Volume 126 — Virginia Reports

Decree for complainant. Defendant appeals. The controversy in this suit in equity is between the appellee Payne, claiming the right to have sale of certain personal property, consisting of a certain law library, under a writing which is, in effect, an equitable chattel mortgage, executed by Randolph Henry at a time when he was in possession of the library, conveying same to secure the payment of a certain note of the latter given to cover certain accrued and past-due office…

<p>1. Vendor and Purchaser—Compensation for Deficiency■—Sale by Acreage or by Metes and Bounds—Sufficiency of Evidence to Establish Fraud by Vendor—Case at Bar.—Vendees filed a bill in equity against their vendor, alleging that they had purchased a tract of land represented as containing 120 acres, but which in fact contained only 100 acres, and praying compensation for the deficiency at the rate paid per acre, with interest from the date of purchase. The bill alleged that the sale was by the acre, and that the discrepancy occurred by reason of fraud or mistake. The vendor answered, denying that he had ever represented the tract as containing 120 acres, and, on the contrary, alleging that the land was conveyed by metes and bounds,, and that the vendees well knew the quantity of land purchased by them, and that the mistake in stating in the deed that the boundary contained 120 acres was the mistake of the scrivener. It was clearly established that the vendor at all times well knew that the tract of land contained only 100 acres, so that the case was not one of' mutual mistake. The case resolved itself, therefore, into the question of whether or not the vendor perpetrated a fraud on the vendees. The evidence was of the most conflicting and contradictory nature, composed very largely of oral testimony given by ignorant and illiterate witnesses of verbal admissions made by the parties five or six years before they testified, and of contradictions of one witness by another as to statements made by them.</p> <p>Held: That the evidence taken as a whole was not sufficient to establish fraud on the part of the vendor.</p> <p>2. Fraud—Evidence Sufficient to Establish.—Grave suspicion is not enough to sustain a charge of fraud, but the fraud must be shown by clear and convincing proof.</p>

<p>Appeal from a decree of the Circuit Court of Russell County. Decree for complainant. Defendant appeals.</p>

<p>Appeal from a decree of the Circuit Court of city of Roanoke. Decree for complainant. Defendant appeals.</p>

<p>Error to a judgment of the Circuit Court of Lee county in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p> <p>This is an action by a father, the defendant in error, who was plaintiff in the trial court, against the plaintiff in error, who was defendant in the trial court, to recover $10,000' damages for the alleged seduction by the latter of the daughter of the plaintiff and for certain expenses of nursing, etc., alleged in the declaration. The parties will be hereinafter referred to in accordance with their positions in the court below.</p> <p>The declaration is in the usual form, alleging seduction at common law, being practically copied from the form given for such a declaration in 1 Barton’s Law Pr., pp. 401-2. There was a trial by jury, and a verdict in favor of the plaintiff for $2,500 damages, upon which the judgment was entered which is under review.</p> <p>There is ample evidence in the record to sustain the verdict of the jury in finding the existence of sexual intercourse of the defendant .with the daughter; that it resulted1 in the birth of a child; that although the daughter was over twenty-one years of age she was still a member of the family of the plaintiff, so that the relation of master and servant existed between the plaintiff and the daughter; and to sustain a verdict of the jury for such actual damages as the plaintiff may have suffered in the premises from loss of the services of the daughter and to reimburse the plaintiff-certain incidental expenses alleged in the declaration. But the evidence is conflicting on the question of whether the sexual intercourse was accomplished by means of a promise of marriage, as the testimony for plaintiff tended to show was true, or whether such intercourse took place without seduction—that is to say, without the aid of any promise of marriage or other artifice, but was consented to by the daughter in gratification of her sexual passion merely, as the testimony for the defendant tended to show was the case.</p> <p>In this state of conflict of the testimony the trial court, over the objection of the defendant, gave the following instructions :</p> <p>“First for the Plaintiff No. 1.</p> <p>“The court instructs the jury if they believe from a preponderance of the evidence in this case that the defendant had carnal intercourse with the plaintiff’s daughter, Polly Woliver, and at the time of such intercourse the relation of master and servant existed between plaintiff and his said daughter, you will find for the plaintiff and assess his damages at such amount as you believe he had sustained under the evidence, so that the same does not exceed ten thousand dollars.</p> <p>“And the court instructs the jury that if they find for the plaintiff in this case, they may, in estimating the injury the plaintiff has sustained, take into consideration the wounded feelings and affections of the plaintiff, the wrongs done to him in his domestic and social relations, the stain and dishonor he has sustained, and the grief, affliction and mental anguish, if any, suffered in consequence of the acts complained of, and give damage accordingly.”</p> <p>“Second for Plaintiff No. 2.</p> <p>“The court instructs the jury if they find for the plaintiff in this case, you may, in addition to the finding of the actual damagegs sustained by the plaintiff, also find punitive or exemplary damages; that is to say, the jury need not be limited to the mere compensation for the actual damages sustained by the plaintiff, but you may award such further damages as you may think right in view of all the facts and circumstances proved at the trial, as a punishment to the defendant and as a wholesome and salutary example to others to deter them from offending in like manner, and if you believe from a preponderance of the evidence that said carnal intercourse with the plaintiff’s daughter was accomplished by means of a prior promise of marriage, you may take this fact into consideration .as an aggravation of such damages, and in fixing such damages the jury may take into consideration the financial worth and ability of the defendant.”</p>

<p>Error to a judgment of the Circuit Court of Washington county on a motion to correct an erroneous assessment. Judgment for the Commonwealth. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Corporation Court of city of Roanoke, construing a will.</p>

<p>1. Fiducaries—Removal—Power of Court.—Under section 2687 of the Code of 1904, the court under the order of which a fiduciary derives his authority,- is vested with the right and duty to revoke and annul his power whenever from any cause it is proper.</p> <p>2. Fiducaries—Removal—Discretion of Court—Appeal from Order Removing.—A court is veste'd by section 2687 of the Code of 1904 with a very large discretion in regard to the removal of a fiduciary .appointed by it, and while it is a legal discretion, to be exercised in a proper case, an appellate court ought not to interfere, except in a case where manifest injustice has been done, or whtere it is plain that a proper case has not been made for the exercise of the powers which the legislature has specially conferred upon that court, from which the fiduciary derives his authority.</p> <p>3. Executors and Administrators—Partner as Administrator— Removal—Case at Bar.—Where a surviving partner was ap- • pointed as administrator of his deceased partner, and failed to return any inventory or appraisement within four months of _ the date of his qualification as required by statute, and it was clear that there were conflicting interests between the administrator, claiming in his own right as surviving partner, and the heirs at law and distributees claiming under the decedent, an order removing the administrator is plainly right.</p> <p>4. Executors and Administrators—Surviving Partner As Administrator—Case at Bar.—It may well be doubted whether a surviving partner should ever be appointed administrator of his deceased co-partner, but certainly in the instant case, where sharp conflicts as to their respective rights have arisen, he should be removed, for the surviving partner, while having full control over the partnership assets, is the debtor of his deceased co-partner for any balance due to his estate, and unless there be exceptional circumstances the administrator only can sue for such balance.</p>

<p>Appeal from a decree of the Circuit Court of Wise county. Decree for complainant. Defendant appeals.</p>

<p>Error to a judgment of the Circuit Court of Wise county in an action of assumpsit. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Court of Law and Chancery of city of Roanoke in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

