
    *Lohman v. Crouch & als.
    January Term, 1869, Richmond,
    i. Sale of Land—Negotiable Paper—Confederate Currency.—In July 1862, W. sells land In Henrico county at public auction, and it is purchased by O. Nothing is said at the time of the sale as to the kind of money which will be received, but the land is sold for its value estimated in Confederate money as of that date, and C. makes the cash payment in that money, and gives his negotiable notes payable in one and two years, with a deed of trust to secure them. M. receives payment of the first note when it becomes due, in the same money, and has sold the second note to L., who has paid for it in the same currency. When this second note fell due, C. tendered payment in Confederate notes which was refused; and he files a bill to have th e a mount due ascertained, and to be permitted to pay the same and have tb e deed of trust released. Held:
    1. Negotiable Paper—Confederate Honey.—The sale was made with reference to Confederate notes as a standard of value, and L., though the holder for value of the negotiable note, takes it as it was held by W.
    2. Same—Tender of Payment—Interest.—C. having tendered the money to L. when the note fell due, L. is only entitled to the value of the Confederate notes at that time; but C. not having retained the money, must pay interest from that day.
    3. Same—Same—Equitable Conditions.—G. having tendered the money as soon as it was due, the court cannot impose upon him any equitable conditions beyond the payment of the sum due upon the note.
    4. Case at Bar—Tender—Valid.—C. sends an agent to L. on the day the note is due to pay it; and the agent tells L. he is sent to pay the money and gel the note; and he shows L. a parcel of money which the agent holds in his hand, which is rtiore than the amount of the note. L., without objecting that it is not the precise amount due, refuses to receive payment, because the notes have greatly depreciated since the note was made. It was a good legal tender.
    5. Tender—Quaere.-Qtjjebe: If the tender had not been made until after the note fell due, upon what equitable terms would 0. have been relieved? Would he have been required to pay L. the value of the Confederate notes he paid W. for the note at the time he bought it, or the proportionate value of the land ?
    *This was a bill filed in July 1867, in the Circuit court of the city of Richmond, by Edward Crouch against E. W. E. H. Bohman, Wm. A. Wyatt and another. The bill set out a sale of a tract of land by Wyatt to Crouch on the 16th of July 1862, at the price of thirty-nine hundred dollars, of which one thousand dollars was paid in cash, and Crouch executed his negotiable notes for the remainder, at twelve and twenty-four months, interest added. The twelve months’ note was for $1,537, and the twenty-four months’ note was for $1,624. They both bore date the 16th of July 1862, and were secured by a deed of trust upon the land, in which James M. Taylor was the trustee.
    When the twelve months’ note fell due, plaintiff promptly paid the same to Wyatt, and proposed to pay the other note though it was not then due; but Wyatt informed him that in March 1863, he had sold it to Bohman. That the plaintiff then in July 1863, applied to Rohman to be permitted to pay the note, but Rohman declined to receive the money on the ground that he had no use for the money, and would rather wait until it was due.
    ; That in July 1864, when the said note was approaching maturity, the plaintiff, being sick, sent to said Rohman by plaintiff’s daughter, E.. E. Walker, the full amount of said note, viz. $1,624, in Confederate States treasury notes, in payment of said note. Rohman admitted he had the note, but refused to receive payment of'said note, on the ground that the currency had depreciated since he bought it.
    The plaintiff charged that the true understanding and agreement between Wyatt and himself, at the time the notes were executed, was that the said notes were to be paid in Confederate currency, and none other, when they should mature; and accordingly Wyatt readily received paj-ment in July 1863, of i the first note. That Rohman was bound to receive payment *in Confederate States treasury notes at the maturity of the note; and that therefore the plaintiff was entitled to that relief which a court of equity is authorized to give by the 4th section of the act passed March 3d, 1866, for the adjustment of liabilities, &c.
    The prayer of the bill was that the court would ascertain and determine whether anything was due to Rohman, and if anything, how much; and upon payment thereof, that the said note might be delivered to the plaintiff, and that the deed of trust might be released, and for general relief.
    The defendants answered the bill. Wyatt admitted the sale, the payment of $1,000, and the execution of the two notes and the deed of trust as stated in the bill. He denies that there was any agreement or understanding between himself and the complainant, that payment of these notes when due, would be received in Confederate currency, however depreciated it might be. Nothing whatever passed between them as to the kind of money in which the notes were to be paid. The contract was a legal contract, and gave the right ro claim legal currency in discharge thereof. It was true he did receive Confederate currency for the first note, but he received it not because he was bound to receive or had agreed to receive it, but for other motives which were operating upon thousands of other persons at that time. He, early in 1863, sold and endorsed the second note to the defendant Rohman, who paid him for it the full amount for which it called, in Confederate currency.
    Rohman . says in his answer, that it is utterly untrue that he bought the note with any understanding or agreement on his part, that he was to receive'payment thereof at maturity in Confederate treasury notes, however much depreciated they might be. He claimed that having bought the note, and it being endorsed to him, he became as holder, entitled to the full benefit ^thereof, and of the deed of trust to secure it. He admits a casual conversation with the plaintiff in July or August 1863, when the plaintiff asked him if he did not want the money for the note, to which respondent replied, in substance, that the note was not due, and he did not want the money. He says about the 19th of July 1864, plaintiff came with a lady, whom respondent understood to be his wife, to. the residence of the respondent, and offered to pay the amount of the note, $1624, in Confederate treasury notes. The respondent refused to receive them, because such notes were then depreciated enormously below .the value of gold. No money was produced, and no tender was actually made to this respondent, but if it had been he would have refused it for the reason above stated. He has no recollection of any interview with Mrs. Walker, and no recollection of any tender of Confederate treasury notes made by her, but even had such tender been made by her at the time and under the circumstances mentioned, he would have refused it for the reason above stated.
