as stated in the last ground, and permitted the trial to proceed after motion by the prisoner to exclude testimony from the jury until he was arraigned upon the bill of indictment."

I dispose of both of these two grounds in a word. There was no substantial difference between the presentment and the indictment. The variance in the allegation of time was not a matter of substance, consequently it made not the least practical difference to the prisoner whether he was arraigned on the one or on the other.

The sixth ground was, that "the court after objection by the prisoner, permitted to James T. Holeman to give testimony through an interpreter, the said James T. Holeman being unable to speak loud enough to be heard by the jury, on account of temporary weakness and debility-said testimony being communicated to the court and jury by Colonel George M. Dudley, he being called upon by the court, after the witness had communicated it to him in a whisper." If this ground be good, then the testimony of all persons speaking a strange language, as well as of all persons who are mutes, is to be excluded. But we know that the testimony of these persons is not to be excluded. That is admitted. It think that there is nothing in the ground.

The seventh ground was, I believe, abandoned. The eighth ground was, "that the court charged the jury that if they believed from the evidence the defendant took and carried away the negro Seaborn, the property of Markett, from the twentysixth court ground, or any other place in Sumter county with intent to steal said negro, the defendant is guilty; that it made no difference whether others aided and assisted or not, if the defendant actually perpetrated the theft; that if Holeman and Phillips both be guilty, that does not help this defendant.” I can see no fault in this charge. Indeed, I believe that this ground was also abandoned.

The ninth and last ground was, that "the jury found contrary to the evidence, and contrary to the weight of evidence." I think they did not. I think they had an abundance of evi dence to warrant their verdict.

The result is, that I think the court below also did right in overruling the motion for a new trial.

MCDONALD, J., delivered a dissenting opinion.

INDICTMENT CHARGING COMMISSION OF CRIME SUBSEQUENT TO DAY ON WHICH IT IS FOUND IS FATALLY DEFECTIVE: State v. Ray, 33 Am. Dec. 90, and cases cited in the note. The indictment must allege a day certain on

which the offense was committed: Mau-zau-mau-ne-kah v. United States, 39 Id. 279; and note to Cook v. State, 56 Id. 418.

INTENT WITH WHICH PROPERTY IS TAKEN FROM OWNER determines the guilt or innocence of one accused of larceny: See the note to State v. Holmes, 57 Am. Dec. 273, where the question is fully discussed.

THE PRINCIPAL CASE IS CITED in State v. Honig, 9 Mo. App. 301, to the point that one cannot be at the same time a principal in the larceny, and in the legal sense, a receiver of stolen property.

GRAGG v. RICHARDSON.

[25 GEORGIA, 566.]

JUDGMENT AGAINST PURCHASER IS EVIDENCE OF BREACH OF WARRANTY, when the purchaser brings ejectment to gain possession of the lands purchased, and vouches his warrantor, who takes part in the ejectment suit Such a judgment has the same effect as a judgment against the purchaser in possession, when ejectment is brought against him, and he vouches his

warrantor.

IF PURCHASER IS KEPT OUT OF POSSESSION BY PARAMOUNT TITLE, IT IS BREACH OF WARRANTY of title by the grantor, if the latter has notice. COUNSEL FEES PAID BY PURCHASER UNDER WARRANTY DEED IN SUIT TO GAIN POSSESSION of land purchased cannot be recovered in suit against the grantor for damages for breach of his warranty. The measure of damages in such a case is the purchase-money paid, with interest from the date of the deed.

COVENANT for breach of warranty by the plaintiff Richardson, under a warranty deed of certain lands made by the defendant Gragg. On the trial it was shown that the plaintiff, never having been in possession of the lands, claimed under this deed from Gragg; that he had brought ejectment against one Hill to gain possession; and that Gragg had notice of the suit, and participated in the trial of the case. The judgment in the ejectment suit was against Richardson and in favor of Hill, and hence the present action. Against the objection and exception of the defendant, the court permitted the plaintiff to show the amount of counsel fees paid by him in the ejectment suit. There did not appear to be any collusion between Richardson and Hill in the ejectment suit, and it was apparently prosecuted on both sides with vigor. The defendant requested the court to charge the jury that there was no proof of paramount title in any one in the ejectment suit, and that therefore the plaintiff therein w not entitled to recover; but the court refused the request, and charged that the verdict and judgment in the ejectment suit presupposed that paramount title was proved to be in the de

fendent therein, and that the judgment was presumptive evi. dence of that fact; and also charged the jury that the measure of damages, in case they should find for the plaintiff, was the original purchase-money, with interest thereon from the date of the deed, and also whatever was proved to them that was reasonable for counsel fees and the costs paid by the plaintiff in the ejectment suit. To all charges given and requests refused the defendant excepted, and now assigns such adverse rulings

as errors.

W. S. Rockwell, for the plaintiff in error.

Stubbs and Hill, for the defendant in error.

By Court, BENNING, J. In this case, Richardson, the purchaser holding Gragg's warranty, was never in possession. He Bued to get the possession, but failed in his suit, judgment going for his adversary, one Hill. Of this suit Gragg had notice; and he took a part in its prosecution. Was the judgment in this suit evidence of a breach of Gragg's warranty?