Judgment for plaintiff. Defendant assigns error. This is an action instituted in the trial court by the defendant in error against the plaintiff in error to recover damages for the death of the plaintiff’s intestate alleged to have been caused by the negligence of the railroad company in not keeping a reasonable lookout for the deceased, who was killed in the daytime upon the track of the railroad by a locomotive engine running backward, the tender being in front, striking…

<p>Appeal from a decree of the Circuit Court of Wythe county. Decree for complainants. Defendants appeal.</p>

<p>Appeal from a decree of the Circuit Court of Washington county. Decree for defendants. Complainants appeal.</p>

<p>Error to a judgment of the Circuit Court of Alexandria county in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Corporation Court of city of Roanoke in an action of assumpsit. Judgment for defendant. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Corporation Court of city of Bristol. Decree for defendants. Complainant appeals.</p>

<p>On petition for mandamus.</p>

<p>Appeal from a decree of the Circuit Court of Nelson county. Decree for complainants. Defendant appeals.</p>

<p>Error to a judgment of the Circuit Court of Clarke county, on a motion to correct an erroneous assessment. Judgment for the Commonwealth. Plaintiff assigns error.</p>

<p>Error to a judgment of the Circuit Court of Bath county, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of Alleghany county, in an action of ejectment. Judgment for defendant. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Highland county. Decree for complainants. Defendant appeals.</p>

<p>Appeal from a decree of the Circuit Court of Page county. Judgment for defendant. Complainant appeals.</p>

<p>1. Trusts and. Trustees—Creation of Trust by Parol.—In Virginia an express trust in land may be created by parol and is enforceable in a court of equity.</p> <p>2. Trusts and Trustees—Parol Trust in Land—Evidence to Establish.—As in suits to set up lost deeds and the like, and to establish title by parol to property which ordinarily the law requires shall pass only by deed or will, the jurisdiction of equity to enforce a parol trust in land is regarded as dangerous, and its exercise should be safeguarded by requiring of him who invokes it the production of clear and convincing evidence in support of his claim.</p> <p>3. Issues to the Jury—Express Trust Created by Parol—Case at Bar.—In the instant case defendant alleged that complainant, who was his sister, was only the nominal purchaser of the land in controversy, while defendant was the actual purchaser; and that cpmplainant holds the title for his benefit under an express trust to convey the property to him when he shall have paid her sums of money for which he acknowledges liability. On the other hand, complainant alleged that defendant was her tenant. The record disclosed a bitter controversy between a brother and sister, who upon the vital issue in the case positively contradict each other on oath; much of the evidence of their principal witnesses was uncertain and conflicting, and involved their credibility.</p> <p>Held: That under these circumstances an issue out of chancery should have been ordered.</p> <p>4. Appeal and Error—Issue Out of Chancery.—Where the chancellor (although not requested to do so) has failed to order an issue out of chancery in a proper case, and has proceeded to hear and determine the case, and the Supreme Court of Appeals is not satisfied that the ends of justice have been attained, it will reverse and remand the cause, with directions to impanel a jury and determine the issue.</p> <p>5. Trusts and Trustees—Burden of Proof—Parol Trust in Land.— Where defendant in a suit in equity asserts that complainant holds the title to the land in controversy for his benefit under an express parol trust to convey the property to him when he-has paid complainant certain sums of money acknowledged to be due, and complainant alleges that defendant is her tenant, the burden of proof oh an issue out of chancery to determine the respective contentions of complainant and defendant rests-upon defendant.</p>

<p>Appeal from a degree of the Circuit Court of Page county. Decree for defendant. Plaintiff appeals.</p>

<p>1. New Trials—Newly Discovered Evidence—Cumulative—Dili- ■ gence—Record Evidence—Case at Bar.—The instant case was a suit to enjoin the enforcement of a judgment at law and to obtain a new trial on the grounds of fraud and after-discovered evidence. The issue between the parties in the action at law had been narrowed to a single point, namely, whether the comer of one of the tracts of land in question was at a point which might be called A, or at a point which might be called B. The alleged newly discovered evidence, which related solely to the location of the pivotal comer, consisted of a certain survey made for one Dixon in the year 1793, and recorded in “Bath County Journal No. 1, p. 22.” The materiality of this survey as evidence for the plaintiff Was manifest.</p> <p>Held: That while the new evidence was not merely cumulative, yet plaintiff’s counsel ought to have discovered it, and failure to do so was such an omission as to bar plaintiff from any relief on the ground of after-discovered evidence.</p> <p>2. New Trials—Newly Discovered Evidence—Diligence—Record Evidence—Case at Bar.—In the instant case plaintiff had made a very diligent search of the records for all title papers of every description affecting the title of either the plaintiff or defendant, and if the Dixon survey had been a title paper constituting a link in the chain of either the plaintiff’s or dedendants title, then there would have been no obligation on the part of the plaintiff to make any unusual search, and an examination of the records in the clerk’s office by means of reference to the indexes would have been a sufficient examination. But the usual method of examining title would never have disclosed any “hidden” survey, such as the Dixon survey, and the only way to find such a survey would be to turn the pages of the books in which the same would probably have been recorded, and the failure to adopt this method was a lack of reasonable diligence.</p> <p>3. New Trials—Newly Discovered Evidence—Diligence—Record Evidence.—Where plaintiff, who was asking for a new trial on ' the ground of the discovery of a survey since judgment, had knowledge in ample time before trial of the importance of finding the evidence of such a survey, which had never figured in the title of either party, reasonable diligence called for, and would have suggested, an examination of the surveyor’s books, page by page, in an endeavor to find the record of such survey.</p> <p>4. New Trials—Newly Discovered Evidence—Reasonable Diligence.—Reasonable" diligence always depends upon the facts and circumstances of the case.</p> <p>5. New Trials—Newly Discovered Evidence—Reasonable Diligence—Case at Bar.—The interests of society require that there be an end of litigation. No maxim of the law is-more firmly established. For this reason the rule has always been strictly adhered to that, however material may be the newly discovered evidence, a new trial will not be granted on that account unless such evidence could not have been discovered by the exercise of reasonable diligence in time for use at the former trial. The instant case is peculiarly one for the application of this rule. The evidence'in question was a matter of record, its importance was known to the plaintiff for at least a year before the final trial, and it could have been discovered by the exercise of diligence reasonably commensurate with the manifest exigency of the situation.</p> <p>6. New Trials—Newly Discovered Evidence—Reasonable Diligence—Records.—The discoverey after the trial of a judgment, or judicial record, or of an ordinance or resolution of a municipal corporation, or of a deed or other instrument of record, or of any other matter of public record, is not ground for a new trial, unless, on diligent research in the proper office such record was not discovered before the trial.</p> <p>7. Judgments and Decrees—Equity—Relief Against Judgment at Law—Perjured Testimony.—Before a court of equity will interfere with a judgment at law on account of perjured testimony at the trial in which the judgment was rendered, it 's must appear: (1) That without such testimony the result ought to have been different; and (2) that the fact of its falsity could not have been discovered by the exercise of proper diligence on the part of the party complaining.</p> <p>8. Equity—Laches.—Equity relieves only the diligent, however strongly the action assailed may be condemned by the conscience of the court.</p>

