The opinion of the court was delivered, by
Agnew, J.This was an action for the continuance of a nuisance, in keeping up a wall built across an alley, through which the plaintiff had a right of passage. The plaintiff gave in evidence a former action and recovery against the defendant for the same nuisance, showing a general finding and award in favor of the plaintiff.
The defendant gave no evidence in the court below of any title vested in Rebecca Wylie, whose deed to McCully the landlord *197of defendant was given in evidence, and made no point to the court upon Rebecca Wylie’s alleged title.
There was no error, therefore, in instructing the jury, that the plaintiff was entitled to recover for. the continuance of the nuisance after her notice to the defendant to remove the obstruction. The former recovery was evidence to support the action.
The so-called tenancy of Gilmore under Mrs. Wilson, paying rent to her for permission to keep up the wall, was but a license on her part to continue the nuisance for a definite time ; and the court charged in favor of the defendant, in directing the jury to give no damages for the period during which the agreement for rent ran. But there was no evidence of a release of the right of passage, or of a perpetual license granted. The arrangement was manifestly temporary and subject to be determined at the end of any year.
When Mrs. Wilson notified Gilmore of her intention to resume the use of the right of way, and that he should remove the obstruction, the license came to an end.
It does not resemble the case of a tenant holding over after his lease has expired.
The obstruction was unlawful in the beginning, and its permissive continuance for a time did not leave it lawful when the license for its continuance expired. The parties stood then as they stood at first, and a continuance after notice to remove, and a reasonable time allowed to remove, again exposed the defendant to the plaintiff’s action.
These views dispose of all the assignments of error except the 6th, which was the admission of Hersberger’s testimony to prove an independent fact, to wit, his agreement to pay Mrs. Wilson $50 a year for the use of the alley. It is settled in several cases, that a writing, when offered as proof of a fact asserted in if, is not evidence, it being when so offered but a certificate of a third person not on oath: 2 Watts 180 ; 3 Id. 110 ; 4 Id. 424. He must be called to prove the fact. If the writing were the best evidence of the fact to be proved by it, it would open the door to the fraudulent concoction of evidence, enabling men to prove by a written statement what they dare not say upon oath.
The party therefore had a right to call the witness, and to examine him as to the sum he agreed to pay; but the writing might be called for to refresh his memory or to contradict him.
Here, the objection was to the testimony being given at all, on the ground that the writing was the best evidence of the fact. The only fact, however, which bore upon this case, was the amount of the sum he had agreed to pay — not what contract he had made.
We see no error in the record, and the judgment must be affirmed.