
    Van Vleet, Administrator, v. Adair.
    Covenant on an obligation for the payment of a certain sum, one halfin specie, and the other in bankable paper. Judgment on demurrer for the plaintiff., Held, that the damages should be assessed by a jury, not by the Court. Held, also, that the value of the bankable paper at the time it was to be paid, is the measure of damages for its non-payment.
    ERROR to the Fayette Circuit Court. — In this case Adair was the plaintiff below, and Van Vleet, administrator of Scott, the defendant.
   Blackford, J.

By the obligation upon which this action of covenant was founded, the obligor promised the obligee to pay him a certain sum, one half in specie, and the other in bankable paper. On demurrer to three frivolous pleas filed, judgment was rendered for the plaintiff, and the damages were assessed by the Court without a jury of inquiry.

This case is different from that of Mettler & Smith v. Moore, decided at this term. There the obligation was for the payment of a certain sum in whiskey; here, for the payment of a certain sum in bankable paper. In the former, whiskey was to be delivered to the value of the sum mentioned; in the latter, bankable paper, not to the value of the sum mentioned, but, counting the face of the bank notes, that sum in dollars. In the former, the plaintiff was entitled at least to the amount stated in the obligation; in the latter, as respects the part to be paid in paper, only to the value of bankable notes, counting on their face the sum in the obligation mentioned, which value might be considerably less than the nominal amount. In this case a jury was necessary to assess the value of the bankable paper, at the time fixed by the contract for its delivery .

Smith, for the plaintiff.

Rariden, for the defendant.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the judgment on demurrer are set aside, with costs. Cause remanded, &c. 
      
       As to when a jury must assess the damages, and where the Court may do bo, vide Clark v. Goodwin, ante, p. 74. — Tannehill v. Thomas, ante, p. 144 and note. — Wood v. Lemon, ante, p. 198. — Hedges v. Gray, ante, p. 216. — Duerson, v. Bellows, ante, p. 217. — Wilson v. Hickson, ante, p. 230. — Osborne v. Fulton, ante, p. 233. — Harper v. Levy, ante, p. 294. — Coldren v. Miller, ante, p, 296.— Melller v. Moore, cited in the text, ante, p. 342.
     