
    Murry vs. M’Mackin.
    In an action of covenant upon a note in these words, “On or before the 25th day of December next, I promise to pay A. M’Mackin one hundred dollars in cash notes due at that time, on good, solvent men,” the measure of damages is the actual value of the cash notes at the time they might have been paid.
    In a suit upon a covenant for money, to be discharged in cash notes, the jury may take into consideration the delays and expense of collecting them, and such fair considerations, to show their value.
    Evidence of what shavers and brokers could buy cash notes for, is not to be regarded in fixing upon their value.
    This was añ appeal in the nature of a writ of error from the circuit court of Carroll county. The present defendant in error brought his action for covenant broken, against the present plaintiff in error, in the county court of Carroll, and declared that the defendant by his covenant under seal, on the 17th of June, covenanted with the plaintiff to pay him on or before the 25th day of December, 1831, or order, one hundred dollars in cash notes, due at that time, on good and solvent men, for value received; and averred, that the said defendant had not and did not, on the 25th day of December, 1831, or at any time before, pay to said plaintiff or his order, one hundred dollars in cash notes due at that time, on good and solvent men, but has broken his covenant; To this declaration, the defendant Murry appeared and pleaded covenants performed; upon which an issue was found, and the cause tried before a jury, who rendered a verdict against the defendant, and assessed thé plaintiff’s damages for the breach of covenant to one hundred and two dollars and eighty seven cents. The defendant, thereupon, moved the said county court for a new trial, which was overruled and a new trial refused, to which opinion of the court in refusing to grant a new trial, the defendant excepted, and filed his bill of exceptions, which was signed and sealed, and made a part of the record in this cause, and is in the following words: “Be it remembered, that on the trial of this cause, the plaintiff introduced the covenant upon which he sued in the following words:
    “On or before the twenty-fifth day of December next, I promise to pay Andrew M’Mackin or order, one hundred dollars in cash notes, due at that time, on good, solvent men, for value received, witness my hand and seal, this 17th day of June, 1831.
    ROBERT MURRY, [Seal.]
    The defendant produced a witness before the jury, who proved that cash notes, such as those specified in the instrument or covenant, at the time the covenant became due, could be purchased for cash at a discount of 25 per cent, according to the size of the note and other circumstances. He also produced another witness, who proved, that he had purchased notes as low as 20 per cent, and that small notes on good men, who would pay punctually and without suit, could be purchased at 12 1-2 per cent, discount.” This was all the evidence' in the cause; the jury found • for the plaintiff, as above stated; and the motion for a new trial being overruled, the defendant • prayed an appeal in the nature of a writ of error, to the circuit court of Carroll county. Upon the cause coming on before that court, upon application of the defendant for a reversal of the judgment for error in the comity court in refusing to grant a new trial, the circuit court refused to reverse the same, and affirmed the judgment of the county court. From which the defendant prayed an appeal in the nature of a writ of error to this court.
    
      J. M’Kernon, for plaintiff in error.
    
      M. Brown, for defendant in error.
   Green, J.

delivered the opinion of the court.

The court is of opinion, that in this case as in all other actions of covenant, the verdict ought to be for the damages actually sustained in consequence of the breach of the agreement. The criterion in fixing upon the amount in this case, should be the actual value of cash notes at the time they were to be paid, not the value assigned by brokers and shavers, who prey upon the necessities of the people, but the value which would be fairly assigned to them, taking into consideration the trouble and expense of collecting them, the delays incident thereto, and such like fair considerations, calculated to act on the mind of a prudent and good man, in putting an estimate upon their value. These considerations might or might not, fairly considered, induce a verdict below the nominal sum agreed to be so paid. The evidence as to what- shavers could buy them for, is no more to be regarded in fixing on their value, than evidence, that usurers could wring from the necessitous, twenty-five per cent, for the loan of money, would be competent to prove, that its use was worth that sum. We cannot say, therefore, that the jury did wrong in this case.

Judgment affirmed.  