
    Hickman vs. Searcy’s Executors.
    
    Debt and indebitatus assumpsit are concnrrent remedies upon all implied cotí* tracts, where the sum to be recovered is made certain, either by the- contract of the parties, or by operation of law,
    A and B sold a tract of land and jointly covenanted to warrant and defend the title; the vendee was evicted by paramount title, and recovered a joint judgment against A and B, upon their warranty. A paid the whole of the judgment Held, that he could sustain an action of debt, to recover from B, his propo fio» of the money paid.
    This was an action of debt, by the defendants in Crrdi', against the plaintiff in error, in which the following facts were agreed: “Thomas-Hickman and Robert Searcy, in his lifetime, sold six hundred and nine acres of land to William Outlaw, for eighteen hundred dollars, and made a deed with a joint warrantry of title, under date of 26th of February, 1805. Robert J. Nelson recovered this land, of Outlaw in the month of February, 1819, by ejectment, and turned him out of possession. Robert Searcy died in 1820, having appointed Stephen Cantrell and Jesse Blackfan- executors, who both proved the will and qualified in October of that L 1
    
    Outlaw’s heirs sued the executors of Searcy and Thomas Hickman, upon the covenant of warrantry, and in May, 1827, recovered two thousand one hundred and one dollars, and fifty cents, damages; upon this suit the executors pleaded, fully administered, and an outstanding bond to the United States, &c., which pleas were found in favor of the executors, and judgment rendered against them qucindo acciderint.
    
    Upon this judgment the heirs of Outlaw sued out a scire facias against the heirs of Robert Searcy, and on the 28th day of November, 1828, recovered judgment against them for two thousand one hundred and seventy-eight dollars, and recovered also nineteen dollars thirty-two cents, the costs of the suit against the executors. This judgment against the heirs of Robert Searcy, and the judgment against Searcy’s executors and Hickman, were transferred to JohnC. M’Le-more, and on the first of April, 1829, Stephen Cantrell, as executor of Robert Searcy, paid to M’Lemore, two thousand two hundered and twenty-five dollars and nineteen cents, being the amount of the judgments, with interest up to that time. Said payment to M’Lemore was made out of the personal assets belonging to said Searcy’s estate, in the hands of said Cantrell, executor, &c. The questionsjsubmitted to the court are:
    1st. Whether an action of debt can be sustained upon the above facts by Cantrell and Blackfan, as executors against Thomas Hickman? If so, whether the defendant can defend himself in the premises, by virtue of the statute of limitations; this suit having been commenced on the 2nd day of December, 1833?
    2nd. Whether an action of debt in the debet and detinet will lie under the circumstances? If the court shall be of opinion upon the whole case, that the law is for the plaintiffs, then judgment is to be entered for the plaintiffs against the defendant, for eleven hundred and twelve dollars and fifty-nine cents, with interest thereon, from the 1st of April, 1829, up to the time of the rendition of the judgment, and execution to issue, &c.; but if the court should be of opinion, that the law is for the defendant, then judgment is to he rendered for the defendant, and against the plaintiffs, that they take nothing by their suit and pay the costs, and that execution shall issue * - accordingly.
    And it is further agreed, that after final judgment is rendered in the circuit court, either of the parties being dissatisfied therewith, may prosecute a writ of error to the supreme court of errors and appeals, to be held at Nashville, according to the forms of law, and in the same manner in all respects as if judgment had been rendered upon the verdict of a jury.
    The circuit court rendered a judgment in favor of the defendants in error, from which Hickman prosecuted' this writ of error.
    
