Gunn v. Scovil , 5 Day 113 ( 1811 )

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