glary, and the prisoner was convicted. R. v. Smith, Moody & Rob. 256.

But the term " dwelling-house," is not confined to the house in which the occupier or his family sleep, but includes in it all outhouses occupied and immediately connected and communicating with it. By stat. 7 & 8 Geo. 4. c. 29. s. 13. however, it is provided and enacted that no building, although within the same curtilage with the dwelling-house, and occupied therewith, shall be deemed to be part of such dwellinghouse for the purpose of burglary, unless there shall be a communication between such building and dwelling-house, either immediate, or by means of a covered and inclosed passage leading from the one to the other. See this section, post. Where it appeared that the premises occupied by the prosecutor consisted of two rooms and a wash-house on the ground floor, and three bed-rooms over them; the wash-house did not communicate with the other two rooms on the ground floor, the door opening into the yard, but the room over the wash-house communicated with the adjoining bed-room; the prisoner having broken into the wash-house, was attempting to break the partition-wall between that and the adjoining room on the ground floor, when he was detected: seven of the judges held this to be burglary; that the wash-house was a part of the dwelling-house, and that the above section of the statute extended only to buildings which are within the curtilage, but form no part of the dwelling-house; five judges held that the wash-house was not part of the dwelling-house, and that the case came within the above section of the statute. R. v. Burrowes, R. & R. 274. If there be any doubt of the outhouse or building broken or entered, being such as is here described, insert in your indictment a count upon the 14th section of the same statute; see the form, post, p. 326. A building, however, to be within the meaning of the 13th section, above-mentioned, must be occupied with the dwelling-house, and in the same right. Mrs. Richards let her dwelling-house to her son Josiah, and a warehouse communicating internally with the dwelling-house, to Josiah and his younger brother at a separate rent; Josiah lived in the dwelling-house, and constantly used the communication between that and the warehouse; both brothers carried on their joint business in the warehouse: the warehouse being broken and entered in the night-time, the judges held that it could not be deemed a part of the dwelling-house, as the dwelling-house was holden under a demise to Josiah alone, and he alone dwelt in it, and the warehouse was holden under a distinct demise to himself and his brother. R. v. David Jenkins and another, R. & R. 244.

Secondly, it must be proved to be the dwelling-house of

R. v.

the person mentioned in the indictment. If the owner or lessee, or any of his family, dwell in it, the whole of it is in law considered as his dwelling-house; even although he have let off a part of it to lodgers, who dwell in it, still the whole is deemed in law to be his dwelling-house, unless indeed the part let off be severed from the part retained, in such manner as to form distinct tenements, without any internal communication with each other. In R. v. Gibbons and Kew, supra, where a servant of the prosecutor dwelt in a part of the house, and the rest (excepting the shop) was let off to lodgers: the judges held that the shop, which was in the prosecutor's occupation, was properly described as the dwelling-house of the prosecutor. Where the prosecutor, having a dwelling-house, with a shop adjoining to it, with separate entrances from the street, but the shop having a back door into a passage in the house, let the shop to his son, who used it as a place of business only, and did not reside there: a burglary having been committed in the shop, the judges held that it was properly described in the indictment as the dwelling-house of the father. Charles Sefton, R. & R. 202. But if a man, in letting off a part of his dwelling-house, sever it so from the part which he retains, as to make thein distinct tenements, without any internal communication with each other: then each tenement is considered in law the dwelling-house of the party who dwells in it, and must be described as such in an indictment for burglary. Or if he let off a part, but do not dwell in the part he reserves for himself, then the part let off is deemed in law the dwelling-house of the party who dwells in it, whether it communicate internally with the other part or not; but the part he has reserved for himself is not the subject of burglary: it is not his dwelling-house, for he does not dwell in it; nor can it be deemed the dwelling-house of the tenant, for it forms no part of his holding. The governor of the workhouse at Birmingham, under a contract for seven years with the guardians and overseers of the poor of that place, occupied and dwelt in the governor's house, with the exception of one room, which the guardians and overseers reserved for themselves as an office, and three other rooms as store rooms; the clerk of the guardians and overseers kept one key of the office, the governor another, for the purpose of securing the effects in case of fire, and the room was cleaned and taken care of by the governor's servant: this office being broken and entered in the night-time, ten of the judges held that it could not be described as the dwelling-house of the governor. R. v. William Wilson, R. & R. 115. So where a house of the Norwich Insurance Company, in which they carried on their

P

business, was entered at night and property of the company stolen, it appeared that the secretary with his family and servants alone occupied the house, and they had constantly accession to those parts where the business was usually carried on, but the rent and taxes were paid by the company : the indictment having described it as the house of the secretary, the judges held that description to be correct, although they thought it might, with equal propriety, be described as the house of the company. R. v. Witt, R. & M. 248. But where the owner of a dwelling-house, warehouse, and counting-house, within the same curtilage, let the dwellinghouse to his warehouseman at a yearly rent: the countinghouse and warehouse being broken and entered in the nighttime, the judges held that this was not burglary; that the counting-house and warehouse could not be described as the dwelling-house of the master, because the dwelling-house was occupied by the warehouseman as tenant, and not as servant; nor could they be described as the dwelling-house of the servant, for they formed no part of his holding. R. v. Jarvis and Walker, R. & M. 7. If the owner or lessee of a dwelling-house let off the whole of it, however, retaining no part of it for his or his family's dwelling, the part each tenant occupies and dwells in is deemed in law to be the dwelling-house of such tenant, whether the parts holden by the respective tenants communicate with each other internally or not. The owner of a house divided the shop into two by a partition, each having a door opening into the street, and let one of them and some rooms in the house to Choice, and the other with the remainder of the house to Ryan; at the end of each shop was a door, opening into a common passage, that led to one common staircase; Choice paid 1007. a-year, and the taxes for the whole house, for his part; Ryan 80l. a-year for his; each had his separate family, separate kitchen, &c.; but the rooms occupied by each opened on the common staircase above mentioned: upou an indictment for burglary, it appeared that the prisoner entered at the window of the common staircase, unlocked the door of Ryan's shop, and entered it; and the judges held that the place was rightly described in the indictment as the dwelling-house of Ryan. R. v. John Bailey, R. & M. 23. So, if he let the whole of the house to one person, and that person or his family dwell in it, of course it must be described as the dwelling-house of the tenant. So where the prosecutrix had been allowed to occupy a house a great length of time rent free, and the furniture in the house was her's, the judges held that it was properly described, in an indictment for burglary, as her

