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+"{\"id\": \"12170835\", \"name\": \"Brenda D. Harris and Jan M. Harris, Co-Administrators of the Estate of Mark C. Harris, deceased v. Patricia L. Schirmer et al.\", \"name_abbreviation\": \"Harris v. Schirmer\", \"decision_date\": \"2016-03-07\", \"docket_number\": \"Case No. CL12-205\", \"first_page\": \"8\", \"last_page\": \"44\", \"citations\": \"93 Va. Cir. 8\", \"volume\": \"93\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Roanoke Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:30:02.114476+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Brenda D. Harris and Jan M. Harris, Co-Administrators of the Estate of Mark C. Harris, deceased v. Patricia L. Schirmer et al.\", \"head_matter\": \"CIRCUIT COURT OF THE CITY OF ROANOKE\\nBrenda D. Harris and Jan M. Harris, Co-Administrators of the Estate of Mark C. Harris, deceased v. Patricia L. Schirmer et al.\\nMarch 7, 2016\\nCase No. CL12-205\", \"word_count\": \"16265\", \"char_count\": \"101304\", \"text\": \"By\\nJudge Charles N. Dorsey\\nFollowing hearing on Plaintiffs' objections to the proposed final order entering judgment on the verdict in favor of Defendants, in this case, there only remains need for ruling. Having reviewed the relevant pleadings, case law, trial transcript, and having considered the arguments of counsel made on and before December 21,2015, Plaintiffs' post-trial objections are overruled and judgment on the verdict is entered for the reasons that follow.\\nI. Facts\\nBrenda D. Harris and Jan M. Harris (\\\"Plaintiffs\\\") are the parents of and co-administrators of the estate of Mark C. Harris, deceased. On February 2, 2012, Plaintiffs brought suit against Patricia L. Schirmer, M.D., the Carilion Clinic, the Carilion Stonewall Jackson Hospital, and others (collectively \\\"Defendants\\\"), for their alleged negligence and malpractice in the events that led to the death of their son, Mark, on April 7, 2011.\\nPlaintiffs nonsuited one Defendant, Carilion Clinic, by court order on February 8, 2013. On November 3, 2014, Plaintiffs moved without objection to nonsuit Carilion Stonewall Jackson Hospital and Jennifer Horn, and the Court ordered the nonsuit without prejudice, pursuant to Virginia Code \\u00a7 8.01-380. The style of the case was thereby amended to \\\"Brenda D. Harris and Jan M. Harris, Co-Administrators of the Estate of Mark C. Harris, deceased v. Patricia L. Schirmer, M.D., and Lexington VA Emergency Physicians, L.L.P.\\\" See Nonsuit Order, at 1, Nov. 3, 2014.\\nA. Factual Background\\nl. April 6-7, 2011, Hospitalization\\nOn the night of April 6,2011, Mark Harris (\\\"Mark\\\") was admitted to the emergency department at Carilion Stonewall Jackson Hospital in Lexington, Virginia with various symptoms, including: tremors, fever, diaphoresis, nausea, palpitations, restlessness, myalgias, and a headache. While his behavior throughout his hospitalization was abnormal and described as \\\"unusual\\\" (Trial Tr. 286, Mar. 9, 2015 (hereinafter Trial Tr. 3/9/10/15)), given these symptoms, Mark was \\\"alert and oriented\\\" and able to follow commands. Trial Tr. 91, 96, Mar. 11, 2015 (hereinafter Trial Tr. 3/11/15). There was no evidence that he was mentally incapacitated or unable to comprehend what the treating physicians were asking of him.\\nPrior to his admission to the emergency room, Mark had taken 600 mg of Dextromethorphan, an over-the-counter cough medication. As recently as April 3, 2011, Mark had also taken a Selegiline, a chemical inhibitor used to treat depression, which Mark had regularly been taking and was still in his system on April 6, 2011.\\nIt is medically established that when one mixes Selegiline with Dextromethorphan, the risk of serotonin syndrome, a potentially fatal condition that affects specific neurotransmitters called serotonin, is likely. Trial Tr. 145-46, Mar. 10, 2015 (hereinafter Trial Tr. 3/10/15). Changes in serotonin can cause increased muscle activity like tremors, high blood pressure, high heart rate, hypertension, and tachycardia. Id. at 143-44.\\nDr. Schirmer, the emergency room physician on April 6,2011, attempted to treat Mark. It became known that Mark had been admitted to the same emergency department approximately two weeks earlier, on March 22, 2011, for an apparent overdose of Selegiline and Vyvanse, a central nervous stimulant used to control hyperactivity and muscle control. Given this information, Dr. Schirmer specifically asked Mark the question: \\\"Have you taken any Selegline or Vyvanse?\\\" Mark replied that he hadn't taken them regularly for \\\"months.\\\" Dr. Schirmer, having knowledge of Mark's hospitalization on March 22, 2011, was skeptical of this answer. She pressed him again for the truth stating, \\\"But you were just here recently for a Selegiline and Vyvanse overdose, so you have taken these medications.\\\" Trial Tr. 3/11/15, at 42. Mark then conceded, \\\"I haven't taken them since my \\u2014 since I left the hospital.\\\" Id.\\nIf Dr. Schirmer were to accept the truth of this statement \\u2014 and she had every right to assume that he was telling the truth after she already called his bluff on whether he truly had not taken Selegiline for months \\u2014 this would mean that Selegiline would have likely washed out of his system. See Trial Tr. 3/9/15, at 208-09 (Dr. Tharp, expert witness for Plaintiffs, noting that Selegiline has a long half-life, that it generally takes five half-lives to truly clear a drug out of one's system, and that for Selegiline this can be between 90 and 150 hours); id. at 209 (Dr. Tharp explaining that due to Selegiline's long half-life, an individual is supposed to wait two weeks after stopping Selegiline before starting other substances that can have an effect on serotonin); see also Trial Tr. 140-41, Mar. 12, 2015 (hereinafter Trial Tr. 3/12/15) (Dr. Luder, witness for Defendants, explaining that he admonished Mark Harris to ensure a two-week washout period). Thus, it would have been entirely reasonable for Dr. Schirmer to have ruled out serotonin syndrome as a likely cause of Mark's symptoms or, as she did, to have considered it a less likely diagnosis.\\nBased on Mark's vehement initial denial and subsequent untruthful qualification, the untruthfulness of which was not known to Dr. Schirmer, Dr. Schirmer concluded that an interaction between Dextromethorphan and Selegiline was one of the less likely causes for Mark's symptoms, and this was reflected in her differential diagnosis. It later became evident that Mark was indeed suffering from serotonin syndrome as a result of the interaction between the Selegiline in his system and his ingestion of Dextromethorphan.\\n2. Important Events Preceding the April 6-7, 2011, Hospitalization\\nWhen considering the facts underlying Mark's treatment on April 6-7, 2011, context is provided by some significant events leading up to this date, including the events surrounding the March 22, 2011, hospitalization and the two-weeks that followed.\\nIn the spring of 2011, Mark was struggling in his studies at Washington and Lee University (\\\"W&L\\\"). He had been struggling for years with depression, but his disorder worsened at this time. He had been prescribed various sleeping medications and anti-depressants, including Selegiline, over the course of the academic year by Dr. Kirk Luder, a psychiatrist at the W&L counseling center. Dr. Luder had always advised Mark that when he switched from one anti-depressant to another, he needed to allow for a two-week washout period to avoid any dangerous overlap of medication. Trial Tr. 3/12/15, at 140-41.\\nOn March 20-21, 2011, Mark overdosed on sleep medication and communicated to his girlfriend, Hannah Muther, he intended to kill himself. The next day, March 22, 2011, Mark was taken to Carilion Stonewall Jackson's emergency room for an alleged suicide attempt by an overdose of Selegiline and Vyvanse. He was successfully treated at that time, and after several days of hospitalization was transferred to the University of Virginia (\\\"UVA\\\") for psychiatric treatment. While there, he explained that his March 22, 2011, suicide attempt was a result of stressors from school, his fraternity brothers, and his girlfriend.\\nAfter being discharged from the facility at UVA, Mark was given a prescription for oral Selegiline and was again told that if he planned to take any other drug, he must allow two weeks before starting it. From UVA, Mark was voluntarily admitted to an inpatient mental health facility, Region Ten, but only stayed for around twenty-four hours before returning to Lexington.\\nMark resumed taking Selegiline on March 31,2011, but discontinued its use on April 3, 2011. On April 4, 2011, Mark met with Dr. Luder at W&L and explained that he did not like the way that the oral Selegiline made him feel. Mark further explained that he was going to discontinue its use until he could obtain a transdermal Selegiline patch. Later on April 4, 2011, Mark purchased two bottles of Dextromethorphan on Amazon.com, which were shipped to his fraternity house.\\nOn April 6, 2011, Mark was with his girlfriend, Hannah, in his room at the fraternity house. They attempted to become intimate, but Mark was unable to achieve an erection. Following this, Mark and Hannah had a discussion regarding the longevity of their relationship given that Hannah was planning to leave for Germany on a Fulbright scholarship at the end of the semester. Shortly after their conversation, Mark took an overdose of Dextromethorphan, which led to the hospitalization that is at the epicenter of this case.\\n3. Mark Harris'1 s Death and Autopsy\\nDuring Mark's hospitalization on April 6, 2011, Dr. Schirmer and the nurses diligently worked to try and stabilize his symptoms, but to no avail. Despite a flurry of tests and treatments, Mark's condition did not ameliorate. He was eventually pronounced dead at 1:31 a.m. on April 7, 2011, at the age of twenty. Shortly after Mark's death, at around 2:00 a.m., Dr. Schirmer contacted his parents. She shared with them that her ultimate conclusion was that Mark had committed suicide.\\nIn addition to denying having taken Selegiline recently, Mark was also heard saying in the emergency room, inter alia, \\\"I got it right this time\\\" and \\\"I knew what I was doing.\\\" Trial Tr. 3/9/15, at 314-15. Regarding the March 22, 2011, overdose, Mark also allegedly told Dr. Schirmer that he was sorry that he had not died. Trial Tr. 3/11/15, at 52.\\nAn autopsy was conducted and showed that Mark's death was a result of serotonin syndrome caused by acute Dextromethorphan and Selegiline toxicity. The autopsy further showed that Selegiline was still in Mark's system although he had stopped taking it a few days prior to his admission to Stonewall Jackson on April 6, 2011.\\nB. Procedural Posture\\nPlaintiffs filed their Complaint alleging medical malpractice, primarily against Dr. Schirmer, see supra, on February 2, 2012. In general, Plaintiffs alleged that Dr. Schirmer deviated from the required standard of care, knowing that such a deviation would cause, or likely cause, serious injury or death. They argued that Dr. Schirmer failed to appreciate, properly act on, diagnose, and treat Mark's condition.\\nIn support of their case, Plaintiffs argued that Mark was not attempting to commit suicide and did not voluntarily bring about the serotonin syndrome on April 6, 2011. They dispute the relevance of the events of the two-week period pre-dating April 6,2011, and argue that Mark's death was the sole result of Dr. Schirmer's failure to diagnose serotonin syndrome.\\nDefendants asserted three affirmative defenses as part of their theory of the case: illegal act, assumption of the risk, and contributoiy negligence. At trial, the defenses of illegal act and assumption of the risk were ultimately struck, but Defendants retained the defense of contributory negligence. Illegal act and assumption of the risk, in this case, would have occurred prior to Mark presenting at the hospital and would not have affected a physician's ability to diagnose and treat. In support of their theory of the case, Defendants argued that Mark Harris was attempting to commit suicide on April 6, 2011, and deliberately misled Dr. Schirmer to that end. They pointed to, inter alia, Mark's unambiguous denial of having recently taken Selegiline, and his statements in the emergency room that \\\"[he] got it right this time\\\" and \\\"that [he] knew what [he] was doing.\\\" Defendants also introduced evidence of a posthumous investigation of Mark's computer revealing that he had looked up a news article about a young girl's fatal drug overdose, revealing a record of what drugs Mark had taken and when, and revealing certain emails suggesting Mark's suicidal intent.\\nPrior to, at the outset of, and during the trial, Plaintiffs objected to a variety of different testimony on the grounds of relevance and prejudicial effect. In addition, they objected to the introduction of any evidence pertaining to any of the Defendants' claimed affirmative defenses. Both parties also filed motions in limine, but as the parties proffered no agreed-upon or stipulations of fact, these motions were taken under advisement. The relevant facts pertaining to all of those objections will be articulated here in the analysis section.\\nThe case went to trial on March 9, 2015, before a jury of eight selected jurors. The parties had previously agreed to leave an alternate on the jury if he or she was not used as an alternate. The trial lasted for five days.\\nOn March 13, 2015, after the close of evidence, closing arguments, and after having received instructions, the jury retired to deliberate. Proposed Final Judgment Order at 2, Sept. 29, 2015 (herein \\\"Proposed Final Judgment Order\\\"). Despite objection by Plaintiffs, contributory negligence instructions were given.\\nAfter deliberation, the juiy returned a verdict in favor of Defendants. Each juror was polled inquiring whether they concurred in the verdict. All jurors responded in the affirmative. Id. at 3.\\nA final draft order (the Proposed Final Judgment Order) was tendered to the Court by Defendants. Plaintiffs raised seven objections to the Proposed Final Judgment Order. Id. at 4-5. Rephrasing and stating in a slightly different order, Plaintiffs articulated the following objections:\\n(A) The Court erred in instructing the jury on contributory negligence because there was not more than a scintilla of evidence to support such an instruction;\\n(B) The Court erred in allowing evidence pre dating Dr. Schirmer's treatment of Mark under Rules 2:401 and 2:403 of the Rules of the Supreme Court of Virginia;\\n(C) The Court erred in admitting evidence going to the affirmative defenses of illegality and assumption of the risk before striking those defenses;\\n(D) The Court erred in refusing to grant a mistrial in lieu of striking the defenses of illegality and assumption of the risk and knowing that improper evidence had been admitted thereunto;\\n(E) The Court erred in instructing the juiy on the Deadman's Statute, as there had not been sufficient corroboration; and\\n(F) The Court erred in refusing to give a limiting instruction on evidence relating to Mark's alleged suicide attempts and statements he made in the emergency room to Dr. Schirmer.\\nPlaintiffs also objected to Juiy Instructions Nos. 4, 7, 10, 11, 11 A, 15, and 15A. Ahearing was held on December 21,2015, to take up all post-trial objections.\\nII. Analysis\\nA. Contributory Negligence\\nPlaintiffs claim that the jury was erroneously instructed on contributory negligence. Specifically, they claim that \\\"[t]here was not more than a scintilla of admissible evidence from which a jury could find that Mark Harris was contributorily negligent.\\\" Proposed Final Judgment Order, at 4. Over Plaintiffs' objection, evidence relating to Mark's purported contributoiy negligence (i.e., denying having taken Selegiline recently) was admitted and the jury was given contributory negligence instructions. Plaintiffs reiterated and renewed this objection at the December 21, 2015, hearing.\\nIn support of their position, Plaintiffs are quick to point out that the Supreme Court of Virginia has considered seven cases involving trial courts issuing contributory negligence instructions in the medical malpractice context, with the Supreme Court finding error in each one. True as this is, however, the very fact that the Supreme Court has considered a number of these cases implies that contributory negligence may exist in the medical malpractice context under the right set of facts. The Supreme Court has never affirmatively declared that contributory negligence instructions are always improper in medical malpractice cases. All of the seven previous Supreme Court decisions involved facts that are distinguishable from the case at hand. In short, if there are cases under Virginia law where contributory negligence should be permitted in a medical malpractice action, this is one of these cases.\\nThis review (i) states the governing law for giving contributory negligence instructions, (ii) applies the law to the facts of the present case, and (iii) distinguishes the Supreme Court's jurisprudence on the subject.\\n1. Governing Law of Contributory Negligence in Medical Malpractice Context\\nThe defense of contributory negligence is \\\"based on the objective standard whether a plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances.\\\" Sawyer v. Comerci, 264 Va. 68, 74, 563 S.E.2d 748, 752 (2002) (citing Ponirakis v. Choi, 262 Va. 119, 124, 546 S.E.2d 707, 710 (2001); Artrip v. E. E. Berry Equip. Co., 240 Va. 354, 358, 397 S.E.2d 821, 823-24 (1990)). \\\"The essence of contributory negligence is carelessness.\\\" Id. (citing Ponirakis, 262 Va. at 124, 546 S.E.2d at 711; Artrip, 240 Va. at 358, 397 S.E.2d at 823-24). The defendant has the burden of proving contributory negligence by a preponderance of the evidence. Contributory negligence may be proven \\\"by the plaintiff's evidence or . . . [may be] fairly inferred from the circumstan'ces of the case.\\\" Id. (citing Southern Ry. v. May, 147 Va. 542, 552, 137 S.E. 493, 496 (1927)).\\nIn the medical malpractice context, because of the physician-patient relationship and the \\\"great disparity in medical knowledge between doctor and patient, [a] patient is entitled to rely upon assurances made by [their] doctor and, generally, need not seek the opinions and services of others.\\\" Lawrence v. Wirth, 226 Va. 408, 412-13, 309 S.E.2d 315, 317 (1983).\\nAlso, a plaintiff's contributoiy negligence \\\"must be contemporaneous with the claimed defendant's negligence.\\\" Chandler v. Graffeo, 268 Va. 673, 681, 604 S.E.2d 1, 5 (2004) (citing Sawyer, 264 Va. at 75, 563 S.E.2d at 753; Ponirakis, 262 Va. at 125, 546 S.E.2d at 711; Gravitt v. Ward, 258 Va. 330, 335, 518 S.E.2d 631, 634 (1999); Eiss v. Lillis, 233 Va. 545, 552, 357 S.E.2d 539, 543 (1987); Lawrence, 226 Va. at 412-13, 309 S.E.2d at 317-18) (emphasis added). This means that the plaintiff's negligent act must be concurrent with the physician's negligent act. Sawyer, 264 Va. at 75, 563 S.E.2d at 753 (citing Ponirakis, 262 Va. at 125, 546 S.E.2d at 711) (emphasis added).\\nIf a defendant is relying on the defense of contributory negligence, they \\\"must establish a prima facie case of the plaintiff's contributory negligence.\\\" Id. Consequently, \\\"a defendant who asserts a defense of contributory negligence is not entitled to a jury instruction on contributory negligence if that defendant only adduces a mere scintilla of evidence of the plaintiff's purported contributory negligence.\\\" Id. Stated differently, there must be more than a scintilla of evidence in order to warrant an instruction on contributory negligence. See id.\\n2. Application of Facts to Present Case: Whether Contributory Negligence Instructions Were Appropriate\\nThe trial court is not to determine whether the evidence conclusively proved that Mark Harris was contributorily negligent, and, therefore, barred from recovery. Rather, the role of the court is limited solely to determining whether more than a scintilla of evidence supported giving the instruction. The jury is charged with weighing the credibility of witnesses and evidence, and determining the facts.\\nIn the present case, Dr. Schirmer adduced more than \\\"a mere scintilla of evidence of [the decedent's] purported contributory negligence\\\" or at least has adduced enough evidence that contributory negligence could be \\\"fairly inferred from the circumstances of the case.\\\" Id.-, see also id. at 74, 563 S.E.2d at 752 (citing Southern Ry., 147 Va. at 552, 137 S.E. at 496). It was not error to allow the jury to determine whether contributory negligence existed and, if so, whether such was proven by the greater weight of the evidence. Once the determination was made that more than a scintilla of contributoiy negligence evidence existed, the rest was up to the jury. By reaching its verdict, the jury independently determined that Mark Harris was indeed contributorily negligent.\\na. Scintilla of Evidence\\nDefendants adduced more than a scintilla of evidence, which was relevant and admissible, to support the contributoiy negligence instructions in this case. See generally infra Part II.B for a discussion that the evidence relating to contributoiy negligence, including evidence about Mark's previous hospitalization, his statements in the emergency room, the findings of the posthumous investigation of his room, etc., was not irrelevant nor unfairly prejudicial. Defendants' theory that Mark intentionally overdosed on Dextromethorphan, knowing that it would interact with the Selegiline in his system, was by no means an argument unsubstantiated by evidence.\\nThe evidence supporting Defendants' theory non-exhaustively included: testimony relating to Mark's knowledge of the two-week washout period which was necessary when switching medications (Trial Tr. 3/9/15, at 208-09; Trial Tr. 3/12/15, at 140-41); testimony that Mark had died due to acute Dextromethorphan and Selegiline toxicity (Trial Tr. 3/9/15, at 197); testimony that Mark had specifically researched on his computer how Dextromethorphan meshed with his anti-depressant (Trial Tr. 3/11/15, at 276-77, 293-95); testimony that Mark had researched how other similarly situated persons had ended their life by mixing prescription medications (id.); Mark's affirmative denial of having taken Selegiline to Dr. Schirmer (id. at 42); and statements attributed to Mark that \\\"[he] knew what [he] was doing\\\" and \\\"[he] got it right this time\\\" (Trial Tr. 3/9/15, at 313 -15. And while Mark was suffering from myriad symptoms, there is no suggestion that Mark was an unreliable witness, as there was testimony that he was \\\"alert and oriented\\\" and able to follow commands; see supra)-, testimony relating to Mark's unsuccessful suicide attempt on March 22, 2011, by overdose (Trial Tr. 3/11/15, at 42); and the eighty-four pill bottle of Selegiline with only eleven pills remaining. Id. at 288.\\nIn short, without adopting either party's theory of the case, all of this evidence, taken in its totality, satisfies the scintilla of evidence standard and supports the giving of contributory negligence instructions.\\nb. Contemporaneousness\\nBoth Dr. Schirmer's purported negligence (i.e., the failure to diagnose serotonin syndrome) and Mark's purported contributory negligence (i.e., his deliberate denial of having recently ingested Selegiline) occurred sufficiently close-in-time to support the contributory negligence instructions in this case. It is important to distinguish that it was Mark's failure to disclose that he had Selegiline in his system that Defendants point to as his purported contributorily negligent act, and not the mere act of ingesting Dextromethorphan while knowingly having Selegiline in his system.\\nThere is no dispute that if the negligent act had been the mere presence of Selegiline in Mark's system, assuming that act of itself was somehow negligent, then there could be no contributory negligence instruction because the contemporaneousness requirement would not have been met. See infra for a discussion on the case of Eiss v. Lillis, 233 Va. 545, 357 S.E.2d 539 (1987), where the Supreme Court of Virginia held that an allegedly contributorily negligent act that occurs prior to the alleged negligent act fails the contemporaneousness standard.\\nThe proximity in time between the acts of negligence and contributory negligence in this case were much closer than in many of the Supreme Court's previous cases. See, e.g., Chandler v. Graffeo, 268 Va. 673, 604 S.E.2d 1 (2004) (contemporaneousness lacking because the purported contributorily negligent act, the decedent's failure to see a nephrologist the morning after being discharged from the hospital, even though it was technically impossible for the decedent to do so, occurred sufficiently after the defendant physician's wrongful discharging of the decedent); Eiss v. Lillis, 233 Va. 545,357 S.E.2d 539 (1987) (contemporaneousness lacking because the purported contributorily negligent act, taking aspirin on the advice of a separate doctor, happened sufficiently after the defendant physician had failed to ensure that sufficient precautions were taken to minimize the side-effects of the decedent's blood thinner); Lawrence v. Wirth, 226 Va. 408, 309 S.E.2d 315 (1983) (contemporaneousness lacking because purported contributorily negligent act was a delay in seeking a second medical opinion).\\nAlthough Mark's denial may have technically preceded Dr. Schirmer's failure to diagnose serotonin syndrome in some trivial sense, they both occurred at the hospital and close in time to each other. Going further, the two actions were inextricably causally linked together, with Mark's untruthfulness leading to Dr. Schirmer's ruling out serotonin syndrome as a likely cause of Mark's condition. But for Mark's deliberate denial, and the subsequent untruthful qualification that he hadn't taken Selegiline \\\"since [he] left the hospital [on March 22, 2011]\\\" (Trial Tr. 3/11/15, at 42), Dr. Schirmer would have been more able to narrow in on serotonin syndrome as the cause of his symptoms.\\nBecause Dr. Schirmer's failure to diagnose and Mark's concealment of facts critical to his treatment were sufficiently concurrent with each other, the contemporaneousness requirement was satisfied. Accordingly, in the context of this ground, contributory negligence instructions should have been given.\\nc. Disparity in Medical Knowledge\\nConcerning the disparity of medical knowledge issue, there is no dispute that Mark's medical expertise was vastly inferior to Dr. Schirmer's. However, the unique set of facts in this case mitigates the overall emphasis to be placed on the disparity.\\nMark Harris was not the average layman generally seen in the typical medical malpractice case. This case is not one where Mark was wholly ignorant of what was happening to him. Mark knew the side-effects of Selegiline interacting with other drugs. Trial Tr. 3/11/15, at 276-77,293-95. He researched the topic of fatal drug-mixing overdoses. Ld. He was aware of the two-week washout period. Trial Tr. 3/9/15, at 208-09; Trial Tr. 3/12/15, at 140-41. He was aware that Selegiline would be in his system well after his last ingestion of the drug on April 3, 2011. Trial Tr. 3/9/15, at 208-09; Trial Tr. 3/12/15, at 140-41. Notwithstanding, a jury could conclude that he deliberately lied to Dr. Schirmer about his having taken the drug. Trial Tr. 3/11/15, at 42. Mark was also noted as having said, \\\"I got it right this time\\\" and \\\"I knew what I was doing.\\\" Trial Tr. 3/9/15, at 313-15. Given these critical facts, the jury should have been permitted, though not required, to infer that Mark was intentionally trying to preclude Dr. Schirmer from applying her vastly superior medical expertise.\\nThese facts present a starkly different situation from the Supreme Court cases wherein the patient was fully cooperative and forthcoming of information which would aid the doctor's treatment of him or her. This is not even the case where the patient honestly and in good faith merely omits or fails to state information necessary for his or her treatment. This is a case where the fact finder could have concluded that Mark made an affirmative misrepresentation to Dr. Schirmer that was material to her diagnosis and treatment. Thus, although Mark Harris was not a doctor, Defendants' evidence compels the conclusion that Mark's apparent inferiority in terms of medical expertise should not be given as much weight as it otherwise would. See also infra text discussing how the Supreme Court of Virginia, in Gravitt v. Ward, 258 Va. 330, 518 S.E.2d 631 (1999), qualified the importance of the disparity of medical knowledge when common knowledge or the circumstances of the case dictate otherwise.\\nMoreover, there are adverse public policy implications that would accompany a strict application of the medical knowledge disparity factor. Prohibiting a doctor from asserting the defense of contributory negligence in a situation where a patient deliberately lies to or misleads them would implicitly impose a burden on all physicians to assume that their patients are not telling them the truth, instead of the inverse. This would be entirely disfavored as a matter of policy, as such would render inefficient, and potentially disturbing or chaotic results for patients. And for doctors, such a policy would make their already difficult jobs overwhelmingly more complicated and subject them to even more malpractice litigation.\\n3. Supreme Court Jurisprudence\\na. Lawrence v. Wirth\\nThe Supreme Court of Virginia first addressed the issue of contributory negligence in the medical malpractice context in Lawrence v. Wirth, 226 Va. 408, 309 S.E.2d 315 (1983). In Lawrence, the plaintiff had discovered a lump on the lower part of her inner left breast in August 1977. The defendant, her physician, examined her but did not find a lump on that part of her breast. Instead, he removed some tissue from the upper part of her breast, which turned out to be benign. Id. at 410, 309 S.E.2d at 316. After the benign tissue's removal, the plaintiff continued to feel the lump of which she originally complained; however, when she questioned the defendant about it further, he did not respond. The plaintiff returned some weeks later for the removal of the sutures associated with the benign tumor and again inquired about the lump, to which inquiry the defendant did not reply. Two months later, the plaintiff saw a second physician who determined that the lump was malignant ductal cancer requiring immediate surgery. Id. After the surgery, it came to light that the plaintiff had terminal cancer, which would have been cured if the tumor had been removed in August 1977. Id. at 411, 309 S.E.2d at 316.\\nThe defendant in Lawrence argued that the plaintiff was contributorily negligent for having delayed in seeking a second medical opinion. At trial, the court issued a contributory negligence instruction, which the Supreme Court of Virginia found to be error. Id. at 411, 309 S.E.2d at 317. The Supreme Court held that due to the great disparity in medical knowledge, the patient is entitled to rely upon assurances made by the doctor and need not seek the opinions of others generally. Id. at 411-12, 309 S.E.2d at 317. The plaintiff's purported contributory negligence was also not contemporaneous because it occurred after the defendant's negligence. Id. at 412, 309 S.E.2d at 317. Moreover, the Supreme Court found no evidence that the plaintiff was negligent during the period of the physician's failure to appropriately examine the lump or respond to questions pertaining thereto. See id.\\nJuxtaposed with the present case, the following distinctions are evident. First, the Lawrence facts lacked the contemporaneousness present in the case against Dr. Schirmer. See supra Part II.A.ii(b). Moreover, the Lawrence decision was founded upon the patient's entitlement to rely on the advice, expertise, and counsel of his or her doctor. This case, on the other hand, involves the doctor's entitlement to rely on the patient's truthfulness in describing their symptoms and medical histoiy. Just as a patient is entitled to rely on the expertise of their physician because of the disparity in medical knowledge between the two, a physician should be equally entitled to believe that their patient is truthful and completely forthcoming, absent obvious issues that may prevent such a result (i.e., mental incapacitation, unconsciousness, traumatic head or other bodily injuries, etc.). Requiring each doctor to assume the opposite about their patient would lead to very troubling results. See supra.\\nb. Eiss v. Lillis\\nSome years after Lawrence, the Supreme Court revisited the issue in Eiss v. Lillis, 233 Va. 545, 357 S.E.2d 539 (1987). In Eiss, the decedent saw the defendant physician for chest pains. After concluding that the decedent had suffered a mild heart attack, the defendant prescribed the decedent a blood thinner which had a major side effect of hemorrhaging unless properly stabilized. Id. at 547,357 S.E.2d at 540. The proper method for stabilizing the dosage is taking prothrombin times of the patient and adjusting the dosage as a result. Id. The defendant, however, did not make sure that the decedent had gone through sufficient stabilization procedures. See id. at 547-48, 551, 357 S.E.2d at 540, 542. Later, after the advice of a separate doctor, the decedent began taking aspirin for leg pain. Id. at 548, 357 S.E.2d at 540. The aspirin seemed to interact with the blood thinner, however, and the decedent's condition deteriorated. See id. at 548-50, 357 S.E.2d at 540-42. He died shortly thereafter. Id. at 551, 357 S.E.2d at 542.\\nThe defendant argued that the decedent was contributorily negligent in taking the aspirin, and the trial court gave a contributory negligence instruction. The Supreme Court reversed and remanded. It held that the decedent's taking of aspirin was merely a factor which led to the decedent's death but that it did not proximately cause his death. See id. at 553, 357 5.E.2d at 543-44. It held that \\\"[i]f aspirin compounds the effect of [the blood thinner] \\u2014 which the expert testimony show[ed] it does \\u2014 then [the defendant] was bound to treat for both. [The defendant] cannot successfully contend that he is not liable for [the decedent's] death because had [the decedent] not taken aspirin, [he] would not have needed a doctor.\\\" Id. at 553, 357 S.E.2d at 543. It continued further, \\\"Were we to accept [the defendant's] argument, in any case where the patient was responsible for events that led to his hospitalization, the treating physician would not be liable for negligent treatment. We reject this argument.\\\" Id. (citations omitted). The Supreme Court also emphasized that the plaintiff's alleged negligence in Eiss occurred before the defendant's alleged negligence, and thus the contemporaneousness requirement was not satisfied. Id. at 553, 357 S.E.2d at 544 (\\\"This case presents the obverse of Lawrence. There, the contention was that events after the doctor's negligence amounted to contributory negligence. Here, the contention is that events before the doctor's alleged negligence amounts to contributory negligence. The result must be the same in both cases, because the patients' conduct and the main act of negligence ascribed to the doctors were not contemporaneous and could not occur.\\\"). Accordingly, the Supreme Court held that the trial court erred in allowing the jury to consider contributory negligence. Id. at 553-54, 357 S.E.2d at 544.\\nThe facts in Eiss are distinct from the present case in two important respects. First, just as with Lawrence, part of the holding in Eiss rested on the fact that the plaintiff's alleged negligence did not coincide with the defendant's alleged negligence. See id. at 553, 357 S.E.2d at 544. In the case against Dr. Schirmer, the contemporaneousness requirement is met. See supra. Second, in Eiss, the defendant physician knew of the actions underlying the plaintiff's alleged negligence (i.e., the decedent's use of aspirin) and failed to treat it. In this case, Dr. Schirmer was unaware of both Mark's alleged contributory negligence (i.e., that he lied about his having taken Selegiline as recently as two days prior to his hospitalization on April 6, 2011) and the actions underlying his alleged negligence (i.e., that Mark had in fact ingested Selegiline). When Mark told Dr. Schirmer that he had not taken Selegiline, she was entitled to put the possibility of serotonin syndrome to the back of her mind and explore other possible causes of his condition. In Eiss, the defendant knew of the causes of the decedent's ailments and failed to adequately address them. Here, Dr. Schirmer had no such knowledge. Dr. Schirmer did not know the causes of Mark's symptoms, largely, if not wholly, due to his affirmative misrepresentation.\\nc. Diehl v. Butts\\nIn Diehl v. Butts, 255 Va. 482, 499 S.E.2d 833 (1998), the Supreme Court of Virginia was confronted with a case where the decedent had injured his head and the defendant physician failed to inform the decedent about the extent of his injuries. The decedent had fallen from his bicycle and experienced a number of resulting headaches. Id. at 484, 499 S.E.2d at 835. Although there was some dispute as to exactly what the defendant told the decedent as to the severity of his head injury, see id. at 486, 499 S.E.2d at 836, the defendant generally instructed the decedent to watch for worsening symptoms. However, it was later discovered that the decedent had suffered a subdural hematoma on the right side of his head and a cranial skeletal fracture. Id. at 485,499 S.E.2d at 835-36. One morning, the decedent was found unresponsive; he remained in a coma for two months, and was ultimately placed in a health care facility, where he passed away two years later. See id. at 487, 499 S.E.2d at 837.\\nAt trial, the court gave a contributory negligence instruction, see id. at 491, 499 S.E.2d at 838-39, and the jury returned a verdict for the plaintiff, but fixed damages at $0. Id. at 488, 499 S.E.2d at 837. On appeal, the Supreme Court found that the trial court erred in giving this instruction, reversing the trial court on two grounds. First, the trial court's instruction in and of itself was erroneous and confusing to the juiy as a matter of law. Id. at 491,499 S.E.2d at 839 (\\\"[T]he jury instruction contains an erroneous and confusing statement of law because the instruction implies that the tort concepts of contributory negligence and mitigation of damages are identical concepts when, in fact, they are separate and distinct tort principles.\\\"). The instruction itself said, \\\"A patient is contributorily negligent when he neglects his health following his physician's treatment, even if that physician's treatment was negligent, and the patient may not recover for any damages resulting from his own neglect,\\\" but then continued by saying, \\\"If you believe by a preponderance of the evidence that [the plaintiff] was contributorily negligent, then you may only consider this in determining the amount of damages, if any.\\\" Id. at 490, 499 S.E.2d at 838-39. Second, giving the instruction was error because the evidence did not support the notion that the decedent was, in any way, negligent in caring for his health. Id.\\nThe Diehl case is distinguishable from the present case for two reasons. First, the Diehl decision rested largely on the fact that the trial court's instruction itself was confusing because it conflated two distinct legal principles: contributory negligence and mitigation of damages. See supra. There is no such problem with the instruction in this case. Second, the facts of the present case are sufficiently distinct from Diehl as it relates to the patient's care. In Diehl, there was no contention that the decedent was not relying on, or cooperating with, the defendant's medical advice and opinion. Indeed, the decedent relied, to his detriment, on the defendant physician's characterization of the severity of the decedent's head injury. In contrast, more than a scintilla of evidence in the present case suggested that Mark Harris was intentionally not relying on, and not cooperating with, Dr. Schirmer's medical expertise in her efforts to diagnose and treat.