sale of goods, and that a mere workshop was not within the clause: R. v. Sanders, 9 C. & P. 79; but in R. v. Carter, 1 C. & K. 173, Lord Denman, C.J., declined to be governed by the preceding case, and held that a blacksmith's shop, used as a workshop only, was within the statute. A warehouse means a place where a man stores or keeps his goods which are not immediately wanted for sale; R. v. Hill, 2 Russ. 95. Upon an indictment for breaking and entering a counting-house, owned by Gamble, and stealing therein, it appeared that Gamble was the proprietor of extensive chemical works, and that the prisoner broke and entered a building, part of the premises, which was commonly called the machine-house, and stole therein a large quantity of money. In this building, there was a weighing machine, at which all goods sent out were weighed, and one of Gamble's servants kept in that building a book in which he entered all goods weighed and sent out. The account of the time of the men employed in different departments was taken in that building and their wages were paid there; the books in which their time was entered were brought to that building for the purpose of making the entries and paying the wages. At other times they were kept in another building called.the office, where the general books and accounts of the concern were kept. It was objected that this was not a counting-house; but, upon a case reserved, the judges held that it was a counting-house within the statute: R. v. Potter, 2 Den. 235.

An indictment for house-breaking is good if it alleges that the prisoner broke and entered the dwelling-house, and the goods of in the said dwelling-house then and there being found, then and there (omitting “in the said dwelling-house") unlawfully did steal: R. v. Andrews, Car. & M. 121, overruling R. v. Smith, 2 M. & Rob 115, which Coleridge, J., said Patteson, J., was himself since satisfied had been wrongly decided: 2 Russ. 76, note by Greaves.

Indictment.

the dwelling-house of J. N., situate unlawfully did break and enter, by day, with intent the goods and chattels of the said J. N., in the said dwellinghouse then being, unlawfully to steal, and one dressing-case of the value of twenty-five dollars, of the goods and chattels of the said J. N., then in the said dwelling-house, then unlawfully did steal.

Upon the trial of an indictment for an offence under this section the jury may, under s. 711, convict the defendant of an attempt to commit the same, if the evidence warrants it. But they can only convict of the attempt to commit the identical offence charged in the indictment; the prisoner was indicted for breaking and entering a dwellinghouse, and stealing therein certain goods specified in the indictment, the property of the prosecutor. It was proved at the trial that at the time of the breaking the goods specified were not in the house, but there were other goods there, the property of the prosecutor; the prisoner had not had time to steal anything, having been caught immediately after his entering the house. The jury acquitted the prisoner of the felony charged, but found him guilty of breaking and entering the dwelling-house of the prosecutor, and attempting to steal his goods therein. Held, that the conviction was wrong, and that an attempt must be to do that which, if successful, would amount to the felony charged: R. v. McPherson, Dears. & B. 197. The prisoner, under such circumstances, may be convicted of breaking and entering with intent to commit an indictable offence, under s. 412, post. But only if, as in the form above given, the intent is alleged, which was not the case in R. v. McPherson. See s. 64, p. 42, ante.

HOUSEBREAKING WITH INTENT.

412. Every one is guilty of an indictable offence and liable to seven years' imprisonment who, by day, breaks and enters any dwelling-house with intent to commit any indictable offence therein. (Amended). 24-25 V. c. 96, s. 57 (lmp.).

R. S. C. c. 164, s. 42

The words "schoolhouse, shop, warehouse and counting house" were in the repealed clause.

Indictment.

J. N., situate

unlawfully did break and enter by day with intent to commit an indictable offence therein, to wit, the goods and chattels of the said J. N., in the said dwelling-house there being, then to steal.

Where there is only an attempt it is not always possible to say what goods the would-be thief meant to steal, and an indictment for an attempt to commit larceny need not specify the goods intended to be stolen: R. v. Johnson, L. & C. 489.

Upon an indictment under this section the prisoner may be convicted, under s. 711, of attempting to commit the offence charged: R. v. Bain, L. & C. 129.

