The opinion of the Court was delivered by

The clause ia the covenant which requires the security to be such as the plaintiff shall approve, was not intended to put it in his power capriciously to reject any security that might be offered, and thereby put an end to the contract, when the defendant, had done every thing on his part to carry it into execution. But it certainly gave him as great a latitude of discretion, in that respect, as was consistent with the nature of the transaction. He was not bound to suspend his whole fortune on a rope of sand. He was not bound to accept any person, whose present circumstances or future prospects rendered his situation, at least, doubtful. He had given a credit of four years. He was authorized, therefore, not only to inquire into the present state of his property, but also into his habits of economy and industry, and to ascertain what it would probably be at the end of that period. It then became a question for the consideration of the jury, not whether General Alston was insolvent, but whether the plaintiff, by rejecting him, had evidenced a fixed and arbitrary determination to put an end to the contract, whether the defendant performed his part or not. It was not incumbent on the part of the plaintiff to show that the security was inadequate. The burden of proof lay on the defendant. But the testimony is before us, and it is now to be decided, whether the jury have so far mistaken it, as to authorize this Court to interfere and set aside the verdict ?

Two witnesses were of opinion the security was insufficient. One witness said General Alston was a man of large property, but was much involved. Another said he knew but little of his affairs. His particular friends were of opinion he was able to pay his debts, and have something handsome left. This was the whole of the evidenee given on the trial. Can it be said that the jury ought on such evidence to have given a verdict for the defendant? The argument has gone on the mistaken ground, that the plaintiff was bound to accept the security, unless it had been shown that he was actually insolvent.

The verdict was perfectly consistent with the evidence, and the motion must be refused.

The case of John L. Wilson v. E. S. Thomas, depending on the same evidence, the motion in that case must also be refused.

I dissent from the opiuion delivered in this case. Mutual bonds were entered into by the contracting parties. The defendant was obligated on his part to give good and sufficient security to be approved of by Thomas. Security was offered, which was not approved of. But it appeared on the trial of the case, that the security offered was sufficient; *74and subsequent events have developed the correctness of the testimony, in regard to the sufficiency of the security offered. The contract, therefore, was substantially complied with on the part of Wilson; and although Thomas might, from a strict construction of the terms of the contract, be justified in refusing the security offered, from a presumption at the time that it was not good, yet in an action for a breach of covenant on the part of Wilson, no damages ought to be given, when it appeared from the evidence, that he had. on his part, substantially complied with the terms of the contract. To say that Thomas, under the contract entered into with Wilson, had a right, on his part, to exercise caprice, as to the security which should be offered, is not consonant to those rules which govern in cases of this kind ; although this may not ^ave ^een case’ resPec^ the security offered, yet, *it appears he was mistaken, as to the sufficiency of the security offered; and if so, he was not entitled to recover damages, when there had been, substantially, a fulfilment of the contract by the defendant. I think, too, the charge of the presiding Judge, that Thomas had a right to exorcise a discretion without any control, was far from being correct in law; and as the jury were probably influenced to find a different verdict from what might otherwise have been the case, from a respectful deference to the opinion of the Court, I think a new trial should be allowed.