The ordinary case is this: the purchaser goes into possession, then the person holding the paramount title sues him for the possession, and he notifies his warrantor of the suit; judgment nevertheless, goes against him, and under it he is turned out of possession. And in this, the ordinary case, the judgment is evidence of the existence of an adverse title, paramount to that conveyed by the warrantor; and the eviction is under that judgment. In this, the ordinary case, then, the judgment and the eviction under it are together evidence of an eviction and a paramount title; and that makes the breach of a warranty.

What is the difference between this, the ordinary case, and the present case? In the ordinary case the purchaser, after getting possession, is turned out of it by a suit against him, of which his warrantor has notice; in the present case the purchaser can never get possession; not even by the aid of a suit of which his warrantor has notice, and in the prosecution of which he takes part.

The chance which the warrantor in the one case has of asserting his title is as good as the chance which the warrantor in the other case has of asserting his title; the purchaser who is prevented from ever getting the possession is at least as bad off as the purchaser who, having got the possession, is turned out of it; a judgment against the purchaser when he brings the ejectment, and vouches his warrantor, is as much evidence of an ad. verse title paramount to the warrantor's as is the judgment when

the ejectment is brought against the purchaser, and he vouches the warrantor. There is, then, no substantial difference between the ordinary case and the present case. This being so, then, the judgment in Richardson's suit against Hill for the land was evidence of breach of Gragg's warranty. It was evidence that Richardson was kept out of possession by a title paramount to that which he derived from Gragg. To be kept out of possession by such a title as that was a breach of the warranty. And if this be so, it seems manifest that the court below was right in the charges which it refused to give; and also in those which it gave, except And with that exception, we think that the court was

one.

right.

The exception is the charge that Richardson was entitled to recover of Gragg the fees he had paid his lawyers in the suit brought by him to recover the land. We do not know of any law to authorize this charge. None was read to us. We must therefore hold the charge as unauthorized, and consequently must order a new trial unless these fees are remitted. Nothing that has been said is to be construed as meaning that the judgment in the suit between Richardson and Hill is conclusive on Gragg.

Judgment reversed.

IMPOSSIBILITY OF GRANTEE OBTAINING POSSESSION OF LAND CONVEYED will support an action for breach of covenant of warranty without proving a technical eviction: Park v. Bates, 36 Am. Dec. 347; the covenant secures a legal entry, as well as quiet enjoyment: Caldwell v. Kirkpatrick, 41 Id. 36.

TO MAINTAIN ACTION ON COVENANT OF WARRANTY, plaintiff must show eviction or what is tantamount thereto: Estabrook v. Smith, 66 Am. Dec. 445, and cases cited in the note.

MEASURE OF DAMAGES FOR BREACH OF COVENANT OF WARRANTY is the consideration paid, with interest: Spring v. Chase, 39 Am. Dec. 595; Rich v. Johnson, 52 Id. 144; Swafford v. Whipple, 54 Id. 498; Willson v. Willsɔn, 57 Id. 320; Drew v. Towle, 64 Id. 309, and the cases cited in the notes thereto.

THE PRINCIPAL CASE IS DISTINGUISHED from Clements v. Collins, 59 Ga. 124, in that in the principal case there was notice given to the warrantor, but in the later case the plaintiff relied upon an ejectment suit against him, and did not show that he gave the warrantor notice.

BAKER v. BUSH.

[25 GEORGIA, 594.]

ADMINISTRATOR MAY RETAIN AMOUNT OF CLAIM BARRED BY STATUTE OF LIMITATIONS Owed to him by his intestate, even though the same was barred at the death of his intestate.

ADMINISTRATOR IS NOT BOUND TO PLEAD STATUTE OF LIMITATIONS against a debt due by his intestate to a third person, nor against a debt due from him as administrator to himself in his individual capacity.

BILL in equity by the complainants, Baker and others, to compel the defendant to account to them as distributors of the estate of Susannah Alexander, deceased, of whose estate he was the administrator, for certain money retained by him upon a debt due him by the deceased, but which was barred by the statute of limitations prior to her death. The court charged the jury that the defendant had a right to retain the money, to which charge the complainants excepted, and which they now assign

13 error.

Smith, and Ingram and Russell, for the plaintiffs in error.

Johnson and Bethune, for the defendant in error.

By Court, BENNING, J. Is an executor or administrator bound to plead the statute of limitations to a suit against him on a cause of action barred by the statute, at the death of the testator or intestate? It is certain that he is not if the letter of the statute is to govern. And it seems certain that he is not if decided cases are to govern: Norton v. Frecker, 1 Atk. 526; Castleton v. Fanshaw, Prec. Ch. 99; Ex parte Dewdney, 15 Ves. 498; Williams on Executors, 1283 (1535).

Shewen v. Vanderhost, 1 Russ. & M. 347, is hardly to the contrary. In that case "the lord chancellor [Lord Brougham] held that after a decree for an account of debts, etc., had been pronounced, and the court by that means had taken possession of the estate, the statute of limitations might be set up in the master's office, as well by a creditor or legatee as by a personal representative:" 2 Daniell's Ch. Pr. 157. When the court has acquired possession of the estate, the case becomes altered. The court then by the master becomes itself the representative of the estate, and the question whether the statute shall or shall not be pleaded becomes one for him, and ceases to be one for the executor (or administrator). "Whether the master himself is bound to take the objection, is a question which was discussed in the above case, but his lordship declined giving any opinion upon it:" Id.

AM. DEC. VOL LXXI-13.