
    William Garrett vs. John Stuart.
    The otily cases in which a party can aver against the consideration expressed in his own deed are when it is illegal or fraudulent; and a person cannot allege that a bill of sale was not given by him at the time the contract was entered into, but three or four weeks afterwards,
    promises made on a consideration that is wholly past, without any new consideration moving to it, are void ; hut it seems, circumstances growing out of, and connected with the original contract, and an infinite variety of others, may constitute a new legal consideration. 
    
    A party cannot at law, by parol testimony, shew a different consideration from the one expressed in a deed; hut it may be admitted, it seems, to show a greater or less of 'he same character.
    In covenant on a deed for breach of warranty of soundness of a-negro slave, the measure of recovery is to the extent of the injury which the party sustains by the infraction of the covenant, whether it be. partial or total, and must necessarily depend on the circumstances of the case.
    In special assumpsit, for breach of warranty, it seems, that the consideration paid, is not necessarily the measure of damages, but, under particular circumstances, a jury may give more; although in most cases it would constitute the best evidence of injury sustained; yet in actions sounding altogether in damages, it seems that the measure of recovery must depend on circumstances. ,
    
      Covenant and general indebitatus assumpsit, for money paid by mistake, or a consideration wholly failed, are not to be confounded ; in the latter, the consideration paid and interest, is the measure of damages.
    Tried at Laurens, Fall Term, 1821.
    ThIS was an action of covenant on a deed, in the form of a bill of sale, made by the defendant to the plaintiff, conveying title to a negro man slave called Spencer, and warranting his soundness ; in which the consideration expressed was one thousand dollars, and the breach assigned was the unsoundness of the negro.
    In addition to the evidence on the question- of soundness or unsoundness, it came out that the bill of sale had not been'executed at the time the contract was entered into, and the negro delivered, but at the distance of three or five weeks afterwards, and that the true consideration was another negro given by the plaintiff to the defendant in exchange s and not the’' sum mentioned.
    
      The jury found for the plaintiff g 1000, and the defendant now moved for a new trial on the following grounds :
    1st. The bill oí sale being executed after the sale and delivery of the negro, was without consideration, and therefore void.
    2d. Misdirection of the presiding judge in charging the jury that the only true measure of recovery was, the amount of the consideration mentioned in the deed, and interest thereon.
    
      
      
         See ante, Massey vs. Craine, 439.
    
   Mr. Justice Johnson

delivered the opinion of the court.

As a general position, applicable' to parol contracts, there is no doubt about the principle involved in the fiist ground of the present motion. Promises made on a consideration that is wholly past, without any new consideration moving to it, are void, as being, without consideration. Circumstances growing out of and connected with, the original contract, and an infinite variety of others unnecessary to the present case, may constitute a new legal consideration. This question, however, has no application to the present case. This action is founded on a deed, and the only case in which a party is permitted to aver against the consideration expressed, is.where it is illegal or fraudulant. (Bruce vs. Lee, 4 Johnson 410.) The deed itself imports a consideration, against which the party is not permitted to aver, except in the two preceding cases. (Peake 119, Randall’s Ed. 1 Binny 502-19. 4 Johnson 416.)

The arguments on the second ground of the motion háve been directed principally to the question whether the party can be permitted to shew a different consideration from that mentioned in the deed ? The general rule is, that parol evidence shall not be admitted to contradict or vary the obvious import of a deed; but I find there is great diversity of opinion in its application, in equity it seems that the consideration is always examinable; but by a reference to the cases collected and arranged in a note in (Peake, 112-117, Randall’s Ed.) it will be seen that the diversity of opinion in the law courts ir, so great as to lead to a confusion almost inexplicable. Legitimate considerations are cither good or valuable ; and after some attention to the subject my mind inclines to the conclusion suggested by one of my brethren, thát the distinction is, that where one of these is expressed, parol cannot at law be admitted to shew the other, but that it may be admitted to shew a greater or less of the same character. Rut this question, like the former, does not appear to me to hear on the present case.

This it will be recollected is the action of covenant; an : action sounding altogether in damages; and the mtasure of recovery is to the extent of the. injury which the party sustains by the infraction of the coven’', t, whether it ho partial or total, and must necessarily depend o.n the particular circumstances of the case. Thus, in the case oí Eveleigh vs. Administrator Stitt, (1 Bay 89,) the court, in an action on a warranty, say, that the value of negroes at the time the purchaser was deprived of the possession by title paramount, is the measure'of damages ; but under particular circumstances the jury were justifiable in departing from it. (See 2 Nott & M'Cord 201.) So in the case of Rose & Rogers vs. Beattie, (2 Nott & M'Cord 538,) which was'a special assumpsit, the court say, that th'e consideration paid is not necessarily the only measure of damages ; but that under particular circumstances a jury may give more; and although the consideration paid might in most cases constitute the best evidence of the injury which a party sustained, yet in actions sounding altogether in damages, it seems to me to follow of necessity, that the measure of recovery must depend on the particular circumstances of the case. The error in this case arose probably out of confounding covenant with a general indebitatus assumpsit, for money paid by mistake, or on a consideration which has wholly failed ;*then the general rule is as expressed in the opinion of the court below. The jury were doubtless influenced by this opi ilion, and it furnishes, I think, a sufficient reason for send* ing the case back.

¿•'arrow, for the motion.

Downs, contra.

The motion is granted.

Justices Colcock, Nott and Finger., concurred.  