Greaves "" says: 'This clause is new, and contains a very important improvement in the law. Formerly the offence here provided was only a misdemeanour at common law. Now it often happened that such an offence was very inadequately punished as a misdemeanour, "especially since the night was made to commence at nine in the evening; for at that time, in the winter, in rural districts, the poor were often in bed. Nor could anything be much more unreasonable than that the same acts done just after nine o'clock at night should be liable to penal servitude for life, but if done just before nine they should only be punishable as a misdemeanour. It is clear that if, on the trial of an indictment for burglary with intent to commit a felony, it should appear that the breaking and entry were before nine o'clock the prisoner might be convicted under this clause. But upon an indictment in the ordinary form for house-breaking, the prisoner could not be convicted under this clause, because it does not allege an intent to commit a felony (as in McPherson's Case, ante, under last preceding section). It will be well, however, to alter the form of these indictments, and to allege a breaking and

entry with intent to commit some felony (any indictable offence), in the same manner as in an indictment for burglary with intent to commit felony, and then to allege the felony that is supposed to have been committed in the house. If this be done, then, if the evidence fail to prove the commission of that felony, but prove that the prisoner broke and entered with intent to commit it, he may be convicted under this clause."

BREAKING SHOP, SCHOOL-HOUSE, ETC., AND COMMITTING AN OFFENCE.

413. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who, either by day or night, breaks and enters and commits any indictable offence in a school-house, shop, warehouse or counting house, or any building within the curtilage of a dwelling house, but not so connected therewith as to form part of it under the provisions herein before contained. R. S. C. c. 164, s. 40 (Amended). 24-25 V. c. 96, ss. 55-56 (Imp.);

Section 407 defines what is within the curtilage.

See ante, under s. 411 what is a shop, or warehouse, or counting-house: also as to indictment.

"Curtilage" is a court-yard, enclosure or piece of land near and belonging to a dwelling-house.-Toml. Law Dict.

The breaking and entering must be proved in the same manner as in burglary, except that it is immaterial whether it was done in the day or night. If this proof fail the defendant may be convicted of simple larceny.

The building described in the statute is " any building within the curtilage of a dwelling-house, but not so connected therewith as to form part of it under the provisions herein before contained," that is, not communicating with the dwelling-house, either immediately or by means of a covered and enclosed passage leading from the one to other as described in s. 407. To break and enter such a building was,

before the present statute, burglary, or house-breaking, and although this enactment, which expressly defines the building meant thereby to be a building within the curtilage, appears to exclude many of those buildings which were formerly deemed parcel of the dwelling-house, from their adjoining the dwelling-house, and being occupied there

with, although not within any common enclosure or curtilage, yet some of the cases decided upon these subjects may afford some guide to the construction of the present section. Where the defendant broke into a goose-house, which opened into the prosecutor's yard, into which yard the prosecutor's house also opened, and the yard was surrounded, partly by other buildings of the homestead, and partly by a wall in which there was a gate leading to the road, and some of the buildings had doors opening into the lane, as well as into the yard, the goose-house was holden to be part of the dwelling-house: R. v. Clayburn, R. & R. 360. Where the prosecutor's house was at the corner of the street, and adjoining thereto was a workshop, beyond which a coach-house and stable adjoined, all of which were used with the house and had doors opening into a yard belonging to the house, which yard was surrounded by adjoining buildings and was altogether enclosed, but the shop had no internal communication with the house, had a door opening into the street, and its roof was higher than that of the house, the workshop was holden to be a parcel of the dwelling-house: R. v. Chalking, R. &. R. 334. So, a warehouse which had a separate entrance from the street, and had no internal communication with the dwelling-house with which it was occupied but was under the same roof, and had a back door opening into the yard into which the house also opened and which enclosed both, was holden to be part of the dwelling-house: R. v. Lithgo, R. & R. 357. So, where in one range of buildings the prosecutor had a warehouse and two dwelling-houses, formerly one house, all of which had entrances into the street, but had also doors opening into an enclosed yard belonging to the prosecutor, and the prosecutor let one of the houses between his house and the warehouse together with certain easements in the yard, it was holden that the warehouse was parcel of the dwelling-house of the prosecutor; it was so before the division of the house and remained so afterwards: R. v. CRIM. LAW-31