\\nTo the extent that Plaintiffs are arguing that Mark Harris would not have come to the emergency room of his own volition if he were not relying on Dr. Schirmer's care, this contention must be weighed against his behavior after he arrived. Whatever his ultimate reason for going into the emergency room, the fact that Mark availed himself of Dr. Schirmer's expertise by going to the emergency room must be counterbalanced by the fact that he knowingly and voluntarily withheld information that was critical to his care, and did not do so out of a bona fide or honest mistake.\\nd. Gravitt v. Ward\\nThe Supreme Court heard another case with similar facts to Lawrence in Gravitt v. Ward, 258 Va. 330, 518 S.E.2d 631 (1999). In Gravitt, the plaintiff had seen the defendant physician after having discovered abnormalities on her left breast. After examination, the defendant ultimately concluded that the abnormality was \\\"resolving\\\" and did not suspect cancer because \\\"if it was cancer, [he] would not expect resolution.\\\" Id. at 332-33, 518 S.E.2d at 632. Moreover, despite a history of cancer in the plaintiff's family, the defendant elected a \\\"wait and see\\\" approach based on the fact that the plaintiff's previous years' mammogram was normal. See id. at 333, 518 S.E.2d at 632. After a couple of months, the plaintiff returned because she found a lump in her breast.\\nWith regard to the follow-up visit, the plaintiff claimed at trial that the defendant found a lump, diagnosed it as a cyst, and did not order a resulting mammogram. Id. at 333, 518 S.E.2d at 632-33. On the other hand, the defendant asserted that the plaintiff's chief complaint at the follow-up visit was breast tenderness. Moreover, the defendant claimed that his chart did not reflect the presence of any lumps, and if there were such (including any discharge or swelling), it would have been noted in the patient's chart. Id. at 333, 518 S.E.2d at 633. He chose not to order a mammogram because \\\"[the plaintiff] had a normal mammogram within the past year and a half and her symptoms were consistent with a fibrocystic change.\\\" Id. at 334, 518 S.E.2d at 633.\\nThe plaintiff's condition worsened, however, and it was eventually discovered that there was a mass in her left breast which required a mastectomy. Unfortunately, by this point, the plaintiff had cancer which had \\\"spread to her lymph nodes and metastasized throughout her body.\\\" Id.\\nAt trial, the defendant asserted that the plaintiff failed to tell him about the lump in her breast in the subsequent appointment. Id. at 334, 518 S.E.2d at 633. This contention was supported by his testimony that the plaintiff's primary concern was breast tenderness and that if there was a lump, it would have been reflected in his chart. See id. Over the plaintiff's objection, the trial court issued a contributory negligence instruction. Id. at 335, 518 S.E.2d at 633. On appeal, the Supreme Court of Virginia dismissed the defendant's contentions. The Court found that there was \\\"unequivocal evidence\\\" that the plaintiff had informed the defendant of the lump during the second appointment. The Supreme Court held:\\nIn contrast, there is no evidence in the record to directly dispute [the plaintiff's] testimony on this point. The testimony of [the defendant] is conspicuously silent on this point, and thus did not raise a triable issue. The only evidence that, at best, indirectly tends to create a factual dispute over [the plaintiff's] assertions is that [the defendant] made no notation of a lump when he recorded his examination of her breast in the medical record. More significantly, there is no dispute that [the defendant] conducted a full breast exam on [the plaintiff]. Upon completion of this exam, [the defendant] . . . made a positive diagnosis that the condition was not cancer....\\nId. at 336, 518 S.E.2d at 634.\\nThe Supreme Court acknowledged the disparity in medical knowledge between patient and doctor, but concluded that \\\"[d]espite that disparity, it is common knowledge that the presence of a lump in a woman's breast presents the possibility of the presence of a malignant tumor. This is particularly the case where there is also a family histoiy of breast cancer.\\\" Id. The Court held that the plaintiff's failure to tell her doctor about the lump, when that was the very purpose of her availing herself of the doctor's expertise, would be \\\"inconsistent with common knowledge and human experience.\\\" Id. at 336, 518 S.E.2d at 634-35. As such, the Supreme Court held that there was not more than a scintilla of evidence which suggested that the plaintiff failed to disclose the presence of the lump such that a contributory negligence instruction was not proper. Id. at 337, 518 S.E.2d at 635.\\nThe present case can also be distinguished from Gravitt. The Gravitt case involved a patient who was honest and forthcoming, and evidence established that. The defendant's attempts to refute that evidence were hopelessly speculative. Id. at 336, 518 S.E.2d at 634 (\\\"The only evidence that, at best, indirectly tends to create a factual dispute over [the plaintiff's] assertions is that [the defendant] made no notation of a lump when he recorded his examination of her breast in the medical record.\\\"). In the present case, Mark Harris was the opposite of forthcoming, and sufficient evidence existed to corroborate that fact.\\nThis is notwithstanding the fact that Mark Harris voluntarily went to the hospital, a point which Plaintiffs emphasize as support for their theory of the case. For if Mark had truly cared for his well-being and safety, he knew to disclose his Selegiline intake. Thus, assuming arguendo Plaintiffs'theory here (i.e., that Mark voluntarily went to the hospital seeking relief from his symptoms and restoration to a healthy physical state) is correct, one would think that Mark would then do anything and everything to help Dr. Schirmer, or, at least, not actively thwart her efforts to resolve his health. He did not. Instead, he deliberately misled her.\\nMoreover, in Gravitt, the concept of medical knowledge disparity is evident and consequential. However, in the present case, more than a scintilla of evidence existed that Mark knew more about his condition, and the severity thereof, than the average layman. See above. He was not completely ignorant. Accordingly, just as the Supreme Court downplayed the medical knowledge disparity issue in Gravitt based on common knowledge and the circumstances of that particular case, see supra, undue emphasis on this disparity should be restrained under these facts. Even so, Dr. Schirmer included serotonin syndrome in her differential diagnosis, but discounted it due to Mark's statements.\\ne. Ponirakis v. Choi\\nIn Ponirakis v. Choi, the plaintiff had seen a primary care physician for \\\"flu-like symptoms\\\" and \\\"dark-colored\\\" urine. 262 Va. 119, 121, 546 S.E.2d 707, 709 (2001). During several urine tests, it was evident that the plaintiff had a significant amount of blood and protein in his urine. Although the plaintiff was so notified, the test results were classified as \\\"normal.\\\" Id. at 121-22, 546 S.E.2d at 709. The plaintiff was never given a reason for why his urinary blood and protein levels were so elevated. Id. at 122, 546 S.E.2d at 709.\\nSome years later, the plaintiff saw the defendant, also a primary care physician, for chest pain. During that first examination with the defendant, the plaintiff was asked if he had \\\"any serious diseases or operations.\\\" Id. In answering the question, the plaintiff did not mention anything about the previous elevated blood and protein levels in his urine. The defendant made no follow-up or specific questioning about the plaintiffs urinary or kidney systems. At trial, the plaintiff testified that he did not mention his previous urinary condition because he \\\"didn't think it was serious at the time,\\\" and because the kidney x-ray had showed he was normal. Id. at 122-23, 546 S.E.2d at 709. As it related to this first visit with the defendant, the plaintiff was diagnosed with costochondritis, a condition causing chest pain and tenderness. Id. at 122, 546 S.E.2d at 709.\\nAbout six months later, the plaintiff returned to the defendant's practice because he noticed that his urine Was \\\"dark colored,\\\" as it had been some years previous. Id. at 123, 546 S.E.2d at 709. The defendant ordered some blood tests and a urine study which indicated that the plaintiff had blood in his urine. The plaintiff, after being referred to a specialist, was diagnosed with a kidney disease, had an unsuccessful kidney transplant, and required regular kidney dialysis. Id. at 123, 546 S.E.2d at 710.\\nIn the plaintiff's medical malpractice suit against the defendant, the plaintiff argued that the defendant was negligent for failing to conduct a systems check, including the kidney and urinary systems, at the parties' initial meeting. See id. (analyzing the testimony of the plaintiffs' expert witness who testified that the defendant breached the applicable standard of care in failing to conduct a \\\"review of systems\\\" including asking specific questions about such subjects as blood in the urine). The defendant argued that the plaintiff was contributorily negligent for failing to disclose his previous urinary problems when asked about whether the plaintiff had \\\"any serious diseases or operations.\\\" See id. at 124, 546 S.E.2d at 710. At trial, the court gave a contributory negligence instruction and the jury returned a verdict for the defendant. Id.\\nOn appeal, the Supreme Court reversed, holding that \\\"there was no evidence that [the plaintiff] was negligent in failing to disclose the prior episodes of blood and protein in his urine in response to the [the defendant's] question.\\\" Id. at 125, 546 S.E.2d at 711. Nothing in the record supported a finding that blood and protein in one's urine is per se a \\\"serious disease.\\\" The record contained no evidence to suggest that a reasonable patient in a similar situation should have asked his physician to clarify the \\\"serious disease or operations\\\" question. Moreover, there was not enough evidence to support a conclusion that the plaintiff \\\"knew, or that a reasonable person in his situation should have known, that the prior episodes of blood and protein in his urine indicated the presence of a 'serious disease.'\\\" For these reasons, the Supreme Court opined that a contributory negligence instruction was improper. Id. at 126, 546 S.E.2d at 711.\\nAdmittedly, the facts of Ponirakis are similar to the facts of the present case \\u2014 the alleged negligent act of the plaintiff in both instances being the failure to disclose relevant information to the physician. However, there are significant distinctions between the two.\\nThe first distinction involves the nature of the questioning that accompanied the withheld information. In Ponirakis, the plaintiff was asked whether he had \\\"any serious diseases or operations,\\\" id. at 122, 546 S.E.2d at 709, and was placed in a position of being required to know whether his previous \\\"normal\\\" urine tests fell within the purview of what the defendant physician was asking. In essence, he was being asked a question about a prior professional \\\"opinion,\\\" i.e. whether his urinary condition was a \\\"disease\\\" (as there was no suggestion that he had an operation). In contrast, Mark Harris was asked an unequivocally clear question: \\\"Have you taken any Selegiline?\\\" Trial Tr. 3/11/15, at 42; see also supra. No \\\"opinion\\\" was involved; this was a straightforward question seeking \\\"facts.\\\" No room was left to speculate about what Dr. Schirmer was asking. Mark's initial denial was clear and definite, id.; see also supra, albeit undeniably false. When pressed again for the truth, Mark misled Dr. Schirmer into thinking that he hadn't taken Selegiline for two weeks, when in reality he had taken some as recent as three days earlier. Summarizing, in Ponirakis, the question implicitly required the plaintiff to have knowledge of a medical conclusion. In the present case, the question was a narrow and specific factual inquiry; Mark was not required to make, or have knowledge of, any medical conclusion.\\nMore tangential, yet also potentially relevant, is the fact that the first meeting between the plaintiff and the defendant in Ponirakis \\u2014 when the alleged contributory negligence was said to have occurred\\u2014was instigated by the plaintiff's chest problems, not his urinary problems. Although the plaintiff's expert witness testified that the defendant nevertheless should have still investigated into the plaintiff's urinary history more, Ponirakis, 262 Va. at 123, 546 S.E.2d at 710, common knowledge would seem to suggest that a doctor should not be required to be equally preoccupied with investigating the patient's urinary blood and protein content when the patient's primary complaint is chest pains. In the case against Dr. Schirmer, on the other hand, Dr. Schirmer's question about Selegiline was directly relevant to a realistic diagnosis of Mark's symptoms.\\nThe second distinction is that Ponirakis did not involve a situation where the plaintiff was intentionally or voluntarily concealing information to obstruct the physician's treatment, nor did the defendant allege such. There was no evidence in the record that plaintiff lied about his condition. And as the \\\"essence of contributory negligence is carelessness,\\\" e.g., id. at 124, 546 S.E.2d at 711; Artrip, 240 Va. at 358, 397 S.E.2d at 823-24, the instruction was necessarily improper in that case. The present case, on the other hand, is vastly different in this regard. There was sufficient evidence to suggest that Mark Harris was intentionally concealing his ingestion of Selegiline or, at the very least, that he was careless in not being more forthcoming with the doctor.\\nLastly, Ponirakis was largely focused on the objective standard that a reasonable person in the plaintiff's position should have known that, in response to the particular question of serious diseases, the physician would be seeking information such as an elevated protein count in one's urine, which condition had been classified and communicated to the patient as \\\"normal.\\\" In fact, in Ponirakis, the Supreme Court dismissed a portion of the plaintiff's expert testimony by virtue of its having only considered a subjective, not objective, standard of the reasonable person. See id. at 126, 546 S.E.2d at 712. However, in the present case, nothing that Plaintiffs have argued or put forth as evidence suggests that a reasonable person in Mark Harris' position would not be expected to comprehend the particular question asked by Dr. Schirmer and respond to it accurately.\\nf. Sawyer v. Comerci\\nIn the year following Ponirakis, the Supreme Court decided Sawyer v. Comerci, 264 Va. 68, 563 S.E.2d 748 (2002). The Sawyer case involved a decedent who had gone to the emergency room for pain on the right side of his abdomen. He was initially evaluated by the defendant, who concluded that the decedent should be fully admitted as a patient due to blood in his stool and an elevated white blood cell count. Id. at 71, 563 S.E.2d at 750-51. The defendant spoke with a specialist who, contraty to the defendant's belief, felt that immediate surgical intervention was not necessary. Id. at 72, 563 S.E.2d at 751. In the meantime, the decedent and his wife (the plaintiff and administrator of the decedent's estate), desired to leave the hospital, and did so against the defendant's wishes. See id. at 72-73, 563 S.E.2d at 751. Specifically, the defendant recorded a statement in her chart that the decedent and his wife \\\"despite repeated explanation do not seem to understand the possibility of the seriousness of his condition.\\\" Id. at 73, 563 S.E.2d at 751. Instead of staying, the decedent agreed to immediately follow up with his primary care doctor, but this did not happen, despite the defendant's reiteration three days later that the decedent do so. See id. at 73, 563 S.E.2d at 751-52. The decedent instead returned to the emergency room by ambulance five days after the defendant's initial evaluation for shortness of breath and unusual coloration, and died the following day. Id. at 73, 563 S.E.2d at 752. The plaintiff estate brought suit against the defendant on the grounds that the defendant's acts or omissions breached the applicable standard of care in treating the decedent. See id. The defendant's alleged negligence was presumably that the defendant did not adequately communicate the urgency of the decedent's condition. See id. at 76, 563 S.E.2d at 753.\\nThe trial court instructed the jury on contributory negligence on defendant's theory that the plaintiff was contributorily negligent for leaving the emergency room against the defendant's advice. The Supreme Court held that this was erroneous. Specifically, the defendant was:\\nnot entitled to a jury instruction on contributory negligence because she failed to establish a prima facie case that [the decedent] was guilty of contributory negligence. . . . [N]o physician with admitting privileges told [the decedent] that he should be admitted as a patient to the hospital on [the day in question], [The defendant] did not make any record in [the decedent's] medical chart that he should have been admitted to the hospital on [the day, in question].\\nId. at 74, 563 S.E.2d at 752.\\nImportant for the Supreme Court in concluding that the contributory negligence instruction was erroneous was the fact that the record contained no evidence that the decedent understood the severity of his condition and the possible consequences of leaving the hospital. Id. at 76, 563 S.E.2d at 753. Moreover, there was no evidence that the defendant told the decedent \\\"that he could die if he did not receive medical treatment.\\\" Id. Because of this, and coupled with the fact that the specialist whom the defendant consulted also did not believe that the decedent needed to be admitted, the Supreme Court felt that the jury should not have been \\\"permitted to infer that a layman could be guilty of contributory negligence\\\" for leaving the emergency room under those circumstances. Id.\\nThe Sawyer opinion is distinguishable from the present case. First, the Sawyer decision was largely predicated on the decedent's lack of knowledge (i.e., not truly comprehending the seriousness of his symptoms and their potential consequences). There is no such claim or issue in the present case. To the contrary, there is more than a scintilla of evidence that Mark Harris was entirely knowledgeable of what he was doing.\\nSecond, the Supreme Court in Sawyer emphasized that under the facts of the case\\u2014especially that (a) the defendant did not tell the decedent that death was a possible consequence; and (b) the specialist whom the defendant consulted also did not believe that the decedent needed to be admitted \\u2014 the jury should not have been \\\"permitted to infer that a layman could be guilty of contributory negligence\\\" for leaving the emergency room under those circumstances. Id. Under the facts of the present case, the same conclusion cannot be so easily made. Mark Harris, although not a doctor, had a more specialized knowledge than a layman. See supra text discussing how the Supreme Court, in Gravitt v. Ward, 258 Va. 330, 518 S.E.2d 631 (1999), qualified the importance of the disparity in medical knowledge when common knowledge or the circumstances of the case dictate otherwise. Evidence existed to suggest that Mark truly comprehended the consequences of his actions, including the consequence of deliberately misleading Dr. Schirmer as to the possible cause(s) of his condition.\\ng. Chandler v. Graffeo\\nThe Supreme Court last addressed this issue in Chandler v. Graffeo, 268 Va. 673, 604 S.E.2d 1 (2004). In Chandler, the decedent was admitted to the hospital complaining of sharp, mid-sternal chest pain, abdominal pain, and numbness in his legs. He was never given a definitive diagnosis. Less than a week later, the decedent returned under the same yet worsening symptoms, wherein the defendant diagnosed him with a thoracoabdominal aortic aneurysm, and instructed him to see a certain nephrologist the following day. Id. at 677, 604 S.E.2d at 2. The decedent was unable to get an appointment until the following week, and he collapsed and died at his home during this limbo period. Id. at 677, 604 S.E.2d at 3.\\nAt trial, the defendant argued that the decedent was contributorily negligent for not seeing the nephrologist on the morning following his visit to the emergency room, id. at 681, 604 S.E.2d at 4, and the court gave the jury a contributory negligence instruction. Id. at 680, 604 S.E.2d at 4. The plaintiffs, co-administrators of the estate, retorted that the decedent's conduct was not negligent and, in any event, was not contemporaneous with the defendant's negligence. Id. at 681, 604 S.E.2d at 4-5. The Supreme Court agreed, holding that \\\"there was no evidence of any negligence by [the decedent] that was contemporaneous with [the defendant's] discharging him from the hospital.\\\" The Court continued, \\\"[The defendant] did not think [the decedent's] condition was life-threatening, and [the decedent], a layman, cannot be expected to know otherwise.\\\" Id. at 681, 604 S.E.2d at 5. Accordingly, the Supreme Court found that the trial court erroneously gave the instruction on contributory negligence. Id.\\nThe Chandler case differs from the present case in the following respects. First, in Chandler, it was relatively easy to conclude that the decedent was not negligent for not having met with the nephrologist earlier, because it was factually impossible for the decedent to do so. There was no evidence that the decedent in Chandler exercised even an iota of bad faith; the decedent simply could not get an earlier appointment. In the present case, more than a scintilla of evidence was put forth establishing that Mark exercised bad faith. Second, the Chandler decision was centered on the disparity in medical knowledge between the decedent and the defendant. See id. (\\\"[The defendant] did not think [the decedent's] condition was life threatening, and [the decedent], a layman, cannot be expected to know otherwise.\\\"). However, as noted, this concept should not be so controlling in the unique context of the case against Dr. Schirmer. See Part II.A.ii.(c) and accompanying text. Third, the contemporaneousness requirement was lacking in Chandler, whereas it is evident in the present case.\\n4. Conclusion\\nAlthough the Supreme Court has rejected contributory negligence instructions seven times previously, the Supreme Court has never ruled that contributory negligence is per se unavailable as a defense in a medical malpractice case. Thus, it is not outside the realm of possibility that a contributory negligence defense, and corresponding jury instructions, might be appropriate in a medical malpractice case at some point. Given the existing jurisprudence, of course, such a case would need to present truly unique facts. The facts of the present case certainly reach that threshold.\\nOnly the jury could make the determination of contributory negligence, and they did. Accordingly, Plaintiffs' objection as to the affirmative defense of contributory negligence and the corresponding jury instructions is hereby overruled.\\nB. Relevance and Prejudice/Probative Value Objections\\nIn the Proposed Final Judgment Order, Plaintiffs objected to \\\"the trial court's admission of evidence that pre-dated Dr. Schirmer's case, including evidence that Mark Harris had tried to commit suicide in the past or that he was trying to commit suicide on the day of his emergency room visit with Dr. Schirmer; evidence of'vulnerability and protective factors'; and statements that Mark Harris made in the emergency room that he wanted to die.\\\" Proposed Final Judgment Order, at 4. Plaintiffs vehemently objected to this evidence prior to and throughout trial on the grounds that this evidence was irrelevant, immaterial, and unduly prejudicial.\\n1. Governing Law of Rules 2:401 and 2:403\\nIn Virginia, \\\"The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion.\\\" Bortzer v. Commonwealth, 2015 Va. App. LEXIS 345, at *3 (Nov. 24, 2015) (quoting Main v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). An abuse of discretion is present \\\"only when reasonable jurists could not differ.\\\" Id. at *4 (citing Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh'g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005)).\\nIt is well established that \\\"[ejvidence must be relevant to be admissible.\\\" Payne v. Commonwealth, 65 Va. App. 194, 776 S.E.2d 442, 453 (2015). Conversely, evidence that is not relevant is not admissible. Va. R. Evid. 2:402(a). The specific rule governing the admission of relevant evidence is outlined in Rule 2:401 of the Virginia Rules of Evidence. Under Rule 2:401, evidence is relevant if it has \\\"any tendency to make the existence of any fact in issue more probable or less probable than it would be without the evidence.\\\" Id. 2:401. Stated differently, \\\"Evidence is relevant if it has any logical tendency, however slight, to establish a fact at issue in the case.\\\" Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993). Importantly, the Supreme Court of Virginia has emphasized, \\\"[A] great deal [of discretion] must necessarily be left to the . court of trial, in determining whether evidence is relevant to the issue or not.\\\" John Crane, Inc. v. Jones, 274 Va. 581, 590, 650 S.E.2d 851, 855 (2007).\\nRule 2:403 acts to limit the admission of otherwise relevant evidence in some narrow instances. Under Rule 2:403, \\\"Relevant evidence may be excluded if: (a) the probative value of the evidence is substantially outweighed by (i) the danger of unfair prejudice, or (ii) its likelihood of confusing or misleading the trier of fact; [or if] (b) the evidence is needlessly cumulative.\\\" Va. R. Evid. 2:403.\\nImportantly, the Rule 2:403 balancing test mentions that exclusion of relevant evidence based on prejudice can only be accomplished if the prejudice is unfair. See id. (emphasis added). This \\\"reflects the fact that all probative direct evidence generally has a prejudicial effect to the opposing parly.\\\" Lee v. Spoden, 776 S.E.2d 798, 806-07, 2015 Va. LEXIS 106 at *21 (2015) (citing, in an analogous context, Powell v. Commonwealth, 267 Va. 107, 141, 590 S.E.2d 537, 558 (2004) (\\\"All evidence tending to prove guilt is prejudicial to an accused.\\\")). The \\\"mere fact that evidence is highly prejudicial to a party's claim or defense is not a proper consideration in applying the [Rule 2:403] balancing test.\\\" Id. at 807, 2015 Va. lexis 106 at *22. The Supreme Court of Virginia has iterated that \\\"[a]ny prejudice in the form of the jury's perception of [the claims of a party] is not unfair prejudice such that its admission could properly be barred under Virginia Rule of Evidence 2:403(a).\\\"Id. at 807, 2015 Va. LEXIS 106, at *21 (quoting Egan v. Butler, 112 S.E.2d 765, 2015 Va. LEXIS 86, at *8-9 (2015) (brackets in original)). As the Supreme Court has opined, \\\"'unfair prejudice' refers to the tendency of some proof to inflame the passions of the trier of fact, or to invite decision based upon a factor unrelated to the elements of the claims and defenses in the pending case.\\\" Id. at 807, 2015 Va. LEXIS 106, at *21. Nevertheless, the Court has also observed that a party's direct evidence, the plaintiff's or the defendant's, is \\\"rarely subject to exclusion on the ground that it would be unduly prejudicial.\\\" See id. at 807, 2015 Va. LEXIS 106, at *21 (quoting Powell, 267 Va. at 141, 590 S.E. 2d at 558).\\n2. Analysis of Specific Objections\\nIn response to Plaintiffs' articulated objections, Plaintiffs were asked to point to the particular instances in the transcript where their objections were made and also explain the nature of the evidence alleged to have been improperly admitted. Due to the sheer number of objections, each objection is not analyzed individually below, but the objections are instead grouped together based on the nature of the evidence admitted. It is unnecessary to restate each as to each specific objection made at trial. It suffices to say that all of the objected-to evidence was relevant, and not unduly prejudicial, confusing, or cumulative.\\nIn general terms, the Court finds that the objected-to evidence was relevant because it had a tendency to make the Defendants ' theory of the case more probable, whether or not that view was ultimately correct. Plaintiffs were allowed to set out their view of the case (i.e., that Mark Harris was the victim of Dr. Schirmer's negligent failure to diagnose and treat his serotonin syndrome), and were allowed to proffer evidence to that end. With these objections, Plaintiffs essentially attempted to restrict, obstruct, or hamper, by way of evidentiary analysis, both Defendants' ability to explain their theory of the case (i.e., that Mark Harris was trying to take his life and intentionally misled Dr. Schirmer to succeed in that endeavor), and the evidence that Defendants were allowed to proffer thereto. This contravenes the whole purpose of trials. See Trial Tr. 3/9/15, at 149, 162.\\nThe situation here is analogous to, among other examples, precluding a defendant fire insurance company that is sued for not paying out insurance proceeds from arguing that the alleged fire was an intentional act of arson and putting on evidence to that effect; this would be entirely unjust. Plaintiffs should not be able to file suit, and present their evidence, but preclude Defendants from contesting their claims, and prevent Defendants from asserting claims of their own.\\nThe evidence that Defendants propounded in their case was not frivolous or unsubstantiated. The evidence was prejudicial to Plaintiffs in the sense that it lessened their chances of success on the merits, but such is the case in every trial. The evidentiary rulings were not unfairly prejudicial. Plaintiffs did not demonstrate that the passions of the jury were so inflamed by the evidence that it unquestionably led them to render a verdict on an improper basis. Both sides presented their cases-in-chief and then tasked the jury with deciding who was correct.\\na. All References to the March 22, 2011, Suicide Attempt\\nPlaintiffs wished to exclude any and all references to the March 22, 2011, incident involving Mark's prior suicide attempt and hospitalization. They claim that such evidence was not relevant to the events of April 6-7, 2011, and caused undue prejudice to Plaintiffs.\\nHere, there can be no doubt that evidence of the prior suicide attempt was relevant under the definition of Rule 2:401, because it had a tendency to make Defendants' theory of the case more probable and Plaintiffs' theory less so. If Mark had been attempting suicide in similar fashion just two weeks earlier, it would make sense that his actions on April 6, 2011, could be motivated by a similar intent.\\nIt is in this vein that Plaintiffs argue that the admission of this evidence led the jury to render its verdict on an improper basis. Admittedly, the nature of a prior suicide attempt, when viewed in a vacuum, is a potentially suggestive event. However, Plaintiffs have not established that the evidence inflamed the passions of the jury to such a degree that there could have been no difference of opinion among them as triers of fact. Plaintiffs have not pointed to any factors which suggest that the jury's verdict was based on an unrelated or improper element. Instead, the events of March 22,2011, were instructive in helping the jury ascertain the general mindset of Mark Harris, his mental fragility, his vulnerability to future self-destructive behavior, and his general knowledge of overdosing and being treated for an overdose. That the jury heard evidence concerning Mark's previous suicide attempt did not automatically compel them to believe that the April 6,2011, incident was a suicide. The jury could have chosen to believe Plaintiffs' version of the events. They did not.\\nMoreover, Defendants rightly point out that Plaintiffs themselves, in opening statements, raised the issue of serotonin syndrome, Dr. Schirmer's knowledge thereof, and how a physician would respond thereto. This opened the door to Defendants' mentioning of the prior incident of serotonin syndrome (i.e., the March 22,2011, incident). As such, Plaintiffs' relevance and prejudice objections as to the March 22, 2011, suicide attempt are overruled.\\nb. All References That Mark Was Trying To Commit Suicide on April 6, 2011, by Overdosing on Dextromethorphan and Selegiline\\nPlaintiffs object to each and any reference that Mark Harris was trying to commit suicide on April 6, 2011. As this was Defendants' central claim, this assertion was mentioned many times throughout trial. Indeed, all of Defendants' evidence went, in some way, to proving the truth of this theory.\\nHere, the objected-to evidence was relevant, probative, and not substantially outweighed by its prejudicial effect. This evidence was relevant in that it made Defendants' theory of the case more probable and Plaintiffs' theory less so. By this very definition, it was prejudicial to Plaintiffs' case. However, as supra, Plaintiffs did not establish that the prejudice was necessarily unfair, or that the prejudice substantially outweighed the probative value. This is in line with the Supreme Court's holding in Lee v. Spoden that the prejudice arisimg from the jury's perception of the claims of a party is not necessarily unfair prejudice, such that exclusion would be warranted. See Lee, 776 S.E.2d at 807, 2015 Va. LEXIS at *21 (citing Egan, 772 S.E.2d at 771, 2015 Va. LEXIS at *8-9). As such, Plaintiffs' objections on this point are overruled.\\nc. Statements Attributed to Mark to the Effect of \\\"I got it right this time, \\\" \\\"I knew what I was doing, \\\" or \\\"It could kill me because I looked it up\\\"\\nPlaintiffs object to several statements attributed to Mark Harris in the emergency room. Specifically, Defendants put on evidence that Mark said to one of the nurses, Ms. Donna Lilley, \\\"I got it right this time.\\\" Trial Tr. 3/9/15, at 313. In addition, Ms. Lilley testified that Mark kept saying \\\"I'm sorry, I'm sorry,\\\" while repeating the Lord's Prayer. Id. at 314. Ms. Lilley also testified that Mark Harris stated, \\\"I knew what I was doing.\\\" Id. at 315.\\nEarlier, when Defendants cross-examined the nursing supervisor, Ms. Carol Mason, they elicited another problematic statement attributed to Mark. Specifically, when speaking of the medicine he had taken, Mark said, \\\"It can kill me.\\\" Ld. at 289, 291. Ms. Mason further intimated that Mark knew the medication could kill him because \\\"[h]e looked it up on the computer.\\\" Id. at 291. Dr. Schirmer also testified that Mark told her that he was sorry that he had not died when he was admitted for the overdose on March 22,2011. Trial Tr. 3/11/15, at 52.\\nHere, the statements were certainly relevant in that they had a tendency to make Defendants' theory of the case more probable and Plaintiffs' theory of the case less so. The statements went directly to Defendants' contention that Mark intentionally misled Dr. Schirmer as to whether he had Selegiline in his system. With regard to prejudice, the statements were only prejudicial insofar as they undermined the evidence Plaintiffs proffered. They were not inherently unfair and did not automatically compel the jury to render a verdict on an improper basis. They simply supported one side's theory of the case; they did not impermissibly inflame the passions of the jury. In this sense, the statements are no more prejudicial than is an eyewitness or fingerprint identification to an accused in a criminal case. As such, Plaintiffs' relevance and prejudice objections to the statements attributed to Mark in the emergency room are overruled.\\nd. References to Mark's Time at Region Ten, and the Two-Week Period Following the March 22, 2011, Suicide Attempt\\nAfter Mark's overdose on March 22, 2011, he was transferred to the University of Virginia for psychiatric treatment. Trial Tr. 3/12/15, at 154-55. Later, he was voluntarily admitted to the Region Ten mental health facility, but stayed for only a short time before returning to Lexington. Plaintiffs object to Defendants mentioning any of this evidence on the same relevance and prejudice grounds.\\nOn this issue, the evidence was relevant under the definition of Rule of Evidence 2:401. While references to his post-March 22 hospitalization treatment may have been irrelevant in isolation, the evidence all went to the ultimate issue of the case\\u2014whether Mark's behavior amounted to a suicide attempt and whether he deliberately or recklessly misled Dr. Schirmer about the Selegiline in his system. The evidence was material in helping the jury learn what drugs Mark Harris had in his system, in deciding whether he knew about them, and in ascertaining his state of mind. Furthermore, the evidence was helpful in allowing the jury to analyze whether Mark was sufficiently forthcoming on April 6, 2011. Prejudice from references to the events of the two-week period following Mark's March 22, 2011, hospitalization does not substantially outweigh their probative value; such references were appropriately limited, and were not unfairly prejudicial. As such, Plaintiffs' relevance and prejudice objections on this issue are overruled.\\ne. Article Found on Mark's Computer About Overdosing on Dextromethorphan and the Record Found About What Drugs He Had Taken\\nPlaintiffs object to the admission of the posthumous investigation of Mark's room revealing that there was an article on his computer concerning a young girl who had died as a result of mixing drugs. Moreover, they object to Defendants' evidence that Mark's computer had another page open with a note keeping track of the amount of Dextromethorphan he was ingesting.\\nThis evidence was certainly relevant to and probative of both parties' theory of the case. To the extent it opposed Plaintiffs' case, it cannot be said that the prejudice was unfair or that it substantially outweighed the probative value of the evidence. The jury was not forced to inescapably conclude that because of this evidence Mark indeed committed suicide and misled Dr. Schirmer to that end. Indeed, they were entitled to just as easily accept Plaintiffs' theory that Mark had looked up this information in a remedial mindset, after he had realized that the Dextromethorphan might interact with the drugs still in his system. Plaintiffs have not pointed to any legitimate support that the admission of this evidence completely precluded the jury's ability to differ in opinion. As such, Plaintiffs' relevance and prejudice objections on this issue are overruled.\\nf. References to an E-mail from Mark Concerning His Prescriptions and Mark's Mentioning of a Previous Suicide Attempt to Hannah; Evidence of Hannah's Understanding of Mark's Mood on April 6, 2011\\nPlaintiffs object to Defendants ' references to an e-mail in which Mark told his girlfriend, Hannah Muther, about his prescriptions and previous suicide attempt. Plaintiffs also object to the admission of Hannah's understanding of Mark's mood on April 6, 2011, including the conversations about their relationship and the failed attempt at intimacy.\\nThis evidence had a tendency to make Defendants' theory of the case more probable and Plaintiffs' theory less so. It may have been irrelevant in isolation but it certainly had a bearing on the ultimate issue of the case. Mark's mentioning of his prescriptions goes to his knowledge of his physical state on April 6, 2011. Similarly, Mark's mentioning of a previous recent suicide attempt goes to his state of mind and informs the jury about one possibility as to why he was suffering the particular symptoms he was suffering on April 6,2011, as well as casting light on whether he intentionally misled Dr.. Schirmer. The same can be said about Mark's conversations with Hannah and their failed attempt at intimacy. As to the issue of prejudice, Plaintiffs have not shown that this evidence was so prejudicial to their case that reasonable triers of fact could not differ in opinion. As such, Plaintiffs' relevance and prejudice objections on this issue are overruled.