HILARY TERM 14 GEORGE III. B. R. 1774. LEE verfus GANSEL. Tuesday, 25th Jan. open the ledger's a partment, T HIS came before the court upon a rule to fhew caufe A bailiff, in why the defendant fhould not be difcharged out of the execution of meine cuftody of the Warden of the Fleet; upon the ground of his procefs, having been illegally arrefted; that is, "that the Officer broke may break into the apartment of the houfe where he lodged," and door of a which he had rented by the year, for the space of eight and twenty years before. The breaking open the door was pofitively having firft gained fworn to on the part of the defendant, and as pofitively denied peaceable by the officer; who fwore, that the door was open, and that having the outer got his thigh in, a ftruggle enfued, in which, after a time, he door of the prevailed, and then arrested the defendant. The entrance of the officer into the house was at the outer door, and was admitted on all hands to have been peaceable and legal. Mr. Wallace, Mr. Bearcroft, Mr. T. Cowper, and Mr. Buller thewed caufe, First, It is neceffary upon an application of this kind, for the defendant to make out a clear cafe, and to entitle himself to the difcharge he claims beyond all controverfy or doubt. But here, the evidence is fo contradictory as to leave him no cafe in point of fact; and if it did, the law is against him; which introduces the fecond and the principal queftion in the cause, "Whether "this lodging was the dwelling-houfe of the defendant, or " not?" The cafes upon burglary are material to the difcuffion of this question. VOL. I. B In entrance at house. 1774. LEE verfus GANSEL. In Lord Hale, Hift. Plac. Cor. 556. it is faid, that, "if A. "hires a chamber in the house of B. for a certain time, wherein "he lodgeth, and during the time contracted for it is broke "open, this is burglary; and the indictment fhall fuppofe it to "be domum manfionalem of 4." But this is contradicted in many cafes; particularly in Kelynge 83. where it is expressly laid down, that, "As to an inmate who goeth in at the fame door as the "owner of the house, he is in the nature of a lodger, and if his "chamber be broken open, it is burglary; but the indictment "must be laid for breaking the dwelling-house of him that let "it, and not of the inmate." In the present case Mr. Ganfel is only an inmate, and therefore according to the above authority it cannot be faid to be his dwelling-house. ¢¢ Again, at the Old Bailey feffions after Michaelmas term 1701, it was held, per Holt Chief Juftice, "That where inmates have Separate rooms in a house, if they enter at the fame outer door as the owner, the rooms are not the dwelling-houfe of the "inmates, but of the owner." is a Confistent with the opinions of these two great men,, decifion as late as Mich. 13 Geo. 3. "One Rogers was indicted "for a burglary in the dwelling-house of Chandler, who rented "only a fhop and parlour in it of the owner: The reft of the "house was occupied by different inmates; the owner himself ❝inhabiting no part of it. It was objected, that the burglary "ought to have been laid in the manfion-houfe of the owner; "each apartment in it being occupied by inmates. But all "the Judges agreed that it was properly laid; elfe there would "be no fecurity from burglary in fuch a cafe: But they likewise "held, that, if the owner had inhabited any part, it would "have been clearly otherwise." These cafes by analogy fhew, that the apartment in queftion cannot be faid to be the dwelling-houfe of Mr. Ganfel. But, thirdly; fuppofing it were his dwelling-house, though in such case the bailiff ought not to break open the door, yet if he does, it will not invalidate the arreft; for there are many cafes in which an arreft may be good, though the conduct of the officer is not strictly right in point of law. In fupport of this was cited Bro. Abr. tit. Execution pl. 100. tit. Trefp. pl. 390.-18 E. 4. 