
    *Backhouse’s Ex’x v. Selden.
    November Term, 1877,
    Richmond.
    Absent, Moncure, P.
    1. Appellate Court — Demurrer to the Evidence. — Where neither party requires a jury, and the whole matter of law and fact are heard and determined and judgment given by the court, and the whole evidence is certified by the court in the bill of exceptions, the bill must be regarded as a demurrer to evidence by the plaintiff in error.
    
      2. Wrong — Foreign. Contracts — Wh.at Law Grovems. — Where a bond dated in Texas, signed by the principal obligor, a resident of Texas, and by two sureties, residents of Virginia, payable to a resident of Virginia, where the drafts, which were the consideration of the bond, were sent to and received in Texas, and the money borrowed used in Texas by the principal obligor — Held: To be a contract governed by the laws of Texas, and not affected by ihe laws of usury in Virginia.
    Robert C. Selden brought an action of. debt in the circuit court of the county of Gloucester against John W. Backhouse, who was co-obligor with Thomas U, Taylor and Fielding L. Taylor, on a bond in these words and figures, to-wit:
    Victoria, Texas, February 3d, 1860. $3,000.
    Two days after date, we promise to pay to the order of Robert C..Selden, with interest at the -rate of ten per centum per annum, three thousand dollars and • — ■— cents, for value received, to which payment we *bind ourselves, heirs, executors, administrators and assigns.
    Witness our hands and seals.
    Thomas R. Taylor, [Seal.]
    Fielding R. Taylor, [Seal.]
    John W. Backhouse, [Seal.]
    Endorsed:
    December 29th, 1860. — Received interest to 3d February, 1861.
    The defendant pleaded payment, and filed a special plea of usury. The defendant then died, and the case was revived by scire facias against Ann Matilda Backhouse, his executrix.
    On the 31st of October, 1871, neither party requiring a jury, the whole matter of law and fact was submitted to the court, and judgment was rendered for the plaintiff against the defendant, to be levied de bonis testatoris, for the amount of the bond, with interest from the 3d of February, 1860, till paid, and the costs, to be credited by the interest paid to February.3d, 1861. A motion was made to set aside the judgment as being contrary to the evidence, which was overruled; to which the defendant excepted and tendered her bill of exceptions, which was signed and sealed, and in which the court certified all the evidence adduced on the trial, which was in substance the following. The plaintiff first introduced the bond above set forth, and then a letter from Thomas E. Taylor in these words and figures, viz:
    Victoria, February 25th,. 1860.
    Dear Sir: Your letters enclosing the three drafts of $995 each, have come to hand safely. I would have *acknowledged the receipt of the first, but was expecting the others every day, and thought that I would wait until the last arrived. I am very much obliged to you for sending them so promptly. We are now having fine rains and the chance for a crop is good.
    With kindest regards to cousin Courtney, I remain yours,
    Thomas R. Taylor. .
    Endorsed:
    This letter is the handwriting of my brother, Thomas R. Taylor.
    Arch’d Taylor.
    and proved that the name subscribed to the paper and the paper are in the handwriting of said Thomas R. Taylor, one of the obligors on the bond; and said plaintiff introduced and read in evidence the statute of the state of Texas, regulating the rate of interest at the date of the bond and now, which allowed a rate of interest by contract of the parties not exceeding twelve per centum per annum.
    The defendant introduced Fielding R. Taylor, a son of Fielding R. Taylor, one of the obligors to the bond, who testified that Thomas R. Taylor, who resided in Texas, came to Virginia in 1859 or 1860, when witness was about eleven years old, living with his father; that he understood that Thomas R. came to Virginia to borrow money; that his father went with Thomas R. to Texas about the last of January, 1860, but that John W. Backhouse did not go to Texas at that time; that he saw Backhouse every day or two while his father was in Texas, and that he could safely say that Backhouse was in Vir-' ginia at the date of the bond; that the writing in *the bond was in the handwriting of his father, and that his signature thereto was genuine; that he did not know whether Selden went to Texas when his father and Thomas R. Taylor went or not. The defendant then introduced a book containing printed forms of bonds and certain memoranda made upon the margin of' the two first pages, which the witness testified was the bond-book of his father; that it was found at his late residence in Gloucester county, Va., and that the memoranda on the margin of the two first pages from which the bond was cut were all in the handwriting of his father.
    The defendant also introduced Archibald Taylor, who testified that his brothers, Thomas R. and Robert Taylor, lived in Texas several years previous to 1860; that in 1859 they purchased land in Victoria county, Texas; that in the winter of 1859-60 Thomas R. came to Virginia to borrow money to pay for this land; that he learned this from conversations with his brothers, and also learned in the same way that Thomas did borrow money from Robert C. Selden and some from John. W. Backhouse, and that his brother, Fielding R., and said John W. Backhouse became his sureties; that his brothers, Thomas R. and Fielding, went away together about the last of January,. 1860, but that Backhouse did not go. He never heard of Backhouse’s going to Texas. The bond-book showed that the bonds were cut from the first and second pages of said book, leaving the margins; that on the margin of the first page, on a line with the printed figures “18,” was written the words “January 20th, ’60;” that immediately under the printed word “dolls.” was “:1000;” opposite the printed word “drawer” on the margin was written “Thomas I,. Taylor;” opposite “residence” was written “Victoria, Texas;” opposite “in whose favor” was written “John W. Back-house;’’ opposite “time” was written “twelve months,” and opposite “when due” was *written “January, 1861;” that on the margin of said book, on a line with the figures “18,” was written “January, ’60;” that in a line with “dolls.” and “cts.” were the figures “3000;” that opposite the word “drawer” was written “Thomas L. Taylor;” that opposite the word “residence” was written Victoria, Texas;” that opposite the words “whose favor” was written “Robert C. Selden;” and upon placing the printed bond in evidence in the book it was shown to have been cut from the second page thereof. It was admitted by the parties that Backhouse resided in the county of Gloucester, Va., and never went to Texas. It was also admitted that the obligor, Fielding L-, was, in 1859 and 1860, a resident of Gloucester, and did not change his residence, and that Selden, at the time of the execution of the bond, was also a citizen and resident of said county of Gloucester, Va., and the court certified that this was all the evidence in the case. The defendant obtained a writ of supersedeas to the judgment of said circuit court of Gloucester.
    M. B. Seawell and John S. Wise, for the appellant.
    Ould & Carrington, Friend & Davis, for the appellees.
    