<p>1. Counties—State—Action of Tort Against—Waiver of Tort and Suit on Implied Contract.—While neither counties, which are political subdivisions of the State, nor the State or its governmental agencies, can be sued in tort, it is generally true that, where a tort is committed which involves an injury to personal property, the plaintiff may waive the tort and sue upon an implied contract to pay for the property which has been wrongfully taken, damaged or converted to the defendant’s use, and this rule has been applied to State agencies.</p> <p>2. Eminent Domain—Action Against County Upon Implied Contract for Property Wrongfully Taken—Case at Bar.—In the instant case, the board of supervisors were authorized to condemn the land in controversy for a public road upon paying the owner its value and the consequential damages caused by the construction of the road. The county, however, having taken the property without authority and converted it to the public use, there is no reason for denying to the plaintiff the right to waive all of her other remedies for the protection of her private property, and to sue ás upon an implied contract to pay therefor such amount as would have been awarded therefor if the property had0 been condemned under the eminent domain statutes.</p> <p>3. Eminent Domain—Constitutional Law—Taking Property Without Compensation.—The constitutional provisions which prohibit the taking or damaging of private property for public uses without compensation are self-executing.</p> <p>4. Counties—Recovery of Claims Against—Code of 1901-, Sections 825, 836, 838.—The method for the recovery of amounts due by counties for legitimate claims arising out of contract and the procedure therefor have been provided for by Code of 1904, sections 825, 836, and 838, and the language of the statute “any claim or demand” is sufficiently broad to embrace every character of claim, whether legal or equitable.</p> <p>5. Appeal and Error—Instructions—Harmless Error.—It is not error to refuse an instruction where the point was sufficiently covered by another instruction given in the case which was possibly more favorable to the party complaining of the refusal than she was entitled to.</p> <p>6. Instructions—Refusal of Instruction Covered by Other Instructions.—In an action against a county for wrongful taking of land, an instruction requested by the county to the effect that the jury could not take into consideration the fact that plaintiff did not receive as much for her crops after the taking as she had received for similar crops in previous years, was refused. There was nothing in the evidence to indicate that plaintiff was claiming such damages specifically. The court had, at the instance of the plaintiff, instructed the jury that they should assess the damages at the .market value of the land or crops taken and damaged, provided they believed that the damages sustained were in excess of what had been already paid to the plaintiff under the first condemnation.</p> <p>Held: That this instruction fully protected the defendant, and there was no error in the court’s action in refusing the requested instruction.</p> <p>7. Counties—Wrongful Taking of Land—Instructions.—In a suit against a county for the wrongful taking of land, the county requested an instruction that the jury should not take into 'consideration any elements of damage arising from the washing of land that had occurred subsequent to the condemnation of the road in controversy. Inasmuch as the road had been constructed on a location which had not been condemned, this instruction was clearly erroneous and misleading; for the plaintiff was entitled to recover for any washing of the land that had occurred subsequent to and solely as a consequence of such wrongful taking of her land which had never been condemned.</p> <p>8. Eminent Domain—Wrongful Taking of Land—Damages.—Where land of plaintiff was condemned for the location of a public road, but the road was by mistake constructed on a location which had not been condemned, plaintiff was clearly entitled to recover such amount in excess of the sum already received by her for the value of the land wrongfully taken, and for any damages, either to crops or to the residue of the land, which were directly consequental upon such wrongful taking, and in the instant case the evidence was sufficient to support the amount of the judgment.</p>

Judgment for claimants. Defendant assigns error. In these cases the respective defendants in error (who were plaintiffs in the court below and will be hereinafter so designated) filed before the board of supervisors of the county of Nelson their respective claims against the county for damages for alleged injury done to real estate owned by them respectively, the real estate, as stated in their accounts, being “(damaged but not taken), by reason of the grading of the new…

