Newsum v. Pendred , 2 Va. 93 ( 1817 )

This was an action of Assumpsit brought in the Superior Court of Norfolk. The first count charged, that whereas the Plaintiffs had, at the request of the Defendant, put into his possession, loaned and entrusted to his care, the books, accounts, and papers belonging to their testator’s estate, the said Defendant, in consideration thereof, undertook and faithfully promised them that he would restore and give up to them the said books, accounts, and papers whenever he should be required : it then avers that the said books, &c. were reasonably worth $500, and that on a certain day he had been required to deliver to the Plaintiffs the said books, &c. which he refused. The' second count was Indebitatus Assumpsit, for $500, for certain other books, accounts, andpapers delivered to the Defendant : the third count was on an Insimul computassent: and the fourth count was In-debitatus Assumpsit for $500, before that time had and received by the Defendant to the use of the Plaintiffs. The Defendant pleaded the general issue, and the jury assessed the Plaintiffs’ damages to fifty dollars. The Superior Court doubting whether it had jurisdiction of the case, in consequence of the verdict ascertaining the Plaintiffs’ demand to be less than one hundred dollars, adjourned to this Court the question, whether it ought to enter a judgment for the Plaintiffs, for the sum of fifty dollars, the damages found by the jury ?

The judgment of the Court was as follows :

“The first count in the declaration filed in this Cause, being founded on a special agreement for the re-delivery of certain books, &c. in the said declaration mentioned, and the damages sustained by the Plaintiffs by the breach of that contract, being in their nature altogether uncertain, and of necessity unknown. until they were ascertained by the jury : And it not appearing from the record on which of the counts in the said declaration the said verdict was rendered; the Court doth decide, that the said Superior Court ought to enter ■ up judgment for the Plaintiffs, upon the said verdict, for the fifty dollars damages thereby found.”