
    Strobel vs. Large.
    In an action of covenant on an agreement under seal, the plaintiff may res cover damages to the extent sustained without regard to the penalti/; but in deb!, only to the amount of the penalty. The recovery in either case ’ will be a bar to the other, 
    
    Assumpsit will not lie for the breach of a contract under seal.
    Tried before Mr. Justice Bay, at May Term, 1824,
    This was a foreign attachment, in assumpsit for work and labor, &c. and also on a contract under seal, which was' set out and declared upon in the declaration, and was found, ed on the same covenant or sealed contract which was sued 'upon in the last reported case, between the same parties, in which the jury gave a verdict to tlie full amount of the penal, ty. The writ was entered in the Sheriff’s Office, SOth June, 1817, at 2 o’clock, P. M. and the declaration filed 19th Jan. 1819, being exactly the hour and minute when the other' action was commenced, aiid the declaration filed. It was pro-póséd, on the part of defendant’s attorney, that this' case should 'he postponed, until Judge Huger, who tried the foriher case ánd who was temporarily absent, should resume his duty as 'presiding judge; the propriety of which proposal it was urged was made manifest by the fact, that the witnesses, many of whom were the same, testified as to facts and circumstances Which were the foundation of the verdict of the jury in the other cause. This proposal was rejected. A motion was then-made for a„ nonsuit, on the inspection of the record, it Seing manifest that this was an action On an implied assump-sit, when there'was a special contract under seal and tlie said contract let' out and declared upon. This motion was overruled; and a verdict found for the pláiritiíT.
    ’A triotion was now made' for a hótisuit, on the grounds;
    1st, That this was an action of assumpsit on a contract under seal,
    2nd. That the party, having shewn' by his declaration that there was an express contract, could not recover on the counts for work and labor, materials furnished or money laid out and expended for defendants use; but could recover only on the special contract or not at all.
    3rd. That the cause of action in this case, was the samé as that in which the same plaintiff had recovered the penalty of the contract with interest.
    
      
       See on this subject, Pothier an Obligations, 804, Evans' Ed.part 2d, ck, 5, art. 1. and Evans’ note, 2 vol. 81.
    
   Johnson, J.

This case arises out of the Same contract which was tried before, in the case between the same parties, at the present term. By reference to it, it will be seen that the defendant undertook to furnish the machinery and set up a' steam saw mill for the plaintiff, and that he was to send on a competent agent for that purpose, and for the faithful performance, each bound himself to the other in the penalty of $1000. The contract was under seal, and the former was an action of debt for the penalty; and this is an action of .assumpsit,to recover money expended by the plaintiff in supplying the deficiences and repairing the defe.c.ts of the machinery sent on by the defendant in pursuance of the contract. Independent of the written contract, there was no proof of any undertaking on the part of the defendant to refund this amount. The only attempt made to do so, was in showing that some of the materials supplied by plaintiff was done with the knowledge and sanction of the agent sent on by defendant; but there was no proof of any authority given him, except to put up the machinery which had been sent, . and could not therefore bind the defendant. And all the grounds of this motion may be resolved into the single question, whether the plainfifi was in this form of action entitled to recover back the -money thus advanced by him, if, as was fully proved, the machinery was defective and of no value? There can be -no - doubt on this question. All the books lay if down as a settled rule that assumpsit will not lie for the breach of a contract under seal, and in this- case, there is no proof of any contract, either express or implied, a part from the specialty, and to that the plaintiff must resort for his remedy,

Pepo on for the motion,

Holmes, contra.

In an action of covenant on that agreement, the plain-’ tiff might have recovered to the extent of the damages he hats sustained, without regard to the penalty; or in debt he may recover a sum equal to the penalty. The recovery in either case would, however, be a bar to the other.

Motion for nonsuit granted.  