    The defendant further said, he is advised that he has a right to receive either what the motley represented by his note was worth in gold at the time of the purchase (from which time Edward Crouch, the complainant, has had full possession and enjoyment of the property,) or the value of the property as represented by his note. Either of these would be acceptable to this respondent. That the property purchased by Crouch was worth before the war, at the. gold standard, not less than $3500; and when the plaintiff purchased it, fully the purchase money of $3900. At that time Confederate treasury notes were only depreciated to the rate of $1 40 to one dollar, as compared with gold; not more depreciated than United States National Bank currency now is.
    Mrs. Walker was examined as a witness by the plaintiff. *She says she went to the house of the defendant Rohman the day the note fell due, and introduced herself to him as the daughter of the plaintiff, and told him she had come to pay him the money due and get the note. He asked me what kind of money I had; I told him Confederate money. He said he would not receive Confederate money. He said he paid gold and silver for the note, and would not receive anything else. Witness further said she had in her hand $1800, and showed it to Rohman.
    Wyatt was also examined as a witness. He says as to the money, when he took Crouch’s notes, he expected to receive payment in the currency that was afloat at the time the note became due; and that if he had held the note he passed to Rohman when it fell due, he should have felt compelled to take payment in the currency of that date; but he did not tell Rohman that he expected to be paid in.that currency. It appeared that a previous answer had been prepared for him which was not filed. ■ In this answer he had stated that the sale was made wholly with reference to Confederate curren cjr. The cash payment was made in Confederate currency, and he expected the credit payments to be made in the like currency, or such other as might be in circulation at the maturity of the notes; and he received payment of the note due July 1863 in that currency.
    It appears from the evidence in the cause, that the land was sold at public auction, and that nothing was said at the time of the sale about the currency in which the payments were to be made. A short time before the war it was purchased by Wyatt at $3200, which was considered a fair price for it. It was then in good repair; but before the sale to Crouch in July 1862, it had been badly torn to pieces by the soldiers who encamped on or near it. A witness, Cauthorn, who lived near it, estimated its value in money, such as before the *war at the time of the sale in July 1862, at $2S00. And it appeared that at this last date Confederate treasury notes was in value as $1 50 to one dollar in gold; and in July 1864 they were as $21 50 to one in gold.
    The cause came on to be heard on the 12th of Rebruary 1868, when the court held that the plaintiff’s note held by Lohman was made with reference to Confederate States treasury notes as a standard of value; and that the amount due upon it in Confederate notes had been tendered by the plaintiff to him; and decreed that the said note for $1624 be commuted into lawful money of the United States at the rate of twenty dollars of Confederate treasury notes for one of the lawful currency of the United States ; and fixed the amount due from Crouch to Lohman at eightj^-one dollars and twenty-five cents, with interest from the date of the decree. And it was further decreed, that upon the plaintiff’s paying to Lohman the said sum of $81 25, with interest as aforesaid, Taylor, the trustee in the deed given by Crouch to secure the purchase money, should release and reconvey the land to Crouch. And Lohman was decreed to pay the costs of the suit. Prom this decree Lohman obtained an appeal to this court.
    Howison, for the appellant.
    1st. What was the legal contract between these parties prior to the statute scaling debts? This question is answered by the case of Omohundro v. Crump, 18 Gratt. 703. This case is in all respects like that, except that the appellant here was a holder for value of a negotiable note without notice of anything, except that it was given for land, and was secured by a deed of trust. As such he took the note free from- all equities between the former parties. Chitty on Bills p. 90 marg. ; Robertson & Co. v. Williams, 5 Munf. 381; McNeil *v. Baird, 6 Munf. 316; Vathir v. Zane, 6 Gratt. 246; Wilson v. Lazier, 11 Gratt. 477. As to the tender in 1864, Confederate money could not be a legal tender.
    Upon the question whether parol evidence was admissible to prove the consideration of the note, Joynes, J., says, in Omohundro v. Crump, 18 Gratt. 703, 705, it was at least doubtful independent of the statute; and in Woodward, Baldwin & Co. v. Foster, 18 Gratt. 200, it was held that parol evidence was inadmissible to vary the obligation.
    2d. How does the statute in relation to scaling Confederate contracts bear upon the case?
    As to the tender. The bill asserts that plaintiff made a tender of the money; but the answer says that no tender was made. In such a case as this the plaintiff should make out his case beyond any question; and I submit that Mrs. Walker’s testimony does not establish a legal tender. Stephen’s Ni. pri. 2004, 2006, edi. of 1844.
    In Dearing’s adm’x v. Rucker, 18 Gratt. 426, it was held that the general assembly had no power to impair the obligation of a contract. All the statute did was to open the case to evidence and then fix the value. It is proved that there was no agreement between Crouch and Wyatt that Confederate money should be taken in payment of the notes; nothing was said upon the subject. The act of March 3d, 1866, Sess. Acts, p. 184-6, $ 2, provides for cases in which, according to the true understanding and agreement of the parties, the contract was to be performed in Confederate States treasury notes, or was entered into with reference to such notes as a standard of value. Now the question is what was the agreement; and here there was no agreement, except to sell and purchase the land at the price bid for it by Crouch.
    *H. Cannon, for the appellee.
    The case turns upon the character of the contract. The evidence shows it was made in July 1862; when there was no money in circulation but Confederate treasury notes. The land was sold with reference to these notes as a standard of value; and the cash payment was made in them. There is therefore nothing in the case to require a different rule of adjustment from that acted on in Dearing’s adm’x v. Rucker, 18 Gratt. 426. If this be a contract falling within the operation of the act of March 3, 1866, then the endorsee only took what the payee held.
    As to the tender. It is true Confederate treasury notes were not money in the sense of legal money, but there may be a tender of chattels, if chattels are the subject. 2 Parsons Contr. 646. Then did Crouch tender the money. Lohman does not deny the tender; he only says he does not remember; and Mrs. Walker proves it.
   RIVRS, J.