<p>Error to a judgment of the Circuit Court of Augusta county in an action of trespass on the case. Judgment for defendants. Plaintiff assigns error.</p> <p>This is an action in tort instituted by motion to recover $500, alleged damages, but involves the ultimate question of whether the plaintiff in error (Palmer), who was the plaintiff in the court below, and is a real estate agent, was entitled to commissions on a certain sale of real estate made by the defendant in error (Showalter).</p> <p>The sale in question was consummated by a deed of date March 27, 1917, from Showalter to one George A. Brown, conveying a certain farm for the consideration stated in the deed of $14,700.00 cash in hand paid by the latter to the former, and a deed of the same date from George A. Brown to one Floyd E. Brown conveying the same farm for the consideration stated in such deed of $15,000.00 cash in hand paid by the last named party to George A. Brown.</p> <p>The farm was placed by Showalter, its owner, in the hands of the plaintiff, as a real estate agent, for sale, about November 15, 1916, at the listed price of $15,500.00; and it is sufficient to say of the contract between Showalter and the plaintiff that it is a concessum in the case, that under the established rule of law on the subject and under the facts in this case, if the sale, above mentioned was in truth a sale from Showalter to Floyd E. Brown then Showalter was obligated to pay to the plaintiff the sum of $500 as the commissions .of the latter on the sale, notwithstanding the fact that Showalter abated the purchase price he received below the $15,500 at which he listed the property with the plaintiff; and the issue in the case is whether said sale was in truth a bona fide sale by Showalter to said George A. Brown or was merely a pretended sale to him, being in truth a sale from Showalter to said Floyd E. Brown, cloaked and attempted to be disguised as a sale to said George A. Brown with the purpose and intent on the part of the said Showalter of escaping the fulfilment of his obligation aforesaid to the plaintiff.</p> <p>In the action as instituted in the court below the said George A. Brown was charged with being a joint tort feasor and was made a co-defendant with Showalter.</p> <p>There was a trial by jury and a verdict in favor of the plaintiff against Showalter alone for the $500 damages claimed by the plaintiff—the said co-defendant George A. Brown not being mentioned in the verdict. This verdict the learned trial judge set aside and granted a new trial. On the second trial neither party offering to introduce any evidence there was a verdict and judgment for the defendant, Showalter, and the said plaintiff brings error.</p> <p>Looking first to the proceedings on the first trial and considering all of the evidence introduced on that trial both for the plaintiff and the defendants therein, as is required by our procedure where the verdict of the jury has been set aside by the trial judge, we find the following situation as shown by the record before us.</p> <p>For some time prior to the execution of said deeds it had developed that Showalter was willing and anxious to sell said farm to Floyd E. Brown at the price of $15,000 if he could escape paying the plaintiff any commissions out of this; and Floyd E. Brown was willing, able and anxious to purchase the farm from Showalter at that price, but was not willing to pay the additional $500 to cover the plaintiff’s commissions aforesaid, or any sum in excess of the $15,000; so that the fact that the plaintiff was entitled to such commissions was the sole obstacle which stood in the way of the consummation of such sale from Showalter to Floyd E. Brown. Thereupon both Showalter and Floyd E. Brown from time to time importuned the plaintiff to waive his right to said commissions and let them consummate the sale, but this the plaintiff declined to'do. Thereafter, early in January, 1917, not later than January 4th (the record riot disclosing the precise time' in that month) Showalter and Floyd E. Brown agreed upon a plan by which they expected to accomplish the sale and conveyance of the property from the former to the latter, at the price of $15,000 only, to be paid by Floyd E. Brown, and that amount to be .received net by Showalter, by defeating the plaintiff of his right to receive said commissions, and that plan was the following: That there would be a pretended sale and a conveyance by Showalter to one Newt. Brown, a brother of Floyd E. Brown, for some pretended consideration, the precise amount of which does not appear in the record. That the sale to ■ Newt. Brown, with whom the plaintiff had had no communication on the subject of the sale of said property and who was, therefore, not a customer of the plaintiff, would thus be made free of any obligation of the defendant, Showalter, to pay the plaintiff any commissions of sale, and that Newt. Brown would then sell and convey the property to Floyd Brown for the consideration of $15,000 for the benefit of Showalter. Accordingly Showalter and Floyd E. Brown went so far in the execution of this plan as to employ an attorney to draft a contract of sale of said farm in writing from Showalter to said Newt. Brown. This was on or about January 4, 1917. But while the attorney was engaged in the draft of this contract, both Showalter and Floyd E. Brown being present, the attorney asked, in substance, whether Floyd E. Brown was in truth the purchaser from Showalter and whether the device of using Newt. Brown as an intermediary was with the intent and for the purpose of defeating any real éstate agent of sale commissions to which the latter might be entitled on a sale directly from Showalter to Floyd E. Brown; and the attorney stated that if that was the case “the agent would come in for his commissions.” Thereupon these parties dropped that matter and dispersed, the attorney not finishing the draft of that cóntract.</p> <p>On January 4, 1917, after the abortive attempt to consummate the sale from Showalter to Floyd E. Brown aforesaid through the intermediary Newt. Brown as a pretended independent purchaser, Floyd E. Brown made a special trip, a distance of some twelve miles, to see the plaintiff and again endeavored to persuade the latter to forego his commissions so as to permit the sale aforesaid to go through, but the plaintiff again declined to consent to do this; and Showalter chancing to meet the plaintiff about this time displayed some temper charging the plaintiff with having “treated him (Showalter) badly” in breaking up his sale to Floyd E. Brown by adhering to the claim of commissions aforesaid.</p> <p>Floyd E. Brown and. George A. Brown testified in the case. Showalter did not testify therein; but his failure to do so is explained by the fact shown in evidence that he had had a stroke of paralysis in September, 1917, about a year before the first trial of the case, and at the time of such trial was suffering from Bright’s disease and high blood pressure, and, although he was then going about and attending to his business, his physician testified at such trial that he “would advise that'it would not be safe to bring him here (to the trial) as a witness.”</p> <p>The facts mentioned in the three paragraphs next above are uncontroverted.</p> <p>We come now, however, to some matters which are and to some which are not the subject of conflict in the testimony in the case.</p> <p>Floyd E. Brown in his testimony stated, in substance, that the deeds aforesaid were made in execution of prior contracts of sale between Showalter and George A. Brown and between George A. Brown and himself which were wholy independent of each other. That at the time of the purchase by George A. Brown from Showalter, witness did not even know George A. Brown personally and had had no communication with him. That witness’ information that George A. Brown had become the purchaser of the farm did not come from Showalter, but from one Strauss, who held a deed of trust on the property. That he had given, up all consideration of buying the property when Strauss called his attention to the fact that George A. Brown had bought the place and told .witness “it was for sale and said if I (witness) wanted it to go on and see Mr. Brown and see what arrangements I (witness) could make with him.” That he promptly went to see George A. Brown and in that interview came to an agreement with him bv which witness bought the property at the price of $15,000; .that he had no understanding with George A. Brown or Showalter that the matter was to be handled in this way to keep the plaintiff from collecting commissions. But this witness also first testified, in substance, that he had no knowledge of the prior attempt to accomplish the sale of said property to himself by Showalter, through Newt. Brown as above mentioned, or that any such plan or purpose was on foot at any time, and yet later on in his testimony, when confronted with a contrary statement made by him to another, he admitted the existence of such a plan and that he was present with Showalter in the attorney’s office, as above stated, and that he knew that a contract was being then written between Showalter and said Newt. Brown “for the purpose of getting this farm without paying Mr. Palmer his commissions.” And there aré other statements of Floyd E. Brown of which it is deemed sufficient to say that they very effectually discredited his testimony and tended to show that he and not George A. Brown was the real purchaser of the farm from Showalter and that the use of George A. Brown as an intermediary was but a device to cloak the true nature of the transaction.</p> <p>George A. Brown in his testimony stated, in substance, that there was “not a bit of truth” in the charge of the plaintiff that he and Floyd E. Brown attempted “to beat the plaintiff out of his commissions” aforesaid, by the witness taking the place in his name ánd then immediately conveying it to Floyd E. Brown; that he bought the farm for himself and gave Showalter $14,700 for it; that he was not a customer of the plaintiff but dealt directly with Showalter. This witness first testified that he bought the farm from Showalter about the middle of January, 1917, at a time when he did not know Floyd E. Brown personally and when he had never heard that Floyd E. Brown had beén trying to buy the property, but when confronted with the question of his having made a contrary statement to another, he admitted that he had heard this before the time mentioned. Later in his testimony this witness admitted that what he had testified constituted the purchase of the property of Showalter about the middle of January was a mere verbal talk, the details of which the witness does not give, stating the mere conclusion that he then “bought” the place verbally of Showalter at the price of $14,700. But he admits in his subsequent testimony that he knew at the time that the verbal talk he had with Showalter did not make a binding contract between them; that no considertion for the contract was paid at that time; that he knew that the contract would not be binding until it was executed in writing; that in a few days after the verbal talk of witness with Showalter the latter came back to town and in the meantime witness had sold the property to Floyd E. Brown at the price of $15,000, making as he claimed $300 on the transaction. That thereafter he had a written contract with Showalter and also with Floyd E. Brown. When asked, “But you didn’t close it up in writing” (referring to his contract with Showalter) “until you found out that you could sell it at a profit?” he answered “Sure, yes sir.” And later on in his testimony this witness was asked the following question: “But you didn’t buy it at all; you didn’t enter into any contract with him” (Showalter) “until after you had agreed to sell it to Floyd E. Brown at a profit of $300.00?” To this question the witness answered, “That is right, yes sir; the contract shows that,” referring to the written contract between himself and Showalter. And still later on he refers to making his first payment, of purchase money to Showalter by a check given “when I made the contract,” which was on the day the contract in writing between him and Showalter was executed.</p> <p>Moreover George A. Brown first denied that he knew' anything about the abortive attempt of Showalter to sell the property to Floyd E. Brown through the device of using Newt. Brown as an intermediary as aforesaid, then admitted that he had heard of it, drawing the distinction between hearing and knowing. And there are other statements of George A. Brown in his testimony of which it is sufficient to say that they, were of a character and his manner of testifying was such that it left the case open to a reasonable conclusion by the jury that George A. Brown was not frank and open in his testimony and that he knew and had more to do with the existence of a plan and purpose on the part of Showalter to accomplish a sale of the property to Floyd E. Brown through him as an intermediary than the witness would expressly admit.</p> <p>The record discloses as an uncontroverted fact in the case that the written contracts of sale from Showalter to George A. Brown and from the latter to Floyd E. Brown were dated respectively January 22 and 23, 1917; but the testimony was not definite as to when these. written contracts were executed and was of such a character as permitted the jury reasonably to conclude that such contracts were in fact executed cotemporaneously. Further, it is an uncontroverted fact that at the time such written contracts were executed and for several days prior thereto, Showalter knew that thereby he would accomplish the sale of the property to Floyd E. Brown at the price of $15,000 and thus indirectly get the benefit of the purchaser procured for him by the plaintiff.</p> <p>Further: The testimony of both George A. Brown and Floyd E. Brown was lacking in definiteness and consistency on the subject of how and when George A. Brown was paid the $300 profit he claimed to have received of Floyd E. Brown on the transaction. George A. Brown did give his check to Showalter for $500 on the 22nd of January, 1917, which was cashed through the banks by Showalter, and George A. Brown testified that Floyd E. Brown paid him $750, made up of a check and “some money” he thinks, he didn’t “know for sure.1” But this would have paid him only $250, instead of $300 profit, and Floyd E. Brown did not produce any cancelled check to George A. Brown, although he promised to do so if he could find it and did not. at any time satisfactorily account for his failure to produce such check. All of which left it open to the jury reasonably to infer that Floyd E. Brown in fact refunded to George A. Brown only the $500 amount of the check of the latter to Showalter or perhaps something in addition for his trouble, the record not satisfactorily showing-what. And no other check to Showalter than the $500 check of George A. Brown to him was produced in evidence or testified to, so that the evidence was such that the jury might reasonably have inferred, under the circumstances, that Showalter in fact received the total of $15,000 for the property from Floyd E. Brown.</p>

