ness, ninety-one in number, slept in the house. Halling and the other partner resided elsewhere, and were allowed in the accounts of the firm a certain sum for rent, £225. The warehouse and shop were on the basement story. Upon a case reserved, on the question, whether the dwelling-house was properly laid as that of all the partners, or should have been laid as that of the resident partner only, the judges were unanimously of opinion, that the dwelling-house was properly described as that of all the partners (b) A modern 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 Hamilton, who 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. The business of Messrs. Moore and Co. was transacted only in these lower rooms of the house, in which no person slept. When the entrance door which opened to the street was locked up at night, upon leaving the offices, the clerk who had the custody of the key left it in the care of one Stevenson, who inhabited the upper rooms of the house, from whom it was received again, when the offices were to be opened in the morning. Stevenson was a servant to Messrs. Moore and Co. in their brewery, 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 purpose previous to the robbery, although they might have been so used at any time, as the *trap-door was never kept locked *28] 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 assessors 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? 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., said, "Many persons have houses given them to live in, as porters at park-gates; if or, (b) Rex v. Athca, R. & M. C. C. R. 329. 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?"(c) On the trial of a burglary in the house of E. Jones, it appeared that Jones was in the service of Mr. Doulton, the landlord of the house; part of the house was used as store-rooms for Doulton's goods, and in the other part Jones resided: no one else ever resided there. Doulton paid the rent and taxes, and nothing was paid by Jones for his occupation, either by deduction from his wages or otherwise; and it was held that the house ought to have been described as Doulton's. (d) The same rule, of the occupation of the servant being that of the master, will hold in respect to all persons standing in the relation of servants, and not having the exclusive possession nor paying rent. Therefore, apartments in the King's palaces, or in the houses of noblemen for their stewards and chief servants, must be laid as the mansion-house of the King or nobleman. (e) Accordingly, where *three [*29 persons were charged with having broken into the lodgings of Sir H. Hungate, at Whitehall, it was agreed that the indictment should be for breaking the King's mansion, called Whitehall.(ƒ) 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 Queen-mother, and therefore that the indictment was bad.(g) 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 the house of a person who occupied the whole of the upper part of it.(h) An indictment for a burglary in the Custom-house rightly describes it as the dwelling-house of the King, as he occupies it by his servants.(i) An indictment, also, for a burglary in the dwellinghouse of the East India Company was holden to be good, the house being inhabited by the servants of that company.(j) 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 (k) 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 S. Story, in the night-time. It appeared that the house belonged to the African Company; Story was an officer of the company; he and many other persons, as officers of the company, had separate apartments in the house, in which they inhabited; and 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.(1) (c) Rex v. Stockton, 2 Taunt. 339; 2 Leach 1015. Eight of the judges thought that Stevenson was not tenant, but inhabited only in the course of his service. Thomson, B., Graham, B., Lawrence, J., and Chambre, J., contra, s. c., under the name of Rex v. Stock in R. & R. 185. The judges did not afterwards pronounce any further opinion; but the prisoners were executed according to their sentence. (d) Reg. v. Courtenay, 5 Cox C C. 218. The Recorder, after consulting Alderson, B., still entertained doubts whether the house was not rightly described. The marginal note speaks of "a house close to B.'s place of business," of which there is no evidence in the report. (e) 1 Hale 556, 557; 2 East P. C. c. 15, s. 14, p. 500. (f) Rex v. Williams, 1 Hale 522. (g) Burgess's case, Kel. 27. (h) Peyton's case, 1 Leach 324. In Bac. Abr. tit. Burglary (E.), in the notes, there is a qu. in whose house stealing in the Invalid Office at Chelsea should be laid to be. (i) Rex v. Jordan, 7 C. & P. 432 (32 E. C. L. R.), Gaselee, J., and Gurney, B. (j) Picket's case, 2 East P. C. c. 15, s. 14, p. 501. (k) Maynard's case, 2 East P. C. c. 15, s. 14, p. 501. Rex v. Hawkins, Fost. 38, Holt, C. J., Tracy, J., and Bury, B. 