Covington v. Executors of Lide

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,

*160Falconer 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.,