
    Commonwealth versus Dean
    The defendant let a shed contiguous to a passageway between the shed and the defendant's store, and received the rent, knowing that the shed was used for gaming. Held, that the defendant did not actually occupy the shed, within the meaning of St. 1798, c. 20, § 2.
    This was an indictment against the defendant for keeping, and suffering to be kept, in a certain yard by him “ actually occupied,” a ninepins alley, for his own proper gain, contrary to Si. 1798, c. 20, § 2.
    The evidence was, that there was a shed kept for the purpose of playing at ninepins, contiguous to a passageway between the shed and the defendant’s store. The shed was net kept by the defendant, who lived at a considerable distance from it, but by one Covell, who hired it of the defendant, and paid him four dollars a week for the use of the shed and of a room in which Covell lived. Many people used to resort to this place to play for money, and they paid Covell for the use of the bowling-alley.
    Davis, Solid tor-Gen eral,
    contended that the place answered to the description in the statute, of “ any house, building, yard, garden or other appendages thereof by him actually occupied.” The defendant let it for the express purpose of gaming, and received rent, knowing it was used for this purpose. The lease to Covell was void, both at common law, and by St. 33 Hen. 8, c. 9, § 21, and the lessor and lessee are both guilty of the misdemeanour.
   There were other points in the case, but the Court were of opinion, that the facts did not show an actual occupying within the meaning of the statute, and the defendant was accordingly-discharged.

Dunlap, for the defendant. 
      
       See Commonwealth v. Bolkom, 3 Pick. 281; Commonwealth v. Arnold, 4 Pick. 251; Commonwealth v. Estabrook, 10 Pick. 293.
     