Mann v. McVey , 3 W. Va. 232 ( 1869 )

Brown, President.

In this case a creditor received from the agent of a party acting as an administrator de son tort, of a deceased debtor, (the said party having qualified under the rebel authority), the amount of his debt in the so-called Confederate paper and surrendered up the bonds, during the -war. After the war, he, the creditor, instituted suit in chancery against the said agent for his part in the transaction.

The prayer of the bill is that the defendant be decreed to pay to the complainant the amount of the bonds claimed to have been fraudulently obtained and for general relief. The charge of fraud in the bill is denied in the answer. And the first question is whether the charge of fraud and duress is sustained by the evidence. It was alike unlawful for the plaintiff to receive illegal or contraband currency as for the defendant to pay it if both acted alike freely, knowingly and willingly. On this point the facts aud circumstances of this case are almost identical with the facts and circumstances on the same point in the case of the same plaintiff, Mann vs. Lewis and Argabrite, infra. And the views there expressed are alike applicable here and conclusive of this point. Whether the representation of the defendant Mann, as the agent of his son, was true or false, as respects the alleged legal tender act of the so-called Confederate Congress, does not appear. If false, the false representation of so material a fact, under the circumstances of the case, influencing the action and coercing the consent of the creditor to receive a worthless and illegal currency in discharge of a good debt, was a fraud.

But if, on the other hand, the statement were true, it was duress per minas to make use of it to coerce, in like manner, the unwilling and reluctant assent of the creditor to surrender his rights against his recognized interests. 1 Story’s Eq., 222; Adam’s Eq., 182, 177; 2 Rob. Prac. (new), 621.

It has been urged that in thus trading in an article of illegal currency the parties were in pari delicto, and that this was a finished transaction in which a court of equity would not interfere to rip open that which had been put to rest, nor aid either of the guilt}' parties against the other. But the parties are not in pari delicto. The creditor who is induced against his will by fraud or coerced b}r duress per minas, to receive that which he knows to be worthless or nearly so, aud likewise illegal, in the payment of a good debt, is not equally guilty with him who by such means fraudulently induced or coerced him to do it. It is no excuse that the defendant acted in the matter in the interest of his son, who was the administrator of the deceased debtor. He is responsible for the consequence of his own unlawful acts to the party injured by them.

. There might be an inquiry whether the defendant should have had deducted from the amount of the debt decreed against, him the market value of the so-called Confederate treasury notes, or at least the amount which the plaintiff in fact realized out of it.

No allowance could be made for the market value of an article which he might not lawfully pass as currency; but if he had in fact passed or disposed of it for value, to that extent, and that only, the plaintiffs claim should have been dismissed; otherwise he too would be allowed to profit by his own wrong while invoking the aid of the court to prevent another from doing likewise. But there is nothing in the pleadings or evidence showing, or even tending to show, that the complainant ever passed or disposed of the said Confederate paper or any part of it. And since to have done so would have been unlawful and tending to continuance and give currency to an important instrumentality of the rebellion to which the evidence shows ho was as a man loyal opposed, no legal presumption against him can arise in that behalf.

There is no ground, therefore, appearing to justifj' or call for an inquiry by reference to a commissioner on that point, nor to warrant this court in reversing the decree and remanding the cause to institute such inquiry.

I think, therefore, that there was no error in the decree of the court below, and that the same must be affirmed, with costs and damages to the appellee.

The remaining judges concurred.

Decree affirmed.