
    E. Guthman, plaintiff in error, vs. M. T. Castleberry, defendant in error.
    (Atlanta,
    January Term, 1873.)
    Landlord and Tenant — Distress Warrant — Recoupment.—When the landlord failed to repair the roof of the store-house, after notice of its leaky condition, and his tenant’s goods were damaged thereby, the tenant is entitled to recoup the amount of such damages as against a distress warrant for the rent. (R.)
    *Landlord and tenant. Distress warrant. Recoupment. Before Judge Cowart. City Court of Atlanta. June Term, 1872.
    For the facts of this case, see the decision.
    S. Weil, by A. W. Hammond & Son, for plaintiff in error.
    Jackson & Clarke, for defendant.
    
      
      Landlord and Tenant — Distress Warrant — Recoupment.—“The defendant in a distress warrant, after arresting the proceedings of a levy thereof as the statute prescribes, may, on the trial of the issue thus formed, prove, by way of recoupment against the plaintiff’s demand, damages resulting from a breach by the plaintiff, of his own stipulations in the rent contract, and in order to do this, it is not necessary to amend his counter affidavit to set out the ground of such recoupment.” Johnson v. Patterson, 86 Ga. 725, 13 S. E. Rep. 17, citing the principal case. See also, Drake v. Dawson, 66 Ga. 176; Rountree v. Rutherford, 65 Ga. 446; Ency. Dig. Ga. Rep., vol. 8, p. 594.
      Same — Duty to Repair. — “The Code, § 2284, introduced a new rule on the subject of keeping rented premises in repair, devolving the burden on the landlord instead of upon the tenant, where it rested by the rule of the common law. This statutory obligation of the landlord has been frequently considered by this court.” Driver v. Maxwell, 56 Ga. 14, citing principal case. See also, Whittle v. Webster, 55 Ga. 181; notes to Center v. Davis, 39 Ga. 211; Vason v. Augusta, 38 Ga. 544; Ency. Dig. Ga. Rep., vol. 8, p. 580.
      Same — Same—Notice.—To the holding that, before a landlord is under duty to repair, notice to him of the need thereof is requisite, unless he is himself in a position to know that the making of such repairs is necessary, the principal case is cited in Ocean Steamship Co. v. Hamilton, 112 Ga. 903, 38 S. E. Rep. 204; White v. Montgomery, 58 Ga. 206; Ency. Dig. Ga. Rep., vol. 8, p. 587.
      If, after such notice has been given the tenant suffers damages on account of the failure of the landlord to make the necessary repairs, the landlord is liable for the damages thus sustained, provided the conduct of the tenant has not been such as to preclude him from recovering. Stack v. Harris, 111 Ga. 150, 36 S. E. Rep. 615, citing principal case.
      Same — Same—Improvements.—In Whittle v. Webster, 55 Ga. 181, citing the principal case, it is held that the landlord must keep the rented premises in repair, and is liable for all substantial improvements placed upon them by his consent.
      Same — Change of Possession — Notice.—To the holding that “if, 'after the land was sold and purchased by the complainants under the fi. fa. the sheriff came to put the purchasers in possession of the entire and undivided interest therein, and the tenant agreed to surrender to him and to hold possession for the complainants we can see no legal objection thereto, especially if there was no objection on the part of adverse claimants to the land, or if the change of possession was made with notice to them,” the principal case is cited in Cottle v. Harrold, 73 Ga. 840.
      . Tenants — Right to Dispute Landlord’s Title. — See the principal case cited in note to Gleaton v. Gleaton, 37 Ga. 651.
      *Vendor and Purchaser — Attornment.—The principal case is cited, for the ruling announced in the headnote, in Grizzard v. Roberts, 110 Ga. 46, 35 S. E. Rep. 291; Ency, Dig. Ga. Rep., vol. 8, p. 605.
    
   Warner, Chief Justice.

The plaintiff, as landlord, sued out a distress warrant for rent due him by the defendant, which was levied on the defendant’s property. The defendant filed an affidavit that the rent claimed 'by the plaintiff was not due. On the trial of the issue thm formed, the defendant offered to prove that the roof of the storehouse rented was in a leaky condition, and that by reason thereof the defendant’s goods had been damaged $300 00. The plaintiff objected to this evidence, and the Court sustained the objection, unless it was shown that there was a pre-existing agreement that repairs should be made on the store-house before the defendant moved into it. Whereupon the defendant excepted.

The landlord is bound by law (independent of any pre-existing contract to that effect,) to keep the rented premises in repair: Code, 2258. If the landlord in this case failed to repair the roof of the store-house, after 'notice of its leaky condition, and the defendant’s goods were damaged thereby, he was entitled to recoup such damages from the plaintiff, and have the same deducted out of the rent claimed to be due for the store-house, and If the damages sustained exceeded the amount of the rent claimed to be due, then the defendant did not owe the rent claimed: Code, sections 2858, 2859, 2861.

In our judgment, the evidence offered by the defendant was admissible, and it was error in rejecting it.

Let the judgment of the Court below be reversed.  