the house he had a tenant, who quitted it soon afterwards, and from that time no person had slept in it. On a case reserved, all the judges held that this was not a dwelling-house. Martin's case, Russ. & Ry. 108.

It seems to be sufficient if any part of the owner's family, as his domestic servants, sleep in the house. A. died in his house. B. his executor put servants into it, who lodged in it, and were at board wages, but B. never lodged there himself. Upon an indictment for burglary, the question was, whether this might be called the mansion-house of B. The court inclined to think that it might, because the servants lived there; but upon the evidence there appeared no breach of the house. Jones's case, 2 East, P. C. 490.

*Proof of the premises being a dwelling-house-occupation_temporary [*351] or permanent.] A house is no less a dwelling-house, because at certain periods the occupier quits it, or quits it for a temporary purpose. "If A," says Lord Hale, " has a dwelling-house, and he and all his family are absent a night or more, and in their absence, in the night, a thief breaks and enters the house to commit felony, this is burglary." 1 Hale, P. C. 556; 3 Inst. 64. So if A. have two mansion-houses, and is sometimes with his family in one, and sometimes in the other, the breach of one of them, in the absence of his family, is burglary. Id. 4 Rep. 40, a. Again, if A. have a chamber in a college or inn of court, where he usually lodges in term time, and in his absence in vacation his chamber or study is broken open, this is burglary. Evans and Finche's case, Cro. Car. 473; 1 Hale, P. C. 556. The prosecutor being possessed of a house in Westminster in which he dwelt, took a journey into Cornwall, with intent to return, and move his wife and family out of town, leaving the key with a friend to look after the house. After he had been absent a month, no person being in the house, it was broken open and robbed. He returned a month after with his family, and inhabited there. This was adjudged burglary, by Holt, C. J., Treby, J., and four other judges. Murray's case, 2 East, P. C. 496; Foster 77.

In these cases the owner must have quitted his house animo revertendi, in order to have it still considered as his mansion, if neither he nor any part of his family were in it at the time of the breaking and entering. 2 East, P. C. 496. The prosecutor had a house at Hackney, which he made use of in the summer, his chief residence being in London. About the latter end of the summer he removed to his town house, bringing away a considerable part of his goods. The following November his house at Hackney was broken open, upon which he removed the remainder of his furniture, except a few articles of little value. Being asked whether at this time he had any intention of returning to reside, he said he had not come to any settled resolution, whether to return or not, but was rather inclined totally to quit the house and let it. The burglary happened in the January following, but the court (at the Old Bailey) were of opinion that the prosecutor having left his house and `disfurnished it, without any settled resolution to return, but rather inclining to the contrary, it could not be deemed his dwellinghouse. (1) Nutbrown's case, Foster, 77; 2 East, P. C. 496. See R. v. Flannagan, Russ. & Ry. 187.a

(1) Burglary may be committed in a house in the city, in which the prosecutor intended to reside on his return from his summer residence in the country, and to which, on going into the country, he had removed his furniture from his former residence in town; though neither the prosecutor nor his family had ever lodged in the house, in which the crime is charged to have been committed, but merely visited it occasionally. Commonwealth v. Brown, 2 Rawle, 207.

It seems that the mere casual use of a tenement, as a lodging, or only upon some particular occasions, will not constitute it a dwelling-house. 2 East, P. C. 497. Where some corn had been missed out of a barn, the prosecutor's servant and another person put a bed in the barn, and slept there, and upon the fourth night the prisoner broke and entered the barn; and upon a reference it was agreed by all the judges that this sleeping in the barn made no difference. Brown's case, 2 East, P. C. 497. So a porter lying in a warehouse, to watch goods, which is solely for a particular purpose, does not make it a dwelling-house. Smith's case, 2 East, P. C. 497.

As to a wrongful occupation, see Wallis's case, ante, p. 280.