<p>Error to a judgment of the Corporation Court of City of Charlottesville, in an action of trespass on the case. Judgment for plaintiff. Defendants assign error.</p>

<p>1. Conflict of Laws—Contracts—Law of Place of Performance.— It is a general rule that every contract, as to its validity, nature, interpretation and effect, or, as they may be called, the right, in contradistinction to the remedy, is governed by the law of the place where it is made, unless it is to be performed in another place; and then it is governed by the law of the place where it is to be performed.</p> <p>2. Conflict of Laws—Contracts—Capacity of Parties.—The law which is to govern in relation to the capacity of parties to enter into a contract is much disputed by the continental jurists of Europe. In general, however, they hold that the law of the party’s domicile ought to govern. But the doctrine of the common law is well established, both in England and America, that the capacity of parties to contract is with some few exceptions determined by the lex loci contractus—that is, the law of the place with reference to which the contract is made, which is usually the place where it is made, unless it is to be performed in another place or country, and then the law of that country.</p> <p>3. Conflict of Laws—Contracts—Capacity of Married Women.— The disability of coverture arising from the law of the married woman’s domicile does not follow her into other States, and that if she goes into another State than that of her domicile, and makes a contract valid by and to be performed in accordance with the laws of such other State, she will be bound thereby, even though she would not have been competent to make the contract according to the laws of her own State. In such a case the law of the place where the contract is made will be enforced wherever the suit is brought, even in the State of her domicile, subject only to the exception that, if the suit is brought in a jurisdiction whose law imposes upon married women a total incapacity to bind themselves by any contract whatever, then perhaps for reasons of public policy the contract will not be enforced.</p> <p>4. Conflict of Laws—Contracts—Capacity of Married Women.— The actual bodily presence of the contracting party is not necessary to make the contract valid according to the laws of some other State than that of the domicile, if it is the State in which the contract is to be performed. If, for example, a married woman makes a note in a State where the contracts of married women are voidable, payable at a bank in Virginia, and delivers the note to the payee, by mailing or sending it to him in Virginia, then she is bound in accordance with the laws of the State of Virginia as fully as if she had actually crossed the State line and signed and delivered the note in that jurisdiction.</p> <p>5. Conflict of Laws—Contracts—Intention of Parties.—When parties make contracts which upon their face are to be discharged in a State other than that in which they are executed, they are presumed, in the absence of anything to the contrary, to have intended the law of the State of performance, the lex loci solutionis, to control, and as the true criterion as to the proper or governing law is to be found in the intention of the parties, the law of the place of performance controls, and accordingly determines the question of the capacity to make a contract.</p> <p>6. Conflict of Laws—Bills, Notes and Checks—Capacity of Married Women—Case at Bar.—In the instant case, a married woman executed with her husband a joint promissory negotiable note. The married woman and her husband and the payee were domiciled in the city of Bristol, Tenn. At the time of the execution of the note, but prior to the institution of suit, all of the parties became and remained domiciled in Virginia. The note was dated, signed, and delivered in Tennessee, but upon its face was payable at a bank in the city of Bristol, Va.</p> <p>Held: That the note sued upon must be construed as having been executed with reference to the laws of the State of Virginia; that it became to all legal intents and purposes, so far as its validity was concerned, as truly a Virginia note as if it had been signed and delivered in that State; that by the laws of Virginia a married woman could have legally executed the same.</p>

Judgment for defendants. Plaintiff assigns error. There was the following amended notice of motion by the plaintiff in error (hereinafter designated plaintiff), in the first above entitled case (certain parts of the notice not material upon the issue before us being omitted) : “To Mr. J. R. Pirkey: “You will please take notice that * * * I will move the circuit court * * * for a judgment against you for the sum of Twenty-Seven Hundred Dollars ($2,700.00), with legal interest…

Decree on the cross-bill for defendant Seibel. Defendant Ruckdeschall appeals. On March 24, 1909, Bernard Ruckdeschall paid over to one James McF. Gummey the sum of $9,000.00 and took his note for the sum of $10,000.00 payable thirty days after date.

Judgment for the plaintiff. Defendant assigns error. The following instructions were tendered by plaintiff and given by the court to the jury: No. 1. The court instructs the jury that an improper motive may be inferred from a wrongful act based upon no reasonable ground, and that such improper motive constitutes malice in law.

<p>Error to a judgment of the Circuit Court of Rockingham county, on a petition by a school board to condemn land. Judgment for defendant. Petitioner assigns error.</p>

<p>Error to a judgment of the Circuit Court of Wise county, awarding the defendant in error damages for injury to his premises by reason of a change in grade of one of the streets of the town.</p>

<p>Appeal from a decree of the Circuit Court of Bath county, Decree for complainant. Defendant appeals.</p>

<p>• Appeal from a decree of the Circuit Court of Montgomery county. From a decree in favor of the named defendant, complainants appeal.</p>

This suit involves the single question of whether the appellant, Bowman, the vendee of certain real estate, must pay interest on the unpaid purchase money from the time he took possession of the property. The decree of the court below, of date July 15, 1918, under review so holds. The executory contract of sale was made in the following manner. The appellant on June 25, 1917, made the following offer of purchase in writing: “Geo.

<p>Error to a judgment of the Circuit Court of city of Norfolk, in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Clarke county. From the decree defendants appeal and complainants assign cross-érror.</p>

<p>Error to a judgment of the. Circuit Court of Montgomery county, on a petition to correct an erroneous inheritance tax assessment. Judgment for the Commonwealth. Petitioner assigns error.</p>

Decree for defendants. Complainants appeal. This is a suit in equity having for its purpose the restraining of the collection of an inheritance tax of $17,-504.79, assessed by the -clerk- of -the Circuit Court of the city of Suffolk, against the real and personal- estate of a testator, Wm.

Decree for defendants. Complainants appeal. This suit was instituted in the summer of 1915 by the appellants, three infant children of John B. Gills, deceased, of the ages of eight, seven and five years, respectively, by their mother, Mary E. Gills, as their next friend. The father of the infants was killed in a dynamite explosion in West Virginia, on May 12, 1911, where he was then at work as a partner in a firm of railroad contractors.

