Graham vs. Swearingin et al., 9 Yer. 276

Reese J. delivered the opinion of the court. The question before us is, whether the circuit court erred in overruling the demurrer to defendants plea. The whole ’tion of course, turns upon the construction of the above covenant, and is whether the promise to return pr redeliver the negro, because expressed in writing and under seal, shall be construed as a special contract and undertaking, constituting in its legal effect the defendants insurers, and binding them at all events to return and redeliver the negro?

We answer this question in the negative, upon the authority of the cases to which we shall refer, and if we could look in this case to the sense and understanding of society, and the course of contracting and dealing in such cases, for the purpose of putting a construction upon the instrument, as we can look upon the nature and character of the property which constitutes the subject of this contract of bailment, the question upon principle also, would be clear of all difficulty. In the case of Harris vs.

Nicholas, 5 Munford’s Rep. 483, the covenant was “for the hire of four negro fellows the present year, who are to be returned well clothed, on or before the 25th of December, I promise to pay,” &c. Breach assigned “that one of the negroes was not returned,” &c., plea that the negro in question departed this life before the 25th December.

Judge Roane pronouncing the opinion of the court says, “that if the covenant stated in the declaration can be considered as a covenant to return the negro in question, as well as to coerce the payment of the money due for his hire, it ought not to be considered as a covenant to insure such return in the event which has happened, especially under the usage and understanding of this country in relation to the subject.” The principle of that case is identical with the one before the court. That courts construe covenants with reference to the subject and natuiWof the contract, is shown in the case of Lockridge vs.

Carlisle, 6 Randolph’s Rep. 20. The covenant was in these words, “received of. John Carlisle notes on men in Virginia for collection to the amount of nine hundred and ninety-six' pounds, which I will be bound to him for the amount: given under my hand and seal,” &c. The court says the covenant was not to pay at all events, but that her would use reasonable diligence in collecting the debts and would pay the amount collected, upon request. Yielding to the authority of these cases, we are of opinion that the judgment be affirmed. Judgment affirmed.-