though an aggregate corporation cannot be said to inhabit any where, yet they may have a mansion-house for the habitation of their servants. Hawkins' case, 2 East, P. C. 501, Foster, 38. So it was held with regard to the dwelling-house of the East India Company, inhabited by their servants. Picket's case, 2 East, P. C. 501. The prisoner was indicted for breaking and entering the house of the inaster, fellows, and scholars of Bennet College, Cambridge. The fact was, he broke into the buttery of the college, and there stole some money, and it was agreed by all the judges to be burglary. Maynard's case, 2 East, P. C. 501. The governor of the Birmingham workhouse was appointed under contract for seven years, and had the chief part of the house for his own occupation; but the guardians and overseers who appointed him, reserved to themselves the use of one room for an office, and of three others for store rooms. The governor was assessed for the house, with the exception of these rooms. The office being broken open, it was laid to be the dwelling-house of the governor; but upon a case reserved, the judges held the description wrong. Wilson's case, Russ. and Ry. 115 (a).

The following case appears to be at variance with previous authorities, and it may be doubted whether it is to be considered as law. The prosecutor, Sylvester, kept a blanket warehouse, in Goswell street, and resided with his family in the house over the warehouse, which was on the groundfloor, and consisted of four rooms; the second of which was the room broken open. There was an internal door between the warehouse and the dwelling-house. The blankets were the property of a company of blanket manufacturers at Witney, in Oxfordshire, none of whom ever slept in the house. The whole rent, both of the dwelling-house and warehouse, was paid by the company, to whom Sylvester acted as 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. The lease of the premises was in the company. The court (Graham, B., and Grose, J.,) were clearly of opinion that it was rightly charged to be the dwelling-house of Sylvester; for though the lease of the house was held, and the whole rent reserved 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 the only purpose in holding it was to furnish a dwelling to their agent, and ware-rooms for the commodities therein deposited. It was the means by which they in part remuncrated Sylvester for his agency, and was 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. The bargain, however, the court [ *321 ] observed, took another *shape. The company 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. It was, therefore, essentially and truly, the dwelling of the person who occupied it. The punishment of burglary was intended to protect the actual occupant from the terror of disturbance during the hours of darkness and repose; but it would be absurd to suppose that that terror which is of the essence of this crime, could, from the breaking and entering in this case, have produced an effect at Witney. Margetts's case, 2 Leach, 930.

(a) 1 Eng. C. C. 115.

It has been observed, that the accuracy of the reason given in the above judgment with regard to protecting the actual occupant, 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 burglary in their houses; ante, p. 320. In the course of this case, Mr. Justice Grose inquired if 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 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. 2 Leach, 931 (n.)

Margett's case, however, appears to be supported by a very late decision. The prosecutor was secretary to the Norwich Union Insurance Company, and lived with his family in the house used as the office of the company, who paid the rent and taxes. The burglary was in breaking into a room used for the business of the company. The recorder, on the authority of Margett's case, and the case of the clerk of the Haberdashers' Company there mentioned, thought the indictment correct, but reserved the point for the judges, who were of opinion that the house was rightly described as the prosecutor's, since he, his family, and servants were the only persons who dwelt there; and they only were liable to be disturbed by a burglary. Though their lordships 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 the prosecutor's. Witt's case, 1 Moody, C. C. 248 (a).

Proof of the premises being a dwelling-house-occupation—by servants occupying as such.] Where a servant occupies a dwelling-house, or apartments therein, as a servant, his occupation is that of his master, and the house is the dwelling-house of the latter. But it is otherwise, where the servant occupies suo jure as tenant. Thus, apartments in the king's palaces, or in the houses of noblemen, *for their stewards [*322 ] and chief servants, can only be described as the dwelling-house of the king or nobleman. Kel. 27; 1 Hale, P. C. 522, 527. Graydon, a farmer, had a dwelling-house and cottage under the same roof, but they were not inclosed by any wall or court-yard, and had no internal communication. Trumball, a servant of Graydon, and his family, resided in the cottage by agreement with Graydon, when he entered his service. He paid no rent, but an abatement was made in his wages on account of the cottage. The judges (Buller dub.) held that this was no more than a license to Trumball to lodge in the cottage, and did not make it his dwelling-house. Brown's case, 2 East, P. C. 501.

The prosecutors were partners as bankers, and also as brewers, and were the owners of the house in question, used in both concerns. There were three rooms with only one entrance by a door from the street.

(a) 2 Eng. C. C. 248.