Proof of the premises being a dwelling-house-occupation-house divided, without [*352] internal communication, and occupied by several.] *Where there is an actual severance in fact of the house, by a partition or the like, all internal communication being cut off, and each part being inhabited by several occupants, the part so separately occupied is the dwelling-house of the person living in it, provided he dwell there. If A. lets a shop, parcel of his dwelling-house, to B. for a year, and B. holds it, and works or trades in it, but lodges in his own house at night, and the shop is broken open, it cannot be laid to be the dwelling-house of A., for it was severed by the lease during the term; but if B. or his servant sometimes lodge in the shop, it is the mansion-house of B., and burglary may be committed in it. 1 Hale, P. C. 557; Vide Sefton's case, infra.

The prosecutors, Thomas Smith and John Knowles, were in partnership, and lived next door to each other. The two houses had formerly been one, but had been divided, for the purpose of accommodating the families of both partners, and were now perfectly distinct, there being no communication from one to the other, without going into the street. The housekeeping, servants' wages, &c., were paid by each partner respectively, but the rent and taxes of both the houses were paid jointly out of the partnership fund. The offence was committed in the house of the prosecutor Smith. On the trial, before Eyre, C. B., and Gould, J., at the Old ⚫ Bailey, it was objected that the burglary ought to have been laid to be in the dwelling-house of the prosecutor Smith only; and of this opinion was the court. Martha Jones's case, 1 Leach, 537; 2 East, P. C. 504. But it is otherwise where there is an internal communication. Thus where a man let part of his house, including his shop, to his son, and there was a distinct entrance into the part so let, but a passage from the son's part led to the father's cellars, and they were open to the father's part of the house, and the son never slept in the part so let to him, the prisoner being convicted of a burglary in the shop, laid as the dwellinghouse of the father, the conviction was held by the judges to be right, it being under the same roof, part of the same house, and communicating internally. But it was thought to be a case of much nicety. Sefton's case, 1 Russ. by Grea. 799; Russ. & Ry. 203.⚫

Chambers in the inns of court are to all purposes considered as distinct dwellinghouses, and therefore whether the owner happens to enter at the same outer door or not, will make no manner of difference. The sets are often held under distinct titles, and are, in their nature and manner of occupation, as unconnected with each other, as if they were under separate roofs. 2 East, P. C. 505; 1 Hale, P. C. 556.

Proof of the premises being a dwelling-house-occupation-house divided without 1 Eng. C. C. 203.

internal communication, but all occupied by the same person.] We have seen, (supra) that where a house is divided, and there is no internal communication between the two parts, which are occupied by separate tenants, each part is to be considered as the dwelling-house of the tenant living in it. But where a house is thus severed, and the owner dwells in one part of it only, and the other part is broken and entered in the night; whether this shall be deemed a burglary seems a question of much nicety. According to the authorities, before the late statute 7 & 8 Geo. 4, c. 29, s. 13, (see post, p. 362) it was held to be burglary. In the following case, the *severed part of the premises had been let to [*353] another person, but that circumstance was held to make no difference, and the tenant of the other part was held to be the tenant of the whole, there being the same outer door.

The prosecutor was the owner of a house, in which he resided, and to which house there was a shop adjoining, built close to the house. There was no internal communication between the house and the shop, the only door of the latter being in the court-yard before the house, which yard was inclosed by a brick wall, including the house and shop. The prosecutor let the shop, together with some apartments in the house, to one Hill, from year to year. There was only one common door to the house, which communicated as well to the prosecutor's as to Hill's apartments. The burglary was committed in the shop. On a case reserved, the judges were all of opinion that the shop was rightly laid to be the dwellinghouse of the prosecutor, who inhabited in one part, there being but one outer door, especially as it was within one curtilage, or fence; and that the shop, being let with a part of the house inhabited by Hill, still continued to be a part of the dwelling-house of the prosecutor, though there was no internal communication between them. But it was admitted, that if the shop had been let by itself, Hill not dwelling therein, burglary could not have been committed in it, for then it would have been severed from the house. Gibson's case, 2 East, P. C. 508. This decision was acted upon by Holroyd, J., in the following case. The prisoner entered a loft, beneath which were four apartments, inhabited as a dwelling-house, but which did not communicate with the loft in any manner. On the side of the house was a shop, which was not used as a dwelling-house, and which did not communicate with the four chambers. Between this shop and the loft there was a communication, by means of a ladder. The dwelling-house and the shop both opened into the same fold. Holroyd, J., on the authority of Gibson's case, supra, held the loft to be a dwelling-house. Thompson's case, 1 Lewin, C. C. 32.

