The case presents two points :
. 1. Whether there was a sufficient demand, before action brought ?
2: Whether the bond and coupons are subject to the legislative scale?
1. The bonds on their face were to be presented at the office of the defendant in Charlotte or Statesville. They were not so presented, because, as was alleged, the defendant had no offices at those places at the time of their maturity, and so they were presented to the defendant elsewhere, and payment demanded.
His Honor instructed the jury, "that, if the defendant had no offices at the places named, then the demand made at their office in Columbia, S. C., was sufficient. We think the instruction was right, even" upon the supposition that a demand was necessary.
2. The ordinance of the Convention, October 1865, provides that all executory contracts, solvable in money, made between certain dates, including the date of these bonds, shall be deemed to have been made with the understanding that they were solvable in money of the value of Confederate eurreney, according to a scale which the Legislature should fix, subject to evidence of a different intent of the parties.
Here was a contract solvable in money, and deemed to be *201solvable in Confederate currency. Was there any evidence that the parties intended otherwise, so as to take this case out of the presumption made by the ordinance ? It is not pretended that there was any such intent expressed by the parties, but it is insisted that such intent is to be implied —that the bonds express ujjon their face that they are issued in “ conformity to the charter,” and that the charter forbids the bonds of the Company “ to be used at a discount below their par value,” and, therefore, it is to be implied, that when the Company issued these bonds it got par value for them; and that when the Company comes to pay the bonds, it must pay par value, i. e, the nominal amount. But this seems not to be true in fact. The charter (S. 41) provides that the Company may make contracts for building the road, and may pay the contractors in bonds at par value, i. e., may pay a hundred dollar debt with a hundred dollar bond ; but then, the debt may have been contracted with a view to the depreciation of the bond with which payment was to be made, so that a hundred dollar contract in name may have been only a fifty dollar, or a ten dollar contract, in value. And, in such a case, a hundred dollar bond issued at par in name, in payment of such contract, would really be issued for the value of fifty dollars or ten dollars. So that, m view of the history of the time when these bonds were issued, of which we take notice, it is rather to be implied, if indeed it be not to be taken as certain, that the bends, although issued at par in name, were really issued at very great discount. Especially is this to be taken to be so, inasmuch as the plaintiff has not shown for what these bonds were issued, or what consideration was actually paid for them.
It wou’d have been competent for the plaintiff to show that these bonds were given in payment for labor, or for materials, and to show the value of the labor or materials. But he has shown nothing to relieve the case from the presumption that the bonds are solvable in money, of the value of Confederate currency at the time they were issued.
*202And then it is insisted, that if -it appears, either expressly or by implication, or by presumption, that the bonds were issued for less than par, then the Company acted ultra vires, and the bonds are void.
It would do the plaintiff no good to maintain this, for thereby he would lose his debt altogether ; and the defendant has made no such objection. The plaintiff’s counsel did insist, that,no such presumption attached to the bonds; because the company had no power to issue bonds with such a quality. But still, he insisted, that if the bonds have that quality, yet, the company cannot take advantage of its own wrong, and repudiate them. The argument is a dangerous one for the plaintiff, because the authorities are, that if the company had no power to issue the bonds, they are void; but if they had power to issue them, and there was only some irregularity connected with them, the company shall not take advantage of such irregularity. Here then, the plaintiff says, the company bad power to issue the bonds, and is liable for their full value : the company admits'its power to issue the bonds, but insists, that it is'liable only for their real value. Both parties, therefore, admit the power to issue the bonds justas they are, and their construction only is before the Court. The charter authorizes the issue of the bonds, at their par, or full value, in payment for building the road; and allows them to be converted into stock, dollar for dollar, or redeemed with money ; and then the statute says, that shall be deemed to be money of the vahío of Confederate Treasury notes, nothing else appearing. The bonds themselveá stipulate, that they may be converted iuto stock at their par value, by the holder. The holder, the plaintiff, lias chosen not to convert them into stock, but to sue for their money value; which, in the absence of proof to the ..contrary, the statute fixes to be money of the value .of Confederate notes.
There is error.
Per Cdeiam Venire de novo*