#### *THE*STATE *vs.*MOSES A. CURTIS et al.

June *1839*

Where the proprietor of a school employed a person as a steward and servant in the establishment, and assigned for his lodging rooms a house situated within the curtilage but not connected with the dwelling house of the proprietor by any common roof or covering, and for which lodging rooms the steward paid no rent, *it was held*that the house occupied by the steward, was not, in law, *his*dwelling house, but was the dwelling house of the proprietor of the school, and that no indictment would lie against the proprietor for an entry and expulsion of the steward from such house, provided there was no injury to his person or other breach of the peace.

The defendants were indicted at Wake, on the last circuit, before his Honor Judge Bailet, in the words and figures following, to wit:

“ The jurors for the State, upon tbeir oath present that Moses A. Curtis, William B. Otis and James G. Rowe all &c. bn &c. with force and arms in the county aforesaid, unlawfully, riotously and routously did assemble and gather together to disturb the peace of the State; and being so then and there assembled and gathered together with force and arms, to wit: with sticks, axes, and other offensive weapons, in the county aforesaid, into a certain dwellingbouse there situate, and' being, and then and there in the possession oí one William H. Pope, unlawfully, riotously and routously did violently, forcibly, injuriously, and with strong hand enter; and the said Moses A. Curtis, William B. Otis and James G. Rowe, then and there with force and arms, to wit: with sticks, axes and other offensive weapons, unlawfully, riotously and routously did violently, forcibly, injuriously, and with strong hand the said William H. Pope from the possession of the said dwelling house expel, amove and put out; and the said William H. Pope so as aforesaid expelled, amoved and put out from the possession of the said dwelling house, then and there with force and arms, to wit: with sticks, axes and other oS'ensive weapons, unlawfully, riotously and routously did violently, forcibly, injuriously, and with strong hand keep out, and still keep out, to the great damage of the said William H. Pope, and against the peace and dignity of the State.”

*223Upon the trial óf this indictment, the jury returned the lowing special verdict, to wit: “ That on the first day of uary, 1838, the defendant, Curtis, was and continually since hath been the lessee, for a term of years, lawfully in possession of a certain tract or parcel of land near the City of Rat leigh, and there, during all the time aforesaid, kept a boarding school for boys. On this land were several large buildings, in one of which the said Curtis and his family resided as their dwelling house, and others were used for the accommodation of the scholars; and there was also a small outhouse ('amongst others) containing two rooms, situated in the yard or curtilage inclosing the said dwelling house and pupils’ houses, but the said outhouse was not connected with the said dwelling house by any common roof or covering, but the door of the said outhouse opened into the yard. — that this outhouse had been originally built and used for recitation rooms for the pupils, but after the completion of the buildings for their accommodation, was used for lodging rooms by the servants attached to the establishment; that some time in the said month of January, the said Curtis being such lessee, and keeping said school as aforesaid, hired the said William H. Pope, in the indictment mentioned, as a servant and steward for the residue of the year at f> per month as his wages — it being understood that he was likewise to be furnished with board and lodging suitable to his station in the family, though no express engagement was made therefor. For two years previous to the year 1838, the said Pope had held the same situation of servant in the same school then kept by other proprietors, and occupied one of the rooms in the said outhouse during that period as his lodging room. And the said Pope, by the permission and assent of the said Curtis, (after his employment by Curtis as aforesaid,) occupied the same room of the said outhouse as his lodging room, and so continued to occupy it until his removal therefrom as hereinafter stated, the other room in the said outhouse being rmoccupied; that the said Pope did not rent, lease, or hire the said room of the defendant Curtis, nor make any engagement for the use or occupation oí the same, but merely used it in his character of steward and ser*224Vant as aforesaid; that on the 23rd day of October, 1838, the said Curtis having discovered that the said Pope had sold certain small articles to some of the pupils contrary to a IU]e 0f p¡s scp00i discharged him from his situation as steward and servant, and ordered him to leave the premises: the said Pope, after he was so out of his said employment in the service of the defendant, Curtis, continued to occupy the said room, alleging as a reason for not leaving it as required, that he was building a house, and until that was completed, he could not remove as he had no place in which to deposit and secure his bed and other articles which were in the said room; that on the day mentioned in the indictment, the defendant, Curtis, accompanied by the other defendants, one of whom was au assistant teacher, and the other a boarder of . the said Curtis, went to the said room, and required the said Pope immediately to remove therefrom, to which Pope replied he could not remove until the next succeeding Monday, when he promised that he would go out. Curtis told him he must go out before the night of that day, as he would not permit him on any account to remain on his premises another night. On this, Pope came out of the room, locked the door, and put the ,key in his pocket. Curtis demanded the key, which Pope refused to give up, and thereupon the defendant, Rowe, told him, cost what it might, even if it were a thous- and dollars, he must leave that very day, and ordered, an axe and chisel to be brought, and the same being brought, the defendants therewith forced thedooropen, took it fromitshinges» forced out the window sashes, and removed both the door and windows from the said room; that the said Pope, so soon as the axe was brought, and the defendants had commenced forcing the door, left the premises; and on his return, an hour afterwards, the door and windows being removed, and he by reason thereof unable to occupy the room, proceeded to remove, and did remove, his bed and other articles therefrom.

And whether, upon the whole matter, the defendants, or either of them, are or is guilty, the jury is ignorant, and pray the order of the Court; and if the Court shall be of opinion that they are or either of them is guilty, then the jury find him *225or them guilty of the matters in the said indictment charged; otherwise, they find the defendants not guiltv.”

