1833.

REX

v.

HAUGHTON.

interest in it; and that no dwelling-house or farm-yard of either himself or Mr. Sparrow was near it; and that there was no wall to connect it with any dwelling-house.

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 (b) 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. (b) Russ. Cr. & Misd. 488.

cases of such outhouses within the curtilage, in which,
till very recently, a burglary might have been committed.
The first act of Parliament which notices outhouses is
the riot act, 1 Geo. 1, stat. 2, c. 5, in which the words are,
"barn, stable, or other outhouse;" the word "outhouse
is also contained in the stat. 9 Geo. 1, c. 22, with respect
to arson: and by Breeme's case (a) it appears that that
statute created no new offence with respect to the burning
of outhouses; and this also appears from the judgment of
Lord Ellenborough, in the case of Hyles v. The Hundred
of Shrewsbury (b). I, therefore, submit, that where any
term has obtained a precise and definite meaning at common
law, and it is used in an act of Parliament, it will be taken
to have the same meaning that it had at common law; and
for this I would refer to Bac. Abr. tit. Statute (H. 4), and
the cases of Moore v. Hussey (c), and Smith v. Harmon (d).
In the stat. 43 Geo. 3, c. 55, the term "outhouse" is
again used; and it is repeated in the stat. 7 & 8 Geo. 4,
c. 30. If this were an outhouse, almost every building, of
whatever nature and however applied, would be within
the statute: and a very strong argument is to be drawn
from the statute itself, that outhouses within the curtilage
were the only outhouses meant to be included in this
term "outhouse;" because, if it were otherwise, the words
"stable, coach-house, office, shop, hop-oast, barn, or gran-
ary," need not have been used. The question then is, whe-
ther this was an outhouse within the meaning of this act of
Parliament. It is proved that there was no house near
this building; and the term "outhouse" evidently refers
to some building that has a relation to the house-a
building outside the house, but having a relation to it;
and it is clear, that the converting of a building to a
particular use does not, for this purpose, alter its nature.
That was decided in the case of Elsmore v. St. Briavel's,
where it was held that a place having been used as a barn,

1833.

REX

v.

HAUGHTON.

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 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.

Verdict-Not Guilty.

C. Phillips and Greaves, for the prisoner.

[Attornies-Astbury & Williams, and Jones.]

1833.

REX HAUGHTON.

REX v. HAUGHTON.

March 15th.

INDICTMENT on the stat. 7 & 8 Geo. 4, c. 30, s. 16, If A. set fire to a

cow-house, and

for maliciously killing a cow, the property of Joseph Owen. burn to death a

cow which is in it, A. is indict

able under the stat. 7 & 8 Geo. 4, c. 30, s. 16, for killing the cow.

1833.

REX

V.

HAUGHTON.

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.

F.V. Lee, for the prosecution.

C. Phillips and Greaves, for the prisoner.

[Attornies-Astbury & Williams, and Jones.]

A. delivered to B. a pawnbroker's duplicate, for B. to take some goods of A.'s out of

pledge. B. did

SHREWSBURY ASSIZES.
(Civil Side.)

BEFORE MR. JUSTICE TAUNTON.

JONES v. CLIFF.

TROVER for a watch and other articles. Plea-Gene

It appeared that the plaintiff had pawned these articles

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.