— The statute of 1853, c. 48, § 11, provides that, “ No Warrant shall issue for the search of any dwelling» house in which or a part of which a shop is not kept, or other place is not kept for the! sale of such liquors, unless it shall first be shown to the magistrate before a warrant is issued for such search, by the testimony of witnesses upon oath, that there is reasonable ground for believing that such liquors are kept or deposited in such dwellinghouse or its appurtenances,” Ac.
The warrant, like the complaint, charges, “that spirituous and intoxicating liquors are kept and deposited in a certain building, part of which is used as a store and part for a dwellinghouse.”
A building may constitute an entire block, consisting of separate and independent tenements, one of which may be occupied for a dwellinghouse and another for a store, and between which there may be no communication; spirituous liquors unlawfully kept in the latter, would not authorize a search in the former; whereas the warrant directs search to be made in both, that is, in the building. It does not appear, that a shop or other place is kept for the sale of liquors “in ” that part of the building used as a dwellinghouse, without which allegation in the complaint, no warrant could be issued to search the dwellinghouse without the preliminary testimony having first been taken, as prescribed in the eleventh section. Judgment arrested.
Shepley C. J., and Tenney and Appleton J. J., concurred.