
    Cliborne Anderson and Thomas Crosby against Levi Solomon.
    brau1iTpfor a ranty contained in a deed under beUgilt to bee cove-Si-edf
    This was an action of assumpsit, brought to recover back the pnce oí a negro woman, under ,. * ° a warranty contained in a bill of sale under seal, that the woman was sound. The plaintiffs produced their bill of sale under seal, and proved it, and then proved a breach of warranty. The counsel for the defendant moved for a nonsuit, on the ground, that the action should have been covenant, and not assumpsit.
    The presiding Judge, Mr. Justice Smith, overruled the motion, and the defendant has brought up the case for a reversal of the decision of the Judge, on the law of the case.
   The opinion of the Court was delivered by

Mr. Justice Gantt.

Assumpsit cannot be supported, when there has been an express contract under seal, as in the present case, but the action must be, in such case, debt or covenant. It is also a rule that when a bond, or other security under seal, has been accepted in satisfaction of a simple contract, the latter is merged in such higher security ; and assumpsit is not sustainable. (See first Chitty’s Pleading, 94, 5, 6, and the authorities there referred to: also, Cro. Jac. 505. 2 Bacon Ab. 67. 3 Blacks. Com. 158. 3 Comyn’s Digest, 263.)

I am of opinion the motion for a nonsuit should r prevail, the action of assumpsit not having been the proper remedy on an express warranty by deed, but that the action should have been covenant.

Grimke, Colcoclc, JVott, Cheves, and Johnson¿ J. concurred.  