The opinion of the Court was delivered by
Moses, C. J.The first assignment of error in the charge of the Circuit Judge is his instruction to the jury, “ that the payments in Confederate currency should stand as a credit for that many dollars on the bond.”
It is scarcely necessary to refer to authority to shew that what the creditor takes'"and acknowledges as payment of his debt must be so considered, unless some fraud or imposition has been practised to induce' him to receive, in lieu of his demand, that which was never intended to be accepted as an equivalent for it.
As well might one claim a restitution of his property because he had parted with it at less than the market value. If the transaction is free from circumvention, or influence of a character which *203would vitiate it at law, it must stand as the considerate act of the parties, binding on both of them.
This recognized principle, it is claimed, cannot apply to a contract subject to the provision of the Ordinance of September 27th, 1865, entitled “An Ordinance to declare of force the Constitution and laws heretofore in force in this State,” which allows “the true value and real character of the consideration of any contract entered into between the 1st day of January, 1862, and the fifteenth day of May, 1865,” to be shewn, “so that such verdict or decree might be rendered as will effect substantial justice between the parties.”
It has been decided in Austin vs. Kinsman, 13 Rich. Eq., 265, and in Fluit vs. Nelson, 15 Rich., 11, that the Ordinance only applied to executory contracts, and that, therefore, where part payment had been made in Confederate currency, the creditor is not entitled to have the amount of the payment reduced to its value in National currency. If the proposition so contended for by the plaintiff can prevail, what would prevent its extension to the recovery from a maker, by the payee of a note who had received the amount nominally due upon it in Confederate currency, of the difference between such currency and the legal tender notes of the United States?
The second ground of error charged involves the plaintiff in an attempt, through the aid of the Court, to repudiate his own act in accepting a depreciated currency in part payment of the bond. While an officer of the Court, the obligee and custodian of the bond, he credited the money received, and, after inducing the obligors to suppose that so much of it was extinguished, he now avers that his course was without right, “ and that the payments should be stricken out.”
Is he in a position to avail himself of such an advantage ? The creditors and the parties interested in the estate for the benefit of which the bond was held, are not before the Court. Whatever may be their rights, (and in that regard we do not propose to intimate an opinion,) he can not ask of the defendants any abatement or diminution of the amount so credited, because received in Confederate notes.
The third ground alleged as error must be sustained. The constitutionality of the “Act to determine the value of contracts made in Confederate States notes, or their equivalent,” approved March 26, 1869, 14 Stat., 277, was sustained by this Court in Neely vs. McFadden, 2 S. C., 169. The Circuit Judge further charged, *204that if not repugnant to the Constitution of this State and of the United States, “ it had no application to the contract proved in this case, and that, after fixing the real value of the property on the day of sale, and ascertaining what proportion of the original bond had been paid, and what proportion was still due, their verdict should conform to such proportion.”
The rules by which the construction and determination of contracts made during the period when Confederate States notes constituted the only circulating medium in the State, have been fully prescribed and set forth in the cases of Neely vs. McFadden, 2 S. C., 169, and Harmon vs. Wallace, 2 S. C., 208.
They determine the principles which must be applied to the construction of such contracts, where, from the peculiar condition of the currency then prevailing, and the state of the country, the intent of the parties is allowed to be ascertained by a resort “ to proof of extrinsic facts and circumstances,” in aid of the inference to be drawn from the instrument itself.
The motion is granted, and a new trial ordered.
Willard, A. J., and Wright, A. J., concurred.