The first enquiry in this case, is into the character of the negotiable note, which was purchased by the appellant of William A. Wyatt in March 1863. If that note is to be taken according to the understanding of the parties as payable in Confederate notes, then it is subject to be scaled under the act of March 3, 1866. If, however, it expresses a specie debt, it can only be discharged in that constitutional currency, dollar for dollar, and admits of no reduction unless by the operation of the legal tender law of congress. In this latter case, the judgment must be for the dollars expressed on its face. There can be no intermediate ground; and I am free to say that if in this investigation I should come to the conclusion that the note in question, belongs to this latter class of demands, I would sanction no compromise of so clear a right, but concede a recovery to the full nominal amount. It is, ^therefore noticeable that the holder of this note while resisting its payment in Confederate notes as of the date of its maturity, acknowledges in his answer that either one of two settlements would be acceptable to him; namely, the value of the Confederate currency at the date of the note, or the value of the property, as represented by the note. The bill sets out a Confederate contract, solvable in Confederate notes. The averment is plain and distinct that “the notes were to be paid in ‘Confederate currency’ and none other, when they should mature.” This is denied by the appellant in his answer sub modo only. He limits himself to a restricted disclaimer of “any understanding or agreement on his part to receive payment thereof at maturitj’- in Confederate treasury notes, however much depreciated they might be.” He nowhere denies his obligation generally to receive this currency; but leaves it to be inferred that if it had not depreciated, and for a stronger reason, if it had appreciated, he would not have made the objection. His claim, therefore, rests not upon the fact that the note was not truly payable in Confederate currency, but rather upon the grievous depreciation of that currency at the maturity of the note. When we take, in connection with this qualified denial, the fact already mentioned, that the answer advances no other claim, nor asserts any other right, but “to receive either what the money represented by the note was worth in gold at the time of the purchase, or the value of the property as represented by the note, ’ ’ we cannot escape the conclusion that there is nothing in the answer of the appellant that denies the character given to this note by the bill, or disputes the receivability of Confederate notes. His pretension is simply, that he should not bear the loss of this depreciation, but should receive either the worth of this currency at the execution of the note, or else, the proportionate value of the real estate represented *by this particular instalment of the purchase money therefor.

