The inquiry should not have been, what the house was designed for, or was capable of being, but whether it was then a dwellinghouse.

To constitute a building a dwellinghouse, it must be a habitation for man, and usually occupied by some person lodging in it at night, though such occupant may for a time be absent, leaving furniture therein, with a,n intention of returning. 4 Black. Com. 224; 1 Leech, 185; 2 Russell, 914, 922.

Under an intimation from the Court that the instructions were erroneous, and could not be sustained, the Attorney General entered a nol. pros., and the defendant was discharged.