¶1I 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.
¶2For 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.