carried away, but nothing more. The freehold is never to be injured, and must always be left in the condition it was when the lease commenced. Cited, 3 East, 35; Woodfall's Landlord and Tenant, 223. This building was erected for the accommodation of the family of the defendant. It could not therefore be considered as required for the trade of the defendant; nor was it appropriated to a particular trade; the defendant being a carpenter, and also employing himself in vending milk.

Mr. Barrett and Mr. Jones, for the defendant, argued.

the city of Washington, at the yearly rent of $112.50, with a clause in the lease that the defendant should have a right to purchase the same at any time during the term for [*142 $1,875. After the defendant had taken possession of the lot, he erected thereon a wooden dwelling-house, two stories high in front, with a shed of one story, a cellar of stone or brick foundation, and a brick chimney. 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 lot. 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 dairyman, 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 business 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. 3. The instructions given by the court, and That the defendant had his tools as a carpen141*] their refusal to instruct the jury as re-ter and two apprentices in the house, and a quired by the counsel for the plaintiffs, were correct.

1. That independent of the benefit from the usage, which was set up as matter of defense, the buildings removed from the premises were erected and used by the tenant for the purposes of his trade, and he had therefore a right to remove them under the general law of landlord.

2. The usage of the city of Washington, which was fully proved, recognizes the right of tenants to remove buildings put up by them, on lots which before the lease were in an unimproved state.

In support of the first point were cited 1 H. Bl. 258; 2 East, 88; Elwes v. Maw, 3 East, 37; 7 Johns. 227; 20 Johns. 30.

In the English cases a distinction is taken between fixtures on buildings for agricultural purposes and those for trade. This distinction, upon a fair view of those cases, cannot be sustained. The principles which have always been applied in those cases to trade, may be as well applied to agriculture. In the city of Washington, where there is and for a long period will be a large space upon which no buildings will be placed, the application of more liberal principles than those found in the English cases is proper and necessary. Cited, Woodfall's Landlord and Tenant, 224; Buller's Nisi Prius, 34, 2, 3. The court properly submitted the question of usage to the jury. It was regularly a question for them. Had the court prescribed a rule which would have taken from the jury the question of usage it would | have been error; but here, whether the usage was proved, was submitted, and correctly.

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 action on the case brought by the plaintiffs in error against the defendant for waste committed by him, while tenant of the plaintiffs to their reversionary interest by pulling down and removing from the demised premises a messuage or dwellinghouse erected thereon and attached to the freehold. The cause was tried upon the general issue, and a verdict found for the defendant, upon which a judgment passed in his favor: and the object of the present writ of error is to revise that judgment.

By the bill of exceptions filed at the trial, it appeared that the plaintiffs in 1820 demised to the defendant, for seven years, a vacant lot in

work-bench out of doors; and carpenter's work was done in the house, which was in a rought, 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 in 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 of Washington which authorized a tenant to remove any building which 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 wit-. [*143 nesses for the defendant, the plaintiffs prayed the court to instruct the jury that the evidence was not competent to establish the fact that a general usage had existed or did exist in the city of Washington, which authorized 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 an usage had existed. The court refused to give this instruction; and this constitutes the third exception.

The counsel for the plaintiffs then introduced witnesses to disprove the usage, and after their testimony was given he prayed the court to instruct the jury that upon the evidence given as aforesaid in this case, it is not competent for them to find an usage or custom of the place by which the defendant could be justified in removing the house in question: and there being no such usage, the plaintiffs

are entitled to a verdict for the value of the house, which the defendant pulled down and destroyed. The court was divided and did not give the instruction so prayed; and this constitutes the fourth exception.

The first exception raises the important question, what fixtures erected by a tenant during his term are removable by him?

fore, deserve consideration whether, in case the doctrine were not previously adopted in a state by some authoritative practice or adjudication; it ought to be assumed by this court as a part of the jurisprudence of such state, upon the mere footing of its existence in the common law. At present it is unnecessary to say more than that we give no opinion on this question. The case which has been argued at the bar may well be disposed of without any discussion of it.

