manufacturers, consisting of sixty or more, at Whitney, 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; and the lease of the premises was in the company. The commission of the offence being clearly proved, it was contended, by the counsel for the prisoners, on the authority of Hawkins'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 equal violence to language and to common sense, to consider it as their dwelling-house, 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. (i) (i) Margetts and others, (case. of) O. B. 1801, cor. Graham, B. and Grose, J., 2 Leach 930. It is also stated, in the report of this case, that the court further gave as a reason for their judgment, that "the punishment of burglary was "intended to protect the actual Ownership of apartments occupied by guests, &c. in a house or inn. Where persons are abiding in a house as guests, or by sufferance, or otherwise, having no fixed or certain interest in any part of it, and a burglary is committed in any of their apartments, the indictment should lay the offence as in the mansion of the proprietor of the house. (k) So that if the chamber of a guest at an inn be broken open, it must be laid in the indictment to be the mansion-house of the innkeeper. (1) It is indeed said, that if A., a lodger in an inn, goes to his chamber to bed, and his door is latched or locked, and afterwards in the night he rises, opens his chamberdoor, steals goods in the house, and goes away, it may be a question whether this be a burglary; and it is also said, that it seems it would not, because A. had a kind of special interest and property in his chamber, and therefore that the opening of his own door was no breaking of the innkeeper's house. (m) But though this is the inclination of the opinion of a very great lawyer, the foundation on which it "occupant from the terror of dis- 46 breaking and entering in this "case, have produced an effect at "Whitney, in Oxfordshire." But the accuracy of this reasoning may perhaps be questionable. The puuishment 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 Whitney, 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 931. There is a note to this case of Margetts and others, 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 to the Haberdashers Company, and resided in the hall which was broken open; and in that case the court held it to be his father's house. (k) 1 Hawk. P. C. c. 38. s. 26. (1) 1 Hale 557. (m) Ibid. 554. · proceeds cannot easily be reconciled with the doctrine which he admits in the same page, and also in a subsequent part of his work, namely, that if A. had opened the chamber of B., another lodger in the inn, to steal his goods, it would have been burglary; and that though a lodger has a special interest in his chamber, yet a burglary committed in it must be laid as in the mansion-house of the innkeeper. (n) And it has been remarked, that this doctrine is also at variance with the reasoning, in a case subsequently decided, which supposes that a guest has not even the possession of a room in an inn for himself, but that it remains still in the possession of the host. (0) In this last-mentioned case the prosecutor, who was a Jew pedlar, came to a public-house to stay all night, and fastened the door of his bed-chamber; when the prisoner, pretending to the landlord that the prosecutor had stolen his goods, under this pretence, with the assistance of the landlord and others, forced open the chamber door with intent to steal the goods mentioned in the indictment; and the prisoner accordingly stole them. These facts were found specially. Mr. Baron Adams who tried the prisoner, doubting whether the bed-chamber could properly be called the dwelling-house of the prosecutor, as stated in the indictment, the case was submitted to the consideration of the Judges. They all thought, that though the prosecutor had for that night a special interest in the bed-chamber, yet that it was merely for a particular purpose, namely, to sleep there that night as a travelling guest, and not as a regular lodger; that he had no certain and permanent interest in the room itself, but that both the property and the possession of the room remained in the landlord, who would be answerable civiliter for any goods of his guest that were stolen in (n) 1 Hale 554, 557. (0) 2 East. P. C. c. 15. s. 15. p. 503. where the learned writer says, that this deserves to be well weigh- Prosser's case. Where the prisoner, under pretence of being robbed, had forced open in the night the chamber door of a guest in an inn,and stolen his goods; held, that the burglary should have been laid in the dwellinghouse of the innkeeper, and not of the guest. The owner ship of apart to inmates depends upon whether the owner sleeps under the same roof, and whether there is but one outer door. that room, even for the goods then in question, which he could not be, unless the room were deemed to be in his possession. They thought also, that the landlord might have gone into the room when he pleased, and would not have been a trespasser to the guest: and that, upon the whole, the indictment was insufficient. (p) The landlord in this case does not appear to have been privy to the felonious intent of the prisoner; but, on the contrary, was imposed upon by him, and induced to assist in breaking open the chamber, upon the supposition that the guest within it had been guilty of felony but even if the landlord had been an accomplice in the act of the prisoner, it seems that his offence would not have been burglary; for though it has been said that if the host of an inn break the chamber of his guest in the night to rob him it is burglary, (q) that doctrine is questioned; and it is well observed, that there seems to be no distinction between that case and the case of an owner residing in the same house, breaking the chamber of an inmate having the same outer door as himself; which would not be burglary. (r) Though different opinions appear to have been formerly entertained upon the point, whether in the case of burglary in the hired apartment of an inmate it should be laid to be committed in the mansion-house of the inmate or of the owner; (s) it is now settled, that if the owner who lets out apartments in his house to other persons sleeps under the same roof, and has but one outer-door at which he and his lodgers enter, all the apartments of such lodgers are parcel of the one dwelling-house of the owner; but, that if the owner does not himself dwell in the same house, or if he and (p) Prosser's case, cor. Adams B. (r) 2 East. P. C. c. 15. s. 15. p. 502. Kel. 84. (s) 1 Hale 556. Kel. 83, 84. 1 Hawk. P. C. c. 38. s. 27. 1 Bac. Ab. Burglary, (E) notes. his lodgers enter by different outer doors, the apartments so let out are the mansion, for the time being, of each lodger respectively. (t) The following cases were decided in conformity to this Carrell's case. rule. A burglary was committed in a house which belonged to one Nash, who did not live in any part of it himself, but let the whole of it out in separate lodgings from week to week and an inmate named Jordan had two apartments in the house; namely, a sleeping-room upon one pair of stairs, and a workshop in the garret; which he rented by the week as tenant at will to Nash. The workshop was the room broken open by the prisoner. And upon a case referred to the Judges for their consideration, whether the indictment had properly charged the burglary in the dwelling-house of Jordan, ten of them were of opinion, that as Nash, the owner of the house, did not inhabit any part of it, the indictment was good. (u) So upon an indictment on the Trapshaw's "constant opinion and practice opinion was cited by Lord C. J. case. |