[Van Ness vs. Pacard.] utensils, and the latter. The only point is, whether it is accessary to carrying on the trade or not. If bona fide intended for this purpose, it falls within the exception in favour of trade. The case of the Dutch barns, before lord Kenyon(a), is to the same effect. Then as to the residence of the family in the house, this resolves itself into the same consideration. If the house were built principally for a dwelling house for the family, independently of carrying on the trade, then it would doubtless be deemed a fixture, falling under the general rule, and immovable. But if the residence of the family were merely an accessory for the more beneficial exercise of the trade, and with a view to superior accommodation in this particular, then it is within the exception. There are many trades which cannot be carried on well, without the presence of many persons by night as well as by day. It is so in some valuable manufactories. It is not unusual for persons employed in a bakery to sleep in the same building. Now what was the evidence in the present case? It was, "that the defendant erected the building before mentioned, with a view to carry on the business of a dairy man, and for the residence of his family and servants engaged in that business." The 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 business 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 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 were 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to say (which we are not) that the mere fact that the house was used for a dwelling house, as well as for a trade, superseded the exception in favour of the latter, there is no ground to declare that the tenant was not entitled to remove it. At most, it would be deemed only a mixed (a) Dean vs. Allalley, 8 Esp. Rep. 11. Woodfall's Landlord & Tenant, 219. [Van Ness vs. Pacard.] 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 liberal; 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 opinion, 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 and custom in the city of Washington for tenants to make such removals of buildings during their term. We can perceive no 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 to be conusant of the custom, and to contract with a tacit reference to it. Cases of this sort are familiar in the books; as for 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 fixtures(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 (a) 2 Starkie on Evidence, Part IV. [Van Ness vs. Pacard.] 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 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; 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. ROBERT BOYCE, Plaintiff in error vs. Paul AnDERSON, DEFEN DANT IN ERROR. The law regulating the responsibility of common carriers, does not apply to the case of carrying intelligent beings, such as negroes. The carrier has not, and cannot have over them the same absolute control that he has over inanimate matter. In the nature of things, and in their character, they resemble passengers, and not packages of goods. It would seem reasonable therefore, that the responsibility of the carrier should be measured by the law which is applicable to passengers, rather than by that which is applicable to the carriage of common goods. [155] The law applicable to common carriers is one of great rigour. 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 to new cases. 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] WRIT of error to the circuit court of Kentucky. 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 steam boat 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 steam boat. 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 steam boat 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 steam boat Teche, in de [Boyce vs. Anderson.] scending the Mississippi, with the plaintiff's agent, and the negroes mentioned in the declaration, and others on board, 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 steam boat 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 steam boat, for the purpose of conveying the negroes from the shore on the Mississippi to the steam boat, to be put on board the steam boat, and that the yawl was upset, the negroes in the declaration mentioned, were drowned; and evidence conducing to show that the yawl was upset by ill and imprudent management, in putting the steam boat in motion as the yawl approached, and before the passengers were on board the steam boat. The defendants on their part gave evidence conducing to show that these negroes and other persons, to the number of sixteen, had been passengers on board the steam boat Teche, which had taken fire, and the passengers had been put on shore about six miles below Natches, from said Teche, in her distress. That these passengers, including the negroes, were taken into the yawl of the steam boat Washington, from their distress, so as aforesaid, from motives of humanity, and without any view to reward, at the request of 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 steam boats in the river not to claim passage money or reward in such cases, from persons who were in distress, and unable to pay. And to repel the evidence of plaintiff, as 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 steam boat, 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. |