The answer of the other defendant in this cause, Wm. A. Wyatt, is stronger upon this point. After setting out with the same restricted denial of an agreement “to receive payment in Confederate currency, however depreciated it might be,” this respondent goes further and asserts “the right to claim legal currency in discharge thereof. ’ ’ But the respondent is confronted with his own deposition in this cause, wherein he acknowledges that he had previously given another answer, which contained this distinct declaration that “the sale was ma'de wholly with reference to Confederate currency. The cash payment was in Confederate currency, and this respondent expected the credit payments to be made in like currency, or such other as might be in circulation at the maturity of the notes.” This testimony discloses the respondent’s ignorance of the legal force of the answer filed, and sufficiently proves the understanding for Confederate currenc3r. Thus stands the case upon the pleadings.

But when we look into the circumstances attending the contract, and recall the historical fact that at that time Confederate money was the only circulation, we cannot doubt that all the parties contemplated a payment in that currency. The price of the land is proven by Cauthorn to have been a Confederate price; the cash pa3rment was Confederate, and the second instalment was received without objection in the same currency at a time when it had sunk to the ratio of six and a half for one. As between the original parties to this contract—Wyatt and Crouch—there can be no difficulty in declaring these notes to be pa3’pable in Confederate notes. Did the note purchased by Dohman lose this character, or wear any other aspect in its transfer to him? Though negotiable, and for that cause protected in the hands of a holder for value against all equities *between the original parties to it, it was not thereby transmuted into a specie debt. There is no pretence for alleging that it was ever purchased or held as such; on the contrary, I have already endeavored to show from Dohman’s answer that he set up no such claim, but actually submits to a scale of it as of its date or its value, as shown by the share of land for which it purported to have been given. The consideration which he gave for it consisted of Confederate notes, which from the time of its execution had so fallen as to require then four and a half for one. He, therefore, knew its character when he negotiated it.

Upon this point this case is decidedly stronger than that of Dearing’s adm’x v. Rucker, 18 Gratt. 426. There, the consideration of the bond was in part an antecedent specie debt; yet inasmuch as a check by which at one time the demand was liquidated, would have been payable in Confederate currency, and there was a novation of the debt by a loan, the court, while divided on the main question, concurred in treating the bond, which like the negotiable note here, merely called for dollars and cents, as clearly payable in Confederate currency. The president of the court, who dissented from the rule laid down in that case for the application of the scale, nevertheless agreed with the court as to the character of the bond in this particular, and regarded it, notwithstanding the absence of all reference to Confederate notes, as payable in them. The bond bore date the 14th June 1862, and referring to it, the president took this broad ground, that “Confederate notes being the principal, if not the only currency of the country during the period aforesaid, it is fair to presume, in the absence of evidence to the contrary, that any contract made during that period was intended to be performed in that kind of currency, or was made with reference thereto as a standard of value.” I fully concur in the reasonableness of this presumption ordinarily, *and applying it to the case at bar, I cannot conceive how any one can doubt that this note, whether in the hands of the original payee, or a purchaser for value, is to be taken and treated as pajrable in Confederate notes, if current at its maturity.

