JOHN P. VAN NESS AND MARCIA HIS WIFE, PLAINTIFFS IN ERROR

v.

PEREZ PACARD, DEFENDANT IN ERROR

Mr Justice Story delivered the opinion of the Court.

This is a writ of error to the circuit court of the district of Columbia, sitting for .the county of Washington.

The original was an actiori bn the case bróught by the plaintiffs in error against the defendant for waste committed by him, while tenarit of the plaintiffs, to their reversionary interest, by pulling down and removing from the demised prernises a messuage or dwelling house erected thereon and attached to the freehold. The-cause was tried upon the gerieral issúe, and a verdict found for the defendant, upon which a judgment passed m his favour; and the object of th‘é'present writ of érror is to'revise that judgment.-"

By the bill" of exceptions; filed at the trial, it appeared that the plaintiffs in 1B20 demised to'the defendant, fori seven years, a vacant lot ip the city of Washington, at the' yearly rent of ,$112'50 cents, with a clause in'the léase tháf the defendant should have a right to purchase the sathe at any time daring the term for $1875. After the defendant had taken possession of the lot, he erected thereon, a wooden dwelling house, two stories high in front, with ashed of one story, a cellar of stone or brick foundation and a brick chimnéy. The defendant and his family dwelt, in the house from its erection until near the expiration of the lease, when he took the same down and removed all the materials from the ,íot. The defendant was a carpenter by trade .; and he gave evidence, that upon obtaining the lease he erected the building, above mentioned, with a view to carry on the business of a dairy man, and for' the residence of his family and servants-engaged in his said business; and that the cellar, in which there was a spring, was made and exclusively used for a milk cellar, in which the utensils of his said bdr siness were kept and scalded, and washed, and used; and that feed was kept in the upper part of the house, which was also occupied as a dwelling for his family. That the defendant had his tools as á carpenter, and two apprentices in the house, and a work-bench out of doors; and carpenter’s work was done in the house, which was in a rough unfinished state and made partly of old materials. That he also erected, on. the lot a stable for his cows of plank and timber fixed upon posts fastened into the ground, which stable he removed with the house before. the expiration of his lease.

Upon this evidence, the. counsel for the plaintiffs prayed for an instruction, that if the' jury should believe the same to be true, the defendant was not justified in removing the said house from the premises; and that he was liable to the plaintiffs iii this action. This instruction the court refused to give; and' the refusal constitutes his first exception.

The defendant farther offered, evidence to prove, that a usage and custom existed in the city^pf Washington, which authorised .a tenant to remove any building'whic'h he might erect upon rented premises, -provided he did it before the expiration of the term. The plaintiffs objected to this evidence; but. the court admitted it.; This constitutes the second exception- ...

Testimony was then introduced on .this point, and after. the examination' of the witnesses for the defendant, the plaintiffs prayed the court to instruct the jury that the evidence was not competent to establish the fact, that a ger netal usage had existed-or did exist in the city of Washings ton,, which authorised a tenant, to remove such a :house as that erected by the . tenant in this case; nor was it competent for the jury to infer from the said evidence, that.such a usage ha; that the .mere fact that the house was used for á dwelling house, as well as for a trade, superseded the exception in favour of the latter, there is no. ground to declaré that the tenant was not entitled to remove it. At moct, it would be deemed only a mixed case, analogous in principle to those Before lord chief baron Comyns, and lord Hardwicke; and therefore entitled to the benefit of the exception. The case of Holmes vs. Tremper, 20 Johns. R. 29, proceeds upon principles equally libe- , rab; and it is quite certain that the supreme court of New York, were not prepared at that time to adopt the doctrine of Elwes vs. Maw, in respect to erections for agricultural purposes. In our opinión, the circuit court was right in refusing the first instruction.

The second exception proceeds upon the ground that it Was not competent to establish a usage arid custom in the city Of Washington for tenants to make such removals of buildings during their term. We can perceive, xio objection to such proof. Every demise between landlord and tenant in respect to matters in which the parties are silent, may be fairly open to explanation by the general.usage and'custom of the country or of the district where the land lies. Every person under such circumstances is supposed tó be conusant Of the custom, and to contract with a tacit reference to it. Cases of this sort are familiar in the books; as fqr instance, to prove the right of a tenant to an away-going crop(a). In the very class of cases now. before the Court the custom of the country has been admitted to decide the right of the tenant to remove ,fixtu’-es(b). The case before lord chief justice Treby turned upon that point(c).

The third exception turns upon the consideration, whether the parol testimony was competent to establish such a usage and custom. Competent it certainly was, if by competent is meant, that it was admissible to go to the jury. Whether it was such as ought to have satisfied their minds on the matter of fact was solely for their consideration; open indeed to such commentary and observation as the court .might think proper in its discretion to lay before them for their aid and guidance. We cannot say that they were not at liberty, by the principles of law, to infer from the evidence the existence of the usage. The evidence might be somewhat loose and indeterminate, and so be urged with more or less effect ' upon their judgment; but in a legal sense it was within their, own province to weigh it as proof or as usage.

The last exception professes to call upon the court to institute a comparison between the testimony introduced by the plaintiff and that introduced by the defendant against and fo.r the usage. It requires from the court a decision upon its relative weight and credibility, which the. court were not justified in giving to the jury in the shape of a positive instruction.

Upon the whole in our judgment there is no error in the judgment of the circuit court; and it is affirmed with costs.

This cause came on to be . heard on a transcript of the record from the circuit court of the United States, for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is the opinion of this Court, that there is no error in the judgment of the said circuit court. Whereupon it is considered, ordered and adjudged by this Court, that the judg-meñt of the said circuit .court in this.cause, be, and the same is hereby affirmed with costs.

(a)

Dean vs. Allalley, 3 Esp. Rep. 11 Woodfall’s Landlord & Tenant, 219.

(a)

2 Starkie on Evidence, Part XV. p. 468.

(b)

Woodfall’s Landlord & Tenant, 218,

(c)

Buller’s Nisi Prius, 34.