Anderson v. Solomon

9 S.C.L. 329

• Court: Supreme Court of South Carolina
• Decided: May 15, 1818
• Status: Published

Opinion

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.