
    Miller against Watson.
    where w gave M. a deed with warranty, and afteriedftat th™titie had failed; to^rXiid dl® eoiisideration" money which he had gtafg¿oda’ ^aianee due; yet sumpsit would not 1,6 t0 J0-that M.should a®t¡^a 4 04°
    tion of M. was no considtain tho promise
    debt is secured by 33 in" higher nature, record,d°ed ” promise to pay
    GifVi'RAL indebitatus assumpsit, for work, &c. money, &c. ami on an account stated, tried at the Seneca Circuit, 3 Septenrber 22d, 1S23; before Throop, 0. Judge.
    On the trial the plaintiff proved that his agent called on tlie defendant concerning certain land sold and conveyed by the defendant to the plaintiff, and for which the consideration money had been paid by the plaintiff. An action 1 1 J . . of ejectment had been brought against the plaintiff for this land. The defendant admitted that the title had failed, and struck a balance of what would be due to the plaintiff, wliich he promised to pay. This was subscribed by the defendant thus: “ Errors excepted, 15th July, 1816, E. Watson;” and delivered to the agent. The principal and interest of the balance, at the time of the trial amounted to $1549 85.
    The defendant gave in evidence a deed with a covenant of warranty, from him to the plaintiff, of the land in question, for the consideration of $655, dated December 15th, ±oiU«
    The defendant’s counsel then objected that the plaintiff could not recover, there being no proof of eviction from the land; and, therefore, no consideration to support the promise; and that the plaintiff should be confined to his reinedy upon the covenant in the deed. The Judge overruled the objection, on the ground that the defendant had acknowledged that his title had failed, which was a sufficient consideration; that the defendant’s promise was therefore valid; and the jury found for the plaintiff $1549 85 damages.
    
      J. C. Spencer, for the defendant,
    now moved for a new trial; and he cited 2 Caines’ Rep. 188, 192; 1 Rep. 1; Cro. Jac. 196 ; 1 Salk. 211; Doug. 654; 7 John. Rep. 26; 15 id. 234; 1 Chit. Pl. 302; 7 John. Rep. 36; 1 Chit. Pl. 94, 5, note (b); 2 John. Ch. Rep. 519; Cowp. 128,9; 2 T. R. 100; Moore, 340; 1 Roll. Abr. 570; 7 John. Rep. 21; 8 id. 384; 3 Caines’ Rep. 111; 4 John. Rep. 1; 3 John. Rep. 509; 1 Dal. 428.
    
      A. Gibbs, contra,
    cited 1 Caines’ Rep. 47; 3 John. Rep, 506 ; 2 T. R. 100; 2 Saund. 134: 19 John. Rep. 147.
   Curia, per Sutherland, J.

This action cannot be sustained. The parol promise of the defendant, on which it is founded, was simply to re-pay the consideration money, which he had received from the plaintiff, witft interest. That he was bound to do by his covenant of warranty, if the defendant had been evicted. The deed from the defendant to the plaintiff, bore date December 15th, 1810. The promise proved, was made on the 15th July, 1816, less than six years after the giving of the deed, when no interest had accrued, which the plaintiff was not entitled to recover, in an action upon the covenant of warranty. (3 Caines, 114. 4 John. 117.) The promise, therefore, was simply, in judgment of law, to perform the covenant; and it is well settled, that when a party hás a security of a higher nature, he must found his action upon it; and that, in general, where there has been an express contract under seal, assumpsit will not lie, upon a promise to perform it. The action must be either debt or covenant upon the contract itself. There is an anonymous case in Cowper, 128, in which it was held by Lord Mansfield and Mr. Justice Ashurst, that a promise by a defendant to pay a judgment obtained against him, in consideration that the plaintiff would stay execution, will not support an assumpsit. Lord Mansfield observed, that it was a new species of an action, and an attempt to turn a judgment debt into a debt upon simple contract. (Vid. also, 2 T. R. 100. 4 B.& P. 104. 2 Str. 1027. Cro. Jac. 506, 598. Com. Dig. 207, action upon the case upon assumpsit, (F. 1.) 1 Chit. Pl. 94, 5, note (b).

Nor is it clear that there was a good consideration to support the promise. The defendant’s deed does not appear to have contained any other covenant, than the covenant of warranty. And upon that covenant, there can be no recovery without eviction. There is no evidence of an eviction in this case, except what is to be derived from the admission of the defendant, that the title had Jailed, and that he would be compelled to refund the consideration money received; and the farther fact, that an ejectment had been commenced against the defendant. This certainly was very equivocal evidence in relation to a fact, which, if it existed, the plaintiff must have had the means of establishing by clear and explicit testimony.

The defendant may have been mistaken in the opinion that his title had failed. The ejectment suits may have oeen discontinued; and the plaintiff may have retained the quiet and undisturbed possession of the premises to the present hour. I do not think a jury would he authorized m finding the fact of eviction upon this testimony. If there was no eviction, the promise of the defendant was without consideration. Admitting that there was a cloud upon the title, or that it had entirely failed, the hostile claim may have been quieted, and purchased in by the plaintiff for a very small portion of the consideration money ; or the defendant may himself have quieted the title.

The form of action adopted by the plaintiff, dispenses with the averment and proof, on his part, of any of the circumstances which show that the defendant’s covenant has been broken, and that he has been damnified. I am, therefore, inclined to think, that there was no legal consideration to support the promise of the defendant; and if the plaintiff has been damnified, he must seek redress upon the covenant of the defendant.

There must be a new trial, with costs to abide the event.

New trial granted.  