
    *Magill v. Manson. Same v. Manson & al.
    March Term, 1871,
    Richmond.
    1. Chancery Practice — Cases Heard Together. — M sues O in equity, to set aside her bond, as having been fraudulently obtained. O flies cross bill in the cause, to attach a debt due by S to M for payment of his claim on M. The cases may properly be heard together.
    2. Attachment at Law and in Equity — Election.—O has attached the effects of M at law as well as in equity. He may dismiss his attachment at law, and proceed on his attachment in equity.
    . Chancery Practice — Conflict of Evidence — Issues Out of Chancery Proper. — Upon the question whether the hond of M was obtained by the misrepresentations of O, the evidence being conflicting, an issue should be directed.
    4. Advances in Confederate Currency — How Present Value Ascertained. — If the hond is set aside. O will have claims against M for advances made and money lent in Confederate currency; and also for services rendered during the war. These claims are to he ascertained by reducing the currency to its gold value at the time of the advance or loan, or the service rendered. And the decree should be rendered, in the legal currency of the United States, for the equivalent, at the time of the decree, of the amount in gold so ascertained.
    In November,1865, Otis E\ Manson instituted an action of debt in the Hustings court of the city of Richmond against Elizabeth Magill, to recover the amount of a bond for $2,626, with interest thereon from the 13th of May, 1862, executed by the said Magill to Manson. And at the same time he sued out an attachment against the property of Mrs. Magill, which was levied on the building owned by her, called the New ^Richmond Theatre, and a lot of household and kitchen furniture.
    Upon the issue of the attachment, Mrs. Magill filed her bill in. the Circuit court of the city of Richmond against Manson, in which she charged, that in the month of August or September, 1863, Dr. Manson, who was in the habit of visiting her often, and professed to be one of her best friends, lent her the sum of five thousand dollars in Confederate money, and sold her a parcel of bacon, valued, in Confederate prices, at two thousand dollars; but which proved to be unsound and of.no value whatever; for both of which she executed and delivered to him her note for seven thousand dollars. The said Manson held the said note until the 29th of April, 1865, when he came to her with it and proposed to her to execute a new note to him for twenty-six hundred dollars; saying that Mr. John R. Allen and himself had decided that was thb value of her obligation for $7,000, which he held. And she, being ignorant of the value of Confederate money at that time, and of her rights and obligation in the premises, and confiding in the representations, as well as the integrity of the said Manson, and his repeated assurances of friendship for her, complied -with his request, and executed her note or bond; for she knew not the difference between bond and note, and does not know whether the paper had a seal to it or not, and delivered it to him, without taking from him the original note for $7,000. Not long afterwards she ascertained what a mistake she had made, and how great a fraud her friend Manson had practiced upon her, and she sent for him to her house, and requested him to restore her note for $2,600, and proposed in return to pay him for his seven thousand dollars its value at the time of the loan. She afterwards offered to pay him $1,200, which was more than twice as much as it was worth, in discharge of her obligation; which he ^refused. And he has taken out an attachment against her, on the pretence and false affidavit that she intends to remove her effects from Virginia. She prays for an injunction to all proceedings upon the attachment until the matters alleged in the bill can be heard in a court of equity. That Manson may be compelled to produce the notes or bonds, as they may be, of the plaintiff; that the court will say upon what terms the note of $7,000 shall be settled by her, and delivered up to her; that the note for $2,600 may be cancelled, as executed by mistake on her part and fraudulently procured by Manson; and for general relief.
    Manson answered the bill. He said that prior to March, 1863, he had been purchasing through agents, for the use of his own family, provisions, in the State of North Carolina, where he had lived for many years prior to the war, because he could procure them at prices very much below the rates prevailing in the city of Richmond. That being in attendance upon R. D. Ogden, a member of the family of the complaint, and the manager ,of her theatre, he frequently saw the complainant, and being on friendly terms with her, he, in the course of his visits mentioned to her the fact that he was purchasing supplies in the manner herein stated, for his family; and thereupon she requested the favor of him to procure for her, in the same way, a supply of bacon for her family use, and to advance the money for her to pay for it. This he consented to do, and did procure for her a quantity of bacon costing the sum of $2,000; which he advanced. This was in March, 1863. He did not sell her the bacon as charged in the bill, or derive the slightest advantage from the transaction. Several months after she had received the bacon she informed him that some of it was unsound, and attributed the unsoundness to the fact that she had put it away in an improper place. He saw *the bacon when it was delivered, and knows it was sound at the time.