It does not clearly appear in Gibson's case, whether the shop was considered to be part of the dwelling-house, strictly speaking, (in the same manner as if it had been any of the other apartments,) or whether it was only taken to be part of the dwelling-house as being within the same curtilage or fence, the judges using the expression "especially as it was within one curtilage or fence." If it was decided upon the latter ground, it would now, since the 7 & 8 Geo. 4, c. 29, s. 13, be a question how far the shop would be considered a part of the dwelling-house, there being no communication between the two. According to the case of Burrowes, 1 Moody, C. C. 274, post, p. 362, in which the judges were divided, seven to five, the shop would still be considered as part of the dwelling-house.

Proof of the premises being a dwelling-house-occupation—where there is an internal communication, but the parts are occupied by several under different titles.] Although in the case of lodgers and inmates, who hold under one general occupier, 12 Eng. C. C. 274.

the whole of the house continues to be his dwelling-house, if there be an internal communication, and the parties have a common entrance, vide infra, yet it is otherwise where several parts of a building are let under distinct leases. The [*354] *owner of a dwelling-house and warehouse under the same roof, and communicating internally, let the house to A. (who lived there), and the warehouse to A. and B., who were partners. The communication between the house and warehouse was constantly used by A. The offence was committed in the warehouse, which was laid to be the dwelling-house of A. On a case reserved, the judges were of opinion that this was wrong, A. holding the house in which he lived under a demise to himself alone, and the warehouse under a distinct demise to himself and B. Jenkins's case, Russ. & Ry. 244.8

Proof of the premises being a dwelling-house-occupation—by lodgers.] Where separate apartments were let in a dwelling-house to lodgers, it seems formerly to have been doubted whether they might not in all cases be described as the mansion-house of the lodgers. 2 East, P. C. 505; Hawk. P. C. b. 1, c. 38, s. 13, 14. But the rule is now taken to be, according to the opinion of Kelynge, (p. 84), 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, common to himself and his lodgers, such lodgers are only inmates, and all their apartments are parcel of the dwelling-house of the owner. But if the owner do not lodge in the same house, or if he and his lodgers enter by different outer doors, the apartments so let are the mansion, for the time being, of each lodger respectively. And accordingly it was so ruled by Holt, C. J., at the Old Bailey, in 1701, although in that case the rooms were let for a year, under a rent, and Tanner, an ancient clerk in court said that this was the constant course and practice. 2 East, P. C. 505, 1 Leach, 90, (n.)

Where one of two partners is the lessee of a shop and house, and the other partner occupies a room in the house, he is only regarded as a lodger. Morland and Gutteridge were partners; Morland was the lessee of the whole premises, and paid all the rent and taxes for the same. Gutteridge had an apartment in the house, and allowed Morland a certain sum for board and lodging, and also a certain proportion of the rent and taxes for the shop and warehouse. The burglary was committed in the shop, which was held to be the dwelling-house of Morland, and the judges held the description right. Parmenter's case, 1 Leach, 537, (n.)

