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 mer may be given in evideuce to reduce the damages; the latter cannot but furnish dis tinct and independent cause of actioD.' In Germaine vs. Burton @ Starkie N. P. Rep. 32) it was decided, if after sale by sam pie at an agreed price, goods of an inferior quality are furnished, the vendor may prove such inferiorty and thereby reduce the reco- very to their actual value. A note of the re- porter considers this case as founded upon the business ot permitting the vendee to object in dimunition Of damages instead of forcing him to resort to cross action upon the warranty.

 In Poulton vs Baltimore @ Barn. & Cress. 259) the plaintiff sold to the defendent some cing ,foin seed, which he warranted to be new, good growing seed. A short time after the sale, the buyer was told by person who was competent judge, that the seed did not cor respond with the warranty; but he did not give notice of the deficiency to the plaintiff and af- forwards Sowed a part and sold the balance. It was held competent for the defendant to shew the falsity of the warranty

 In Beecher vs Vrooman (13 Johns. 302) it was decided that in an action for the price of a chattcl, the defendant may prove deceit in the sale, and that the chattel was of no va lue in defeasance of the action: or if the value is only partially diminished by the deficit, he may show that in mitigation of damages. No notice is taken of the distinction between sale at an agreed price, and quantum va- ie6at.

 In Grant vs. Baton GA Johns STD it was decided in case where the price of labor was expressly stipulated, that the plaintiffs claim may be diminished by showing that the work was not faithfully done.

 In Miller vs. Smith, q Mason 437) it was proved at the trial, that the consignees and agents of the plaintiff sold to the defendant a quantity of tobacco, under an express repre- sention that it was as good as the defendant had before purchased of them:-the tobacco was delivered: and sometime afterwards the defendant complained that it was not as good as it was represented, and desired to recind the contract, which the plaintiff refused. The questionof law was raised, whether the defend- ant was entitled to deduction for the suppos- ed misrepresentation. Mir Justice Story in his charge to thejury observes, "Therc sno pre- tcncc in this case that the representation was fraudulent. It was made, all parties agree, innocently, under misapprehenson of the state of the tobacco, which had not been examined by the consignees." And again, "wherc goods are sold as of a certain quality, and they turn out to be of an inferior quality, the defendant may in an action for goods sold and delivered, give the facts in evidence to re- duce the damages: For the plaintiff is entitled to recover no more than the real value of his goods. The authorities directly support this doctrine: and there is neither reason or justice in strainng after technical objections to over throw it.''

 The case of Crowninshield vs. Robinson ct. al. ! Mason 93) was an action for negligence in keeping the plaintiff s sheep, founded on breach of the defendants special contract.- The defendant insisted upon deducting from the damages the compensation due him for keeping the sheep. The Court say that they are fully aware of the strong leaning of the later authorities in favor of the doctrine which would tolerate the defence. But they thought it at most but an equitable set off, which should be allowed only when it cannot work against equity, and as the verdict would not necessa- rily be bar at the suit of the defendant, the plsintiff might be doubly charged, they tho't it best to leave the defendants to their cross action. am sensible that this case did not present the question of a partial failure oft con- sideraton. l refer to it only to show, from the opinion of a very able court, the increased disposition manifested by recent decisions, so to adjust rights as to avoid multiplicity of ac- tions

 This discrepancy in decision is very full illustration of the uncertainty which pervades our system of Jurisprudence. If the weight of authority be not favorable to an allowance of the defence, the contradiction is certainly so great, as to authorize us to consider the question as res intesra, and pursue the more ancient rule which denies the defence, or else adopt more recent authority as our guide In determining which course shall direct us, it is proper to consult the policy of our laws, and inquire what the dictates of justice demand.

 It is our policy to avoid circuity of action, that litigation may be stopped in its germ be- fore it is permitted to put forth its branches. This idea is most strikingly illustrated by our statutes providing for arbitration and set off, Jas well as by the decisions of our courts. Now to permit defendant to allege in diminuton of a sum sought to be recovered by breach of his contract, that the consideration which in- duced the contract on his part, has partially failed, would have the effect of making one action subserve the purpose oftwo And up- on the score of convenience it must be unim- portant to the plaintiff whether his recovery is diminished; or whether after having reco- vered the entire sum which the defendant has agreed to pay him, he is compelled to refund portion oft, or if important, the importance would consist in ending litigation and avoiding the costs of the defendants action. And sure ly it would be more compatible with justice to permit party to retain that, which er aeguo e bono cannot be demanded of him, and which by law he may recover back. and more espe- eially when none of the great principles of right, or the landmarks of property would be disturbed.

 Perhaps it may be said that the inquiry is too complex for the determination of an ordi- nary jury-not so. There would be no more difficulty in sscertaining the sum to be deduct ed from the defendants indebtedness, than in admeasuring the quantum of damages, sus- tained in an action for false warranty, or