delivered the opinion of the Court,-

The ground taken by the counsel for the defendant, that the action is misconceived, cannot be supported. The action of covenant is the only proper action on the instrument. But I am of opinion there is a fatal defect in the declaration; it contains no averment that the defendant and Caller had the use of the negroes for the time specified in the covenant. The clear intention of the parties was, that the money should be paid upon condition the services of the negroes were rendered, and it was therefore necessary that the declaration should have contained an averment that those services were rendered. The Court did not err in arresting the judgement, and the judgement below must be affirmed.