
    
      Titus Lewis vs. Ralph McFadden.
    
    Action of covenant on an agreement, whereby, in consideration of five hundred dollars “ paid” by defendant, plaintiff assigned to defendant the services of a negro, on condition that, whenever the plaintiff repaid the sum advanced, the negro should be returned to him. The breach alleged ivas, that the defendant had retained the negro and had not paid the stipulated sum. The testimony showed that no money was paid, but that the plaintiff accepted the defendant’s note for five hundred dollars, and that, at plaintiff’s request, defendant paid, a few days after the date of the agreement, a note, due by plaintiff to a third person, for three hundred and fifty dollars. Reid, on this state of the pleadings and proof, that there was no breach of the covenant either alleged or proved, and the plaintiff was non-suited.
    
      Before Frost, J. at Chester, Spring Term, 1846.
    This was an action of covenant on an agreement, dated 9th January, 1840, whereby, in consideration of $500 “ paid” by the defendant to the plaintiff, the' plaintiff assigned to the defendant the services of a negro, on condition, however, that whenever the plaintiff repaid the defendant the sum advanced, the defendant should return the negro. The breach alleged was, that the defendant had retained the negro, and had not paid the stipulated sum ; and the damages claimed were the difference between the interest of $500 and the hire or value of the services of the negro, and the costs of certain judgments recovered against the plaintiff’, as it was affirmed, in consequence of the defendant’s default.
    The only witness sworn on behalf of the plaintiff, proved that he was present at the execution of the agreement. The negro was delivered to the defendant. No money was paid, but the defendant gave his note to the plaintiff for $500, payable one day after date. The plaintiff, at the time the agreement was executed, desired the defendant to pay a note of the plaintiff, held by Dunovant, thenamounff ing to about $350; and said he did not care to receive the balance until fall. The defendant did pay this note about ten days after. He also proved, that the defendant had offered to return the negro to the plaintiff, if the plaintiff would refund the amount of Dunovant’s note; but plaintiff refused, wanting the defendant to pay hire. This offer was made after the action was begun; and the witness thought, was also made when Dunovant’s note was paid. The defendant still had the negro at the time of trial, and had had him since the date of the agreement, except for a few days, when the plaintiff took him away.
    His Honor refused a motion for a non-suit, and, after testimony heard on behalf of the defendant, the case was submitted to the jury, who found for the plaintiff $22.
    The defendant appealed, and now renewed his motion for a non-suit.
    
      A.. W. Thomson, for the motion.
    -, contra.
   Curia, per

Butler, J.

When a plaintiff brings an action on a covenant entered into between himself and another, the mode and extent of his remedy must be controlled and limited by the terms and stipulations of the instrument declared on. They constitute the law of the parties quoad the particular action. For deceitful representations, in procuring the covenant to be made, or for fraudulent perversion of its provisions, in carrying them into effect, the párty injured may have a special action on the case. But this would be altogether beside the agreement, and would depend on the varying circumstances of each case. In the case before the court, we must look to the plaintiff’s own acknowledgements as connected with his right of recovery. Having acknowledged in the agreement itself that he had received of the defendant $500, he stipulates that the defendant shall have the services of his slave until that sum shall be repaid. In his declaration he does not allege that he has paid this sum, or has offered to pay it, and thereby is entitled to resume the possession of his property, blit alleges, in contradiction to the instrument containing his ac-knowledgements, that the defendant had not paid him the sum specified. This is an averment, not only against the terms of the instrument, under which he has asserted his remedy — and which, of itself, would be inconsistent with his right of recovery; but it seems to me to be an averment against the facts of the case as they came out in the evidence. Waiving his right to demand the ordinary currency, the plaintiff accepted from the defendant his note for $500, and has adopted and treated it as so much money. And as far as I can perceive, it has been, or may be, worth to him its estimated value. By virtue of this note, to the extent of $350j the plaintiff has had a pressing debt paid, and holds the balance reduced to judgment subject to his control. He has never repudiated the mode of payment, but seems to have assented to it, by choosing to regard defendant’s note as worth to him $500. Until he repays that sum he has no cause of action on this covenant. It seems to me then, that both by the terms of his agreement and his conduct under it, the plaintiff has shewn that he has no right to maintain this action.

We think, therefore, that his motion for a non-suit should be granted.

RichardsoN, O’Neall, Evabts and Wardlaw, JJ. concurred.  