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interest in it; and that no dwelling-house or farm-yard of
C. Phillips.—This is not an outhouse. It is not within the curtilage. The next point is, whether it is a stable.
Mr. Justice Taunton. I think that it is not properly described as a stable.-The question is, whether it is an outhouse?
C. Phillips.-On that point, I would refer to the case of Elsmore v. St. Briavel's (a). That case shews, that where a house was built for a particular purpose, but was used for other purposes, it could not be described as a building of the kind that it was used for. There, though the house had been used as a barn, and had never been used for any thing else, yet, being three stories high, and built as a dwelling-house, it was held not sufficient to describe it as a barn. The building, in the present case, was a brick oven, used as a cow-house. I also submit that this is not an outhouse, as it is not attached to any dwellinghouse, or within the curtilage of any dwelling-house.
Greaves, on the same side.—I will call your Lordship’s attention to the common law, and then to the acts of Parliament, and I think I shall shew that the legal meaning of the term “outhouse" has never been altered. Mr. Serjt. Russell (6) says, in treating of the common law respecting the burning of a house—“ It may be briefly observed, that the term “house' extends not only to the dwelling-house, but to all outhouses which are parcel thereof, though not adjoining thereto, or under the same roof (of which kind of outhouses mention has been made in a former part of this work);" and he then refers to the
(a) 8 B. & C. 461; and 2 M. & R. 514. (6) Russ. Cr. & Misd. 488.
cases of such outhouses within the curtilage, in which,
did not make it one within the statute then in force respecting arson. There the building was intended as a dwelling-house, but used as a barn. Here, the building was erected for a brick oven, and used as a cow-house.
F.V. Lee, for the prosecution. The judgment in the case of Elsmore v. St. Briavel's does not apply to the present case. The place burnt was not a house, as it never had been inhabited; and no burglary could have been committed in it. It is quite clear that it was not an outhouse, as it was intended to be a place of residence; and it could not be considered as a barn, merely because it had agricultural produce put into it. My friend, Mr. Greaves, has said, that whenever a character has been given to a term at common law, it continues. Formerly, a barn within the curtilage might have been the subject of burglary, but that is not so now; therefore, the extent of the term burglary has been altered with respect to buildings in which a capital offence can be committed. At one time a burglary could have been committed in a particular building, and not at another; and that will apply on all occasions where a house is inhabited at one time and not at another. Here, though the place was once a kiln, it was afterwards permanently used in the way in which it was at the time of the fire. The argument would go to this, that a place built for a particular purpose must always continue to have that character; and that certainly cannot be, for, if a barn had doors and windows put into it, and was inhabited, it would become a dwelling-house. I submit, that an outhouse may be at a distance from the dwellinghouse, and that it always is so, when a person lives on one farm, and occupies another.
C. Phillips, in reply.—The word 'warehouse' is specifically mentioned, because, if it were not, a warehouse not within the curtilage would not be protected by this act of Parliament; and that is no doubt the reason why the word
warehouse was introduced. A warehouse within the curtilage would be an outhouse.
Mr. Justice Taunton.— I am clearly of opinion, that Hauguron. this is not a case within the act of Parliament. It is true, that the word 'outhouse' occurs in the act of Parliament; but, I apprehend that it has been settled from ancient times, that an outhouse must be that which belongs to a dwelling-house, and is in some respects parcel of such dwelling-house. This building is not parcel of any dwelling-house, and does not appear to be connected in any way, either with the premises of Mr. Sparrow, or of the prosecutor. It had been a brick kiln, and the prosecutor kept his cow there afterwards. There is no such word as cowhouse in the statute. The only word likely to be applicable in this case is the word outhouse; and this building being wholly unconnected with the dwelling-house, it is not included in the legal definition of outhouse. It is also not a stable; indeed, I do not see that it could be much more properly called a stable than it could be called a coach-house. The prisoner must be acquitted.
F. V. Lee, for the prosecution.
C. Phillips and Greaves, for the prisoner.
[Attornies-- Astbury & Williams, and Jones.]
March 15th. INDICTMENT on the stat. 7 & 8 Geo. 4, c. 30, s. 16, If A. set fire to a for maliciously killing a cow, the property of Joseph Owen. burn to death a
Rex v. HAUGHTON.
CUw which is in
it, A. is indictable under the stat. 7 & 8 Geo. 4, C 30, s. 16, for killing the cow.
It appeared, that the cow-house mentioned in the last case had been set fire to; and burnt, and that the cow had been burnt to death in it.
Mr. Justice Taunton. If the prisoner set this place on fire while the cow was in it, and the cow was thereby burnt to death, that is a killing of the cow by him within the meaning of the act of Parliament.
Verdict-Guilty. F.V. Lee, for the prosecution.
C. Phillips and Greaves, for the prisoner.
[Attornies--Astbury & Williams, and Jones.]
By the stat. 7 & 8 Geo. 4, c. 30, years; and, if a male, to be once, g. 16, it is enacted—“ That if any twice, or thrice publicly or priperson shall unlawfully and mali- vately whipped (if the Court shall ciously kill, maim, or wound any so think fit), in addition to such cattle, every such offender shall be imprisonment.” See also the case guilty of felony, and, being con
of Rer v.
Hughes, ante, Vol. 2, p. victed thereof, shall be liable, at 420. The stat. 4 Geo. 4, c. 54, is the discretion of the Court, to be repealed by the stat. 7 & 8 Geo. 4, transported beyond the seas for c. 27, except so far as it relates to life, or for any term not less than threatening letters, and to the resseven years, or to be imprisoned cue of offenders. for any term not exceeding four
BEFORE MR. JUSTICE TAUNTON.
Jones v. Cliff. A. delivered to TROVER for a watch and other articles. Plea-GeneB. a pawnbroker's duplicate, ral issue. for B. to take some goods of It appeared that the plaintiff had pawned these articles A.'s out of pledge. B. did so; but, on A. sending to B. for the goods, B. said he had not got them, and refused to tell who had:-Held, that if, after this, trover was brought against B., he could insist on a lien on the goods for the money he had advanced to get them out of pledge.