
    *Marshall v. Thompson.
    Saturday, September 28, 1811.
    1. Chancery Practice — Suit for Arrears of Annuity-Decree. — In a suit In equity, for arrears of an annuity, the decree should be, not only for the sums due, with interest from the days when respectively payable; but reserving liberty to apply to the court, from time to time, to extend its decree, so as to embrace the pa’yments thereafter falling' due.
    2. Same — Issue—When Proper. — Where the testimony to an important fact is such as to leave it doubtf ul, the court of equity ought to direct an issue to ascertain it.
    This being a suit in chancery to recover arrears of an annuity, for the life of Mary Anne Thompson, the plaintiff, secured by a defective bond, executed by Daniel Marshall, the defendant, the 26th of January, 1789 ; (the sum payable, annually, being 121. 10s. and the penalty of the bond only 2S1.) the bill alleged that an action at law was brought on the bond to recover the first annual payment ; and that, in consequence of a receipt produced by the defendant, (which the plaintiff denied to have been executed by her,) a nonsuit was advised by her attorney, to which she accordingly submitted ; the answer insisted that the plaintiff, freely, voluntarily and fairly, gave the defendant, on the 2d of February, 1789, the
    
      receipt in question, as a full and complete discharge ; and the testimony on the subject leaving it doubtful whether such receipt was fairly obtained; the county court of Nottoway, on the 3d of June, 1803, decreed “that the defendant do pay to the complainant the sum of 121. 10s. with 5 per cent, interest thereon from the first day .of February, 1790, and the farther sum of 121. 10s. for every year since that period, with interest, as aforesaid, on each sum, from the first day of February of each year, in regular succession, to the first day of February last,” and costs ; which decree being affirmed by the superior court of chancery for the Richmond district, September 12, 1806 ; the defendant appealed to this court.
    The case was submitted, without argument, by Peyton Randolph, for the appellant, and Call, for the appellee.
    
      
       Chancery Practice — Issue—When Proper. — As a general rule, whether an issue should be directed or not, must depend on the sound discretion of the chancellor. Where an Important fact is left doubtful by the testimony, the court ought to direct an issue. Wise v. Lamb, 9 Gratt. 303, citing the principal case; Bullock v. Gordon, 4 Munf. 450; Nelson v. Armstrong, 5 Gratt. 354. In Wise v. Lamb, 9 Gratt. 305, It Is said that New Orleans Gas Light & Banking Co. v. Dudley, 8 Paige 452, cites the principal case on this subject.
      See further, foot-note to Magill v. Manson, 30 Gratt. 527; foot-note to Pryor v. Adams, 1 Call 382; mono-graphic note on "Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473.
    
   Friday, October 4th. The following Opinion of the Court was pronounced by

JUDGE ROANE.

*“The court is of opinion that, if the agreement stated in the bill as the ground thereof has not been relinquished on the part of the appellee’s intestate, she should not have been limited by the decree of the courts below- to the annuities which had actually fallen due before the date, but that liberty ought to have been reserved to her, thereby, to apply to the court, from time to time, to extend its decree, so as to embrace all the annuities thereafter falling due during her life. The court is also of opinion that, under the actual testimony exhibited in this cause, it would have been proper to have directed an issue to inquire whether the receipt of the 2d of February, 1789, was fairly obtained, with a full knowledge of its contents, on the part of the appellee’s intestate, and whether it was then understood by her to extend to the whole bond.”

Decrees of both courts reversed, and cause remanded to the superior court of chancery for an issue to be directed, and farther proceedings to be had, agreeably to the foregoing principles, in order to a final decree.  