By Mr. Justice Tíiorntox : This was an action of assumpsit, with iLe common counts, for work and labor done, &c. It ¡rspeared in evidence that there was a covenant entered into between the plaintiff and defendant, in which the latter co/cnauted to convey to the former by general warranty deed, a certain quantity ef laud therein mentioned, in consideration of certain clearing and fencing of other lands belay; first done and performed. This work and labor was that for which ike plaintiff now sought to recover remuneration.

Et dees not appear that iko defendant was invested with the title to the land which I:o had covenanted at a future time to convoy to'• the plaintiff. The plaintiff performed a portion of the work, and for that per- ■ tion now sought to recover in the present action. The court instructed the jury, that this suit would not lie if they believed the work and labor now sued on, was the same mentioned in the covenant, and commenced under it.

The question of law prelected by the assignment cf error, is whether, when a covenant is entered into between parties, whereby one covenants that he will do a certain act at a future time, in consideration of the performance by another of certain other act, as work and labor, and the act first to be performed is entered into and abandoned, without any new „ contract, or fraud alleged and proved in the covenant, the party so abandoning the work before its completion, can recover in the common counts, upon a quantum vdlebat. I feel satisfied he cannot.

If there had been a fraud practised by the 'defendant, either in the execution cr consideration of the covenant — or if it had been rescinded by the parties, then by a special action on the case; or in case of a rescission, perhaps on the common counts, a recovery might be had ; but whilst ’ the covenant remains in force, as it did for aught that appears in the case, it must constitute the foundation of the action, and be declared on. Judgment affirmed.