#### Smith *against*Ware.

Whete Ianil is sold, and described in i he deed ss *supposed*to cODtaia a certain quantity# and a deficiency Is, after-wards, discovered, there is no obligation on the grantor to compensate the grantee for such deficiency; and a promise to pay for the same is without consideration, and will not support an action of *assumpsit*

IN ERROR, to the court of common pleas of the county of *Washington.*

This was an action of *assumpsit,*brought, in the court below, by *Smith,*the plaintiff in error, against *Ware,*the defendant in error. The declaration consisted merely of the money counts, to which the defendant pleaded non *assumpsit.*

The plaintiff claimed compensation for a deficiency in the quantity of land of a certain farm sold by the defendant to the plaintiff. At the trial the plaintiff read in evidence a deed from the defendant to the plaintiff, dated the 29th of *April*1807, by which the defendant, for the consideration of 419 dollars and 50 cents, granted to the plaintiff a certain lot of land, described as follows : “ All that certain piece or parcel of land, situate, lying, and being in the county of *Washington,*and town of Bolton, *258being the west part of lot No'.' 9., in a tract :of land granted to , *Wheeler*'D.óuglüss, by .-letters pateni,. the-. ISth-of *April,.1734,*bounded,, &c.', *supposed to •contain ninety-three acresW :*The, .plaintiff then proved, that a surveyor had been employed, and. paid.by the defendant/ to survey the land Which had been taken off from.'the West end of-the lot, sold , by., the defendant, to ,the ..plaintiff, by. the.survey made of the state, lands, by. the direction of the surveyor general, for the purpose of ascertaining the quantity'so taken . off ;.'both pagbies attended the.sürvey,-and,. also, two- chain bearers chosen by them ; the parties pointed out the lines which'were rün.by the surveyor,.and it was'aseertamedthat the quantity taken off amounted- ter 22..acre:s, 2 roods/,and 4 petiches,' and; it *was ^ascertained,*-at .the'same-time, that-the original -boundaries-Would not. include the quantity-of 93 acres,; ■ but- fell short S - or :6. acres. The. plaintiff offered to'prove a recognition, by the"defendant,.of his liability, and a promise to-pay-for the'deficiencybut the evidence was objected to, and a nonsuit' applied for; and the court decided that the evidence Was .inadmissible, and that the plaintiff should be. riopsuited, on the ground' that there was nb copsideration for the promise of the defendant.'. The plaintiff .refused' to be nonsuited, and ex»cepted to the opinion of the court; .and the- cause being left to' the jury, a verdict was found forthe- defendant. ' . . -

A bill of exceptions was sealed, and the cause brought, before this court by writ of error;. \

*Wendell,*for the plaintiffs

contended,, that thq ipdra-1- obligation to return, the, money was a- sufficient consideration to support the\ promise; and' he relied on the cases of *Howe*v. *Barker,*
      ***
      *and Houghtaling v.*Lewis,† as in point.'

*Z. R Shepherd,*contra,-

contended, that; if the defendant prof prised'1 under an ignorance of the law and the fact, he ought hot to be bound. .If- the court iaelowihuye, decided corfectl-y, it is sufficient, whether the reasons assigned 'by them -for their .decision be sound of riot. Thq, epyenarit can raise no implied *assumpsit,*and where there is a covenant, *assumpsit*Will not- lie..‡ If the 'plaintiff can recover, at all, it .must be on t'heriew pronrisé j and on that-the plaintiff should- have declared specially» There ' is no consideration tor that promise»

*259
      *Wendell,*in reply,

said, that the Case of *Howe*vv *Barker*showed that the form of declaration, in this case, was sufficient for the plaintiff.

3 Johns.*Rep. 506.*

10 Johns. Rep. 297.

3 *Johns. Rep.*508, 509. 10 *Johns. Rep*397. 2 Caines' Rep. 417 *1 Johns.*Rep. 414. 440.

Spencer, J.,

delivered the opinion of the court. It cannot be pretended that the defendant was. under any moral obligation, to pay for the deficiency in the quantity of land sold and conveyed to the plaintiff. There is no pretence of any fraud in relation to the sale, and the deed is very explicit in its terms. The land granted was truly described, and it is evident, from the deed, that the parties do not contract, in reference to any specific quantity of land; for the deed states, that the tract is_ supposed to contain 93» acres. There would be no mutuality between the parties, if we were to say, that the defendant was *morally*Bound to make up any deficient quantity, because it is very certain'that, had'there been an overplus, the plaintiff could not have been compelled to pay, for the excess. We have q right to infer, that the deed contains no covenant of warranty; the defendant, therefore, sold, and the plaintiff agreed to take the, land, under a conveyance containing no stipulations, either aa to quantity or title. Under these circumstances, a promise to pay for any of the land included in the surveyor-general’s survey was without a consideration.

There is much nice learning in the books, upon the point of moral obligation, and as to what is, or is not, a sufficient consideration to uphold a promise. The result of all the cases on, this head is, I think, admirably summed up in a note to 3 *Bos. & Pull.*249. “ An express promise, therefore, as it should seem, can only revive a precedent good consideration, which might have been enforced at law, through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original right of action,, if the obligation on which it is founded never could have been enforced', at law, though not barred by any legal maxim or statute provision.”

The judgment, in this case, must be affirmed.

Judgment affirmed,