
    Gholson vs. Brown.
    The defendants covenanted as follows: “On or before the first day of-March, 1S29, we, or eitber-of ns, promise to pay William Ghoison or order, the sum of thirteen hundred' and fifty dollars, to be discharged on that day in cash notes on good solvent men in Giles county, to be due at the time, for value received.” Held, that the value of the notes upon the day they were to be paid, was the measure of damages.
    Where the condition of an appeal bond is, to prosecute the appeal in error with effect, or pay all costs and damages, &c. judgment cannot be rendered against the securities in the bond for the principal judgment, although the action is covenant.
    Covenant upon the following instrument: “On or before the first day of March, 1829, we, or either of us promise to pay William Ghoison or order, the sum of thirteen hundred and fifty dollar's, to be discharged on that day, in cash notes, on good solvent men in Giles county, to be due at the time, for value received.
    
      The defendant below, Brown, pleaded covenants performed, on which issue was taken. The county court refused to hear evidence or proof showing what the value of cash notes were. Upon this ground its judgment was reversed in the circuit court upon writ of error.
    Upon the trial of the cause in the circuit court, the defendant offered to prove by several witnesses, the difference between cash notes and gold and silver; this evidence was objected to, but was received by the court. The witnesses then proved, that the notes were generally worth about twenty per cent, less than gold and silver. Other witnesses stated, that the intrinsic value of the notes was about from eight to fifteen per cent, discount. The jury under the charge of the court, found a verdict for the plaintiff for $1269 64.
    The defendant moved for a new trial, upon the ground that the verdict was against evidence, the jury only allowing a difference between cash notes and gold and silver, of fourteen per cent.; whereas, from the proof, it was contended they ought to have deducted at least twenty per cent. The court overruled the motion. The defendant prayed and obtained an appeal in the nature of a writ of error to this court, and entered into bond and security, conditioned as follows: “the condition of the above obligation is such, that whereas the above named Edward M. Brown and Lewis H. Brown, have this day prayed and obtained an appeal in the nature of a writ of error, from the sentence and judgment of the court in the case of William Ghoison, plaintiff, against the said Edward M. and Lewis H. at the February term of the Giles circuit court, for the sum of $1269 64, to the next court of errors and appeals, to be holden at Nashville. Now if the said Edward M. and Lewis H. shall well and truly prosecute said appeal with effect, or in case of failure.therein, pay and satisfy all costs and damages that may be awarded against them for wrongfully prosecuting said appeal, then this obligation to be void, otherwise to remain in full force and virtue.”
    Rivers, for Brown.
    The law is now perfectly settled, that in a case of this kind, the measure of damages is the value of the cash notes upon the day they are to be paid. Gamble vs. Hatton, Peck’s Rep. 130: Hicklin vs. Tucker, 2 Yerger’s Rep. 448: Murry vs. M’Mackin, decided at Jackson at the last term, 
    
    In this case the jury allowed a difference of -fourteen per cent, betweemthe cash notes and gold and silver. The proof shows there was at least a difference of twenty per cent. The verdict was against the strength of the testimony, and a new trial ought to have been granted.
    
      Rucks, for Gholson.
    This case is stronger for the plaintiff than Gamble vs. Hatton, (Peck’s Reports, 130,) where the note was for $629 in current bank notes. Judge Haywood construed it of current bank notes: Judges Wbyte'and Brown overruled him.; but the case was afterwards held up upon advisement. The words here are not to pay $1350 of cash notes, but to pay that sum of money, to be, or which may be discharged in cash notes.
    The former has been said to be a covenant for a specific thing, but the latter is an agreement for money, with a condition for the benefit of the obligor, which he may either avail himself of or waive, at his option. Dyer, 14, 15, 17: 5 Coke, 22: 1 Dane’s Abr. 176.
    If an obligor does not take advantage of a possible condition, he must pay the debt.
    3o also, if he himself render the condition impossible, 5 Dane’s Abr. 179.
    In Yelverton, 138, the defendant pleaded that the bond was delivered after the time when the condition was to have been performed; by which he made the bond single. 5 Dane’s Abr. 180.
    But even if this note was for $1350, in, or of cash notes on solvent men, the case of M’Connel and Brown vs. Caldwell, (Mar. and Yerger’s Rep. 101,) is an authority for the plaintiff.
    In that case the bond in effect, was a bond to pay $400 in current banknotes; it stood upon demurrer, and judgment was given for the plaintiff for $400, upon the consideration that the parties had contracted for bank notes of specie value.
    And so say we in the present casé.
    What is a cash note worth on a solvent man when due? The law fixes its value at the amount of money specified on its face, and six per cent, thereon until paid, and a man’s money is not worth more; he cannot lend it for more. The great struggle upon this question has been to adopt the law of the shaver and the usurer, instead of the law of the land.
    Suppose the plaintiff wishes his money to remain on interest, then it will be admitted the notes would be worth as much as the money. Suppose he wishes to collect the debt, a solvent man is presumed to be ready to pay his debt as soon as it falls due.
    Suppose he must sue, he had as soon sue one solvent man as another.
    The construction contended for on the other side is most unjust. It offers a premium to all obligors in this description of contracts, (and they are numerous,) to violate their engagements. It will say to these defendants, we will make it your interest to withhold your cash notes and collect them yourselves; you can collect the whole $1350, the plaintiff can only recover $1161 of you, and you will make a clear profit of $189, by violating your bargain.
    
