#### WINSLOW & CANNON vs. EXUM STOKES.

Where in an action for breaches of a covenant, the plaintiff was entitled to prospective damages, that is, damages accruing subsequently to the bringing of the suit, and under the erroneous instruction of the Court, only damages to the time of the trial were given, this affords no ground for bringing another action for the same breaches.

Tms was an action of covenant, tried before bis Honor, Judge Manly, at tlie Spring Term, 1856, of Perquimons Superior Court.

The action was brought ón a written covenant in relation to the superintendency and management of a saw-mill. The pleas were covenants performed, former suit, and recovery for the same cause of action.

It appeared . upon the trial below, that a former suit had been brought upon the instrument in question, and the same breaches assigned as in the present case; also, that the plaintiff had recovered damages for these breaches, and received satisfaction for the same before this suit was brought.

Upon an intimation from his Honor that this appeared to be a full answer to the suit, tbe plaintiffs offered to show that the jury on the former trial were instructed by tbe Court to give damages up to the time of the trial, and for no longer time; but his Honor being of opinion that this would not alter the case, refused the testimony, and the plaintiffs excepted.

Yerdict and judgment for defendant, and appeal by the plaintiffs.

No counsel for plaintiffs.

Jordan, for defendant.

Battle, J.

The recovery in the former suit upon the same covenant in which the same breaches were assigned was, we think, a bar to the present action, and his Honor properly ruled out the testimony which was offered to show that full damages were not then given. The covenant was, in the particulars mentioned, one and indivisible, and upon a breach of *286it, tlie plaintiffs were entitled to the whole amount of damages, present and prospective, caused by such breach. If the damages were restricted in consequence of instructions from the Court, it was an error which the plaintiffs, by taking the proper steps, might have had corrected in that action. Their omission to do so cannot give them the right to harrass the defendant with the expense and trouble of another suit. Eor the distinction between the cases where prospective damages, that is, such as have accrued since the commencement of the suit, may, and where they cannot, be given, see the case of Moore v. Love, decided at the last term, and reported ante 215, in which the subject is fully discussed.

Per Curiam.

Judgment affirmed.