also relating to two other manufactories, in which Matthew Boulton was concerned on his own account: that in part of one of the wings was the dwelling-house of M. R. Boulton; and in the other part of the same wing the dwelling-house of John Bush, mentioned in the second count of the indictment, who was a workman of Matthew Boulton's; but that neither of such dwelling-houses had any internal communication with the centre building, except only, in the one occupied by John Bush, a window which looked into a passage that ran the whole length of the centre building; and that in the other wing was the dwelling-house of William Nelson, which also had no internal communication with the centre building. It also appeared that in the front of this building there was a terrace or front yard, fenced round in different ways, and, at the end of the pile of building, by a wall, with gates for horses and carriages, and a door for foot passengers: that the prisoners entered by a door in the front yard, through which they went along the front of the building, and round it into another yard behind it, called the middle yard; from thence, through a door which had been left open, up a staircase in the centre building, where they broke open some of the rooms; having so entered the premises, by the assistance of a servant of Matthew Boulton's, who acted as an accomplice for the purpose of effecting the apprehension of the prisoners. Upon this case being reserved for the consideration of the judges, they all agreed that the prisoners were not guilty of burglary; and the grounds upon which they so decided are stated to have been that the centre building, being a place for carrying on a variety of trades, and having no internal communication with the adjoining houses, could not be considered as part of any dwelling-house; and that it was not to be considered as under the same roof as the houses adjoining, though the roof of it had a connexion with the roofs of the houses. (r)

(r) Eggington and others (case of), 2 Leach 913. 2 East. P. C.

c. 15. s. 10. p. 494. 2 Bos. & Pul. 508.

A part of a house may be

so severed from the rest

as no longer to be a place glary can be

in which bur

In some cases a part of a mansion-house may be so severed from the rest, by being let to a tenant, as to be no longer a place in which burglary can be committed. Thus, though a shop may be, and usually is, a parcel of the dwelling-house to which it is attached; yet if the owner of the dwellinghouse let the shop to a tenant who occupies it by means of committed. a different entrance from that belonging to the dwellinghouse, and carries on his business in it, but never sleeps there, it is not a place in which burglary can be committed; for it is not parcel of the dwelling-house of the owner, who occupies the other part, being so severed by lease; nor is it the dwelling-house of the lessee, when neither he nor any of his family ever sleep there. (s) Though, if the lessee, or his servant, should usually or often lodge in the shop at night, it would then be the mansion or dwelling-house of such lessee, in which burglary might be committed. (1)

A case has been put, whether if the owner and occupier of a dwelling-house should let a part of it, namely, a chamber and a cellar, to a tenant, the only passage to the cellar being out of the street, and the cellar should be broken open in the night, it would be burglary: and it has been supposed that it would not, on the ground that the cellar must be considered as severed by the lease, and has no communication with the rest of the house. (u) Upon this, however, it has been justly observed, that the cellar would be no more severed from the house by the lease than the chamber, in which a burglary might be committed, and laid to be in the mansion of the owner and occupier of the dwelling-house, there being but one common entrance to him and the lodger. But it is admitted, that if the cellar alone were let, clearly no burglary could be committed in it. (x) And the doctrine thus advanced, appears to be fully supported by the following case.

(8) 1 Hale 557, 558. Kel. 83, 84. 4 Black. Com. 225, 226. 2 East. P. C. c. 15. s. 20. p. 507. (t) 1 Hale 558.

(u) Kel. 83, 84.

(x) 2 East. P. C. c. 15. s. 20. p. 507.

Case of Gibson and others. A shop adjoining to a house,

but let with some of the rooms of the

house to a tenant, is still part of the dwelling

house if un

der the same

roof and with

One Thomas Smith was the owner of a house in which he resided himself, and to which there was a shop adjoining, built close to the house. There was no internal communication between the house and the shop; no person slept in the shop; and the only door to the shop was in the court-yard before the house and the shop; the court-yard being inclosed by a brickwall, three feet high, including both the house and shop. Thomas Smith let the shop, together with some apartments in the house, to John Hill, from year to year, at the yearly rent of six guineas. There was only one common door to the house, which communicated as well with the apartments reserved to himself by Smith, as with those which he let to Hill. In the brick wall, which included both the house and shop, next to the road, was a gate or wicket fastened by a latch, which served as a communication to both house and shop. The burglary was committed in the shop. Upon be let by itself this evidence it was objected, by the counsel for the prisoners, to a person who does not that the shop could not be considered as the dwelling-house sleep therein. of Thomas Smith, as laid in the indictment; and in couse

in the curti

lage, although

there be no internal communication, and although no person sleep in the shop. Aliter,

if such shop

It seems that

quence of such objection the judgment upon the prisoners was respited until the point could be submitted to the twelve judges. The case was afterwards considered by them; and they were unanimously of opinion, that the indictment was well laid in describing the shop to be the dwelling-house of Smith, who inhabited in one part; and that the shop, being let with a part of the house inhabited by Hill, was still to be considered as part of the dwelling-house of Smith, being within the same building, under the same roof, and having only one door of communication; especially as it was within one curtilage or fence, although there was no internal communication between them. But it was admitted, that if the shop had been let by itself, Hill not living therein, burglary could not have been committed in it, for then it would have been severed from the house. (y)