<p>Error to a judgment of the Circuit Court of Westmoreland county, in a proceeding to ascertain and designate the true boundary line between the parties. Judgment for plaintiffs. Defendants assign error.</p> <p>This is a proceeding which was instituted by the appellees as plaintiffs in the court below by petition exhibited against the appellants to have ascertained and designated the true boundary line or lines between certain coterminous land of the parties under the statute in such case made and provided.</p> <p>The parties will be hereinafter referred to in accordance with their positions as plaintiffs and defendants, respectively, in the court below.</p> <p>There was a trial by jury which resulted in a verdict and judgment in favor of the plaintiffs for the land in controversy and the defendants bring error.</p> <p>The sole assignment of error is that the verdict of the jury is contrary to the law and the evidence.</p> <p>There are conflicting claims of title which present the case of an interlock between the alleged boundaries of the plaintiffs’ and defendants’ lands. The land in controversy is contained within such interlock and consists of about one-half of an acre.</p> <p>The whole tract of land claimed to be owned by the plaintiffs consists of eight and one-fourth acres by recent survey, the lines of which include the land in controversy.</p> <p>Such eight and one-fourth acres, included within the lines E, B, C, A, D; certain lines of the defendant’s land as claimed by them, to-wit, E, B, A, C, F; and the interlock or land in controversy, included within the lines A, B, C; are shown on the following diagram:</p> <p> </p> <p>There is no evidence in the record that the plaintiffs, or any of their predecessors in title, ever had any actual possession of any part of said interlock or land in controversy —their possession being confined to that portion of the eight and one-fourth acres outside of the interlock aforesaid.</p> <p>On the question of whether the title deeds of the plaintiffs in evidence conveyed the land in controversy the plaintiffs rely upon two certain deeds as evidencing the conveyance of the land E, B, C, A, D as shown on' said diagram. One of these deeds is that from Nancy Crask to Thomas Clark, óf date December 15, 1843, and the other of these deeds is from Julia E. Peake and Eliza I. Peake to Thomas Clark, of date March 22, 1849.</p> <p>The last named deed describes the parcel of land thereby conveyed, so far as material to be noted, and its boundaries, as follows: “* * * piece or parcel of land containing four or five acres, more or less, * * * bounded by the land purchased by said Clark of Mrs. Nancy Crask on the south, John Powers on the west, the main road on the north, and Griffith’s land on the east.” There is no evidence in the case concerning the boundary line of the “Griffith’s land” thus drawn in question, which tends to locate such line at any earlier time than 1868; and such evidence as there is which goes back that far on that subject consists merely of a plat which purports to be “Portion of Plat and survey of the Sallie Griffith estate and notes of survey” made by R. L. Lawrence, surveyor of Westmoreland county in “Sept. 1868.” (Italics supplied). This plat, if evidence on the subject, would tend to show that the line of the “Griffith’s land” which is adjacent to the land now claimed by defendants was located in 1868 as claimed by defendants; but no deed of conveyance is in evidence conveying any land in accordance with such plat, nor any deed referring to or making such plat a part thereof, nor any record of any suit in which there is a decree of court establishing the said boundary line of the “Griffith’s land” in accordance with said plat. See Sulphur Mines v. Thompson, 93 Va. 293, 25 S. E. 232; Christian v. Bulbeck, 120 Va. 74, 90 S. E. 661. And there is an entire absence of any evidence in the case tending to show that the line of “Griffith’s land on the east” mentioned in the Peake deed of 1849 was pn the same location as that of the said line of the SalUe Griffith’s estate in 1868 as shown* on the Lawrence plat aforesaid. There is also an entire absence of any evidence in the case of any probative value tending to show the location as of the date of the Peake deed in 1849 of the land purchased by said Clark of Mrs. Nancy Crask, as will appear from what is presently said in connection with the deed first above mentioned.</p> <p>The deed first above mentioned, to-wit, from Nancy Crask to Thomas Clark, of date December 15, 1843, describes the land thereby conveyed, so far as material to be noted, and its boundaries, as follows: “* * * a certain portion or parcel of land * * * containing two roods, twenty-nine and one-half rods (be the same more or less) and bounded as follows: Beginning at a large white oak in John Powers line, thence north thirteen degrees, west 36.68 rods to a cedar on the hill, corner to said Crask’s lot. Thence north fifty-seven and three-fourth degrees, east nine rods to a locust corner to do. Thence north twenty degrees, west nine rods to another locust comer to do. Thence north eighty degrees, east one rod to a locust in Griffith’s line. Thence in his line (leaving a lane one rod wide between do, and said Crask’s lot), south two degrees, east fifty-two rods to the beginning.” (Italics supplied).</p> <p>There is, as aforesaid, no evidence in the case of any probative value to fix the location of the land conveyed by the Crask deed.</p> <p>The use of the word his in this deed evidences that the “Griffith’s line” therein referred to was not the line of the land of the “Sallie Griffith” whose estate is mentioned in the plat of the survey of September, 1868, above referred to, and there is no evidence in the case on the subject indicating that the “Griffith’s line” referred to in the Crask deed was on the same location as the “Griffith’s line” shown on the said plat of the September, 1868, survey or what is later referred tq by other deeds and the parol testimony in the case as the “Griffith line.”- No deeds or other evidence of the title to or from any “Griffith” appear in evidence.</p> <p>There are no deeds or other evidence of title to or from John Powers, which appear in evidence. The only testimony in the case as to the location of the “John Powers’ line” is parol and has no specific reference to the title even as far back as 1868 and does not undertake to locate where the “John Powers line” was in 1843 or 1849 when the two deeds' above mentioned were executed.</p> <p>The following is all of the testimony we have been able to find in the record with respect to. the location on the ground of the calls for metes and bounds in the Crask deed:</p> <p>One of the plaintiffs testified that he “undertook to begin and run around the disputed triangle to see if it contained the two roods and twenty-nine and one-half rods called for in the Nancy Crask deed referred to and it was decided by the surveyor that it about did it and the survey stopped there.” A surveyor, who was a witness for plaintiffs, testifies that he began at the point “C” as shown on said diagram “and ran according to the calls in the deed from Nancy Crask to .Clark to see if the triangular piece of land between the points marked ‘A’ ‘B’ and ‘C’ on the diagram were not identical with the ground called for in the Crask deed. He is convinced they are, and that the triangle in dispute is the identical land called for in the Crask deed * * But on cross-examination he admitted that he found nothing to indentify or locate on the ground any of the corners or lines called for in the Crask deed or to determine whether the land conveyed by such deed came to the line C. A. as shown on said diagram. That he did not discover “the cedar on the hill, corner to Crash’s lot, or the locust corner to Crash’s lot, or the other locust comer to same, or the locust in Griffith’s line called for in said Crash’s deed or anything to identify these points * * *that the land had been partially cleared up.” That he did not allow anything for the lane one rod wide between the lot conveyed by Crask and the “Griffith line.” When asked “if he could not have selected any point anywhere out in the open field and starting from that point have run a triangular line or lines between which would have been an area of two roods,twenty-nine and one-half rods, said he could. But stated he believed this to be the correct line because it seemed to coincide.”</p>

<p>Error to a judgment of the Circuit Court of Pittsylvania county, in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Rocking-ham county. Decree for defendant. Complainant appeals.</p>

<p>Appeal from a decree of the Circuit Court of Hanover county. Decree for complainant. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of city of Richmond, in a proceeding by motion for a judgment for money. Judgment for the Commonwealth. Defendants assign error.</p>

<p>Error to an order of the Corporation Court of city of Hopewell.</p>

<p>Error to a judgment of the Circuit Court of Hanover county. Judgment for plaintiff. Defendants assign error.</p>