    He says further, that in August, 1862, he purchased a residence in the city of Richmond, and therefore determined to sell his farm upon which he had resided in North Carolina. This farm, which had cost him, about the year 1857, $9,000, he sold at public auction, in December, 1862, for $10,-000 in Confederate money, his object being to pay off the purchase money for the residence purchased in Richmond; but he was unable to do this, because a party living out of the State held a lien upon it for $2,-636. That finding it impossible to pay off this lien, he determined to re-invest the money he had on hand in other real estate, so that he would be in a condition to meet the outstanding lien upon his house when the creditor could be found; which he'supposed would not be until after the war. He received the last payment for his land in July, 1863, and next month the complainant applied to him to lend her $5,000, in addition to the $2,000 previously advanced for her, and he agreed to do so and let her keep the whole amount of $7,000 during the war, provided she would agree to pay him the amount in legal currency at the end of the war. This the complainant agreed to do, and executed to him her bond for $7,000, payable on demand. In the summer of 1864 he, at her request, purchased for her, through his agent, two barrels of flour, for which he advanced the money; and after keeping it hntil the winter she complained of it, and he took it back and sent to North Carolina and purchased two other barrels, for which he paid $1,000 a barrel, and for which the complainant has never paid him a cent. That being a surgeon in the army he practiced his profession in the city of Richmond, and he frequently prescribed for the complainant, and at her request for members of her theatrical company.
    *He further states, that a few days after the occupation of the city of Richmond by the federal troops, the complainant saw him at the theatre, and requested him to call at her house; and she then informed him that she wished to have a settlement of their affairs, and she would settle upon any terms he would state; that he had been the best friend she ever had, and the only one of her creditors who had not troubled her for money. After this interview at the theatre, and before calling upon the complainant, he called upon Mr. John F. Allen, in whom he knew the complainant had great confidence, to consult him on the subject. The defendant believed he had the legal right to demand the sum of $7,000 in currency, upon the bond of the complainant, but he felt unwilling to do so, and informed the said Allen that he intended to propose to her that if she would assume the payment of the outstanding lien upon his dwelling-house, amounting to the sum of $2,636, with interest from the 13th day of May, 1862, he would g'ive up her bond and all other claims he had upon her. Allen said that he thought the proposition was exceedingly liberal and generous, as the defendant had the undoubted right to demand the amount of the bond in currency. After the consulation with Allen defendant called to see the complainant as she had requested, and 'stated to her what had passed between Mr. Allen and himself, and that he had drawn up a bond for the amount due upon his house, and was willing to accept that in full of all claims and demands he had against her. The complainant declared that she would not onlj-sign the bond most willingly, but that she was most grateful to him for his kindness. This was on the 29th of April, 1865. After executing her bond for $2,636, as aforesaid, and before the defendant left the room, she asked him to let her see the bond again, that she wished to take down the amount of it. He handed her the bond and she put down the amount *on the bond of $7,000, and then put the last mentioned bond away in her secretary, remarking, as she did so, that she always filed away her papers. He had never seen this last mentioned bond since. At that time no court of conciliation had been established, and no rule had been adopted as to the mode of settling even those debts contracted to be paid in Confederate currency. He denies that the complainant requested him to restore her note of $2,600, .and proposed to pay him, for his $7,000, its value at the time of the loan. He mentions several interviews between himself and the complainant, and says that he was still unwilling to sue, but having heard that she was going to France and had sold some of her real estate, and believing that unless he took out an attachment against her estate as provided by law, he would ultimately loose his debt, he instituted legal proceedings for its recovery.
    The plaintiff and defendant were each examined as a witness. The testimony of the first went to sustain the allegations of the bill, and that of the defendant to sustain his answer. There were also several witnesses who spoke of the bacon, giving very different accounts of it.
    In May, 1867, the plaintiff filed a supplemental bill in the cause. She says that soon after she filed her bill she went to New York, and had just returned, and since her return had for the first time seen and read the answer of defendant Manson; from which she learned that instead of executing a note or bond to.him for $2,600, as of the 29th of April, 1865, he had obtained of her fraudulently, by reason of her great confidence in him, a bond for $2,636, bearing interest from the 13th of May, 1862. She charges that the procurement of the bond was a deliberate fraud by the said Manson; and she charges that his entire statement' in relation to it in his answer is utterly false, so far as it imputes to her any knowledge of or purpose *to sign such a bond. She charges that he falsely denies that he retained the bond for $7,000, but affirms that it was payable in legal currency after the war. And she says that she has conversed with John F. Allen, and he assures her he never authorized the said Manson to make any such representation as he states in his answer; but, on the contrary, that he told Manson that he ought to settle the bond at what the money was worth when he loaned it.
    Manson, in his answer to this bill, refers to his former answer, and makes it a part of this. He says the supplemental bill is but a reiteration of the statements of the original bill — statements which he believes the plaintiff well knew to be false when she made them. She knew well that he did not act fraudulently in the matter; and she did know the amount of the bond for $2,636, and the purpose for which it was drawn; and she made it as a compromise settlement or adjustment of all claims against her. And he denies the statements of the supplemental bill as to this bond, or that he has had the bond for $7,000 since the day the bond for $2,636 was executed; and he believes she has that bond in her possession. And he insists that the evidence of Allen, taken in the cause, substantially supports his statement.
    Allen, in his testimony, says: Dr. Manson stated to me he loaned Mrs. Magill, or in other words she was indebted to him early in the war, seven thousand dollars; there was a lien on his house, at the close of the war, for two thousand and odd dollars ; I do not know what the amount was. That he was willing to compromise with her for the seven thousand dollars, for an amount equivalent to the lien on his house. 1 told him I thought it was a liberal proposal he had made. I think Dr. Manson told me that, at the time he loaned the money, it was very slightly depreciated; my impression *was, it was equal to the bank notes then in circulation.