It has been said, that if a man takes a lease of a dwell

(y) Gibson, Mutton, and Wiggs, (case of), 1 Leach 357. 2 East.

P. C. c. 15. s. 20. p. 508. And see 2 Leach 918.

from being parcel of the dwellinghouse by being holden under a distinct title.

ing-house from A. and of a barn from B., such barn would an out-house will not be be no parcel of the dwelling-house, and not therefore a place prevented in which burglary could be committed; (2) a position which would seem to lead to the inference, that no outhouse, holden under a distinct title from the dwelling-house, can be the subject of burglary. But upon this it has been observed, that the circumstance of an out-building being enjoyed by the occupier under a different title from his dwelling-house, seems a very unsatisfactory reason of itself for excluding it from the same protection, if it be within the curtilage, or under the same roof, and actually enjoyed as parcel of the dwelling-house in point of fact, and under such circumstances as would, apart from the difference of title, constitute it parcel of the mansion in point of law. (a)

The next question relating to the mansion-house is, how Of the inhabifar it must be inhabited?

It appears to be well settled, that unless the owner has taken possession of the house by inhabiting it personally, or by some one of his family, it will not have become his dwelling-house in the proper meaning of the word, as applied to the offence of burglary. There are several cases to this effect, which sufficiently overrule any different opinions which may have been formerly entertained. (b)

tancy.

Cases where

the owner has not begun to inhabit.

and Miller.

A Mr. Smith having purchased a house with an intention Case of Lyons to reside in it, had moved into it some of his furniture and effects, to the value of about ten pounds; the house was put under the care of a carpenter for the purpose of being repaired; and Mr. Smith had not himself entered into the oc

(z) 1 Hale 559.

(a) 2 East. P. C. c. 15. s. 10. p. 494. (b) In 1 Hawk. P.C. c. 38. s. 18. it is said that a house which one has hired to live in and brought part of his goods into, but has not

yet lodged in, is one in which bur
glary may be committed.
The
point is mentioned in Kel. 46. but
not as having been decided, ideo
quære legem being subjoined.

Hallard's case.

Fuller's case.

eupation of any part of it, nor did any part of his family, nor any person whatever, sleep therein. While the house was in this situation, it was broken open in the night-time; and, upon a case reserved for the consideration of the judges, they were of opinion that it could not be considered as a dwelling-house, being entirely uninhabited; and that therefore there could be no burglary. (c)

So where the tenant of a house, when the former tenant had quitted, put all his furniture into it, and frequently went thither in the day-time, but neither himself, nor any of his family, had ever slept there; it was ruled that burglary could not be committed therein. (d)

And though persons sleep in a house thus situated; yet, if they are not of the family of the owner, it will still not be a dwelling-house in which burglary can be committed.

Thus, where the prisoner was indicted for a burglary in the dwelling-house of a Mr. Holland, and it appeared in evidence that the house was newly built and finished in every respect except the painting, glazing, and the flooring of one garret; that a workman, who was constantly employed

(c) Lyons and Miller (case of), 1 Leach 185. The case is rather differently reported in 2 East. P. C. c. 15. s. 11. p. 496. where it is stated that no goods were in the house at the time it was broken open, and that the judges were therefore also of opinion that it was no burglary, because, as the indictment charged an intent to steal, it must mean to steal the goods then and there being, and that, nothing being in the house, nothing could be stolen: but it is also further stated, that it seemed to be the sense of the

judges, and Eyre, B. declared it to be his opinion, that although some goods might have been put into the house, yet, if neither the party nor any of his family had inhabited it, it would not be a mansion-house in which burglary could be committed.

(d) Hallard's case, cor. . Buller, J. Exeter, Spr. Assiz. 1796. 2 East. P. C. c. 15. s. 12. p. 498. 2 Leach 701. note (a), and S. P. Thompson's case, cor. Grose, J. Kingston Spr. Ass. 1796, 2 East, ibid. 2 Leach 771.