Atkins & Company vs. Cobb.

they believed the defendants, "after they had received the bacon and inspected the same and knew its quality, made payments on the draft, the jury can look to all the facts and see if they have a right to set up the plea of failure of consideration, and if not, are bound to pay the entire balance due on the draft." Even if this charge is not objectionable for assuming inspection, etc., before the payments were made, it seems erroneous, for the reason that it submits to the jury for their decision a question of law, namely: whether the defendants had a right, under the circumstances named, to set the plea of failure of consideration. We think, as matter of law, that the defendants did have the right, and the judge should so have ruled instead of referring the question to the jury. Whether the plea was true was for the jury; but whether the defendants had a right to set it up, notwithstanding partial payments had been made, was for the court. By plea of "failure of consideration" we take it for granted that the court meant partial failure of consideration, for that was the kind of plea filed; not one of total failure.

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7. The object of the plea was to obtain an abatement of the purchase money for defect in quality of the bacon. The evidence tended to show that some of the bacon was unsound; that it was bought for first quality, and turned out to be, as to a part of it, far inferior; indeed, quite, or very nearly, worthless. The agreed price was thirteen and a half cents, and the actual average value, according to the evidence of one of the defendants, was not more than eight cents. The plea alleges that it was not above nine cents. The true rule of abatement, in the absence of special damages, is to reduce the agreed price as much as the actual value is reduced by reason of defective quality. Where quality is warranted, expressly or by implication, that much abatement, at least, may be exacted by purchasers, whether, on re-sale, they actually sustain loss or not: 46 Georgia Reports, 261, 464. What is realized on re-sale may illustrate value, but, except for that purpose, is not pertinent to the issue. The court erred, therefore, in charging the jury that defendants must show what

Atkins & Company vs. Cobb.

amount they lost, and if they have lost nothing, the plaintiffs are entitled to recover the full amount sued for, whether or not the bacon was of the quality sold, or whether it was worth full price or was of little or no value.

8. A certain parcel of the bacon was sold in bulk by the defendants, and was afterwards ascertained to have been unsound and unsalable. The purchaser being on the stand as a witness for the defendants, he was directed by the court to state the price at which he purchased. Having answered that it was eighteen cents, he was not permitted by the court to add that he paid "Kimball currency," which was, at the time, uncurrent, and that he would not have purchased if he had had to pay in any other currency. What the price represented was as material as the price itself. When an actual sale is proven to illustrate value, the kind and value of the funds in which payment is to be made, should be taken into account. But the court, throughout the trial, seems to have gone upon the theory that though the bacon was unsound, the verdict was not to be governed by the question of value, but by the fact of loss or no loss to the defendants. This theory, as we have seen, was wrong. Yet, even upon this erroneous theory, we are unable to see why the court excluded the evidence under consideration. Surely if eighteen cents in "Kimball currency "was less than eighteen cents in money, the defendants lost more in a given transaction than if they had sold for money instead of the "Kimball currency."

9. The court was right in excluding evidence, in general terms, that the defendants sold much of the bacon for "Kimball currency," and that the currency was a total loss. What was the bacon worth? Transactions in it which did not throw light on that question could have no proper place in the testimony.

We abstain from expressing any opinion of our own upon the sufficiency of the evidence to uphold the verdict. We have confined ourselves to correcting what we deem errors of law committed by the court. For these errors a new trial is granted.

Jordan vs. The State of Georgia.

JOHN JORDAN, alias JOHN STEGER, plaintiff in error Us THE STATE OF GEORGIA, defendant in error.

I. An indictment for this offense under section 4488 of the Code, should allege that the principal thief has been tried and convicted of the offense; if such principal cannot be taken so as to be prosecuted and convicted, then the accessory in receiving the stolen goods should be indicted under section 4489 for a misdemeanor.

2. Under an indictment for being accessory by receiving stolen gooods when the principal thief is only charged with simple larceny, the evidence should be confined to that, and it is error to admit an indictment for burglary and a plea of guilty thereon.

3. The indictment should specify the particular offense of which the principal thief was convicted, whether larceny from the person or the house or simple larceny or burglary, so that the record of the court—the pleadings— shall show that the judgment or sentence is right according to the case made. The punishment of the accessory varies with that of the principal. In burglary in the night, it may be twenty years in the penitentiary, in larceny from the house, ten years, while in simple larceny it would be fine or imprisonment in jail, or work in the chain-gang.

