
    *Harlan v. Read.
    Payment of a note can not be avoided in a suit at law by way of defense, upon the ground of fraud, unless the fraud goes to the whole consideration.
    Tried before Judges Burnet and Sherman, in Clinton county, 1827.
    This was an action of assumpsit on a promissory note for two" hundred and fifty dollars, payable in February, 1826. Plea nonassumpsit. The plaintiff gave the note in evidence, and rested his - cause.
    The defendant examined several witnesses, by whom it appeared that he had purchased a farm from the plaintiff, received a title bond, and taken possession, and that the note in question was given for a part of the purchase money. He further offered to prove that before he made his contract he went with the plaintiff to examine the property; that he examined it in part, and as to ! the residue, relied on the representations of the plaintiff; that the property did not answer the description given of it; that it was - of less value, and that in equity and good conscience he ought not1 to be required to pay the whole amount of the note. This testimony was objected to.
   By the Court :

To avoid the payment of a note in a suit at law, on the ground.: of fraud, the fraud must extend to the whole consideration. We. have no rule to ascertain the extent of the partial injury sustained by the misrepresentation complained of. The jury can not make a new contract for the parties. They can not establish for. them a price or value different from the one agreed. There is no-doubt but that a vendor, who sells by description, is bound to make it good; and in this case, if the vendee was deceived by misrepresentation, he might have refused to execute his contract. He-might have filed a bill to avoid it, but in place of doing this he has affirmed it. He has taken possession with a full knowledge of all the facts, and has paid a part of the purchase money. Under these circumstances, whatever relief he may be entitled to elsewhere, he can not avail himself of his proposed defense in the present action. W e know that courts of common law, as well as courts of equity, may *relieve against fraud in any form in which their modes of proceeding can reach it; but it does not follow that a party who has acquiesced in a fraud, and thereby •sustained a partial loss, may set that up as a defense to an action brought on a note for the consideration of the contract. Such a ■course would not only be inconvenient, but would lead to uncertain results. It would burden the jury unnecessarily. Plaintiffs would be perpetually liable to be taken by surprise, and much ■of the time of the court would be wasted by unprofitable disputation. Attempts have often been made to set up this kind of defense, but it has been always rejected.  