¶1I think that, as a defense against the claim for rent, the defendants (under the code) can set up any claim they may have for damages done to their rights and tenure as lessees, by the act of the lessor, or by any act done by his permission. And it is not necessary that such act should amount to an eviction. Under the present law, all the conflicting claims of the parties, concerning the same subject matter, may be, and ought to be, settled in in one suit.
¶2It would seem that the referee has found facts sufficient to show that, by the lessor’s permission, there was a material interference with the beneficial use, by the lessees, of the premises hired. And from these, his conclusions of law, (even if not technically accurate in saying that the acts amounted to an eviction,) are to the effect that the right to abandon existed, and there could be no claim for rent after that course was taken.
¶3There would be as little doubt that, if the defendants showed that they sustained damages, (besides the amount of the rent,) they could recover them in this suit. But it is manifest, that the referee has not adopted the true rule of damages ; and it is not in the power of this court to correct it. For this reason there should be a new trial, with costs to abide the event, unless the defendants stipulate to remit, and remit on the roll, the damages. Should they do so, the judgment should be affirmed, without costs.
¶4Clerke, Gould and Barnard, Justices.]