Opinion of the Court.

THIS is an appeal from a judgment rendered against Handley in an action brought by Chambers upon a covenant to convey land.

The only question deemed necessary to be noticed by this court, is, that which involves the propriety of instructions which were given by the circuit court to the jury. The jury were instructed, that if they found for Chambers, the value of the land at the time it should have been conveyed by Handley, they must give interest.

1. In so instructing the jury, we think the court erred. Where there is a fraudulent refusal to convey, less damages than the value of the land, at the time the conveyance ought to have been made, should never be given, and the jury would, no doubt, be at liberty to find damages equivalent to the value and interest down to the assessment. But, in such a case, the giving or withholding interest, is a matter in the discretion of the jury, and consequently, instead of instructing the jury as a matter of law to give interest, the court should have left them to exercise their discretion, free from any intimation of opinion by the court.

The judgment must be reversed with costs, the cause remanded to the court below, and further proceedings there had not inconsistent with this opinion.