This case presents two points : 1. Whether the partial failure of consideration can. be given in evidence, to reduce the amount of the plaintiff’s • recover}-, and 2. Whether the payment of money into court, precludes all defence.
In Becker v. Vrooman, (13 Johns. R. 302,) it is settled, that deceit in the sale of a chattel may be shewn in bar, or in mitigation. The same principle will admit the defence in this case, provided the defendant is not precluded by the payment of money into court generally. The cases on this point are not uniform; they are all considered in 2 Archb. Pr. 184) where it is shewn that the true rule is, that payment of money into court admits the cause or causes of action stated in the declaration, to the amount paid in, but nothing more. Beyond that amount the defendant may make his defence, A new trial must therefore be granted; costs to abide the event-.