Assumpsit on the following note, viz.: —■

“ Pejepscot, Aug. 7, 1816.

“ For value received, I promise to pay Charles Merrill, cr order, 50 dollars, on demand. The consideration of the above note is this, that, if John Merrill shall permit Charles Merrill the free use of the washroom and hoghouse with himself, so long as the same shah stand, then the above note to be void ; otherwise, to remain in full force. John Merrill.”

In the Common Pleas, on trial upon the general issue, the jury returned a verdict for 12 dollars, under instructions from the court that the sum of 50 dollars, inserted in the note, was to be considered in nature of a penalty; * and that they *435were to give their verdict for such sum only as would indemnify the plaintiff for his actual damages.

Exceptions to the said instructions were filed by the plaintiff; and the action being brought into this Court by virtue of the late statute, (1) the judgment of the Common Pleas was affirmed, the Court holding that the sum mentioned in the note was rightly considered by them as a penalty, and not as liquidated damages, (a)