and no general policy could be subserved by withdrawing from the heir those things which his ancestor had chosen to leave annexed to the inheritance. But between landlord and tenant it is not so clear that the rigid rule of the common law, at least as it is expounded in 3 East, 38, *was so applicable to their [*145 situation as to give rise to necessary presumpThe general rule of the common law certain- tion in its favor. The country was a wilderly is, that whatever is once annexed to the ness, and the universal policy was to procure freehold becomes part of it, and cannot after- its cultivation and improvement. The owner wards be removed except by him who is en- of the soil as well as the public had every titled to the inheritance. The rule, however, motive to encourage the tenant to devote himnever was, at least as far back as we can trace self to agriculture and to favor any erection it in the books, inflexible and without excep- which should aid this result; yet, in the comtions. It was construed most strictly between parative poverty of the country, what tenant executor and heir in favor of the latter; more could afford to erect fixtures of much expense liberally between tenant for life or in tail, and or value, if he was to lose his whole interest remainderman or reversioner, in favor of the therein by the very act of erection? His cabin former; and with much greater latitude be- or log hut, however necessary for any imtween landlord and tenant in favor of the ten-provement of the soil, would cease to be his ant. But an exception of a much broader cast, the moment it was finished. It might, thereand whose origin may be traced almost as high as the rule itself, is of fixtures erected for the purposes of trade. Upon principles of public policy, and to encourage trade and manufactures, fixtures which were erected to carry on such business were allowed to be removed 144*] by the tenant during his *term, and were deemed personalty for many other purposes. The principal cases are collected, and reviewed by Lord Ellenborough in delivering the opinion of the court in Elwes v. Maw, 3 East's R. 38; and it seems unnecessary to do It has been already stated that the excepmore than to refer to that case for a full sum- tion of buildings and other fixtures for the mary of the general doctrine and its admitted purpose of carrying on a trade or manuexceptions in England. The court there de- facture is of very ancient date, and was recogcided that in the case of landlord and tenant nized almost as early as the rule itself. The there had been no relaxation of the general very point was decided in 20 Henry VII. 13, a rule in cases of erections, solely for agricultur- and b, where it was laid down that if a lessee al purposes, however, beneficial or important for years made a furnace for his advantage, they might be as improvements of the estate. or a dyer made his vats or vessels to occupy Being once annexed to the freehold by the his occupation during the term, he may aftertenant, they became a part of the realty, and wards remove them. That doctrine was recogcould never afterwards be severed by the ten-nized by Lord Holt in Poole's case, 1 Salk. 368, ant. The distinction is certainly a nice one be- in favor of a soap-boiler who was tenant for tween fixtures for the purposes of trade and years. He held that the party might well refixtures for agricultural purposes; at least in move the vats he set up in relation to trade, those cases where the sale of the produce and that he might do it by the common law constitutes the principal object of the tenant, | (and not by virtue of any custom) in favor and the erections are for the purpose of such of trade, and to encourage industry. In Lawa beneficial enjoyment of the estate. But that ton v. Lawton, 3 Atk. R. 13, the same doctrine point is not now before us; and it is unneces- was held in the case of a fire-engine set up to sary to consider what the true doctrine is or work a colliery by a tenant for life. Lord ought to be on this subject. However well Hardwicke there said that since the time of settled it may now be in England, it cannot Henry VII. the general ground the courts have escape remark, that learned judges at different gone upon of relaxing the strict construction of periods in that country, have entertained dif-law, is that it is for the *benefit of the [*146 ferent opinions upon it, down to the very date of the decision in Elwes v. Maw, 3 East's R. 38.

The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation. There could be little or no reason for doubting that the general doctrine as to things annexed to the freehold, so far as it respects heirs and excutors, was adopted by them. The question could arise only between different claimants under the same ancestor,

public to encourage tenants for life to do what is advantageous to the estate during the term. He added "one reason which weighs with me is its being a mixed case between enjoying the profits of the land and carrying on a species of trade; and in considering it in this light, it comes very near the instances in brewhouses, &c., of furnaces and coppers." The case, too, of a cider-mill between the executor and heir, &c., is extremely strong, for though cider is a part of the profits of the real estate, yet it was held by Lord Chief Baron Comyns, a very able common lawyer, that the cider-mill was personal estate, notwithstanding, and that it should go to the executor. "It does not differ,

in my opinion, whether the shed be made of brick or wood, for it is only intended to cover it from the weather and other inconveniences." In Penton v. Robart, 2 East, 88, it was further decided that a tenant might remove his fixtures for trade, even after the expiration of his term, if he yet remained in possession; and Lord Kenyon recognized the doctrine in its most liberal extent.

