
    Pledger against Wade.
    On a special agreement in nature of a covenant to deliver a note of hand, jury may assess what damages they think reasonable, though less than the a» mount of the note agreed to be deliver» ed up.
    THIS cause was tried at Cheratvs, in November, 1786, before Burke, J. The action was assumpsit, upon a special agreement, as follows, viz. “ Three months after date, I “ promise to deliver to John Pledger, or his heirs, his note “ of hand, due to Ely Kershaw £s? Co. for 818/. 19s. 9d. “ and interest due on ditto, 287/. 11s. 8d. amounting, in the ^ whole, to 1106/. 11s. Sd. for value received of him this u 11th of February, 1780.
    (Signed)
    “ Holden Wade,”
    It appeared that the note to Ely Kershaw, from the plain» tiif Pledger, was in Charleston at the time this agreement was entered into ; but before the expiration of the time limited for its delivery, Charleston was invested by the British forces, and fell into their possession about the time the contract was to have been performed ; so that it was almost impossible for the defendant to have procured the note mentioned, The question, therefore, was, as to the measure of damages.
    Bay, for plaintiff,
    insisted, that this agreement was in the nature of a covenant, in which the damages are liquidated and settled by the parties themselves ; and it was a well established rule of law, that wherever the damages were fixed and certain, the jury can neither give more nor less than the sum fixed ; but where they were not ascertained, there they had a discretionaiy power. Here the sum of 1106/. 11.9. Sd. being the amount of the principal and interest of the note to Kershaw, was fixed and ascertained with certainty by the parties. This amount, therefore, and no other, is the quantum the jury ought to give. These damages, too, ought not to be depreciated on account of the contract being dated in 1780, when money was at the lowest state of depreciation; because the agreement is for the deli-verv of a note given, in the year 1777, and not subject to the depreciation act. The real value of the note and accruing interest, ought, in conscience, to be the measure of damages.
    
      Waties, contra,
    contended that the writing only acknowledged the sum of 1106/. Hi. 5d. to be the contract, and the value received on the 7th of February, 1780. It ought to be considered as so much money had and received to the plaintiff’s use on that day ; it could raise no further obligation, than to procure the note, if possible, (for the law never requires a man to perform impossibilities) or on failure, to repay the money then received. The depreciation act makes all contracts liable to be reduced by the scale of depreciation, at the time they were entered into. In 1780, money was at its lowest ebb, and consequently this sum of 1106/. 11s. Sd. ought to be reduced accordingly.
   Burke, J.

left it to the jury to find a general verdict, or a special one, and leave the construction of the law to the court, as they thought proper.

The jury, however, returned a kind of compound verdict for 38/. 18s. 8d. the amount of money as depreciated in February, 1780, but allowed interest on the nominal sum contended for, making together 110/. l.s. Sd.

In January term, 1787, before Pendleton, Burke, and Heyward, Justices, the plaintiff’s counsel moved for anew trial, on the ground that the jury had found a contradictory verdict, partly for the plaintiff, and partly for the defendant, which could not be reconciled upon any principle of Ipw : for if the plaintiff was entitled to interest on 1106/. 11s. 5d° he was surely entitled to the principal upon which that interest was calculated. If only to 38/. 18s. 8d. then this last sum, with interest on it, ought to have been their verdict.

Wattes said, that the jury had in their discretion, as it was an action sounding in damages, exercised a kind of chancery power, and had given their verdict in that manner, so as to divide the loss, which the defendant was willing to submit to. Besides, if ever the plaintiff was called upon by Kershaw, or his representatives, he would only have to make good the difference of the principal sum, as by this verdict he got back the value of the money he paid, 38 h 18s. 8d. in part of the principal sum, and all the interest.

Per Curiam. As this is a case sounding in damages, and as the jury have thought proper to give a kind of equitable verdict between the parties ; and as this also appears to be a hard case, we are against granting a new-trial.

Motion discharged.  