An effort was made in the argument to liken this case to that of Omohundro v. Crump, 18 Graft. 703, where the bond was held to be payable in the legal money of the country. But the transactions are of different dates, and are deemed, under the circumstances, to have reference to different currencies. The bond of Omohundro bore date on the 8th day of November 1861, before Confederate paper money had filled the channels of circulation. The table of value of Confederate currency, admitted by consent in this case, as evidence, commences with January 1862, showing conclusively that before that time this currency had either not so entered into circulation or been depreciated as to admit of such quotations in the market. Besides the act of March 3, 1866, for scaling Confederate debts, applied to no contracts entered into before the 1st of January 1862. The cases, therefore, are wholly dissimilar, and governed by different principles.

Upon precedent, then, as well as reason, I think, we have satisfactorily ascertained that the note in question was payable at its maturity in Confederate paper money, if not then extinct as a circulating medium. It is material at this point to enquire whether there was any default on the part of the maker when it fell due. He is in a court of equity seeking a release of his land from the lien of this note; and if he is culpable or guilty of any default in its payment, he might be required to account for the value of the land at the time of the purchase under the- authority of White v. Atkinson, 2 Wash. 94. The reasoning of all the judges in that case shows that if it had been a specie contract, *performance of it would have been decreed upon the pa3'ment of the purchase money, as agreed, with interest; but in view of the fact- that it was made on the fluctuating basis of a depreciating currency, it was held that the purchaser under such circumstances should be required by the court of equity, whose aid he was seeking, to do equity, which was deemed to be, in that case, to pay the value of the land at the time of the contract, instead of the value of the money agreed upon. There the purchaser did not punctually pay, nor offer to pay, the purchase money according to his undertaking. Here, however, the facts are quite different. Bet us first look into the bill and the appellant’s answer, and see how far the facts are conceded in the pleadings. The bill alleges that the complainant applied to Bohman in July 1863 to pay off and discharge the said note before its maturity; ‘ ‘but the said Bohman declined" to receive the money in advance on the ground that he had no use for the money, and would rather wait until it became due.” The fact of such application is not material, except as displaying the animus of the parties, because there was no sort of obligation on the holder to receive payment till due. How is this allegation, however, met in the answer? Certainly not by a denial; but rather by an admission of ah interview with the complainant about that time, when he was “asked if he did not want the money for the note, or some words to that effect, to which respondent replied, in substance, that the note was not due, and he did not want any money;” the respondent restricts his denial to the phrase, ‘he would rather wait until it became due ;’ so that the averment of the bill of the fact of this application is substantially uncontradicted b31' the answer. But the material averment of the bill is, that “when the note was approaching its maturity, the complainant, being sick at the time, sent to the said Bohman, by his daughter, the full amount of *said note in Confederate States treasury notes, and she, with the money in her hand, tendered him the sum due by said note,” which was refused on “the ground that the currency had depreciated since he bought the note.” The version given by the answer is somewhat variant; the respondent states that “about the 19th of July 1864 the complainant came with a lady, whom this respondent understood to be his wife, to the residence of this respondent and offered to pay the amount of the note of $1,624 in Confederate treasury notes. This respondent refused to receive them, because such notes were 'then depreciated enormousl}' below the value of gold. No money was produced, and no tender actually made to this respondent, but if it had been, he would have refused it for the reason above stated.”

This fact then stands confessed by the pleadings, namely, that about the maturity of the note the holder was waited upon by the maker or his. agent, and was offered the amount of the note in the currency, for which as we have seen it called. But whether this offer was so made as to constitute any actual tender, is the only point in issue? This I -think is determined by the testimon3r of Mrs. "Walker, who made it. Her statement is, that when she called upon Mr. Bohman to pay this note, she informed him of her business, and “proposed to pay the money and get the note; that she had $1800 with her, held it in her hand, and showed it to him, and offered to pay him the amount of the note, but he declined it, saying he would not receive Confederate money, that he had paid gold and silver for the no'fe, and would not receive anything else. ’ ’ It will be conceded that the legal incidents of a valid tender are the actual production and proffer of the precise sum due, so as to relieve the creditor of anything on his part to be done to reap the full fruition of his contract. But these may be dispensed with, either expressly or impliedly, by the creditor. The doctrine is *a reasonable one. It is accommodated to the circumstances of each case, so as to give to the respective parties the natural and intended benefits of their acts. Thus, if it be objected in this case that, according to the pretensions of Toll-man, there was no actual production of the money, we may well exclaim what was the necessity of it, when his refusal was in no wise predicated of its non-production, but was such as to waive by the strongest implication the necessity of producing it; and again, if the objection be that the tender was for more than the whole debt, the question recurs, whether the creditor by not objecting for the want of change, but for a different and collateral cause, did not thereby abandon this objection. Thus, in the case of Bevans v. Rees, 5 Mees. & Welsh. R. 305, Tord Abinger said: ‘ ‘I am not disposed to lay down general propositions, unless where it is necessary to the decision of the case; but I am prepared to say, that if the creditor knows the amount due to him, and is offered a larger sum, and without any objection on the. ground of want of change, makes quite a collateral objection,.that will be a good tender.” I conclude, therefore, that the tender in this case was a good one, and that if, instead of retaining the sum, the debtor had taken instant measures to set it aside, or bring it into court for the creditor, it would have availed to stop interest. At any rate, the debtor has made no default, and in coming into equity for relief, need not be subjected to terms, and is well entitled to ask to stand upon the literal terms of his agreement, even upon the ruling in White v. Atkinson.

