The opinion of the Court was delivered by

We must hold the cause of action a mere money demand, arising out of a contract, and to be treated exclusively as *201one of a purely legal character. The answer raised issues of fact, which were triable by a jury, and as no objection was made to the hearing of the case by the Judge, we must assume that a jury was Avaived in the formal mode required by the Code of Procedure. It is not disputed that on and before the 6th September, 1861, the testator, Joseph Whaley, had on deposit with the appellant a balance to his credit, in gold, or its equivalent, nor that after Said date all the transactions between them were understood and agreed to be on the basis of Confederate States Treasury notes. That he had such a credit is conceded by the appellant, and it is admitted in the argument, on his behalf, that from the time named his deposits were made and his checks payable in Avhat Avas known as Confederate currency. The 6th of September, 1861, is referred to as the date on Avhich the change in their course of dealing commenced, because on that day the bank published a notice, the knowledge of Avhich was admitted by Mr. Whaley, “ that from and after that day all credits Avill be given and be payable in currency,” in Avhich it is not denied that Confederate Treasury notes were included.

The first, second and fourth grounds of appeal allege error in the Circuit Court in holding that there was any account existing between the parties to be stated, audited or settled, and in ruling that there had been no settlement between them. These involve questions of fact, which have been passed upon by that Court, and its conclusion in regard to them is not subject to our revieAV. The views of this Court as to its jurisdiction “in cases in chancery,” and as “ a Court for the correction of errors at laAV,” are so fully expressed in Sullivan vs. Thomas, 3 S. C., 331, that it is only necessary to refer to it to show that no appeal lies to this Court, in a case at law, to review the findings of fact in a judgment of the Circuit Court. Where the judgment, however, is totally devoid of facts to sustain it, the error then becomes one of law, and this Court has power to correct it. All the testimony was before the presiding Judge, and his inference from it is that there had been no settlement of the account before complaint made. This we must regard as an established fact in the case.

But the solution of this question by no means precludes 'the appellant from showing that nothing remained due to Mr. Whaley at the time of his demand, for, although there might have been no actual adjustment or settlement of the accounts between them, still their mutual transactions may have been of such a character as to *202leave nothing due from one to the other. This was the matter to be decided by the Court, and it depended on mixed questions of law and fact. The principal among these arises out of the resolution of 6th September, 1861. That it was passed by the bank and brought to the notice of Mr. Whaley are conceded. Its construction was for the Court, and the conclusion of the Judge as to its effect on the mode by which the debtor and credit side of the account is to be adjusted, as it involves a proposition of law, is subject to review and examination here.

For the question thus raised, it is not necessary to determine whether the pass-book is “ the best evidence of the transactions between the bank and its customers.” I.t seems to have been so considered by the Circuit Judge in his discussion of the matter of the alleged final settlement by the bank and Mr. Whaley. In Grant on Bankers and Banking, 605, referring to DeVaynes and Noble, 1 Mer., 535, 536, it is said to be “the only general mode of stating and adjusting accounts between bankers and their customers.” Mr. Morse, in his work on the same subject, at p. 481 to 485, in comparing the relative weight of the books of the bank and the pass-book in raising presumptions favorable to their correctness, rather accords to the latter a higher rank in the grade of testimony. We cannot doubt that as to a charge against the bank by a depositor, the credit in the pass-book is the highest evidence, and the same of an entry of a check to discharge pro tanto the credit side. That mistake may be shown on either in no way detracts from its high character or value. The error charged in the construction of the pass-book consists in not extending to the credit side due consideration of the effect of the resolution published by the appellants. In other words, that wherever a balance is struck on the book between the debtor and credit side, and a sum remains as a credit to Mr. Whaley, the result of all his deposits, diminished by the amount of his checks, that credit fulfills the meaning and intention of the resolution, and is subject to its effect. It does not so appear to us.

