¶1This 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,
¶2In 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.
¶3Motion for nonsuit granted.