¶1delivered the opinion of the Court. The objection made at the trial, that the defendant was a feme covert, was totally unsupported by proof. The long and continued absence of Reuben Paddock, from the United States, without any account of him for twelve years, under the circumstances of this case, furnished an irresistible presumption, from analogy to the statute of bigamy, and the statute concerning leases determinable upon lives, that he ■^as dead. In the present case, the jury were authorised to presume his death in a much shorter period. The facts justified them in presuming Paddock’s death, by the foundering or wreck of the vessel in which be left Kem York. The presumption does not rest merely on the fact of his not being heard from, but from the vessel never being heard of, nor any part of the crew. The language of the judge could pot be too strong in regard to the fact of Paddock’s death, and there was nothing for the jury to deliberate on.
¶2On the second ground, we are of opinion, (and in thia the judge who tried the cause concurs,) that the defence set up ought to have been gone into, with a view to the reduction of the amount claimed, and that the defendant was not driven to her cross action. We know of no case, in which there is an omission to return the article agreed to he sold, which precludes the defendant from contesting the *144price, on the ground that it was not returned to the vendor; exceP,'nS the cases °f conditional sales, where the thing about to be sold is taken on trial, with liberty to the ven-deé to return it, if he dislikes it, in a limited period. We are, also, of the opinion, that the point whether the defendant could rescind the contract of sale, does not arise. The defence proceeded, on the ground that the defendant was liable only to pay what the hats were worth, considering that a circumstance essential to their value, and which the plaintiffs by the terms of the contract were bound to supply, had not been supplied. The substance of the contract of sale was this: the plaintiffs sold the defendant fifty-eight leghorn hats, of particular numbers, denoting their fine-» ness, together with an equal number of extra crowns to match the hats delivered, for $ 1,566. A parcel of the goods sold were delivered, but the extra crowns were not delivered. The extra crowns actually delivered did not match the hats sold, and of this immediate information was given to the plaintiffs, and all redress was denied. It cannot be doubted that the defendant sustained a loss, from the circumstance that the extra crowns did not match the hats, first delivered ; and so far we are of opinion the defendant, tvas entitled to a deduction proportioned to the diminished value, from the price originally agreed upon. Here the defence did not operate as a surprise on the plaintiffs. Th£y well knew that this very point was intended to be in-isted upon, and therefore no notice was necessary, (Beecker and Beecker v Vroman, 13 Johns. 302.)
¶3A new tría! must, therefore, be granted, with costs to abide the event of the suit.
¶4New trial granted.