McKiel v. Porter ( 1842 )

By the Court,

Dickinson, J.

The demurrer was correctly overruled ; for the defendants may have adopted the seal as the seal of both. If not, under our statute, the party could not deny it, except by plea, supported by affidavit.

The court, however, clearly erred in giving judgment upon the motion of the plaintiff below, for the amount of the bank notes, as specified in the covenant. Nor does it appear that the defendants waived their right to a jury to assess the damages. On the contrary, they specially except to the court so rendering judgment on the demurrer The action of covenant is for the recovery of damages, for a breach of contract; and the extent of such damages must depend upon the evidence introduced. Current bank notes are not money, and the plaintiff was only entitled to recover the value of the notes at the time they wbre to have been paid. And so this court decided in the case of Mitchell vs. Walker, and Payne and another vs. Rogers and another.

Judgment reversed.