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sustalned for the old common law notion that fraud so vitiated every contract which partook of it, as not to allow of a recovery, though it but partially impaired the benefit which the defendant expected to derive, has been ex- ploded-more recent authority only allowing it to go in reduction of damages. The cases of Poulton vs. Lattimore, Miller vs. Smith, Germane vs. Burton, and others which are cited, are cases in which the defendant had the plaintiffs warranty. (See Chitty on Con. 134. Yet this circumstance is not con- sidered by the Courts which decided them as interposing an obstable to the defence.

 | very readily acknowledge that have ex- amined this case under circumstances some what embarrassing. My earlier impressions of law were adverse to an allowance of the defence, unless fraud was proven. But l entered upon its examination with solicitude to learn in what manner it had been hereto fore adjusted; and not with any particular de- sire to sustain my own opinion. The result is conviction that the defence is not inhb- ted by the weight of authority. Under this impression have consulted principle with a view to learn whether it afforded barrier My reflections have suggested none. Beiev- ing therefore that the greater benefit would result from its toleration, we are of opinion

 

 cross action for damages on account of de- feet in personal property purchased by him, or for non compliance by the plaintiff with his part of the contract; he may, in defence to an action upon his note, made in consequence of such purchase or contract, claim deduction corresponding with the injury he had sustain ed. When real estate is the consideration the law perhaps is different, and partial defect III title so long as the contract is unrecinded, could not be alleged as defence to an action TOT the purchase money, and this difference IS to be attributed to the extensive jurisdiction exercised by chancery over the title to real estate, by causing it to be perfected; and to the additional cause, that the vendee sustains no injury by defect of title so long as he re- tains the possession. Christian vs Scott l Stewards Rep 49o-2 Wheaton's R. 13.)

 The bill of exceptions in this case does not disclose any part of the testimony given on the trial, and the first inclination of my mind was that because of this omission we could not know that the portion of the opinion of the Court excepted to, was elicited by the evil dence. But further reflection has convinced me that the true rule upon this point, is this where an deception is taken for refusal to instruct, the bill must embrace so much of of the evidence as to shew that the instruc- tl0nS asked Tor, arose out Of the cause: but where instructions actually given are except ed to, as mistaking the law, no part ofthe tes- timony need be stated, to authorize the ap- pellate Court to revise the case upon the bill of exceptions And this distinction is found- ed upon the presumption that whatever is done in Court of justice will be presumed to be legally done, until the contrary appears (Vasse vs. Smith, Cranch 226. Pennock ct. al. vs. Dialogue, 9 Pet. 15.) Had the judge merely refused the instructions asked, we could not have revised the legal question, but he has gone farther and stated his opin- ion upon the law to the jury. In this we are of opinion he has erred, and are therefore in favor of reversing the judgement and remand ing the cause.

 This case presents other questions of law, but as the one already considered, is decisive of it, we decline examining them.