
    Lyles vs. Lyles’s Ex’rs.
    If a contract made for the payment; of totto'*eo9 which is not com* plied with, tins pUnntiff, in ossimpait on that conti act, may re* cover the value off the tobacco in money.
    Appeal from Prince-George’s county court. This suit was instituted for the purpose of recovering from the defendant, (now appellant,) 32 hhds. of tobacco, alleged to be due from him to the testatrix of the plaintiffs, for four years rent of a tract of land, and the amount of two promissory notes drawn by the defendant* and made payable to the said testatrix. The declaration contained several counts — 1. Indebitatus assumpsit for a special undertaking to pay 32 hhds. of tobacco for four years use and occupation of a tract of land. The assumpsit being charged as made in the life-time of the testatrix, and to be paid in tobacco in kind. 2. Like the first* except that the pro-, mise is charged in money, and upon a quantum ineruit. 3. Like the first* except that the charge is only for one year’s use and occupation, and the assumpsit in money. 4. In the usual form, upon a receipt in the nature of a promissory note for §1700, drawn by the defendant, and made payable to the testatrix of the plaintiffs. 5. In like manner upon another promissory note for §666 67, drawn and payable as the former. Then follow the usual money counts for money had and received, lent and advanced, and paid, laid out and expended, artd the declaration concludes generally to the damage of the plaintiffs of §10*000 in money only; The defendant pleaded three pleas. 1. The general issue to the whole declaration. 2. An -account in bar to the amount of §830 35* due from the testatrix; and 3. An account in bar to the amount of §1389 33, due from the plaintiffs. Issues were joined on all these pleas.
    
      .Whether or not since the act of 1812, ch. 135,5. 3, a judgment can be entered for tobacco?
    
      At the trial, the plaintiffs in support of the issues joined tip'onthe first, second, and third counts of their declaration, gave in evidence an agreement in writing as follows, viz. “I hold myself bound to pay to my mother, Mrs. Sarah Lyles, every year during her life, from tlie 1st of January 1817, eight hogsheads of crop tobacco, for the use of the plantation on Piscataway creek, left me by the will of my deceased father. Given under my hand this 17th January 1818.
    
      TV. II Lyles.
    
    And proved the occupancy for four years, commencing-on the 1st of January 1817, in pursuance of the said agreement. They further gave evidence of the value of said tobacco at the several times when by the terms of'the contract it ought to have been delivered. The defendant then prayed the opinion of the court, that from the evidence and pleadings the plaintiffs were not entitled to recover the value in. money of the tobacco. Which' opinion the court, ¿Stephen, Ch. J. and Key, A. J.] refused lo give; but were of opinion, and so instructed the jury, that the plaintiffs were entitled to recover such value- The defendant excepted. The jury found for the plaintiffs on the first issue, and for the defendant on the second and third-, and after deducting the defendant’s accounts in bar from the plaintiffs’ demands, ¿ssessed the plaintiffs’ damages to the sum of $4025 27. Upon this verdict the court gave judgment for the plaintiffs generally, for their damages and costs; and the defendant appealed to this court.
    The cause was argued before Buchanan, Ch. J, Earle., and Martin, J.
    
      Jlshton and- Stonestreel, for the Appellant.
    1. As the whole declaration sounds in contract, and the charge in the first count is of an express undertaking to pay tobacco in specie, and all the proof on the part of the plaintiffs below, (except as to the two notes.) sustained the charge as stated in the first count, the court below ought not to have instructed the jury that they might ascertain tlie value of the tobacco in current money, and give their verdict also in current money as a necessary consequence. 2, The breach of the promise laid in the first count is for the nonpayment of tobacco, without averring it to be of any particular value in money; and the conclusion of the declaration is generally to the damage of the plaintiffs in money 3] one. 3. There was no evidence to support either thesecond or third or last counts in the declaration. 4. If the value of the tobacco could be recovered in money, it should have been the value at the time of the verdict, and not at the day of payment by the contract, as directed by the court below. That where the contract, upon which the suit is brought, was for the payment of tobacco, money could not be recovered — They referred to Skirvan vs. Willis, 4 Harr. & M‘Hen. 483, and Stuard’s adm’r. vs. Deale, in this court, at December term 1808. That crop tobacco was as current in this state as money, ami had been so for a century past — They referred to the acts of 1713, ch. 3, s. 11; 1724, ch. 6; 1763, ch, 13: 1779, ch. 25, s. 5; October 1780, ch. 23; 1785, ch. 80, s. 13; 1789, ch. 26, s. 31; 1790, ch. 57, ch. 59, s. 4. These acts, arid the practice under them, prove that judgments have been entered for tobacco, The act of 1812, ch. 135, s. 3, appUed exclusively to money debts, and to make dollars and cents the current money of the stale. The act of November 1781, ch. 16, was similar to the act of 1812, and it never was contended that it interfered with tobacco contracts, since judgments for tobacco were constantly entered on tobacco contracts, after the act of' 1781, and have been so entered since the act of 1812.
    
      Magruder, for the Appellees,
    relied on the act of 1812, ch. 135, s. 3.
   JUDGMENT AEFIEMJSD.  