purposes of his business. (r) But it is not absolutely necessary to make it burglary that any person should be actually within the house at the time the offence is committed, for if the owner has regularly resided there and leave it animo revertendi, though no person reside there in his absence, it will still be his dwelling-house. (s) So if a person go a journey, (t) or have a town-house and country-house, and sleep alternately at each, leaving the other shut up, they both are his dwelling-house as respects the offence of burglary; (u) and though if a person leave his dwelling-house without intent to return, and leave persons in it merely as a warehouse or workshop, it ceases to be his dwelling-house, it would be otherwise if his family continue to reside in a part. (v) In general the occupation of a servant, as part of his master's family, and in that character, and not as a tenant, will be considered the occupation of a dwellinghouse by his master. (x) CHAP. IV. I. RIGHTS TO REAL PROPERTY. erections." 7. "Other Buildings and Erections." It frequently be- 7. " Other comes necessary to ascertain the exact and precise nature, buildings and description, and particular name of other buildings besides dwelling-houses, not only as referred to in deeds and wills, but also in acts of parliament, especially in those relating to the criminal law, where very frequently the degree of crime and extent of punishment greatly depend on the exact place where the offence was committed, and its particular name and character. Questions sometimes arise upon civil statutes, thus a "counting-house" is not a house, warehouse, shop, shed, stall or stand, within the meaning of the act, giving extended jurisdiction to the London Court of Requests. (y) But it is principally with reference to the criminal law that the precise nature of the building becomes material, as will appear from examination of the recent criminal acts. (z) 66 The Larceny Act, 7 & 8 Geo. 4, c. 29, as regards the places of taking, enumerates "church or chapel," "dwelling-houses," and "other buildings within the curtilage," "shop," warehouse," or "counting-house," "building,” “field," or "other place used in progress of manufacture." "Vessel, barge or boat in a port of entry or discharge, navigable river or canal, (r) Rex v. Martin, Russ. & R. C. C. 108. (s) Hawk. e. 38, s. 11. (t) 2 East, P. C. 496. (u) Fost. 77; 2 East, P. C. 496. () Russ. & R. C. C. 187, 442. (1) R. & R. C. C. 115, 185. (z) Larceny Act, 7 & 8 Geo. 4, c. 29, I. RIGHTS TO REAL PROPERTY. CHAP. IV. creek communicating therewith, or dock, wharf or quay adjacent thereto;" and the stealing or ripping, cutting or breaking, with intent to steal any glass or wood-work belonging to "any building whatsoever," or any lead, iron, copper, brass, or other metal, or any utensil or fixture, whether made of metal or other material, respectively fixed in or to "any building whatever;" or any thing made of metal, "fixed in any land,” being private property, or for a fence to any dwelling-house, garden or area, or in any square, street, or other place dedicated to public use or ornament, is felony. This enactment extends the previous provisions to all utensils and fixtures of whatever material made, and a church and all buildings are within the act, and therefore we have seen that in an indictment for stealing lead, it is sufficient to state that it was fixed to a certain building, without further description. (a) The Malicious Injury Act, 7 & 8 Geo. 4, c. 30, s. 2, renders capital the maliciously setting fire to any " church or chapel,” house, stable, coachhouse, outhouse, warehouse, office, shop, mill, malthouse, hop oast, barn or granary, or any building or erection used in carrying on any trade or manufacture, or any branch thereof;" and section 7, which makes felony the maliciously pulling down, or destroying, or damaging with intent to destroy or render useless, enumerates any steam-engine, or other engine, for sinking, draining or working any "mine, or any staith, (b) building or erection used in conducting the business of any mine, or any bridge, waggon way or trunk, for conveying minerals from any mine;" and section 8, for the punishment of persons guilty of riotously and feloniously pulling down or destroying, or beginning so to do, enumerates the same last-mentioned buildings, and extends also to machinery there; and the 14th section relates to the destruction of “toll houses, buildings, and weighing engines." The 7 & 8 Geo. 4, c. 31, (which gives an action against the hundred for felonious injuries,) enumerates the same buildings as those above in 2d and 7th sections of chap. 30. It seems, therefore, that these criminal acts do not protect all buildings and erections whatever, but only particular specified buildings, and including all buildings which have been used in trade or manufacture, with the exception of the offence of stealing glass or wood fixed to any building, or metal to a fence or in land. (a) 1 East's P. C. 592; Russ. & Ry. C. C. 69. (b) Semble, that word was introduced in consequence of the decision in Holt's C. N. P. 466. It should seem that as well at common law as under these statutes, nothing can be deemed a " building or erection" unless it be let into and part of the realty, and not moveable, (c) and consequently mere hustings could not be within the act; (d) and it was held, that a building merely intended to be a house or other named erection, but not as yet completed nor inhabited, but in which straw had been placed, was not either a house or a warehouse within the above act, subjecting the hundred to make compensation for the riotous destruction of a house or warehouse; (e) and no building only in part erected, and not previously used for one of the purposes alluded to in the acts, would be within the protection of either of the criminal acts specifying particular buildings.(ƒ) And as "gaol" is not named in the 7 & 8 Geo. 4, c. 30, the tumultuously pulling down the same, as a gaol, would not be punishable under that act, (g) though a common gaol was holden a house within the meaning of the 9 Geo. 1, c. 22. (h) With respect to the 7 & 8 Geo. 4, c. 29, and c. 30, it will be observed, "that the goods whilst laid, placed or exposed, during any stage of manufacture, in any building, field or other place, are more fully protected than by the prior repealed act, 18 Geo. 2, c. 27, under which it was necessary to prove that the building had been generally used for the purpose of the manufacture, (i) but this evidence would not, it should seem, now be necessary. CHAP. IV. 1. RIGHTS TO REAL PROPERTY. 