      It is contrary to morals as well as to law, that a man should derive a benefit from his own wrong. 5 Dane, 179.
    In Brooks vs. Hubbard, (3 Cow. Rep. 58,) the note was for $250, in brown cotton shirting, at 30 cents per yard; the shirting had fallen to 20 cents when the note became due. All the judges agreed, that the sum expressed showed the indebtedness, to wit, $250, and the residue of the note gave the defendant an option to pay it in a collateral way, which if he failed to take advantage of, must leave the agreement as though it comprised only the expression, “I promise to pay $250.”
    Bramlitt, also, argued for the defendant in error,
    in support of the position assumed by Mr. Rucks.
    
      
       Ante, 41.
    
   Catron, Ch. J.

delivered the opinion of the court.

The defendant below, Brown, covenanted and agreed to and with the plaintiff, that on or before the first of March, 1829, the said defendant (together with his said joint and several covenantors who are above named and who are not sued in this action or either of them) would pay the said plaintiff or order the sum of $1350, to be discharged on that day in cash notes on good solvent men in Giles county, to be due at that time, for value received.

Is the construction of this covenant that it should be paid in cash if the notes of hand were not paid on the first of March, 1829; or, that their value, as a measure of damages, should be only recovered from the defendant?

As a standard of quantity, no words can be employed more aptly to express it. Dollars as a standard of quantity, secured by the face of the notes of hand, was the only measure furnished by our language applicable to the nature of the property to be paid.

Negotiable securities, in the form of bank paper, bills of exchange, and promissory notes, have assumed characteristics of property, and enter largely into the transactions of society. That they are worth in current coin the amount called for by their face, is untrue generally; and if one covenants to pay another a certain number of dollars to be discharged in notes of hand, it is only meant he undertakes to deliver to the obligee paper calling for that quantity, be the paper worth more or less. Often in cases of foreign, and sometimes domestic bills of exchange, the paper would be worth more than specie dollars. In commercial cities, the market value of bills of exchange is daily known: that they would any day in the year be of precise specie value, no dealer in bills would imagine. If a merchant, or banker here, were to covenant he would in ninety days pay another five thousand dollars in bills on Philadelphia, and fail, he might injure the obligee more than five thousand dollars, because the bills probably would be worth more. So they might be worth less. The terms of quantity are descriptive of the property contracted for, and do not fix the value of the notes as bills at a specie standard; because of the imperfection of language, and the nature of the property, it cannot be described without using the name of the principal and most common current coin. A covenant to pay cash notes, on good and solvent men residing in Giles county, calling for $1350, was a contract for property, and the value of that property in the current coin of the United States on the day the covenant was broken, was the measure of damages. What the notes were worth in current coin, was a fact subject to proof, and which we think was correctly submitted to the jury in this cause. Murray vs. McMackin, Jackson, 1833: Gamble vs. Hatton, Peck’s Rep. 130, per Haywood, Judge.

2. How far the securities are liable on the appeal bond to this court, was decided in the cause of Brown and others vs< Banks, assignee, during this term. The bonds are in the same words, and we think there is nothing in the distinction attempted, that this action of covenant sounded in damages below. The act of 1S27, c. 72, says, in actions for the payment of promissory notes, if an appeal in the nature of a writ of error be prosecuted, the security for the party appealing, shall be bound for the payment of the whole debt, damages and costs, and for the satisfaction of the judgment of the superior court. The securities here are only bound for the damages and costs that may be awarded against their principals in this court, for wrongfully prosecuting the appeal.

1. We affirm the judgment of the circuit court. 2. We award to the appellee, Ghoison, damages after the rate of 12 1-2 per centum per annum. 8. We adjudge the plaintiffs in error to pay the costs of this court. These are the damages and costs imposed by law for wrongfully prosecuting the appeal, and none other can be adjudged without doing violence to the plain import of this bond. Lewis H. Brown’s death will be entered of record, and judgment be rendered as in Banks against Brown,

Judgment affirmed. 
      
       Ante, 198.
     