KEETON vs. SCANTLAND, 1 Hard. 149

Edwards, Ch. J. delivered the opinion of the court. •The case of Grant vs. Groshon , determined in this court, at the last term, settles the doctrine, that whenever property is to be paid on a day certain, the declaration need not contain an averment that the plaintiff demanded it at the defendant’s residence. Henderson vs. Stainton , also decided at the last term, settles the question, that whenever the contract of the parties is for property, judgment cannot be taken without a jury to find the damages. The court consider the declaration to which the other exception is taken, defective and erroneous.

Littell. — I wish the court to re-consider the second P°int* 111 Henderson vs. Stainton, it was a penal bond, and the penalty was to secure what the creditor might have a right to, A jury was therefore proper to inquire of the damages. I understand these notes to be for Si. in cash, which the party might discharge in trade. Judge Logan. — .This case will not come within your distinction. The notes are for “ Si. in trade.” Judge Trimble. — -I consider the sum here, as a measure for the quantity of property, as much as if a contract called for ten bushels of wheat. In the case of Stainton vs.

Henderson, the court considered the condition of the bond as the true contrast; and decided that where the real Contract was for property, a jury ipust assess the damages.- — ,—Judgments, reversed. Ante 85, ⅛) Antt nía Same point decided in Lynch vs. Barr, pr. dec. 197, and in Tunftall vs. Barbour, Spring 1805 — See alio, Conn vs. Jones, ante 8, Tamen yuere de 'hoc.