownership, ship by his own personal occupation, or by the occupation where the of any persons who by law are deemed to be part of his is by perfamily. This doctrine has been carried to a great extent in sons who the case of a wife. For where it appeared that a lady, the owner's whose house was robbed, had for many years lived sepa- family. rate from her husband; and that, when she was about to take the house, a lease of it was prepared in her husband's *name, but that he refused to execute, and said he would have nothing to do with it, in consequence of which she agreed with the landlord herself, and had constantly paid the rent; it was holden upon an indictment for breaking open the house that it was well laid as the dwelling-house of the husband. (x) The reason given for this decision was, that whatever the wife has is the husband's in law: but, as that reason would not apply to a case where the law would adjudge the separate property of the mansion to be in the wife, and where she has also the exclusive possession; it seems that in such case the burglary ought to be laid as committed in her mansion-house, and not in that of her husband. (y) is by means owner. The owner of a dwelling-house may also occupy it by means Ownership of servants. Thus, in a case which has been already men- where the tioned, where the servant of a farmer, and his family, lived occupation in a cottage adjoining his master's house, which he took of the serto by agreement with his master, when he went into the vants of the service, but for which he paid no rent; only an abatement was made in his wages, on account of his family being to reside in the cottage; all the judges (with the exception of Buller, J. who doubted) held that this was no more than a licence to the servant to lodge in the cottage, and not a letting of it to him; and that the cottage, therefore, continued part of the mansion-house of the farmer. (≈) Farre's case, Kel. 43, 44, 45. y 2 East. P. C. c. 15. s. 16. p. 501. cor. Wilson, J. 2 East. P. C. c. 15. s. 14. p. 501, 502, ante 916. And see Bertie v. Beaumont, 16 East. 33. Case of Stockton and Edwards. servant of three partners in trade had weekly wages, and some rooms assigned to A recent case appears to have proceeded upon the same principle. The prisoners were indicted for a burglary in the dwelling-house of Messrs. Moore, Harrison, and HaWhere the milton; and being convicted received sentence of death: but execution was respited, in order that the opinion of the judges might be taken upon the following facts. Messrs. [*929] Moore, Harrison, and Hamilton, the prosecutors, were *partners in their business of bankers, and also in a brewery concern; and were the owners of the house in question. The lower rooms of the house were three in number, having only one entrance from without, by a door opening to the street; which was the door broken open to commit the felony. It opened into one of the three rooms in which the clerk's business relating to the brewery was transacted: that room communicated by a door-way with an inner room, where the banking business was done, and where the cash, notes, &c. were deposited: and the inner room communicated in the same manner with a further room, which was the private room of the partners. And the business of Messrs. Moore and Co. was transacted only in these lower rooms of the der, it was house, in which no person slept. When the entrance door holden that which opened to the street was locked up at night, upon leavcommitted ing the offices, the clerk who had the custody of the key left in the bank- it in the care of one John Stevenson, who inhabited the upper ing room was well him for a lodging over the bank and brewery office of the partners, with which his lodging communi cated by a trap-door and a lad a burglary laid as in partners. rooms of the house, from whom it was received again, when the offices were to be opened in the morning. This John the dwell Stevenson was a servant to Messrs. Moore and Co. in their ing-house the three brewery business, as their cooper, at weekly wages, with firing and lodging for himself and his family: but the contract as to the lodging was not, in general terms, that he should be provided with lodging, but that he should have the particular rooms which he inhabited for the lodging of himself and his family. There was a separate entrance to these rooms from without; they were not in any way used for the business which was carried on in the lower rooms, some papers only of no consequence being kept in them by Messrs. Moore and Co.; and the only communication between the upper rooms and the lower ones was by a trap-door in the floor of one of the upper rooms and a ladder. Since the robbery this trap-door and ladder had been constantly used, in order to go down to the lower rooms, and bolt the street door of the offices in the inside, for better security; but none of the witnesses knew of their having ever been used for any pur[* 930] pose previous to the robbery, although they might have been so used at any time, as the trap-door was never kept locked or fastened, and the key of it was left in Stevenson's custody, There were six windows in the