a

is no objection that he carried on two trades instead of one. There is not the slightest evidence of this one being a mere cover or evasion to conceal another, which was the principal design; and, unless we are prepared to say (which we are not) that the mere fact that the house was used for a dwelling-house as well as for a trade, superseded the exception in favor of the latter, there is no ground It has been suggested at the bar that this to declare that the tenant was not entitled to exception in favor of trade has never been ap-remove it. At most, it would be deemed only plied to cases like that before the court, where a mixed *case, analogous in principle to [*148 a large house has been built and used in part those before Lord Chief Baron Comyns and as a family residence. But the question, Lord Hardwicke, and, therefore, entitled to the whether removable or not, does not depend benefit of the exception. The case of Holmes upon the form or size of the building, whether v. Tremper, 20 Johns. R. 29, proceeds upon it has a brick foundation or not, or is one or principles equally liberal; and it is quite certwo stories high, or has a brick or other chim-tain that the Supreme Court of New York ney. The sole question is whether it is de- were not prepared at that time to adopt the signed for purposes of trade or not. A tenant doctrine of Elwes v. Maw, in respect to erecmay erect a large as well as a small messuage, tions for agricultural purposes. In our opinor a soap boilery of one or two stories high, ion the Circuit Court was right in refusing and on whatever foundations he may choose. the first instruction. In Lawton v. Lawton, 3 Atk. R. 13, Lord Hard- The second exception proceeds upon the wicke said (as we have already seen) that it ground that it was not competent to establish made no difference whether the shed of the a usage and custom in the city of Washington engine be made of brick or stone. In Penton for tenants to make such removals of buildv. Robart, 2 East's R. 88, the building had a ings during their term. We can perceive no brick foundation, let into the ground, with a objection to such proof. Every demise bechimney belonging to it, upon which there was tween landlord and tenant, in respect to matsuperstructure of wood. Yet the court ters in which the parties are silent, may be thought the building removable. In Elwes v. fairly open to explanation by the general Maw, 3 East's R. 37, Lord Ellenborough ex-usage and custom of the country, or of the dispressly stated that there was no difference be-trict where the land lies. Every person, under tween the building covering any fixed engine, such circumstances, is supposed to be connus147*] *utensils, and the latter. The only ant of the custom, and to contract with a tacit point is whether it is accessory to carrying on reference to it. Cases of this sort are familiar the trade or not. If bona fide intended for in the books; as, for instance, to prove the this purpose, it falls within the exception in right of a tenant to an away-going crop. 2 favor of trade. The case of the Dutch barns, Starkie on Evidence, Part IV. p. 453. In the before Lord Kenyon, Dean v. Allalley, 3 Esp. very class of cases now before the court, the Rep. 11; Woodfall's Landlord and Tenant, 219, custom of the country has been admitted to is to the same effect. decide the right of the tenant to remove fixThen, as to the residence of the family in tures. Woodfall's Landlord and Tenant, 218. the house, this resolves itself into the same The case before Lord Chief Justice Treby consideration. If the house were built princi- turned upon that point. Buller's Nisi Prius, 34. pally for a dwelling-house for the family, in- The third exception turns upon the considdependently of carrying on the trade, then iteration whether the parol testimony was comwould, doubtless, be deemed a fixture, falling petent to establish such a usage and custom. under the general rule, and immovable. But Competent it certainly was, if by competent if the residence of the family were merely an is meant that it was admissible to go to the accessory for the more beneficial exercise of jury. Whether it was such as ought to have the trade, and with a view to superior accom- satisfied their minds on the matter of fact was modation in this particular, then it is within solely for their consideration; open, indeed, the exception. There are many trades which to such commentary and observation as the cannot be carried on well without the presence court might think proper in its discretion to of many persons, by night as well as by day. lay before them for their aid and guidance. It is so in some valuable manufactories. It is We cannot say that they were not at liberty, not unusual for persons employed in a bakery by the principles of law, to infer from the evito sleep in the same building. Now, what was dence the existence of the usage. The evithe evidence in the present case? It was "that dence might be somewhat loose *and [*149 the defendant erected the building before men- indeterminate, and so be urged with more or tioned with a view to carry on the business of less effect upon their judgment; but in a legal a dairyman, and for the residence of his family sense it was within their own province to and servants engaged in that business." The weigh it as proof or as usage. residence of the family was then auxiliary to the dairy; it was for the accommodation and beneficial operations of this trade.

