REX v. GEORGE JARVIS and BENJAMIN WALKER.

Burglary. If a servant lives in a house of his master's at a yearly rent, the house cannot be described as the master's house though it is on the premises where the master's business is carried on, and although the servant has it because of his service.

THE prisoners were tried before Mr. Justice HOLROYD, at the Lent assizes for the county of York, in the year 1824, for a burglary.

The first count of the indictment charged the crime to have been committed in the dwelling-house of William Greaves, Edward Greaves, and Richard Greaves, and the second count in the dwelling-house of William Mottran.

The prisoners were convicted and received judgment for burglary; but a question arising in consequence of the circumstances attending the occupation-whether the part of the building broken into and robbed was in law part of a dwelling-house, as stated in either count of the indictment; the learned Judge reserved the point for the consideration of the Judges.

William, Edward, and Richard Greaves, mentioned in the first count of the indictment, were merchants and copartners, and all the premises after-mentioned were their joint-property, and the same were, (unless deemed in law otherwise, as to the part occupied by William Mottran,) in their joint possession as such copartners.

These premises consisted of a yard, and of buildings which, together with, folding gates, entirely surrounded and enclosed the yard. Amongst these buildings was a house, and also a warehouse with other apartments under one roof; but they had no inward communication with the house, though it had been otherwise formerly.

In the house, which had an outer door opening into the yard, William Mottran, the person named into the second count of the indictment, with his wife and children resided and slept. He was the warehouseman of William, Edward, and Richard Greaves, at weekly wages, and had the care of all the premises; but he paid them a small annual sum (117. a year), as rent for the house and for coals which they found him for his use therein as fuel.

In the yard and adjoining to the warehouse, was a room used as a counting-house, it was the part of the building broken into and robbed, the only access to which counting-house was by a door between it and the warehouse, which warehouse opened by another door into the yard.

The house had been formerly occupied by one of the partners and afterwards by one of the servants, and then by the said William Mottran, their warehouseman, who had continued to reside there up to the time of the robbery, on the terms which have been mentioned; he having represented to his employer that he occupied previous to his coming there another house on the same terms. The Messrs. Greaves were desirous of having this man on their premises, considering him a trust-worthy servant, and therefore allowed him to reside there, although the rent, even with the allowance of coals was by no means an adequate rent; the house alone being worth 201. a year, to let to an ordinary tenant. This was the cause and occasion of Mottran's occupying the house, and the partners continued to pay all the rates and taxes as for all the premises including the house, as one joint property and possession.

The learned Judge stated (in the case reserved), that at the trial it appeared to him, that though the house which Mottran occupied with his family, disconnected and separated as it was from the rest of the premises,

might both on the authority of Jobbing's Case before the Judges in Michaelmas term 1823 (a), in addition to Margett's Case, 2 Leach, C. C. 930, (4th edition) as well as by reason of the payment of rent, be considered and described as the dwelling-house of Mottran, if the offence had been committed in that part of the premises, yet that it might be doubted whether Mottran's holding and occupation were so entirely suo jure or so unconnected with his service as to prevent the whole premises from being deemed in law the dwelling-house of the masters, and from being properly so described.

There may be in law two different possessions and properties, the one general, the other qualified, at the same time in the same thing. It is so in the case of goods which may be described and considered as the goods of, and as goods being in the possession of either the owner or the special bailee, so it may be in the case of lands and houses, as where there are lessor and tenant at will, either of whom may bring trespass according to Lord Chief Justice Rolle, in 2 Roll. Abr. 551, l. 46. Lord Chief Justice Bridgeman in Carter 66, (b) and Lord Chief Baron Comyns in Com. Dig. Trespass, (B 2.) The question seemed to be whether the holding and occupation of Mottran the servant were not in the present case so connected with, dependant upon, and auxiliary to, the service, and thereby so qualified, as to distinguish this from the mere case of an ordinary tenancy; and to render it not such a tenancy in him suo jure, as would entirely remove the possession even as to part of the premises out of his masters, and prevent the general possession as to the whole from being con

that

(a) Vide Russ. & Ry. C. C. R.

(b) See the reasoning also in the Year Book 19 H. 6, 45, referred to by these judges.

sidered as still legally continuing in them, like the case of landlord, and lodger or other inmate. (a) Mottran inhabited there for his master's convenience and purposes as well as for his own. There is no distinction in principle between the case where the servant (who occupies because he is a servant) is to pay a rent to his masters, and the case where the rent is deducted from his wages, and yet in the last (see Bertie v. Beaumont, 16 East, 33,) his occupation was considered as the possession of his masters. (b) If the principle be the same in both cases, the whole of the premises in question may be considered and treated as being merely one dwelling-house in the possession of the masters; in their possession as to part by themselves, and as to the rest by their servant, even though as to the latter the servant might also be deemed to have a distinct but qualified possession in himself; and this principle will probably be found to simplify and reconcile all these cases.

In Easter term, 1824, the Judges met and considered this case they held the conviction as to the burglary wrong; the Judges thought that as Mottran stood in the character of tenant, (for Greaves & 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. (c)

3

(a) Vide 2 East. P. C. 500, 1, 2.

(b) As to this, see Rex v. Inhabitants of Cheshunt, 1 B. & A. 473, but see also Rex v. Inhabitants of Lakenheath, 1 B. & C. 531; Rex v. Inhabitants of Minster, 3 M. & S. 276; Rex v. Inhabitants of Kelstern, 5 M. & S. 136.

(c) Vide Rex v. Stock, Russ. & Ry. C. C. R. 185. S. C. 2 Taunt. 339. 2 Leach, C. C. 1015, 4th ed.; Rex v. Gibbons, Russ. & Ry. C. C. R. 442. Rex v. Campfield, post.

REX v. WILLIAM CALE.

The 3 G. 4, c. 24, s. 3, leaves as misdemeanors what before were misdemeanors, it does not change them into felonies.

THE prisoner was tried before Mr. Justice PARK at the Lent assizes for the county of Oxford in the year 1824, for feloniously receiving three live turkeys, the goods and chattels of one William Parker, of the price of ten shillings, which had before then by a certain ill disposed person to the jurors unknown, been feloniously stolen, taken, and carried away, against the form of the statute, &c.

The indictment was founded on the statute of 3 G. 4, c. 24, s. 3, (a) and the prisoner was convicted of having received the turkeys in question; but the learned Judge respited the judgment till the opinion of the Judges upon the meaning of the clauses in the act of parliament above referred to could be obtained, in order that he might know to what extent the punishment in this case might be carried.

This question came before the Judges in the case of Rex v. George Thomas, on the 3d of May, 1823, which had been tried before Mr. Baron GRAHAM, who doubted

(a) By s. 3, it is enacted, That in all cases where the offence of any person receiv. ing or buying stolen goods or chattels, or any stolen order, &c., knowing the same to have been stolen, shall be deemed and construed to be felony, such offender shall and may be tried and convicted of such felony, as well before as after the trial of the principal felon, and whether the said principal felon shall have been apprehended, or shall be amenable to justice or not.