be the dwelling-house of the lodger, if the owner of the premises do not sleep under the same roof, Rex v. Rogers..... 6 Burglary may be committed in a garret which is made use of as a work-shop, and rented together with a sleeping-room in the same house, provided the landlord do not sleep under the same roof, for it is then the mansion-house of the lodg- er, Richard Carrell's case.......237 7 Burglary cannot be committed in an out-house, though occupied with the dwelling-house, if it be sepa- rated therefrom by an open passage eight feet wide, and not connected with it by any fence inclosing them, Garland's case...................................................144 8 Burglary may be committed in a bake-house, although it stand eight or nine yards from the dwelling- house, and only a paling between them, Castle's case.........144, notis. 9 But burglary cannot be committed in any out-building so remote from the dwelling-house as not to be con- 10 Burglary cannot be committed in a house under repair, although part of the property of its owner be there deposited; for until he take possession with intent to inhabit, it cannot be considered as his man- sion or dwelling-house, Lyon Ly- 11 Therefore, where a prosecutor had only deposited goods in a house he had taken, but neither he or his servants had ever slept therein, it was held not to be his dwelling- house, Harris's case..............701 12 So where the owner had actually moved a great part of his house- hold furniture into the house which he locked up over night, and the 14 So burglary cannot be committed in an unfinished house, if neither the owner nor his servants have taken possession of it, although one of the workmen of the owner sleep therein for the purpose of protect- ing it, Fuller's case......186, notis. 15 The punishment of burglary it is said was intended to protect the actual occupant from the terror of disturbance during the hours of darkness and repose, and there- fore the agent of a trading com- pany, who is permitted to reside in the house, is actual occupier of it, 16 The name of the owner of the house in which a burglary is com- mitted, must be stated in the indict- ment, White's case...............252 17 Burglary may be committed in lofts built over coach-houses, if they are converted into sleeping rooms, and there is an outer door to them common to each respective occu- pier; for each apartment is, in such case, the mansion-house of each inhabitant, although originally in- tended to be used only as hay-lofts, Thomas Turner's case............905 18 If burglary be committed in the occupied part of the Invalid Office at Chelsea, the under part of which is used for the purposes of Govern- ment, it shall be laid to be the 19 If burglary be committed in any of the apartments of a palace, as Whitehall, though legally occupied by permission of the King, the indictment must state it to be the mansion-house of the King, and not of the occupier, Sir H. Hungate's case...... .......324, notis. 20 A burglary laid to be in the dwell ing-house of one of the Officers belonging to THE CORPORATION of the African Company is bad, although an Officer of the Corporation reside in the apartments broken open; for it is, by intendment of law, the dwelling-house of the Corporation, although none of the Company ever sleep therein, Ann Hawkins's case, 324, notis. 21 But if an agent or manager of the concerns of a trading Company, the members of which reside at Whitney, be permitted to live in the house in London where the business is carried on, in diminution of the amount of salary he would otherwise have received, and burglary be committed therein, it may be laid the dwelling-house of the agent, though the rent and taxes of the whole premises are paid by the Company; for the agent is the only person whose nocturnal safety and repose can be endangered by such an offence, Margett's case 930 22 So if a City Hall, occupied by the Clerk of the Company, be burglariously broken, it may be laid to be the dwelling-house of the Clerk; for he is the person whose nocturnal repose the law of burglary intends to protect...........931, notis. 23 But if a College at Cambridge be broken, it must be laid the mansion of the master, fellows, and scholars, Maynard's case, 2 East, 501 24 So if the servant of a banker be merely suffered to sleep in the upper room over the shop, though he VOL. I. receive less wages on that account 25 So if a farmer's servant reside with his family in a cottage, which is part of the farmer's house, and a barn under the same roof be broken open, the barn is still part of the farmer's dwelling-house, although the servant slept in the barn for the purpose of protecting the premises, Brown's case, 1018, notis. 26 Burglary therefore may be committed in a shop adjoining to a house, if under the same roof, and within the curtilage, although there be no internal communication between the shop and the house, and no person sleep in the shop, Gibson, Mutton, and Wigg's case...................357 27 But burglary cannot be commit、 ted in a center building used merely as a partnership counting-house, but having no internal communication with the dwelling-house which formed the wings, although the whole pile is under the same roof, ......913 Egginton's case... 28 To constitute burglary there must be both a breaking and entering; and the breaking must be such as will afford the burglar an opportunity of entering so as to cominit the felony, Hughes's case.....406 29 To push up folding doors which remain closed by their own weight, but without any inter or fastening, so that those without could by moderate exertion open them, is a sufficient breaking to constitute this offence, Brown's case....1015, notis. 