No

one slept in these rooms. The upper rooms of the house were inhabited by one John Stevenson, the cooper employed in the brewing concern. He was paid half a guinea a-week, and permitted to have these rooms for the use of himself and family. There was a separate entrance from the street to these rooms. There was no communication between the upper and lower floor, except by a trap-door (the key of which was left with Stevenson) and ladder, not locked or fastened, and not used. Stevenson was assessed to the window-tax for his part of the premises, but the tax was paid by his masters. It being objected that the place where the burglary was committed was not the dwelling-house of the prosecutors, the point was reserved, when eight of the judges thought that Stevenson was not a tenant, but inhabited only in the course of his service. Four of the judges were of a contrary opinion. Lord Ellenborough, C. J., said"Stevenson certainly could not have maintained trespass against his employers if they had entered these rooms without his consent. Does a gentleman who assigns to his coachman the rooms over his stables, thereby make him a tenant? The act of the assessors, whether right or wrong in assessing Stevenson for the windows of the upper rooms, can make no difference, nor is it material in which of the two trades the prosecutors carried on, Stevenson was servant, for the property in both partnerships belonged to the same persons. As to the severance, the key of the trapdoor was left with Stevenson, and the door was never fastened, and it can make no difference whether the communication between the upper and lower rooms was through a trap-door or by a common staircase." Stock's case, 2 Leach, 1015, 2 Taunt. 339, 1 Russ. and Ry. 185 (a); see Flannagan's case, Russ. and Ry. 187 (b), infra.

In order to render the occupation of a servant the occupation of the master, it must appear that the servant is, properly speaking, such, and not merely a person put into the house for the purpose of protecting it. The prosecutor left the dwelling-house, keeping it only as a warehouse and workshop, without any intention of again residing in it. In consequence of his thinking it not prudent to leave the house without some one [*323] in it, two women, employed by *him as workwomen in his business, and not as domestic servants, slept there to take care of the house, but did not take their meals there or use the house for any other purpose than that of sleeping there. Upon an indictment for stealing goods to the amount of more than 40s. in the dwelling-house of the prosecutor, the judges held that this could not be considered his dwelling-house. Flannagan's case, Russ. and Ry. 187. It is difficult to distinguish this case from that of R. v. Stock, 2 Leach, 1015, supra, which received an opposite decision.

Still, though the object of the owner of the house in putting in his servants be to protect his property only, yet if they live there, their occupation will be deemed his occupation, and the house may be described as his dwelling-house. The shop broken open was part of a dwelling-house which the prosecutor had inhabited. He had left the dwelling-house and never meant to live in it again, but retained the shop and let the other rooms to lodgers; after some time he put a servant and his family into two of the rooms, lest the place should be robbed, and they lived there. Upon a case reserved, the judges thought that putting in a servant and his

(a) 1 Eng. C. C. 185. (b) 1 Ibid. 187.

family to live, very different from putting them in merely to sleep, and that this was still to be deemed the prosecutor's house. Gibbon's case, 2 Russ. 19. J. B. worked for one W., who did carpenter's work for a public company, and had put J. B. into the house in question to take care of it and of some mills adjoining, J. B. receiving no more wages after than before he went to live in the house; it was held that the house was not rightly described as the house of J. B. Rawlins' case, 7 C. and P. 150 (a).

Proof of the premises being a dwelling-house-occupation—by servants-as tenants.] Where a servant occupies part of the premises belonging to his master, not as in the cases above mentioned, ante, p. 321, in the capacity of servant, but in the character of tenant, the premises must be described as his dwelling-house. Greaves and Co. had a house and building, where they carried on their trade. Mottran, their warehouseman, lived with his family in the house, and paid 117. per annum for rent and coals (the house alone being worth 20l. per annum). Greaves and Co. paid the rent and taxes. The judges were of opinion that this could not be laid to be the dwelling-house of Greaves and Co. They thought that as Mottran stood in the character of a tenant (for Greaves and Co. might have distrained upon him for his rent, and could not arbitrarily have removed him), Mottran's occupation could not be deemed their occupation. Jarvis's case, 1 Moody, C. C. 7 (b).

