The Excise Office is now removed to the house lately possessed by Sir Laurence Dundas in the New Town of Edinburgh.[27] Suppose that part of the offices still remained in the former place, would it be sufficient to say that the house in which the General Excise Office is kept was broke into, when there were evidently two houses in which it was kept, one in the Old and one in the New Town? And the only difference betwixt that case and the present is that the distance is greater, for in both cases the houses are equally separate and distinct.
In the same way, for the sake of illustration, it was not till lately that I myself could find a house sufficiently convenient both for the purposes of business and accommodation of a numerous family. I had accordingly two houses, one in George Street and one in Princes Street, and I have done business in both of them. Now, would an indictment charging a person with having broken into the house of the Honourable Henry Erskine, Dean of the Faculty of Advocates, be sufficient, while I possessed two houses, to support a verdict which found the pannel in general terms guilty? It would not be enough to say that I employed both houses frequently for the same purposes, and that I could pass from the one into the other, though not without some little inconvenience of getting wet when it rained. This undoubtedly would not be sufficient, unless I could prove that both houses were one and the same; a verdict finding the pannel guilty of breaking into the house, could, from its uncertainty, apply neither to the one nor to the other.
My Lords, I will not detain your Lordships. The case is very short and simple, and without stating any further illustrations or arguments, I think that the prisoner cannot be more safe than in the opinions which your Lordships shall deliver upon so plain a point so fairly stated to you.
Lord HAILES--My Lords, I have great doubts concerning the competency of this objection, but it is a subject upon which I do not like to enter. I am indeed sorry that this objection has been stated, as it may flatter the prisoners with hopes which I am afraid are ill founded.
The merits of the objection itself appear to me very easy of discussion. The Dean of Faculty is mistaken with regard to the houses possessed by the Duke of Buccleugh, for they are not both in the parish of Dalkeith, as the house of Smeiton lies in the parish of Inveresk. But supposing they did both lie in the same parish, there is a great difference betwixt houses situated at some distance from each other and those which lie immediately contiguous, as is the present case. The small house adjoining to that principal one in which the Excise Office was kept is to be considered as a part of the same building, employed always for the same purpose, and used only for better accommodation.