<p>Appeal from a decree of the Circuit Court of city of Alexandria. Decree for complainant. Defendant appeals.</p> <p>This is a suit for divorce brought by the husband, in which a divorce a mensa was granted to him, on the ground of desertion, and the wife appeals.</p> <p>Two pleas to the jurisdiction were filed by the wife, one denying that the husband had been domiciled in the State for one year before the suit was brought, and the other denying that the husband was a resident of the city of Alexandria, where the suit was brought, at the time the suit was instituted. Issue was taken on these pleas and a verdict found by a jury on both pleas in favor of the husband. There was afterwards a hearing on the merits and a decree rendered in favor of the husband.</p> <p>On September 22, 1916, the wife filed her bill against her husband, in the Supreme Court of the District of Columbia, praying for a divorce a, mensa et thoro, for alimony, counsel fees and the custody of their infant child, a son then fifteen years of age. The ground of this suit was cruelty on the part of the husband, and the bill also charged that the husband had contributed nothing to her support since September 16, 1916, six days before the suit was brought. The husband answered denying the allegations of the bill. The witnesses were examined ore tenus before the judge, and, in an elaborate written opinion, he decided that the charge of cruelty was not sustained, and entered a decree refusing the divorce, but granting to the wife permanent alimony, counsel fees and the custody of the child. From so much of the decree as allowed alimony and counsel fees the husband appealed. The Court of Appeals of the District decided “that the decree, in so far as it provides for the separate maintenance for the wife, and affects the custody of the child, should be reversed; but in all other respects affirmed,” and awarded costs and attorney’s fees to the wife. See Towson v. Towson (App. D. C.), 47 Wash. Law R. 345, 258 Fed. 517.</p> <p>On October 9, 1916, just seventeen days after the wife brought her suit, this suit was brought by the husband in the ¡Circuit Court of the city of Alexandria, so that both suits were pending at the same time. The final decree in the Supreme Court of the District of Columbia was entered January 2, 1918. That in the Circuit Court of Alexandria on March 7, 1918, and that in the Court of Appeals of the District on-, 1918. The wife entered a special appearance in filing her pleas to the jurisdiction, one of which was filed December 4, 1916, and the other March 7, 1917. She also filed another plea setting up the pendency of her suit in the District of Columbia, but the decree entered in the cause of March 16, 1917, states that the “pleas to the pendency of another suit were withdrawn in open court by counsel for the defendant.” The decree last mentioned also directed a jury to be impaneled to try the issues joined on the two pleas to the jurisdiction, and that no further proceedings be had in the cause until said issues were decided. The jury trial was demanded by the husband who was the complainant in the cause. The first jury summoned were unable to agree on a verdict and were discharged. At a subsequent term, another jury was impaneled to try said issues, to-wit: “1st, Whether the complainant, Richard M. Towson, was domiciled in the State of Virginia one year next before the institution of this suit, to-wit, October 9, 1916. 2nd, Whether the complainant at the date of the issuance of the writ in this suit, to-wit, October 9, 1916, was a bona fide legal resident of the city of Alexandria.” This jury found both issues for the husband. The court refused to set aside the verdict on the motion of the wife, but entered up judgment in accordance with the verdict, and the case was continued for proof on the merits. The defendant filed her answer in the cause January 3, 1918, and a supplemental answer on January 19, 1918. These answers put in issue all the allegations of the bill setting forth the grounds for divorce. Depositions were taken by both parties, and in addition thereto, by consent of the parties, the evidence given in the wife’s suit in the District of Columbia, the opinion of the court and decree, were also read as evidence in this suit on the merits of the case, but not on the question of jurisdiction.</p> <p>The following are the assignments of error in the petition for this appeal:</p> <p>“1. The court erred in ordering the issues upon the peas to the jurisdiction to be tried by a jury; because (a). At the time the issues were ordered, neither party had taken proof upon the issues raised by the pleas, (b) The motion for an order directing the trial by a jury upon the issues joined, was not supported by affidavits, as required by section 3381 of the Code,</p> <p>“2. The court erred in granting the three instructions prayed by the complainant, because, (a) Tb'ey do not correctly propound the law upon the issues joined, and are misleading, (b) They conflict with the instructions granted the defendant and tended to confuse and to mislead the jury, (c) They state mere abstract propositions of law, and make no application of the law to the facts at issue, and are misleading.</p> <p>“3. The court erred in overruling the motions of the defendant to set aside the verdict of the jury in arrest of judgment, and for a new trial, and in entering judgment on the verdict of the jury; because (a) The verdict was contrary to the law and evidence of the case, (b) The court erred in entering judgment upon the verdict before a hearing of the case upon its merits.</p> <p>“4. The court erred in entering the final decree of March 7, 1918, because, (a) The decree is not supported by either the law or the evidence of the case, (b) The decree of the Supreme Court of the District of Columbia, in the suit of the defendant against the complainant, was entitled to full faith and credit, and while it remained in force was a bar to any further proceedings in this cause, on the ground of desertion, the decree of said court having been rendered and plead before the final decree in this cause of March 7, 1918.”</p>

Judgment for defendant. Plaintiffs assign error. Upton & Walker brought an action of assumpsit against R. D. Holloway, doing business under the style of R. D. Holloway & Co., and there was a judgment for the defendant to which this writ of error was awarded. The parties occupy the same relation to each other in this court that they occupied in the trial court.

<p>Error to a judgment of the Corporation Court of city of Danville, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

Judgment for plaintiff. Defendant assigns error. The court instructed the jury as follows: On Behalf of The Plaintiff.

<p>Appeal from a decree of the Circuit Court of Gloucester county. Decree for complainant. Defendant appeals.</p>

<p>Error to a judgment of the Circuit Court of Culpeper county, in an action of. detinue. Judgment for defendantPlaintiff assigns error.</p>