Nor is it necessary, in order to invest the servant with the character of tenant, that he should pay a rent, if, from the other circumstances of the case, it appears that he holds as tenant. The prosecutor (Gent), a collier, resided in a cottage built by the owner of the colliery for whom he worked. He received 15s. a-week as wages besides the cottage, which was free of rent and taxes. The prisoner being indicted for burglary in the dwelling*house of the prosecutor, Holroyd, J., was of opinion that though [ *324 ] the occupation and enjoyment of the cottage were obtained by reason of Gent being the servant of the owner, and co-extensive only with the hiring, yet that his inhabiting the cottage was not as in the cases referred to (2 East, P. C. 500), correctly speaking, merely as the servant of the owner, nor was it either as the whole or any part of the cottage, as his (the owner's) occupation, or for his use or business or that of the colliery, but wholly for the use and benefit of Gent himself and his family, in like manner as if he had been paid the rent and taxes; and though the servant's occupation might in law, at the master's election, be considered as the occupation of the master and not of the servant, yet with regard to third persons it might be considered either as the occupation of the master or servant. The point was, however, reserved for the opinion of the judges, who held that the cottage might be described as the dwelling-house of Gent. Jobling's case, Russ. and Ry. 525 (c). A toll-house was occupied by a person employed by the lessee of the tolls at weekly wages as collector, and as such he had the privilege of living in the toll-house. The judges were unanimously of opinion that the toll-house was rightly described as his dwelling-house, for he had the exclusive possession of it, and it was unconnected with any premises of the lessee, who did not appear to have any interest in it. Camfield's case, 1 Moody, C. C. 43 (d). So where a person who has been servant, remains, on the tenant's quit

(a) Eng. Com. Law Rep. xxxii. 473. (b) 2 Eng. C. C. 7. (c) 1 Ibid. 525. (d) 2 Ibid. 43.

ting, upon the premises, not in the capacity of servant, they may be described as his dwelling-house. Lord Spencer let a house to Mr. Stephens, who underlet it. The sub-lessee failed and quitted, and no one remained in the house but Ann Pemberton, who had been servant to the sub-lessee. Stephens paid her 158. a-week till he died, when she received no payment, but continued in the house. At Michaelmas it was given up to Lord Spencer, but Ann Pemberton was permitted by the steward to remain in it. Bayley, J., thought Ann Pemberton might be considered tenant at will, but reserved the point for the opinion of the judges, who held that the house was rightly laid in the indictment as the dwelling-house of Ann Pemberton, as she was there not as a servant but as a tenant at will. Collet's case, Russ. and Ry. 498 (a). Where a gardener lived in a house of his master, quite separate from the dwelling-house of the latter, and had the entire control of the house he lived in and kept the key, it was held that it might be laid either as his or as his master's house. Ree's case, 7 C. and P. 568 (b).

Proof of the premises being a dwelling-house-occupation-by guests, &c.] If several persons dwell in one house, as guests or otherwise, having no fixed or certain interest in any part of the house, and a burglary be committed in any of their apartments, it seems clear that the indictment ought to lay the offence in the mansion-house of the proprietor. Hawk. P. C. b. 1, c. 38, s. 26. Therefore, where the chamber of a guest at an [*325] inn is broken open, *it shall be laid to be the mansion-house of the innkeeper, because the guest has only the use of it, and not any certain interest. 1 Hale, P. C. 557. It has been said that if the host of an inn break the chamber of his guest in the night to rob, this is burglary. Dalton, c. 151, s. 4. But it has been observed that this may be justly questioned; for that there seems 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, Kelyng says, cannot be burglary. Kel. 84; 2 East, P. C. 582.

It is said by Lord Hale, that if A. be a lodger in an inn, and in the night opens his chamber-door, steals goods in the house, and goes away, it may be a question whether this be burglary; and, he continues, it seems not, because he had a kind of special interest in his chamber, and so the opening of his own door was no breaking of the innkeeper's house; but if he had opened the chamber of B., a lodger, in the inn, to steal his goods, it had been burglary. 1 Hale, P. C. 554. It has been observed, that the reasoning in the following case is opposed to the distinction taken by Lord Hale, and that the case of a guest at an inn breaking his own door to steal goods in the night, falls under the same consideration as a servant under the like circumstances. 2 East, P. C. 503. The prosecutor, a Jew pedlar, came to the house of one Lewis, a publican, to stay all night, and fastened the door of his chamber. The prisoner pretended to Lewis that the prosecutor had stolen his goods, and under this pretence, with the assistance of Lewis and others, forced the chamber-door open, and stole the prosecutor's goods; Adams, B., doubted whether the chamber could be properly called the dwelling-house of the prosecutor, being really a part of the dwelling-house of the innkeeper. Upon a

(a) 1 Eng. C. C. 498. (b) Eng. Com. L. Rep. xxxii. 633.