delivered the opinion of the court.

The note of the plaintiffs in error, sued on in this case, was discounted by the bank, and paid in notes of the Brandon Bank. These notes were twenty to twenty-ñve per cent, under specie *551par, at the time, though received at par in payment of debts. The judgment below was for the plaintiff, for principal and interest. There was proof that the defendants, used the notes .which they received at par in payment of an execution against them.

The case of Bondurant v. Commercial Bank of Natchez, ante, p. 533, settles all the points involved in this. The contract must be judged of by its own terms, not by the use which was made-of the borrowed money. If the defendants had kept the notes, till they became wholly worthless, the plaintiff would notwithstanding be entitled to their value, at the time they were paid out.

The judgment must be reversed, and cause remanded for new trial. If the defendants below satisfy the jury of the truth of their defence, then no more can be recovered, than the specie value of the notes at the time they were lent by the plaintiff’in the court below to the defendants, without interest.

Judgment reversed and new trial awarded.

Thacher J. dissented, and referred for reasons to his dissenting opinion in the case of the Grand Gulf Bank v. Richard T. Archer et als. ante, 151.