
    Jefferson v. Glaze.
   Beck, J.

Where a landlord sues out a warrant to dispossess his tenani because of non-payment of rent under a lease contract, and the tenant arrests such proceedings by filing a counter-affidavit and giving the required .bond, and where the allegations contained in the counter-affidavit show that the landlord was indebted to the tenant at the time of suing out the warrant, by reason of damages resulting from the failure of the landlord to comply with certain obligations imposed upon him under the terms of the contract,, and there is some evidence to support such allegations, it is error for the court to direct a verdict in favor of the landlord for double the amount of rent claimed to be due; as it is competent for the tenant, in proceedings of the nature indicated, under proper pleadings, to recoup the damages which lie has sustained. Weaver v. Roberson, 134 Ga. 140 (67 S. E. 662).

July 15, 1910.

Eviction. Before Judge Gilbert. Muscogee superior court.

April 3, 1910.

Hatcher & Hatcher, for plaintiff in error.

Bowden & Goldstein and Carson & McCutchen, contra.

Judgment reversed.

All the Justices concur.

Evans, P. J.

I concur in the judgment, but dissent from the intimation of the majority of the court that the tenant may recoup damages arising out of the landlord’s violation of his contract. I think the tenant may defeat the action by showing that he has suffered damages to the amount of the rent or in excess thereof, but the tenant can not recover any damages in excess of the rent by way of recoupment, in a dispossessory proceeding.  