On the day that the resolution tvas promulgated Mr. Whaley had to his credit in the bank $33,481.96, in value equal to gold. It was the result of his deposits and checks up to that day, and if there had been no subsequent transactions between them it could not with any reason be contended that at any after period he would not be entitled, on demand, to be paid the amount in a currency *203equal to that for which the bank was liable, on the 6th of September, 1861. If he had, however, on the next day, drawn a cheek for $100, and the bank had, in his pass-book, struck a balance in his favor less the last check, the same argument would hold that the whole balance thus made would at once be converted into a liability on the part of the bank, to be removed by the payment of Confederate Treasury notes, no matter what might be their depreciation, when compared with gold or national currency. A result so unreasonable cannot.be found to have the sanction of law.

A fair and legitimate construction must apply it to future “ credits.” It was to have effect “ from and after that day ” on all credits which might be given out after that day. How could it act on credits for which the bank was before liable ? On what consideration could it found its right to convert a liability for money at par value into one to be paid and satisfied by a depreciated currency, and the character of that to be determined by itself? The words of the resolution seem to lead but to one conclusion, and in their application to Mr. Whaley, unless something has been done amounting to consent or acquiescence on his part to treat his whole running account with the bank as based only upon Confederate currency, we can see nothing in the judgment below that requires our interposition.

It is not necessary that this acquiescence should be by some express admission or act; when it amounts to a ratification of something done it may be equally conclusive, if necessarily and obviously implied from the conduct of the party to be bound by it. The course of dealing in regard to the subject-matter may often be the best and safest medium through which consent and compliance may be inferred. Does the conduct of Mr. Whaley in regard to his dealings with the bank afford evidence of such acquiescence ?

The argument assumes that, by striking the balance, a new and lower value was given to the deposits as they stood on 6th September, 1861. How could this consequence follow when nothing was in fact done that could produce such a result ? If a balance had never been struck between the two sides of the account in the passbook, the sum due would nevertheless have appeared upon it. Striking a balance, from time to time, was a mere matter of convenience, making the difference in the amounts of the two sides at once apparent, and dispensing with the trouble of the addition of long lines of figures, but it in no way changed or varied the re-*204suit to be ascertained by casting up all the items on each side and then deducting the smaller from the larger. No item of the same, to the credit of Mr. Whaley, on 6th September, 1861, could, by possibility, be converted into a new credit, or one to arise “ from and after” a following day. It then had an existence — a credit to be given “ from ” and “ after ” could not be one. which had been given before. The credit of $33,481.96 was really due him on August 15, 1861. Between that date and the 6th of November following he made no deposit, and drew no check. On the day last named his pass-book was balanced, showing no change in his account as it existed on August 15, and yet it is claimed that, by merely prefixing the word “balance” to the credit side as it actually stood before the passage of the resolution, its whole character, as to value, was materially changed. To sustain the construction given to the resolution, in the argument on behalf of the bank, its language should have been of a different character, at least of a kind so plain and significant as to prevent any misapprehension on the part of its customers. To subject the amount due Mr. Whaley before the 6th September, 1861, to the provisions of the first Section, Chapter LY of the General Statutes, p. 310, would be treating it as a debt “ created or contracted in Confederate States notes.” It would determine its value by a provision intended only to affect obligations so arising. While it applies to a debt contracted with a view to Confederate money, as did that which resulted from the deposits and checks after the 6th September, 1861, we can see no reason why, in the particular cause before us, the Court is bound to give such a construction to the terms of the resolution as must change its whole tenor and apparent purpose, unless compelled to do so by some principle of law. Nor do we perceive such acquiescence on the part of Mr. Whaley, in the construction of the resolution for which the bank contends, as binds him to their conclusion. Was there any circumstance apparent from the book, with his view of the resolution, as was naturally calculated to prompt inquiry or explanation ? According to the authorities, no inference can be drawn from passiveness or silence, either as to conduct or language of others. Unless the conduct was. known or the language fully understood, the circumstances must be such as would naturally or properly call for action or reply from men similarly situated.—See 1 Green. Ev., Sec. 197.