Criminal law. Accessory. Indictment. Before Judge TOMPKINS. Spalding Superior Court. August Term, 1875.

Reported in the opinion.

HUNT & JOHNSON, for plaintiff in error.

T. B. CABANISS, solicitor general; E. P. HOWELL, by Z. D. HARRISON, for the state.

JACKSON, Judge.

This case was an indictment for being an accessory after the fact in receiving goods stolen from another. The indictment did not set out that John King had been convicted or charged with any offense at all, or tried for any offense. It simply alleged that the defendant received from John King a gold watch worth $100 00, the property of one J. N. Rosser, knowing that it had been stolen and taken and carried away from Rosser before that time. There is no allegation that in taking and carrying the gold watch away, that it had been taken from

Jordan vs. The State of Georgia.

a house, so as to make defendant accessory to larceny from the house, nor that it had been taken in a burglary, so as to charge him with being accessory to that crime; yet the court punished the defendant for being accessory to larceny from the house, of which there was no charge at all; and admitted a bill of indictment for burglary against John King, with his plea of guilty thereon. We think this bill of indictment, if good at all, only good to charge that defendant was accessory to simple larceny, and that the proof should have been confined to that, and the punishment should have been the same as for simple larceny. If the proof make a case of larceny from the house the indictment should allege it, so that the record will show that the judgment or sentence of the court accords with the indictment. The punishment for such an offense may go up to ten years confinement in the penitentiary. If the proof make a case of accessory to burglary, the indictment should charge that offense on John King, when the punishment may go as high as twenty years, if at night, as was this proof. The punishment of the accessory varies with that of the principal: Sections of the Code 4488, 4388, 4414, 4310, 4489. In this case even larceny from the person is not charged, but the offense charged is that of being accessory only to the offense of simple larceny, and punishable under section 4310 of the Code; that is to say, just as ordinary accessories after the fact are punishable. We think, therefore, that the court erred in admitting the record of the burglary and plea of guilty thereon and all parol evidence of larceny from the house. The charge is accessory to simple larceny; the proof should have been confined to that. But is the indictment good even for that? We think not. It does not allege the conviction of King for any offense. The Code, sections 4488 and 4489, construing them together, seem clearly to provide that unless the principal thief can be taken and convicted, the accessory must be indicted for a misdemeanor. If, therefore, the indictment be under section 4488, it must allege that the principal thief has been convicted of the larceny or burglary by which the goods received were stolen. We

Harris vs. Glenn et al:

can see no other sensible construction of these sections. This, too, was the rule at common law: 4 Blackstone, 263. It was more stringent, indeed, requiring sentence and punishment. The statute of Anne altered the rule so as to provide for the trial of the accessory after conviction, if he escaped before punishment. So these sections provide for indictment as a misdemeanor if the principal cannot be taken. We therefore think that this indictment should be quashed, and a new indictment be framed to conform to the facts here proven; if desirable to indict again, it should be distinctly alleged that John King got possession of these goods by the burglary of which he was duly tried and convicted, and this defendant received them from him knowing the facts. Then the allegata and probata will agree, and the record will show that the proper punishment has been inflicted upon the defendant, if found guilty of being such an accessory. Inasmuch as this ruling quashes this bill of indictment, and a trial under a new bill will make an entirely different case, it is unnecessary to further into the consideration of other errors complained of. Let the judgment be reversed and the indictment be quashed.

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WILLIAM HARRIS, plaintiff in error, vs. JOHN J. W. GLENN et al., defendants in error.

1. The act of February 27th, 1874, declaring that property exempted from levy and sale by section 2040 of the Code, shall not be exempt as against the purchase money, applies to a mortgage executed for the purchase money of land prior to the passage of the act.

2. Debtors have no vested right not to pay their debts. Exemption of their property from legal process for the satisfaction of creditors is but a privilege; mere grace and favor, dependent on the will of the state. Statutory exemptions are subject to be reduced or revoked by the legislature, and constitutional exemptions, by the people, through a change of the organic law.

3. The judgment foreclosing a mortgage is a final adjudication that the debt is due and that the property is subject to pay it. It is a specific judgment