4. where the sheriff, upon a fieri facias awarded, broke open the houfe to take the goods. By Littleton but the taking the LIE verfus Littleton and the court; trefpafs will lie for breaking the house, 1774. goods was lawful. S. C. Dalton's Sheriff, pag. 350. This is an athority in point; and clearly proves that if it were the dwelling houfe of the defendant, it does not follow that the arreft is illegal. Upon the whole therefore the defendant ought not to be discharged out of cuftody. An affidavit of Lee was offered to be read. Objected; that he stood convicted of perjury, and the conviction was produced. But, per Lord Mansfield, a conviction upon a charge of perjury is not fufficient, unless followed by a judgment; I know of no cafe, where a conviction alone has been an objection: Because, upon a motion in arreft of judgment, it may be quashed. Mr. Dunning, Mr. Mansfield, Mr. Cox, and Mr. Murphy in support of the rule. The defendant was the fole proprietor of this apartment; as fuch, it was equally his Caftle, in the legal fenfe of that word, as if he had occupied the whole houfe; and he is equally intitled to protection in it. For the privilege which the law annexes to every man's houfe is the privilege of protection, and with that view, and in that fenfe only, is a man's house said "to be his "castle." The defendant in this cafe had no right to shut the houfe door; but he had a right to fhut his own door; and if it might be broken open, what protection or what safety is there under fuch circumftances? It is therefore within the reafon of the privilege, though there may be no direct cafe in point. As to the cafes of burglary, it is clear that burglary may be committed in fuch an apartment: The only doubt is, whose dwelling-house it should be called? But upon civil process neither a house nor lodging can be broken open. The term inmate, cannot be applied to General Ganfel. In common acceptation it means rogue, vagabond, &c. it is not ap plicable to a person who hires a diftinct apartment, unconnected with the owner of the house. This is as much a diftinct property as the chambers of a college or of an inn of court, which have all one common entrance or fore-door: yet they are the davelling-houses of the different perfons who inhabit them. By parity of reafon, a lodging is the manfion of the person who hires it and so it is exprefsly laid down by Lord Coke, 3 Inft. fel. 65. A chamber or room, be it upper or lower, wherein any perfor. doth inhabit or dwell, is Domus manfionalis in "Law." B 2 GANSEL. One conperjury, is a competent fore judg victed of witness, be ment. 1774. LEE verfus "Law." If fo, the officer had no right to break open this apartment in execution of mefne process. As to the abufe of the procefs being no ground for discharging GANSEL. the Defendant, it was anfwered, that in all cafes of privilege, the party arrested is not left to feek his remedy by action; but the court does that which is the fubftantial Juftice of the cafe, and places the Party in the same fituation as if there had been no abuse, or irregularity in the process; and ex parte Wilson, Atkyns 152. was cited: Wilfon becoming bankrupt, a commission iffued; after which he was arrested at the fuit of the petitioning creditor; and being in cuftody, was charged with another action at the fuit of one Wafs. Upon petition to the Chancellor to be discharged out of cuftody upon both actions, Lord Hardwicke faid, "Even at law where there is an irregular arrest, and an advantage is taken of the irregularity to charge the party in "cuftody at the fuit of another perfon, the court of law will "difcharge him from both: and ordered the bankrupt to be "difcharged accordingly." Lord MANSFIELD faid, he had not much doubt at prefent, but it might be proper to look into the cafes, and alfo into fome that had not been cited. Curia advifare vult. Afterwards, on Thursday 27th January 1774, Lord Mansfield delivered the opinion of the court as follows: This is an application on the part of General Ganfel to be discharged out of cuftody on the following ground. That the procefs iffued against him by this court has been abused, and his perfon illegally arrefted; for that the officer broke open the door of his apartment which by law he could not do: therefore the court ought to difcharge him, and put him in the fame condition as before the arrest. To this charge three defences are fet up on the part of the plaintiff in the action and of the officer complained against. The firt is, that in fact the door was not broken open; but was previously open: and the officer having got part of his body, that is to fay, his thigh in, after a ftruggle to get in the reft, in which he prevailed, arrefted the defendant. The fecond, which goes to a denial of the whole ground of the application, is this; "That the door which was broken open, the officer had a right to "break open, due notice having been announced, and a refufal "given." The third is, that fuppofing Mr. Ganfel founded in his application, as to the mode of the arreft being illegal; yet |