The opinion of the Court was delivered by
Wright, A. J.The notes secured by the mortgage were each for one thousand dollars, and if the defendant proposed to claim that the medium of their payment was intended to be in Confederate treasury notes, it ivas incumbent on him to make the proof. — Neely vs. McFadden, 2 S. C., 168 ; Harman vs. Wallace, ibid, 208.
Besides the declarations of the parties at the time of the contract, as to their purpose, it has been held competent to introduce testimony as to the value of the consideration, and any circumstances tending to show the agreement in regard to the currency in which the payment was to be made. In the case in hand the presiding Judge sustained the ruling of the Referee, allowing the defendant the benefit of the “ Act to determine the value of contracts made in Confederate States notes or their equivalent,” approved March 26, 1869. — 14 Stat., 277.
It is evident that the Referee not only misconceived the real purpose of the said Act, but gave to it a construction in direct contradiction to that which it had received in this Court. — Neely vs. McFadden, 2 S. C., 169 ; Harman vs. Wallace, ibid, 208. He regards it as “ imperative in cases where the contract is made during the years from 1861 to 1865, unless positive and unconflicting testimony is adduced to the effect that the contract was not made in reference to such (Confederate) currency.” The effect of this ruling throws the onus on the plaintiff to show that the contract was not made with a view to Confederate money. The conclusion of the Referee is the more extraordinary, as he states in his report “that justice to both parties would seem to require that defendant pay the true value, (which he fixes at twenty-two hundred dollars,) after deducting the payment.” The only ground on which the argument against the motion seeks to sustain the judgment of the Court below is, that the question involved nothing but a mere fact, (the amount due upon the mortgage debt,) and the conclusion of the Referee, adopted by the Circuit Judge, is not to be set aside unless the preponderance of the testimony against it is overbearing.
Though the finding of the amount due on a note or other instrument for the payment of money involves an enquiry of fact, yet if the rules of law fixing the mode and manner of the calculation, and the principles which govern their application, are disregarded, *178and an arbitrary method substituted, although a result may be attained, yet the fact sought for is not ascertained. Suppose the condition of a bond requires the interest to be paid annually, and the Referee, charged with reporting the amount due, should refuse to include the interest on the annual interest as part of the debt, would it be contended that the amount so found by him must, prevail, because he was charged only with the ascertainment of a fact ?
The true enquiry was, what was legally due. The judgment of the Circuit Court is set aside, and the case remanded to it for another hearing, with the following instructions:
The intention of the parties is to prevail as to the character of the currency in which the payment of the notes was to be made, and this may be ascertained by evidence as to their understanding at the time, and, in its absence, evidence of any circumstances may be introduced to show the currency to which they looked for payment. The parties are also entitled to the benefit of the ordinance of the 27th September, 1865, referred to by this Court in the case of Bobo vs. Goss, 1 S. C., 262, and Harman vs. Wallace, already cited.
Moses, C. J., concurred.