*50Opinion of

IN covenant for the delivery, on or before a day expressed, of two slaves between the age of eight and ten years, the defendant in the action moved the court to instruct the jury, that the value of such negroes, imme*51diately after they passed the age of eight years, with interest, should be the criterion of damages; but the court overruled the motion, and instructed the jury that a middle age between eight and ten should be taken as the criterion for assessing the value of the slaves; to which opinion the defendant excepted, and has appealed to this court.

It is clear, that slaves turned of eight years of age, would have satisfied the covenant; and, therefore, that the value of such slaves, at the time when the covenant was broken, would measure the plaintiff’s damages, then sustained. When the jury had added legal interest thereon, from the time of the breach up to the time of the assessment, they would have filled the measure of justice due to the covenantee. The instruction of the court, and the overruling of the motion for instruction, were erroneous. Pope vs. Campbell,* decided formerly in this court, is in point. The objection to the assignment of the breach of covenant, is too late, after verdict. The objection might have been good, on special demurrer, for the generality of the assignment; but, upon the allegation that the defendant has broken his covenant, in not delivering said negroes agreeable to said writing, and the plea of covenants performed, it would seem that the merits of the case were substantially in issue.

It is therefore considered by the court, that the verdict and judgment aforesaid be reversed, set aside and annulled; that the cause be remanded to the said circuit court, for a new trial to be had between the parties upon the issue joined, on which the jury shall be instructed to measure the damages according to the foregoing opinion, in case they shall, find the issue in favor of the plaintiff in the action.