
    Owsley vs. Beasley.
    
      December 9.
    Inan a£*!on that the’ Lte was 8‘v™ ⅛ dhe”u' negro for ,* months, and taken*8™ ⅛*?»biig« out or bispoifeffion W the expira', tion of the “me> ¡s no “ ⅛ fs 0“" a plea of \ Partial ⅛ Stephens, vo1, l> 5oa-
    Judge Owsley abfent.
   OPINION of the Court, by

Ch. J. Boyxk.

This action was brought upon anote under seal. The defendant, for plea, in substance alleged that the note was' given to the assignor of the plaintiff, in consideration of the hire of a negro tor twelve months; and that the negro was taken out of his possession by the assignor of the plaintiff against his wishes, and before the expiration of the twelve months.

To this plea the plaintiff demurred, and the court below gave judgment upon the demurrer for the deten-dant, to which the plaintiff prosecutes this writ of error.

We are of opinion the matter contained in the plea, is not in point of law a sufficient defence to the action,

If in contracts of this sort, the agreement on the part Of the proprietor to let a slave upon hire, is to beregard-ed as executory, the agreement and not the performance of the agreement, is to be taken as the true consideration of the agreement on the other side to pay the price; and unless by the terms of the contract, the payment of the price is made to depend upon the performance of the agreement to let to hire, a failure to perform the latter could not be pleaded in bar to an action brought for the nonpayment of the price.

But the agreement on the part of the proprietor to let a slave to hire, ought perhaps to be regarded rather as executed than executory, and in that point of view the services of the slave, and not the agreement to let to hire, is the true consideration of the agreement on the other side. But if the contract be considered in this light, still the plea in this case amounts to a denial of part of the consideration only; and according to the repeated decisions of this court, the plea is insufficient, and tha demurrer to it ought to have been sustained.

V The judgment reversed with costs, and cause remanded for proceedings to be had not inconsistent with the foregoing opinion.  