
    Enos Gunn against Noah Scovil.
    In an action of indebitatus assiimpsit, for use and occupation, a separate, independent claim for goods sold, &c. cannot be set off against the rent.
    The record ofajudgment in ejectment, wherein the seisin and possession of the land, and also damages, are recovered, is,of itself, inadmissible evidence in an action of indebitatus assumpsit between the same parties, for rent of the same lands, which accrued prior to the disseisin complained of.
    MOTION for a new trial.
    Ti-is was an action of indebitatus assumpsit, for the rent of a house and piece of land.
    It was stated in the declaration, that the defendant had been in the use arid occupation of the land from the 1st day of .¡armar}!, 15500, to the 25tb day of February, 1806. On the trial, the defendant claimed, that he had sold and delivered to the plaintiff a pair of oxen arid a horse, and had furnished lumber. nails and other materials, which were used in building a house for the plaintiff; and had also performed service» for the plainliff, which, from the nature of the transactions between the parties, ought to be applied in payment of rent; but the defendant did not claim, that there was any particular agreement that the property delivered, and services rendered by him, should be paid for in rent, or should be set off against the rent.
    The plaintiff contended, that the jury could not apply the defendant’s claims in payment of rent, nor deduct the amount therefrom, unless an agreement to that effect was proved. Hut the court charged the jury, that the action being founded on an implied promise to pay rent, was to be governed by equitable principles ; that the plaintiff was not entitled to recover, unless a debt was due to him in equity ; and that they might consider the defendant’s claim for the sale and delivery of property, expenditures and services, and apply the same on account of the rent, without an express agreement of the parties to make such application.
    The defendant also read in evidence, the record of a judgment in favour of the plaintiff against him, in a subsequent action of ejectment for the same lands. The writ was dated on the 2d day of March, 1868, and the disseisin was laid on or about the 10th day of December, 1807. In that action, the plaintiff, upon the verdict of a jury, before the Superior Court, in August, 1810, recovered the sei-Ai and possession Ol' (In; i.'tmi in question, and one hundred and fdty-six dolía re damages. This record was given in evidence (o (lie jury, on the trial of the present action, without any proof whatever, that on the trial of the action of eject mi nt, the plaintiff attempted to shew a disseisin at any lime prior to that laid in the declaration, or that the damages recovered in Hint action were given for the use and occupation of the land, during the period for which rent is claimed by the present suit, or any part of it, or what proportion oí such sum w as given for the use and improvement of the land, and w hat for damages, on account of the tort and disseisin.
    The defendant contended, that the recovery of damages, in the action of ejectment, was a complele bar to the present action. On this point, the court charged the jury, that such recovery was not a conclusive bar, but that the jury might take into consideration the sum recovered, in the action of ejectment, in the estimation of damages.
    Under such circumstances, the jury returned a verdict for the defendant; and the plaintiff moved fm a new fría!, on the ground of a misdirection; and also, ihai the evidence offered by the defendant, was improperly admitted.
    These questions were reserved for the consideration of the nine Judges.
    
      Staples and Denison, in support of the motion,
    contended,
    1. That the claims of the defendant, for property sold and delivered, expenditures and services, could not be set off against the rent, without an agreement of the parties to that effect. 6 Bac, Abr. 135. (Gwil. edit.) Í Selw. 164. Peake’s Ev. 253. Dale v. Sollet, 4 Burr. 2133.
    2. That the evidence offered by the defendant. was inadmissible. Birch v. Wright, 1 Term Rep. 378, 386.
    3. That the charge to the jury was incorrect. •- ,
    
      Daggett and N. Smith, contra.
    1. The plaintiff cannot recover, unless a debt be due to him in equity. It was proper for the jury to consider the claims of the defendant, and apply them in payment of the 
      'Rsp. Dig. "! 07. Hull, iV. i‘. I.O. Jte« v. Nacfu'-an, 2 Burr. 1010. Dale w Solid. 4 Burr. 2133.
    2. The evidence produced on the part of the defendant, was relevant to the issue ; the charge, therefore, was correct on both poinls. Peakes Be. Mi.
   Tin Miiri.L, .1.

'{'lie action on implied assumpsit, is an equih-bk; action. The sum only, whieh was juslly due at the time of the promise laid in the declaration, can bo recovered ; arid the dcicudant is admitted to prove ail equitable ciroumslanees, which can avail him to lessen the sum demanded. Hut Ulero must lie such facts and circtunstane.es as arose out of the transactions, which are the ground of the action, and form the consideration of the promise. The defendant can set up no separate, independent claim, nor can any set-off of mutual demands in equity be made in this action, with more propriety, than in any other claim at law.

It seems, that in the present case, the defendant contended, that although there was no particular agreement concerning the rent to be paid for the use of the land, or the application of the amount of the articles advanced, and services rendered, by the defendant, in payment; yet, from the nature of the transactions, and the conduct of the parlies, it appeared in evidence, that it was their understanding and agreement, that these mutual demands should be settled on a final adjustment of their accounts, and that the one should be applied in satisfaction of the other. If this were the case, it was solely in the province of the jury to find and decide it accordingly ; and the evidence of the fact ought to have been left to their consideration. Until that fact should be established, the law would not warrant them to apply those services and advancements in satisfaction for the use and occupation of the land.

The rent demanded in this suit, is for the use of the land from the 1st day of January, 1800, to the 25lh day of February, 1806. The defendant produced in evidence, the record of a judgment, in favour of the plaintiff against him, in a subsequent action of disseisin for the same lands, by writ, dated the second day of March, i 808, laying (lie disseisin ou or about the 10th day of Dicimbtr, 1807 ; in which, the plaintiff, upon a verdict of a jury, recovered the seisin and possession, with one hundred and filly six dollars damages, befo’-e the Superior Court, at their stssion in Ncm-J laven, in August, 1810. He contended, that thb recovery was a conclusive bar to the present suit in mmmpstl.

This record was produced to the jury, unattended with any evidence, either by confession of the parly, or testimony of any of the jurors or judges who tried the action of dissei-sin, tending to shew, that the plaintiff attempted to prove a disseisin at any time prior to that laid in the declaration, or that the sum given in damages, was given for the use and improvement of the land, during the term comprised in the present suit, or any part of it, or what proportion of such sum was given in nature of rent, for the use of the land, and what for damages, on account of the tort and disseisin.

The record, of itself, was, prima facie, evidence thal those damages were given for a disseisin and occupation of the land, at a time subsequent to the period comprised in the present suit. The evidence arising from it, was irrelevant, and the sum recovered could form no item for the consideration of the jury in their estimation of damages.

For these reasons, I am of opinion, that the charge was erroneous, and that a new trial ought to be granted.

Mitchell, Ch. J., Reeve, Swift, Edmond, Smith, Brain-ard and Baldwin, Js., severally concurred in this opinion.

Ingersoll, J. having been of counsel in the cause, did not judge.

New trial to be granted  