<p>Error to a judgment of the Corporation Court of city of Roanoke.</p>

<p>Error to a judgment of the Corporation Court of city of Roanoke. »</p>

<p>Error to a judgment of the Corporation Court of city of Roanoke.</p>

<p>Error to a judgment of the Circuit Court of Page- county.</p> <p>In this case the accused was convicted of an attempt to commit rape under an indictment, which, omitting its formal beginning, is as follows:</p> <p>“* * j0hn Broaddus heretofore, to-wit, on the 2nd day of November, 1918, in the said county, with force and arms, in and upon one Nellie Richards, a female of the age of eighteen years, violently and feloniously did make an assault and her, the said Nellie Richards, feloniously did attempt to ravish and carnally know against her will and by force against the peace and dignity of the Commonwealth.”</p> <p>Upon considering the evidence under the statutory rule on the subject the material facts bearing upon the issues in the case as shown by the record are as follows:</p> <p>The prosecutrix is a white girl, who was eighteen years of age at the time of the alleged offense, resided at her father’s home in the country about four miles from Luray, and had never seen the accused, who ’ is a colored man, until Thursday, the 31st of October, 1918, when he came to her father’s house, saying that he wanted to buy some scions of the father, who was a fruit tree agent; that the father was not at home at the time and the mother of prosecutrix so told the accused and the latter stated that he would return on Friday or Saturday, next following, being the 1st or 2nd of November; but the mother then told him that neither she nor the father would be at home on either of those days and suggested that the accused come back on Sunday, November 3rd, and added that on Saturday, November 2nd, she, the mother, and the father had to go to Luray to fill out the questionnaire of the father; that accused left stating that he would return on Sunday; that while at the home aforesaid, on Thursday, the accused said something about a wrist watch he wanted to sell, and he showed the mother and some of the children present at the time a little bracelet watch with no bracelet to it; that the accused did not show the watch to the prosecutrix or talk to her concerning, it on that occasion, and the mother told the accused that she did not want to buy a watch, that the accused told the mother and the prosecutrix that he had a ring at home but did not have it with him, but would bring it when he came the next time.</p> <p>According to the testimony of the accused, which is not controverted by any other testimony in the case, he had an arrangement with a jeweler in Pittsburgh by which he could sell watches and rings and receive a premium on each sale made; and also, according to the testimony of the accused, on Saturday morning, November 2nd, the father of the accused wanted some hog feed, and the accused asked and obtained permission of his- father to use the horse and buggy of the latter to go to the home of Mr. Richards, the father of the prosecutrix, for the purpose, as testified by the accused, of purchasing the scions of Mr. Richards and of coming back by the mill and bringing the hog feed. The accused admits that he had been told on Thursday, as aforesaid, that Mr. Richards would not then be at home, as both he and his wife had to go to Luray as aforesaid, but he explained his going to Mr. Richard’s home that day for the purpose claimed by stating that he went by Luray and took the road from Luray to Mr. Richard’s home upon which he would naturally expect to meet Mr. Richards in. his coming to Luray; that on not meeting Mr. Richards he went on to his home; but he does not explain why he did not wait at Luray to see Mr. Richards there or why he did not meet Mr. Richards on the way.</p> <p>On Saturday morning, November 2nd, Mr. Richards and his wife left home about 9:30 o’clock for Luray for the purpose above mentioned, and were away from home until about 6:00 o’clock that afternoon,- when they returned. They left at home the prosecutrix and six younger children, Claude, aged ten, and five others of the ages of eight, six, three and two years, and the youngest of thirteen months. The house consisted of five rooms, a large sitting room and kitchen down stairs, with a door between them and another door which was the entrance door from the front of the dwelling. That about 9:00 o’clock of the morning of the Saturday mentioned the accused came, while the prosecutrix and the six younger children were sitting in the large room downstairs. That it was a cold day and there was a fire in the large room aforesaid when the accused came. That the entrance door of this room was shut and the curtains down but the blinds were not shut. That Claude, the ten-year-old brother of the prosecutrix, looked out of a window and saw the accused as he drove up to the house in the buggy aforesaid and went outdoors to meet him, did meet him, returned with the accused to the house, opened the entrance door aforesaid and the accused came on in along with Claude. That the accused shut the door behind himself and Claude and took a seat by the fire, where the prosecutrix and the children aforesaid were sitting. That the accused showed the prosecutrix the wrist watch above mentioned, which he said cost $23.00 and which he said he wanted to sell her, and stated he would let the prosecutrix have it cheaper than that price. That the- accused asked Claude to get him a tar rope, which Claude got, but the accused told him that that would not do and asked Claude to get a twine string, which he did, and the accused then said that that would not do, and that the prosecutrix then herself got him a thread. That the accused then said that he wanted to measure the arm of the prosecutrix for a wrist watch and her finger for a ring; that the accused had a ring in his pocket which he showed her. That the accused measured the finger of the prosecutrix and tried to measure her wrist. That she refused to let the accused measure her wrist, and told him that she was unable to buy the watch. That the accused offered to give her the watch and then offered to give her the watch and the ring, “if she would go in . the other room with him.” That she told him that she was “not going.” That thereupon the accused said, “You will go or I will kill you.” That the accused then first took hold of the arm of the prosecutrix and then caught her around the waist and pulled her off the chair or bench on which she was at that time sitting, lifting her up and started with her towards the door entering the kitchen, saying that, he would take her into that room if he had to carry her, at the same time getting out his knife and saying he would “kill them all,” or “had a notion to kill all of them.” That the accused had not turned her loose when hé got out the knife. That thereupon the prosecutrix threatened to call her uncle (who lived’ about 130 yards away, his being the nearest resident to the Richards home). That when the prosecutrix threatened to call her uncle she succeeded in jerking away from the accused. That the “only way” the prosecutrix “got rid of thé accused was by telling him that she was going to call her uncle”—that “the.accused then let her go.” That the accused staid in the room “a little while longer and then grabbed his hat and ran.” That “when he left he asked (the prosecutrix) not to tell her father what had happened.” That when he got to the door he told Claude that he “had better go with him” and asked Claude to go with him to Simon Foster’s (who lived some 150 to 200 yards away from and in sight of the Richards home),.“to help him sell a watch to Foster’s wife and daughter.” That the accused said that “if he did not make a deal at Simon Foster’s there" would he bloodshed.” That Claude, went with the accused up to Foster’s fence. That after some time the accused came back down by the Richards’ home and “hollered in at the window and requested Nellie (the prosecutrix) and the others not to tell their father what had happened.”</p> <p>That the posecutrix was not hurt, and “did not scream or hollow nor did the children scream, but that they were terribly scared when he (accused) * * * put his arm around her waist * * That the prosecutrix was excited and nervous and went upstairs and went to bed as soon as the accused left and remained there until about one o’clock when she got up to get dinner. That the reason she did not go to her uncle’s home was “on account of the children and because her uncle’s family had the ‘flu’; that she was so frightened that she did not know what to do.”</p> <p>That two of prosecutrix’s brothers, aged twelve and thirteen respectively, came home about twelve o’clock from cutting wood and remained the rest of the day.</p> <p>That the first complaint the prosecutrix made to anyone was to her mother, which was immediately upon the entrance of the mother into the home on her return from Luray, which was on the afternoon of the day of the occurrence as aforesaid; and next to her father as he, a short while thereafter, came upon the porch.</p> <p>When arrested, on being informed with what he was charged in the warrant, the accused denied that he was at the Richards’ home on the Saturday aforesaid, but after-wards admitted that he was there.</p> <p>The accused testified in- substance, that he did ask the prosecutrix to go with him into the kitchen on the occasion upon the Saturday above mentioned, and that he did this with the purpse and intent to have carnal intercourse with •her. It should, however, be also said, perhaps, although, of course, we cannot regard it as true under the rule under which we must consider the evidence, that the accused in his testimony on the trial in the court below denied that he put his arm around the waist of the prosecutrix, or that he had any knife with him, or that he at any time used or intended tó' use any force or to do anything contrary to the will of the prosecutrix; and he made other statements some of which corroborated and some of which were in conflict with the evidence for the Commonwealth.</p>

<p>Error to a judgment of the Circuit' Court of Rockingham county.</p>

<p>Error to a judgment of the Circuit Court of Rockbridge county.</p>

<p>Error to a judgment of the Circuit Court of Augusta county.</p>

<p>Error to a judgment of the Circuit Court of Hanover county on an information to enforce forfeiture of an automobile under the Prohibition Act of 1918. Judgment of forfeiture. The owner of the automobile assigns error.</p>

<p>Error to a judgment of the Corporation Court of city of Charlottesville, in a proceeding by warrant against a telegraph company for failure to pay a license tax. Judgment for the city. Defendant assigns error.</p>

<p>Error to a judgment of the Corporation Court of city of Norfolk.</p>

The indictment in this case was as follows: “The grand jurors of the Commonwealth of Virginia, in and for the body of the city of Norfolk, and now attending the said court at its August term, 1918, upon their oaths, present that Arthur L. Hunt, within one year next prior to the finding of this indictment, in the said city of Norfolk, did unlawfully manufacture, transport, sell, keep, store and expose for sale, give away, dispense, solicit, advertise, and receive orders for…

<p>Error to a judgment of the Hustings Court of city of Richmond.</p>