
    Eli Abbott et al. vs. The Agricultural Bank of Mississippi.
    While, as between individuals, where a note is payable in the issues of a bank, the value of the notes of the bank, at the time the debt becomes due, is the measure of recovery, yet a different rule prevails where a bank is suing upon a note payable in its own issues ; in such case the bank will be entitled to recover the full amonnt of the note and interest, because the defendant can if he choose, even after judgment, discharge the debt with the issues of the bank.
    In error from the circuit court of Lowndes county; Hon. Hendley S. Bennett, judge.
    The Agricultural Bank of the State of Mississippi sued Eli Abbott, -Robert Jamison, and E. F. Calhoun, upon the following note, to wit:
    “ Columbus, Mississippi, April 15, 1842.
    “$7935-53. Nine months after date, we, or either of us, promise to pay to the Agricultural Bank of Mississippi, seven thousand nine hundred and thirty-five dollars, fifty-three cents, in the notes or issues of said bank, for value received.”
    The defendants plead non-assumpsit, and on the trial the plaintiff, after the note was read, closed his case; and the defendants, according to the bill of exceptions, “introduced witnesses to show that the notes or issues of the plaintiff, in which the note was made payable, were, at the time of the maturity thereof, much depreciated, and greatly below par value; ” which was objected to, and the court sustained the objection.
    
      “ The defendants then proposed to show by said witnesses, that the notes or issues of said plaintiffs, in which the note sued on is payable, were, at the time of the maturity of the note, of much less value than they were at the time of the trial; to which plaintiffs also objected, which last objection was also sustained, and said last proposed testimony also rejected.” To which there were also exceptions.
    The jury found for the plaintiff the full amount of the note and interest, and defendants sued out this writ of error.
    
      Harris and Harrison, and A. G. Smith, for plaintiffs in error.
    Where suit is brought upon a promissory note, payable in a certain species of bank paper, the specie value of the bank paper at the period of the maturity of the note, with interest thereon, is the criterion of damages. Gordon v. Parker, 2 S. & M. 485.
    ■ The measure of damages is the value of the article at the time,of the breach. Lanier et al. v. Trigg et al., 6 S. & M. 641; Bonnell v. Covington et al., 7 How. 327; lb. 456. Also cases referred to in the foregoing decisions.
    
      Guion and Baine, for defendant in error.
    The defendants below doubtless expect to bring this case within the rule in Lanier v. Trigg, 6 S. &• M. 641; Gordon v. Parker, 2 lb. 485 ; Jennings v. Summers, 7 How. 453; Banned v. Covington, lb. 322.
    This cannot be, for
    1. First, there is no plea of tender here; secondly, the bill of exceptions undertook too wide a position entirely. Nothing could be more vague and general than the proof proposed.
    2. But those cases cannot be made applicable here, for two reasons, both making their application iniquitous.
    1st. No good sense, no necessity, no principle of justice, requires their application. Because the defendants, in an hour after the trial, and at any time from then till now, could have paid off the judgment in the issues of the bank, and thus have availed themselves of all the equity the cases relied on, allows ; and these are cases based entirely upon principles of equity.
    But, 2d, to apply the quoted cases to the present, would not only go farther than the sense and justice of them require, but put it in the power of the defendants to commit á fraud on the plaintiff by getting the benefit of the depreciation twice over, in spite of justice and equity. If they get the benefit of it before the jury, that is once. Grant it to them there, and when they come to pay the judgment, they have a right to pay it off in the issues of the bank again; that is twice. And the court will, by the application of the rule in the cases cited, not decide the law and regulate rights as is decided and regulated in them ; but under their court will assert that a debtor to a bank, who will not pay until sued, and the issues of which are depreciated, has the right, under the law and its administration in this state, to deduct from the amount due, twice the sum of the depreciation of those issues at the time of the trial, and even more if they should depreciate afterwards.
   Per Curiam.

The Agricultural Bank brought this su)it on a note for $7935, payable in its own notes or issues. At the defendants, with a view to reduce the amount of recovery, offered evidence to prove that the notes of the bank were dejáis ciated at the time the note became due. The evidence eluded, and the defendants excepted. \

The rule is well settled by several previous decisions made by this court, that if a note be payable in the notes of a particular bank, the value of the notes at the time the debt became due is the measure of recovery. . These decisions have been made in cases between individuals. No such decision has been made when a bank has sued on a note made payable in its own issues. As between individuals, a recovery beyond the value of the notes will not be permitted, because it would operate unjustly, by compelling the party to pay more than he agreed to pay. But this is not the case where a bank is suing on a note payable in its own issues, because it is bound to take its own notes in payment even after judgment. The law makes it obligatory on it to do so, and thus establishes a rule of payment, and not a rule of recovery. As between individuals, the judgment must be paid in money, and hence the value of the thing agreed to be paid is estimated before the jury. The party then gets the value of what he contracted for. But when the bank is party, if it can only recover the value of its own notes at the time the debt became due, it does not get that much, because the debt is afterwards payable in its notes, so that the bank would lose, and the defendant gain, the depreciation at the time of the maturity of the note, and also at the time of payment. As to banks, the statute substitutes a new rule, which accomplishes the ends of justice, but by a different method. The judgments, in effect, that the bank shall only recover its own notes, if the debtor chooses to pay in that way.

The judgment must be affirmed.  