
    Murphey vs. Goin.
    P. Murphey gave his covenant to Goin ,to re-deliver a hired slave at the end of twelve months, and at the time of the, delivery an execution against W. Murphey was levied upon him: Held, that the delivery was a valid delivery and a discharge of the covenant, notwithstanding the subsisting levy.
    On the 5th day of February, 1834, Levi Goin hired a negro boy to Pleasant Murphey for the period of twelve months from that date, by an article of agreement, under seal; Mur-phey bound himself to pay Goin fifteen dollars for the hire, clothe the boy during the time, and to re-deliver him at the expiration of the hiring.
    On the 7th day of February, 1835, in the town of Taze-well, in the county of Claiborne, Murphey pointed to the negro (he being in the possession of no one at the time) and said to Goin, “there is your slave, gó and take him.” Goin went to him and took him by the arm. About the same time, C. B: Bullard, sheriff of Claiborne county, having in his hands an execution against W. Murphey, took the negro by the other arm; a scuffle ensued and Bullard succeeded in taking the negro; he advertised him for sale-, as the property of W. Murphey, under the execution; Goin claimed the property, and on the day of sale Goin forbid the sale, claiming the property. The sheriff, however, being indemnified, sold the boy for the sum of three hundred and forty-five dollars.
    On the 6th day of October, 1836, Goin instituted an action of covenant in the circuit court of Claiborne county against Murphey on the agreement.
    At the December term, 1836, he filed his declaration, setting forth the covenant and assigning as breaches thereof; 1. That he had not clothed the said boy. 2. That he did not deliver said boy to him at the expiration of, twelve months from the date of the contract, as he had covenanted to do.
    The defendant demurred to this declaration; and assigned as causes of demurrer: 1. There is no sufficient breach assigned. 2. There is no demand of the slave and refusal to deliver,.
    
      The plaintiff 'mined m demurrer, and this demurrer was overruled and delendant permitted to plead.
    Defendant then pleaded’: 1. Covenants performed. Upon this plea issue Was tákén. 2. That the slave, at the timé of the hiring, was the property of William Murphey, and not thé property of Goin; that whilst in the possession of defendant he was levied upon as the property of William Mmd phey and taken out of the hands of defendant, and so held for a long time, and withheld by force of law from the defendant; and so defendant says by the fraud of said plaintiff and by the levy aforesaid he was prevented from keeping and performing his covenants, &c.
    The plaintiff demurred to this plea. It does not appear that this demurrer was ever disposed of.
    The issue of fact was submitted to a jury at the September term, 1837, upon the facts in evidence as above set forth; with proof of value. R. W. Anderson, presiding judge'; charged the jury, amongst other things not excepted to, that this was an action of covenant founded upon an article of agreement signed by both the parties on the 7th day of February, 1834; that the article must be construed in its legal sense; that the court codld not alter it nor make men’s bar-^ gains different from what they were; that the article of agreement must be complied with by a delivery effectual and in good faith, and that if the delivery took place after thé slave was levied on it was no delivery in law, and he should be delivered free from all incumbrances. The court further charged the jury that they were the judges of the fact of delivery.
    The jury rendered a verdict for the plaintiff for the sum of four hundred and forty-fouf dollars and thirty-seven and a half cents. A motion was made for a new trial, and being overruled the defendant appealed in error to the supreme court.
    
      Peck, for plaintiff in error.
    
      Gray Garrett, for defendant in error.
   Turley, J.

delivered the opinion of the court;

This is an action of covenant brought to recover damá-ges for the non-delivery of a slave, hired by the plaintiff in error from the defendant, upon the following covenant:

“Articles of agreement made and entered into between Levi Goin, of the county of Claiborne and State of Tennessee, of the one part, and Pleasant Murphey of the latter part: Witnesseth, that the said Levi Goin doth hire a negro boy, Philip, about eight years old, for twelve months; and the said Murphey is to give the said Goin fifteen dollars for said hire, and to find the said boy in clothes, and to deliver the said boy to the said Goin at the end of the twelve months.”

Upon the trial it appeared that at the.end of the twelve months the negro was delivered to the defendant in error; but that he had been previously levied upon by an officer of justice by virtue of an execution against one William Mur-phey, and that he was -taken from the defendant by the officer and sold to satisfy the debt specified in said execution. Upon these facts the circuit judge charged the jury “that if the negro was delivered after he had been levied on it was no delivery in law; that he must have been delivered free from all embarrassment.” This charge is erroneous. In the case of Graham vs. Swearingin, 9 Yer. 276, this court, in giving a construction to a similar covenant, say, “the whole question of course turns upon the construction of the covenant, and is, whether the promise to return or re-deliver the negro, because expressed in writing and under seal, shall be construed as a special contract and undertaking, constituting in its legal effects the defendant an insurer, and binding him at all events to return and re-deliver the negro. We answer this question in the negative, both upon authority and principle.” In that case the negro was not delivered because he had absconded, without the neglect or default of the Hirer, and could, not be re-captured, and it was held that the hirer was not responsible upon his covenant to re-deliver. We think that case directly in point and conclusive upon the present. What neglect or default has the plaintiff in error been guilty of? None whatever. He has complied with his contract in its very terms; he re-delivered the negro at the time specified, and if there were any incumbrance upon him it was not of his creation. Could he by any means have prevented antilegal levy by a sheriff or a constable? It was not for his debt or by his procurement, and there is no principle of law by which he can be held responsible for it.

The redress for the defendant in error is either against the officer who sold the negro or against the purchaser. The judgment will therefore be reversed and the case remanded for a new trial.  