We do.not see in the conclusion we have reached any contraven*205tion of the rule applicable to a bank and its creditors, 'which regards “ the first item on the debit side discharged or reduced by the first entry on the credit side.” The rule remains unchanged in its application, but the value of each deposit and check is to be determined by the standard which the parties imposed upon it by their agreement. The aceeptanee of the Confederate money in payment of the checks must be held qualified by the resolution ; its letter and spirit must control the result which would otherwise follow such payments. Mr. Morse, in his work to which we have already referred, at page 28, concedes exceptions founded on “ express contemporary arrangement or understanding.”

It is urged that Mr. Whaley has himself afforded a construction to the language of the resolution by drawing at some time between November 6, 1861, and March 3, 1863, in excess of his deposits, unless his checks can be supposed to refer to the amount which, on November 6, 1861, he had to his credit, as well as to the deposits he afterwards made. So far from, exhibiting any inconsistency, it is reconcilable with the view which he took of the resolution of the bank. If it is correct, his supposed over-drafts were only to be valued at the rate of Confederate money, and discharged pro tanto, the balance due him in good money.

The other grounds of appeal object to the judgment of the Circuit Court “ because it affirms the doctrine that the payment of a running account in Confederate money is invalid, and the payment can be set aside or opened, though there was no fraud, covin or misrepresentation.” We do not see how this conclusion can be reached from anything which appears in the judgment to which it refers. In no regard, in affirming it, do we consider ourselves as at all impugning the principle, which we have maintained in several cases, that “ a creditor, though entitled to demand payment in lawful money, may waive his right and accept any substitute he pleases, and his voluntary acceptance of such substitute, as payment, makes it so.” It has no application here, because the resolution which we think affected all the transactions after 6th November, 1861, looked to a continuance of their dealings to be regulated, determined and settled in a mode which was to be consistent with the terms and conditions which it imposed.

The motion is dismissed.

dissenting. The cause of action was one “ arising on contract for the recovery of money only.” — Code, Section 152. *206This is indicated by the form of the summons, and by the complaint, both in the stating part, and in the prayer for relief. The complaint cannot be regarded as, in substance, an equity proceeding in the nature of a bill to open a stated account on equitable grounds, for the requisites of such a bill are not set forth. The characteristics of such a bill were considered and stated by this Court in McDow vs. Brown, (2 S. C., 95,) nor is any other ground of recovery stated appropriate for the consideration of a Court of Equity. The plaintiff probably assumed that the cause of action was of an equitable character, for the reason that the amount of his recovery could not be ascertained without the taking of an account. The relation of defendant to the plaintiff was in no respect fiduciary, and an acccounting between them was not necessarily an equitable proceeding. The taking of an account is within the jurisdiction of the Courts of law as well as those of equity. The practice of referring issues of fact, in actions at law, where the examination of long accounts is rendered necessary, to referees, existed in New York prior to the adoption of its Code of Procedure. The Section of the Code of that State from which the provisions of the first sub-division of Section 295 of our Code were taken was designed to continue that practice under the Code of that State without essential change. It was not necessary for the plaintiff to leave unstated in his summons the exact amount for which he sought judgment. He was at liberty to insert in his summons and in his prayer for judgment such amount as he considered properly due to him. Such a statement was contemplated by the provisions of Sub. 1, See. 152, of the Code, prescribing the requisites of a summons in an action on a money demand arising on contract, although the want of a statement of a specified sum cannot prejudice the plaintiff at the present time. It cannot, on the other hand, change the essential character of his complaint. The issue joined was primarily triable by a jury. — Code, Section 276. How the case came to be tried before the Judge without a jury does not appear; but we are compelled to assume that the trial by jury was waived, as no objection on this account is brought before us by a proper exception. The action must be regarded as one arising at law, and we are limited to correcting any errors of law that may appear in the record.—Sullivan vs. Thomas, 3 S. C., 531.

