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![handle is hein.slavery/ssactsengr0183 and id is 1 raw text is: the clerks had the custody of the key of the larger one, and two other clerks had each
a key of the smaller one; no person slept in any of these rooms; but when the outer
door was locked up at nights, on leaving the offices, the clerk who kept the large key,
left it in the care of the person who inhabited the upper rooms of the house, from
whom it was received on returning to the offices in the morning. The upper rooms
were inhabited by John Stevenson, who was servant to the prosecutors in their
brewery business, as their cooper, at weekly wages, with firing and lodging for himself
and his family. The [341] contract as to the lodging was not, in general terms, that
he should be provided with lodging, but that he should have the particular rooms,
which he did inhabit, for the lodging of him and his family; and to that part of the
house there is a separate entrance from without. His employers kept there some
papers of no consequence. There was no communication between the upper rooms
and the lower ones where the offices were, except that there was a trap-door in
the floor of one of the upper rooms, and a ladder whereby to go down into the
lower part. Since the robbery it had been constantly used in order to bolt the
street-door of the offices in the inside for better security; but none of the witnesses
knew of its having ever been used for any purpose previous to the robbery, although
it might have been so used at any time, the trap-door having never been kept locked
or fastened. There were nine windows in the lower rooms, and only six in the upper
rooms; the six were assessed in the name of Stevenson, but his employers paid the
duty. The rooms below were not charged with any window-tax, the assessors not
considering them as inhabited. The questions were, 1st, Whether this inhabitancy
could be considered as the inhabitancy of the prosecutors by their servant Stevenson,
or whether Stevenson by the contract became tenant, and the upper part of the house
was his dwelling-house, and not that of the prosecutors. 2d, If these premises were
the dwelling-house of the prosecutors, the further question arose, whether there was
such a severance of the lower part, as to prevent its being included as part of their
dwelling-house.
The case was argued in the last Michaelmas term in the Exchequer Chamber,
before the twelve judges, by Raine for the prisoner, who contended, that the house
could be the dwelling of the prosecutors only in one of two ways, by their inhabiting
it either by themselves, [342] which it was clear they did not, or by their servants ;
and he contended that they did not occupy it by their servant; because the evidence
was, that Stevenson had half a guinea a week wages and this lodging; and it was in
proof that the usual wages of a person in his situation were 14s. a week without
lodging ; he might therefore reasonably be considered as renting these rooms at the
rent of 3s. 6d. per week. The assessors too had assessed him for the window-tax.
Besides, Stevenson was clerk to the brewers, and not to the bankers.
LORD ELLENBOROUGH C. J. Could Stevenson have maintained trespass against
his employers for entering these rooms? Or if a man assigns to his coachman the
rooms over his stable, does he thereby make him a tenant? Whether the assessors
formed a right or a wrong judgment, can make no difference: nor is it material to
which trade Stevenson was a servant, for the property in both partnerships belonged
to the same persons. As to the severance, the key of the trap door was left with
Stevenson, and the door was never fastened ; and it can make no- difference whether
the communication between the rooms was through a trap door, or by a common
staircase.
MANSFIELD C. J. Many servants have houses given them to live in, as porters
at park-gates : if a master turns away his servant, does it follow that he cannot evict
him till the end of the yearl Could not the prosecutors have turned out this man
when they would ?
Cur. adv. vult.
No judgment was ever publicly given, but the prisoners were afterwards executed.
[343] EAVES v. DIXON. May 21, 1810.
In an action on a warranty of an horse, the Plaintiff must positively prove that the
horse was unsound.
This was an action upon the warranty of a horse. The horse died a few days
after the sale ; and on dissection it was found that the lungs were greatly inflamed and
1110
EAVES V). DIX0ON
2 TAUTNT. 341.](ViewImageLocal?handle=hein.slavery/ssactsengr0183&div=1&collection=&method=preview&ext=.png&size=3)