
    Wheeler vs. Shed.
    The action of general indebitatus assumpsit^ is an equitable action, and the plaintiff can, in no case, recover more than he is in equity and good conscience entitled to.
    
      Rutland,
    
    February. 1814.
    THIS was an action of indebitatus assumpsit, for use and occupation.
    
      Plea — the general issue.
    
    On trial to the jury, it appeared in evidence, that one Downs, who was the owner of the premises, had mortgaged the same to A. and B. of Boston; the time of payment had expired. An action of ejectment had been brought by A. and B. on their mortgage against Downs, in the Circuit Court of the United States. Pending that action of ejectment, on the 15th day of March, 1811, Downs leased the premses to the platntiff for one year. And on the same day, the plaintiff leased the premises to the defendant for one year, at a rent of $54, and the defendant went into possession.
    In the month of May following, A. and B. obtained judgment in their action of ej ectment against Downs; took out a writ of possession; and on the second day of June following, the defendant was by that writ put out of.possession.
   Chipman, Ch. J.

directed the jury, that in this, which was an. equitable action, they should find for the plaintiff so much, anti s~ much only, as the defendant ought in equity to pay for the use and occupation of the premises, while in possession. That as the defendant had been put out of possession, by a titl~ prior to that of the plaintiff, and an end put to his occupation of the premises, the plaintiffcould make no demand for the use of the premises thereafter.

And that they might, and ought also to consider, whether, as the defendant had been thus turned out of possession; and that, after. it must be supposed he had made preparation for crops, which he cou&d~ neither reap nor enjoy, the occupation which l~e had under the plaintiff, was on the whole beneficial to the defendant. And that, if they found that, under all the circumstanced, the defendant had received ~io benefit from the occupation of the premises; the plaintiff was not entitled to recover.

Verdict for the defendant,  