Surely it cannot be doubted that in a busi ness of this nature the immediate presence of the family and servants, was, or might be, of very great utility and importance. The defendant was also a carpenter, and carried on his business, as such, in the same building. It

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 for 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, | tioned in the declaration, and others on board, 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 judgment of the said Circuit Court in this cause be, and the same is hereby affirmed with costs.

of slaves.

was blown up and set on fire, and the passengers escaped from the burning Teche to the shore, about six miles below Natches. That the steamboat Washington was ascending the Mississippi, and passed the burning Teche, and when she came opposite to them, the plaintiff's agent, the negroes, and others who had escaped from the Teche, were on shore; the agent of the plaintiff, with the negroes belonging to the plaintiff, was received into the yawl belonging to the defendants, a tender to the steamboat, for the purpose of conveying the negroes from the shore, on the Mississippi, to the steamboat, to be put on board the steamboat, and that the yawl was upset, the negroes and evidence conducing to show that the yawl in the declaration mentioned were drowned; was upset by ill and imprudent management, in putting the steamboat in motion as the yawl approached, and before the passengers were on board the steamboat."

The defendants, on their part, gave evidence conducing to show that these negroes and The law regulating the responsibility of common carriers does not apply to the case of carrying inother persons, to the number of sixteen, had telligent beings, such as negroes. The carrier has been passengers on board the steamboat Teche, not, and cannot have over them, the same absolute which had taken fire, and the passengers had control that he has over inanimate matter. In the nature of things, and in their character, they rebeen put on shore, about six miles below semble passengers, and not packages of goods. It Natches from said Teche, in her distress. would seem reasonable, therefore, that the responsi- That these passengers, including the negroes, bility of the carriers should be measured by the law which is applicable to passengers, rather than were taken into the yawl of the steamboat by that which is applicable to the carriage of com- Washington, from their distress, so as aforemon goods. [155] out any review to reward, to the request of said, from motives of humanity, and with Captain Campbell, commanding the Teche, or of the agent of the plaintiff. That there was no agreement for hire, reward or freight; none was charged or received. That it was the custom of steamboats in the river not to claim passage money or reward in such cases from persons who were in distress and unable to

The law applicable to common carriers is one of great rigor. Though to the extent to which it has been carried, and in the cases to which it has been applied, its necessity and its policy are admitted; yet it ought not to be carried further or applied It has not been applied to living men, and it ought not to be. [155] The ancient rule of the law of carriers, that the carrier is liable only for ordinary neglect, does not apply to the conveyance of slaves. [156]

to new cases.

WRIT of error to the Circuit Court of Ken- pay. And to repel the evidence of plaintiff as

tucky.

The case was submitted to the court on the part of the counsel for the plaintiff in error, Mr. Rowan, upon the following brief:

This was an action in the court below against defendants in error, owners of the steamboat Washington, to recover from them the value of four slaves, the property of the plaintiff, who, he alleged, were delivered to the commandants of said boat, to be carried thereon, and who, he alleged, were drowned by the carelessness, negligence, neglect or mismanagement of the captain and commandants of the said steamboat.

The declaration contained two counts, which are in the ordinary form.

Plea, not guilty, and joinder in the usual form.

Upon the trial of the cause the following bill of exceptions was signed by the judges, viz.: "Be it remembered, that at the trial of this cause the plaintiff gave evidence, conducing to prove that the defendants were owners of the steamboat Washington. That the said boat Washington by them was used and employed, on the Mississippi and Ohio rivers, as a common carrier of property and passengers, for freight and reward. That the steamboat 151*] Teche, in descending the Mississippi, with the plaintiff's agent and the negroes men

to negligence, it appeared that there was no contract in this case between the agent of the plaintiff and the owners or officer of the steamboat about reward; but the yawl was sent to shore, and the passengers taken in without any contract or conversation about the carriage; or about any reward.

*The steamboat Teche when she took [*152 fire was descending. The steamboat Washington was ascending.

Upon this evidence the plaintiff moved the court to instruct the jury:

1. That if they find, from the evidence, that the defendants were owners of the steamboat, and by themselves, their officer, or servants of the boat, did actually receive into their yawl, the negroes of the plaintiff, to be carried from shore on board the steamboat, they are responsible for neglect and imprudent management, notwithstanding no reward, or hire, or freight, or wages, were to have been paid by Boyce to defendants.

2. That if they find from the evidence, that the steamboat Washington was owned by defendants, and used by them, on the river, as a common carrier, for wages and freight, and that the slaves of plaintiff were actually received by the agents and servants of the defendants, on board of the yawl, of and belonging to the defendants as a tender of the steam