
    POPE vs. CAMPBELL.
    
      November 6th.
    On a fait for a breach of a nelrocsbetween certain ages,the jury ihould take the value at the a^e mail favor*. abietothedebt. or> and ‘ncereii ⅛,⅛⅛ mages,
    The value of day on which ü was to be paid the mod equit-abiegeneralruie by 1:0 ¡fit be not paid,
    This decifi-tend'toco'ntráas for land,
    a Doughfc and Mandimlk ⅛, M ■¿l¥er'
    
    POPE covenanted amongst other things to pay Campbell “ a good, sound, healthy negro boy and girl between 10 and 14 years of age, on or before the 10th day of April 1801,
    Suit was bronght on this contract and judgment entered by default, and a jury sworn to inquire of damage On executing the writ of inquiry in the general court, the defendant by his attorney moved the court to instruct the jury and parties to confine their inquiries as to this part of the contract, to the value of negroes of an age immediately above ten years. But the court, consisting of judges M’Dowell, Thruston, Ormsby, Hunter, Allen and Greenup, were of opinion that the inquiry could by law extend to an age immediately under 14 years, and that the jury should exercise their discretion within those limits.
    They assigned as reasons for their opinion, “ That the proof should be as broad as the contract. That it seemed more just, and more consonant with the intent of the parties contracting, that the average value between 10 and 14 should be a rule for the jury's government, than the value of the lowest age mentioned. And therefore they suffered proof of the value of the negroes (such as are described in the agreement) of 10, 12, and immediately below 14, to go to the jury, that they might, if they pleased, take a mean value. The court did not however direct the jury to take the value of negroes of any of those ages particularly, but left it to their discretion.”
    Pope appealed. The cause was argued in October 1804.
   The Opinion of the Court was delivered in this term, as follows: — On the 10th day of April 1801, good, sound, healthy negro boy and girl, 10 years old, would have discharged that part of the appellant’s contract; therefore the court below erred in not instructing the jury that the value of a negro boy and girl 10 years old at that time, together with legal interest thereon until the day on which the jury rendered their verdict, was the p.roper rule for them to have observed; for it is conceived that the value of any personal property at the day on which it is bargained to be delivered, together with legal interest thereon, is the most equitable general rule by which to ascertain damages whert? there is a failure of compliance. Indeed, when the property is of a perishable nature, of- is wanted for immediate use or market, no other just rule can be discovered.

It is however not intended that this decisión should settle the period of fixing damages in contracts for land where there has been a failure of making conveyances at the time agreed on, in as much as it may be found that the damages ought to' be regulated by very different considerations.

Judgment reversed. 
      
       The fame queftion was again brought before the court* at their fpring term j8o8, in the cafe Mudd vs. Phillips, on a fimilar contradi $ dnd the doctrine laid down in this cafe was then approved and affirmed;
     