
    Wm. Luster v. Wm. C. Maloney, Ex'r of Abijah Scruggs.
    1. Confederate Notes. Their value to he measured hy TJ. 8. treasury notes. In a suit to recover the value of Confederate notes they are to be estimated at their value in United States treasury notes, not in gold.
    2. Variance between declaration and proof. Where a declaration avers the payment of money to the defendant, to be applied in a particular way, and the proof shows the payment to have been made in Confederate treasury notes, it is doubtful whether this discrepancy does not constitute a variance fatal to the case, and the plaintiff is advised to amend his declaration in this respect.
    No record found.
   Freeman, J.,

delivered the opinion of the court.

Lnsier was indebted by note in the sum of $839.82 to ¥m. Scruggs. This note was placed by William in the hands of Abijah Scruggs, as the means of indemnity against a contingent liability on a bond for the prosecution of a suit. While thus in Abijah’s hands, Luster paid the amount to him in Confederate money.

This court held, under the facts, as the payment, that the note was not discharged, and Wm. Scruggs had a decree against Luster for the amount of the note, which Luster assumes to have paid, and now brings this suit to recover the value of the Confeder rate money paid Abijah Scruggs, which was to have paid the note. A judgment was had in favor of plaintiff.

The question presented for reversal is, that under the pleadings in- the case the proof of payment of Confederate money' to defendants’ intestate was incompetent, as being a variance from the averments of the declaration.

On this question there is more or less óf difficulty, but we need not definitely decide the point, as, on looking at the charge of his Honor, the Circuit Judge, we find the case must be reversed on another ground, that is, that the plaintiff was entitled to recover the gold value of the Confederate .money at the time received, with interest. In this he erred, according to the rule established by this court, which — whether the most accurate or not we need not now consider — is one which we think proper to adhere to, and hold that the measure of value of Confederate money in such cáse is their value in United States treasury notes or greenbacks.

It is proper to say, that on remanding the case plaintiff is advised to amend his declaration by stating the fact that he sues for the value of Confederate money according to the facts of the case. As it would be very doubtful whether the averment of having paid so much money to a party, to be paid to another, which he failed to pay over as agreed, would be sustained by proof that he had received the amount in Confederate treasury notes, under the facts of this case.

Let the case be reversed, and remanded for a new trial.  