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 Story; and that it was amended by laying the breaking in the mansion-house of the company. Foster, J., says that this re But the rule does not apply where a servant lives in a house of his master's at a yearly rent: and such house cannot be described as the master's house, though it be upon the premises where the master's business is carried on, and though the servant have it because of his services. Greaves and Co. had a house and buildings where they carried on their trade; Mettran, their servant, lived with his family in the *30] house, and paid £11 per annum for rent and coals, such rent being much below the value; Mettran was allowed to live there because he was servant; Greaves and Co. paying the rates and taxes. One of the buildings having been broken into, the indictment charged a burglary to have been committed in the dwelling-house of Greaves and Co., and it was urged that Mettran's occupation was their occupation; that the house he occupied might be deemed their dwelling-house; and that all their buildings might be deemed part of their dwelling-house. But upon a case reserved, the judges held that as Mettran stood in the character of tenant. and Greaves and Co. might have distrained upon him for rent, and could not arbitrarily have removed him, Mettran's occupation could not be deemed their occupation, and that the conviction as to the burglary was wrong.(m) And though a servant live rent free for the purpose of his services, in a house provided for that purpose, yet if he has the exclusive possession, and it is not parcel of any premises occupied by his master, the house may be described as the house of the servant; especially if it does not belong to his master, but to some person paramount his master; as in the case of the house of a toll collector. The tolls at a gate between Leeds and Wakefield were let to Ward, who employed Ellis to collect them, and Ellis lived for that purpose in a house belonging to the trustees, and built by them for that purpose: he had a weekly sum from Ward, and the family of Ellis lived with him in the house. A burglary having been committed in the house, it was described in the indictment as the house of Ellis: and upon a case reserved, all the judges were unanimous that it was rightly described; for Ellis had exclusive possession; it was unconnected with any premises of Ward's, and Ward did not appear to have any interest in it.(n) The 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 being committed in the dwelling-house of such agent. 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. The 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 Sellman and others, a company of blanket manufacturers, consisting of sixty or more, at Witney, in Oxfordshire, none of whom ever slept in the house. The lease of the premises was in the company, and the whole rent of both dwelling-house and warehouse was paid by them. 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. It was *contended, by the counsel *31] for the prisoners, on the authority of Hawkin's case, that this must be considered as the dwelling-house 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 port is warranted in the substantial parts of it by the record: Fost. 39. But note that the prisoner was acquitted of the burglary in the mansion-house of the company, and convicted of the larceny only: Fost. 39. It does not, however, appear why she was acquitted of the burglary. (m) Rex v. Jarvis, MS., Bayley, J., and R. & M. C. C. R. 7. equal violence to language and to common sense, to consider it as their dwellinghouse, 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 dwellinghouse of the person by whom it was occupied.(0) Though a servant live rent free in a house belonging to his master, and his master pay the taxes, and the master's business be carried on in the house, yet if the servant and his family be the only persons who sleep in the house, and the part in which the master's business is carried on be at all times open to those parts in which the servant lives, it may be stated as the servant's house, though the only part entered by the thief were that in which the master's business was carried on. The prisoner was indicted for stealing the property of Bontillior, in the dwelling-house of Bunyon; it appeared that Bunyon was secretary of the Norwich Union and Life Office, at the time the felony was committed; no one of the company ever dwelt in the house; Bunyon, his family, and servants were the only persons occupying the house, and he lived there as secretary to the company; the rent and taxes were paid by the company. The property stolen was *deposited in a safe, in the lower part of the house, which was used as the office of business of the company, for safety [*32. till the next morning, when it would have been carried away by Bontillior. The business of the office closed at five o'clock, and the rooms of business were not locked, but left equally accessible to Bunyon, or any part of his family or servants, with any other part of the house. It was objected that the house ought to have been laid as the house of the company; but the Recorder, on the authority of the preceding case, overruled the objection, and, upon a case reserved, the judges were of opinion that the house was properly described as Bunyon's house, as he and his family and servants were the only persons who dwelt there; they and they only were liable to be disturbed by a burglary, and though the judges would not say that it might not have been described as the company's house, they thought it might, with equal propriety, be described as Bunyon's, and that the conviction was right.