But the complainant in this case specially invokes the relief authorized by the 4th section of the act of'March 3, 1866. This section contemplates and provides for two classes of “bona fide and actual tenders in Confederate States treasury notes;” one of tenders at the maturity of the claim, and the other of tenders *after the maturity of the claim. In both a court of equity is authorized to grant relief, subject, however, to two conditions: first, that it shall not appear “that the creditor was justified in refusing to accept the amount tendered in consequence of a substantial and decided depreciation of said currency after the time at which payment ought to have been made, and before the time at which the tender was made; and secondly, that it shall not otherwise appear to be inequitable to grant such relief.” The first of these conditions is pregnant of meaning and instruction upon the application of the scale in this case, It bases an exception upon the fact of a signal depreciation between the time of maturity and the time of tender, leading irresistibly to the conclusion, that payment or tender of payment is regular, legitimate and unobjectionable at the former period. It virtually appoints the maturity of the claim as the time for ascertaining the value of the Confederate notes, or “other equal or better currency” to be tendered or received in discharge of it. We should, therefore, violate the plain meaning of this provision under which we are called upon in this case to act, if we were to yield to the appellant’s demand to scale his claim as of the date of its execution rather than of its maturity.

But it is supposed and urged that this 4th section should be controlled or modified in .this respect so as to be reconciled to the 2nd section of the same act, which, it is said, applies the scale at the date of the contract. But this assumption is incorrect. There is no such restriction in this section. It existed in the act of 1781 before the adoption of the constitution of the U. S. A new duty grew out of that constitution and was.devolved upon the assembly of 1866; and that was, so to frame their laws for the adjustment of Confederate liabilities as not to violate the constitutional provision against laws impairing the obligation of contracts. In obedience to this requirement the *assembly of 1866 departed from the precedent of 1781', and instead of confining the scale to the time of the contract, as did the act of 1781, took care to provide the alternative of “such other time as may to the court seem right in the particular case,” so that the court might at all times, further and'effectuate the understanding of the parties, and avoid any violation of their contract. It has been supposed that the fifth section of the act of 1781 assimilated that act to the present one so far as the designation of the time to apply the scale, is concerned; but it is manifestly a larger discretion given the court “to award such judgment as to them shall appear just and equitable,” without pointing specially as this latter act does, to the period of scaling. Upon this question of legislative intent, some light may be obtained by reverting to an antecedent law upon the subject of the currency. I refer to the act of October 14, 1863, ordaining the currency in which contracts on or after the 20th of October 1863, shall be deemed to be payable. It designates it as “the currency, which, at the time the contract becomes payable, shall be receivable in payments to the State, &c. ” It is, therefore, another and instructive instance, in which the legislature adopts “the time the contract becomes payable” as the proper juncture to fix the liabilities of the parties.

But after. all, the function of courts is restricted to the proper interpretation and due execution of contracts. They have no authority to modify or alter the contracts that may be submitted to them for construction or execution. When the true understanding of the parties, has been arrived at it becomes in itself a law to the court, and demands a scrupulous fulfilment. The legislature, also, is incompetent to control or vary contracts, and any law having that effect, is simply void. Our enquiry in this case must, therefore, be directed to ascertain in what way the contract between the maker and holder of this note, is to be executed *under existing circumstances, in conformity with its true obligation, and with legal principles.

