delivered the opinion of the court.

On the 12th February, 1856, appellant brought this action against appellee to recover $600, with the accumulated interest thereon, it being the amount of capital stock subscribed by the latter as a stockholder of the corporation.

The appellee admitted the subscription, and his liability thereon, but relied, in defense, that the agents of the company who had obtained the subscription had agreed that he should be allowed, in discharge thereof, anj^ damage he might sustain by reason of running the railroad through his land, and should be paid any surplus for such damage over and above the amount of his stock.. He alleges this in his answer by way of counter-claim, and states that the road had been constructed through his farm, cutting off his out houses from his dwelling, destroying his spring, and otherwise greatly injuring him, for which injury he claims, under the alleged agreement, $1,000.

A demurrer was filed to this counter-claim and overruled, and thereupon the appellant replied, 1st. The pendency of another action for the same cause, and between the same parties in the same court, which was referred to and exhibited; and 2d. That the circuit court of Nelson county had, in pursuance of the charter of the company, appointed commissioners to assess damages on the route of the road, and that said commissioners had, in conformity with *742law, assessed appellee’s damages at $150, and reported the same; which assessment they claimed to be conclusive, and which amount they then offered to credit on the subscription.

To this reply appellee demurred, and his demurrer was sustained as to the second paragraph, and overruled as to the first.

Afterwards, at another term, appellants offered an amended replication presenting substantially the same matters in avoidance of the counter-claim, but more minutely and at large, which was rejected by the court. Exceptions were taken by both parties during the progress of the cause to the various rulings of the court.

Upon the trial the jury returned the following verdict: “ We of the jury find that the defendant has ‘ sustained damages, by the location of the railroad, ‘ to the sum of $600, which offsets against the $600 ‘ and interest sued for by plaintiff, and we therefore ‘ find for defendant;” which was approved by the court and judgment rendered for the defendant.

A motion for a new trial having been overruled, the railroad company have appealed, and complain:

1st. That their demurrer to the counter-claim was improper^ overruled.

2d. That appellee’s demurrer to the 2nd paragraph of the reply was sustained, and the amended replication rejected.

3d. That improper evidence was admitted against the company, and competent evidence offered in its behalf excluded.

4th. That the court below erred in its instructions to the jury; and

5th. That the damage was excessive, and the judgment unauthorized by the verdict.

The grounds relied on for reversal will be briefly considered in the order presented.

1. The answer presented a valid counter-claim. It shows upon its face a cause of action in favor of *743the defendant against the plaintiff, connected by the alleged agreement with the transaction set forth in the petition, and comes within the spirit and letter of the Civil Code, (sec. 126.)

*7432. The report of the commissioners assessing the damages of appellee at $150,, and relied on in the 2nd paragraph of the reply, was not filed in the Nelson circuit court until after this suit was begun, and the answer and counter-claim filed. It was to all intents and purposes a private paper, under the control of the commissioners or company until filed in the proper court, as required by the 4th section of the act authorizing such assessment. (Sess Acts, ’50, ’51,443.) Certainly an ex parte proceeding like it is entitled to no consideration against any one, either as evidence or in bar of an action, until it has been filed in conformity with the requisitions of the law allowing it, and an opportunity given the owner of the property injured to controvert the assessment. The 2d paragraph of the reply, which set up this report, was clearly bad on demurrer, and the court properly rejected the amendment relating to it. The 1st paragraph of the reply presented substantially, though somewhat informally, the pendency of another action for the same cause set forth in the counter-claim, and there was no necessity for further amendment to it. There was therefore no error in rejecting either of the proposed amendments.

3. We are unable to perceive that any improper evidence was admitted that could have prejudiced appellant. In inquiries relating to the assessment of damages in such cases considerable latitude is allowed. This results from the very nature of the inquiry itself. More danger is to be apprehended from unnecessary restrictions than a reasonable degree of latitude. The criterion of damages are to be prescribed by the court, and, when correctly laid down, always direct the minds of the jury to the material facts that are to govern in the assessment. The report of the commissioners was properly rejected as *744substantive evidence, for the reasons already stated in answer to second ground, but was admissable for the purpose for which it was used.

4. We think this objection well taken. The first instruction was obviously abstract and misleading.

The counter-claim itself relies on an agreement to set off any damages that might be sustained by the location of the road through the appellee’s farm, and thus impliedly admits that he had consented to such location. The claim is for damages under an agreement, and not for damages resulting from a trespass. It arises ex contractu and not ex delicto, and the question as to the right of the company to enter upon the land was not at all involved in the issue. The instruction correctly says that the company had no right thus to enter until it had complied with the law, unless permitted by defendant, but as the right of entry was not involved it was abstract and well calculated to prejudice appellant. Besides, the instruction, if applicable to the issue, is objectionable because it submits to the jury to determine what the law demanded as a prerequisite to the entry of the company. This was manifest error.

The 3d instruction is likewise objectionable for two reasons: 1st. It rather assumes that the damage sustained by appellee was equal to the amount ° . . rr , of his subscription, and authorizes the finding against aPPchant for damage beyond; and 2d. Because it failed to furnish any guide to the iury by which a . . , , , , . , correct assessment could have been attained. The court should have told the jury in what manner the value of the land taken by the company for the purPoses of the road should be estimated, and how the consequential damages should be fixed. The jury , . J ' ought to have been informed that the value of the ^atK^ to the appellee, considering its relative position t° his other land, and other circumstances tending t° diminish or enhance such value, was the criterion of the damage so far as the land taken was concerned, and that to the extent of the value of the land *745thus ascertained he was entitled, without regard to any benefits resulting from the road. But that in estimating damages beyond this value of the land they had the right to consider^ and should consider, the benefits, if any, that he derived from the construction of the road, as provided by the charter. The same question as to the proper assessment of damages in such cases arose in the case of the Henderson and Nashville Railroad Company vs. Dickerson, 17 B. Monroe, 180; and the principles there laid down are applicable to this case.

5. Without determining whether the assessment of the jury was corrector incorrect under the instructions given, it seems to us that in any aspect, the judgment was unauthorized by the verdict. The amount claimed in the petititfon, and not denied, was $673 50, and the damage allowed upon the counter-claim was only $600. Upon what principle the one was regarded as a complete set-off to the other we are unable to perceive. ■

For the reasons indicated the judgment is deemed erroneous, and reversed, and cause remanded for a new trial and other proceedings not inconsistent with this opinion.