
    *Effinger v. Kenney, Trustee.
    November Term, 1873,
    Richmond.
    1. Supersedeas — Bond — Reduction of Penalty.—Judgment in June 1866 in the County court. July 29th,. 1866, defendant presents to a judge of the Circuit court his petition for a supersedeas to the j udgment rendered against him, and the judge awards it and fixes the penalty of the supersedeas bond at $15,000. Afterwards, on the 18th December 1868, the petitioner applies to the same judge to reduce the penalty of the bond; which is done: and the appeal is perfected. It was competent for the judge to modify his first order; and it did not impair or annul ■ the petitioner’s right to the supersedeas which had been awarded to him in July 1866.
    2. Evidence—Competency of.—In action of debt upon a bond given for the purchase of land at auction, it is not competent for plaintiff to prove his declarations not in the hearing- of the defendant, prescribing different terms of sale from those set out in the published advertisement, and announced on the day of the sale, unless shown to have been communicated to him.
    3. Bond—Payment—Kind of Money.—"Where a bond for purchase of land was executed March 30th, 1868, payable in two years, in the absence of any thing on the face of the bond to indicate the kind of money in which it was to be paid, under the statute there is no presumption of law on the question. The only presumption is a presumption of fact, from the circumstances proved; and is a question for the jury.
    4. Same—Same—Confederate Currency.—Land was assessed before the war at $80 per acre; and it was not worth more than $100 per acre. In March 1863 it is sold at auction by a trustee for creditors, and bought by E for $210 per acre, nothing having been said at the sale as to the kind of money to be paid. E pays two-thirds of the purchase money in cash in Confederate notes, and gives his note for the balance, payable in two years with interest; and the money paid is *received by the creditors for ante-war debts at its par value. This money was then at the rate of five for one of gold, though in land sales it was rating at two or three for one. It was a Confederate contract, and should be scaled.
    This case was argued at the last September term of the court in Staunton, and was decided at the present term in Richmond. It was an action of debt in the County court of Rockingham county, brought in September 1865, by James Kenney, trustee for A. C. Bryan, against Jacob P. Effinger, upon a bond for $7,607 70-100, execute'd by Effinger to Kenney for the last payment of. a tract of land sold by Kenney as trustee of Bryan, and purchased by Effinger. The bond bears date on the 30th of March 1863, and was payable on the 30th of March 1865, with interest from its date; and it was silent as to the kind of money in which it was to be paid. Issue was made up on the plea of payment; and the cause was tried in June 1866.
    There were four exceptions taken by the defendant, during the trial of the cause; but it is only necessary to notice the third and the fourth. Upon the motion of the plaintiff the Court gave the following instructions to the jury:
    1st. If the jury believe from the evidence, that the true agreement of the parties to the bond on which the suit is founded, was that the said bond was to be paid in Confederate States Treasury notes, or was given with reference to such notes as a standard of value, the same should be liquidated by reducing the nominal amount due on such bond, to its true value at the time the said bond was given, to wit: 30th March 1863.
    2d. But if the jury believe from the evidence, that according to the true agreement of the parties, said bond was to be paid in such money as the creditors of A. C. Bryan would receive, who were not willing to take Confederate *money, then they should find the full amount of said bond.
    3d. The bond in suit upon its face is for the payment of good money, and unless the defendant proves that the said bond was to be paid in some other way, the jury should find for the plaintiff the whole amount due upon said bond. To the giving of these instructions the defendant excepted.
    The defendant also asked the court to give the following instructions; which were given:
    1st. That no parol evidence is admissible to add to, diminish or vary the terms of. the written terms of the sale of the land for which the writing obligatory in the declaration mentioned was given.
    2d. That no evidence is admissible to prove the present value of said land, (whether it has appreciated or depreciated in value,).to affect the true or specie value of the land at the time of the sale.
    3d. That no evidence is admissible in this cause, to prove other verbal conditions of sale than those embraced in the written terms of the sale on that day, unless the defendant had knowledge thereof, and purchased with reference to such other verbal terms and conditions.
    4th. If the jury believe from the evidence, that the writing obligatory in the declaration mentioned, was payable in Confederate money, or that it was given with reference to Confederate money as the standard of value, the jury must ascertain the true value of said writing according to the value of Confederate money at such time as the court may designate before the jury retire to their chamber.
    The jury found a verdict for the whole amount of the bond, principal and interest; and they further found that the said debt was not to be paid in Confederate *notes. "Whereupon the defendant moved the court for a new trial, on the ground that the verdict was contrary to the evidence, and to the instructions of the court given on the motion of the defendant. But the court overruled the motion, and rendered a judgment according to the verdict ; and the defendant excepted. This exception sets out all the evidence, and the instructions asked by both parties. The facts are sufficiently stated in the opinion of the court.
    On the 29th of July 1866, on the petition of Effinger, a supersedeas to the judgment was awarded by Judge H. W. Sheffey, of the Augusta circuit, and the penalty of the bond required, was fixed at $15,000. In December 1868 Effinger presented another petition to Judge Sheffey, stating his inability to give the bond in so large a penalty, and asking that it might be reduced. And the judge directed the supersedeas to be issued upon the execution of a bond in the penalty of $8,000.
    The case came on to be heard in the Circuit court in February 1871, when that court affirmed the judgment of the County court. Effinger then applied to this court for a supersedeas ; -which was awarded.
    Michie & Michie and Parker, for the appellant.
    Woodson, for the appellee.
    
