
    
      Stewart vs. Tevis’ ex'or.
    
    Covenant.
    Case 15.
    Error to the Madison Circuit; George Shannon, Judge.
    
      Damages. Verdict. Practice. Error.
    
    Where the-jury assess damages not warranted by ■the allegations of the declaration, the court ought, ex officio, to aet it aside, & if it be not done, this court will reverse the judgmentand direct it.
    
      April 22,
    
   Judge Owslev

delivered the Opinion of the Court.

Stewart leased of Tevis a house and lot m the town of Richmond, for the term of three years, and covenanted to pay, annually, therefor, one hundred and fifty dollars. Suit was brought by Tevis upon the covenant, and breaches assigned in the non-payment of each year’s rent. Stewart made default, and a writ of enquiry was awarded to assess damages. Five hundred and twenty-three dollars damages was assessed by the jury, and judgment rendered therefor against Stewart. To reverse that judgment, this writ of error is prosecuted.

The judgment cannot be sustained. The damages assessed by the jury, are unjust and excessive, ami beyond what the court was bound, ex officio, t9 know the plaintiff in that court was entitled tore-cover.

Capperton and Brack, for plaintiffs; Turner for defendant.

Judgment ought not, therefore, to have been rendered for the amount of damages assessed, but the inquest of damages ought to have been, ex officio, set aside by the court, as was decided by this court, in the case of Tucker vs. Smith, 1 Littell, 209.

The judgment must, therefore, be reversed, with cost, and the cause remanded for further proceedings not inconsistent with this opinion.  