\\ng. Missing Pills in the Bottle of Selegiline\\nPlaintiffs raise relevance and prejudice objections to the admission of the 84-count bottle of Selegiline found in Mark's room which only had 11 pills remaining in it. Defendants used this evidence in support of their view that Mark knew he had Selegiline in his system and deliberately misled Dr. Schirmer in that regard.\\nAs was stated in response to this objection at trial, Trial Tr. 3/11/15, at 271, this evidence was clearly relevant. The issues that Plaintiffs raise with this evidence are really issues of weight and not admissibility. It is undisputed that Mark had Selegiline in his system, and Defendants wanted to show that this bottle would explain why Selegiline was found in Mark's system during the autopsy. Moreover, Defendants wanted to show Mark's knowledge and state of mind when juxtaposed with his declaration that he hadn't taken Selegiline for \\\"months\\\" \\u2014 or at least during the previous two weeks. This evidence is neither unfairly prejudicial nor would automatically lead the jury to render a verdict on an improper basis. As such, Plaintiffs' relevance and prejudice objections on this issue are overruled.\\nh. Dr. Ludefs Testimony About Mark's Treatment, His Medications, and References to His Vulnerability Factors\\nPlaintiffs object to Dr. Luder's testimony about his treatment of Mark Harris and the medications that Dr. Luder had prescribed to him. In addition, Plaintiffs object to Dr. Luder's mentioning of the various factors that he believed made Mark vulnerable to suicide.\\nThis evidence was relevant to the ultimate issue of the case. It is undisputed that Mark's prescription history was of important consequence. Both Plaintiffs and Defendants necessarily discussed Selegiline, Dextromethorphan, and other drugs. The door was already open to discussing medications that Mark had been prescribed. Without admitting this evidence, the jury would have been left on its own to make too many inferential steps that bore on reaching an outcome in this case.\\nMark's discussions with Dr. Luder about Selegiline just a few days before April 6, 2011, were especially probative in the case. The evidence went to both Mark's physical state of being as well as his accompanying mental state in the events leading up to his fateful hospitalization on April 6-7, 2011.\\nIn addition to the testimony about Mark's specific treatment, the discussion on vulnerability factors was relevant, material, and probative. This evidence went to Mark's mental state and was helpful to the jury in deciding the facts of the case. The discussion itself did not compel the jury to find for Defendants. To the contrary, the vulnerability factors provided the jury with one possible way, not the only way, to explain the facts before them. Even if prejudicial to some degree, the prejudice certainly did not substantially outweigh the probative value of the evidence. As such, Plaintiffs' relevance and prejudice objections on this issue are overruled.\\n3. Conclusion .\\nWith respect to each of the Rule 2:401 and 2:403 objections, all of the objected-to evidence was relevant and not unfairly prejudicial. Defendants were allowed to put on evidence to support their theory of the case, just as Plaintiffs were allowed to do. Sufficient precautions were taken to ensure that the jury was not confused or misled.\\nC. Admission of Evidence on the Affirmative Defenses of Illegality and Assumption of the Risk\\nPlaintiffs also object to \\\"the trial court's admission of evidence on the affirmative defenses of illegality and assumption of risk,\\\" arguing that these defenses were improper and inapplicable, primarily because the evidence pertaining thereunto was \\\"irrelevant, immaterial, and unduly prejudicial.\\\" Proposed Final Judgment Order, at 4. Plaintiffs filed a motion in limine to exclude evidence of such, which was ultimately taken under advisement. At trial, recognizing the inapplicability of illegality and the assumption of risk, the Court struck these defenses.\\nThe Court struck these defenses for many of the same reasons that Plaintiffs articulated in their memorandum on this issue. As to illegality, Mark's actions of ingesting Dextromethorphan were not illegal. Dextromethorphan is an over-the-counter medication and even if Mark was ingesting it to \\\"get high,\\\" such activity is not illegal. Moreover, even if Mark was engaged in some illegal activity, this in no way affected the standard of care that Dr. Schirmer owed him. She was obligated to treat him with the same care and diligence regardless of his preceding conduct. As to the assumption of the risk, the relevant case law is fairly clear that a patient cannot assume the risk of a doctor's malpractice. See, e.g., Wright v. Kaye, 267 Va. 510, 529, 593 S.E.2d 307, 317 (2004).\\nPlaintiffs now claim that by failing to grant their motion in limine but eventually striking the defenses at trial, impermissible evidence was allowed to be brought before the jury. This argument has no merit.\\nPlaintiffs' contention is flawed for one primary reason: the evidence was admissible for another purpose, contributory negligence. See generally Part II.A (discussing the applicability of contributory negligence as an affirmative defense for Defendants). In other words, even if there were error in not granting the motion in limine, the very same evidence Plaintiffs claim to have been impermissibly brought before the jury was permissibly proffered for the issue of contributory negligence. See id. As discussed in Part ILB.ii supra, the evidence was also relevant, probative and not unduly or unfairly prejudicial. See supra. And in any event, the decisions to grant, deny, or take a motion in limine under advisement fall within the broad discretion of the trial court.\\nIn fact, because it is \\\"sometimes impossible to determine the relevance of certain evidence out of context,\\\" trial courts are instructed that \\\"the better practice is to grant motions in limine sparingly, only in those cases: [i] where there is no reasonable possibility that the evidence, statements, or other actions sought to be excluded or controlled could be permissible; or [ii] where the motion relates to the opening statement and there is a significant risk of mistrial.\\\" Virginia Civil Benchbook for Judges and Lawyers \\u00a7 1.09[2] at 1-89 to -90 (2014). Accordingly, Plaintiffs' objections on this issue are overruled.\\nD. Court's Refusal To Grant a Mistrial\\nPlaintiffs also object to \\\"the trial court's refusal to grant a mistrial once it struck the affirmative defenses of illegality and assumption of the risk\\\" because \\\"[t]he evidence admitted to support these defenses were likely to inflame the passions of the jury and to confuse them.\\\" Proposed Final Judgment Order, at 4; see also Trial Tr. 3/12/15, at 319-21 (specific motion for mistrial and the Court's response).\\nIn general, \\\"A mistrial should be declared when necessaiy to avoid the effects of error in law, juror prejudice or of misconduct by a party, attorney, juror, witness or judge which impinges upon the parties' right to a fair and just adjudication of their rights.\\\" Virginia Civil Benchbook for Judges and Lawyers \\u00a7 3.02[12][b][ii] (citing Robert M. Seh Co. v. O'Donnell, 277 Va. 599, 675 S.E.2d 202 (2009); Westlake Properties v. Westlake Pointe Ass'n, 273 Va. 107, 639 S.E.2d 257 (2007); Lowe v. Cunningham, 268 Va. 268, 601 S.E.2d 628 (2004)). Whether a motion for mistrial should be granted is a matter \\\"submitted to the trial court's sound discretion.\\\" Castle v. Lester, 272 Va. 591, 610, 636 S.E.2d 342, 353 (2006) (quoting Lowe, 268 Va. at 272, 601 S.E.2d at 630). If the evidence admitted is so overwhelming and prejudicial such that a cautionary instruction would not remove the effect of the impropriety, then the motion should be granted. See Lowe, 268 Va. at 273, 601 S.E.2d at 630-31 (quoting Kitze v. Commonwealth, 246 Va. 283, 288, 435 S.E.2d 583, 585 (1993) (\\\"[I]f the prejudicial effect of the impropriety cannot be removed by the instructions of the trial court, the [adverse party] is entitled to a new trial.\\\")). \\\"A mistrial should not be declared if the error or misconduct will not prejudice the rights of any party.\\\" Virginia Civil Benchbook for Judges and Lawyers \\u00a7 3.02[12][b] [iv] (citing Thomas v. Wingold, 206 Va. 967, 147 S.E.2d 116 (1966)). The ultimate determination is guided by several factors, namely the relevance of the evidence, the content of the evidence, the effect on the trier of fact, and whether the evidence was deliberately calculated to inflame the passions of the jury. See Lowe, 268 Va. at 273, 601 S.E.2d at 631 (citing Kitze, 246 Va. at 288, 435 S.E.2d at 585; Meade v. Belcher, 212 Va. 796, 799, 188 S.E.2d 211, 213 (1972); Virginia Lincoln Furniture Corp. v. Southern Factories & Stores Corp., 162 Va. 767, 781, 174 S.E. 848, 854 (1934)).\\nHere, as discussed in Part II.B.ii(c) supra, the nature of the evidence that is the subject of Plaintiffs' objection on this issue was admissible for the issue of contributory negligence. Moreover, the evidence was relevant and not unfairly prejudicial. Even considering the arguable delay in striking the defenses of illegality and assumption of the risk, it cannot be said that the admitted evidence compelled only one outcome. The jurors were entitled to assign whatever weight they wanted to Defendants' theory of the case and the evidence which supported it. The jury's verdict cannot be summarily characterized as having been made on an improper basis simply because it was not the result Plaintiffs were seeking. As such, Plaintiffs' objection to the refusal to grant a mistrial is overruled.\\nE. Corroboration Under the Deadman's Statute\\nPlaintiffs object to the Proposed Final Judgment Order on another ground, the Deadman's Statute, as codified in Virginia Code \\u00a7 8.01-397. Specifically they claim that \\\"Dr. Schirmer's testimony was not sufficiently corroborated,\\\" and therefore, the jury should not have been instructed on the Deadman's Statute. Proposed Final Judgment Order, at 4. Virginia Code \\u00a7 8.01-397 reads, in pertinent part:\\nIn any action by or against a person who, from any cause, is incapable of testifying . no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony. . . . The phrase \\\"from any cause\\\" as used in this section shall not include situations in which the party who is incapable of testifying has rendered himself unable to testify by an intentional self-inflicted injury.\\nThe Deadman's Statute was designed to prevent \\\"an opportunity for the survivor to prevail by relying on his own unsupported credibility, while his opponent, who alone might have contradicted him, is silenced by death.\\\" Hereford v. Paytes, 226 Va. 604, 610, 311 S.E.2d 790, 793 (1984). In determining sufficient corroboration, \\\"[I]t is not possible to formulate any hard and fast rule[;] each case must be decided upon its own facts and circumstances.\\\"Penn v. Manns, 221 Va. 88,93, 267 S.E.2d 126, 130 (1980) (quoting Brooks v. Worthington, 206 Va. 352, 357, 143 S.E.2d 841, 845 (1965)). \\\"Corroborating evidence is such evidence as tends to confirm and strengthen the testimony of the witness sought to be corroborated \\u2014 that is, such as tends to show the truth, or the probability of its truth.\\\" Id.\\nIn Diehl, the Supreme Court of Virginia noted that \\\"a higher degree of corroboration is necessary to satisfy the requirements [of the Deadman's Statute]\\\" where the parties had a confidential relationship at the time of the transaction which gave rise to the cause of action. Diehl, 255 Va. at 489, 499 S.E.2d at 838. A physician-patient relationship is one such relationship. Id. (citing James v. Jane, 221 Va. 43, 50, 282 S.E.2d 864, 867 (1980); Limbaugh v. Commonwealth, 149 Va. 383, 396, 140 S.E. 133, 136 (1927)).\\nComplete confirmation, however, is not necessary to satisfy the Deadman's Statute; only corroboration, which \\\"gives more strength than was had before.\\\" Penn, 221 Va. at 93, 267 S.E.2d at 130 (quoting Brooks, 206 Va. at 357, 143 S.E.2d at 845). It is not required \\\"that a survivor's testimony be corroborated on all material points.\\\" Rice v. Charles, 260 Va. 157, 166, 532 S.E.2d 318, 323 (2000).\\nImportantly, corroboration may be established by circumstantial evidence and \\\"need not independently establish the fact but must itself tend in some degree to support an issue essential to the case . . . .\\\" Cooper v. Cooper, 249 Va. 511, 516, 457 S.E.2d 88, 91 (1995). The corroborating evidence \\\"need not emanate from other witnesses but may be furnished by surrounding circumstances adequately established.\\\" Brooks, 206 Va. at 357, 143 S.E.2d at 845 (citations omitted).\\nIn terms of procedure, whether the requirement of corroboration under the Deadman's Statute has been satisfied \\\"is usually an issue for the jury.\\\" Whitmer v. Marcum, 214 Va. 64, 68, 196 S.E.2d 907, 910 (citations omitted). The Supreme Court has held that the \\\"proper practice in [Deadman's Statute cases] is for the court not to exclude the testimony of [the] interested or adverse party but to properly instruct the jury on the subject.\\\" Arwood v. Hills Adm'r, 135 Va. 235, 241, 117 S.E. 603, 605 (1923).\\nAt trial, Plaintiffs argued that the last sentence of Virginia Code \\u00a7 8.01-397, relating to the statute's inapplicability for self-inflicted injury, was not controlling of the present case by virtue of causation. Trial Tr. 3/11/15, at 42-43. Specifically, they argued that Mark's inability to testify was not proximately related to anything he did prior to his admission to Stonewall Jackson on April 6, 2011, but that Dr. Schirmer's failure to diagnose serotonin syndrome was the proximate cause of his inability to testify. See id. at 43-44. It was not conclusively proven one way or the other, at the time of the objection, whether Mark's inability to testify came as a result of his self-inflicted injury or Dr. Schirmer's negligence. It was an issue for the jury to consider, as is usually the case under Virginia law. Supra; see also Virginia Model Jury Instruction No. 2.240. The issue was one of fact, and it is the prerogative of the jury to adjudge the facts.\\nAdditionally, with regard to the self-inflicted injury clause of Virginia Code \\u00a7 8.01-397, Plaintiffs asserted a public policy argument in support of their position. Trial Tr. 3/11/15, at 44. Though the General Assembly, not the Court, is normally the arbiter of public policy, the issue remained one of fact for the jury.\\nConcerning the sufficiency of corroboration, the relevant case law seems to make clear that corroboration can be made by other witnesses who were present. Though not present during the exact query about Selegiline, at least two other nurses present during Mark's treatment on April 6,2011, were able to corroborate the overall position that Mark's behavior was contrary to his health and self-interest. Trial Tr. 3/9/15, at 289-91 (Ms. Mason explaining she heard Mark say \\\"It can kill me.\\\"); Trial Tr. 3/9/15, at 313-15 (Ms. Lilley explaining she heard Mark say \\\"I got it right this time,\\\" and \\\"I knew what I was doing.\\\"). The testimony of these nurses did not necessarily confirm the truth of what Dr. Schirmer claimed (i.e., that Mark denied having taken Selegiline), but their testimonies do tend to confirm the probability thereof.\\nFurthermore, inasmuch as the trier of fact may consider circumstantial evidence in considering corroboration, see supra, there was a significant amount of circumstantial evidence corroborating Dr. Schirmer's testimony. For example, there were the circumstances of the March 22, 2011, hospitalization/suicide attempt. There was the evidence of Mark's mental condition in the days leading up to April 6, 2011. There was the evidence found on Mark's computer. There was the evidence of Mark's conversations with Flannah concerning the status of their relationship. There was the failed attempt at intimacy. There were the missing Selegiline capsules in the bottle in Mark's room. As such, Plaintiffs' objection to the instruction on the Deadman's Statute is overruled.\\nF. Refusal To Give a Limiting Instruction\\nPlaintiffs further object \\\"to the trial court's refusal to give a limiting instruction on its consideration of evidence relating to Mark Harris' alleged suicide attempts, and statements he made in the emergency room to Dr. Schirmer.\\\" Proposed Final Judgment Order, at 4.\\nAt trial, when it became apparent that evidence relating to the March 22, 2011, overdose and evidence suggesting that Mark was attempting suicide with his April 6, 2011, conduct would be admitted, Plaintiffs petitioned the Court for a limiting instruction to the jury. Trial Tr. 3/9/15, at 229-30. The Court explained that it did not have a problem with doing so. Plaintiffs then asked for a limiting instruction to be repeated by the Court in every instance that the allegedly improper evidence was proffered. The Court replied that it did not have a problem doing so, but urged counsel to come up with the language. Id. at 230.\\nNo such instruction was provided to the Court until the morning of closing arguments, on March 13, 2015, after all jury instructions had been argued and decided on the night before. One of Plaintiffs' counsel, who had tendered the proposed limiting instruction on the morning of March 13, 2015, had requested to be excused for the previous night's off-the-record discussions on instructions and the subsequent on-record hearing on instructions, in which all instructions given in the case were approved. Trial Tr., at 120-21, Mar. 13, 2015 (hereinafter Trial Tr. 3/13/15). The proposed instruction tendered the following day was refused for fairness reasons and for want of timeliness.\\nIncluding the proposed limiting instruction would have been fundamentally unfair after both Plaintiffs' and Defendants' counsel had the entire night of March 12, 2015, to prepare their closing arguments in light of the finalized, agreed-upon instructions. The limiting instructions were untimely in the same vein, and the objection was otherwise waived by one counsel's voluntary election to not participate in the jury instruction hearing when other counsel handled all issues as to instructions and did not tender any limiting instructions. Furthermore, at the particular juncture it was offered, the limiting instruction would have run the risk of confusing the jury by putting undue emphasis on part of the evidence. Id. As such, Plaintiffs' objection as to the refusal to give a separate limiting instruction is overruled.\\nG. Renewal of Objection To Select Jury Instructions\\nLastly, in response to the Proposed Final Judgment Order, Plaintiffs renewed their objections to Jury Instructions Nos. 4, 7,10, 11,11A, 15, and 15A for the reasons stated on the record. The record reflects that Plaintiffs objected to Instruction No. 4, concerning the burden of proof, as being unnecessary. Trial Tr. 3/12/15, at 332. As to Instructions Nos. 7, 10, 11, 15, and 15A, Plaintiffs object on the grounds that they involved contributory negligence principles which were unsupported by the evidence and inapplicable. Id. at 335-41. The record reflects that no objection was ever made to Instruction IIA. See id. at 332-41.\\nAnalyzing this issue, Instruction No. 4 was not unnecessary. It was Defendants' proffer of the applicable burden of proof in this case. While there was admittedly some duplicity in including both Plaintiffs' burden of proof instruction (No. 3) and Defendants' burden of proof instruction, the instructions did not confuse or mislead the jury on the legal concept of burden of proof; rather, the instructions amplified this principle to the jury. That there are two instructions addressing a legal concept which is potentially confusing to a layman does not automatically render one of them unnecessary.\\nConcerning Instructions Nos. 7, 10, 11, 15, and 15A, the Defendants' assertion of the defense of contributory negligence was not improper for the reasons discussed at length in Part II.A.ii supra. Plaintiffs' renewed objections to Instructions Nos. 7, 10, 11, 15, and 15A, are noted for appeal but overruled.\\nAs to Instruction No. 11 A, there was no objection made on the record, and therefore, the objection is overruled.\\nIII. Conclusion\\nIn sum, each of Plaintiffs' objections to the Proposed Final Judgment Order is overruled. For the reasons stated, admitting evidence of contributory negligence and instructing the jury in that respect, were appropriate. Similarly, the Rule 2:401 and 2:403 rulings were not erroneous. As stated, the affirmative defenses of illegality and assumption of the risk could not have been struck at the motion in limine hearing. For the same reason, a mistrial should not have been granted. The Supreme Court's admonition that the \\\"proper practice in [Deadman's Statute cases] is for the court to not exclude the testimony of [the] interested or adverse party but to properly instruct thejury on the subject,\\\"Arwood, 135 Va. at 241,117 S.E. at 605, was followed. Additionally, refusing to grant the proposed limiting instruction for the reasons stated supra, and overruling the Plaintiffs' objections to the specifically aforementioned jury instructions was within the discretion of the Court. Accordingly, judgment is entered on the verdict in favor of Defendants by entry of the tendered Order.\"}"
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+"{\"id\": \"12652193\", \"name\": \"AMFM LLC; Commercial Holdings, LLC ; Integrated Commercial Enterprises, Inc; Manzanita Holdings, LLC; Lifetree, LLC; Wineberry, LLC ; Hillcrest Health Care Center, LLC, d/b/a Hillcrest Health Care Center; Tammy Fortney; and Matthew Poorman, Petitioners v. Kimberly SHANKLIN, ON BEHALF OF the ESTATE OF Lena NELSON, Respondent\", \"name_abbreviation\": \"AMFM LLC v. Shanklin ex rel. Estate of Nelson\", \"decision_date\": \"2018-05-30\", \"docket_number\": \"No. 17-0096\", \"first_page\": \"882\", \"last_page\": \"895\", \"citations\": \"818 S.E.2d 882\", \"volume\": \"818\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-27T21:05:58.740083+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"AMFM LLC; Commercial Holdings, LLC ; Integrated Commercial Enterprises, Inc; Manzanita Holdings, LLC; Lifetree, LLC; Wineberry, LLC ; Hillcrest Health Care Center, LLC, d/b/a Hillcrest Health Care Center; Tammy Fortney; and Matthew Poorman, Petitioners\\nv.\\nKimberly SHANKLIN, ON BEHALF OF the ESTATE OF Lena NELSON, Respondent\", \"head_matter\": \"AMFM LLC; Commercial Holdings, LLC ; Integrated Commercial Enterprises, Inc; Manzanita Holdings, LLC; Lifetree, LLC; Wineberry, LLC ; Hillcrest Health Care Center, LLC, d/b/a Hillcrest Health Care Center; Tammy Fortney; and Matthew Poorman, Petitioners\\nv.\\nKimberly SHANKLIN, ON BEHALF OF the ESTATE OF Lena NELSON, Respondent\\nNo. 17-0096\\nSupreme Court of Appeals of West Virginia.\\nSubmitted: January 10, 2018\\nFiled: May 30, 2018\\nMark A. Robinson, Esq., Ryan A. Brown, Esq., Flaherty Sensabaugh Bonasso, PLLC, Charleston, West Virginia, Counsel for Petitioners\\nJames B. McHugh, Esq., Michael J. Fuller, Jr., Esq., D. Bryant Chaffin, Esq., A. Lance Reins, Esq., Kendra R. Fokakis, Esq., McHugh Fuller Law Group PLLC, Hattiesburg, Mississippi, Counsel for Respondent\", \"word_count\": \"8114\", \"char_count\": \"50873\", \"text\": \"Justice Ketchum :\\nIn this case we examine whether a durable power of attorney (\\\"DPOA\\\") provided an adult daughter with the authority to enter into an arbitration agreement with a nursing home on her mother's behalf. After review, we conclude the DPOA granted such authority to the adult daughter. We therefore reverse the circuit court's December 29, 2016, order, and remand this matter to the circuit court for entry of an order granting the petitioners' (\\\"Hillcrest Nursing Home\\\" or \\\"nursing home\\\") motion to dismiss and to compel arbitration.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nIn 2010, Lena Nelson (\\\"Mother Nelson\\\") executed a DPOA that named her son, Stephen Nelson, as her attorney-in-fact:\\nKNOW ALL MEN BY THESE PRESENTS: That I, LENA NELSON, a widow of Darius Court on the Sycamore Branch Road, Lake, Logan County, West Virginia, have made, constituted, and appointed, and by these presents do hereby make, constitute and appoint my son, STEPHEN NELSON, of Lake, Logan County, West Virginia, my true and lawful attorney, for me and in my name, place and stead[.]\\nThe DPOA also stated: \\\"If, for any reason , STEPHEN NELSON cannot or will not serve as such, then I do hereby make, constitute, and appoint my daughter, KIMBERLY SHANKLIN, of Charleston, Kanawha County, West Virginia, my true and lawful attorney, for me and in my name, place and stead with all of the aforesaid powers.\\\" (Emphasis added).\\nOn February 15, 2013, Mother Nelson was transferred from Charleston Area Medical Center (\\\"CAMC\\\") to Hillcrest Nursing Home. It is undisputed that Mother Nelson was suffering from dementia and was unable to handle her own affairs when she entered the nursing home. Mother Nelson's daughter, Plaintiff Kimberly Shanklin (\\\"Kimberly\\\"), accompanied Mother Nelson to Hillcrest Nursing Home and signed all of the admission documents, including an arbitration agreement. Richard Osburn, the nursing home's admissions director, was also present during the admission process. Another daughter of Mother Nelson's, Regina Akers (\\\"Daughter Regina\\\"), met Mother Nelson and Kimberly at the nursing home on the day of Mother Nelson's admission. According to Kimberly, Daughter Regina worked at Hillcrest Nursing Home. Mother Nelson's son, Stephen Nelson, was not present at the nursing home during the admission process.\\nMother Nelson was a resident of the nursing home from February 2013 through March 2016. Approximately one month after leaving the nursing home, Mother Nelson died. In July 2016, Kimberly, on behalf of the estate of Mother Nelson, filed the instant lawsuit against Hillcrest Nursing Home. The complaint alleged numerous causes of action arising from the care and treatment Mother Nelson received during her residency at the nursing home. In response, the nursing home filed a motion to dismiss and to compel arbitration. Thereafter, the parties engaged in limited discovery regarding the formation of the arbitration agreement.\\nAs part of this limited discovery, Kimberly was deposed. Kimberly testified that she had extensive experience in the medical field-she has worked as a paramedic supervisor for five and a half years. Kimberly explained that her duties include supervising fourteen units and that, \\\"I run calls, make decisions, anything they need.\\\" Prior to her position as a paramedic supervisor, Kimberly was an EMT for approximately twenty years.\\nRegarding Mother Nelson's DPOA, Kimberly testified that she had exercised a number of rights granted to her under the DPOA prior to Mother Nelson's admission to the nursing home. In fact, Kimberly began exercising these rights in 2011, approximately two years before Mother Nelson's admission to the nursing home. These rights included endorsing checks and managing bank accounts for her mother. Kimberly also arranged and consented to medical treatment for her mother, including signing forms related to medical care and treatment her mother received at two different hospitals, Boone Memorial Hospital and CAMC.\\nPrior to Mother Nelson's admission to the nursing home, Kimberly completed and signed a \\\"Pre-Admission Screening\\\" form. The West Virginia Department of Health and Human Resources (\\\"DHHR\\\") requires this form to be completed prior to placing a person in a skilled nursing facility. In paragraph 18 of the \\\"Pre-Admission Screening\\\" form, \\\"Kim Shanklin\\\" authorized the release of her mother's medical information to the DHHR. Under the heading \\\"Relationship,\\\" Kimberly is listed as \\\"DPOA.\\\" This portion of the form is dated \\\"2/05/2013,\\\" ten days prior to Mother Nelson's admission to the nursing home.\\nKimberly testified that her mother was transferred directly from CAMC to the nursing home on February 15, 2013. She explained that the family chose Hillcrest Nursing Home over other potential facilities because Hillcrest \\\"was closer to home.\\\" During the admission process, Kimberly signed the arbitration agreement and all of the other admission forms on her mother's behalf. Kimberly testified that the admissions director, Richard Osburn, told her to write \\\"DPOA\\\" next to her signature on the admission forms. When asked whether she told anyone at the nursing home that she was her mother's DPOA, Kimberly stated, \\\"No, I mean, I would assume they had a copy of the Durable Power of Attorney paper.\\\"\\nRichard Osburn was also deposed as part of this limited discovery. He stated that when admitting a resident who was not competent, \\\"the first thing you would have to do, of course, would be to verify that who, whoever is signing on behalf of that patient has the legal right to do so.... And, of course, that person or persons had either presented Medical Power of Attorney papers, POA papers, Durable Power of Attorney papers, to either our social worker or someone in the facility.\\\" Mr. Osburn testified that Kimberly accompanied Mother Nelson to the facility and signed the admission forms on her mother's behalf, including the arbitration agreement. Mr. Osburn testified that Kimberly \\\"presented herself and the papers as a Durable Power of Attorney, not-I'm quite certain that that's what it was.\\\" Additionally, Mr. Osburn testified that Stephen Nelson was not present when Mother Nelson was admitted to the nursing home.\\nThe arbitration agreement that Kimberly signed included the following paragraph:\\nThe parties have reviewed the Arbitration Agreement, and have had an opportunity to ask questions of the Facility about this Agreement. The Resident further acknowledges that he/she fully understands the content of this Agreement and the limitations on the right to seek the resolution of any dispute in court. The Resident affirmatively states that he/she is the Resident or a person legally authorized by law or by the Resident to execute this Agreement and accept its terms.\\n(Emphasis added). Kimberly signed her initials (\\\"KDS\\\") in a line directly under this paragraph in the arbitration agreement.\\nAnother nursing home admission document produced during this limited discovery is entitled \\\"Admission Record Hillcrest Health Care Center.\\\" This document is dated February 15, 2013, the date of Mother Nelson's admission to the nursing home. Under a section labelled \\\"Contacts,\\\" the name \\\"Kim Shanklin\\\" is listed with the following description: \\\"Emergency Contact # 1, Responsible Party (Financial), Successor POA-Care.\\\" Also listed in the \\\"Contacts\\\" section are two of Mother Nelson's other daughters, \\\"Regina Akers\\\" and \\\"Judy.\\\" However, neither of these daughters were listed as \\\"responsible parties\\\" or as \\\"POA-Care.\\\" Mother Nelson's son, Stephen Nelson, is not listed as a contact on this document.\\nThis limited discovery also revealed that Kimberly continued to exercise the rights granted to her under the DPOA, including making medical decisions on her mother's behalf, throughout Mother Nelson's residency at the nursing home. Records from the nursing home demonstrate that Kimberly took part in a number of \\\"multidisciplinary care conferences\\\" and was regularly in contact with the nursing home regarding all aspects of her mother's care. Kimberly was listed on these various medical records from the nursing home as the \\\"responsible party.\\\"\\nAdditionally, Kimberly continued to serve as Mother Nelson's DPOA after Mother Nelson left Hillcrest. Kimberly is listed as Mother Nelson's \\\"MPOA\\\" in a medical record from CAMC dated December 1, 2015, which provides, \\\"Pt.'s [Mother Nelson's] daughter Kim is MPOA and states that she does not wish for PT. to return to Hillcrest and reports that she would like her mother to be moved to another facility.\\\" Further, after Mother Nelson left Hillcrest Nursing Home, she entered another facility, Montgomery General Elderly Care. Kimberly is identified as Mother Nelson's \\\"POA-Health Care\\\", \\\"POA-Financial,\\\" \\\"Agent,\\\" and \\\"Emergency Contact\\\" in documents from Montgomery General Elderly Care.\\nOne final note on the limited discovery period-Kimberly obtained an affidavit from Stephen Nelson that provided he was never contacted by Hillcrest Nursing Home about his mother's admission or about the arbitration agreement. In the affidavit, Stephen Nelson states \\\"I was at all times material hereto willing and able to perform my duties as Durable Power of Attorney for my mother.\\\"\\nAt the conclusion of this limited discovery period, Kimberly argued that the arbitration agreement was not enforceable because she did not have the actual authority to enter into an arbitration agreement on Mother Nelson's behalf. In essence, Kimberly argued that she was the \\\"alternate\\\" DPOA and, as such, did not have the authority to bind Mother Nelson to the arbitration agreement. The circuit court agreed with Kimberly and entered an order denying the motion to dismiss and to compel arbitration. The circuit court determined that the nursing home had the burden of demonstrating that Stephen Nelson \\\"could not or would not\\\" serve as the DPOA before it could rely on Kimberly's authority as the \\\"alternate\\\" DPOA. The circuit court's order explains:\\nThe Court . focuses on whether the Defendants have met their burden of demonstrating that [Kimberly] Shanklin had the requisite authority to waive [Mother] Nelson's right to a jury trial and enter into the arbitration agreement. In this regard, based on the DPOA executed by [Mother] Nelson, the Defendants would need to show that Stephen Nelson \\\"cannot or will not\\\" serve as her DPOA at the time of admission.\\nThe Court looks to see what, if any, evidence has been presented that Stephen Nelson \\\"cannot or will not\\\" serve as his mother's DPOA. This is where the Court finds that the Defendants have not met their burden. There is no evidence that anyone on behalf of the Defendants inquired about Stephen Nelson or whether he was able and available to act on his mother's behalf on February 15, 2013.\\nThe only evidence in the record is testimony from [Kimberly] Shanklin that her brother lived locally and was available and the affidavit of Stephen Nelson that no one attempted to contact him at the time of his mother's admission.\\nThe nursing home now appeals the circuit court's order denying its motion to dismiss and to compel arbitration.\\nII. STANDARD OF REVIEW\\nThe nursing home challenges the circuit court's denial of their motion to dismiss and to compel arbitration. In Syllabus Point 1 of Credit Acceptance Corporation v. Front , 231 W.Va. 518, 745 S.E.2d 556 (2013), we held that \\\"[a]n order denying a motion to compel arbitration is an interlocutory ruling which is subject to immediate appeal under the collateral order doctrine.\\\" Further, \\\"[w]hen an appeal from an order denying a motion to dismiss and to compel arbitration is properly before this Court, our review is de novo .\\\" Syllabus Point 1, W.Va. CVS Pharmacy, LLC v. McDowell Pharmacy, Inc. , 238 W.Va. 465, 796 S.E.2d 574 (2017).\\nIII. ANALYSIS\\nThe issue in this appeal-whether the circuit court erred by denying the motion to dismiss and to compel arbitration -requires us to examine our DPOA law. In general, \\\"[a] 'power of attorney' is 'an instrument granting someone authority to act as agent or attorney-in-fact for the grantor.' \\\" In re Richard P. , 227 W.Va. 285, 293, 708 S.E.2d 479, 487 (2010) (quoting Black's Law Dictionary 1290 (9th ed. 2009) ).See also , Vance v. Vance , 192 W.Va. 121, 123, 451 S.E.2d 422, 424 (1994) (\\\"[A] power of attorney creates an agency relationship, and this establishes a fiduciary relationship between the principal, or the party who granted the power, and the agent, or the party who receives the power.\\\"); Milner v. Milner , 183 W.Va. 273, 277, 395 S.E.2d 517, 521 (1990) (\\\"[W]hen a competent adult grants a power of attorney to another, an agency relationship between the two is created, and the principal and agent are ultimately responsible for the actions arising out of the power of attorney and not some third party who is without knowledge of any wrong doing.\\\"); Thompson v. Stuckey , 171 W.Va. 483, 487, 300 S.E.2d 295, 299 (1983) (\\\"A principal is bound by acts of an agent if those acts are . within the authority the principal has actually given his agent[.]\\\"); Kanawha Valley Bank v. Friend , 162 W.Va. 925, 928, 253 S.E.2d 528, 530 (1979) (\\\"A power of attorney creates an agency and this establishes the fiduciary relationship which exists between a principal and agent.\\\").\\nA durable power of attorney is a power of attorney that does not terminate by the principal's incapacity. \\\"The durable power of attorney is a deceptively simple document that allows one person to handle the affairs of an incapacitated person without court supervision. It is merely an agency relationship, established by a written document, that continues during the principal's incapacity.\\\" Karen E. Boxx, The Durable Power of Attorney's Place in the Family of Fiduciary Relationships , 36 Ga. L.Rev. 1 (2001).\\nOur Uniform Power of Attorney Act (\\\"UPAA\\\"), W.Va. Code \\u00a7 39B-1-101 et seq . [2012], defines the term \\\"durable\\\" as follows: \\\" 'Durable,' with respect to a power of attorney means not terminated by the principal's incapacity.\\\" W.Va. Code \\u00a7 39B-1-102(2) [2012]. Further, \\\"[a] power of attorney created under [the UPAA] is durable unless it expressly provides that it is terminated by the incapacity of the principal.\\\" W.Va. Code \\u00a7 39B-1-104 [2012].\\nThe instant case concerns whether the nursing home could rely on Kimberly to act as Mother Nelson's DPOA during the admission process. To resolve this question, we examine our UPAA.\\nWe begin with a review of our rules of statutory construction. This Court has held that in deciding the meaning of a statutory provision, \\\"[w]e look first to the statute's language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed.\\\" Appalachian Power Co. v. State Tax Dep't of W. Va. , 195 W.Va. 573, 587, 466 S.E.2d 424, 438 (1995) ; see also Syllabus Point 2, Crockett v. Andrews , 153 W.Va. 714, 172 S.E.2d 384 (1970) (\\\"Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.\\\"); and Syllabus Point 2, State v. Epperly , 135 W.Va. 877, 65 S.E.2d 488 (1951) (\\\"A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.\\\").\\nAdditionally, this Court has held that \\\"[a] statute is open to construction only where the language used requires interpretation because of ambiguity which renders it susceptible of two or more constructions or of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.\\\" Sizemore v. State Farm Gen. Ins. Co ., 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal quotations and citation omitted).\\nOur main inquiry is whether the nursing home could rely on Kimberly to act as Mother Nelson's DPOA during the admission process. The UPAA addresses when a person may accept and rely upon an acknowledged DPOA:\\nA person who in good faith accepts an acknowledged power of attorney without actual knowledge that the power of attorney is void, invalid or terminated, that the purported agent's authority is void, invalid or terminated, or that the agent is exceeding or improperly exercising the agent's authority may rely upon the power of attorney as if the power of attorney were genuine, valid and still in effect, the agent's authority were genuine, valid and still in effect, and the agent had not exceeded and had properly exercised the authority except as to a conveyance of interests in real property where the principal has previously filed a notice of termination of the power of attorney in the office of the clerk of the county commission in the county in which the property is located.