In the following cases, the apartments of the lodger were held to be his dwellinghouse. The owner let the whole of a house to different lodgers. The prosecutor rented a house on the first floor, a shop and parlour on the ground floor, and a cellar underneath the shop, at 127. 10s. a year. The owner took back the cellar, to keep lumber in, for which he allowed a rebate of 40s. a year. The entrance was into a passage, by a door from the street, and on the side of the passage one door opened into the shop, and another into the parlour, and beyond the parlour was the staircase which led to the upper apartments. The shop and parlour doors were broken open, and the judges determined that these rooms were properly laid to be the dwelling-house of the lodger, for it could not be called the mansion of the owner, as he did not inhabit any part of it, but only rented the cellar for the purpose before mentioned. Roger's case, 1 Leach, 89, 428; 2 East, P. C. 506, 507; Hawk. P. C. b. 1, c. 38, s. 29.

[*355] The house in which the offence was committed belonged to one *Nash, 1 Eng. C. C. 244.

1

who did not live in any part of it himself, but let the whole of it out in separate lodgings from week to week. John Jordan, the prosecutor, had two rooms, viz., a sleeping-room, and a work-shop in the garret, which he rented by the week as tenant at will to Nash. The work-shop was broken and entered by the prisoner. Ten judges, on a case reserved, were unanimously of opinion, that as Nash, the owner of the house, did not inhabit any part of it, the indictment properly charged it to be the dwelling-house of Jordan. Carrell's case, 1 Leach, 237, 429; 2 East, P. C. 506. The prisoner was indicted under the 3 and 4 Wm. & M. c. 9, s. 1, for breaking and entering a dwelling-house, and stealing therein. The house was let out to three families, who occupied the whole. There was only one outer door, common to all the inmates. J. L. (whose dwelling-house it was laid to be,) rented a parlour on the ground-floor, and a single room up one pair of stairs, where he slept. The judges were of opinion that the indictment rightly charged the room to be the dwelling-house of J. L. Trapshaw's case, 1 Leach, 427; 2 East, P. C. 506, 780.

It follows, from the principle of the above cases, that if a man lets out part of his house to lodgers, and continues to inhabit the rest himself, if he breaks open the apartment of a lodger, and steals his goods, it is felony, for it cannot be burglary to break open his own house. 2 East, P. C. 506; Kel. 84.

Proof of the premises being a dwelling-house-occupation—by wife or family.] The actual occupation of the premises by any part of the prosecutor's domestic family, will be evidence of its being his dwelling-house. The wife of the prosecutor had for many years lived separate from her husband. When she was about to take the house, in which the offence was afterwards committed, the lease was prepared in her husband's name, but he refused to execute it, saying he would have nothing to do with it, in consequence of which, she agreed with the landlord herself, and constantly paid the rent herself. Upon an indictment for breaking open the house, it was held to be well laid to be the dwelling-house of the husband. Farre's case, Kel. 43, 44, 45. In a similar case, where there was the additional fact, that the wife had a separate property vested in trustees, the judges were clear that the house was properly laid to be the dwelling-house of the husband. It was the dwellinghouse of some one. It was not the wife's; because, at law, she could have no property; it was not the trustees', because they had nothing to do with it; it could then only be the husband's. French's case, Russ. & Ry. 491. So where the owner of a house, who had never lived in it, permitted his wife, on their separation, to reside there, and the wife lived there in adultery with another man, who paid the expenses of housekeeping, but neither rent nor taxes, this was held by the judges to be properly described as the dwelling-house of the husband. Wilford's case, Russ. & Ry. 617; and see Smyth's case, 5 C. & P. 503. Where a prisoner was indicted for breaking into the house of Elizabeth A., and it appeared that her husband had been convicted of felony, and was in prison under his sentence when the house was broken into, it was held, on a case reserved, that the house was improperly described, although the wife continued in possession of it. Whitehead's case, 9 C. & P. 429.* But if a case should arise, in which the law would adjudge the separate *pro- [*356] perty of the mansion to be in the wife, she having also the exclusive possession, it should seem that in such case the burglary would properly be laid to be committed in her mansion-house, and not in that of her husband. 2 East, P. C. 15, s. 16; 1 Russ. by Grea. 808.

1 Eng. C. C. 491.

i Id. 517.

Eng. C. L. Reps. xxiv. 279. * Id. xxxviii. 175.