house.

R. v. Collett, Sawyer, and Perry, R. & R. 498.

Sometimes a difficulty arises in ascertaining whether a party dwells in and occupies a house in his own right, or as the servant of another. Where a warehouseman, with his family, lived in a dwelling-house upon the premises of his master, for which and for coals he paid his master a rent of 11. a-year; the house alone was worth 201. a-year to let to an ordinary tenant, but the master let it to him at a much lower rent, being desirous that he should reside upon the premises for their security: upon an indictment for burglary, the judges held that this occupation of the warehouseman could not be deemed the occupation of his master, for the warehouseman stood in the character of tenant; the master might have distrained upon him for his rent, and could not arbitrarily have removed him. R. v. Jarvis and Walker, R. & M. 7. A workman was employed at 15s. a-week wages, and a cottage, free of rent and taxes, for himself and his family to dwell in upon an indictment for burglary, the judge at the trial held, that as the workman occupied this cottage for his own benefit, and not for the use or benefit of his master, it was well described as the dwelling-house of the workman; and upon a reference to the judges, they were of the same opinion. R. v. Ralph Jobling, R. & R. 525. Where a tollgate-house, erected by the trustees of a turnpike, as and for the dwelling-house of the person who might be employed to collect the tolls at a particular gate, was broken and entered in the night-time; and upon an indictment for the burglary, it appeared that the trustees had let the tolls to Ward, and Ward had employed Ellis (at weekly wages, with the privilege of living in the toll-house in question) to collect them, and that Ellis dwelt in the house for that purpose: the indictment having described this as the dwelling house of Ellis, the judges held the description to be correct; for Ellis had the exclusive possession; it was unconnected with any premises of Ward's, and Ward did not appear to have any interest whatever in it. R. v. Camfield and White, R. & M. 42. Where a house and shop belonged to three partners, only one of whom lived in it, but all the shopmen and servants employed in the business also slept there; in an indictment for burglary, the house was described as the dwelling-house of the partners, and the judges held the description to be correct. R. v. Athea, R. & M. 329. And lastly, if burglary be committed in a dwelling house tenanted by a married woman, it must in all cases be described as the dwellinghouse of her husband, and not of her, even although she live separate from her husband. Dict. Lord Tenterden, C. J., R. v. Smith and others, 5 Car. & P. 203. Upon an indictment for burglary, it appeared that the house in question was hired and rented by a married woman, who lived

separate from her husband; that the husband had never been in it; that she paid the rent of it out of property which was her's before marriage, and vested in trustees for her separate use the judges held that this was properly described as the dwelling-house of the husband; it was not that of the trustees, for they had nothing to do with it; it was not the wife's, because in law she had no property; it could therefore be the husband's only. R. v. Richard French, R. & R. 491. Upon an indictment for burglary in the dwelling-house of George Gillings, it appeared that Gillings owned and had built the house in question, but had never lived in it; that suspecting his wife of infidelity with one Websdale, they agreed to separate, and he told her she might live in the house in question, and gave her a bed and bedding, &c. for the purpose; she afterwards lived and cohabited with Websdale in the house, with the knowledge of her husband; Websdale paid the expenses of housekeeping, but never paid any rent for the house to Gillings: the judges held that the house was properly described as the dwelling-house of the husband. R. v. Wilford and Nibbs, R. & R. 517. In all cases of burglary, however, if there be a doubt whether a house be the dwellinghouse of one person or another, insert counts in the indictment alleging it to be the dwelling-house of each respectively; and if there appear to be a joint ownership, add another count stating it to be the dwelling-house of both.

Where the house was described as the dwelling-house of Mary Johnson, and it appeared that her real name was Mary Davis, but that she had taken the house in the name of Johnson, and had been called and known by the name of Johnson only for the last five years: the judges held that this fully warranted her being named Johnson in the indictment. R. v. Norton, R. & R. 510.

And thirdly, prove the dwelling-house to be situate, as it is described in the indictment: this being matter of local description, and not of venue merely, the slightest variance between the statement and proof will be fatal. And if it be not expressly stated where the dwelling-house is situated, it shall be taken to be situated at the place named in the indictment by way of special venue. See R. v. Napper, post. Where it appeared that the dwelling-house was in the parish of A., and an outhouse connected and occupied with it in the parish of B., and a burglary was committed in the outhouse : one of the questions reserved for the opinion of the judges was, whether the dwelling-house was properly described in the indictment, as being in the parish of B.; the judges, however, gave no opinion upon the point, deciding the case upon another ground. R. v. Wm. Bennet and another, R. & R. 289; see ante, p. 309. In this and in all other cases where