\\nW.Va. Code \\u00a7 39B-1-119(c) [2012].\\nThe nursing home argues that pursuant to W.Va. Code \\u00a7 39B-1-119(c), it \\\"had no duty to question [Kimberly's] authority to act as successor agent. To the contrary, without actual knowledge that the durable power of attorney is in some way defective, Hillcrest [Nursing Home] can act in good faith on the representations made by [Kimberly] when she admitted her mother to the facility.\\\" Conversely, Kimberly argues that W.Va. Code \\u00a7 39B-1-119(c) does not apply to successor agents. Instead, according to Kimberly, the UPAA's exclusive provision governing successor agents is contained in W.Va. Code \\u00a7 39B-1-111(b). Thus, the first issue we must resolve is whether the term \\\"agent\\\" in W.Va. Code \\u00a7 39B-1-119(c), includes a successor agent.\\nKimberly was listed as the successor agent in Mother Nelson's DPOA. The UPAA addresses successor agents in W.Va. Code \\u00a7 39B-1-111(b) :\\n(b) A principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve. A principal may grant authority to designate one or more successor agents to an agent or other person designated by name, office or function. Unless the power of attorney otherwise provides, a successor agent:\\n(1) Has the same authority as that granted to the original agent; and\\n(2) May not act until all predecessor agents have resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve.\\nThe UPAA defines the term \\\"agent\\\" in W.Va. Code \\u00a7 39B-1-102(1) [2012] as follows:\\n(1) \\\"Agent\\\" means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact or otherwise. The term includes an original agent, coagent, successor agent and a person to which an agent's authority is delegated.\\n(Emphasis added).\\nBecause this definition expressly includes a \\\"successor agent,\\\" we find that the term \\\"agent\\\" in W.Va. Code \\u00a7 39B-1-119(c) includes a successor agent. We find no support for Kimberly's argument that W.Va. Code \\u00a7 39B-1-111(b) is the sole provision that applies to a successor agent. Neither that code section, nor W.Va. Code \\u00a7 39B-1-119 include any such limitation and we decline to read into the UPAA that which it does not state. \\\"It is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.\\\" Syllabus Point 11, Brooke B. v. Ray , 230 W.Va. 355, 738 S.E.2d 21 (2013). Instead, based on the clear, unambiguous definition of agent set forth in W.Va. Code \\u00a7 39B-1-102(1), we find that W.Va. Code \\u00a7 39B-1-119(c) applies to the instant case.\\nThe nursing home accepted the DPOA from Kimberly at the time of Mother Nelson's admission and relied on her authority. Pursuant to W.Va. Code \\u00a7 39B-1-119(c), the nursing home could rely on the DPOA as long as it was without actual knowledge (1) that the DPOA was void, invalid or terminated, (2) that Kimberly's authority was void, invalid or terminated, or (3) that Kimberly was exceeding or improperly exercising her authority. Upon review, we find that the nursing home could rely on Kimberly's authority to serve as her mother's DPOA.\\nFirst, it is undisputed that Mother Nelson's DPOA was not \\\"void, invalid or terminated\\\" at the time of her admission to the nursing home. The next two factors require an examination of whether Kimberly had the authority under the DPOA to enter into the arbitration agreement on her mother's behalf.\\nUnder W.Va. Code \\u00a7 39B-1-111(b), a successor agent may act once all of the predecessor agents have \\\"resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve.\\\" Kimberly argues that her authority to act as Mother Nelson's DPOA \\\"had to be triggered by Stephen Nelson's inability or unwillingness to continue to serve as his mother's attorney-in-fact.\\\" Because Stephen Nelson was not unable or unwilling to serve as his mother's DPOA, according to his affidavit, Kimberly argues that she did not have the actual authority to enter into the arbitration agreement on her mother's behalf. By contrast, the nursing home argues that Kimberly had the authority, under the plain language of the DPOA, to enter into the arbitration agreement. In fact, according to the nursing home, Kimberly exercised her rights and duties under the DPOA before, during, and after Mother Nelson's admission to the nursing home. After review, we agree with the nursing home.\\nThe record demonstrates that Kimberly consistently exercised the rights and duties granted to her under the DPOA on Mother Nelson's behalf before, during, and after the nursing home admission process. Conversely, the record is devoid of any instance of Stephen Nelson exercising any rights or duties granted to him under Mother Nelson's DPOA.\\nKimberly began exercising the rights and duties granted to her under the DPOA approximately two years prior to Mother Nelson's admission to the nursing home. These duties and rights included 1) managing Mother Nelson's financial affairs, 2) arranging medical treatment for her mother at two different hospitals, and 3) consenting to medical care her mother received.\\nThe most relevant instance of Kimberly exercising her authority under the DPOA prior to Mother Nelson's admission to the nursing home involved the \\\"Pre-Admission Screening\\\" form. Ten days before Mother Nelson's admission to the nursing home, Kimberly, rather than Stephen Nelson, completed and signed the \\\"Pre-Admission Screening\\\" form required by the DHHR prior to placing a person in a skilled nursing facility. Kimberly, rather than Stephen Nelson, is identified in this form as the \\\"DPOA.\\\" This form was sent to the nursing home prior to Mother Nelson's admission. Thus, at the time the nursing home relied on Kimberly to act as her mother's DPOA, it had this DHHR approved document that identified Kimberly, rather than Stephen Nelson, as Mother Nelson's DPOA. Additionally, the nursing home had the DPOA itself that provided in clear, unambiguous language that Kimberly was permitted to act on her mother's behalf \\\"[i]f, for any reason, STEPHEN NELSON cannot or will not serve[.]\\\"\\nNext, while our main inquiry concerns whether the nursing home could rely on Kimberly's authority at the time she signed the arbitration agreement, we note that subsequent to Mother Nelson's admission to the nursing home, Kimberly, rather than Stephen Nelson, continued to serve as Mother Nelson's DPOA. Throughout Mother Nelson's stay at the nursing home, Kimberly was in regular contact with the nursing home and made numerous medical care and treatment decisions on her mother's behalf. Further, Kimberly, rather than Stephen Nelson, is listed as Mother Nelson's \\\"MPOA\\\" in a medical record from CAMC dated December 1, 2015. This CAMC record provides \\\"Pt.'s [Mother Nelson's] daughter Kim is MPOA and states that she does not wish for PT. to return to Hillcrest and reports that she would like her mother to be moved to another facility.\\\" Also, after Mother Nelson left Hillcrest Nursing Home, she entered another facility, Montgomery General Elderly Care. Kimberly, rather than Stephen Nelson, is identified as Mother Nelson's \\\"POA-Health Care\\\", \\\"POA-Financial,\\\" \\\"Agent,\\\" and \\\"Emergency Contact\\\" in documents from Montgomery General Elderly Care.\\nIn sum, the record clearly establishes that Kimberly exercised her rights and duties under the DPOA 1) for two years prior to the nursing home admission, 2) during the nursing home admission process, 3) throughout Mother Nelson's residency at the nursing home, and 4) after Mother Nelson left Hillcrest and moved into Montgomery General Elderly Care. Conversely, there is no evidence that Stephen Nelson exercised any rights and duties granted to him under the DPOA-his inaction demonstrates that he declined to serve as Mother Nelson's DPOA. Because Stephen Nelson declined to serve, and because Kimberly acted as her mother's DPOA from 2011 through 2016, we conclude that Kimberly had the authority to enter into the arbitration agreement with the nursing home. Based on this conclusion, we find that when Kimberly signed the arbitration agreement, her authority was not \\\"void, invalid or terminated,\\\" nor was she \\\"exceeding or improperly exercising her authority.\\\" Therefore, under the plain language of W.Va. Code \\u00a7 39B-1-119(c), the nursing home was permitted to rely on Kimberly's authority as Mother Nelson's DPOA when Kimberly signed the arbitration agreement on her mother's behalf.\\nIV. CONCLUSION\\nThe circuit court's December 29, 2016, order is reversed and this matter is remanded to the circuit court for entry of an order granting the nursing home's motion to dismiss and to compel arbitration.\\nReversed and Remanded With Directions.\\nCHIEF JUSTICE WORKMAN dissents and reserves the right to file a dissenting Opinion.\\nThe plaintiff named a number of corporations as defendants in this lawsuit. The plaintiff alleged that these corporate defendants \\\"engaged in the custodial care of . individuals . in need of nursing care and treatment at Hillcrest Health Care Center.\\\" These corporations include Commercial Holdings, LLC; Integrated Commercial Enterprises, Inc.; Manzanita Holdings, LLC; Lifetree, LLC; Wineberry, LLC; and Hillcrest Health Care Center, LLC. The plaintiff also named two Hillcrest Health Care Center administrators as defendants, Tammy Fortney and Matthew Poorman. For ease of the reader, we refer to the petitioners collectively as \\\"Hillcrest Nursing Home\\\" or \\\"nursing home.\\\"\\nThe causes of action alleged in the complaint include corporate negligence, nursing home violations, medical malpractice, malice and/or gross negligence, fraud, premises liability, violations of the West Virginia Consumer Credit and Protection Act, and wrongful death.\\nThis Court has held that \\\"[w]hen a trial court is required to rule upon a motion to compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. \\u00a7 1 -307 (2006), the authority of the trial court is limited to determining the threshold issues of (1) whether a valid arbitration agreement exists between the parties; and (2) whether the claims averred by the plaintiff fall within the substantive scope of that arbitration agreement.\\\" Syllabus Point 2, State ex rel. TD Ameritrade, Inc. v. Kaufman , 225 W.Va. 250, 692 S.E.2d 293 (2010).\\nWest Virginia Code \\u00a7 39B-1-119(c), contained in our UPAA, is consistent with the model Uniform Power of Attorney Act which was adopted in 2006. The comment section of Section 119 of the Uniform Power of Attorney Act provides:\\nSection 119 permits a person to rely in good faith on the validity of the power of attorney, the validity of the agent's authority, and the propriety of the agent's exercise of authority, unless the person has actual knowledge to the contrary (subsection (c) ). Although a person is not required to investigate whether a power of attorney is valid or the agent's exercise of authority proper , subsection (d) permits a person to request an agent's certification of any factual matter (see Section 302 for a sample certification form) and an opinion of counsel as to any matter of law.... Subsection (f) states that for purposes of Sections 119 and 120, a person is without actual knowledge of a fact if the employee conducting the transaction is without actual knowledge of the fact.\\nUnif. Power of Attorney Act, \\u00a7 119 (2006) (emphasis added).\\nThis issue concerns whether Kimberly had the actual authority to enter into the arbitration agreement with the nursing home on her mother's behalf. There is no claim that this matter concerns apparent authority. In Syllabus Point 1 of General Electric Credit Corporation v. Fields , 148 W.Va. 176, 133 S.E.2d 780 (1963), this Court held the following with regard to apparent authority: \\\"One who by his acts or conduct has permitted another to act apparently or ostensibly as his agent, to the injury of a third person who has dealt with the apparent or ostensible agent in good faith and in the exercise of reasonable prudence, is estopped to deny the agency relationship.\\\" By contrast,\\nan actual agent is one who, expressly or by necessary implication, is authorized to act for the principal. Actual authority may be defined as the power which a principal intentionally confers upon the agent or intentionally or by lack of ordinary care allows the agent to believe he or she possesses. Thus, an agent's actual authority requires action by the principal, expressly or by implication granting the agent the authority to act on the principal's behalf. Such authority is created by written or spoken words or other conduct of the principal, reasonably interpreted.\\n2A C.J.S. Agency \\u00a7 145 (2018) (footnotes omitted).\\nAccording to W.Va. Code \\u00a7 39B-1-113 [2012], \\\"Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.\\\" Notwithstanding Stephen Nelson's affidavit that he was \\\"at all times material hereto willing and able to perform my [DPOA] duties,\\\" the record does not contain any examples of Stephen Nelson exercising any duties or rights granted to him under the DPOA before, during, or after Mother Nelson's admission to the nursing home.\\nIf this Court accepted the argument that Kimberly was not permitted to act under the DPOA because Stephen Nelson was willing and able to perform his \\\"DPOA duties\\\", that would imply that all of the actions Kimberly performed under the DPOA in the two years prior to Mother Nelson's admission to the nursing home were improper. Stated another away, this would mean that two hospitals, various financial institutions, and the DHHR all erred by relying on Kimberly's authority to act under the DPOA.\"}"
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+"{\"id\": \"1846526\", \"name\": \"Collier v. Hiden\", \"name_abbreviation\": \"Collier v. Hiden\", \"decision_date\": \"1917-03-15\", \"docket_number\": \"\", \"first_page\": \"453\", \"last_page\": \"457\", \"citations\": \"120 Va. 453\", \"volume\": \"120\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:48:49.387938+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Collier v. Hiden.\", \"head_matter\": \"Richmond.\\nCollier v. Hiden.\\nMarch 15, 1917.\\n1. Boundaries \\u2014 Petition to Determine \\u2014 Parties.\\u2014Acts of Assembly of 1912, p. 133, provide, \\u201cthat any person having an interest in real estate upon petition filed in the court which would have jurisdiction in an action of ejectment concerning such real estate, shall have the right to have ascertained and designated by the said court, the true boundary line or lines to such real estate as to one or more of the coterminous landowners. All persons interested in the coterminous real estate shall be made parties to the said petition which shall be matured for hearing as provided for maturing an action of ejectment, except that it shall not be necessary to serve a copy of the petition.\\u201d Under this statute where the petitioner has only a life estate, he must either have the remaindermen unite with him as plaintiffs, or have them made defendants.\\n2. Jury \\u2014 Waiver\\u2014Boundaries.\\u2014Under section 3166, Pollard\\u2019s Code 1904, a trial by jury is waived if neither plaintiff nor defendant demand such trial. But Acts of 1912, p. 133, governing proceedings to determine boundaries specifically provides that a \\u201ctrial by jury may be waived by consent of parties,\\u201d and therefore requires a trial by jury in every case arising under it, unless such trial is waived by the consent of parties both plaintiff and defendant.\\nAppeal from a decree of the Circuit Court of Greene county. Decree for complainant. Defendant appeals.\\nReversed.\\nThe opinion states the case.\\nJohn S. Chapman, for the appellant.\\nE. M. Averill, for the appellee.\", \"word_count\": \"1490\", \"char_count\": \"8543\", \"text\": \"Sims, J.,\\ndelivered the opinion of the court.\\nThis case involves a proceeding by petition to have ascertained and designated by the court the true boundary lines of real estate under Acts of Assembly 1912, p. 133.\\nThe appellee was plaintiff and the appellant defendant in the court below, hereinafter referred to as plaintiff and defendant.\\nThe proceeding was erroneously had on the chancery side, instead of the law side, of the court, as the statute provides, but in the view we take of the case it is not necessary to consider the effect of that upon the validity of the process or otherwise.\\nThere was no appearance by the defendant until after final order or decree in the case.\\nThe plaintiff was the owner of a life estate only in his real estate, his wife and children being entitled thereto in remainder in fee. The latter were not made parties to the proceeding.\\nTrial by jury was not waived \\\"by consent of parties\\\" and the court below disposed of the case without a trial by jury.\\nThere are five assignments of error in the petition before us, praying that a new trial be awarded1, only two of which need be considered, which are in effect as follows:\\nFirst. That the statute aforesaid requires that all persons interested in the coterminous real estate shall be made parties to the petition; and that, therefore, the wife and children of the plaintiff were necessary parties to the pro-ceding, being the owners in remainder in fee of the land in which the plaintiff owned a life estate only. It is not denied that the plaintiff, as life tenant, could alone file his petition; but it is alleged that under the statute he should have either had the remaindermen unite with him as plaintiffs or have made them defendants.\\nSecond. That the said statute provides that, \\\"The trial by jury may be waived by consent of parties;\\\" that without such consent the questions involved must be tried by a jury; that the record shows no consent of parties to waive a trial by jury; and hence the final order or decree in the case was vdid for lack of jurisdiction in the court to enter it.\\nWe will consider these assignments of error in their order as stated above.\\nThe statute in question is as follows:\\n\\\"1. Be it enacted by the General Assembly of Virginia, That any person having an interest in real estate upon petition filed in the court which would have jurisdiction in an action of ejectment concerning such real estate, shall have the right to have ascertained and designated by the said court, the true boundary line or lines to such real estate as to one or more of the coterminous landowners. All persons interested in the coterminous real estate shall be made parties to the said petition which shall be matured for hearing as provided for maturing an action of ejectment, except that it shall not be necessary to serve a copy of the petition.\\n\\\"The trial shall be conducted as other trials at law and the same rules of evidence shall apply and the same defenses may be made as in other actions at law; the trial by jury may be waived by consent of parties, the judgment of the court shall be recorded in the common law order book and in the current deed book of the court, and indexed in the name of the parties to the petition. The court may, upon application of either party to the petition, by order in term time or in vacation, direct such survey or surveys to be made as may be deemed necessary. The judgment of the court shall, unless reversed, forever settle and determine and designate the true boundary line or lines in question, and be binding upon the parties to such petition, their heirs, devisees and assigns. The judgment of the court shall be subject to review by the Supreme Court of Appeals of the State upon writ of error.\\\"\\nFirst. With respect to the first assignment of error above mentioned.\\nWe are of opinion, that this assignment is well taken. The statute, it is true, allows \\\"any person having an interest in real estate\\\" to file the petition provided for thereby; but it further, in express terms, provides that, \\\"All persons interested in the coterminous real estate shall be made parties to the said petition \\\" The statute is not free from ambiguity with respect to the meaning with which it uses the word \\\"coterminous\\\" in the sentence here quoted, in view of its use of the same word in its designation of \\\"coterminous landowners\\\" in the preceding sentence. . The \\\"landowners\\\"' referred to in the former sentence are clearly meant by the statute to be the owners of the land on the opposite side of the boundary line from the plaintiff, to-wit, the defendants in the proceeding. When the statute, however, in the following sentence, does not designate those who shall be made parties to the petition as- all \\\"coterminous landowners,\\\" but \\\"all persons interested in the coterminous real estate,\\\" the language would seem to have a broader meaning, and to include the owners of the land on both sides of the boundary line in controversy, to-wit, both plaintiffs and defendants; and in view, of the policy of the law and of this statute to lessen litigation, we think this meaning must be given to it.\\nWe are, therefore, of opinion that the said parties entitled in fee in remainder to-the land in which the plaintiff owned only a life estate, were necessary parties to'the proceeding and should have been made parties plaintiff or defendant to the petition.\\nSecond. With respect to the second assignment of error above mentioned.\\nIt is true that the statute under consideration provides that the petition \\\"shall be matured for hearing as provided for maturing an action of ejectment, except that it shall not be necessary to serve a copy of the petition,\\\" and that \\\"The trial shall be conducted as other trials at law \\\" If the statute had stopped there with respect to its provisions touching the procedure under it, no express consent of both plaintiff and defendant to waiver of the trial by jury would be necessary; for in other trials at law, by virtue of section 3166 of the Code of Virginia (Pollard's Code, 1914) a trial by jury is waived if neither plaintiff nor defendant demand such trial. But the statute we have under consideration does not stop there, but goes on, and uses different language from said section 3166 with respect to the manner in which the trial by jury may be waived, namely: it provides that \\\"the trial by jury may be waived by consent of parties.\\\" (Italics supplied.) We must interpret the language of the legislature as we find it and give some meaning to this further provision of the statute. In doing so we cannot escape the conclusion that the statute requires a trial by jury in every case arising under it unless such trial is waived by the consent of parties both plaintiff and defendant.\\nWe are, therefore, of opinion that this assignment of error is also well taken.\\nFor the foregoing reasons, the order or decree complained of must be set aside and annulled and a new trial granted.\\nReversed.\"}"
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+"{\"id\": \"1860972\", \"name\": \"J. C. Harris v. Commonwealth\", \"name_abbreviation\": \"Harris v. Commonwealth\", \"decision_date\": \"1922-11-16\", \"docket_number\": \"\", \"first_page\": \"688\", \"last_page\": \"695\", \"citations\": \"134 Va. 688\", \"volume\": \"134\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T20:23:14.766741+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. C. Harris v. Commonwealth.\", \"head_matter\": \"Richmond.\\nJ. C. Harris v. Commonwealth.\\nNovember 16, 1922.\\n1. Assault and Battbby \\u2014 Malicious Shooting \\u2014 Homicide\\u2014What Constitutes Malicious Shooting with Intent to Kill. \\u2014 Whether a person in-dieted under section 4402 of the Code of 1919 is guilty of malicious shootihg with intent to kill depends upon whether, if he had killed the person at whom he shot, instead of only wounding him, he would have been guilty of murder, or would have been only guilty of manslaughter, or homicide hi self-defense. If he would have been guilty of murder had he killed the person at-whom he shot, he is guilty of malicious shooting with intent to kill; if he would only have been guilty of manslaughter, then he is guilty of unlawful shooting; and, if he shot in self-defense, he is not guilty of any offense.\\n2. Homicide \\u2014 Murder or Manslaughter--Malice \\u2014 Provocation\\u2014Passion \\u2014 Words as Provocation. \\u2014 Every unlawful homicide must be murder or manslaughter. Whether it is murder or manslaughter depends entirely upon whether or not the act was done with malice, express or implied. A reasonable provocation is always necessary to reduce a felonious homicide, committed upon sudden provocation, from murder to manslaughter. Words alone, however insulting or contemptuous, are never a sufficient provocation, where a deadly weapon is used, to have that effect. In order to so reduce the offense, it is necessary that there should be a reasonable provocation which pro- . duces a sudden passion, under the influence of which the offense is committed. Provocation without passion, or passion without provocation, will not do; but both must concur to reduce the offense to the grade of manslaughter.\\n3. Assault and Batteby \\u2014 Malicious Shooting \\u2014 Malice.\\u2014In a prosecution for malicious shooting, where it was shown that the shooting was unlawful and without reasonable provocation, and the evidence failed to disclose any circumstances of palliation, the jury were compelled to find, as a matter of fact, that the shooting was done with malice.\\n4. Instbuctions \\u2014 Party\\u2019s Right to Instruction upon his Theory of the Case\\u2014 Evidence to Support Instructions. \\u2014 While it is true that a plaintiff or defendant is entitled to an instruction upon his theory of the case, this does not mean that merely because a defendant has a theory of his case he is thereby entitled to an instruction upon that theory. It is only when such an instruction is supported by some appreciable evidence that the rule can be invoked, that the party is entitled to an instruction upon his theory of the case.\\n5. Instructions \\u2014 Party\\u2019s Bight to Instruction upon his Theory of the Case\\u2014 Evidence to Support Instructions \\u2014 Case at Bar. \\u2014 In the instant case, a prosecution for malicious shooting, defendant objected that in declining to give instructions asked by him on provocation, self-defeDse, and his intoxication at the time of the shooting, the court refused to present to the jury the law covering accused\\u2019s theory of the case.\\nHeld: That, as the record failed to disclose any evidence upon which the instructions could have been based, t-heir refusal was not error.\\n6. Appeal and Error \\u2014 Error in Instructions \\u2014 Where the Jury could not have Found a Different Verdict. \\u2014 Where, as in the instant case, the Supreme Court of Appeals can see from the entire record that the jury could not properly have returned a different verdict, it is unnecessary for the court to consider the propriety of the rulings of the trial court in giving and refusing instructions, and it will not, under such circumstances, reverse the judgment and set aside the verdict.\\nError to a judgment of the Circuit Court of Nelson county.\\nAffirmed.\\nThe opinion states the case.\\nJ. T. Coleman, Jr., L. G. Tucker and Jno. D. Easley, for the plaintiff in error.\\nJohn R. Saunders, Attorney-General, J. D. Hank, Jr., Assistant Attorney-General, and Leon M. Bazile, Second Assistant Attorney-General, for the Commonwealth.\", \"word_count\": \"2574\", \"char_count\": \"14864\", \"text\": \"West, J.,\\ndelivered the opinion of the court.\\nJ. C. Harris obtained this writ of error to a judgment sentencing him to the penitentiary for three years for maliciously shooting McCue Quick.\\nThe only assignment of error relied on is the action of the trial court in granting instructions Nos. 1 and 2 offered by the Commonwealth, and in refusing to give instructions \\\"A,\\\" \\\"B\\\" and \\\"C\\\" requested by the accused. The following are all the instructions given:\\n\\\"1. The court instructs the jury that on a charge of a malicious shooting malice is presumed from the fact' of shooting with a deadly weapon, and when the shooting is proved, and is unaccompanied by circumstances of palliation, the burden of disproving malice is thrown upon the accused.\\n\\\"2. And the court further instructs the jury that to constitute a malicious shooting, it is not necessary that malice should exist any particular length of time prior to the shooting, it is only necessary that such intention should come into existence for the first time at the time of the shooting, or any time previous.\\\"\\n\\\"D. The court instructs the jury that the law presumes every person charged with crime to be innocent until his guilt is established by the Commonwealth beyond a reasonable doubt, and this presumption of innocence goes with the prisoner through the entire case, and applies to' every stage thereof; and they are instructed that although they might have believed, when the Commonwealth closed its case, that the prisoner at the bar was guilty beyond a reasonable doubt, yet, if after having heard the evidence introduced on behalf of the prisoner, they have a reasonable doubt as to any fact or circumstances essential to prove the charge made against him in the indictment, it is their duty to give the prisoner the benefit of the doubt and find him not guilty.\\\"\\nThe following are the instructions tendered by the accused and refused by the court:\\n\\\"A. The court instructs the jury that if they believe from the evidence that Quick provoked the defendant, or brought on the difficulty, and thereby caused the defendant to shoot him in the heat of passion, then the jury cannot convict the accused of anything more than common assault.\\\"\\n\\\"B. The court instructs the jury that if they believe from the evidence that the defendant reasonably apprehended that Quick would do him bodily harm, then you are instructed that the defendant had the right to repel such assault or apprehension of bodily harm by all the force he deemed necessary, and that he was not compelled to retreat from said Quick, but might, in his turn, become the assailant, inflicting bodily wounds until his person was out of danger.\\\"\\n\\\"C. The court instructs the jury that' even though they may believe from the evidence that the accused shot and wounded Quick without just cause, but that at the time of said shooting the accused was so intoxicated as to be incapable of having or entertaining malice towards the said Quick, or an intention to wound the said Quick, they cannot find him guilty of malicious or unlawful shooting.\\\"\\nMcCue Quick was a tenant on a farm owned by the accused in Nelson county, and resided thereon in a house with another tenant, Robert Goolesby, who was Quick's father-in-law. The relations between Quick and the accused had always been very friendly. On the day of the shooting the accused, who lived on a nearby farm, visited the Quick home several times, enquiring for Robert Goolesby. Quick was away in the forenoon. When he returned between one and two o'clock he found the accused in his home and invited him to dinner. The accused accepted his hospitality and after dinner, Quick, at the request of the accused, played a violin, while one of the ladies of the family played the guitar and sang, for his entertainment.\\nQuick and the accused went into Mrs. Goolesby's cookroom where they engaged in friendly conversation, while Quick was drying some tobacco by the stove. Mrs. Goolesby came in and on being asked by the accused where her husband was, stated he was at the ball game. Tenant Goolesby had not finished planting his corn and the accused said to his wife: \\\"Tell the old man when he comes back he had better leave here before I do something desperate.\\\" Fannie Goolesby, the sister-in-law of Quick and the daughter of Mr. Goolesby, came in the room and said to the accused: Mr. Harris, you wait and tell papa that; if you got anything to say, say it to him and not to mamma. ' ' The accused replied: \\\"You damn little coxy b \\u2014 , what have you to do with it?\\\" Quick remonstrated with the accused about the language used by him to Miss Goolesby, saying: \\\"Mr. Harris, you ought not to talk to a child that way.\\\" . The moment these words were spoken the accused, who was seated behind Quick, shot at Quick three times, the first shot passing through and scorching the hair on his head, the second, fired just as he jumped up to leave the room, striking him in the back and coming out at his neck, and the third, fired up the steps, as Quick passed into another room, missed him and struck a little child. Quick did not have a knife in his hand at the time he was shot. After the shooting the accused walked out of the house and went home without offering any assistance to either of the persons he had wounded. Quick was taken to the hospital and remained there three weeks.\\nThe evidence introduced on behalf of the Commonwealth also tended to show that the accused was not under the influence of liquor the day of the shooting, and that neither Quick nor any member-of the Goolesby family furnished him any intoxicating liquor. The accused testified that he went to the Goolesby farm to see a colored man, and not finding him came by the Goolesby home where he purchased for one dollar a half-gallon jar of a concoction known as Old Hen, and drank freely of it. His account of the shooting does not differ materially from that of the Commonwealth's witnesses, above related. He testified that he and Quick had drunk about a quart of Old Hen; that he put the jar in a bag and placed the bag at the door; that some one came in and said the children had turned his whiskey over and he said, \\\"Good God, don't turn my whiskey over;\\\" that he and Quick were talking about a Mr. Lynch bringing a harrow across a piece of land, and kept arguing about it; and that all at once Quick said he didn't give a damn for any son-of-a-b\\u2014 with a pistol against his knife; that accused had his pistol in his front pocket and Quick had his knife, unopened, in his hand, when he made this remark; and that before he could open his knife he, the accused, shot him three times, the third shot being fired because he thought Quick was going to get a gun.\\nThe foregoing are the material facts in the case.\\nThe indictment was drawn under section 4402, Code 1919, and charged the accused with feloniously and maliciously shooting McCue Quick, with intent to maim, disfigure, disable and kill.\\nWhether a person indicted under this statute is guilty of malicious shooting, with intent to kill, depends upon whether, if he had killed the person at whom he shot, instead of only wounding him, he would have been guilty of murder, or would have been only guilty of manslaughter, or homicide in self-defense.\\nIf, in the instant case, the accused would have been guilty of murder had he killed Quick, then he is guilty of malicious shooting with the intent to kill, of which he was convicted; if he would have been guilty of manslaughter only, then he is guilty of unlawful shooting; and if he shot in the proper defense of himself he is not guilty of any offense.\\nEvery unlawful homicide must be murder or manslaughter. Whether it is murder or manslaughter depends entirely upon whether or not the act was done with malice, express or implied. A reasonable provocation is always necessary to reduce a felonious homicide, committed upon sudden provocation, from murder to manslaughter. Words alone, however insulting or contemptuous, are never a sufficient provocation, where a deadly weapon is used, to have that effect. In order to so reduce the offense, it is necessary that there should be a reasonable provocation which produces a sudden passion, under the influence of which the offense is committed. Provocation without passion, or passion without provocation, will not do; but both must concur to reduce the offense to the grade of manslaughter. Read v. Commonwealth, 22 Gratt. (63 Va.) 937.\\nThe accused's own statement of how the shooting occurred fails to disclose that Quick did any act which could be construed to constitute a reasonable provocation for the shooting; and the language used by him could not constitute a sufficient provocation. If Quick made the remark about a son-of-a-b\\u2014 with a pistol against his knife, supra, as claimed by the accused, it does not clearly appear that he had reference to the accused, as accused's pistol was then in his pocket and had not been mentioned.\\nThe shooting being unlawful and without reasonable provocation, and the evidence failing to disclose any circumstances of palliation, the jury were compelled to find, as a matter of fact, that it was done with malice.\\nThe accused complains that the court by its refusal to give instructions \\\"A,\\\" \\\"B\\\" and \\\"C\\\" declined thereby to present to the jury the law covering his theory of the case.\\nIt is true this court has said a plaintiff, or defendant, is entitled to an instruction upon his theory of the case. Small v. Va. Ry. & P. Co., 125 Va. 421, 99 S. E. 525. But by that language the court did not mean to say, merely because a defendant has a theory of his case, he is thereby entitled to an instruction upon that theory. Only when such an instruction is supported by some appreciable evidence can this rule be invoked. Realty Co. v. Burcum, 129 Va. 466, 106 S. E. 375.\\nA careful and painstaking examination of the record in the instant case fails to disclose any evidence upon which instructions \\\"A,\\\" \\\"B\\\" and \\\"C\\\" could be properly based, and we shall refuse to consider further the assignment of error as to granting and refusing instructions. Where, as in the instant case, the court can see from the entire record that the jury could not properly have returned a different verdict, it is unnecessary for this court to consider the propriety of the rulings of the trial court in giving and refusing instructions, and it will not, under such circumstances, reverse the judgment and set aside the verdict. Winfree v. Bank, 97 Va. 83, 33 S. E. 375; Burks' Pl. & Pr., sec. 267; Neal & Binford v. Taylor, 106 Va. 651, 56 S. E. 590; Fields v. Virginian Ry. Co., 114 Va. 558, 77 S. E. 501; Adams Express Co. v. Allendale, 116 Va. 1, 81 S. E. 42, Ann. Cas. 1916-D, 894; Wood v. Jefferies, 117 Va. 193, 83 S. E. 1074; Straus v. Fahed, 117 Va. 633, 85 S. E. 969; Standard, etc., Co. v. Monroe, 125 Va. 442, 99 S. E. 589.\\nFor the reasons stated, the judgment will be affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"1862470\", \"name\": \"Julia Hite Gallagher v. Waynesboro Mutual Telephone Company\", \"name_abbreviation\": \"Gallagher v. Waynesboro Mutual Telephone Co.\", \"decision_date\": \"1925-11-12\", \"docket_number\": \"\", \"first_page\": \"383\", \"last_page\": \"392\", \"citations\": \"143 Va. 383\", \"volume\": \"143\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:15:43.665231+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Julia Hite Gallagher v. Waynesboro Mutual Telephone Company.\", \"head_matter\": \"Richmond.\\nJulia Hite Gallagher v. Waynesboro Mutual Telephone Company.\\nNovember 12, 1925.\\nThe opinion states the case.\\nCharles Curry and Rudolph Bumgardner, for the plaintiff in error.\\nS. D. Timberlake, Jr., and J. M. Perry, for the defendant in error.\", \"word_count\": \"2646\", \"char_count\": \"14832\", \"text\": \"Prentis, P.,\\ndelivered the opinion of the court.\\nThe plaintiff was injured while using a telephone furnished her at her residence by the defendant company, and sued for serious permanent injury affecting her hearing in the left ear. At the trial the defendant demurred to the plaintiff's evidence, in which demurrer the plaintiff joined, the court sustained the demurrer and entered judgment thereon in favor of the defendant, and the plaintiff is here assigning error.