The decision of the Circuit Judge places an erroneous construction upon the testimony furnished by the plaintiff’s bank book, and *207such error enters into and affects the whole judgment below. The plaintiff's case rested chiefly upon the proof afforded by his bank book, in which the various credits to which he was entitled were entered by the officers of the bank. The proper understanding of the force and effect of the credits thus given, as evidenced by the bank book, was a question of law for the Court to pass upon, and that we are competent to review. The error of the Circuit Court consisted in construing the credits as they stood in the bank book, without proper regard to the effect of the notice given by the defendants. That notice was given prior to September 6, 1861, to take effect on that day, and was that “ all credits will be hereafter given, .and be payable in currency, in which term the Confederate Treasury notes are included.” A credit appears in the bank book previous to the date of the notice, which, it is not disputed, represented gold values. The first credit that appears after September 6,1861, stands under date of November 6, 1861, and is “ to balance, $33,481.96.” It appears that this balance embraces all transactions prior to November 6, 1861, belonging to this account. This balance was on that day placed to the credit of plaintiff's testator. As the subsequent portions of the account rest upon this balance and upon deposits of currency, it becomes necessary to inquire whether, under the operation of the notice, that credit must be regarded as made with reference to values as existing in Confederate currency. The notice states that “ all credits will be given and payable in currency.” It explains what is meant by currency, making it to include Confederate treasury notes. The credit given by way of balance, November 6, 1861, was already one of the credits intended to be affected by the notice. In order to read “ all credits,” as excluding a certain class of credits, namely, balances of former accounts, carried forward as credits, the language employed by the parties must be limited by the nature of their dealings, or something attendant upon such transactions capable of entering into and modifying the terms employed. The inquiry is, then, whether the nature of the dealings between the parties or the attendant circumstances can operate to limit the terms of the notice in the manner stated. It must be assumed that at the time in question no very great disparity between gold and currency values existed, and we cannot assume that the vast disparity that subsequently occurred was in the contemplation of the parties. That the defendants desired that their accounts with *208their customers should assume the single and simple form of currency accounts, may be reasonably assumed. That they intended by their notice to carry forward gold accounts as separate and distinct from currency accounts, is not warranted, in view of the fact that both parties continued to deal on the footing of a single account, embracing deposits made both before and after the notice. That defendant intended that the gold balance should be carried forward into the currency account without Ifesing its essential character is hardly credible, and not a reasonable assumption. Such a mode of keeping the accounts would tend to create constant ground for dispute between themselves and their customers, on account of the intricacies arising from the constant change in the relation between gold and currency values, the solution of which could hardly be anticipated short of litigation. There is no construction that can be put upon the terms of the notice so as to sustain the plaintiff’s view of the case but what would suppose that the defendant intended something utterly at variance with commercial usage and convenience, and too cumbersome to enter into the practical relations between the bank and its customers. On the other hand, assuming that the intentions of the defendant was that all balances struck after the 6th of September, 1861, should be regarded and treated as currency balances, no possible injury could result to the customers who had a gold balance on deposit at the time notice ivas given, for he mould withdraw it, and, if he chose, convert it into currency and make a currency deposit. It is not reasonable to engraft upon the languge of defendant’s notice terms leading to such intricacies as those involved in the plaintiff’s view of the case. It is too late for the plaintiff to urge that the balance of November 6 was improperly stated, inasmuch as it did notallow the value of the gold deposits in currency. Many years of acquiescence in the correctness of this entry, with full notice, precludes any inquiry into its original propriety. The balance stated and credit, November 6, 1861, was, under the operation of the terms of the notice, to be regarded as a currency credit. Such being the case, it would follow that all subsequent transactions evidenced by the bank book, resting either on that balance or on currency deposits, must be regarded as representing values estimated upon the basis of the current value of Confederate treasury notes. A new trial should be granted.