delivered the opinion of the court.
The plaintiffs having recovered a judgment against Palmer & Southmayd, annulling a lease, and for one hundred and fifty dollars per month rent from the 1st day of March, 1836, until possession should be delivered, in pursuance of such judgment, the latter appealed, and gave Goodrich, the present appellant., as surety on the appeal bond ; and the judgment having been affirmed in this court, a fi. fa. issued, upon which, there being a return of nulla bona, the plaintiffs 'took a rule upon the surety, to show cause why he should not be condemned to pay the amount of the judgment.
The appellant, Goodrich, in answer to the rule, sets up in reconvention, or compensation, a sum of about eight hundred dollars, being the difference of rent for the tenement between eighteen hundred dollars and three thousand two hundred dollars per annum, from November 15, 1837, until June 15, 1838, due to Palmer & Southmayd, and received by the plaintiffs since the judgment.
Without considering how far the surety may plead a matter of this kind, we will remark, that the charge of additional rent received by the lessors, pre-supposes that they were in possession when the new lease was made, under which they received a higher rent, and that would imply the consent of the former lessees, to wit, Palmer & Southmayd. The date from which the additional rent, said to have been received by the lessors, is charged, corresponds with that at which the premises are admitted by t.he plaintiffs to have been surrendered. No agreement is shown, on the part of the plaintiffs, to account to the defendants for a higher rate of rent, and we are left to the presumptions arising from the circumstances of the case. It seems to us more probable, that the lessees, whose lease had been annulled, should have surrendered the property unconditionally, than that the owners should come under any agreement to account to Palmer & South-mayd for any excess of rent over one hundred and fifty dollars per month. If it had been rented for a less sum, would the loss have fallen on the former lessees 1 There is nothing in *442the record to’show that such was the understanding of the parties.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.