      
      Bond—Payment—Kind of Money.—On this point, see Walker v. Pierce, 21 Gratt. 722, and see Jarrett v. Nickell’s Adm’rs, 9 W. Va. 353, and Bierne v. Brown’s Adm’r, 10 W. Va. 749, citing the principal case.
    
    
      
      Confederate Currency.—On this point, see Moss v. Moorman’s Adm’r, 24 Gratt. 97, and note.
      
    
   Anderson, J.,

delivered the opinion of the court.

This cause comes here upon a supersedeas to a judgment of the Circuit court of Rockingham county, affirming the judgment of the County court of said county.

Section 6 of chap. 182 of Code of 1860, p. 745, requires, that with the petition for an appeal, supersedeas, &c., there shall be a transcript of the record of so much of the case as will enable the court, if the petition be *granted, properly to decide the questions that may arise before it. In this case, the transcript of the record of the County court, certified by the clerk of that court, was filed with the petition to the Circuit court; and that transcript, together with a transcript of the judgment of the Circuit court thereon, is certified to this court, by the clerk of the Circuit court; and is a substantial compliance with the requirement of the statute.

The supersedeas was granted on the 29th of July 1866, by Judge Sheffey, one of the Circuit judges, to the judgment of the County court of Rockingham; and on the 18th of December 1868 Judge Sheffey modified the order he had made awarding a supersedeas, so as to reduce the penalty of the supersedeas bond from 15,000 dollars to 8,000 dollars. The court is of opinion that it was competent for him so to do. And that the modification of the terms, upon which the supersedeas was awarded, did not impair or annul the plaintiff’s in error right to a supersedeas, which had been awarded to him on the 29th of July 1866, but continued the same on terms less onerous. It was not the inception of the proceeding, but only the modification and continuation of the previous order. Consequently, by reason thereof, the plaintiff’s in error right to a writ of error and supersedeas is not barred.

The court is further of opinion, that the declarations of the defendant in error to other persons, not in the presence and hearing of the plaintiff in error, prescribing different terms of sale from those set forth in the published advertisement, and publicly announced on the day of sale, were inadmissible as evidence against the plaintiff in error, unless shown to have been communicated to him; and that the second instruction, founded evidently upon this illegal testimony, and otherwise irrelevant, was calculated to mislead the jury.

The court is also of opinion that the third instruction, *if not erroneous in terms, is expressed in language calculated to mislead the jury; and probably did mislead them. It implies that the bond upon its face imports a contract to pay in specie, according to the common law presumption, which it was held in Walker’s Per. Rep. v. Pierce, 21 Gratt. 722, was designed to be altered by statute, in relation to contracts of that period. In that case it was said: “The obvious design of the act of 1867 [1866,] (meaning the adjustment act,) is to ascertain and enforce the actual contract between the parties; to do which, it in effect annuls the presumption of law as to the kind of currency in which the contract is to be solved, whether common law or statutory.” This instruction might be understood to exclude, contrary to the terms of said act of assembly, and the repeated decisions of this court, an implication that the contract was made with reference to Confederate currency as a standard of value, or was solvable in that kind of currency, from the character of the currency which prevailed at the date of the contract, and the price paid for the land, which was the consideration of the bond, and other facts proved in the cause. The presumption was one of fact, and was a question for the jury.