      
      Appellate Court — Demurrer to the Evi-lienee. — -In Old Dom. Steamship Co. v. Burckhardt, 31 Gratt. 664, the court says: “And first, it is to be premised that the question as to how the appellate court will regard and give effect to a bill of exceptions in which the evidence and not the facts proved are certified, in a case tried by the court without a jury, and where the evidence is conflicting, is a question not definitely settled by the decisions of this court. There is certainly some conflict of authority on this point. Some of the cases hold that the same rule is to be applied to a case where a jury is waived and the case is tried by the court upon the law and facts, as to a case where there is a verdict of a jury; and that in both cases where the evidence (and not facts proved) is certified, and the evidence is conflicting, the bill of exceptions must be taken as a demurrer to the evidence, and so regarding it, the appellate court will only reverse when it appears that by rejecting all the oral evidence of the plaintiff in error and giving full credit to that of the defendant in error, together with all fair and legal inferences to be deduced from said evidence, the judgment is erroneous. See Pryor v. Kuhn, 12 Gratt. 615, and Backhouse’s Ex’or v. Selden, 29 Gratt. 581; Hodges’ Ex’or v. First National Bank of Richmond, 22 Gratt. 61. In Mitchell v. Baratta, 17 Gratt. 445, two judges out of three (the court then composed of three judges) held that a different rule prevailed where the judgment is by the couit upon the law and facts; and it was so held also in Wickham & Goshorn v. Martin Lewis & Co., 13 Gratt. 427, by two judges out of four. According to these last-mentioned authorities* the rule in such case is different from that which prevails where there is a verdict of a jury; the bill of exceptions is not in such case to be regarded as a demurrer to evidence, but in case of a conflict of evidence in such a case, the preponderance will be given to that side which prevailed in the court below. In the case before us, I do not think it necessary to reconcile these conflicting decisions and to declare which is the true rule settled -by the weight of authority.”
      Mr. Barton says (Barton’s Law Pr. 2d Ed. 667): “Where, however, the matter in controversy was submitted to the judge without the intervention of a jury, the rule, amid some differences of opinion, was held to be that the appellate court would not refuse to reverse the case because the evidence instead of the facts was certified; but the bill of exceptions would be regarded in the light of a demurrer to evidence; and when there was a conflict of evidence the conflicting evidence of the exceptor was disregarded by the court.” See also, Randolph v. Longdale Iron Co., 84 Va. 459; Weiss v. Hobbs, 84 Va. 490, citing the principal case.
    
   Anderson, J.,

delivered the opinion of the court.

The court is of opinion, that the whole matter of fact and law in this case having been submitted to the court, neither party requiring a jury, and the judgment of the court being upon the evidence which is certified in the bill of exceptions as all the evidence in the cause, the bill of exceptions must be regarded as a demurrer to the evidence, by the plaintiff in error. Hodge’s ex’or v. First Nat. Bank, Richmond, 22 Gratt. 51; Dodson v. Culpepper, *23 Gratt. 352. And the plaintiff in error, the. exceptor, must be taken to have admitted, as in case of a demurrer to evidence, all that could be reasonably inferred by a jury from the evidence given by the plaintiff below, and to have waived all the evidence on his part which conflicts with it, or which tends to establish a case inconsistent with 1he case proved by it. Tutt v. Slaughter’s adm’r, 5 Gratt. 364.

And the court being further of opinion, that the evidence of the plaintiff below, taken by itself and unirnpeached and unaffected by contradictory evidence, or taken in connection with so much of the defendant’s evidence as is not in conflict with it, to-wit: that the principal obligor in the bond resided at Victoria, Texas; that the bond is dated there; that the drafts, which are the consideration of the bond, were received there, and that the money borrowed was used there in paying for land which he and his brother had purchased there, justified the court in the infeience that the contract was made at Victoria, Texas, (Wilson v. Dazier & als., It Gratt. 481), and was to be performed there, and was consequently controlled and governed by the laws of Texas, which allowed a rate of interest, by contract of parties, not exceeding 12 per centum per annum. Arrington v. Gee, 5 Ired. Law R. p. 593.

Undoubtedly the bond was executed by Thomas L- Taylor, the principal debtor, at Victoria, Texas, and it is obligatory on him to pay the stipulated interest, which did not exceed the rate of interest allowed by the law of Texas. The other obligors resided in Virginia. It is conceded that they executed the bond as sureties of Thomas L. Taylor, and it is impossible to suppose that they could have contemplated the payment being made here by them, and not at Victoria, Texas, by the principal. In the nature of things they expected only to be ’"secondarily liable, and they are liable for what the principal had bound himself. Ruffin, C. J., in case cited, supra.

The court is of opinion, therefore, without deciding other interesting questions which were raised in the argument by the learned council, that the plaintiff in error, upon whom the onus rested to establish her plea of usury by conclusive testimony, has wholly failed to establish it, and that there is no error in the judgment of the circuit court, and that the same be affirmed with costs.

Judgment affirmed.  