
    HENDRICK vs. STEWART.
    Suits may be commended in the superior courts, and recoveries obtained for less than 1.100 when the damages are uncertain.—After verdict is recovered, it is too rare to move for a non-exit. Dales as to asssesment of damages.
    This was an action on the case disclosing the following facts. The plaintiff and defendant, having each a boat in the river Holston, designed to load them for the purpose of going down the river, on a trading voyage. The plaintiffs boat was in repair, the defendants was not. The defendant having his loading ready, which the plaintiff had not, proposed an exchange of boats, which was agreed to, upon the defendants agreeing to repair the plaintiffs boat. The defendant descended the river, in the boat which he had procured from the plaintiff in exchange. In a little time after the exchange was made, the boat which was to have been repaired, was carried away by a fresh, or flow in the river, and was lost. The defendant however had a sufficient time to have repaired her, agreeably to contract, but neglected.
    The only question was as to the measure of damages. The counsel for the plaintiff claimed damages for the loss of the voyage.
    It was insisted e contra, that he was only entitled to damages for the price of the repairs.
   Per Curiam.

Campbell j. and Overton, j. Evidence of the probable advantage, that might have been derived from the voyage, cannot be received. There are two leading principles, respecting the assessment of damages. In actions founded on torts, or quasi torts juries must necessarily have considerable discretion and latitude, there being no certain means by which the court can say, what ought to be the damages. In simple breaches of contract, the rule seems to be different, and there the nature of things, admits the establishment of certainty, and precision, which is at all times desirable. The plaintiff is not entitled to damages for any fancied, or probable advantage he might have derived, from his contract. The defendant contracted to repair the boat ; the plaintiff is entitled to damages, to the amount of these repairs, and no more.

Powell, j. Inclined to be of the same opinion.

Verdict for the plaintiff $60; which was recorded by the clerk, and some time afterwards, the same day, or the day after, a nonsuit was moved for, on the ground, that the superior court had not jurisdiction, 1794, c. 1. s. 6. in these words, " that no suit shall be originally commenced in any of the said courts, for any debt, or demand of less value than one hundred pounds, where the plaintiff and defendant live in the same district; or for less than fifty pounds, where the parties live in different districts; and if any suit shall be commenced, contrary to the true intent & meaning thereof, or if any person shall demand a greater sum than is due, on purpose to evade this act; in either case the plaintiff shall be non-suited and pay costs; provided always, that if the plaintiff, or any person for him, will make an affidavit, to be filed in the court, that the sum for which his suit shall be brought, is really due, but that for want of proof, or that the time limited for the recovery of any article, bars a recovery; then and in that case, such plaintiff shall have a verdict and judgment for what appears to be really proved.”

On the part of the plaintiff it was insisted, that the act did not intend to embrace causes, where the damages, would be uncertain—only such cases, where an action of debt would lie.

Kennedy and Miller for plaintiff.

White for defendant.

The defendants counsel argued e contra, and insisted, that if an action in this case could not be maintained in the superior court, it was now too late to move for a nonsuit, as the verdict was recorded, and relied on 2 Hay. 51.

Per Curiam. It is not known, that a case similar in principle to this has ever been discussed, and decided. Considering the subject to be res integra, it would seem to us, that the legislature designed to be more restrictive, than the argument on the part of the plaintiff imports. The language they have used, as to the value of the demand, and in the proviso respecting the recovery of any articles, conveys to us an idea, that they intended to embrace all causes, where by contract, or general opinion, the price or value could be ascertained, as to property, or the value of work, but not to cases of wrong, where damages are entirely uncertain. The case in Haywood is decisive, that the non-suit should be demanded after the jury return their verdict, and before it is recorded: Upon this last ground, we are of opinion, that the motion was made too late; and that the rule must be discharged. 
      
       See 2 Burr. 1100, 1111. Bul. N. P. 132. 3 Caine's. 221. 2 Hay. 366, 334 3 Cr. 300 4 Johns. 123 Taunton Rep. 191. 4 Dall. app. xxv.
     