They were both dealing in an unstable and precarious currency. It was inconvertible, and its payment, indefinite in point of time, was contingent upon the ratification of a treaty of peace between the Confederate States and the United States. We have only to revive our recollections by consulting the table that has been given in evidence, to renew our appalling sense of its rapid and progressive depreciation. We can more sensibly feel and test this by working out results by this table. Suppose hohman, in the choice offered him, had taken the first note of $1,537, he would only have given for it in gold $341, and would have realized at its maturity only $160, showing a loss upon the operation in the course of five months of $181. So, when he chose the second note, he paid for it in real value only about $383 11. Such experience banished credit from business and pecuniary transactions during the Confederacy, and made cash, a necessity in all dealings. Wherever credit was given, unless it was long enough to survive this currency, it necessarily entailed loss and often most grievous loss. Hence when the outcry of hardship is raised against the courts in the execution of these Confederate contracts, it is not due to their judgments, but rather to the evils inseparable from such a deplorable state of the currency. It is not in the power or within the province of courts to avert or redress ills proceeding from such a revolutionary state of society, trade and currency. If the appellant’s pretension is sustained, and this note is to be scaled as of its date, then he makes a profit of near $700, receiving $1,082 for what cost him in real value, but $383, at the time of his purchase; his claim, therefore, is two-fold; to escape what he denounces through his counsel here as an atrocious wrong, and reap a profit of a kind he could never have contemplated. *But if he may thus obtain a profit without the scope and intent of his bargain, may not his adversary enjoy a gain which results to him as the fruit of his bargain? In any event, there must be a loss on one side and a gain on the other, and it is the province of' the court to fix it according to the understanding of the parties and the legal effect of their dealings.

Hazard and speculation, after a certain period, entered of necessity into all dealings with this paper iftoney. I will not say that there might not have been some folks of small commerce in life or business, who regarded it and dealt with it as with stable and real values; but they were the exceptions from which no rule for judicial guidance can be safely or properly drawn. It is not, therefore, a matter of presumption to impute risk to Confederate credits at a marked stage of this depreciation; it was necessarily in the contemplation of the parties, at least, by intendment of law, if, in some rare cases, it were not so in fact. How else shall we account for the signal and notorious fact, that credit, from having universally prevailed, gave way during the Confederacy to cash in all business transactions? It was plainly because credit in such a currency, was unsafe and impracticable.

When we come, therefore, after the expiration of this currency, to pronounce upon debts payable therein at future dates, we must necessarily determine who, according to the fair intent of the parties and the principles of law,—creditor or debtor,—is to bear the loss incident to this depreciating medium. It will be readily conceded that it would be competent for the parties to provide for such contingency in their agreement; but in the absence of such provision we must look into the nature of the contract and the rights of the parties to discern where this liability properly rests. In case of a deferred payment, it is but a reasonable inference that the debtor, in thus stipulating for credit, *had a motive for it, and expected a benefit from it. We may not know or be able to conjecture the motive or the benefit; but he is not the less entitled to gratify the one or enjoy the other. Nay, more; if he has no special design in the indulgence, for which he bargains, and it be the mere result of a vague or visionary caprice, he acquires all the incidental advantages that attend upon this delay, whether contemplated or not, and they cannot be wrested from him without a violation of his contract. When one engages to pay, at a future day, the notes of a depreciated and depreciating currency, who can rightfully undertake to say that the obligor did not count, as he reasonably might have done, upon a greater facility of payment from the greater cheapness of the paper, and the consequent advance of prices at that day? Or how can he be denied such advantages if they really occur, although he may not have reckoned or foreseen them? Whatever may be his bargain, he is entitled to its legitimate fruits. So, on the other hand, if the creditor gets, on the agreed day, the commodity for which he contracted, though fallen in value since the date of the contract, he suffers no wrong, though it prove a loss, for the simple and obvious reason that he gets all he bargained for; and in case of default, his measure of recovery is the value of the commodity at the time of delivery, and not at the date of the contract.