\\nThe pertinent facts are that the defendant owns and operates a telephone system in the town of Waynesboro, the plaintiff being one of its subscribers. There are certain telephone lines which appear to be privately owned and controlled by certain farmers of Augusta county. These farmers' lines are carried to the corporate limits of the town of Waynesboro and are there connected with the wires of the defendant which run into its switchboard. The defendant is required by law and in the public interest to connect with these lines and to interchange service therewith.\\nHoward Bush was one of some fifteen or sixteen farmers \\u2022who had grounded lines so coming into Waynesboro and was furnished service at the rate of $5.00 per year. These lines outside of the city limits were built and controlled exclusively by their owners, and the defendant company had no control whatever over them. In connecting these county lines (ground circuit) with its own line (metallic circuit) the defendant employed every known and improved device to protect its subscribers from any injury which might result from lightning or other dangerous currents of electricity. No negligence whatever is shown with respect to the equipment, maintenance and operation of the defendant's line, and the affirmative evidence negatives any such negligence. .\\nThe plaintiff, because partially deaf in her right ear, had the company install a telephone with an unusually large bell. On the occasion of her injury she called through the central office for connection with the telephone of Bush, to talk with Mrs. Bush. She pressed the receiver very tightly to her left ear, and then sustained the injury complained of. Mrs. Bush at the other end of the connection heard nothing unusual except the plaintiff's scream. There was no blowing out of any of the protective fuses on the defendant's lines, neither the telephone at the residence of the plaintiff nor that at the residence of Bush was in any degree injured or affeeted, both were used within half an hour afterwards and were then found to be in perfect condition.\\nAs to the Bush line, these facts appear: He lived within a mile of the corporate limits of Waynesboro, on the road running from Waynesboro to New Hope. He was one of the owners of the farmers' line, known as the Central Point line, which had been connected with the Waynesboro exchange for many years. His home was a quarter of a mile from the road, to which his lane extended. The 'wires of the Central Point farmers' line were on poles on one side of the Waynesboro \\u2014 New Hope road, but Bush built a pole line in his lane so as to connect with the Central Point wires on the highway. This line in his lane belonged to him. About two years before the plaintiff was injured, Bush, desiring to obtain electric lights at his house, put an electric light wire on poles in his lane so as to connect with the electric light line owned by the Staunton Light Company, and at some time before the injury he changed the location of his telephone wire and put it on the same poles that already carried the electric light wire. At one point he placed these wires only about seventeen inches apart. It is fairly apparent that these wires were so located at the time of the plaintiff's injury. There is nothing to indicate that the defendant company had any information whatever as to the location of these wires so improperly placed by Bush. Bush afterwards removed the telephone wire from these electric light poles because there had been considerable trouble and complaint about noises occasioned by the proximity of the telephone wire to the electric light wire.\\nThe sole suggestion as to the cause of the injury which can be found in the record is that in some way it was because of the dangerous proximity of this electric light wire to the telephone wire in Bush's lane.\\nIt is fundamental, of course, that a plaintiff in such an action can only recover by showing that the defendant's negligence is the cause of the injury, and unless this is sufficiently proved there can be no recovery. Some reliance appears to be placed by the plaintiff upon the doctrine of res ipsa loquitur, but this does not apply where the injury is due to a defective appliance which is neither managed, operated, owned or controlled by the defendant.\\nIn Peters v. Lynchburg Traction Co., 108 Va. 333, 61 S. E. 745, 22 L. R. A. (N. S.) 1188, in which the plaintiff was injured by a shock while turning off an incandescent electric light in his kitchen, it was held that he could not recover of the company which furnished the current of electricity, because he was himself the owner of the electric outfit on his premises. It was shown there that the defendant company had neither the ownership nor control of the appliances on the plaintiff's premises, the house having been wired by the owner, and the electric equipment being his own property.\\nIn Fickeisen, Adm'r, v. Wheeling Electric Co., 67 W. Va. 335, 57 S. E. 788, 27 L. R. A. (N. S.) 893, these were the salient facts: The Wheeling Company sold and delivered to the Bridgeport Company, at a point where the wires of the two companies joined, the electricity used by the latter company in lighting the streets of Bridgeport. A wire of the Bridgeport Company which carried the electric current along a street in Bridgeport was grounded, and one who came in contact with it was killed by the current. It was held that the Wheeling Company was not liable in the action for the death of such person; the reason therefor being that when the Wheeling Company delivered the electricity to the Bridgeport Company, its responsibility ceased because it had no ownership, management or control of any of the wires or appliances of the Bridgeport Company.\\nThis is clearly the actual and legal situation here, as is stated in the case of Commonwealth v. Staunton Telephone Co., 134 Va. 291, 114 S. E. 600, where this is said: \\\"In addition it was customary for many years for farmers located in Augusta county to build their lines and install their own telephones, and to have their private lines connected with the lines of the city company at the corporate limits of the city. The city company had no responsibility with reference to the maintenance of these lines outside of the corporate limits of the city.\\\"\\nThese cases illustrate and enforce the same rule: Perry v. Ohio Valley, etc., Co., 70 W. Va. 697, 74 S. E. 993; Pressley v. Bloomington, etc., Co., 271 Ill. 622, 111 N. E. 511; Sullivan v. New York Tel. Co., 157 App. Div. 642, 142 N. Y. Supp. 735; Scott v. Rome, etc., Co., 22 Ga. App. 474, 96 S. E. 569; Minneapolis Gen. Elec. Co. v. Cronon, 166 Fed. 651, 92 C. C. A. 345, 20 L. R. A. (N. S.) 816; Hoffman v. Leavenworth, Light, etc., Co., 91 Kan. 450, 138 Pac. 632, 50 L. R. A. (N. S.) 574; San Antonio Gas, etc., Co. v. Ocon, 105 Tex. 139, 146 S. W. 162, 39 L. R. A. (N. S.) 1046; 9 R. C. L. 1204, sec. 15.\\nIf we were to adopt the plaintiff's view and hold that the defendant company could be held responsible for negligence which in this instance occurred in Mr. Bush's lane, as his wires connected with the Central Point farmers' line over which the defendant has no supervision or control whatever, then to be consistent we would be driven also to hold that the owners of the Central Point farmers' line and its connections could be held, jointly or severally, liable for negligence of the defendant company occurring on its lines within the town of Waynesboro, in which they have no interest and over which they have no control. A defendant is responsible for his own negligence and for that of his agents and associates over whom he has control, but he cannot be held responsible for the negligence of another of which he is ignorant and which he has no power to foresee or prevent.\\nOur conclusion, therefore, accords with that of the trial court judge, Hon. Henry W. Holt, who has thus expressed his views:\\n\\\"This is an action by motion to recover damages for personal injury suffered by the plaintiff in 1921. She was a phone holder of the defendant company which operated in the town of Waynesboro. On said date she called a Mrs. Bush over the phone, who lived in Augusta county near Waynesboro, and who was herself a phone holder on a county line that ran into the plaintiff's (defendant's) switchboard or exchange. On page 13 of plaintiff's deposition is her account of the manner in which the accident occurred:\\n\\\" 'A. Well, I stepped to the phone, it was in my back hall, I was in the dining room and I stepped out into the back hall, where our phone is, and I called up Mrs. Howard Bush to ask if she was coming in that night, she had said several days before that she was coming and I stepped to the telephone and I said: \\\"Central, please give me 9 F 14 \\u2014 Mrs. Howard Bush,\\\" and I heard a click, just as you always hear it when your party takes her phone down, and I said: \\\"Hello, is that you?\\\" and she said: \\\"Yes,\\\" and just as I asked her if she was coming in that night there was a terrible roar, rumbling and jangling. I thought it had ruptured my ear, it was so painful, and I threw the receiver from me, and my sister who was standing there, caught me, or I would have fallen to the floor, and my ear hurt me so that I couldn't speak for fifteen minutes. It was a terrible report, I just felt as if something dreadful had occurred, I never felt anything like that before in my life.\\n\\\"'Q. It was a terrible roar?\\n\\\"'A. Just like a lot of chains and bells jangling; it made the most awful fuss and roar, just like machinery-crushing up, and I suffered from it intensely for several days. I don't suppose I would have suffered as much, if I had a perfect ear, but my hearing in this ear, the other one, had been impaired for a long while, and of course I pressed the receiver closer to my ear, I always do, in order to hear distinctly, and when this crash came, it was the worst experience I ever had in my life, and I suffered intensely several days from it.'\\n\\\"At page 34, she again described what occurred: 'I never heard anything like that before in my life. Of course you often hear noises on the phone when others ring off, but nothing in the world like this. I never heard such a crash and roar as this in all my life. I was simply dazed from it, and fell back from the phone.'\\n\\\"Dr. H. S. Hedges, a distinguished specialist, was called to testify on behalf of the plaintiff. He stated that he did examine her ear and that it was injured and that the injury probably occurred as she stated it had occurred, but that it was not possible to say if it was due to the roar and crash testified to or to a more direct electric current. It will be noted that the plaintiff attributes it to the roar and crash and no one has a better ease than the ease which she herself states. But in any respect, we have injury which may have been occasioned by one of two causes and we have a case in which there is no evidence to show that it was occasioned by an electric current as distinguished from the intermediate electrical phenomenon to which the roar and crash must be attributed, and it is always necessary before a recovery that the plaintiff place his hand upon some cause which occasioned the injury\\u2014 not upon two or more . causes which may have occasioned, for one of which the defendant is liable and for the other not.\\n\\\"These county lines go to the corporate limits. They are there taken over by the defendant and carried to its own switchboard. The evidence is that in doing this every device known to science is adopted for the protection of phone holders and the evidence further is that while it is possible to make phone users safe from direct electric currents, it is not possible in the present state of the art to prevent noises of the character of that complained of, just as it is not now possible to avoid 'static' in radio messages. Why in this particular instance it was unusual there is nothing to show. The probabilities are that the accident was due in a large measure to the fact that the plaintiff, because of her partial deafness, had the receiver pressed close against her ear.\\n\\\"The plaintiff's theory is that the cause from which the trouble came was the placing of a high power electrical line on the same poles that carried the Bush county telephone line and that by induction or direct contact the telephone wire took up power from the power line. The telephone line had been in operation about fifteen years. Long after it was installed the power wire was attached to the telephone poles. This was done without either the knowledge or consent of the defendant, and the defendant did not know that this had been done until after plaintiff's accident. These town and city switchboards are compelled to give connection to county lines. On the other hand they are given no control over them and when the connection in this case was made an actual inspection would have disclosed nothing, for the power line had not then been attached. It may well be that the tele phone company, when it brought into its switchboard a eounty line, could refuse the connection and is liable if it knew or even ought to have known, of any dangerous condition, but it cannot be that the city phone companies are liable for dangerous conditions which afterwards arise in the county without their knowledge, conditions for which they are not responsible or that they are charged with the duty of continuous inspection.\\n\\\"This, then, is the situation. The accident may have been occasioned by noise, * Tills noise appears to have been due to conditions on a county connecting line, which conditions did not obtain when that line was connected and which attached afterwards without the consent of the defendant and without its knowledge, and this status obtained up to the time of the accident; the defendant had installed all proper devices to prevent injury by direct electric shock, while it is not'possible to install any device that would eliminate noise or prevent such unusual accident as that set up here.\\n\\\"The demurrer to the evidence must be sustained.\\\"\\nAffirmed.\"}"
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+"{\"id\": \"1862514\", \"name\": \"J. R. Cover, etc. v. John Critcher\", \"name_abbreviation\": \"Cover v. Critcher\", \"decision_date\": \"1925-11-12\", \"docket_number\": \"\", \"first_page\": \"357\", \"last_page\": \"366\", \"citations\": \"143 Va. 357\", \"volume\": \"143\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:15:43.665231+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. R. Cover, etc. v. John Critcher.\", \"head_matter\": \"Richmond.\\nJ. R. Cover, etc. v. John Critcher.\\nNovember 12, 1925.\\nThe opinion states the case.\\nJohn T. Harris and Jos. A. Glasgow, for the plaintiff in error.\\nJohn Critcher and Hugh A. White, for the defendant in error.\", \"word_count\": \"2387\", \"char_count\": \"13501\", \"text\": \"Chichester, J.,\\ndelivered the opinion of the court.\\nThis is an action for damages by J. R. Cover, who sues for the benefit of A. B. Cover, liquidating partner of J. R. Cover, H. L. Cover, A. B. Cover, R. L. Cover and E. R. Cover, partners trading as J. R. Cover & Sons, against John Critcher, in which the jury found a verdict in favor of the plaintiffs for $10,000, which the trial court set aside on the ground that the matters at issue in the action had been theretofore adjudicated and decided against the plaintiffs in a chancery suit in the Circuit Court of Bath county, and that the issue in the instant action was therefore res adjud\\u00edcala. After setting aside the verdict, the trial court entered judgment for the defendant, Critcher.\\nThere were various pleas filed by the defendant, but for the purposes of this opinion it is only necessary to mention two of them:\\n1. Pleas of the statute of limitation, covering the one, three and five year periods;\\n2. A plea of res adjud\\u00edcala.\\nThe history of the controversy involved in litigation here is somewhat complicated and extends over a considerable period of time. By reason of the view we take of the case, it is not necessary to go into any very extended recital of the facts.\\nThe plaintiffs (the Covers) in 1917, and before that year, were engaged in the operation of tanneries in Augusta and Rockbridge counties. At the solicitation of John Critcher (the defendant) plaintiffs and defendant entered into a contract whereby they were to purchase jointly a large tract of land consisting of some 3,000 acres, known as the Firmstone tract, in Bath county, Va., for $16,500.\\nBy the terms of the contract, the plaintiffs were to pay the whole of the purchase price and take title to themselves. They were to have all the chestnut oak bark and the extract wood, and twelve years time in which to remove it.\\nThe defendant, under the contract, was entitled to the lumber and minerals on the tract, and title to the land when he had paid to the plaintiffs one-half the purchase price of the land, $8,250, the plaintiffs retaining title until this amount was paid in full. There were provisions for default in payment on the part of the defendant.\\nThe defendant bound himself to \\\"attend to all matters pertaining to obtaining a right of way or rights of way from said tract of land out to the railroad, free of cost to the party of the second part, that is, he is to pay the purchase price for said right of way or rights of way and the legal expense attached to obtaining them, but the cost of the construction of any road or roads from said property is to be borne equally by the party of the first part and the party of the second part.\\\"\\nThe Firmstone tract of land did not lie adjacent to the railroad, and plaintiffs contended that defendant represented to them that he owned, or had secured, rights of way across the lands between the Firmstone tract and the railroad to the railroad. Whether or not this was true, it transpired that defendant did not own the rights of way, and failed to secure them.\\nA temporary arrangement was made with the adjacent landowner for the moving across his land of bark and extract wood to the railroad, but a legal controversy arose between John A. Bloyd and the parties plaintiff and defendant, and between the parties to the contract, over the alleged verbal representations by defendant in regard to the right of way, which resulted, first, in the filing on April 8, 1918, in the Circuit Court of Bath county, of a bill in chancery by J ohn A. Bloyd, the owner of the land between the Firmstone tract and the railroad, against plaintiffs, denying that the owners of the Firmstone tract had any right of way over his lands and praying for an injunction. The plaintiffs filed their answer which they asked to be treated as a cross-bill as to the defendant, John Critcher, in which they charged Critcher with procuring the contract with plaintiffs for the purchase of the Firmstone tract of land by fraudulent representations as to rights of way, and praying for a rescission of the contract of March 14, 1917.\\nCritcher answered the cross-bill and denied the charge of fraud and deceit and relied upon his obligations in reference to the rights of way as set out in the written contract, as quoted heretofore. He further alleged that he was prevented from securing the rights of way as he agreed in his contract by Cover, the plaintiff, and Bloyd.\\nThe Circuit Court of Bath county, after depositions had been taken, perpetually enjoined Cover and Criteher from passing over the Bloyd land, and later, on September 21, 1920, dismissed the cross-bill filed by Cover against Critcher, filing a written opinion, in which the court stated that the plaintiff had failed to prove the charges of fraud and misrepresentations against defendant. The decree, however, dismissed the cross-bill because of laches on plaintiffs' part, but \\\"without prejudice to the said Cover to institute such other and further proceedings as he may be advised.\\\"\\n2. Nearly three years after the entry of this decree, to-wit, on August 7, 1923, Cover instituted his action (the case under review) by notice of motion for judgment against Critcher alleging damages in the sum of $51,000. The bases for damages in this action were identical with the grounds assigned in the cross-bill for the rescission of the contract. In the notice Cover alleges: \\\"You (Critcher) informed the undersigned and falsely and fraudulently represented to him that you had secured and owned a right of way or rights of way over the Randolph tract of land from the Firm-stone land to the railroad. You so positively made this false and fraudulent representation to the undersigned that the undersigned, after consideration, agreed to join with you in the purchase of said Firmstone tract of land, and on the 14th day of March, 1917, entered into a written contract with you in the following words and figures.\\\"\\nThe contract of March 14, 1917, is then set out in full in the notice of motion. As a result of the alleged misrepresentation as to rights of way by the defendant, plaintiff claims that he was induced to purchase the Firmstone tract; that by reason thereof he lost 3,800 cords of chestnut oak bark, 10,000 cords of chestnut wood, and was put to the expense of instituting proceedings to rescind the contract and enforce his lien.\\nAs heretofore stated, after the jury had returned a verdict for the plaintiffs for $10,000, the court set it aside and (holding that the matters at issue in the instant action had been adjudicated in the suit for rescission of the contract) entered judgment for the defendant.\\nWhether the trial court was right in its' conclusion it is not necessary, in our opinion, to decide, and we express no opinion as to its action, because clearly, we think, the one year statute of limitation applies in a case such as we have under review.\\nIt is conceded by plaintiff's counsel that if the one year limitation applies the present action was instituted too late, but counsel does contend that while defendant took exception to the action of the trial court in excluding the plea of the statute of limitation for the one year period, and tendered to, and had the judge sign, a bill of exceptions making the plea and the court's action thereon a part of the record in the case, yet this court cannot consider the question because no cross-error has been assigned by petition in this court. There is no merit in this contention. The statute of limitations was properly pleaded; the effect of the trial court's action was to reject the plea; and the exception to the.court's action and the bill of exceptions duly signed by the judge bring into the record and before this court for consideration the question of the applicability of the statute to the case and the correctness of the trial court's action thereon.\\nThe question of the applicability of the statute to the case at bar involves a consideration of sections 5818 and 5385 of the Code of 1919.\\nSection 5818 declares: \\\"Every personal action, for which no limitation is otherwise prescribed, shall be brought within five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that in case a party die it can be brought by or against his representative; and, if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued.\\\"\\nIf the action we are here considering is one involving a matter of such a nature that, in case of the death of a party, the right of action would survive to his personal representative, then the five year period of limitation applies; if it is not of such a nature, then the one year period applies.\\nThe answer to this question is found in section 5385 of the Code, which declares: \\\"An action of trespass, or trespass on the case, may be maintained by or against a personal representative for the taking or carrying away any goods, or for the waste or destruction of, or damage to, any estate of or by his decedent.\\\"\\nThe answer, however, is not sufficiently clear to avoid the necessity for construction of this latter section.\\nThe statute declares that the right of action survives for the taking or carrying away of any goods, or for the waste or destruction of, or damage to, any estate of or by his decedent. It will be well to recall here that the instant case is one on which the'defendant is charged, through fraud and misrepresentation, with inducing the plaintiff to enter into a contract for the purchase jointly with defendant of a large tract of land, and that the alleged damages suffered by plaintiff resulted from these misrepresentations which resulted in the loss of the use of his property, 3,800 cords of bark, etc.\\nThe case of Mumpower v. Bristol, 94 Va. 737, 27 S. E. 581, was an action of trespass on the ease for maliciously, and without probable cause, suing out an injunction and thereby causing the plaintiff to lose the use of his mill and the profits therefrom for nearly two years. The action was instituted two years after the commission of the alleged wrong. The statute of limitations (one year) was pleaded. The court, in passing upon the question raised by the plea, said: \\\"The wrongful act which the defendant is alleged to have committed and for the injury resulting from which the plaintiff sues, consisted in maliciously, and without probable cause, suing out an injunction against the plaintiff whereby the operation of his mill was suspended. It is quite obvious that this injunction did not operate to take away the goods of the plaintiff, or cause the waste or destruction of, or inflict any damage upon, the estate of the plaintiff. It is true that the language of the statute is comprehensive and embraces damages of every kind of degree to the estate, real or personal, to the person aggrieved, but the damage must be direct and not the consequential injury or loss to the estate which flows from a wrongful act directly affeeting the person only. No part of the defendant's property was taken or carried away, no part of it was wasted or destroyed; the plaintiff's nse of his property and not the property itself was affected by the act of which he complains. We are of the opinion that such a right of action did not survive, and that it is barred by the limitation of one year.\\\"\\nThis case is not distinguishable from the ease at bar. Here, as in the case quoted from, the alleged misrepresentation as to rights of way did not operate to take away the goods of the plaintiffs or cause Avaste or destruction of, or inflict any damage upon, the estate of the plaintiffs. The damage is not direct, but if there was any injury, it was the consequential injury or loss to the estate which flowed from a wrongful act directly affecting the person only. The plaintiff's use of the property and not the property itself was affected by the act of which he complains. The conduct of Critcher in failing to procure the rights of way, if proven to have been wilful, only prevented Cover from using his property and exercising the right which he claimed to have, and did not directly injure the property itself, just as in the Mumpower Case the alleged malicious conduct of the city of Bristol simply prevented Mumpower from using his property, and did not injure the property itself.\\nSee also Henshaw v. Miller, 17 Howard (U. S.) 212, 15 L. Ed. 222, in which the United States Supreme Court, construing this section of the Virginia Code,after holding that it does not cover torts generally, says: \\\"And much less can it be made to cover an indirect and consequential injury to the welfare or property of decedent resulting from fraud practiced upon him.\\\"\\nThe statute has been added to since the decision in the Henshaw v. Miller Case, but the addition does not affect the holding so far as the instant case is concerned. See 3 Rob. New Pr., p. 292, et seq. See also Read v. Hatch, 19 Pick. (Mass.) 47; Lee v. Hill, 87 Va. 497, 12 S. E. 1052, 24 Am. St. Rep. 666.\\nFor the foregoing reasons we are of opinion that the plea of the statute of limitations should have been sustained and the action dismissed.\\nThe effect of this holding is to affirm the judgment of the trial court.\\nAffirmed.\"}"
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+"{\"id\": \"1868943\", \"name\": \"Morris v. Deane & Others\", \"name_abbreviation\": \"Morris v. Deane\", \"decision_date\": \"1897-04-15\", \"docket_number\": \"\", \"first_page\": \"572\", \"last_page\": \"574\", \"citations\": \"94 Va. 572\", \"volume\": \"94\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T19:02:30.189668+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Morris v. Deane & Others.\", \"head_matter\": \"Richmond\\nMorris v. Deane & Others.\\nApril 15, 1897.\\n1. Appellate Proceedings \\u2014 Error to the county court \\u2014 Bill of exceptions.\\u2014 Where a case is taken from a county court to a circuit court on a writ of error, it is unnecessary to take any bill of exceptions to the action of the circuit court. As that court hears the case on the record, if there be error in its rulings, the record will disclose it.\\n2. Unlawful Detainer \\u2014 Declarations in the judgment as to title. \\u2014 The only matter in issue in an action of unlawful detainer being the right of possession, the declaration by the county court in its judgment that the defendant had the fee-simple title to the land cannot prejudice the rights of the parties in any proceeding involving the title.\\nError to a judgment of the Circuit Court of Greene county, rendered November 11, 1893, reversing the judgment of the County Court of said county, pronounced in an action of unlawful detainer wherein the defendants in error were the plaintiffs, and the plaintiff in error was the defendant.\\nReversed.\\nUpon the trial in the County Court all matters of law and fact were submitted to the court which rendered judgment for the defendant. To the opinion and judgment of the court the plaintiffs excepted, and spread all of the evidence on the record by a proper bill of exceptions for that purpose. A writ of error was thereupon sued out from the Circuit Court for Greene county, which heard the case on the record made in the County Court, and reversed the judgment of that court. To the judgment of the Circuit Court this writ of error was awarded.\\nJohn E. Roller, for the plaintiff in error.\\nBeverly T. Crump and R. S. Thomas, for the defendants in error.\", \"word_count\": \"615\", \"char_count\": \"3475\", \"text\": \"Harrison, J.,\\ndelivered the opinion of the court.\\nThis action of unlawful detainer was tried in the County Court, all matters of law and fact being submitted to the court for its judgment, and, on a regular bill of exceptions embodying the evidence, was taken by writ of error to the Circuit Court, and from that court brought by writ of error to this.\\nThe court is of opinion that the contention of the defendant in error, here, that the case should be dismissed because no exception was taken to the judgment of the Circuit Court is not tenable. There was no necessity for a bill of exceptions to the judgment of the Circuit Court. That court reviewed the judgment of the County Court on writ of error, and could look at nothing except the record of the County Court brought up on the writ, and if the Circuit Court erred in its judgment, the error appears by the record of that court without any bill of exceptions.\\nThe court is further of opinion that the plaintiffs in the County Court wholly failed to show that they were entitled to the possession of the land in controversy, and therefore that court did not err in giving judgment in favor of the defendant. The only matter in issue, however, was the right of possession, and therefore the declaration by the County Court in its judgment that the defendant held the fee-simple title, cannot prejudice the rights of the parties in any proceeding involving the title to said land.\\nThe court is further of opinion that the Circuit Court erred in reversing the judgment of the County Court, and in giving judgment for the plaintiffs.\\nFor the foregoing reasons, the judgment of the Circuit Court must be reversed and set aside, and this court will enter such judgment as said Circuit Court should have entered.\\nReversed.\"}"
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+"{\"id\": \"1879077\", \"name\": \"Blanton v. Richmond, F. & P. Railroad Co.; Richmond, F. & P. Railroad Co. v. Blanton\", \"name_abbreviation\": \"Blanton v. Richmond, F. & P. Railroad\", \"decision_date\": \"1890-02-20\", \"docket_number\": \"\", \"first_page\": \"618\", \"last_page\": \"624\", \"citations\": \"86 Va. 618\", \"volume\": \"86\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:49:59.698373+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Blanton v. Richmond, F. & P. Railroad Co. Richmond, F. & P. Railroad Co. v. Blanton.\", \"head_matter\": \"Richmond.\\nBlanton v. Richmond, F. & P. Railroad Co. Richmond, F. & P. Railroad Co. v. Blanton.\\nFebruary 20th, 1890.\\n1. Railroad companies\\u2014Lateral branches.\\u2014Where by its charter, power is given railroad company to construct branch or lateral roads, such power includes authority to construct a branch line running in the same general direction as the main line; and the fact that the new line will . connect the main line with another railroad, makes it none the less a branch road.\\n2. Idem\\u2014Time of completion\\u2014Case at bar.\\u2014Section 34, charter R, F. & P. R. R. Co., requiring work thereby required of said company to be finished in ten years, refers to building the main track, for doing which within that period the company is promised, by sec. 38, immunity from competition for thirty years.\\n3. Idem \\u2014Section 1098, Code 1887, to promote railroad connections in cities, etc., is not applicable to the case at bar.\\nAppeal from decree and error to judgment of circuit court of Henrico county rendered Hovember 11 and 22,1889, respectively, in two cases, in the first whereof T. L. Blanton (the appellant here) was complainant, and the Richmond, Fredericksburg & Potomac railroad company was defendant; and in the last the said company (plaintiff in error here) was plaintiff and said Blanton was defendant.\\nOpinion states the case.\\nW. C. Preston, Leake & Garter, W. W. Gordon, and Meredith & Cocke, for the railroad company.\\nPollard & Sands, Courtney & Patterson, Staples & Munford, and Bradley T. Johnson, for T. L. Blanton.\", \"word_count\": \"2143\", \"char_count\": \"12306\", \"text\": \"Hinton, J.,\\ndelivered the opinion of the court.\\nThe above-entitled cases were heard and may be considered together. The first-mentioned case is an appeal from an order which restrained the Richmond, Fredericksburg and Potomac railroad company from further proceedings to condemn the land of T. L. Blanton, opon the line of road proposed to be constructed by said company to connect its main line with the Richmond and Petersburg railroad company. The second case is a writ of error to the judgment of the circuit court of Henrico, reversing the judgment of the county court in tlm condemnation proceedings, and dismissing the same. The great question in both cases, is whether the company has the power under its charter to build this branch or connecting road; and to this question, although there are one or two subjects of minor importance to be also considered, we will at once address ourselves.\\nThe seventh section of this charter, omitting the first proviso, reads as follows: \\\"The president and directors of the\\\" said company shall be, and they are hereby, invested with all the rights and powers necessary for the construction, repair, and maintaining of a railroad, to be located as aforesaid, with as many sets of tracks as they, or a majority of them, may deem necessary, and may cause to be made; and also to make and construct all works whatsoever which may be necessary and expedient in order to the proper completion of the said railroad; and they, or a majority of them, may make, or cause to be made, branches or lateral railroads, in any direction whatsoever, in connection with the said railroad, not exceeding ten. miles each in length; and shall have, possess, and may exercise, in the construction, use, and repair of the same, the same rights and powers, and shall be entitled, on the completion of any branch or lateral railroad, to the same rights} privileges, and immunities, and be subject to the same pains, penalties, and obligations in relation to the same, as are hereby prescribed in relation to their principal line of railroad; and provided, moreover, that no branch or lateral railroad exceeding two miles in length shall be commenced until the expediency of making the same shall have been determined on at a general meeting of the stockholders, by two-thirds of the votes which could be legally given in favor of the same.\\\" Then follow ample provisions for the condemnation and acquisition of all laud that may be needed for the main road and its branches.\\nISTow, here, it must be conceded, is as broad and unrestricted a grant of power to build branch or lateral railroads as could well have been devised, for the language is not merely that the company may build \\\"several branches\\\" or \\\"several branches in different directions,\\\" but the language is that the president and directors, or a majority of them, may make, or cause to be made, \\\"branches or lateral railroads\\\" (that is, an indefinite number of branch or lateral roads) in \\\" any \\\" (that is, in every) '\\\" direction whatsoever,\\\" thus placing it entirely within the 'power of the president and directors, where the branch or lateral roads are not more than two miles in length, and where the roads are of greater length within the power of the president and board of directors and two-thirds of the legal voters at any general meeting of stockholders, to say how many and in what directions branch or lateral roads shall be run. The only inquiry which would seem to be left open, then, is whether the contemplated road falls fairly within the designation of a branch or lateral railroad, or is excluded from this category by reason of the fact that it connects with another road. What is a lateral or branch road? The word \\\"lateral,\\\" \\u2022according to Webster, means, \\\"proceeding from the side; as, the lateral branches of a tree; lateral shoots; \\\" and this, we take it, is the sense in which this word is to be understood when we speak of branch or lateral railroads. A lateral railroad is nothing more nor less than an offshoot from the main line or stem. And this is the meaning attributed to it by the supreme court of Pennsylvania in the case of McAboy's Appeal, 107 Pa. St., 558. And, indeed, some of the cases go further, and hold that under the branching power, a branch road may be constructed from the terminus as well as from any other point on the main line of the road. Western Pa. R. R. Co.'s Appeal, 99 Pa. St., 162; Mayor v. Railroad Co., 48 Pa. St., 358; Howard Co. v. Bank, 108 U. S., 314. In this last cited case the supreme court of the United States says: \\\" The argument is that the main road of the company was established on a line south of the Pacific railroad; that Howard county could not, by subscription, aid in construction of the main line, and could not, by subscription, aid in the construction of a road from the junction of the main line northeasterly through that county, because such road would not be a branch road, but only an unauthorized extension of the main line. We are of opinion that the road constructed through Howard county was, within the meaning of the statute, a branch of the original or main line.\\\" This, however, is going much further than it is necessary for us to go in this case, and we shall therefore refrain'' from any expression of opinion upon the point. It seems to us, however, perfectly clear that we should hold, in accordance with the unbroken current of decision, as well as upon principle, that the mere fact that the contemplated road runs in the same general direction with the main track will not deprive it of the character of a branch or lateral road. A. & P. Railroad, Co. v. St. Louis, 66 Mo., 255; Volmer's Appeal, 115 Pa. St., 166; 1 Wood, Ry. Law, 544.\\nBut does the fact that the Richmond, Fredericksburg & Potomac railroad company was intended to be connected with the Richmond & Petersburg railroad by means of that branch, deprive it of its character as a branch road, and deprive the company of the right to construct it? It is earnestly insisted for Blanton that it does, and for two reasons\\u2014/\\u00edVs\\u00bf, because it will 'operate to change the southern terminus of the Richmond, Fredericksburg & Potomac railroad company from Richmond, where it is fixed by the charterand, second, because the company had no power under section 1098 of the Code of 1887 to build the proposed branch until it had been refused permission by the city of Richmond to pass through its limits for the purpose. But both of these views are based upon patent misconceptions, one of fact and the other of law. The company has no purpose of changing its terminus at Richmond. Indeed, the charter requires that one of the termini of the road shall be at Richmond, and it could not, therefore, change it if it would. But in point of fact, as the record shows, this is not its object. It simply proposes to build this branch for the purpose of carrying through business outside of the limits of the city, leaving the passengers and freight destined for Richmond to be delivered there. The supposition that section 1098 of the Code of 1887 has anything to do with this case is equally fallacious. The object of that- section, as the title to the original act (see Acts 1855-'56,p. 82, ch. 98) says in so many words, \\\" was to promote railroad connections in cities and in incorporated towns,\\\" and to give to railroad companies the right to connect outside of the limits of the city or town where they were refused the power to connect within such towns or cities. It was never designed to deprive these companies of any power to connect they might derive from their charters. Upon what principle, then, can we hold that because of the mere circumstance that this branch road connects those two railroads that it ceases to be a branch or lateral road, and is not authorized by the charter? We know of none. It may be that this light to make of a branch road a connecting link between two roads may have been one of the unforeseen results of the grant of power. But, as it does not change the termiuus, serves as a feeder to the main stem, assists the company to develop the country through which it passes, and tends to promote the public convenience both as to trade and travel, it cannot be regarded as obnoxious to any of the objections that have been urged against it. Mayor v. Pa. Railroad Co., 48 Pa. St., 355, and other eases cited supra.\\nBut, while it has heen deemed more satisfactory to discuss this question somewhat on principle, yet we hardly think that it can be regarded as an open question in this state; for in the case of Baltimore & Ohio Railroad Co. v. City of Wheeling, 13 Gratt., 42, decided as far back as 1856, this court settled the principles involved in such a question, and held, in express terms, that the Baltimore & Ohio railroad company had, under the power to build branch or lateral roads, the right to build a branch from Benwood, a point three or more miles from Wheeling, to connect with the Central Ohio road. That case must be regarded as decisive of this. The power to build roads like the one in question, being given in plain and unambiguous words, cannot be emasculated by this court by construction, merely because the framers of the law may not have contemplated that such a branch or lateral road might be made to connect the road of which it is an offshoot with some other road. But it is said that, conceding all this to be true, yet that the right granted by the seventh section of the company's charter to build branch lines is limited by the thirty-fourth section of that charter, which requires \\\"the works hereby required of the Richmond, Fredericksburg & Potomac railroad company\\\" should be \\\" finished within ten years.\\\" This, however, proceeds upon a misapprehension of the meaning of the words \\\"work required\\\" of the company. Manifestly, the works which were required of this company were the building and equipping of the main stem or track from Richmond to Fredericksburg, as may be seen from a glance at the thirty-eighth section of the charter, by which section the company is promised immunity from competition for thirty years, in the event of the completion of the said railroad from' the city of Richmond to the town of Fredericksburg within the time limited by this act. The right to build these branch or lateral roads was necessarily and properly left optional with the company, to be exercised as and when the exigencies rendering them necessary should arise. These views are decisive of these cases. It follows that the order of the circuit court in the second of the above-styled cases must be reversed, and the order of the county court be affirmed, and that the order of the circuit court in the first case must he affirmed.\\nReversed in part and aeeirmed in part.\"}"