8. The term outhouse is not used in the Larceny Act; (k) 8. Outhouses. but it is used in the Malicious Injury Act, (/) and in the Vagrant Act, as well as every deserted or unoccupied building ; (m) and if any person wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or under a tent, not having any visible means of subsistence, nor giving a good account of himself, and every person found in any outhouse for any unlawful purpose, is to be deemed and punished as a rogue and vagabond. (n) It has been held under an enactment similar to the Malicious Injury Act, that a school-room, which was separated from the dwelling-house by a narrow passage about a yard wide, the roof of which was partly upheld by that of the dwelling-house, the two buildings, together with (c) Ante; 148, 149; 1 Taunt. 19. (ƒ) 8 Bar. & C. 461; and see 1 Leach, 81, 184; Russ. & Ry. C. C. 295. (g) Bristol Gaol, Western Circuit, 30 Jan. 1832. (h) 2 Bla. R. 682; 2 East's P. C. 1020. (k) 7 & 8 Geo. 4, c. 29. (m) 5 Geo. 4, c. 83, 84. CHAP. IV. 9. Mills. 10. Improve ments. some other, and the court which inclosed them, being rented by the same person, was properly described as an outhouse; (0) and it has been suggested that a dairy-house or a mill-house would be deemed an outhouse within that act, or at least part of the mansion-house. (p) But where a person was indicted for setting fire to an outhouse, commonly called a paper-mill, and it appeared that the building was a loft annexed to the mill, it was held that the offence was not within the act; and it was doubted whether a mill could be deemed an outhouse within the meaning of the act. (q) But it seems that a building, although annexed to a dwelling-house, may be deemed an outhouse for some purposes, though for others it might be part of the dwelling-house. (r) 9. Mills. (s) Ejectment lies for "flour-corn mills," without saying of what kind, whether wind-mills or water-mills, because the precedents in the Register are in that form; (t) but if on the trial the mill should turn out not to be annexed in any respect to the freehold, but a mere moveable chattel, then, although previously demised for a term, the action of ejectment would pro tanto fail; (u) and we have seen that unless a mill be annexed to the soil, or to some other thing so annexed, it is not part of the realty, and is neither rateable to the poor, nor could the party renting it acquire a settlement. (x) The maliciously and feloniously setting fire to any mill, or tumultuously and feloniously destroying a mill, is a capital felony under the Malicous Injury Act, (y) and under that general term no doubt a cotton-mill would be included. (2) 10. Improvements (a term used in leases) is sometimes of doubtful meaning; it would seem to apply principally to buildings, though generally it extends to the amelioration of every description of property, whether real or personal; but when contained in any document, its meaning is generally explained by other words. Where the covenant by a tenant was to leave all erections and buildings which should be erected during the term, the covenant was held to include only such as had been let into the (o) Russ. & R. C. C. 295. (s) Ante, 152, and 1 B. & Adolp. 161; and when not. (t) 1 Mod. 90. (u) 1 B. & Adolp. 161, supra, note (s). (1) Id.; 1 Brod. & B. 506; 4 J. B. Moore, 281, ante. 152. (y) 7 & 8 Geo. 4, c. 30, s. 2 and 8. (2) 2 Russ. Crim, & Mis. 493. CHAP. IV. I. RIGHTS TO REAL ground or otherwise fixed to the freehold. (a) But where the covenant was to leave at the end of a term a water-mill with all fixtures, fastenings, and improvements, during the demise fixed, PROPERTY. fastened, or set up on or upon the premises, in good plight and condition, reasonable use and wear only excepted, it was held to include a pair of new mill-stones set up by the lessee during the term, although the custom of the country in general authorized the tenant to remove them. (b) And where a tenant covenanted to repair, &c. an injunction was obtained against his removal of engines, although the original building had been increased laterally and upwards, and with larger substituted engines. (c) 11. Curtilage, (curtilagium, from the French cour, court, 11. Curtilage. and Saxon leagh, locus,) has been defined to be a court-yard, backside, or piece of ground lying near and belonging to a dwelling-house; (d) and though it is said to be a yard or a garden belonging to a house, as if the terms were synonymous, yet it seems clear that they are distinct things. (e) In its most comprehensive and proper legal signification, it includes all that space of ground and buildings thereon which is usually inclosed within the general fence immediately surrounding a principal messuage and outbuildings and yard closely adjoining to a dwelling-house; but it may be large enough for cattle to be levant and couchant therein; and therefore, although a person cannot prescribe for a right of common appurtenant in respect of a house alone, yet he might so prescribe as owner of a house and curtilage; (f) and a feoffment of a "house with the appurtenances," we have seen, will pass the curtilage. (g) And it should seem that the curtilage would equally pass by the word "messuage," or "house," without the words "with the appurtenances," for at least in a deed nothing can legally pass that itself lies in livery, and cannot in law be appurtenant. (h) Before as well as since the last act against burglary and larceny, (i) the strict meaning of the term curtilage was most im (a) 1 Taunt. 19. (b) 9 Bing. 24; 3 Sim. 450; see 2 Ves. & B. 349. (c) 3 Sim. 450; and see ante, 94. (d) 4 Ed. c. 1; 35 Hen. 8, c. 4; 39 Eliz. c. 10; 6 Co. Rep. 64; Mihi dici videtur curtilagium a currillium et ago (sil.) locus ubi curtis vel curtilli negotium agitus. Spelm. (e) Jac. L. Dic. tit. Curtilage. And again: "Garden and curtilage, i. e. a little garden, yard, field, or piece of void ground (f) 5 T. R. 46; 2 Ld. Raym. 1015; (g) 2 Saund. 401, note 2; 1 Bar. & (h) Ante, 153 to 158. |