delivered the opinion of the Court.

The Court is of opinion, that the Circuit Court did not err in rejecting, on the trial of the cause, the evidence offered by the plaintiffs in error, as stated in their second bill of exceptions, for the purpose of proving that they had been legally evicted from the demised premises; the said evidence being insufficient in law to *97prove an eviction by paramount title; inasmuch as the plaintiffs in error voluntarily surrendered possession of the demised premises to the sheriff who acted as commissioner under the interlocutory decree iu said bill of exceptions mentioned, and the said interlocutory decree, though it directed the sheriff to rent out the demised premises to the highest bidder, gave him no authority to evict the. plaintiffs in error, the then tenants in possession, therefrom; and there was no paramount title under which such eviction could have been made, the said interlocutory decree, which was rendered without the consent and to the prejudice of the defendants in error, being palpably erroneous in regard to the renting out of said demised premises, and therefore set aside by the same Court that rendered it, at a subsequent term thereof.

But the Court is further of opinion, that the said Circuit Court did err in rejecting, on the trial of the cause, the evidence offered by the plaintiff's in error, as stated in their first bill of exceptions, for the purpose of establishing the setoff claimed by them, for damages sustained by reason of the failure of the defendant in error to put upon the demised premises the repairs stipulated iu the lease thereof from him to the plaintiffs in error; inasmuch as by the agreement of the parties, entered of record, the plaintiffs iu error were to be at liberty to prove at the trial any setoff’ which could legally be given in evidence under any proper plea, and a plea of such damages, by way of setoff, would have been a proper one under the 62d section of the act of the General Assembly establishing the Circuit Superior Courts. And for this error, it is considered by the Court that said judgment of the Circuit Court be reversed and annulled, with costs to plaintiffs in error. And this Court proceeding, &c.

Judgment reversed, and new trial awarded.