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+"{\"id\": \"1879113\", \"name\": \"Western Union Telegraph Co. v. Williams\", \"name_abbreviation\": \"Western Union Telegraph Co. v. Williams\", \"decision_date\": \"1890-03-27\", \"docket_number\": \"\", \"first_page\": \"696\", \"last_page\": \"720\", \"citations\": \"86 Va. 696\", \"volume\": \"86\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:49:59.698373+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Western Union Telegraph Co. v. Williams.\", \"head_matter\": \"Richmond.\\nWestern Union Telegraph Co. v. Williams.\\nMarch 27th, 1890.\\n1. Constitution\\u2014Hlghvags\\u2014Telegraphs.\\u2014Condemnation of land for public highway gives only right of passage over it. The absolute property in the land remains in owner. Erection of telegraph poles and wires constitutes an additional servitude on the land. Act February 10,1880 (Code, secs. \\u00cd287-1290), authorizing construction of telegraph lines along any public road, if the use of the highway be not obstructed, without providing any compensation to the land owners, violates the constitutional intention when taking private property for public use without compensation.\\n2. Corporation\\u2014Xon-resident\\u2014Process.\\u2014There is no error in serving prey cess against a non-resident corporation on an agent thereof resident in the county wherein suit is brought.\\nError to judgment of circuit court of UewKont county, rendered October 30, 1888, in an action of trespass on the case wherein James U. Williams was plaintiff, and the plaintiff in error, the Western Union Telegraph company, ivas defendant.\\nOpinion states the case.\\nStaples & Manford and Robert Stiles, for the plaintiff in error.\\nPollard & Sands, R. T. Lacy, and W W. Gordon, for the defendant in error.\", \"word_count\": \"8819\", \"char_count\": \"49931\", \"text\": \"Lacy, J.,\\ndelivered the opinion of the eonrt.\\nThis is a writ of error to a judgment of the circuit court of New Kent county,' rendered on the 30th day of October, 1888. The plaintiff in error constructed its telegraph line upon the county road in New Kent county, where the said road ran over the lands of the defendant in error without his consent and without condemnation proceedings, and without tendering compensation, and refusing' to pay compensation therefor. As is alleged in the declaration \\\" against the will, of the plaintiff, .and violently against the protest of the plaintiff, entered upon the said lands and cut down and destroyed the trees and under-wood\\u2014fifty pine trees, twenty oak trees, and other trees of the value of $1,950 - and broke down and prostrated a great part of the fences of the said plaintiff, and dug holes in the land of the plaintiff, and put posts there and kept the same there, &c., and encumbered the lands and hindered the plaintiff in the free use and enjoyment thereof.\\\" The defendant pleaded not guilty, and moved the court to remove the case to the, federal court, which motion to remove the. case the court overruled, and the case proceeded to a trial; and upon the trial the jury rendered a verdict in favor of the plaintiff for the sum of $550, upon which judgment was rendered, accordingly. Whereupon the defendant, the plaintiff in error here, applied for and obtained a writ of error to this court.\\nThere were sundry exceptions taken at the'trial, which were assigned as error here. The first assignment which we will consider, is as to the refusal of the court to give to the jury certain instructions asked by the defendant, and the giving by the court of certain other instructions. The plaintiff\\\" moved the. court to instruct the jury to the following effect: That \\\"if the jury believe from the evidence that the defendant was at the time of the committing of the alleged trespass, in the declaration mentioned, and still is a telegraph company chartered by this or any other state, and that the road along which it has constructed, and maintained, and still is maintaining its telegraph line in the county of New Kent, was at said time and still is a county road, then the said defendant had, at said time, and still has the right to construct and maintain its said line along said county road, upon any part thereof, to the width or extent of thirty feet (whether the road-bed actually used by the public was and is of such width or not), provided the ordinary use of said road be uot thereby obstructed, and said defendant had at said time, and still has, the right to cut down and trim out such trees or limbs within such width or extent of thirty feet as might interfere with the proper and effective construction, maintenance, and operation of its said line. (2) Tor the exercise of such right as aforesaid the defendant is not required to obtain permission from, or to make compensation to, the owner or owners of the land upon which said road is located (whether the fee-simple title to the soil upon which the road is located, or the mere easement thereon, be vested in the public). (8) The jury are further instructed that, although the road-bed of sajd road actually used by the public may not he or have been of the width of thirty feet, and although the overseer of said road may not have compiled with the law, in keeping said road clear and smooth and free from obstructions to the legally required width of thirty feet) yet, under the laws and statutes of the commonwealth, the defendant eompany was authorized to use any part of said legal road of thirty feet to the same extent as if said overseer had strictly complied with the provisions of law requiring him to keep said road clear of timber and other obstructions to the required width, and the whole thirty feet been actually used by the public as a road.\\\"\\nBut the court refused to give these instructions of the defendant, and gave the following: (1) The court instructs the jury that the law presumes that the ownership of lands along-the side of a public road in Virginia extends to the middle of said road, and the burthen of proof is upon the party who claims otherwise to show that such is not the case along the road when the right is controverted, and the owner has the exclusive right to the soil, subject to its use for the purposes of the public, and to the right of passage of the public over the same, and being owners of the soil they have a right to all of the ordinary remedies for disturbing of, or injury to their freehold or possession, and any act of the legislature which divests such owners of their rights is unconstitutional and void. (2) The fact that a road is a public road, or highway, does not authorize the digging of holes for the purpose of erecting telegraph posts, and the erecting of posts, and the establishing a telegraph line over the land of a person without his consent, although the same may be erected or done on that part of his premises which is used as a public road.\\\" Tt thus appears that the claim of the defendant is that by reason of the act of assembly of February 10th, 1880 (Acts 1879-80, p. 53-54), it was authorized to construct its telegraph poles and lines along the lands over which the county road runs without making compensation therefor, and that it maintains its right to exercise as-to these lands the right of eminent domain therein, take and enjoy what belongs to another, in the exercise of the sovereign power, not only without making any compensation therefor, but without any formal proceedings looking to condemnation of this property under any of the forms of law whatever.\\nIf it is once conceded, or anywise established, that the land in question belonged to the plaintiff, it was his private property, his freehold, as entirely his own throughout all its parts, as the shelter which he had erected, around and over his hearthstone for his habitation and home, and as entirely under the protection of the laws, against, the intrusion as the very hearthstone itself. That these lands are the lands of the plaintiff unless he has lost them by the creation of a public road across them, is undeniable, is indeed not denied. Does the creation of a public road through the lands, divest, him of the fee in the same ?\\nAs to the extent, of the right acquired by the public upon opening a highway in Virginia, Mr. Minor in his Institutes. (vol. 1, p. 120,) says : \\\" The public acquires merely a right of passage, the freehold, and all the profits of the soil', (that is trees, mines, &e.,) belong still to the proprietor from whom the right of passage was acquired, he may therefore recover the freehold in ejectment subject, to the right of way, and may maintain an action of trespass for digging the ground. If it be unknowu from which of two adjacent proprietors a'highway was at first taken, or if the highway' be the boundary between them, they are understood to own, each ad medium filian viee.\\\" Citing Bac. Abr. Highways, (b); Bolling v. Mayor of Petersburg, &c., 3 Rand., 563; Home v. Richards, 4th Call, 441; Harris v. Elliott, 10th Pet., 25. And this subject is again referred to by Mr. Minor in his second volume, p. 20, as to the ownership of land adjacent, to highways, when he says: \\\" The ownership usually extends to the middle of the road, as in the case of a private stream; or, if the same party owns on both sides, the whole road belongs to him, subject to the public easement of the right of passage in either case.\\\" Citing 3 Kent, Comm., 432. In the case of Home v. Richards, supra, all the judges delivered opinions, and all held that the grant of a right of -way does not convey the soil, but only the right to. a way over. In the case of Bolling v. Mayor of Petersburg, supra, a case fully and ably argued in this court by the foremost lawyers of that day, Judge Carr delivered the unanimous opinion of the court. Speaking as to the public highway, he. said: \\\" Does this disable the demandant from recovering the land? It certainty would not, in England, as mauy cases shown\\\" Citing Lade v. Shepherd, 2 Strange, 1004. In that case the defendant rested one end of a bridge upon the highway. Upon trespass brought, the court, said: \\\" It is certainty a dedication to the public, so far as the public has occasion for it, which is only for a right of passage; but it. never was understood to transfer the absolute property in the soil.\\\" In Goodtitle v. Alker, 1 Burr, 143, in ejectment, a special verdict finding that the land was a public street, and public highway, Lord Mansfield says: 1 Kollo, Abr., 392, is express, that the king has nothing hut the passage for himself and his people, but the freehold, and all the profits, belong to the owner of thej; soil. So do all the trees upon it, and mines under it. Thejowner may get his soil discharged of this servitude or ease-' ment of a way over it. by a writ of ad quod damnum. It. is like the property in a market or fair. There is no reason why he should not have a right to all remedies for the freehold, subject still, indeed, to the servitude or easement. An action of trespass would lie for an injury done to it. I see no reason why the owner may not bring ejectment as well as trespass.\\\" 1 Wills., 107 ; 6 East, 154. But it is said that in this country we act- on a more liberal scale; that the court will look to the great principles of public policy, and give them effect; that the conveniences of the community requiring highways, they must be had; and, as a mere right- of way is not. sufficient for the full enjoyment of them, we must consider the commonwealth as vested with a base fee in all public highways.\\nOur business is with the law as it is; and where the power to be exercised is one of so important a character as the taking away the property of the citizen, divesting him of his eminent domain in the soil, I could not consent to take the step unless I saw myself justified by some clear principle of the common law or some plain enactment- of the statute. The English cases are pretty strong evidence that the common law confers no such power. I have looked into our statutes, and I can find nothing there to countenance the idea that where a road is established, the fee in the soil, either simple or base, is vested in the commonwealth. On the contrary, I think it is obvious that a right of way is all that the public requires, leaving the whole fee in the owner of the soil. It is for this use of the! land by the commonwealth that the owner is compensated-! There can be no question as to what the law is in this state, it is well .settled. In Warwick v. Mayo, 15 Gratt., 528, Judge Allen delivered the unanimous opinion of this court to the same effect. Speaking of a highway, he says, \\\" The easement comprehends no interest in the soil,\\\" and cites Judge Swift'as saying, in Peck v. Smith, 1 Conn. R., 103 : \\\"The right of freehold is not touched by establishing a highway, but continues in the original owner of the land in the same manner as it was before the highway was established, subject to the easement.\\\" He says, further : \\\"Notwithstanding the easement, the owner retains many and valuable interests. He may make any use of it not in consistent with the enjoyment of the casement.\\\" Hare & Wallace's notes to Dovaston v. Payne, 2 Smith's Leading Cases, 90, where the authorities are collected. After speaking of the English rule and the decisions of some of the states, he says: \\\" In Virginia the rule has been established by an authoritative decision upon the very point in accordance with the doctrine of the English courts,\\\" and refers to Bolling v. Mayor of Petersburg, supra. If these principles are thus settled in Virginia, as they certainly are, they are equally as firmly imbedded in the jurisprudence of numerous other states of this country. These are collected and cited by Mr. Angel in his work on Highways, p. 396, see. 301, et seq. and notes. At page 398, sec. 303, this author says : \\\" The principles of the common law, in this respect, have been recognized and adopted by the American courts,\\\" citing Perley v. Chandler, 6 Mass., 454. Under these principles, the plaintiff was entitled to maintain trespass against the defendant, when the said defendant stopped upon his land, instead of passing along, and dug up his soil, and cut down his trees, and tore down and scattered his fence, unless such taking of his property was by due process of law for public uses, upon just compensation. If .the use for which the land was taken was a private use, it could not be lawfully taken without his consent. But the use may be conceded to be a public use, and yet to take without just compensation, was unlawful; such taking, without authority of law, was a trespass\\u2014and such taking could find no justification in any act of the general assembly. (Art. 5, sec. 14, Const. of Va.) It is claimed that the act of assembly, passed February 10, 1880, (Acts 1879-80,) authorized this company to so construct its works upon the land of the plaintiff. That act should receive a reasonable construction, and he so construed, if possible, as to avoid repugnance to the constitution. And while by that act these companies are authorized to construct their lines and fixtures along the county roads, provided the ordinary use of the road was not obstructed, it is not I expressly provided that this may he done without compensa- f tion; hut the provision is so as not to obstruct, the ordinary use. The commonwealth had and has in these roads nothing) hut the irse\\u2014to pass over aud along; and the act provides that/ this use shall not be obstructed by virtue of that act. But at the conclusion of this paragraph, constituting the last words in it, are these words, \\\"upon making just compensation therefor;\\\" and then follow the provisions of the law, which provide for the proceedings necessary to ascertain what is just, compensation by condemnation proceedings. This was certainly the provision of the act as to lands of persons generally, and if the laud upon which the highway runs is the private property of the citizen, which it clearly is, should not this language be held to apply to such land as well as to others? Why not? The commonwealth has no more power to grant the one than the other. To grant either is to take private property, and this can only he done upon just compensation. If this is the true construction of this act, the same is in accordance with the constitution of the state; and the plaintiff ivas entitled to maintain his suit against a corporation which ueither took lawfully nor paid a just, compensation. But if the act does provide for the taking of this private property without compensation, then it. is void for repugnancy to the constitution of the state, and the plaintiff was entitled to recover, and the instruction of the court was right.\\nHowever, it is claimed by the plaintiff in error that, granting that the rights of the plaintiff are ivhat we have stated, and the commonwealth has only the right to use by going over, \\\\|still his ease is good, because his works are only a use of the Ijeasement and constitutes no new taking\\u2014no additional servitude. We will now briefly consider this argument.\\nThe right in the commonwealth is to use by going along-over; this is the extent of the right. If the right was granted to the defendant to go over simply to carry its messages, then the right granted was in existence before the grant, and the-right to go over is not only not disputed, but distinctly admitted. This is the servitude over the land fixed upon it by law, and the whole extent of it. If anything more is taken it is an additional servitude, and is a taking of the property within the meaning of the constitution. To take the whole subject, the land in fee, is a taking. This, however, is the meaning of the term only in a limited sense, and in the narrowest sense of the word. The constitutional provision, which declares that property shall not be taken for public use without just compensation, was intended to establish this principle beyond legislative control, and it is not necessary that property should be absolutely taken, in the sense of completely taking, to bring a case within the protection of the constitution. As was said by a learned justice of the supreme court of the United States : \\\" It would be a curious and unsatisfactory result if in construing a provision of constitutional law, always understood to ' have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely; can inflict irreparable and permanent injury to any extent; can, in effect, subject it to- total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law instead of the government, and make it an authority for invasion of private rights under the pretext of the public good, which had no warrant in the law and practice of our ancestors.\\\" Justice Miller in Pumpelly v. Green Bay Company, 13 Wall., 166.\\nTt is obvious, and it is so held in many cases, that the con-, struction of a railroad upon a highway is an additional' servitude upon the land, for which the owner is entitled to additional compensation. Cooley's Constitutional Limitations, 548; Ford v. Chicago and Northwestern R. R. Co , 14 Wis., 616; Pomeroy v. Chicago & M. R. R. Co., 10 Wis., 640. And the \\u2022power of the legislature to authorize a railroad to be constructed on a common highway is denied, upon the ground that the original appropriation permitted the taking for the purposes of a common highway and no other. The principle is the same when the land is taken for any other purpose distinct from the original purpose, and the reasoning in the two cases is applicable to each. In the case of Imlay v. Union Branch R. R. Co., 26 Conn., 255, it is said: \\\" When land is condemned for a special purpose, on the score of public utility, the sequestration is limited to that particular use. Land taken for a highway is not thereby converted into a common. As the property is not taken, but the use only, the right of the public is limited to the use, the specific use, for which the proprietor has been divested of a complete dominion over his owii estate. These are propositions which are no longer open to discussion.\\\" Nicholson v. N. Y. & N. H. R. R. Co., 22 Conn., 85; South Carolina R. R. Co. v. Steiner, 44 Ga., 546. In the case of a telephone company the chancellor, in the case of Broome v. New York New Jersey Telephone Co. (5th Central Rep., 814), held that, in order to justify a telephone company in setting up poles in the highway it must show that it has acquired the right to do so, either by consent or condemnation from the owner of the soil, saying: \\\" The complainant seeks relief against an invasion of his proprietary right to his land. The defendant, a telephone company', without any leave or license from or consent by him, but, on the other hand, against his protest and remonstrance, and in disregard of his warning and express prohibition, and without condemnation or any steps to that end, set up its poles upon his land.\\\" What has been said is sufficient of itself to establish the right of the complainants to relief: for in order to justify the defendant in setting up the poles, it is necessary for it to show that it has acquired the right to do so, either by consent or condemnation from the owner of the soil. As to these rights of the owner of the soil see American and English Encyclopaedia of Law, vol. 9, title \\\"Highways,\\\" vii., sec. 2; Board of Trade Tel. Co. v. Barnett, 107 Ill., 508; Southwestern R. R. Co. v. Southern & A. Tel. Co., 46 Ga., 43; Western Union Tel. Co. v. Rich, 19 Kansas, 517; Willis v. Erie Tel. & Co., 34 N. W. Rep., 337.\\nIS That the erection of a telegraph line upon a highway is an I''additional servitude is clear from the authorities. That it is such is equally clear upon principle in the light of the Virginia cases cited above. If the right acquired by the commonwealth in the condemnation of a highway is only the right to pass along over the highway7 for the public, then, if the untaken parts of the land are his private property, to dig up the soil, is to dig up his soil; to cut down the trees, is to cut down his trees; to destroy the fences, is to destroy his fences; to erect any7 structure, to affix any pole or post in and upon his land, is to take possession of his land; and all these interfere with his free and unrestricted use of his property. If the commouV] wealth took this without just compensation it would be a s violation of the constitution. The commonwealth cannot constitutionally7 grant it to another.\\nIt is true that the use of the telegraph company is a public use; that company is a public corporation, as to which the public has rights which the law will enforce. But these pub- lie rights can only be obtained by paying for them. The use, while in one sense public, it is not for the public generally ; it is for the private profit of the corporation. It is its business enterprise, engaged in for gain. Its services can only be obtained upon their being paid for. There is no reason either1'; in law or common justice why it should not pay for what itp needs in the prosecution of its business. Upon this burden being placed upon it, it can complain of no hardship; it is the common lot of all. If the said company has use for the private property of a citizen of this commonwealth, and it is of advantage to it to have the same, it is illogical to argue that the property is of small value to the plaintiff, and in the aggregate a great matter to the plaintiff in error. This argument is not worth considering; it cuts at the very root of the rights of property. It would apply with equal force to all the transactions of life. It is sufficient to say the Eegis of the constitution is over this as over all other private property rights, and there is no power which can divest it without j ust compensation.\\nWe think the instructions of the circuit court were clearly right, and there is no error therein.\\nThere is no error iu the process in the case. It was made as provided by law against a non-resident corporation having no officer or agent resident in the county.\\nThere was no error in the refusal of the court to remove the case from Kew Kent county. Hot the slightest ground is shown for it. And it may be remarked that the plaintiff in error selected its forum when it thus unlawfully invaded the property rights of one of the citizens of that county.\\nAs to the contention concerning the summoning of the jury by the sheriff, because he was interested in the suit, there is ho error in that action of the court below : (1) Because the sheriff does not appear to be in any way interested in the suit, and (2) because the sheriff did not in fact select the jury. Upon ohjec tion made, the judge made out the list and gave it to the deputy sheriff to summon the required venire.\\nUpon the whole ease, we are of opinion that there is no error in the judgment appealed from, and the same must be affirmed.\"}"
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+"{\"id\": \"1879158\", \"name\": \"Johns v. Johns\", \"name_abbreviation\": \"Johns v. Johns\", \"decision_date\": \"1889-09-26\", \"docket_number\": \"\", \"first_page\": \"333\", \"last_page\": \"336\", \"citations\": \"86 Va. 333\", \"volume\": \"86\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:49:59.698373+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Johns v. Johns.\", \"head_matter\": \"Staunton.\\nJohns v. Johns.\\nSeptember 26th, 1889.\\nWills \\u2014Construction\\u2014Case at bar.\\u2014Testator gave all his funds to his wife during her natural life, for the benefit of herself -and her children, \\u201c to be used as she may think proper: held, wife takes only a life estate, remainder to her children free from her debts.\\nAppeal from decree of circuit court of Augusta county, rendered June 6, 1887, in tlie chancery cause under the style of A. J. Johns\\u2019 administrator, against Rebecca Johns\\u2019s administrator and others. The decree being that Mrs. Rebecca Johns took under the will of her deceased husband, William Johns, an estate for her life only in the funds bequeathed, and had a life estate in the land purchased by her to the extent said funds entered into the purchase thereof, and that so far said land was not liable for her debts, the administrator of A. J. Johns, deceased, one of her creditors, appealed.\\nOpinion states the case.\\nCraig & Curry, for the appellant.\\nT. C. Elder, and White & Gordon, for the appellees.\", \"word_count\": \"1119\", \"char_count\": \"6211\", \"text\": \"Rauntleroy, J.,\\ndelivered the opinion of the court.\\nThe facts of the case presented by this record are, that William Johns died at his home, in the county of Augusta, in the summer of 1848, leaving his will, dated May 8, 1848, which was admitted to probate in the county court of Augusta county at the August term, 1848. The said will is very short, and after providing for the payment of the funeral expenses and the just debts of the testator, provides: \\\"I will and desire that my wife, Rebecca, shall have and hold all nay estate during her natural life, for the benefit of herself and children, to be used as she may think proper.\\\" The testator left surviving him his wife, Rebecca, and eight children\\u2014two sons and six daughters\\u2014 all infants, and most of them of tender age. He owned no real estate, and his personal property at his death, consisted of a fund of $900, which, as tenant of rented land, he had managed by industry and frugality, to save and accumulate over and above the maintenance of his large family. It was .the aim and desire of his life to purchase a home for himself and family, but called away by death before having done so, he enjoined it upon his wife to accomplish his purpose with the means which he had provided therefor. On the 16th day of March, 1849, less than a year after the death of William Johns, there was conveyed to his widow, Rebecca Johns, by an absolute fee-simple deed, a tract of land containing one hundred acres, situate in Augusta county, for the price of $1,500, receipted for in full in the said deed from Jacob Perry and wife to the said Rebecca Johns.\\nThe controversy between the appellant and the appellee is, whether this land, either wholly or in part, belonged to Mrs. Rebecca Johns in fee simple or for her natural life only, with remainder to the heirs-at-law of William Johns in fee?\\nThere are two questions involved in this appeal\\u2014one of fact and one of law. The question of fact, whether the whole of the $1,500 purchase money paid by Mrs. Rebecca Johns for this land was of the personal estate left by her husband, or how much thereof was so derived, was referred to a master commissioner, who made elaborate inquiry, and reported, upon evidence certified in the record, that the $900 left by William Johns, and only that much of his estate, went into the purchase and payment for the land, and the circuit court sustained the commissioner's finding and report as to this point.\\nWe think that the circuit court did not err as to this question of fact, and that it correctly overruled the exception of appellees to the master's report as to this.\\nThe question of law, involving the construction of William Johns' will, was' decided hy the circuit court, in the decree appealed from, that the widow, Rebecca Johns, took under the will of the testator, William Johns, only a life estate in the fund left hy him, which life estate was terminated by her death, and that the corpus of the said fund, embodied to the extent of $900 in the land in question, devolved, by law, upon the children and heirs-at-law of William Johns, free from the debts of the life tenant, Rebecca Johns, deceased.\\nWe think it plain, from the language of the clause of the will under construction\\u2014taken as an expression of the testator's intention\\u2014that it does not import an absolute estate to his wife, but does give to her, in express and apt words for the purpose, \\\" all my (the testator's) estate during her natural life, for the benefit of herself and children, to be used as she may think proper.\\\"\\nThe discretionary usufruct of the fund during life, means such a use as is consistent with the life estate expressly given; and the words used to express it cannot be seized upon by a technical finesse of the law, to enlarge the life estate given into an absolute estate, and thereby defeat the well-expressed and manifest intention of the testator. The added words, \\\" to be irsed as she may think proper,\\\" do not make or create a limitation over inconsistent with the first estate given; nor do they necessarily or reasonably mean or implicate such use of the property as would consume it or empower it to be disposed of beyond the life estate.\\nThis case does not fall within the ruling rationale of the cases of May v. Joynes, 20 Gratt., nor of Rhett v. Mason, 18 Gratt., 541.\\nIa the ease of Randolph v. Wright, 81 Va., Judge Lacy says that the case of May v. Joynes, is authority for itself alone, and commenting upon the cases of Riddick v. Cahoon, 4 Rand., 547; Burwell v. Anderson, 3 Leigh, 348; Nelson v. Cooper, 4 Leigh, 408; Brown v. George, 6 Gratt., 424; Cole v. Cole, 79 Va.; Carr v. Effinger, 78 Va., 147, he shows that in all these cases, either expressly or by necessary implication, authority was conferred 'on the first taker of the estate to consume it or dispose of it absolutely; but in the case under consideration, the words, \\\"to be used as she may think proper,\\\" are only apt and proper words to describe the use of the life estate given to Mrs. Johns by the clause of which they are a part.\\n\\\"We find no error in the decree of the circuit court of Augusta appealed from, and are of opinion to affirm the same.\\nDecree affirmed.\"}"
\ No newline at end of file
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+"{\"id\": \"1967325\", \"name\": \"Joe Benson v. City of Norfolk\", \"name_abbreviation\": \"Benson v. City of Norfolk\", \"decision_date\": \"1934-11-15\", \"docket_number\": \"\", \"first_page\": \"1037\", \"last_page\": \"1041\", \"citations\": \"163 Va. 1037\", \"volume\": \"163\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:00:15.112895+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joe Benson v. City of Norfolk.\", \"head_matter\": \"Richmond\\nJoe Benson v. City of Norfolk.\\nNovember 15, 1934.\\nPresent, All the Justices.\\nThe opinion states the case.\\nErnest S. Merrill, for the plaintiff in error.\\nJohn N. Sebrell, Robert W. Shultice and Jonathan W. Old, Jr., for the defendant in error.\", \"word_count\": \"1108\", \"char_count\": \"6438\", \"text\": \"Browning, J.,\\ndelivered the opinion of the court.\\nThe plaintiff in error, Joe Benson, was arrested under a city warrant which charged him with violation of section 483 of the Code of the city of Norfolk. This section is as follows:\\n\\\"Section 483. Authority of police to require persons on street to move on.\\n\\\"Any person or persons, vending or hawking goods, wares, or merchandise, or loitering or standing on any of the streets or ways of the city, shall, when required so to do by any member of the police force, move on, or any group of persons standing shall separate and move on, and cease to occupy such position on the street or way, under penalty of not less than three nor more than fifty dollars for each offense, and in addition, in the discretion of the police justice, may be confined in jail not exceeding thirty days.\\\"\\nUpon the trial of the case Benson moved the court to quash the warrant alleging that the above section, upon which the warrant was founded, was unconstitutional. The motion was overruled. The jury found the defendant guilty as charged in the warrant and imposed upon him a fine of $50 and thirty days in jail. The verdict was sustained by the judgment of the trial court.\\nThere were two assignments of error but they deal with the single question before this court which is the constitutional validity of the city ordinance designated as section 483.\\nIn our opinion the ordinance is a valid exercise of the power of the city of Norfolk under its charter. The ordinance was passed in 1907 and has remained in the city code as the law ever since. It is to be noted that divers things are made offenses under its terms and are inhibited, among them. \\\"Any person loitering or standing on any of the streets or ways of the city, shall, when required so to do by any member of the police force, move on, .\\\"\\nThe warrant charged the defendant, Benson, with unlawfully violating the said section of the city Code, in failing to move on when told to do so by a police officer.\\nSubsection 11 of section 2 of the Norfolk charter of 1918 (Acts of Assembly 1918, chapter 34, page 31) provides that the city of Norfolk shall have the power:\\n\\\"To establish, open, widen, extend, and grade, improve, construct, maintain, light, sprinkle and clean public highways, streets, alleys, boulevards and parkways, and to alter or close the same; to establish and maintain parks, playgrounds and other public grounds; and to regulate the use of all such highways, parks, public grounds and works; to prevent the obstruction of such streets and highways and to do all other things whatsoever adapted to make said streets and highways safe, convenient and attractive.\\\"\\nSubsection 26 of section 2 of said charter empowers the city: \\\"To do all things whatsoever necessary or expedient for promoting or maintaining the general welfare, comfort, education, morals, peace, government, health, trade, commerce or industries of the city or its inhabitants.\\\"\\nSubsection 27 of section 2 of said charter empowers the city: \\\"To make and enforce all ordinances, rules and regulations necessary or expedient for the purpose of carrying into effect the powers conferred by this charter or by general law, and to provide and impose suitable penalties for the violation of such ordinances, rules and regulations, or any of them, by fine not exceeding five hundred dollars or imprisonment not exceeding six months, or both.\\\"\\nThe general power to regulate the use of the streets, and to do all things necessary or expedient for promoting the general welfare and peace of its inhabitants, and to make and enforce all ordinances would certainly seem to warrant the enactment of the ordinance in question.\\nThe warrant was inartificially drawn. It charges but a part of the crime committed under the ordinance, except by inference. No point is made of this by the plaintiff in error. He rests his case entirely upon the contended invalidity of the ordinance.\\nIn the case of Taylor v. Smith, 140 Va. 217, 124 S. E. 259, 263, it was claimed that an ordinance of the city of Roanoke, which provided that no one should operate a motor bus until he appeared before the superintendent of the police, and among other things, satisfied that officer of his character and qualifications. It was contended that this vested the head of the city police force with arbitrary powers aijdi furnished no rule for his guidance.\\nThe ordinance was sustained, the court saying: \\\"We are of opinion that a city may, in the execution of its police power, invest its administrative and executive officers with a reasonable discretion in the performance of duties devolved upon them to that end, whenever it is necessary for the safety and welfare of the public. Such a discretion is neither arbitrary nor capricious.\\\"\\nThe court quoted, with approval, from a note in 12 A. L. R. 1435, as follows: \\\"It is also well settled that it is not always necessary that the statutes and ordinances prescribe a specific rule of action, but on the other hand, some situations require the vesting of some discretion in public officials, as, for instance, where it is difficult or impracticable to lay down a definite, comprehensive rule, or the discretion relates to the administration of a police regulation and is necessary to protect the public morals, health, safety, and general welfare.\\\"\\nIt is, in our opinion, most salutary that the police officers of a municipality should have reasonable authority and discretion. Indeed, in exigencies, it is vital to the welfare of the community.\\nCourts should assume, initially, that they will exercise their discretion and authority in a fair and reasonable way.\\nSee State of Minnesota v. Sugarman, 126 Minn. 477, 148 N. W. 466, 52 L. R. A. (N. S.) 999; Com. v. Challis, 8 Pa. Super. 130; City of Chariton v. Fitzsimmons, 87 Iowa 226, 54 N. W. 146; People of N. Y. v. Galpern, 259 N. Y. 279, 181 N. E. 572, 83 A. L. R. 785.\\nThe above-cited cases deal somewhat with contentions similar to those urged by the plaintiff in error here. The conclusions are the other way.\\nWe think the trial court was clearly right in upholding the ordinance in question, and we affirm its judgment.\\nAffirmed.\"}"
