
    Heard April Term, 1879.
    CASE No. 729.
    JOHN S. BRATTON v. WILLIAM N. GUY AND NEELY SMITH.
    1. An action for deficiency in quantity of land, founded upon the usual covenant of warranty in a deed of conveyance executed in 1858, is barred by the statute of limitations in four years.
    2. The limitations prescribed in Part 2, Title 2 of the code of procedure, do not apply where the right of action accrued before the adoption of the code; such cases are governed by the statute of limitations of force at the time. It was not the intention of Section 7, Chapter CXLVL, of the General Statutes, to give to actions any new or different period, but simply to declare that they should continue under the operation of the limitations applicable to them in then existing laws.
    Before Aldrich, J., at Chester, November, 1878.
    This was an action commenced in November, 1875, for breach of warranty contain*'! in deed from J. G. Smith to plaintiff on January Bfh, 1858. xTo alleged breach was a deficiency in the number of acres, and also in a lot at a railroad station. The deficiency was clearly proven. The defendants claimed title under J. G. Smith, exactly how does not appear. The defendants plead the statute of limitations. It appeared in testimony that the defendant, Guy, ana one Smith, as executors of J. G. Smith, sued Bratton, the plaintiff here, for balance due on his bond for purchase money of this land, and recovered a verdict March 15th, 1869. Upon the declaration in that case was endorsed, in the handwriting of the attorney for Guy and Smith, executors, the following: “ It is understood that the verdict in this case has been agreed upon without prejudice to the defendant’s claim on the warranty.” (Signed,) Melton, Hart &■ Melton, plaintiffs’ attorneys.
    At the close of testimony for plaintiff, .the defendant moved for a non-suit. The court overruled the motion and defendants excepted. The defendants requested the judge to charge the jury that the action was barred by the statute of limitations, and plaintiff cannot recover. This was refused, and exception taken. The jury found a verdict for plaintiff. Defendants appealed to this court, upon the exceptions taken in the court below.
    
      Messrs. Patterson & Gaston, for appellants.
    
      Mr. 8. P. Hamilton, for respondent.
    April 28th, 1879.
   The opinion of the court was delivered by

Willard, C. J.

We must assume that the covenant of warranty, which is not ■set forth in terms, is in the usual form. If so, only unliquidated damages could be claimed under it, and, of course, an action of ■debt could not be maintained. Besides, it would be a mere evasion of the statute barring actions on covenant in four years. Whether the covenant of warranty might not have existed in a form that would support an action of debt, is not a question here; in the ordinary form, it certainly can have no such effect.

There, must be a new trial.

New trial granted.

Mol ver, and Haskell, A. J.’s, concurred.  