      R. J. Meigs, for plaintiff in error.
    The questions submitted to the court are: 1. Whether on these facts, debt will lie by Searcy’s executors vs. Hickman? In other words, will debt lie for contribution by one warrantor in a deed against his co-warrantors? we say not; and the true test, whether debt will lie or not, is whether the sum to be recovered has, upon the contract itself, a legal certainty. Hence it will not lie on any colleteral undertaking, where the sum to be recovered is uncertain, and sounds merely in damages. 1 Mason’s R. 296.
    Now, the action of covenant prosecuted by Outlaw’s heirs against the warrantors, sounds in damages, they being entitled to recover against the warrantor, the value of the land at the time of the contract, costs of defending the ejectment, &c. 2 Bl. Rep. 1078: 2 T. Rep. 52.
    The implied promise, existing between the co-warrantors is, that each will contribute his share towards the satisfaction of those uncertain damages.
    Ksliher the oo'-Uitself, nor the rules of law applicable to that specie ox eontaci, ascertain any determinate sum which shall be contributed.
    In the action by the purchaser against the vendors, on the covenant of warrantry, the law fixes the measures of damages, but not the amount, which last essentially depends on facts in pais.
    
    
      Charles Scott, for defendants in error.
    1. An action of indebitatus assumpsit lies by a joint contractor to recover money paid by him for his co-contractors upon the contract, when both are equally bound. 5°Yerg. Rep. 261: 17 Mass. Rep. 464: Gow on Partnership, (side paging,) 101, 102, 103, 105: 8 Term Rep. 186: 2 Black. Rep. 947: 5 Vez. 792: 16 Eng. Com. Law Rep. 375: 1 East Rep. 220: 2 Littel’s Rep. 46; 2 Bos. & Puller, 371: Cary on Part., 5 Law Library, 26: 2 Bar & Al. 51: 3 East, 169: 3 Gill & John. 40: Cornyn on Contracts, 401.
    2. Where ope joint contractor pays all the money due from both, it is money paid to the use of the other. Co-myn on Contracts, 403, 404: Chitty on Contracts, 180.
    3. If indebitatus assumpsit will lie, debt will, because debt lies for a sum certain, or that which may be reduced to a certainty upon a contract either express or implied. In such cases they are concurrent remedies. Knapp vs. Har-ford, 6 Conn. Rep. 170: 1 Peter’s Cir. Rep. 145: 1 Mason’s Rep. 243, 482: I Chitty on Plead. (6th Ame. from 5th Lond. ed.) 123: -3 Com. Dig. (Action of Debt, A. 8, A. 9,) 370, 372: 1 Wheat. Sel. 402: 1 Douglass Rep. 6: 8 Pickering’s Rep. 178: 8 Wheat. Rep. 642. The inde-bitatus count, in debt, and in assumpsit are very similar. See 2 Chitty’s Pleading.
    4. Debt lies for'money due upon all legal liabilities, under seal or not. 1 Chitty’s Pleading, 12: Com. Digest, Debt. A. 9. It lies upon all contracts, express or implied. Ib., Com. Dig. Debt. A. 1.
    It lies to recover money lent or paid, for the use of another. Ib. 124, Com. Dig. A.: 5 Yerg. Rep. 265. It lies upon every contract in deed, or in law. Ib. 125: 1 M’Clell. & Young, 457.
    In fact, until Slade’s case, 4 Co. 81, the opinion prevailed, that no action but debt could be sustained upon a simple contract for a sum certain, or for any money demand. 1 Chitty, 
      112: 4 Coke, 81: but in that case it was decided; that the plaintiff had an election, to bring either assumpsit or debt?
   TuRLEr, J.

delivered the ópirííoií of the court.-

The only question made by thé plaintiff in error, dpon the case agreed, is, whether this action of debt is well brought. It has long been settled, that the action of debt and indebita-tus assumpsit are concurrent remedies upon all simple contracts, where the sum to be recovered is made certain, either by the contract of the parties, or by operation of law; indeed the action of indebitatus assumpsit only became the common remedy upon such contracts, in order to avoid the wager of law, allowed upon actions of debt, as the action of debt is now about to supersede the action of indebitatus assumpsit, to avoid the operation of the statute of limitations of three years. Is the sum sought to be recovered in this case specific and certain? Unquestionably it is so, by thé operation of law. A joint judgment had been obtained against the plaintiff and defendants ip error, which was paid by the defendants. What does the law say upon this? that, as to one half of the amount, it is money laid out and expended for the use of the plaintiff by the defendant, and implies a promise to pay it; no other action than debt, or indebitatus assumpsit, could have been brought, for the contract is not express, but implied. Let the judgment be affirmed.

Judgment affirmed.  