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+"{\"id\": \"1974590\", \"name\": \"James T. Reid v. J. C. Boward, trading as Boward Truck Line and Charles Overcash\", \"name_abbreviation\": \"Reid v. Boward\", \"decision_date\": \"1943-06-14\", \"docket_number\": \"Record No. 2689\", \"first_page\": \"718\", \"last_page\": \"724\", \"citations\": \"181 Va. 718\", \"volume\": \"181\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T20:08:55.800511+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James T. Reid v. J. C. Boward, trading as Boward Truck Line and Charles Overcash.\", \"head_matter\": \"Wytheville\\nJames T. Reid v. J. C. Boward, trading as Boward Truck Line and Charles Overcash.\\nJune 14, 1943.\\nRecord No. 2689.\\nPresent, All the Justices.\\nThe opinion states the case.\\nAllen & Allen, for the plaintiff in error.\\nWayt B. Timberlake, fr., for the defendants in error.\", \"word_count\": \"1765\", \"char_count\": \"10082\", \"text\": \"Spratley, J.,\\ndelivered the opinion of the court.\\nThe proceeding arises out of a collision between an automobile in which James T. Reid, the plaintiff, was a guest passenger, and a tractor-trailer truck, owned by J. C. Boward and operated by his employee, Charles Overcash. Reid was painfully and seriously injured. On his motion for a judgment for damages against Boward and Overcash, there was a verdict for the defendants, which was approved by the trial judge and judgment entered thereon.\\nThe plaintiff assails the verdict as being contrary to the law and the evidence and without evidence to support it. He also contends that the trial court erred in the admission of certain testimony.\\nThis is another of those cases where the right of recovery is based solely on questions of fact. The two theories of the cause of the collision are irreconcilably different, and the pertinent evidence on behalf of the respective parties is wholly in conflict.\\nThe pl\\u00e1intiff, a student at the University of Virginia, was a guest passenger in a 1941 Ford convertible sedan, owned by a fellow student and operated by another student. There were five young men in the car. Reid and the owner of the car were on the front seat with the driver, the remaining two being seated in the rear. The accident occurred about one a. m., January 16, 1942, as the young men were returning to the University on main State highway No. 250, from a basketball game at William and Mary College. They were traveling towards the west.\\nThe defendant, J. C. Boward, is the owner of the tractor-trailer truck which was being driven eastwardly by his employee, Charles Overcash, at the time of the accident. The tractor is seventeen feet long, the trailer twenty-two feet long and eight feet wide. The tractor is slightly narrower in width. The trailer had removable sides forty inches in height, its entire height from the ground being slightly more than seven feet. The trailer was loaded with 16,000 pounds of flour, its top b,eing covered with a tarpaulin.\\nThe weather was clear on the night of the accident. The road extended through a hilly countryside. The collision occurred on a straight strip of the highway between two small hills. The road, at the point of the collision, is a hard asphalt surface, approximately nineteen feet wide, with dirt shoulders on each side three or four feet in width. There is a double line in the center, consisting of a broken fine on the south side and a solid line on the north side, the solid fine being next to the line of travel of the Ford car.\\nThe left front of the sedan, first scratching the tire of the left wheel of the tractor, came into slight collision with the left front corner of the defendants' trailer, and then continued along the side of the trailer and knocked off its left rear dual wheel. The broken axle of that wheel fell to the ground and made a cut in the surface of the highway, beginning nine inches to the defendants' right of the center of the road. The cut continued for about seventy-two feet near the center of the road, veering slightly towards the left, to the point where the truck was brought to a stop. The sedan rebounded from the trailer and came to rest upside down about one hundred and ten feet west of the point of the collision on the north side of the highway.\\nThe plaintiff and three of his companions testified that as they came to the crest of the hill, traveling about fifty miles an hour, they saw two sets of headlights in the road in front of them about three hundred yards distant on the top of another crest. They assumed that there were two cars traveling abreast towards them, or that one was passing another. Their car, said they, continued on its proper side of the road, close to the right edge, with slightly diminished speed, to the point of collision, where it collided with the left side of the tractor-trailer, which had not completely returned to its proper side of the road. They did not observe any dimension or marker lights on either the defendants' tractor-trailer or on another tractor-trailer, operated by E. G. Wiseman, showing the other headlights they had observed, and which was closely following the defendants' truck.\\nIn effect, their evidence was that the collision occurred because the defendants' tractor-trailer was to its left of the center of the highway, and failed to carry the lights required by Virginia Code, 1942, (Michie) section 2154 (141), that is, lights at the top corners of the trailer.\\nOvercash testified that his truck had passed the Wiseman truck one-half a mile west of the point of the accident, two hills removed to the west and that both his tractor and trailer had returned to his proper lane of travel, that is, entirely to the right of the center line of the highway before the collision; that, in addition to two front headlights and three marker lights across the top front of his tractor, there were marker lights on' each of the lower four corners of his trailer, amber in front and red in the rear; that the Ford sedan approached him at a high rate of speed traveling to its left of the center of the road with brilliant headlights and a spotlight turned on his truck; that realizing a collision was imminent, he turned to his right towards the shoulder of the highway, but only succeeded in getting the tractor out of the path of the oncoming sedan; and that the line of the cut made in the road by the broken rear axle was caused by the trailer plunging forward to its left as its rear wheel came off. The tractor-trailer was traveling between twenty-five and thirty miles an hour.\\nWiseman, the operator of the second tractor-trailer, fully corroborated the testimony of Overcash, that all of the latter's vehicle was entirely on the right side of the road when it was first struck, having fully cleared the Wiseman truck about one-half a mile from the scene of the collision; that the defendants', tractor-trailer bore the marker lights described by Overcash, all of which, except the one on the lower left front of the trailer which was torn off by the collision, were burning after the accident; and that the Ford sedan was proceeding so far to the left of the center of its proper lane of travel that if it had continued its course, without striking the defendants' truck, it would have come into collision with his, Wiseman's, truck, which was one hundred and twenty feet behind the defendants' truck, on its right side of the road.\\nIn effect, the evidence of the defendants was that the Ford sedan was traveling to the left of the center of the highway, and that notwithstanding the lights on both the tractor and the trailer it crashed into the left side of the tractor-trader, while the latter was traveling in its proper portion of the highway.\\nOver the objection of the plaintiff, Wiseman was permitted to testify that, in addition to two burning headlights on his truck, he had two marker lights on the front of his tractor cab; six amber lights on his trailer front, two on each top corner, one at each bottom corner; and four red lights, one on each side of the back of his trailer, top and bottom,\\u2014 a total of fourteen lights burning.\\nIn view of the testimony of the witnesses for the plaintiff that they saw no proper marker lights burning on either tractor-trailer, this testimony was admissible for the purpose of contradicting them and to set out the surrounding facts and circumstances attending the collision in determining the exercise of proper care under the existing conditions.\\n\\\"It may be stated generally that in an action growing out of an automobile accident any evidence of the conditions and circumstances leading up to and surrounding the accident which will throw light upon the conduct of the parties and the care or lack of care, exercised by them, is admissible.\\\" 5 Am. Jur., Automobiles, page 849.\\nOne question of fact was whether the defendants' lights conformed to the statute. Another essential question of fact was whether a breach of the statute caused or contributed to the collision. The violation of a statute, although negligence per se, will not support a recovery for damages unless such violation proximately causes or contributes to the injury complained cf. Kinsey v. Brugh, 157 Va. 407, 161 S. E. 41; Harris v. Howerton, 169 Va. 647, 194 S. E. 692; Hubbard v. Murray, 173 Va. 448, 3 S. E. (2d) 397; Gregory v. Daniel, 173 Va. 442, 4 S. E. (2d) 786.\\nThe jury was fully instructed, without objection or exception, on all questions. They were told that if they believed the defendant truck driver was negligent in the operation of his tractor-trailer, or in the failure to maintain proper lights thereon, and such negligence, in either case, caused or efficiently contributed to the collision, they should find for the plaintiff. They were also told that if they believed the operator of the Ford sedan drove his car to his left across the center line of the highway and struck the tractor-trailer while it was on its proper side of the highway, and that this was the sole proximate cause of the collision, they should find for the defendants.\\nThe questions of fact involved were peculiarly for the jury. The evidence of the defendants was positive and credible, and an impartial jury has accepted their version and rejected that of the plaintiff. Their verdict, under proper instructions, has settled all questions o'f fact. It has been approved by the trial court and, upon well settled principles in this jurisdiction, it cannot now be disturbed by us. Norfolk, etc., R. Co. v. Richmond Cedar Works, 160 Va. 790, 170 S. E. 5; Virginia Elec., etc., Co. v. Morgan's Adm'r, 162 Va. 123, 173 S. E. 373; Bristow v. Brauer, 175 Va. 118, 7 S. E. (2d) 93.\\nFor the foregoing reasons, the judgment of the lower court is affirmed.\\nAffirmed.\"}"
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--- /dev/null
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+"{\"id\": \"1984087\", \"name\": \"Lloyd C. Gilley, et als. v. Nancy J. Nidermaier\", \"name_abbreviation\": \"Gilley v. Nidermaier\", \"decision_date\": \"1940-09-05\", \"docket_number\": \"Record No. 2280\", \"first_page\": \"32\", \"last_page\": \"43\", \"citations\": \"176 Va. 32\", \"volume\": \"176\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:00:13.938869+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lloyd C. Gilley, et als. v. Nancy J. Nidermaier.\", \"head_matter\": \"Staunton\\nLloyd C. Gilley, et als. v. Nancy J. Nidermaier.\\nSeptember 5, 1940.\\nRecord No. 2280.\\nPresent, All the Justices.\\nThe opinion states the case.\\nS. H. Bond and E. H. Richmond, for the appellants.\\nPhilip M. Flanagan and J. E. Kelly, for the appellee.\", \"word_count\": \"3478\", \"char_count\": \"19167\", \"text\": \"Gregory, J.,\\ndelivered the opinion of the court.\\nThis appeal brings before us the construction of clause IV of the will of J. B. Gilley, who died on December 11, 1923. The will is set out at large in order that it may be considered as a whole in ascertaining the testator's intention. It was admitted to probate in 1923, and is in the following language:\\n\\\"I. I will and direct that my executor, hereinafter named, pay all my just debts, if I shall owe any, the costs of administration and my funeral expenses.\\n\\\"II. In the event my beloved wife, Mrs. Nannie E. Gilley, outlives me, I will and direct that she shall have a home at my residence in Gate City, Scott County, Virginia, and that she be properly and comfortably supported. Her proper and comfortable support is made a charge upon my estate. My intention is that she shall be properly and comfortably supported as long as she lived.\\n\\\"III. As to my real estate, I dispose of it as follows:\\n1. I will and devise to my daughter Myrtle O. Johnson, the house and lot where I now live, it is bounded on the north by the alley running to the cemetery, between my property and the M. T. Hash property, on the east by the street running north from Main Street and west of the Court House, on the south by the lot formerly owned by Mrs. J. M. Minnich and on the west by the cemetery.\\n2. I will and devise to my son Lloyd C. Gilley, the house and lots I bought of E. Thompson Carter and I refer to the deed from him to me for a description of the property.\\nAs there is a difference in value between the property devised to my daughter, Myrtle O. Johnson, and the property devised to my son, Lloyd C. Gilley, I will and bequeath to my son Lloyd C. Gilley, in order to make them equal, the stock of general merchandise, now at what is know as the Blue Store on Big Moccasin Creek in Scott County, Virginia, and my shares of stock in the First National Bank of Gate City, Virginia.\\n\\\"IV. I will and direct that my son, Lloyd C. Gilley pay to Effa Niedemeyer, formerly Effa Ratliffe the sum of One Thousand Dollars, which shall be paid within three years from the date of my death.\\nI will and direct that my daughter Myrtle O. Johnson pay to Lorraine Ratliffe the sum of One Thousand, which shall be paid within three years from the date of my death. If Lorraine is still a minor at my death, the money shall be paid to her gardian, if she has one. If she has not, then the money shall be placed in a good bank on a time certificate for her.\\n\\\"V. I will and bequeathe all my personal estate of whatever kind or description except what is necessary to pay my debts, costs of administration and funeral expenses, and except the stock of general merchandise and the bank stock hereinbefore will and requeathed to my son, Loyd C. Gilley, to my two children, Myrtle O. Johnson and Lloyd C. Gilley to be equally divided between them.\\n\\\"VI. I am now endorsing notes for both of my children and if I should have to pay anything for either of them then such sum or sums, whatever it may be, shall be deducted from his or her share of my estate, so as to make them equal.\\n\\\"VII. This is my will and there shall be no litigation over it. Any one seeking by litigation or other wise to set aside or annul my will or any part of it, shall not receive any thing and his or her share, bequest or devise shall go to the other party or parties in the manner herein provided, that is such share shall go back to and become a part of my estate to be disposed of as herein provided for the other parties.\\\"\\nThe testator left surviving him his widow and two children, Mrs. Myrtle O. Johnson and Lloyd C. Gilley. He also had two stepdaughters, Effa Nidermaier, formerly Effa Ratliffe, and Lorraine Ratliffe. His estate amounted to some $19,000, and consisted of personalty and realty. After the payment of the debts of the estate in accordance with the direction of the testator and the distribution of the personal property specifically bequeathed to the son, Lloyd C. Gilley, in clause III (2), there remained only $39.01 to be divided between the two children under clause V of the will.\\nIn 1931 Lloyd Gilley conveyed all of his property both real and personal to his wife Lois Gilley in consideration of love and affection. In 1933 Lois Gilley and her husband Lloyd conveyed the real estate to H. F. Addington for $2,500, payable by the cancellation and surrender of an interest-bearing note of $1,440.80 made by Lloyd Gilley and payable to Addington, and the balance was paid in cash.\\nThe legacy of $1,000 directed to be paid by the son Lloyd to the step-daughter Effa Nidermaier in clause IY was never paid. She died intestate in 1934, leaving a daughter, Nancy Nidermaier, as her sole heir at law. As such the latter filed a bill of complaint against Lloyd C. Gilley and Lois E. Gilley, his wife, and H. F. Addington, seeking to have the legacy made to her mother charged as a lien on the realty devised to the son Lloyd and now owned by Adding-ton,\\nIn 1937 Lloyd Gilley filed his petition in bankruptcy and listed as one of his obligations the $1,000 legacy due the mother of the appellee. The personal liability for the payment of the legacy was wiped out by a discharge in bankruptcy granted him in 1938. However, the discharge discloses that the claim that the legacy was a charge or lien on the land devised to him was not considered by the court of bankruptcy, it being advised that this matter was exclusively one for the State courts.\\nThe present suit was instituted April 25, 1938, some fifteen years after the death of the testator and about twelve years after the expiration of the three-year period fixed by the testator for the payment of the legacy.\\nThe defendants below, the appellants here, filed a demurrer and answer. The gist of their defense was that the testator created no charge upon the realty for the payment of the legacy, that it was only a personal obligation, and that in any event the legacy was barred by the statute of limitations.\\nThe court rejected the defenses and decided that the legacy was a lien upon the real estate, that the purchaser H. F. Addington had constructive notice of the lien, since the will had been properly recorded in the county where the land lay, and that the statute of limitations was not applicable.\\nThere are but two questions involved here: First, was the payment of the legacy made a charge upon the lands of the devisee; and, second, was the charge or lien, if created by the testator, barred by the statute of limitations? The personal obligation of Lloyd Gilley to pay the legacy has been discharged in bankruptcy and is not now before us.\\nIt is perhaps significant that the testator desired that his widow should have a home and be afforded proper and comfortable support. For the purpose of securing this benefit to her he made, in clause II of the will, her \\\"proper and comfortable support\\\" a charge upon his estate. This charge was not only upon his realty but also upon his personalty. In clause IV of the will the two legacies of $1,000 each were not expressly made charges against his estate. It is argued that inasmuch as the testator expressly made the support of his widow a charge upon his estate in the first instance and failed so to charge the estate passing to his two children with the payment of the two $1,000 legacies in favor of his step-children, this circumstance indicates that he did not intend to charge the realty devised to his children with the two legacies.\\nHowever, there is language in the will which, together with the attendant circumstances, is sufficient to charge the realty with these legacies. The legacy in favor of Lorraine Ratliffe, to be paid by the testator's daughter, Myrtle O. Johnson, is not in question in this case. However, the testator must have known that if his daughter were to pay this legacy out of her share of the estate, it would have to be paid from the sale of the realty, or from funds borrowed on it. No personalty was left to her from which payment of the legacy might be made. We therefore conclude that the testator contemplated that the legacy should be paid from the realty, and thus impliedly charged the legacy on the real estate left to his daughter.\\nSimilarly, the testator must have intended that the legacy over which the present litigation arose should be a charge on the realty left to his son. Both legacies are created in the same section of the will, and the testator expressed in clear language his intention that the step-children should receive legacies of equal value, just as he indicated, else where in the will, that his own children should receive equal shares in his estate.\\nWhen we apply the principle of equality between his children, and see that the daughter's portion of the realty was impliedly charged with the payment of a $1,000 legacy, we must conclude that the testator also intended to charge the son's portion of the realty with the $1,000 legacy payable to the appellee's mother. Both daughter and son were directed to pay a $1,000 legacy, and it is untenable to as-' sume that the testator intended to charge the daughter's realty in this respect and not to make a similar charge on the realty of the son.\\nClause VII is very significant. If the widow or either child or step-child should seek to set aside or annul the will or any part of it such person would forfeit his devise or legacy and receive nothing. In this case the son Lloyd will have \\\"set aside\\\" a portion of the will if he is permitted to evade the payment of the legacy. Of course the portion of the estate received by him cannot be forfeited, because he no longer has it, but the court can follow the realty and impress it with a lien in favor of the legatee as long as the realty is not in the hands of a bona fide purchaser. Here, as already stated, the purchaser had constructive notice of the legatee's claim.\\nThe devises and the legacies were inseparably joined in this will. When the devisees accepted their devises they at the same time became obligated to pay the legacies. If the devisees failed to pay the legacies as directed the testator intended their devises to be forfeited under clause VII.\\nOur Virginia court has not squarely passed upon the question presented here. However, in Armentrout v. Armentrout's Ex'rs, 112 Va. 660, 72 S. E. 721, and in Wenner v. George, 129 Va. 615, 106 S. E. 365, it has at least incidentally held that where property is devised and the devisee is directed to pay a legacy or legacies and he accepts the devise he not only becomes personally obligated to pay the legacy but it also becomes a, charge upon the land devised. It may be sold to enforce the payment of the legacy.\\nIn Armentrout v. Armentrout's Ex'rs, supra, the testator devised his estate to his wife for life with remainder in fee to five of his children. He directed these children to pay $400 each to his other three children. Suit was brought by the beneficiaries of the $400 payments against the five remaindermen during the lifetime of the life tenant. \\u2022 The court held that the payments were not due and payable until after the death of the life tenant and for that reason denied a recovery. However, the court observed, \\\"The will gives the appellees the estate in remainder, after the expiration of the life estate of their mother, and nothing more, and it requires the appellees to pay the appellants $400 each, thus making these sums a charge upon the estate in remainder of the appellees and upon no other estate.\\\" [112 Va. 660, 72 S. E. 721.]\\nIn Wenner v. George, supra, the testator devised lands to his son for life provided he would pay his sister $4,000 within ten years. He further provided that any legatee signifying an intention not to abide by the provisions of the will should forfeit his interest. The court held that the life tenant was personally obligated to pay the $4,000, he having accepted the devise. The court, speaking through Judge Prentis, concluded: \\\"It is perhaps immaterial in this case that the trial court failed to hold that the legacy constituted a charge against the life estate of Ashland C. George, because the record appears to indicate that Ashland C. George is financially able to pay the amount. The trial court, however, should have followed the precedents indicated by the cases of Jackson v. Updegraffe, 1 Rob. (40 Va.) [107], 114, and Cockerille v. Dale's Adm'r, 33 Gratt. (74 Va.) 45, and held that the life estate devised to Ash-land C. George was an auxiliary security for this legacy and charged therewith as the only property indicated by the testator for its payment.\\\" [129 Va. 615, 106 S. E. 367.]\\nBeyond the Virginia jurisdiction the authorities are overwhelming in holding that legacies similar to the one here involved are charges upon the land devised. The annotators and cases are almost in one accord. In 62 A. L. R., there is an exhaustive annotation. The annotator says (pp. 596, 597) : \\\"The courts have,- wherever possible, construed a provision for the payment of a legacy, or a sum of money, as a charge rather than a condition precedent, in order that the estate may vest in the devisee. Thus, where it appears from the language of the will that the testator intended to couple the payment of the legacy by the devisee with the devise of the land, so that the payment is to be made, because, or as a condition on which, the devise has been made, then the real estate is, in equity, chargeable with the payment of the legacy.\\\"\\nAgain, in 116 A. L. R. 22, the rule is reiterated in this language: \\\"By imposing upon a devisee of real estate the payment of a legacy, a charge is created against the devised land, which is therefore made primarily liable for the payment of such legacy. That is to say, when a legacy is charged on lands devised by the testator's will, it becomes a lien which may be enforced against the land itself.\\\" And 116 A. L. R. 22: \\\"The personal liability of the devisee does not discharge the real estate from the lien of the charged legacy. That is to say, the right to enforce the lien of a legacy charged on land against the land itself exists notwithstanding the devisee's personal liability.\\\" These quotations are supported by a host of cases from nearly every jurisdiction.\\nIn 69 C. J., section 2506 (pp. 1184, 1185), is this clear statement: \\\"Where, however, a devisee is expressly directed to pay certain legacies, although not expressly charged by the will, this will, as a general rule, charge the legacies on the land or interest devised, to the relief of the balance of the estate. This rule is particularly applicable where the will further provides that any beneficiary not accepting such condition should forfeit all interest under the will. And even if it is doubtful whether it was the intention of the testator to charge a legacy which the devisee is directed to pay upon the land devised, the construe tion should be in favor of charging the land, as it should be presumed that the testator designed that his estate, rather than the personal liability of his devisees, should stand as security for the fulfillment of his bequests.\\\"\\nTo hold that the legacy here is not a charge upon the realty devised would not only result in defeating the legacy but it would also defeat the expressed intention of the testator to forfeit the interest of anyone who sought to set aside any portion of the will. The very right and justice of this case demand that the real estate be charged with the legacy.\\nWe are not unmindful of the other rule so well established in Virginia to the effect that personalty is the primary source from which legacies must be paid and that they are not ordinarily charged upon the realty unless they are expressly or impliedly so charged by the testator. Cases such as Lee v. Lee, 88 Va. 805, 14 S. E. 534; Todd v. McFall, 96 Va. 754, 32 S. E. 472; and Smith v. Mason's Ex'r, 89 Va. 713, 715, 17 S. E. 3, 4, support that rule. By the decision of the present case we do not intend to change or modify the principle found in those cases, which are different from the present one.' Here the devisee is expressly charged with the payment of a legacy upon the pain of suffering a forfeiture of his devise if he refuses to pay it. Where the portion going to the devisee is composed largely of realty the testator in the absence of expressly charging the land with the payment of the legacy will be presumed to have intended it to be paid from the land.\\nWe have no statute of limitation particularly applying to a charge or lien of this nature. The appellants invoke Code, section 5818, which provides a limitation \\\"of actions not before specified.\\\" It is quite clear that this statute has no application here, because in express language it is limited to \\\"Every personal action, for which no limitation is otherwise prescribed \\\". Here we have no personal action, and no personal liability is sought to be enforced. This is purely an equitable suit for the enforcement of a charge or lien upon land. If the land is not sufficient to pay the charge the deficiency cannot he converted into a judgment in personam, against anyone.\\nThere being no applicable statute of limitation that might be invoked, the defense of laches, if made out, would bar the enforcement of the charge. But when we advert to the Virginia law upon this subject it clearly appears that the requisites of laches are not present. As stated in Michie's Digest, Laches, section 7, p. 605: \\\"Generally if the sum sought to be recovered is certain, the transaction has not become obscure, and there has been no such loss of evidence as will be likely to produce injustice, a court of equity will not refuse relief, merely because there has been delay in asserting the claim. Branner v. Branner's Adm'r, 108 Va. 660, 62 S. E. 952. See Davis' Adm'r v. Davis, 104 Va. 65, 51 S. E. 216; Selden's Ex'r v. Kennedy, 104 Va. 826, 52 S. E. 635 [4 L. R. A., N. S., 944, 113 Am. St. Rep. 1076, 7 Ann. Cas. 879]; Depue v. Miller, 65 W. Va. 120, 64 S. E. 740 [23 L. R. A., N. S., 775]; Adams v. Pugh's Adm'r, 116 Va. 797, 83 S. E. 370; Teter v. Moore, 80 W. Va. 443, 93 S. E. 342; Browning v. Browning, 85 W. Va. 46, 100 S. E. 860; Tidball v. Shenandoah Nat. Bank, 100 Va. 741, 42 S. E. 867.\\\"\\nAnd ibid, section 11, p. 609: \\\"It is a general rule in equity that mere lapse of time, unaccompanied by circumstances affording evidence of a presumption that the right has been abandoned, is not considered laches.\\\" It was held in Wingfield v. McGhee, 112 Va. 644, 72 S. E. 154, that it satisfactorily appeared that a legacy had never been abandoned or paid, though many years had elapsed since it became due, and that the claim therefor was not barred by laches, because no injury would result to anyone from subjecting the land to its payment.\\nMere delay without more will not constitute laches. The other essentials of laches nowhere appear.\\nThe decree is\\nAffirmed.\"}"
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+"{\"id\": \"1987120\", \"name\": \"Olga Hughes v. Newton E. Hughes\", \"name_abbreviation\": \"Hughes v. Hughes\", \"decision_date\": \"1939-09-13\", \"docket_number\": \"Record No. 2136\", \"first_page\": \"293\", \"last_page\": \"306\", \"citations\": \"173 Va. 293\", \"volume\": \"173\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T17:31:15.187720+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Olga Hughes v. Newton E. Hughes.\", \"head_matter\": \"Staunton\\nOlga Hughes v. Newton E. Hughes.\\nSeptember 13, 1939.\\nRecord No. 2136.\\nPresent, Campbell, C. J., and Hudgins, Gregory, Eggleston and Spratley, JJ.\\nThe opinion states the case.\\nFred B. Greear and Walter B. Phipps, for the appellant.\\nJ. C. Smith and S. H. & Geo. C. Sutherland, for the appellee.\", \"word_count\": \"3761\", \"char_count\": \"21207\", \"text\": \"Hudgins, J.,\\ndelivered the opinion of the court.\\nThis is a suit for divorce, instituted by Newton E. Hughes against his wife, Olga Hughes. The bill alleges that the wife was jealous, quarrelsome and nagging; that she falsely accused her husband of infidelity, and that as a result of continuous bickering his health became so impaired that he was forced to leave his home, resign as assistant cashier of a branch bank in Haysi, and secure employment at a reduced salary in Richmond. The husband prayed that the custody of their only child, a boy eight years of age, be given to him, or his father\\u2014W. E. Hughes, and that he be granted a divorce a mensa.\\nThe wife filed her answer and cross-bill. The answer denies each material allegation of the bill. The cross-bill alleges that the husband wilfully, and without just cause, deserted her; that she was without funds necessary to defend her rights in the suit, and that she had no separate means to support herself and her child. The prayer of the wife was that her husband be compelled to pay her temporary alimony pendente lite, suit money and attorney's fee, and permanent alimony, and that the custody of the child be awarded to her.\\nOn the final hearing the chancellor denied the parties any relief, but leave was given either party to apply to the court \\\"as future circumstances might require, for the care, custody, maintenance and education of the infant.\\\" To that decree the wife sought and obtained this appeal. The husband assigns cross-error. These contentions make it necessary to examine the evidence, in detail.\\nIt appears that the parties were married on May 17, 1924, and lived together, as man and wife, in Dickenson county until January 1, 1938. The only issue of this marriage is a son, Robert Edward Hughes, who was born in April, 1931. This couple was entirely dependent for their sustenance upon the earnings of the husband. Soon after the marriage, he acquired a lot in the town of Clintwood, and with the active cooperation of his wife, built thereon a modest home, which cost approximately $2,500.00. Prior to 1937, the parties seem to have lived together happily, peacefully and contentedly, without any substantial disagreements.\\nDuring most of the married life of the parties, the husband was connected with county politics in Dickenson county. He served as deputy clerk of the county for some four years. He then became deputy treasurer of the county, and continued as deputy treasurer until John M. Rasnick, the treasurer, was defeated for the office in the November election, 1935. Soon after this date he secured a position as assistant cashier of the Cumberland Bank & Trust Company, and was placed in charge of a branch of this bank at Haysi, in Dickenson county. For several months the parties continued to live at Clintwood. The husband drove twenty-two miles to the bank in Haysi each day to work. In May of the same year, the family moved into a rented house at Haysi, for which they paid $25.00 a month. The home in Clintwood was rented to third parties, for $20.00 per month. This latter sum was used by the wife, with the husband's consent, as spending money for herself and child, except a small part which was used for repairs upon the house in Clintwood.\\nSometime in the late summer or the early fall of 1937, the husband executed a deed of gift conveying the house and lot in Clintwood to his wife. He stated that this was done in an effort to stop her j ealous bickerings; she claims \\u2022that it was done without her suggestion, and that the deed was left among her papers unrecorded until sometime in January, 1938.\\nThe husband contends that he was forced to leave his wife in December, 1937, and states his reason for so doing was \\\"to get relief from the nagging and worries.\\\" The first and only specific instance found in his testimony as to this \\\"nagging and worry\\\" occurred in the fall of 1934. He stated that on this occasion \\\"he was accused of a woman in this town\\\" (Clintwood) ; that he was nagged and annoyed for a .period of two months; he then \\\"explained to her that there was no ground for such accusations. I don't know whether I convinced her I was innocent or not, but after we had discussed it and she made the statement that she wouldn't never bring it up again, I told her I wouldn't live with her again if she did.\\\" He does not claim that any other strain occurred in his marital life until July, 1937, in which month his wife again made false accusations .against him and repeated them at intervals the rest of the year. The substance of these alleged false accusations, as stated by the husband, was that his wife repeatedly said to him \\\"she knew more on me than I thought she knew. After admitting that she was jealous, I was never able to get her to point out any particular party, in order that I might adjust or clarify myself.\\\"\\nThis is the type of testimony which the husband claims seriously impaired his health and caused him to lose weight.\\nThe uncontradicted evidence is that the husband had a serious attack in June, 1937, thirty days before he claims she began for the second time to make accusations against him. Dr. F. H. Smith, a member of the staff of the Johnston Memorial Hospital in Abingdon, Virginia, made a detailed medical report on the condition of Newton E. Hughes. In this report it is stated that the patient was suffering from a severe attack of indigestion and that he had been subject to these attacks for four years prior to June 7, 1937, the date of the report.