upper rooms, which were assessed in the name of Stevenson; but the duty was paid by Messrs. Moore and Co. The lower rooms had nine windows; but were not charged with any window tax, the asses sors not considering them as inhabited. Upon these facts, two questions were submitted: first, whether this inhabitancy could be considered as the inhabitancy of Messrs. Moore and Co. by their servant Stevenson, or whether Stevenson, by the contract, became tenant, and the upper part of the house was his dwelling-house, and not that of Messrs. Moore and Co.; and, secondly, if these premises were the dwelling-house of Messrs. Moore and Co., the further question arose, whether there was such a severance of the lower part, as to prevent its being included as part of their dwelling-house. After hearing the argument on behalf of the prisoners, Lord Ellenborough, C. J. said, "Could Stevenson have maintained trespass against his employers for entering these rooms? or if a man assigns to his coachman the rooms over his stable, does he thereby make him a tenant? Whether the assessors formed a right or a wrong judgment, can make no difference: nor is it material to which trade Stevenson was a servant, for the property in both partnerships belonged to the same persons. As to the severance, the key of the trap-door was left with Stevenson, and the door was never fastened; and it can make no difference, whether the communication between the rooms was through a trap-door, or by a common staircase." And Mansfield, C. J. also said, "Many persons have houses given them to live in, as porters at park-gates: if a master turns away his servant, does it follow that he cannot evict him till the end of the year? Could not the prosecutors have turned out this man when they would?" (a) palaces, in the *The same rule, of the occupation of the servant being that [* 931] of the master, will hold with respect to all persons standing Ownership in the relation of servants. Therefore, apartments in the of apartking's palaces, or in the houses of noblemen, for their ments in stewards and chief servants, must be laid as the mansion- noblemen's house of the king or nobleman. (b) Accordingly, where three houses, or persons were charged with having broken into the lodgings of Sir H. Hungate, at Whitehall, it was agreed that the in- public comdictment should be for breaking the King's mansion, called pany. Whitehall. (c) So, where a man was indicted for breaking into a chamber in Somerset-house, and the indictment charged it to be the mansion-house of the person who lodged in it, it was agreed that the whole house belonged to the queenmother, and therefore that the indictment was bad. (d) And where a house at Chelsea was broken into, which was used for an office under government, called the Invalid Office, and the rent and taxes of which were paid by government; it was holden that the indictment was defective in laying it to be a Stockton and Edwards (case of) 2 Taunt. 339. 2 Leach 1015. The judges did not afterwards pronounce any further opinion; but the prisoners were executed according to their sentence. b 1 Hale 556, 557. 2 East. P. C. c. 15. s. 14. p. 500. c Williams and others (case of,) 1 Hale 522. d Burgess's case, Kel. 27. [* 932] Ann Haw kins's case. Ownership, where the occupied by the house was the house of a person who occupied the whole of the upper part of it. (e) An indictment also for a burglary in the dwelling-house of the East India Company was holden to be good, the house being inhabited by the servants of that company. (f) And where an indictment charged a burglary in breaking into the mansion-house of the master, fellows, and scholars of Bennet College, in Cambridge; the fact being that the prisoner broke into the buttery of the college; all the judges, upon reference to them, held that it was burglary. (g) *The following case also appears to have proceeded upon the same principle, that burglary in the apartments of officers of a public company must be laid as committed in the mansion-house of the company. The prisoner was indicted for breaking the mansion-house of Samuel Story, in the nighttime. It appeared on the evidence that the house belonged to the African Company; that Story was an officer of the company; that he and many other persons, as officers of the company, had separate apartments in the house, in which they inhabited and lodged; and that the apartment of Story was that which was broken open. It was holden that the apartment of Story could not be called his mansion-house, because he and the others inhabited the house merely as officers and servants of the company. (h) But this rule has been holden not to extend to the case of a house occupied by the agent of a trading company; though he resided in it, with his family, only for the purpose of conducting their trade, and the lease of the house was held and the rent and taxes for it paid by the company; and an indictment was holden to be good, which stated the burglary as for the pur- being committed in the dwelling-house of such agent. agent of a trading company, pose of their trade. Case of Margetts and others. The In this case the agent, a Mr. Sylvester, kept a blanket