This cause is brought before this court upon a writ of error to the Circuit Court of the United States for the District of Columbia. The questions for consideration here, arise upon the following statement. The plaintiff in error instituted in the Circuit Court for the Distict of Columbia, an action of assumpsit against the defendant for the use and occupation of a house in the town of Alexandria. The declaration contains two counts, the first declaring upon an express agreement between the parties for the occupation and rent, and the second counting upon an occupation by the defendant by the permission of the plaintiff, and upon a promise in consideration thereof. The account filed with the declaration claims an annual rent of $175, from the 1st of January, 1826, to the 1st of January, 1839, inclusive, with interest after the expiration of each year. Upon the above declaration, there was a judgment by default, and a jury being empannelled upon a writ of inquiry assessed damages against the defendant to the full amount of the plaintiff's demand for rent and interest. This verdict the court on motion of the defendant set aside; annexing to its order the condition, that the defendant should not plead the statute of limitations; and issue being joined between the parties on the plea of non-assumpsit, a jury sworn to try that issue on the 10th of May, 1841, returned a verdict for the defendant; and thereupon the court gave judgment against the plaintiff with costs.
At the trial instructions to the jury were prayed on behalf both of plaintiff and defendant, and exceptions taken to the rulings of the court in reference to those instructions.
The first bill of exceptions states that the defendant, having offered to prove by competent and credible witnesses that during the entire period of his occupation of the premises, he had remaining thereon property sufficient to answer the rent, had the plaintiff chosen to distrain or sue for the same; he thereupon prayed the court to instruct the jury, should they believe from the evidence, that there had always been upon the premises, while occupied by the defendant, property and effects of his sufficient to have satisfied the rent, then that the plaintiff failing or neglecting to sue or distrain for those rents, was not entitled in this action to recover interest on the rent in arrear whatever it might be, from a period earlier than the date of the writ sued out in this cause. But the court refused the instructions so prayed for, to which refusal the defendant excepted.