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7 Del. 321

Doe v. Roe

Superior Court of Delaware

Decided July 1, 1861

Superior Court of Delaware · decided 1861-07-01

<p>In an action of trespass for mesne profits after a recovery in ejectment, the value of improvements made upon the premises by the defendant, may be recouped, or recovered by him in analogy to a set-off against the demand of the plaintiff. But if the premises be recovered from a tenant and the action of trespass is against him alone, the value of improvements made by his landlord, cannot be recouped, or recovered by him in the action.</p>

Decided 1861-07-01

By the Court:

¶1We have no doubt as to the general right, or allowance of the principle of recoupment in a case like the present. But the defendant in this action is entitled to recoup, or recover by the' way and in analogy to a plea of set-off against the demand of the plaintiffs, only for such improvements as were made by himself, and not by, or at the cost and expense of another, who is not a party to the action. The objection must therefore be sustained and the evidence proposed to be introduced as to improvements made by Stayton on the premises, must be rejected.

¶2The case afterward went to-the jury and the plaintiffs had a verdict.

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