
    Covington against The Executors of Lide.
    In a special action on the case, a plaintiff may recover less damages than those laid, in his declaration, though he cannot recover more. Though in covenant, where a penalty is fixed for the breach, there that sum only can he recovered.
    THIS was an action of assumpsit, founded on a special agreement. The declaration stated in substance, that the plaintiff had agreed to build a boat for the defendants’ testator, Lide, which should carry 1,000 bushels of corn from Cheraws to Georgetown ; for which he (hide) agreed to give plaintiff the same quantity of merchantable corn, and to pay him at the rate of 2s. 6d. per bushel for all the boat should carry more than the 1,000 bushels.
    On the trial, however, the witnesses proved that the deceased agreed to pay at the rate of '2$. Aid. for every bushel the boat could carry over and above the one thousand, (being two-pence per bushel less than stated in the declaration) and that the boat, when finished, could carry 1,100 bushels, which was 100 more than she was originally supposed to carry, and consequently the sum to be paid was 50 dollars.
    Upon closing the evidence on part of plaintiff,
    
      Falconer moved for a nonsuit, on the ground that the plaintiff had not proved his case as stated in the declaration, for that the witnesses had all proved that the deceased had agreed to pay 2s. 4d. instead of 2s. 6d, per bushel, for whatever excess of quantity the boat could carry, which was a variance between the count and the evidence in support of it.
   Bay, J.

before whom this cause was tried, expressed his surprise, that the defendants’ counsel, in whose favour the difference of the two-pence per bushel appeared to be, should apply for a nonsuit on that ground, as it was an evident advantage to them. He admitted that it had been formerly held, that a plaintiff could not recover more or less damages than what wei-e charged in the declaration; and that there were cases in the books, where verdicts had been set aside on that account; as in the case of Bagnall v. Sacheveral. Cro. Eliz. 292. but this was an obsolete doctrine at this day. The modern improvement of our legal system had rejected and discarded such unreasonable distinctions, as contrary to every principle of natural justice; for that the plaintiff might recover less damages than those laid in the declaration, particularly in all actions of assumpsit, which sound in damages. In every case of this kind, either express or 'implied, the damages must follow, and never can extend further than the sum really due ; and it is the province of a jury to determine that amount. Though in actions of covenant, where a sum is fixed for a breach, there the very sum, and no less, can be found. Say. Law of Dam. 43, 44, 45. 2 Burr. 904. 4 Burr. 2225.

The motion for a nonsuit was therefore overruled, and ¿he jury gave a Verdict for plaintiff,

Falconer then gave notice of a motion in arrest of judg-meat 5 and in November following, the case was brought ^orwar<^ at Columbia, before the Chief Justice, and Justices Burke, Grimke, and Bay. On report of the judge who presided at the trial, the court, without hearing any argument,

Dismissed the motion.,  