I concur in granting a new trial, because the Circuit Judge took from the jury a question of fact and’ passed upon it as one of law. If the jury concluded, from the testimony, that the contract had reference to Confederate money, it should have been *493left to them to ascertain its relative value to national currency, by the application of the Act of 1869, aided, controlled or qualified by the evidence as to such value.

For fear of misapprehension, I consider it proper to say that I still adhere to and recognize what was said in Harman vs. Wallace, 2 S. C., 212, as to the competency of the parties to show the value oí’ the land, at the date of the transaction, as contributing to develop the real character of the consideration, as allowed by the Ordinance of 1865. This right has been recognized by the Court in more than one case, and, in Halfacre vs. Whaley, as late as November Term, 1872.

The opinion of the Court was delivered by

This action is upon a bond given to the Commissioner in Equity, in 1864, upon the purchase of land. The principal question at issue was as to the amount of plaintiff’s recovery. Testimony was given on the question whether the contract, at the time it was made, was intended to have reference to Confederate money. Testimony was also given as to the relative value of Confederate money and lawful money at that time, and also as to the value, at that time, of the land to which the bond related.

The Court instructed the jury as follows:

First. That if the debt in this case was created or contracted in Confederate States notes, or with reference to Confederate States *491notes, as a basis of value, issued by the so-called Confederate States Government, or in or by any bills, bonds or notes, assimilated or made equivalent to Confederate States notes, by any law or custom of trade, during the years 1861, 1862, 1863, 1864 and 1865, that they should be determined by the value of said Confederate notes in the lawful money of the United States at the time such debts or obligations were created or contracted.

Second. That if the jury found that the above liability or obligation was contracted with reference to Confederate States or in Confederate States notes, as a basis of value, that the plaintiff was entitled to recover but one dollar for every twelve dollars and twenty-four cents of the amount of the bond sued on.

Third. That if the contract was not made in Confederate States notes, or their basis, as a value, they might inquire and determine whether the bond was to be paid according to the contract in good and lawful money. If so, they should find the amount due on the bond and interest thereon.

Fourth. That if they should reject both the foregoing conclusions they might inquire whether the contract between the parties was made with reference to the real and true value of the property, and find according to that value.

The first proposition thus charged was correct. It submitted to the jury the question whether the parties contracted with reference to a standard of value which, at the time of making the contract, prevailed at the place where the contract was made, and, in the event they should find that such was the intention of the parties, that their verdict should be based upon the relation that such local standard bore to the legal standard of money values.

The second proposition charged was erroneous. It took from the jury, in the event of their finding that the contract was based on the value of Confederate notes, the right to determine, as matter of fact, the relative values of such notes and lawful money. This was a question of fact for the jury, and, in determining it, they were bound to take into consideration the evidence, adduced as to the purchasing value of Confederate States notes at the time and place of the contract, and if, in their judgment, such evidence establishes a different ratio of values from that declared in the Act commonly known as the Scaling Act, they were not bound by the declaration of values contained in that Act.

This misdirection may have misled the jury, for, although it *492would appeal- that their verdict did not follow this instruction, yet it is possible that, finding themselves shut out from looking to the real value of Confederate currency, and compelled to abide by a standard which, in their judgment, may have appeared unreal and unjust, they were induced to adopt the alternative presented in the fourth proposition charged, by holding the contract to be one to pay what the land was reasonably worth at the time and place of contract.

The third proposition is free from error.

The fourth proposition is^erroneous. It virtually authorized the jury to disregard the terms of the bond in suit, and to substitute in their place a contract to pay for land what it was reasonably worth.

Neither Court nor jury can take a liberty of that character with the contracts of parties. The contract in suit was not a contract for the sale of lands, but a bond for the payment of a fixed sum of money upon an executed consideration. A sale of land was its consideration, it is true, but the obligation called for a sum of money alone. As was held by us, in Neely vs. McFadden, 2 S. C., 169, and the cases following, that the jury may inquire what was meant by the parties in the use of the terms employed to describe the medium for its discharge, and, for the purpose of settling the meaning of these terms and fixing the pecuniary value called for by the obligation, have a right to proof of the real value of the property that was the subject-matter of the sale out of which the obligation arose, but cannot convert an obligation of one kind into another of a different kind, in order to carry out an arbitrary idea of substantial justice that may have become fixed in their minds, independently of the rules and principles of law affording the correct standard in the case.

The solution given to the questions already considered disposes, substantially, of all matters involved in the exceptions to the refusal of the Court to charge propositions that were brought to its attention by the appellants.

There should be a new trial.