The occu-savants0 is Snt aTserv-“e^n^¡nr|p" ter; and therefore it patfon of the There may ¡Xthe*11 master lets to Ins serv-am a tene-°V his on wnich the possession p°0Upedy *226of'the11set> vant.

*225His Honor, being of opinion, upon this verdict, that the defendants were guilty in law, pronounced a judgment against them, from which they appealed.

*Badger*for the defendants.

*The Attorney General*for the State.

Ruffin, Chief Justice.

The indictment does not charge auy injury to the person of the prosecutor. Nor is-it framed under the statutes of forcible entry and detainer; and it is admitted that it could not have been so framed, for the want of any estate in the prosecutor. It is then merely an indictment, at common law, for a forcible entry into a dwelling-house in the possession of Pope and expelling him therefrom. The verdict finds an entry and expulsion in such a manner as to make the defendants guilty, in our opinion, provided the house Was in law the dwelling house of the prosecutor. We think, however, that it was the dwelling house of Mr. Curtis, and in *his*possession, both according to legal intendment and the common understanding of the country; and therefore, that it was not in the possession of Pope.

The rule upon this subject is laid down in general and very plain terms by Mr. East, P. C. 500. “ If a person occupy a dwelling house as the servant or part of the family of another, it is the *occupation*in law of such other person, and must be so laid in the indictment.” The reason must . . , . . . clear to every mind. The occupation of servants is not *suo jure,*but as servants and representing their master; and therefore, it is the occupation of the proprietor himself. There may be cases in which the master lets to his servant a tenement or part of his premises on rent, in which the house and possession would be properly laid as those of the servant; for *x i J*. _ althongh the relation of- master and servant existed between those parties, yet that oflandlord and tenant, *quoad*the premises let, also existed. And even where there is no stipulation for rent, yet the premises occupied by the servant may be so far removed and distinct from those m the personal occupation of the master, that they may be deemed and stated to be *226jn the possession of the servant, in an indictment, for instance, ^or burglary. It would seem from some adjudications, that in this last case it *may*be laid either way. But in treating-¡.fjg master’s house, oc'cupied by the servant, as the servant’s in any case, there is manifestly a departure from the general rule quoted; and therefore those cases are to be regarded as exceptions, founded on particular circumstances. There is-, however, no fact or circumstance to bring this case ^ reason any exception hitherto admitted; but ev-thing to make it fall under the operation of the general *J*. , . . . .... .. _ principle. The house m question is within the curtilage ana is parcel of the premises belonging to, and actually occupied ^1’- Curtis. It had not been let to Pope at a rent. Nay, the jury find that there was no engagement of any sort 'for use and occupation of this house in particular, and t^at jjg « mereiy usecl the lodging room in his character of servant.” It is obvious, therefore,'that Pope was put to lodge in the room at the mere will of his master; and that this was the more convenient performance of the service to *he*ren-¿ered w him as-a domestic, and for that reason only. There *J*' , . , J was no severance of this from the other parts or the premises; and we think clearly, that Pope had no-possession *of his own,*^iaf; possession *as servant, was*júst as much *the*possession of his master, as if they had occupied separate rooms under the same roof. *Rex vs. The inhabitants of Cheshire,*1 Barn. & *Ald.*473—Stockles’ *and Edwards' case, 2*Leach C. C. 1015, and R. & R. C. C. 185. In the latter case, Lord Ellenborough remarks, that a servant who lived with his family -in particular rooms of his master’s house by his leave, . - . . ... *1 .ri*could notmamtam trespass against his employers, if they eri-tored-the rooms without his consent; and he asks “does a gentleman, who assigns to his coachman the rooms over his ■stables, thereby make him a tenant?” In the same case, Mansfield, Chief Justice, uses this language, *“*many servants, as, for instance, porters at park gates, have rooms assigned to them to live in; and surely, if a master- choose to turn away his servant, it does not follow that he cannot evict until the end of the year.” *Á*very common instance of relation in this State exists in the case of employer and *227overseer. Certainly, it has never been understood among us, when a planter pla'ces an overseer on his plantation to superintend his operations and hands there, that he puts him into possession as against himself, so that he cannot turn him off during the year, but that the overseer may remain against the will of the master in possession, perhaps, of the only house fit for the occupation of a second overseer or of the owner himself. On the contrary, it is clear law and universally received, that the houses on the plantation are as much in the possession of the owner, as the plantation itself, or the hands, provisions or horses on it.; and it would work an intolerable inconvenience to employers and detriment to agriculture, to hold otherwise. The redress of the overseer is by action on the contract of the employer,'and not lyy holding over that "which was never in his possession for an instant, but as the servant and *agent*of his employer. So, in the present case, Mr. Curtis never parted from or lost his possession; and, consequently, the house was never in possession of Pope. "When Mr. Curtis dismissed the man from his service, he had a right also to exclude him from his premises; provided, as in case, he did so without injury to his person or other .breach of the peace. '

*226wiiet'cTthere premises occupied by !!»?y 1 from those padon ot that they deemed and session of the servant, in an indict-st¡moé[0l'for would ffi'em trara some tíoñí'that caseTtm'rtt ' he laid eith-Bu^hése cases are to be regarded as exuepti-on^pin’tlcu-^ lar circuran

*227When an o-verscer,vin this ijtate, is placed on plantation, he is not put into possession as against his employer; but the latter may, if he thinks proper, turn him off, and evict him from the 1 houses winch he occupies-

seer is by compact p|0jh¿ ®“j «ot'by hold-that which i^poTsessi-the servant and *agent*of his employer.

*box*these reasons, the judgment, m the opinion of this Court, is erroneous; and the usual certificate must be sent down, in order that judgment may be entered on the special verdict for the defendants.

Pee Cubiam. Judgment reversed.