delivered the opinion of the court, January 4th, 1886.
It would have been better if the learned judge of the court below had omitted from his charge the expression of his personal dislike to the lease: (See first assignment of error). It was not material to the issue upon trial.' Moreover, it was well calculated to prejudice the. case of the defendant. The' average juryman would not be likely to regard a lease of this nature with much favor, and when the court adds the weight of its condemnation, there is danger of the real merits of the case being lost sight of.
That something of the kind must have occurred in this case seems probable from the fact that the jury rendered a verdict in favor of the plaintiff for $300, when there was nothing to justify it. ...
*48There was no evidence of the malicious use or abuse of civil process. The lease contained a clause authorizing a confession of judgment in ejectment for non-payment of rent. The rent was in arrear; a judgment was confessed; a writ of haberi facias possessionem was issued, and under it the sheriff ejected the plaintiff and delivered the possession of the house to the defendant. All this was done in accordance with the forms of law. We attach but little weight to the alleged tender of the rent on the 5th of February. The testimony does not make out a tender. There was some talk, nothing more. It ended in the defendant notifying the plaintiff that he would send a man to put him out of the house the next morning. He did not do so, however. The plaintiff was not ejected until the 28th of February, more than three weeks thereafter. No attempt was made by the plaintiff to pay his rent during that time, although he knew it was in arrear, aud he had been told he would be thrown out of the house on account of its non-payment.
Under such circumstances it was error in the learned judge to instruct the jury that they might find punitive damages. The plaintiff was not entitled to any damages whatever. •
Judgment reversed.