
    Commonwealth versus Jonas Estabrook.
    A small building on the same lot with a dwellinghouse, at the distance of forty-five rods from it, with a passage-way between them, is not an apartment or depende-nce of the dwellingliouse, though the same person occupies the whole lot, including the house and building.
    A license, therefore, to the occupant, which authorizes him to sell spirituous liquors at his dwellingliouse, will not justify him in selling them at the small building.
    This was an indictment for selling spirituous liquors, and permitting the purchasers to drink them, in a building of the defendant, not an apartment or dependence of his dwelling-house, he being only licensed to sell spirits in his dwellinghouse and the apartments and dependencies thereof.
    At the trial, before Morton J., the following facts were admitted or proved. The defendant was an innholder at Brighton, duly licensed, and kept a large public house, to which many drovers who brought cattle to the Brighton fair, and purchasers of cattle, resorted. In this tavern he kept a bar-room where spirituous liquors were sold, as is usual. He had a number of pens for the accommodation of the cattle of his customers, the drovers, which pens were at a distance of from forty to forty-five rods from his tavern, and on a different street, but inclosed within the exterior fence of the same lot of land with the-tav'ern. Upon this street, in a corner of one "of the cattle yards, the defendant had a small building, contaimng only one room, in which there was a bar, which was furnished with liquor from the bar of the defendant’s house, and with pens, ink and paper to accommodate the sellers and purchasers of cattle. This small building had been used for some years for the same purposes, and was kept open by the defendant on Mondays for several weeks before the indictment was found, and liquors were sold there to all persons who called for them, which they drank there, some of them being guests at his tavern and some not. The distance of this building from the defendant’s tavern is more than fifty rods by the public highway ; but there is a nearer way to this building, by a lane or open passage-way over the defendant’s land, by which the distance is forty-five rods. The pens and other inclosures of the defendant are separated from one another by fences, between the tavern and the small building; but the passage-way to the small building is wholly open.
    The defendant contended that the small building was an apartment or dependence of the house, as much as a bowling-alley, tent, &c. being inclosed within the fence, and on the same lot of land, and supplied from the same bar, used for a temporary purpose and intended for the same customers, and used as it had been before the defendant’s license was granted. But the judge instructed the jury, that the small building could not be deemed in law an apartment or dependence of the house, so as to authorize the defendant to sell spirits in it.
    A verdict was found for the Commonwealth, which was subject to the opinion of the whole Court.
    S. D. Parker, for the defendant,
    cited Goff v. Fowler, 3 Pick. 300.
    
      Jan. 20ffi, 1830, in Suffolk.
    
    Stearns, for the Commonwealth,
    cited St. 1786, c. 68, §10,14.
    
      April term 1831, at Concord.
    
   Parker C. J.

afterward drew up the opinion of the Court. The building erected by the defendant, which was used for the purpose of selling spirituous and mixed liquors, and in which such liquors were sold, is not within the license for a tavern, unless it can be considered as a dependency of the house which was so licensed. The distance from the dwellinghouse is alone sufHcient to deprive it of this character. The least distance is forty-five rods, and by the usual road it is fifty rods. It is a separate, independent establishment, and cannot lawfully be used for the purposes above mentioned, without a separate license.

It is only by implication, that buildings separate from the tavern-house can be considered as covered by the license ; for by the first section of the statute, it would appear to be the house alone that was licensed ; but it was evidently intended by the legislature, as appears from other parts of the statute, and particularly from the form of the recognizance required to be taken from innholders, that contiguous buildings, or buildings not contiguous, used with the house as part of it, should be considered as within the license, as well as within the prohibitory clause of the statute. Such was the case cited from 3 Pick. 300 ; in which there was a store two or three rods from the house, and adjoining to a shed used for the accommodation of travellers, the chamber of which store was used as a dining room and in which beds were set up for occasional use. The Court Jield the store to be included in the license, because so connected with the inn as to be a dependency and within the curtilage of the inn. But this case differs in every respect ; the building was not in any way connected with the tavern-house, was not within the curtilage, and was used only for the purpose of selling liquors from it.

Motion for new trial overruled. 
      
       See 3 Chitty on Crim. Law, (4th Am. ed.) 1103, 1106, and note**.
     