    In May, 1868, the court made a decree that the papers in the cause be referred to one of the commissioners of the court, who is directed to enquire into and report:
    1st. What was the consideration of the bond for twenty-six hundred and thirty-six dollars, executed by the plaintiff to the defendant.
    2d. Whether the defendant, at the time of the execution of said bond, obtained the same of the plaintiff by fraudulent misrep-reservation of the value of the debt due him by the plaintiff or otherwise.
    3d. What were the circumstances attending- the execution of the said bondwhat representations were made by the defendant to induce the plaintiff to execute the said bond; whether the plaintiff was influenced by said said representations, and whether thejr were true or false in fact.
    4th. Whether the plaintiff executed said bond of $2,636, under a mistake as to the value of Confederate money, or anj- other material fact.
    Sth. What was the amount of the debt due and owing to the defendant by the plaintiff, at the time of executing the bond, and how and when such debt or debts was or were contracted, and how and when such debt or debts was or were to be paid.
    6th. From what source any sum or sums of money loaned by the defendant to the plaintiff was or were derived.
    In December, 1868, Commissioner Pleas-ants filed his report. He says he proceeded to examine the papers in the cause, and upon this examination (no other evidence having been introduced before him) he reports. He responds to each of the enquiries directed by the court, sustaining the view of it given by the defendant. *To the report the plaintiff filed various exceptions; but it is not necessary to state them.
    Whilst this cause was before the commissioner, viz: in January, 1869, Manson filed a cross-bill in it, in which he stated that he had sued out an attachment at law against the effects of Mrs. Magill, which was still pending; but the papers in that case had been lost or mislaid. That Mrs. Magill had filed the bill in this case. That, though the attachment suit was pending, Mrs. Magill had gone on to dispose of her property, as if the said attachment was not pending; and that she had just contracted to sell to Conrad Sauer a valuable piece of land, with the improvements thereon, in the city of Richmond, for $6,875, and that Sauer was about to pay the purchase money in part, and execute bonds for the residue. That he has a just claim against Mrs. Magill for $2,636, with interest thereon from the 13th of May, 1862, until paid. That Mrs. Magill has absented herself from Virginia for several months, and he believes she is not a resident of this Commonwealth. That her purpose seems to be to dispose of all her property. He therefore asks that Mrs. Magill and Conrad Sauer may be made defendants to the bill. That he may have a decree against her for the amount of his claim, and that the purchase money in the hands of Sauer, for which he has executed his bonds, and the cash payment, in the hands of Wellington Goddin or Lancaster & Co., her agents, may be attached to satisfy his claim; and that Mrs. Magill, her agents, &c., may be enjoined and restrained from assigning, conveying away or otherwise disposing of the said bonds, so executed by Sauer; and for general relief. |
    The subpoena and attachment were served on Sauer, and the bill was taken for confessed as to him.
    In February, 1869, Mrs. Magill appeared and demurred to the bill for want of equity, and because *there was another suit pending in the court for the same cause of action. She also answered. She denies that she is indebted to the plaintiff in the sum of $2,636; and refers to her former bill and amended bill. She repeats the charges of fraud by Manson in procuring the bond for $2,636. She says that, when he instituted his suit at law, he sued out an attachment against her property, and levied it on the Richmond Theatre, worth sixty thousand dollars; and she gave bond and security, as required by law, to satisfy the plaintiff’s recovery, if any, and so discharged the attachment; and she insists that this second suit, for the same cause of action, is illegal and void. She denies that the papers in the first suit are lost, and exhibits a copy of the attachment and the return of the officer thereon; the said suit having been removed from the Hustings to the Circuit court.
    The court having required Manson to elect whether he would prosecute his suit at law or the suit in equity, he elected the latter, and on the 6th of March, 1869, on his motion, the action at law was dismissed.
    On the 8th of March, 1869, on the motion of Manson, and against the protest of the plaintiff Magill, the causes came on to be heard together, when the court overruled the exceptions of the plaintiff Magill to the commissioner’s report in the first, and made a decree against her in favor of Manson for $2,636, with interest from the 13th day of May, 1862, until paid, and his costs. And it appearing from a statement agreed to by the parties, that the debt of Sauer to Mrs. Magill consisted of four bonds, all bearing date the 8th of December, 1868, and payable respectively at four, eight, twelve and sixteen months from their date, each for $1,208 06, the court further decreed, that unless Mrs. Magill should pay the said principal sum, interest and costs, within thirty days from the entry of this decree, then that Sauer, in discharge of his first and second *bonds, should pay the amount, as it fell due, to Manson, which was to be credited upon his decree against Magill; and these ’ payments still leaving a balance due to Manson upon his decree, Sauer was directed to pay the amount of his third bond, when it fell due, into bank, to the credit of the court in this cause; and Manson, or his counsel, was authorized to check on the fund for the balance of his decree. And upon the payment of these bonds, as directed, Mrs. Magill was directed to deliver the bonds to Sauer.
    From this decree Mrs. Magill obtained an appeal to this court.
    Lyons and John Howard, for the appellant.
    Steger & Sands and Meredith, for the ap-pellee.
    
