A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

BURGLARY.

Burglary, is usually desined the night-breaking* 1.1 of a house, with an intent to steal or kill, though none be killed, nor any thing stolen, and so it is of a Stable, pa••cell of a house, but not of breaking ones Close to kill him, nor ones House, if it be but to beat him, nor though it may be to kill him, if it be in the day time. It may be Burglary if one enter into a house and break it not, as if he come in at the chimney, or by a false key, and if he break the house, though he enter not.

Richard Vaux brings an appeal of Burglary, against Thomas Bro••k, and declares that the De∣fendant domum mansionalem praedictam Richardi Vaux felonice & burgaliter fregi••, the Declaration was found insufficient because of this word bur∣galiter, but it ought to be burgulariter, or burgurali∣ter, and the offence is called Burglary or burgulary,

and not Burgale, burglariter est vox artis, as se∣l••nice, m••r••ravit, rapuit ex ambium, wa••ran∣tizare, and divers others, which cannot be ex∣pressed by any Periphra••i▪ or circumlocution.

If a man have a mansion house, and he and all his family upon some accident are forth of the house part of the night, and at the same time, one come and breaks the house to commit 〈…〉〈…〉, this is Burglary, although no man be there, for this is domus mansionalis.

So if a man have two house••, and inhabit some∣times* 1.2 in one, and sometimes in another, and ha••h sevants in both, and in the night when his servants are forth, the house is broke by Thieves, this is burglary.

All Indictments of burglary are quòd 〈◊〉〈◊〉* 1.3 fregit, and the night to this purpose begins at Sun setting, and continueth to the Sun rising.* 1.4

Burglar shall not have his Clergy.

Notes

• * 1.1

  It is deri∣ved of burgh a house, and ••aron a thief. Cook 4 Rep. as if one break down a window to book out any thing. Cooks Case of Appeal and Indict∣ments. 4^th Rep.
• * 1.2

  Id. ubi supra.
• * 1.3

  Stamford.
• * 1.4

  Dalton. 18 Eli. c. 6.