It is certified by the court below, as proved on the trial, that the bond which is the foundation of the suit, was given for the last instalment of purchase money for a tract of land, which was sold at public auction on the 30th of March 1863; that nothing was said in the advertisement or public announcement, of the terms of sale, as to the kind of currency which would be received in payment of the purchase money ; but that Confederate States treasury notes were the only currency of the country at the time; and that the land, which had been assessed at 80 dollars an acre before the war, and could not have been sold in March 1863, or any time during *the war, at its assessed value in specie, and was not worth, in the opinion of any of the witnesses, more than $100 an acre before the war, was sold to the plaintiff in error for $210 an acre; that he paid $14,135 dollars in hand, and gave his bond for $7,067 70%, for the residue of the purchase money, payable on the 30th of March 1865, with interest from the 30th of March 1863, the date thereof; that the whole of the hand payment was applied to the payment of old debts by the vendor, and actually discharged 14,135 dollars of specie debts; that Confederate money at the time was rating at about 5 for 1 in gold; but in land sales was rating at from two to three for one; and the witnesses at the time of the sale considered it a sale for Confederate money. These facts plainly imply that it was a sale for Confederate money; which any rebutting testimony in the cause does not repel. And the defendant in error having already received payment of what was of far more value to him than the land, the court is of opinion that the verdict of the jury, which gives him in addition thereto $7,067 70 cents, with interest thereon from the 30th of March 1863, (the face of the bond,) is not only manifestly contrary to the law and evidence, but is hard and oppressive, and ought to have been set aside. There were other questions raised in the cause, which the court deems it unnecessary now to decide; but for the reasons given, we are of opinion to reverse the judgment of the court below, and to remand the cause for further proceedings to be had therein, in conformity with this opinion.

The judgment was as follows:

This cause, which is pending in this court, at its 'place of session at Staunton, having been fully argued, but not determined at the said place of session, this day came here the parties, by their counsel; and the court having maturely considered the transcript of the record of the judgment aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the declaration of the defendant in error to other persons not in the presence and hearing of the plaintiff in error, prescribing different terms of sale from those set forth in- the advertisement, and publicly ¿nnounced on the day of sale, were inadmissible in evidence against the plaintiff in error, the same not having been communicated to him before he purchased; and that the court erred in admitting such evidence; and that the second instruction given by the court to the jury, which is evidently founded upon it, was calculated to mislead the jury. The court is also of opinion that the third instruction, if not erroneous in terms, undertakes to instruct the jury as to what their presumption should be as to the kind of currency in which the obligation was to be discharged; which being a presumption of fact and not of law, was a question for the jury and not for the court; and was also calculated to mislead them, and ought not to have been given.

The court is also of opinion, that upon the facts certified the contract was plainly made with reference to Confederate money as a standard of value, and was solvable in that kind of currency; and that the verdict of the jury is plainly contrary to the law and evidence, and unjust and oppressive; and ought to have been set aside and a new trial granted.

Therefore it is considered, that the judgment of the said Circuit court be reversed and annulled; and that the plaintiff in error recover against the defendant in error his costs by him expended in the prosecution of his writ of error and supersedeas aforesaid here. And this court proceeding to render such judgment as the said Circuit court ought to have rendered, it is further considered, that the judgment of the County court be reversed *and annulled, and the verdict of the jury set aside, and a new trial granted the defendant in that court; and that the plaintiff in error in the said Circuit court recover against the defendant in error in that court his costs by him expended in the prosecution of his writ of error and supersedeas aforesaid in said Circuit court. And the cause is remanded to the said Circuit court, for further proceedings to be had therein, in conformity with the principles herein declared.

And it is ordered, that this judgment be entered on the order book here, and be forthwith certified to the clerk of the court where the same is pending as aforesaid; who shall enter the same on his order book, and certify it to the clerk of the said Circuit court of Rockingham county.

Judgment reversed.  