delivered the opinion of the Court:

1. Several assignments of error raise the question of the sufficiency of the affidavit to confer jurisdiction, under the statute, upon the municipal court, and of the admissibility of plaintiff’s evidence of title thereunder.

It is not necessary to consider these, as counsel for the ap*71pellants on the argument, announced his satisfaction with the judgment to the extent of the amount thereof founded on the special finding of the value of the use and occupation of the leased part of the premises, and his willingness that the judgment be modified to that extent instead of reversed, in case it be found to be erroneous to the extent of its inclusion of the damages assessed for the loss of the income of the building.

2. The bond was given, and the judgment rendered under the provisions of sec. 1233, Code [31 Stat. at L. 1383, chap. 854], which reads as follows: “In case of an appeal by the defendant, his undertaking, in order to operate as a supersedeas, shall be an undertaking to abide by and pay the judgment rendered by the justice of the peace, if it shall be affirmed, together with the costs of the appeal, and to pay all intervening damages to the leased property, and compensation for the use and occupation thereof, from the date of the judgment appealed from to the date of its affirmance; and in said undertaking the said defendant and his sureties, the latter submitting themselves to the jurisdiction of the court, shall agree that if the judgment be affirmed, judgment may be rendered against them by the appellate court for the amount of the judgment so affirmed, and the intervening damages, compensation, and costs aforesaid.”

There was no evidence of any damage done to the leased part of the premises, and the recovery on their account was limited to the value of the use and occupation thereof from the date of the judgment in the municipal court to the date of its affirmance by the supreme court of the District, to which it was appealed.

The question that we have to determine is not whether the plaintiff would have a right of action for the loss of rental of the entire building, occasioned by the defendant’s unlawful detention of the part leased to and occupied by him, but whether it may be recovered of the defendant and his sureties in this special statutory proceeding.

Without intending to intimate that he may or may not be entitled to an action at common law for such special dam*72ages, we are of the opinion that they cannot be recovered under the section aforesaid. That is limited to compensation for the use and occupation of the “leased property,” and to all intervening damages to the same.

The leased property comprised a part only of the building. The upper stories or rooms were not leased to defendant, but had been, during his lease of the ground floor and basement, leased to and occupied by others, though vacant before the expiration of his lease. He never took possession of them, and therefore could not detain them from the possession of the owner.

It was error to permit the jury to find a verdict for the damages sustained by reason of the loss of the opportunity to lease the remaining floors of the building. The judgment will therefore be modified and affirmed as to the verdict for the value of the use and occupation of the leased property,-and as to the costs of appeal and' of the court below, and reversed as to the remaining damages found by the jury.

The appellants and the appellee, respectively, will be adjudged to pay one half of the costs incurred on this appeal. The cause will be remanded, with direction to modify the judgment as ' indicated in this opinion, without prejudice to the right of the appellee to prosecute any action at common law to recover the special damages aforesaid, if he be so advised.

Modified.