
    King against Pyle.
    Where a»'Eviction of* ^rt'of aViet of land, which jfo'rly sold”” the measure ot damages is the amount of tained bTthe loss of ihe land, and not the average to'be pafcubr the whole
    
      Query, would bi-e ' Ule if the sale were air.
    In Error.
    ON a writ of error to the Court of Common Pleas of Lancaster county, the case was'this: Amos Pyle, the de*enc^ant *n error (who was plaintiff below) brought an action of debt on a bond, for a sum of money' which was part of consideration of a tract of land sold by him to the plaintiff in error, Samuel Kine’, who was defendant below. The . ~ . „ defendant claimed a deduction from the bond, for six acres valuable woodland, which, as he alleged, were represented by the plaintiff as part of the land sold to him, although he , , , . ,. .. , , , , knew that his lines did not take it in. The President of the Court of Common Pleas charged the jury to make a deduction from the defendant’s bond, if they should be of opinion that the plaintiff had imposed on him by false representations respecting these six acres of land ; and at the same time instructed them, that the measure by which they should cal-cu|at:e the deduction, should-be, the average price per acre, which the defendant had agreed to pay for the whole tract. To this charge the counsel for the defendant excepted, and the error assigned was, that the Court erred as to the measure of damages prescribed to the jury.
    
      Slaymaker and Hopkins, for the plaintiff in error.
    Rogers, for the defendant in error.
   The opinion of the Court was delivered by

Tilghman C. J.

Where land is sold with warranty, and the purchaser is evicted, the measure of damages, unless fraud has been practised, is the price agreed to be paid by the purchaser. But it has been understood, that in cases of fraudj, the jury are not bound, in assessing the damages, by the price which had been stipulated between the parties. In the case before us, therefore, the jury should have been instructed, that if there was fraud, they might deduct from the defendant’s bond, the amount of the injury sustained by the loss of the six acres of woodland. It is evident, that this loss might be much more than the average price of the whole land. It may happen, that á few acres may be so situated, as to form the principal inducement for the purchase of a large quantity; or at least they may be so essential,'that without them the remainder may be greatly reduced in value. I give no opinion, whether, in case of a fair sale and an eviction of a small part, peculiarly valuable on account of its quality or situation, the measure of damages should be the average price agreed to be paid for the whole ■ tract. I will only say, that T do not'Consider that point as settled. The principle established by former decisions has been applied to cases where there was an- eviction of the whole or of a part not particularly valuable; But, in,the..present instance, I think there can be no doubt; because the case was left to the jury as a question of fraud, and if they should be in favour of the defendant on that point, they were directed to deduct from his bond for the six acres lost, at the average~ price of the whole tract. This is in opposition to the established, rule. I am of opinion, therefore, that the judgment should be reversed, and a venire .facias de novoawarded.

Judgment reversed, and a venire facias . de novo awarded.  