1. Land-¡^ant™ Be-ietting to possession, satisjud£The evidence leaves no doubt upon the .mind that the appellee, after he obtained his judgment •■against the appellant for the possession of the house and ° ■lot, rented it to her again and received rent from her for it, •not only during the remainder of the time for which it been originally rented, but for several months thereafter, By the new agreement she again admitted his title, held the house and lot as his tenant, and he obtained the possession, which he had recovered in his action, and the judgment therefor was satisfied and extinguished.
It can make no difference that the appellee supposed, as •he very probably did, that the judgment was superseded, and he could not sue out a writ of possession until the appeal was determined, or whether it was superseded or not; for the appellant was at liberty, notwithstanding the appeal, and a supersedeas, if there had been one, at any time to surl’ender, as she virtually did do, the possession to him.
To obtain possession, upon her refusal to surrender it, after the expiration of the new lease, the appellee’s remedy ■was by a new action.
According to the weight of evidence, .as we think, it was .a condition of the contract for the new letting, that the damages recovered and costs should be set off against her claim of damages to her goods by the leaking of the house ; and in agreeing to their settlement in this way, he was influenced by his solicitude that the property should not, by her leaving it, get into the possession of Eeynolds & Conger, and which, by the new letting, he was endeavoring to prevent, and these also, were thereby satisfied and discharged.
The court .below erred in refusing to decree a perpetual injunction against the whole judgment, and in dismissing" the appellant’s complaint, and its decree is reversed, and such a decree as should have been rendered there will bo entered here.