
    Alexander Rose against William Macleod.
    
      Charleston District,
    
    
      Feb. 1797.
    A bord in the penalty of} 6 negroes, conditioned for delivery of 38 on a certain day, amounts to covenant in law, to deli ver the 38 negroes on the day appointed ; and if defendant fails to deliver them, he is liable for the aver age value of them. And although the legislature p;ií>s an act to prohibit the imnoitaiion of slaves, so as to piw entibe specific delivery of them, the (¡I'fciKtant is still liable lor the real amount of their value in monev.
    THIS was an action on a bond dated November 10th, 1785, given by defendant to plaintiff, in the penalty of seventy-six new negroes, conditioned “to pay and deliver thirty-eight ne- “ groes, on the second day’s sale of any cargo defendant “ might choose, which he should import between that time “ and January 1, 1787, and if none should come by that “ time, a farther indulgence was to be- given till January 1, “ 1788, with interest of 7 per cent, to be paid annually.”
    Upon this bond, the plaintiff had brought an action of covenant, talcing the penalty and condition together, as amounting to a covenant to deliver thirty-eight negroes, &c. To this suit the defendant pleaded that the legislature of this state, in Biarch, 1787, passed a law prohibiting the importation of slaves from Africa, or other parts beyond sea, &c. under very severe penalties, which act put it out of the deferidant’s power to deliver negroes, according to the condition of the bond, and this special matter he pleads in bar of this action. To this plea the plaintiif demurred.
    Mr. Ford, for the plaintiif; Mr. Pringle and Mr. Ward, for the defendant.
    After hearing the defendant’s counsel, the court without hearing the counsel for the plaintiff, sustained the demurrer, overruled the plea in bar, and determined that this action of covenant would well lie. That although the intervening act of the legislature prevented the specific delivery of the thirt\ -eight new negroes, and the law so far dispensed with the specific performance, yet that the contract was not thereby rescinded, or the defendant absolved from all obligatory effect under it.
    That it was competent to the plaintiff, under the aver-ments in his declaration, (of the covenant to deliver thirty-eight negroes, and that they were of the value of 52/. sterling,) to go into evidence before a jury, who would fix the value of the contract and give a verdict accordingly. That the bond might be given in evidence to support the action of covenant, the essence of which is, to deliver thirty-eight negroes, and pay interest at the rate of 7 per cent.
    
    Present, Burke, Grimke, Watxes and Bay.
   The cause afterwards went to a jury, when after offering this bond in evidence, to substantiate the agreement as stated in the declaration, and proving the breach and value of the negroes, the jury gave a verdict for the plaintiff for the average value at 52/. sterling, round.  