(p) Where a servant lives in a cottage, quite distinct from his master's house, and has the entire control over the cottage, it may be described as his dwelling-house, although he pay no rent for it, and may be liable to give it up whenever his service (0) Rex v. Margetts, 2 Leach 930, Graham, B., and Grose, J. It is also stated, 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 Witney, 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 terror in this case not having affected the company at Witney, 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, p. 29, but see the next case. There is a note to this' case of Margetts, 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 at the Haberdasher's Company, and resided in the hall which was broken open; and in that case the Court held it to be his father's house. (p) Rex v. Witt, R. & M. C. C. R. 248. The Recorder observed, "If the principle stated in Margetts' case be correct, namely, that the punishment of burglary was intended to protect the actual occupant from the terror of disturbance during the hours of darkness and repose, how could that possibly operate upon this company had the house been broken and entered in the night with intent to commit murder upon the person of Bunyon, or any of his family or servants?" is terminated. Upon an indictment for burglary in the dwelling-house of J. Lewis, it appeared that Lewis was a gardener to the Baron de Rutzen, and that he occupied, as gardener, a cottage in his master's garden, that he slept in the cottage, and kept the key, but took his meals with the other servants in the house; he paid no rent, and considered himself liable to give up the cottage whenever he ceased to be gardener. It was objected that Lewis took no interest in the cottage, but merely occupied it in right of his master, and that it should therefore have been described as the dwelling house of the master. Lord Denman, C. J., " As the building in which the servant slept is quite distinct and apart from his master's place of residence, and he had a perfect control over it, and kept the key, I think it is well described as the dwelling-house of the servant; but I do not think that the indictment would have been bad, had it laid the house as that of the master."(q) Upon an indictment for burglary, in one count alleged to have been committed in the dwelling-house of Bromage, and in another in the dwelling-house of the Earl of Coventry; it appeared that Bromage had the house and firing for the services he had performed for the Earl during fifty years, but he did no work, and was allowed so much a week as an old servant; Littledale, J., held that this was sufficient to support the indictment, as the house of Bromage, or at all events, as the house of the Earl of Coventry.(r) Where a policeman was allowed to live in a house, in order to *take care of *33] it, and a wharf adjoining, it was held that the house was properly described as the dwelling-house of the policeman, on the ground that he must live somewhere; and he was not otherwise the servant of the owner than in the particular matter.(s) But where upon an indictment for burglary in the dwelling-house of Bird, it appeared that Bird worked for one Woodcock, who did business as a carpenter for the New River Company, and put him in to take care of the house and flock mills adjoining, which belonged to the company, and he received no more wages than he did before he lived there, nor had any agreement for any; it was doubted whether the house was properly laid, and it was thought that there might be some difference between this and the preceding case, as, here the man was put in by a person who did the work for the company, and it was thought the safest course to consider the indictment as not properly laying it to be the dwelling-house of Bird.(4) Upon an indictment for house-breaking, describing the house in one count as the dwelling-house of Mary Moulder, and in another count as the dwelling-house of G. B. P. Primm, no proof of the Christian names of Primm was given; but it appeared that Moulder had been put into the house by Primm to take care of it, till it could be let, and she was to have coals for firing found by Primm: she paid no rent for the house: she had been occasionally a servant of Primm for thirty or forty years, and done work for him, for which she had always been paid; it was objected that the house was not the dwelling-house of Moulder but of Primm. Littledale, J.: "I think the evidence is sufficient to support the first count. The prosecutrix has had the exclusive occupation of the house, and although there are very nice distinctions between the cases, I think this was her dwelling-house. She was not put in as a servant, to take care of the furniture or goods, which has generally been the case where such questions have arisen." (u) But where a servant has part of a house for his own occupation, and the rest is reserved by the proprietor for other purposes, the part reserved cannnot be deemed part of the servant's dwelling-house; and it is the same if other any has part person of the house, and the rest is reserved. The governor of the Birmingham workhouse was appointed under contract for seven years, and was to have the chief part of a house for his own and his family's occupation, but the guardians and overseers who had appointed him, reserved to themselves the use of one room for an office, and three others for store-rooms. The governor was assessed for the house, ex(g) Rex v. Rees, 7 C. & P. 568 (32 E. C. L. R.). (r) Rex v. Ballard & Everall, Worcester Lent Ass., 1830, MSS. C. S. G. See Rex v. Jobling, post, p. 36. (s) Rex v. Smith, cited in Rex v. Rawlins, 7 C. & P. 150 (32 E. C. L. R.). (t) Rex v. Rawlins, 7 C. & P. 150 (32 E. C. L. R.), Vaughan and Gaselee, Js. (u) Rex v. George James, Gloucester Lent Ass. 1830, MSS. C. S. G. ante, p. 26, note (a), was strongly relied upon in support of the objection. Brown's case, |