
    Jeremiah G. Walker vs. J. J. Meek.
    While it is true, that if a note be given for depreciated bank notes, the measure of the damages, in an action on the note, is the value of the money at the time the note was given ; yet in an action on such a note, it is not alone sufficient to prove that the note was given for depreciated paper, and the value of that paper at the time; the defendant, on whom lies the burden of proof, must also show the amount of depreciated paper for which the note was given; for the discount may have been allowed off the depreciated paper at the time, and the note executed for the true value of the paperl
    
      In error from the circuit court of Monroe county; Hon. Francis M. Rogers, judge.
    J. J. Meek sued Jeremiah G. Walker on a note for three hundred dollars, dated on the 6th of September, 1839, and due two years after date.
    The pleas were “ non-assumpsit, payment, and failure of consideration in short by donsent.”
    On the' trial, the defendant proved by Thomas Coleman, that, as he was informed by both parties, the note was given for Brandon money. Its value he did not recollect; it was not worth much, not more than twenty cents in the dollar, if that.
    Austin Pollard proved, that in 1838, 1839, or 1840, he had and sold some Brandon money at seventy-five cents in the dollar. This was all the proof.
    The court charged the jury for the plaintiff, that they must believe the consideration of the note valid until the contrary was proved; but refused to charge them “ that the simple proof that the note was given for Brandon money, without any proof that the amount of that kind of money was the same amount specified in the note, or some other evidence of failure of consideration, will not warrant the jury in finding a failure of consideration, either in whole or in part.”
    For the defendant, the court charged the jury, if the note sued upon is proved to have been given for Brandon money, then the measure of damages must be the value of the money at the time the note was given.
    The jury found the sum of $446 for plaintiff; the defendant moved for a new trial, and on its refusal sued out this writ of error.
    - Lindsey and Copp, for plaintiff in error,
    Cited Garvin v. Lowry, 7 S. & M. 24; Scott v. Hamblin, 3 S. & M. 285.
    
      W. P. Rogers, for defendant in error,
    relied on 3 S. & M. 285.
   Mr. Justice ThacheR

delivered the opinion of the court.

This was an action upon a promissory note dated in 1839. The defence pleaded was non-assumpsit/ payment, and failure of consideration. The jury found for the plaintiff below the amount of the note and interest.

Upon a motion for a new trial overruled, the defendant below filed his bill of exceptions, whereon the cause is brought here. Upon the plea of failure or want of consideration, it was proved that the note was given for Brandon money, at eighty cents discount. The jury were also charged by the court upon the trial, for the defendant, “ that if1 the note sued upon is proven to have been given for Brandon money, then the measure of damages must be the value of the money at the time the note was given.”

We have held, that if a note be given for Brandon money, or any other such money, then at a discount, a recovery for its full nominal amount is not lawful. Scott v. Hamblin, 3 S. & M. 285. But this presupposes that the amount of Brandon money-given for the note was the same amount stated in the note. It belonged to the defendant to show the failure, or want of consideration. While it might be true that the consideration of the note was Brandon money, still the note might have been given for the cash value of this money at its date, and the discount upon it considered and allowed. The burden of proof is upon the defendant to make out his position; and as the evidence is presented by the bill of exceptions, he failed in this essential particular, to wit, to show that the note was given for an amount greater than the value of the Brandon money received therefor. The court refused to charge the jury this principle of law when asked by the plaintiff below, but the jury nevertheless found upon that principle, and, correctly.

J udgment affirmed.  