a Memorandum. — In the winter vacation, to wit: on the 19th day of January, 1841, the Honorable Richard H. Bayard having been elected to the Senate of the United States, resigned his office of chief justice of this State; and the Honorable James Booth, of New Castle, was appointed in his place on the 12th of March, 1841, and took his seat at the commencement of this term.
ASSUMPSIT for use and occupation of a carriage shop, sheds, c.
The plaintiff proved the occupation of the premises by the defendant at a certain rent per year.
The defendant offered evidence that it was a part of the contract that the shed should be repaired so as carriages might be kept safely *Page 332 under it; and that in consequence of want of repair, he had been compelled to remove his carriages to another place. (Wood-fall 353; 1 Esp. N. P. 59; 7 Dowl. Ry. 117; Ros.Ev. 147; 2 Br. Bing. 680; Ry. M. 268, S. C; Com. Land. Ten. 450-3.)
The plaintiff objected, that this could not be set off or defalked against the rent, but must form the subject of a separate action for damages. (2 Saund. PL Ev. 859.) We consider this matter on the principles which govern the action of indebitatus assumpsit generally. The plaintiff recovers what in equity and good conscience he is entitled to and no more. Our act of assembly, like the British statute, enables the plaintiff to show the sum agreed on for rent as the measure of damages, but the tenant may be let in to show that he had no beneficial enjoyment of the premises, through the default of the landlord. (Ed-wards vs. Etherington, Ry. Moody 268.) So in this case we will allow the defendant to prove the landlord's agreement to repair the shed; and that the defendant was deprived of the use of it for want of such repair.