      
      Attachment at Law and in Equity — EIection.~See Bart. Ch. Pr. (2d Ed.) 625. See generally, mono-graphic note on “Attachments” appended to Lancaster v. Wilson, 27 Gratt. 624.
    
    
      
       Chancery Practice —Conflict of Evidence — Issue Proper. — In Snouffer v. Hansbrongh. 79 Va. 177, the court said that upon the general question as to when an issue out of chancery should he awarded the principal case, Smith v. Betty, 11 Gratt. 753; Mettert v. Hagan, 18 Gratt. 231; Beverley v. Walden, 20 Gratt. 157, and Powell v. Manson, 22 Gratt. 177, might be consulted.
      As said in the principal case when the evidence is conflicting and unsatisfactory, an issue should he directed to ascertain the facts. See also, Hooe v. Marquess, 4 Call 416; Marshall v. Thompson, 2 Munf. 412; Bullock v. Gordon, 4 Munf. 450; Knibb v. Dixon, 1 Rand. 249; Isler v. Grove, 8 Gratt. 257; McCully v. McCully, 78 Va. 159; Chapman v. Chapman, 4 Call 440.
      But a court will not award an issue in every case where the evidence happens to he conflicting, for, if the court is satisfied, it will not send the case to a trial at law. An issue ought to be directed where the credit and accuracy of the witnesses are impeached, or where the evidence is so clashing as to render it necessary to weigh the character and credibility of the witnesses, or where the evidence is so equally balanced on both sides that it is doubtful which scale preponderates, Williams v. Blakey, 76 Va. 254.
      If the evidence on a question of fact in a suit in chancery, though various and conflicting, be such as ought to satisfy the chancellor’s conscience as to the truth of the case, he need not direct an issue to try the fact. Samuel v. Marshall, 3 Leigh 567. See also, Keagy v. Trout, 85 Va. 390, 7 S. E. Rep. 329; Hord v. Colbert, 28 Gratt. 49, and foot-note.
      