This reasoning is strikingly exemplified by the facts of this case. The appellee, Crouch, got two years’ time on his purchase. This indulgence was, of course, a material and valuable ingredient in his contract. The medium of payment became so cheapened, that at the end of one year he sought to discharge both of the deferred instalments, and failing at that time to retire his last note, he was prompt and particular in offering to meet it at maturity. Can it be denied that he faithfully did all he agreed to do? The only justification attempted *for the rejection of this tender, was the great depreciation of the paper; but there seems to me to be no mode of sustaining this plea, except by interpolating in the contract a condition that does not pertain to it; namely, to be payable in Confederate notes, provided they had not fallen in value since the contract. It is needless to say that the whole spirit of the law, which inflexibly upholds the sanctity of contracts, would revolt against such a change of the agreement, and such a dangerous precedent as it would be of the deliberate infraction of the terms of the parties. The obligation of the creditor to assume the risk of depreciation in such a case, inheres, ex justitia, in his agreement to receive at a future day depreciating paper money. He was bound to contemplate the probability of a further decline, and if he did not guard against it it was his fault, and he must take the consequences. That this contingency was in the mind of the appellant, is probable from his selection of the last note. He, doubtless, thought that safest, as it had the greater chance of surviving the war, and of being realized in a better or improved currency. Should he thus bargain for this benefit, and now refuse to bear the adverse chance which has befallen him? It is never a hardship to be required to abide one’s bargain; there may be an individual loss in it; but it becomes a solemn pledge to the public of the cost at which the law protects the interest of trade, the honor of pecuniar}' dealings, and the sanctity of contracts.

This appeal was, doubtless, allowed to give us an opportunity of reviewing the case of Dearing’s adm’x v. Rucker, in which there was a division of opinion. I have accordingly reconsidered that case in its bearing upon this, with a full and honest purpose to change my opinion, if, upon a patient review of it, I became aware of its error. I have not, therefore, gone over the grounds or authorities that were so well taken and ^expounded by my brother Joynes in that case, but have only pursued with brevity the course of reasoning that led me to concur in his opinion, and now conducts me to a reaffirmance of it. o

For these reasons, I am of opinion that there is no error in the decree of the court below, which may not be amended here. As already intimated, interest should be allowed on the sum decreed, from the date of the tender, the 19th of July 1864.

JOYNES, J.

I concur with Judge Rives in thinking—

1. That the evidence proves, that “according to the true understanding and agreement of the parties,” the note in this case was payable in Confederate treasury notes, and that this evidence was admissible against Eohman, the endorsee.

2. That the evidence proves that Crouch made a sufficient tender to Eohman of the Confederate notes payable on said note, within the meaning of the fourth section of the act of March 3, 1866.

3. That Crouch not being therefore in default, the court has no authority to impose any equitable conditions upon him beyond the payment of the sum due on the note.

4. That the tender was not sufficient to stop interest, because- it does not appear that the money was kept in readiness to be paid whenever it might be called for. Gyles v. Hall, 2 P. Wms. p. 378; Shumaker v. Nichols, 6 Gratt. 592; Gammon v. Stone, 1 Ves. sen. R. 339. And, therefore,

5. That the decree should be amended so as to make the interest run from the maturity of the note, and that so amended it should be affirmed.

If there had been no tender, I think the court should have imposed equitable terms on the plaintiff. White v. Atkinson, 2 Wash. 94, establishes that when a contract for the purchase of land is made in a currency *which is already greatly depreciated, and which is constantly undergoing still further depreciation, specific execution will not be decreed in favor of a vendee who is in default, upon his merely paying the purchase money and interest according to his contract. The same principle applies equally in a bill to redeem an incumbrance. I incline to think, however, that all that Eohman could have insisted on would have been that Crouch should have been required to pay him the value of the Confederate money he paid Wyatt for the note—that would have saved Eohman from loss; while to give him the full value of the land, which was not his, would be to give him more than he parted with; and thus to exceed the demands of equity. It is true that, as a general rule, when a mortgagee assigns the mortgage for a consideration which is less than the sum due upon the mortgage, the assignee is entitled to the benefit of his bargain, and the mortgagor will not be allowed to redeem upon paying to the assignee what the mortgage cost him; he must pay all that is due on it. Phillips v. Vaughan, 1 Vern. R. 336; Williams v. Springfield, ib. 476. That rule is obviously just, where the only condition of redemption is the payment of what the mortgagor owes under his contract. But I doubt whether that rule can justly be applied to an exceptional case where, as in White v. Atkinson, the court requires more than the payment of the agreed purchase money. It requires more, in order to do justice to the defendant, and justice is done to him when he is paid for all he ever parted with, and is thus protected against loss.

MONCURE, P-,

dissented.

Decree amended so as to give interest from the maturity of the note, and affirmed.  