¶1delivered the opinion of the court.
¶2This action was brought in the court below to recover damages for the failure of the appellant to make to the ap-pell§e, according to his covenant, a good and lawful title of *356⅛ right to a negro woman Ama, aud one half of her eliil - dren.
¶3The rnain question presented for the decision of this court , involves an enquiry into the amount of damages which the appellee should have recovered.
¶4Assuming the covenant not to have been broken until- the slaves were demanded by the appellee, we should have no t|0jjbt that the circuit court correctly instructed the jury, that the value at that time, formed the criterion lor estimating the damages.
¶5But as by the declaration the appellant is alledged to have sold part of the slayes, and the evidence clearly shews to have doije sq before the demand was made, in legal contemplation the covenant must have been broken by the sale, and not upon the demand; and as upon the sale the appellee might have immediately maintained his action, the value át that time should form the criterion by which the jury ought ts have estimated the damages, and the court consequently erred in not so instructing them.
¶6The judgment must therefore be reversed with cost, the cause remanded, and further proceedings had, not inconsistent with this opinion.'