Fifteen months after date, we, or either of us, do promise to pay or cause to be paid unto Joshua Gray, or order, (124) $100 currency, or a good work horse, for value received. Witness our hands and seals this 3 September, 1808.

JOSHUA YOUNG. (SEAL.) C. LEARY. (SEAL.)

The defendant pleaded, among other pleas, "tender and refusal," and the jury found that on the day mentioned in the said writing obligatory the defendant did tender to the plaintiff a good work horse, and that plaintiff refused to accept the horse; that the horse so tendered was of the value of $30 only; and whether such a tender was a performance of the covenant, they submitted to the court. The evident intention of the parties, as well as the justice of the case, cannot be mistaken. The bond could have been satisfied only by the payment of $100 or the delivery or tender of a horse of that value, and requires the same *Page 97 construction as if the debtor had promised to pay $100 in a horse or any other specific property. The value in property which he is bound to pay is to be measured by the amount of the debt, and must be at least equal to it. The contract might have been susceptible of a different construction if the money had been inserted in the nature of a penalty; but there is nothing in the instrument where such an inference can be derived. Judgment for the plaintiff.

(125)