30 An entry obtamed by fraud and under colour of law, is sufficient to d constitute the crime of burglary, Farr's case................1064, notis. 31 Burglary may be committed in any of the rooms of a house, the whole of which is let out in lodgings, and has one common door to all its inmates; for, in such case, each lodging is the mansion of its inhabitant, Trapshaw's case.....427 32 If burglary be committed in one of two adjoining houses belonging to two partners, it may be laid to be the separate mansion of its inhabitant, if there be no internal communication from the one to the other, although the rent and taxes of the house are paid out of the partnership fund, Martha Jones's .537 case....... used in the statute of 9 Geo. I. c. 22. and therefore in an indictment for killing a mare and a colt, it is not necessary to aver that they are cattle, Paty's case 72 3 Cows and heifers are distinct species of cattle within the meaning of the 14 Geo. II. c. 6. and 15 Geo. II. c. 34. and therefore an indictment for stealing the one is not supported by evidence of stealing the other, R. Cooke's case....... ........105 33 A plea of autrefois acquit of a 34 An indictment for burglariously 1 C. CATTLE. By 14 Geo. II. c. 6. and 15 Geo. II. c. 34. to drive away or in any other manner to steal any sheep, bull, cow, ox, steer, bullock, heifer, calf, or lamb; or to kill the same, with intent to steal the carcase, or any part thereof, is felony without clergy.................................................. 7 2 2 Horses, mares, and colts, are included under the word cattle, as 2 A check on a banker, while it remains undisposed of in the hands of the drawer, is not an available security within the statute 2 Geo. II. c. 25., Walsh's case.........1061 3 But it is said that a check is a false pretence within 30 Geo. II. c. 24. if given by a person who knows it will not be paid........656, notis. 4 By 41 Geo. III. c. 57. the making of blank checks of any banker is a misdemeanor. 5 A check, though known in the commercial world by that name only, may be laid as an order for payment of money.......886, notis. 6 A check, though illegal for want of a stamp, may be given in evidence to prove the stealing of the letter in which it was contained, Pooley's case....... .......900 7 Obtaining goods by giving a check on a bank, which the giver knows will not be paid, is an indictable offence, Jackson's case....656, notis. Or of a bank-note delivered to him to change from the purse of his landlady, Watson's case .........640 6 The reason assigned to shew the difficulties arising from Poulter's case, which occasioned the Legislature to oust arson of clergy by the 9 Geo. I. c. 22. Spalding's case 219, notis. CLERK OF ASSIZE. 1 A clerk of assize and the Judge's marshalmen are entitled to their fees on a defendant's entering into a recognizance to appear, enter, and try his traverse of a misde.111 meanor, Fry's case ........ 2 A clerk of assize has not a lien upon the records in his custody for his fees; and if he draw an indictment with unnecessary prolixity, he may be ordered to pay the extraordinary expence, Rex v. Bury, 201 3 So if a clerk of the peace, in drawing an indictment for perjury, un- necessarily state all the continuances in the former prosecution, the Court of King's Bench will refer the record to the Master to see what part was unnecessary, May's .201, notis. 4 case ...... The clerk of the arraigns may plead to a counter-plea ore tenus, 404 5 To a plea of misnomer the clerk of the arraigns may reply, that the prisoner is known as well by the 1 By 25 Edw. III. st. 5. c. 2. if a man counterfeit the King's money, he is guilty of high treason.......76 2 By 8 & 9 Will. III. c. 26. s. 3. if any person shall mark on the edges of any of the current coin, or diminished coin, or of any counterfeit coin, with letters or grainings, or other marks or figures like unto those on the edges of money coined at the Mint, he, his counsellors, procurers, aiders and abettors, shall be guilty of high treason, 622 3 By 8 & 9 Will. III. c. 26. s. 4. if any person shall colour, gild, or case over with gold or silver, or with any wash or materials producing the colour of gold or silver, any coin resembling the current coin-or any round blank of base metal, or of coarse gold or coarse silver, of a fit size or figure to be coined into counterfeit milled money resembling any of the gold or silver coin-or shall gild over any silver blanks resembling the gold coin, he shall be guilty of high treason...... .......154 4 By 15 Geo. II. c. 28. s. 1. if any person shall wash, gild or colour any shilling or sixpence, good or bad, or add to or alter the impression on them, with intent to make 5 6 them resemble a guinea or a halfguinea, or any halfpenny or farthing, with intent to make them pass for a shilling or a sixpence, he shall be guilty of high treason, 154 By 8 & 9 Will. III. c. 26. s. 1. making, mending, or having possession of instruments for coining, is felony...................................... ............90 Having the possession of coining instruments, with intention to coin, and a piece of counterfeit money, with intention to pay it away as and for good money, is an indictable offence at common law, William Parker's case.................. 41 7 A counterfeit piece of gold, intended to represent the gold coin, of a form so imperfect as not to be passable, is not high treason; for a counterfeit must have sufficient similitude to the legal current coin to make it passable, Varley's case............76 8 For the counterfeit money must be in a passable state, and therefore where blank shillings are found before they have been rubbed, filed, and thrown into aqua fortis, this process being necessary to make such round blanks current, the offence is not complete, Harris and Minion's case...... ........136 |