warehouse in Goswell-street; and resided, together with his wife and children, in the house over the warehouse. Warehouse was on the ground floor, and consisted of four rooms, the second of which was the room that was broken into; and there was an internal door from the warehouse to the dwelling-house. All the blankets were the property of Mr. William Sellman and others, a company of blanket [933] *manufacturers, consisting of sixty or more, at Whitney, in Oxfordshire, none of whom ever slept in the house. lease of the premises was in the company, and the whole rent of both dwelling-house and warehouse was paid by them. e Peyton's case, O. B. 1784, 1 Leach 324. In 1 Bac. Abr. Burglary. (E.,) in the notes, there is a Qu. in whose house stealing in the Invalid Office at Chelsea should be laid to be. f Picket's case, O. B. 1765, 2 East. P. C. c. 15. s. 14. p. 501. g Maynard's case, Cambridge Spr. Ass. 1774, 2 East. P. C. c. 15. s. 14. p. 501. h Hawkins's (Anne), case, cor. Holt, C. J., Tracy, J., and Bury, B. O. B. 1704, Fost. 38, The 39. The case is cited from Mr. J. Tracy's MS. from which it appears that the jury was discharged of the indictment laying the breaking to be in the mansion-house of Samuel Story; and that it was amended by laying the breaking in the mansion-house of the company. Mr. J. Foster says that this report is warranted in the substantial parts of it by the record. Fost. 39. Sylvester acted as their servant or agent, and received a consideration for his services from them, part of which consideration, he said, was his being permitted to live in the house rent free; and the lease of the premises was in the company. The commission of the offence being clearly proved, it was contended, by the counsel for the prisoners, on the authority of Hawkins's case, that this must be considered as the dwellinghouse of the company, and ought to have been so charged in the indictment, and not as the house of Sylvester, who inhabited it merely for them, and as their servant. But the court is said to have been clearly of opinion that it was rightly charged to be the dwelling-house of Sylvester; and that although the lease of the house was held, and the whole rent paid by the company in the country, yet as they had never used it in any way as their habitation, it would be doing an equal violence to language and to common sense, to consider it as their dwelling-house, especially as it was evident, that their only purpose in holding it was to furnish a dwelling to their agent, and ware-rooms for the commodities therein deposited. That the dwelling so furnished was a mean by which they in part remunerated Sylvester for his agency, and precisely the same thing as if they had paid him as much more as the rent would amount to, and he had paid the rent; but that the company in this case preferred paying the rent of the whole premises, and giving their agent and his family a dwelling therein, towards the salary which he was to receive from them. And that the house was therefore essentially and truly the dwelling-house of the person by whom it was occupied. (i) of apart inents oc *Where persons are abiding in a house as guests, or by [* 934] sufferance, or otherwise, having no fixed or certain interest Ownership in any part of it, and a burglary is committed in any of their apartments, the indictment should lay the offence as in the mansion of the proprietor of the house. (k) So that if the chamber of a guest at an inn be broken open, it must be laid i Margetts and others, (case of) O. B. 1301, cor. Graham, B. and Grose, J., 2 Leach 930. It is also stated, in the report of this case, that the court further gave as a reason for their judgment, that "the punishment of burglary was intended to protect the actual occupant from the terror of disturbance during the hours of darkness and repose, but that it would be absurd to suppose that the terror, which is of the essence of this crime, could, from the breaking and entering in this case, have produced an effect at Whitney, in Oxfordshire." But the accuracy of this reasoning may perhaps be questionable. The punishment of burglary will attach equally, and the actual occupant will not be less protected, though the offence should be laid in the indictment as committed in the dwelling-house of the real owner. And with respect to the VOL. II. 4 cupied by guests, &c. or inn. in a house terror in this case not having affected the company at Whitney, the same might have been said of the terror to the East India Company, or the African Company, in the cases of burglaries in their houses, which have been before-mentioned, ante, 931. There is a noto to this case of Margetts and others, which states that Grose, J. asked whether there had not been a prosecution at the Old Bailey for a burglary in some of the halls of the city of London, in which it was clear that no part of the corporation resided, but in which the clerks of the company generally lived; and that Mr. Knapp informed the court, that his father was clerk to the Haberdashers' Company, and resided in the hall which was broken open; and in that case the court held it to be his father's house. k 1 Hawk. P. C. c. 38. s. 26. |