      The directing an issue, for the purpose of ascertaining disputed facts, is discretionary with a court of equity, which may decide on the evidence relative to such facts, without a jury. Rowton v. Rowton, 1 Hen. & M. 92.
      But the discretion of the chancellor, in directing or refusing an issue to be tried by a jury, is to be exercised on sound principles and the appellate court must judge whether the discretion has been so exercised. Stannard v. Graves, 2 Gall 369; Carter v. Carter, 82 Va. 624; Miller v. wills, 95 Va. 351, 28 S. E. Rep. 337.
      See also, on the subject of Issues Out of Chancery, Beverley v. Walden, 20 Gratt. 146. and foot-note; monographic note appended to Lavell v. Gold, 25 Gratt. 473.
    
    
      
       Advancements in Confederate Currency. — See Moses v. Hart, 25 Gratt. 802, where the rule laid down in the fourth headnote is modified. See also, the principal case sustained in Moses v. Trice, 21 Gratt. 566.
      For the sequel of the principal case, see Powell v. Manson, 22 Gratt. 177.
    
   STAPLES, J.,

delivered the opinion of the court.

The court is of opinion, that no error was committed by the Circuit court to the prejudice of the appellant, in hearing- these causes together, and in refusing to dismiss the appellee’s attachment in equity. Whatever cause of complaint the appellant may have had in being proceeded against at law and in equity for the same matter, has been removed by the election of the appellee to dismiss the attachment at law.

The court is further of opinion, that an issue ought to be made up and tried by a jury, to ascertain whether the appellant Magill was or was not influenced, in giving the bond for $2,636, in the proceedings mentioned, to the appellee Manson, by a misrepresentation of fact, fraudulently or otherwise, made by the said Manson to the said Magill or to John E. Allen.

If the said issue shall be found in the negative, then there ought to be a decree in favor of the said Manson against said Magill, for the said sum of $2,636, with interest thereon from the 13th day of May, 1862, and the costs of suit in the said Circuit court, and for payment *of the same out of the money due by Conrad Sauer to the said Magill, heretofore attached, in said Sauer’s hands.

But, if the said issue should be found in the affirmative, then there ought to be an order for an account to ascertain the value in gold of the two thousand dollars in Confederate money advanced by said Manson -for bacon purchased for the said Magill, and of the five thousand dollars in Confederate money loaned by said Manson to the said Magill; which two sums make up the amount for which the bond for seven thousand dollars was given; the said two amounts of $2,000 and $5,000 to be scaled, as of their gold value, at the times they were respectively advanced or loaned; and also for an account of all matters between the said Manson and the said Magill, charging her with the value in gold, as aforesaid, of the said two sums of $5,000 and $2,000, with interest thereon from the periods at which they were respectively advanced and paid, and also with the value in gold of the two barrels of flour sold by the said Manson to the said Magill in 1864, and also with whatever amount may. appear to be justly due by her to him, in gold, for medical services rendered to her, or on her account, prior to the execution of said bond for $2,636, with interest on said last mentioned charges; and there ought to be a decree in favor of said Manson for the balance which may be found due to him on said account, after deducting appellant’s costs incurred in the said Circuit court; and for the pajrment of the said balance out of the money due by the said Sauer to the said Magill, as aforesaid. The decree for the balance so found to be rendered for the equivalent in legal currency of the United States, to be ascertained at the date of the decree.

The court is of opinion, that so much of said decree of said Circuit court, as is inconsistent with the foregoing opinion, is erroneous. It is therefore decreed *and ordered, that the same be reversed and annulled; and that the appellee pay to the appellant her costs by her expended in the prosecution of her appeal here.

And it is ordered, that these causes be remanded to the Chancery court of Richmond, for further proceedings, in conformity with the foregoing opinion. All of which is ordered to be certified to the said Chancery court for the city of Richmond.

Decree reversed.  