\\nNo witness other than the husband attributed his attacks of indigestion and nervousness to his wife's treatment of him. The friends and neighbors who testified in the case stated that so far as they could observe the wife was quiet, considerate and attentive of her husband's welfare. They never heard her quarreling with her husband, or saw any evidence of jealousy which her husband testified she exhibited because of his attentions to other women.\\nCode, section 5106, provides that a suit for divorce shall be instituted and conducted as other suits are, \\\"except that the bill shall not be taken for confessed, nor shall a divorce be granted on the uncorroborated testimony of the parties, or either of them; and, whether the defendant answer or not, the cause shall be heard independently of the admissions of either party in the pleadings or otherwise; \\\"\\nThe husband's testimony of his wife's ill treatment of him is very general, vague and indefinite. It is not corroborated. Hence, the trial court was clearly right in denying his prayer for a divorce a mensa.\\nThe husband contends that he had made ample financial provision for his wife and child, and that she is not entitled to any affirmative relief. These financial provisions were:\\n(1) A conveyance to her of the home in Clintwood, valued at approximately $3,000.00.\\n(2) That since the separation he has sent her $20.00 per month.\\n(3) That he has arranged, through his father, with merchants in Clintwood to extend $30.00 a month credit to his wife for food and clothing.\\n(4) That he gave her an automobile and other personal property, before instituting this suit.\\nIt seems that after the husband had definitely determined to leave his wife, he had his father, W. E. Hughes, and his lawyer, J. C. Smith, make her a proposition for the settlement of their marital difficulties. The wife understood this proposition to be that if she would return from Haysi to Clintwood, she would have the home and the furniture, free of debt, that the custody of the boy would be given to W. E. Hughes and that either she or her husband could visit him whenever they so desired, and that W. E. Hughes would not permit either her or the boy to suffer for food or clothing. In the event the wife accepted this proposition, she surrendered her right to the care and custody of her only child, the possession and title to a Chevrolet car registered in her name, and virtually transferred her marital right to look to her husband for maintenance, to his father, W. E. Hughes, who was under no legal obligation to provide such maintenance. This proposition Was declined by the wife.\\nIt appears that the husband, without consulting his wife, .notified the tenant in the home at Clintwood to vacate on January 1, 1938. The husband took his wife's car and kept it in Richmond. Knowing that her husband had left her, she moved her furniture from Haysi to Clintwood, and stored it in the home, and continued to live with one of her sisters. Early in 1938, she recorded the deed of gift from her husband, and rented the home (except two rooms in which her furniture was stored) for $22.50 per month. The father, W. E. Hughes, gave her $10.00 a month for January and Eebruary, and she received $20.00 a month for March, April .and May. She was not fully informed as to what arrangements, if any, had been made for her to obtain the necessities of life from the merchants in Clintwood, and as a matter of fact never bought one pennyworth from them. This arrangement for extending credit to the wife was made by W. E. Hughes, who is under no legal obligation to support and maintain Olga Hughes and her son, and therefore this extension of credit to the wife may be withdrawn at will. The inference from the testimony is that it has already been so withdrawn.\\nIt further appears that Newton E. Hughes owed the following obligations:\\n(1) He was accommodation endorser on a note for $800.-00 executed by John M. Rasnick, his former boss, held by the receivers of the Dickenson County Bank.\\n(2) He was maker of two notes, totalling $250.00, held by the Cumberland Bank & Trust Company.\\n(3) He owed an open account of $46.00 due the Haysi Motor Sales Company for automobile tires, repairs, and gasoline.\\nAfter his wife had refused to accede to her husband's unreasonable proposition, and after this suit was begun, he informed his creditors, either directly or indirectly, that he had conveyed his home to his wife, and suggested that they bring suit to set aside the deed and subject the home to the payment of the debts owed by him. In addition, he instructed Haysi Motor Company to charge the $46.00 account to him and his wife jointly, and obtain a joint judgment against her.\\nEvery creditor followed his suggestion, and receivers of the Dickenson County Bank filed a suit against N. E. and Olga Hughes to set aside the deed conveying the house and lot in Clintwood to the wife and subject that property to sale to satisfy the debt due and owing by her husband. The house and lot were thus sold by decree of court, at public auction, and brought approximately $1,900. All except about $200.00 will be used to pay the debts and costs of the proceedings.\\nIn addition, Newton E. Hughes gave a written order to W. E. Hughes, directing the father to go to the home of Olga Hughes, seize the furniture and sell it to pay a part of his obligations. Pursuant to these directions, W. E. Hughes, through his agents, broke into the rooms in which the furniture was stored, seized and sold a part of it, and retained the proceeds and unsold furniture in part payment of debts which W. E. Hughes claims the son owes him and his wife, Mrs. W. E. Hughes.\\nSometime in June, 1938, the wife obtained possession of the car in Richmond, and sold it for $180.00 net to her. She collected one or two months' rent before the home was sold. She received, within five or six months, $80.00 from her husband and his father, but most of the checks were earmarked for the benefit of the son. These sums, plus a small amount that she may receive from the proceeds of the sale of her home after her husband's debts and cost of litigation have been deducted, constitute her entire financial assets.\\nIt is to be noted that the suit to set aside the deed to the wife was not only instituted at her husband's suggestion, but the principal debtor, James M. Rasnick\\u2014his former employer\\u2014is now employed at a substantial salary by the same State department that employs Newton E. Hughes. The continued friendship between Rasnick and Hughes, together with other circumstances revealed in the record, indicate that if Hughes had really desired to prevent the sale and preserve his wife's home, he could have done so. However that may be, the course pursued by the husband has deprived his wife- of her home, furniture, and all other tangible assets save those enumerated above. The contention of the husband that he has made ample financial provision for his wife and child is not supported by the evidence.\\nBut even if he had entered into a voluntary, binding obligation to support and maintain his wife and child, and the court had found it insufficient under all the circumstances of the case, then it could have exercised its discretion and changed the amount set forth in the agreement.\\nIn Gloth v. Gloth, 154 Va. 511, 536, 153 S. E. 879, 887, 71 A. L. R. 700, we said: \\\"Prior to the institution of the suit for a divorce a mensa et thoro, the husband may in large measure decide for himself what he will contribute to the support of his wife, subject to the proviso that it must be reasonably sufficient considering his circumstances and her needs. But after the institution of the suit the amount which he will contribute to her support, or which she may demand that he contribute to her support, is no longer one for the determination of the parties but for the court, whose jurisdiction to regulate this subject having attached ousts the judgment and discretion of the parties.\\\"\\nIt is true that in the Gloth Case the wife had obtained a divorce a mensa. In this case, the trial court correctly ruled that Newton E. Hughes was not entitled to such a decree, and since the wife, in her cross-bill, did not ask for a divorce, no decree of divorce was granted. Since the date of opinion in the Gloth Case, Code, section 5111, has been amended and now, in part, reads as follows: \\\"Upon decreeing that neither party is entitled to a divorce, the court may make such further decree as it shall deem expedient concerning the estate and maintenance of the parties, or either of them, and the care, custody and maintenance of minor children.\\\"\\nThe trial court judicially determined that the husband had left his wife without legal cause. The evidence revealed that before and after the husband had begun this suit, by conduct and statement, he had fully determined to ignore all marital ties so far as Olga Hughes was concerned. The wife is living with a sister, who married an uncle of her husband, and at the present time is in a measure dependent upon the charity of her family. The husband, by his testimony and conduct, reveals an utter indifference to the distressing situation of his wife.\\nThe 1934 amendment to section 5111 gives the trial court discretion as to whether it will or will not enter a decree providing for the maintenance of either of the parties, when no divorce is awarded. This is a judicial discretion which a trial court, in the proper case, must exercise.\\nIn the case at bar, the proper parties are before the court. Apparently each side has fully developed all available pertinent evidence. As stated, this evidence establishes that the husband has wilfully, and without just cause, deserted his wife, and that at this time she has no reasonable expectation that her husband will ever be willing to resume marital relations with her. The wife appears to be an innocent party. Under these circumstances, failure to exercise the judicial discretion vested by the statute in the court constitutes reversible error.\\nNewton E. Hughes is not now in a position to accept the custody of his child. In fact, he contends that its custody should be awarded to W. E. Hughes, the child's grandfather. It is true that the grandfather is a suitable person, willing to assume the responsibility of rearing the child, but Olga Hughes, his mother, also wants the child. The evidence affirmatively shows that she is a fit and suitable parent to have the custody of her boy. So far as this record is concerned, she appears to be an innocent victim of her husband's breach of his marital ties. Under these circumstances, she is entitled to the custody of the child, and the trial court should have so declared.\\nThe trial court refused to allow the wife either temporary or permanent alimony, suit money, or counsel fee. This was error.\\nA husband \\\"is under a legal obligation to support his wife and children, and if, without fault upon their part, he renders it impossible for them to remain under his roof, he cannot by his misconduct escape the performance of the duty which the law imposes upon him.\\\" Owens v. Owens, 96 Va. 191, 195, 31 S. E. 72, 74. The wife asked that she be paid $50.00 per month for the support and maintenance of herself and child. The husband seemed to think that this sum was fair and reasonable, as he testified he had arranged for her to receive this sum in cash and credit. After the final decree dismissing the cause, the wife was left with no assurance that she would receive any sum in cash or credit for the living expenses of herself and child. The parties had submitted their respective contentions, presumably supported by all available evidence, to a court of equity\\u2014a court clothed with full power to settle the rights and equities of the parties. It was the duty of the chancellor to pass upon the question presented, and not force the parties at some future date to again litigate the same issue. The necessities of the wife and child were immediate. She should not have been left to depend for sustenance upon the charity of members of her family, or upon the whim of a husband who had deserted her without just cause.\\nWhere a wife has no separate estate and is a defendant in a divorce suit brought by her husband, \\\"it is proper that she should be allowed a reasonable sum, to be paid by her husband to counsel of her own choice.\\\" Colbert v. Colbert, 162 Va. 393, 174 S. E. 660.\\nCounsel for Olga Hughes filed a petition in this court asking that he be allowed the sum of $100.00 for legal services rendered the wife in this court. ' It is stated in the petition that this is the minimum sum fixed in the schedule of fees adopted by the \\\"Wise County Bar Association for obtaining an appeal and appearing in the Supreme Court of Virginia.\\\"\\nIn Craig v. Craig, 115 Va. 764, 80 S. E. 507, decided January, 1914, this is said:\\n\\\"Counsel for appellee have asked that an allowance for counsel fees be made for services rendered in this court. This we decline to do, being of opinion that the trial court is in a better position to inquire into and do what is right and just between the parties in the first instance than this court. We shall, therefore, affirm the decree and remand the cause, but with leave to counsel for appellee to prosecute their claim for compensation before the law and equity court in the first instance, with the right of appeal to this court if a proper case shall be made for its exercise.\\\"\\nSince the above opinion was published, the General Assembly, upon recommendation of the 1919 Code revisors, has amended Code section 6365, requiring this court to \\\"render final judgment upon the merits, whenever, in the opinion of the court, the facts before it are such as to enable the court to attain the ends of justice.\\\" Under this provision, we have, in cases where it was not necessary to remand the case for the trial court to determine any other issue, allowed counsel an attorney's fee for appearance in this court. See Allen v. Allen, 166 Va. 303, 186 S. E. 17.\\nCounsel is entitled to compensation to be paid by the husband for his appearance both in the trial court, and in this court. As the case will have to be remanded on other questions, we deem it advisable for the lower court to pass upon the total amount of counsel's fee to be allowed.\\nFor the reasons stated, we reverse the decree of the trial court, and remand the case, with the following directions: That the trial court\\u2014\\n(1) Award the custody of the infant to the wife, with leave to the father to see his child from time to time, upon reasonable conditions, to be determined by it;\\n(2) Determine what would be a reasonable and just amount of alimony to which the wife is entitled under the circumstances disclosed, payment of the same to be begun as of the date the decree was entered refusing an allowance of the same to her, the husband to be given credit for any monthly sum or sums he may have theretofore paid his wife;\\n(3) Fix a reasonable compensation to be paid counsel for the wife, for services rendered in the trial court and in this court.\\nIn determining the compensation of counsel, permanent alimony, and the conditions under which the husband may be allowed to see his child, the trial court, upon request, should permit the parties, or either of them, to introduce additional relevant evidence on these issues.\\nReversed and remanded.\"}"
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+"{\"id\": \"2000626\", \"name\": \"Kitchen v. Commonwealth\", \"name_abbreviation\": \"Kitchen v. Commonwealth\", \"decision_date\": \"1922-03-30\", \"docket_number\": \"\", \"first_page\": \"700\", \"last_page\": \"702\", \"citations\": \"132 Va. 700\", \"volume\": \"132\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:07:42.228844+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kitchen v. Commonwealth.\", \"head_matter\": \"Richmond.\\nKitchen v. Commonwealth.\\nMarch 30, 1922.\\n1. Appeal and Error\\u2014Neiv Trial\\u2014Verdict not Disturbed where Evidence is Conflicting.\\u2014Where the facts which the jury were justified in finding from, the evidence of the Commonwealth were sufficient to establish the commission of the alleged offense by the accused, although the accused denied every incriminating fact, the issue is determined by the verdict of the jury and will not be disturbed on appeal.\\n2. Instructions\\u2014Repetition\\u2014Reasonable Doubt.\\u2014The refusal of instructions for accused to the effect that the prisoner\\u2019s guilt must be proved beyond a reasonable doubt is not error, where other instructions which emphasized with unnecessary repetition the same rule were given by the court.\\n3. Indictment and Information\\u2014Misnomer\\u2014Amendment\\u2014Code of 1919, Sections 1875, 1878.\\u2014Where the identity of the accused was never at any time questioned or doubted, the action of ' the trial court in permitting the attorney for the Commonwealth to change the name in the indictment from R. A. Kitchen to Ira Kitchen, is fully authorized by Code of 1919, sections 4875, 4878.\\nError to a judgment of the Corporation Court of the city of Roanoke.\\nAffirmed.\\nThe opinion states the case.\\nJohn G. Challice, for the plaintiff in error.\\nJohn R. Saunders, Attorney General; J. D. Hank, Jr., Assistant Attorney General, and Leon M. Bazile, Second Assistant Attorney General, for the Commonwealth.\", \"word_count\": \"678\", \"char_count\": \"4022\", \"text\": \"Prentis, J.,\\ndelivered the opinion of the court.\\nThe accused has been found guilty of rape, and is here assigning four errors.\\n1. The facts which the jury were justified in finding from the evidence of the Commonwealth, are, that the crime was committed upon a female child under the age of fifteen years. The physical condition of the child, who was examined by a physician on the night of the occurrence, showed beyond peradventure that some one had committed the alleged offense, and her testimony that the prisoner ravished her is clear, positive and distinct. While the accused denied every incriminating fact, this issue was determined by the jury and will not be disturbed here; so that the motion to set aside the verdict as contrary to the law and the evidence was properly overruled.\\n2. Two other errors were assigned'\\u2014one the refusal of the court to give two instructions offered by the defendant, and the other the giving of two instructions offered by the Commonwealth. It is unnecessary to say anything as to those which were refused, both of which were to the effect that the prisoner's guilt must be proved beyond a reasonable doubt, except that as the court gave six other instructions which emphasized with unnecessary repetition the same rule, the refusal to give these was justified. The prisoner objects to the giving of two of the instructions offered by the Commonwealth, but no reason is suggested in support of the assignment, except the assertion that there was no credible evidence of the crime. As to this, what we have already said as to the evidence is sufficient in our opinion to justify the instructions, as they fully safeguard every right of the accused.\\n3. The other error assigned is that during the progress of the trial the court permitted the attorney for the Commonwealth to change the name in the indictment from R. A. Kitchen to Ira Kitchen. The identity of the accused was never at any time questioned of doubted, and the action of the court is fully authorized by Code 1919, sec. 4875, which among other things provides that no indictment shall be abated for any misnomer of the accused, but the court may, in case of misnomer, appearing before or in the course of a trial, forthwith cause the indictment or accusation to be amended according to the fact; and Code 1919, section 4878 provides for amending indictments, provided the amendment does not change the nature of the offense charged, with the right to the defendant to have a continuance of the ca,se if the amendment operates as a surprise to him.\\nWe find no reversible error.\\nAffirmed.\"}"
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+"{\"id\": \"2002888\", \"name\": \"Hill, Et Al., v. Bell, Et Al.\", \"name_abbreviation\": \"Hill v. Bell\", \"decision_date\": \"1922-06-15\", \"docket_number\": \"\", \"first_page\": \"114\", \"last_page\": \"121\", \"citations\": \"133 Va. 114\", \"volume\": \"133\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:09:31.012521+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hill, Et Al., v. Bell, Et Al.\", \"head_matter\": \"Mytheville.\\nHill, Et Al., v. Bell, Et Al.\\nJune 15, 1922.\\nl.if Adverse Possession\\u2014Wild and Uncultivated Land\\u2014Necessity of Actual Possession.\\u2014In the instant case, a proceeding to ascertain the true boundary line between the lands of plaintiff and defendants, both parties claimed title by adverse possession to the land in dispute, most of which had never been cultivated and was \\u201cgrown up.\\u201d Neither party had actual possession of the land in controversy, but each claimed title to the extent of his boundary wherever that might be.\\nHeld: That the claim of title by adverse possession failed for want of proof, as'to both plaintiff and defendants.\\n2. Boundaries\\u2014Verdict\\u2014Alteration of Verdict\\u2014Judgment of Appellate Court.-\\u2014In the instant case, a proceeding to ascertain the true boundary line between the lands of plaintiff and defendants, the jury returned a verdict for plaintiff, and agreed on the survey of the county surveyor. Plaintiff objected to the verdict as being uncertain and indefinite, and the court directed the jury to retire and find a verdict in proper form. Whereupon one of the jurors asked if the jury had the right to find any other line, and the court verbally instructed the jury that- they were not obliged to follow exactly the lines claimed by the plaintiff or the defendants, to which direction neither party excepted. The jury thereupon rendered a verdict in favor of the plaintiff, but fixed another line. The original verdict was abundantly sustained by the evidence. The corrected verdict took away from the plaintiff a part of the land given to him by the original verdict and also gave him a small triangular shaped piece of land which the original verdict had given to the defendants. Counsel for plaintiff intimated that they were willing to sustain the loss imposed by the corrected verdict, and would enter a disclaimer as to the small triangular piece of land given by the original verdict to the defendants.\\nHeld: That defendants could not be hurt by the acceptance of the amended verdict together with the suggested disclaimer. The case was therefore remanded to the lower court with direction to put the plaintiff upon terms to disclaim of record any right, title, or interest to this small triangular piece of land, or else submit to a new trial.\\nError to a judgment of the Circuit Court of Campbell county in a proceeding to ascertain boundary lines under section 5490 of the Code of 1919. Judgment for plaintiff. Defendants assign error.\\nRemanded.\\nThe opinion states the case.\\nJames H. Guthrie, for the plaintiff in error.\\nRobert A. Russell and W. M. Murrell, for the defendants in error.\", \"word_count\": \"2470\", \"char_count\": \"14064\", \"text\": \"Burks, J.,\\ndelivered the opinion of the court.\\nThis is a proceeding under section 5490 of the Code to ascertain the true boundary line between the lands of the plaintiff and the defendants. There was a verdict and judgment for the plaintiff, and the defendants assign error.\\nThe plaintiff (Bell) claimed in his notice that the true boundary line was as follows: \\\"Beginning at a point on Seneca creek, just below the mouth of Pheasant branch, thence in a southerly and southwesterly direction along an old fence row to a point on the Marysville and Long Island road near the Island Gate.\\\" The plaintiff claimed title both by his title papers and by adverse possession for the statutory period. The defendants, following the provisions of the statute, filed no plea, but filed a statement of their grounds of defense in writing. These grounds were (1) that the old fence row was not the line between the plaintiff and the defendant; (2) that the plaintiff has not had adverse possession for the statutory period, or any legal possession, but on tbe contrary tbe defendants have bad sucb possession; and (3) tbat tbe true line is tbat shown by tbe survey of tbe land made by Rufus A. Murrell about tbe year 1875, and tbat defendants and those under whom they claim bave bad adverse possession for a long time prior to tbat time, \\\"and since then to tbe present time.\\\" Upon these pleadings tbe parties went to trial; tbe statute providing tbat tbe parties should be deemed to be at issue upon filing tbe grounds of defense, and without any replication.\\nIn vacation, and before tbe issue was made up, tbe judge of tbe trial court, on tbe motion of tbe petitioner, directed tbe county surveyor of Campbell county to \\\"make such surveys in this boundary controversy as be may deem necessary, and within reasonable limits, sucb as may be required by any party in interest; tbat said survey be made after reasonable written notice to tbe above mentioned parties both petitioner and defendants,'and does further direct the said surveyor to report bis acts hereunder to tbe court in this cause by filing plat and report before tbe September term, 1920, in tbe clerk's office of this court.\\\" This survey was made and reported, to the court pursuant to tbe vacation order aforesaid.\\nTbe quantity of land in dispute is 19^ acres, which is described by tbe plaintiff in bis testimony, as follows: \\\"Most of tbe land in dispute is grown up and there is no sign tbat any of it has ever been cultivated, except what I bave cultivated; along the creek it is mostly bills and bluffs, only some very small flats.\\\" Neither party bad actual possession of tbe land in controversy, but each claimed title to the extent of bis boundary wherever tbat might ;be. jh\\nTbe claim of title by adverse possession failed for want of proof, as to both plaintiff and defendants. The lands of both parties abutted on Seneca creek, into which there flowed two branches 1,179 feet apart at the creek, and it became all important to determine which of the two was known as \\\"Pheasant branch,\\\" as that was one of the calls in the Murrell survey. Upon this subject the testimony was very conflicting, with probably the preponderance in favor of what is called the upper branch. The surveyor, therefore, could not use either as a fixed point, but had to start at some other point about which there was no dispute. Both parties accepted the Murrell survey as correct, and that is about the only question in the case upon which all parties agreed. On nearly all other questions the witnesses were far apart. This Murrell survey is also spoken of as the \\\"Bruce Island Plat.\\\" The two are the same.\\nIn order to get an undisputed point of beginning, the surveyor went upon another tract, and, using the Bruce Island Plat, took as his first station the point where Rocky branch flows into Seneca creek, and ran the line in accordance with that plat, thence up the meanderings of that branch to a point near its source, and thence still with the courses of said Bruce Island Plat to the Marysville road, but the distance given in said plat fell 442 feet short of said road; thence crossing the road near Island Gate and continuing the same course and distance given on said plat to a station, and thence with the course given on said plat to Seneca creek, but the distance given in the last call fell short of reaching the creek by 330 feet. Of this latter shortage, Farmer, a surveyor who testified for the defendant, says, this \\\"330 feet is one 'out' by a two pole chain, the kind that was formerly in general use by surveyors.\\\" It will be observed that in the above survey, the county surveyor in every instance followed the course given by the Bruce Island Plat, after making proper changes for variation in the magnetic needle, but in two instances the distances fell short. The lines thus run brought the survey to an end at Seneca creek at the point where the lower branch empties into it. In his report to the court, the surveyor says that this survey \\\"was made by the Bruce Island Plat under which C. Booker Bell holds title.\\\" In other words, this is the line as claimed by Bell. The surveyor also ran three other lines which are shown on his plat. They are designated, respectively, \\\"Line to which A. C. Davis has held possession before the survey,\\\" \\\"Line called for in deed from Hill & Nichols to A. C. Davis,\\\" and \\\"Bruce Island Plat run from birch just below mouth of Upper Branch.\\\" A. C. Davis is the defendant in possession of the land in controversy.\\nThe defendants offered in evidence E. R. Farmer, a surveyor from South Boston, and certain plats prepared by him to show that the \\\"Pheasant branch\\\" mentioned in the record was the upper branch and not the lower. But he took as his starting point the rock corner at the \\\"Island Gate\\\" on the Marysville road, because he says the plaintiff had told him that was his corner. He says, \\\"Mr. Bell told me that was his corner, and I took it to be the location of the stump in the Upton line on Marysville road called for in the notes of Rufus A. Murrell's survey, but the Murrell notes don't fit to the Island Gate, and I changed the courses to agree with the distances, which is the usual method of adjusting discrepancies of that character in surveys.\\\" The plaintiff testified, \\\"I don't know anything about a corner stump on the Marysville road. Never saw a line stump there: there is a hole in the ground near the Island Gate in which there is a rock, but I do not know that it is a stump hole, or the line or corner called for in the deeds.\\\" Farmer also assigned other reasons for thinking that the upper branch was \\\"Pheasant branch,\\\" and there were a number of other witnesses who testified that the upper branch was \\\"Pheasant branch.\\\"\\nWith all this evidence before them, the jury-brought in the following verdict: \\\"We, the jury, find for the plaintiff, and agree on the survey of Fred Kabler, September 10, '1920,\\\" which is the survey of the county surveyor hereinbefore referred to bearing the date last mentioned.\\nThe plaintiff objected to the verdict \\\"as being uncertain and indefinite and not in proper form,\\\" and thereupon the court directed the jury to retire to their room and find a verdict in proper form. Whereupon one of the jurors asked the court if the jury had the right to find any other line as the true line, and the court gave to the jury the following verbal instruction: \\\"You are not obliged to follow exactly the lines claimed by the plaintiff or the defendant, but should find such verdict and fix such line as the law and the evidence establishes as the true line.\\\" To which direction neither party excepted. Then the jury again retired to their room, and some time thereafter returned into court and rendered the following verdict, to-wit: \\\"We, the jury, find for the plaintiffs, and ascertain the true boundary line between the plaintiff C. Booker Bell and the defendants, the coterminous land owners, to be as follows: Beginning at the Island Gate, thence a straight line to 'hollow maple' on Seneca creek, as shown on the plat of Fred Kabler, filed with his report in this ease.\\\"\\nThe original verdict, though general, fixed as the true boundary line between the litigants the line marked on the Kabler survey, \\\"Bruce Island plat run from mouth of Rocky branch.\\\" This finding was abundantly sustained by the evidence. The corrected verdict, however, giving a straight line from Island Gate to hollow maple, while sustained by the testimony of the plaintiff and one of his witnesses, is not supported by the title papers. The verdict, as corrected and accepted by the court, took away from the plaintiff a part of the land given to him by the original verdict and also gave him a small triangular shaped piece of land which the original verdict had given to the defendants. During the oral argument, counsel for the plaintiff (Bell) stated that they were willing to sustain the loss imposed by the corrected verdict, and would enter a disclaimer as to the small triangular piece of land lying east of the straight line fixed by the corrected verdict which was given to the defendants by the original verdict.\\nIf the original verdict was correct as to the location of the dividing line (and we cannot say that it was not), the defendants cannot be hurt by the acceptance of the amended verdict and the disclaimer aforesaid, for in this way they get more than they would have gotten by the original verdict if it had specifically located the line found by the jury. The jury had the benefit of the testimony and drawings of the surveyors, one presenting the view of each side of the controversy, as well as the testimony of a number of witnesses, and it is not likely that any more light would be thrown on the subject by any further surveys. Their finding under these circumstances should not be disturbed if the rights of the parties will not be violated thereby. The plaintiff, as we have seen, has signified his willingness to accept the verdict and make the disclaimer aforesaid, and this action on his part will not be prejudicial to the rights of the defendants as ascertained by the first verdict. The case, therefore, will be remanded to the Circuit Court of Campbell county with direction to put the plaintiff upon terms to disclaim of record any right, title, interest, or estate, in and to so much of the land shown by the Kabler line, run from the mouth of Rocky branch, as lies east of the straight line fixed by the verdict of the jury, or else submit to a new trial. Fry v. Stowers, 98 Va. 417, 36 S. E. 482. If the plaintiff shall make the disclaimer, the circuit court shall cause the true boundary line as fixed by the verdict of the jury and the disclaimer aforesaid, to be clearly and distinctly marked before entering judgment, and then enter up judgment accordingly; and upon entering judgment it shall further direct such record thereof to be made as appears to be proper. If the plaintiff declines or fails to make such disclaimer, the said circuit court shall award the defendants a new trial.\\nThere are two minor assignments of error to rulings of the trial court on the admissibility of evidence. We are of the opinion that the defendants were not prejudiced by either of them, and that they are not of sufficient general interest to warrant discussion.\\nThe defendants in error will be awarded their costs in this court as the parties substantially prevailing.\\nRemanded.\"}"
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diff --git a/va/2013093.json b/va/2013093.json
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+"{\"id\": \"2013093\", \"name\": \"Hughes, Guardian, v. City of Staunton\", \"name_abbreviation\": \"Hughes v. City of Staunton\", \"decision_date\": \"1899-11-16\", \"docket_number\": \"\", \"first_page\": \"518\", \"last_page\": \"520\", \"citations\": \"97 Va. 518\", \"volume\": \"97\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:13:05.156212+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hughes, Guardian, v. City of Staunton.\", \"head_matter\": \"Richmond.\\nHughes, Guardian, v. City of Staunton.\\nNovember 16, 1899.\\n1. Taxation\\u2014Funds of Ward\\u2014Change of Residence of . Guardian and Ward After Qualification of Guardian.\\u2014Although a guardian qualify as such in one city of this State, and at that time he and his ward' reside there, and the funds \\\"of the ward are held there, and the guardian settles all of his ew parte accounts before a commissioner of the court of that city, yet if the guardian and ward subsequently remove to another city of this State, and the funds of the ward are invested in the latter city, such funds are properly taxable in the latter city and not in the former.\\nError to a judgment of the Corporation Court of the city of Staunton, rendered March 29, 1899, on a motion to correct an erroneous assessment of personal property, wherein the plaintiff in error ivas the plaintiff, and the defendant in error was the defendant.\\nReversed.\\nThe opinion states the case.\\nR. P. Bell, for the plaintiff in error.\\nCarter Braxton, for the defendant in error.\", \"word_count\": \"887\", \"char_count\": \"4968\", \"text\": \"Cardwell, J.,\\ndelivered the opinion of the court.\\nPlaintiff in error, as guardian for her infant children, G'. M. and Jeannie Alexander, on the 29th day of March, 1899, made application, in accordance with the statute providing for the correction of erroneous assessment of property for taxation, to the Hustings Court of the city of Staunton for relief against certain taxes erroneously assessed against her for the year 1898 by tbe city of Staunton, on tbe ground that tbe said city had no right to assess tbe funds in her- bands belonging to ber said infants, as both she and tbey lived in tbe city of Lynchburg, where tbe funds were invested and taxed, and tbe city tax levied by tbe city of Lynchburg thereon for tbe year 1898 bad been paid.\\nThe Hustings Court for tbe city of Staunton, being of opinion that tbe funds in question were properly assessable in tbe city of Staunton, because tbe guardian bad qualified there, and bad there made ex parte settlements of her accounts as such, dismissed ber application.\\nThere is no controversy as to tbe facts relied on by plaintiff in error in support of her application, and tbey are as follows:\\nPlaintiff in error, at the t\\u00fane she qualified as guardian for ber children, in tbe Hustings Court of Staunton, in tbe year 1893, resided in tbe city of Staunton, and there made ex parte settlements of ber guardianship accounts before tbe commissioner of accounts of that court, from time to time, which were recorded in its clerk's office, and from tbe last of which settlements it appears that she bad in her bands as such guardian a fund amounting to $9,105.05. This fund has been assessed for taxation in tbe city of Staunton each year since tbe guardian's qualification, although she and ber wards several years ago moved to tbe city of Lynchburg, where tbey have ever.since resided. Tbe funds in tbe bands of tbe guardian are invested in tbe city of Lynchburg for tbe most part, none of them being invested in tbe city of Staunton. -In tbe spring of 1898 these funds were placed on the personal property tax books of tbe city of Staunton, and a State tax, as well as a city tax in favor of tbe city of Staunton, was levied thereon, and the State tax, amounting to $36.43, paid to tbe collector of State taxes in Staunton; but plaintiff in error refused to pay tlie city taxes claimed by tlie city of Staunton, because tbe funds in her bands bad also1 been assessed, and properly, as she was advised, for city taxation in tbe city of Lynchburg for tbe year 1898, and this tax, amounting to $150, bad been paid by ber to tbe collector of city taxes in tbe city of Lynchburg.\\nSection 1043 of tbe Code provides that cities shall have the right to make their annual levy, for tbe purposes stated in tbe statute, upon any property therein, and on such other subjects as may at tbe time be assessed with State taxes against persons residing therein.\\nUnder this statute, it is clear that tbe city of Lynchburg bad tbe right to assess a tax for city purposes for tbe year 1898 upon tbe funds in tbe hands of plaintiff in error; and tbe funds having been properly assessed and taxed for city purposes in the city of Lynchburg, and the tax thereon paid, there was no1 right in tbe city of Staunton to levy and collect a like tax upon the funds.\\nWe are of tbe opinion, therefore, that tbe order of tbe Hustings Court of tbe city of Staunton dismissing plaintiff in error's application to have corrected tlie assessment of tbe funds in ber bands, belonging to ber wards, for taxation for city purposes in tbe city of Staunton for tbe year 1898, is erroneous, and should be reversed and annulled; and this court will enter such order as tbe Hustings Court of Staunton should have entered, directing that tbe assessment of tbe funds in tbe bands of plaintiff in error placed upon the personal property tax book of tbe city of Staunton, for city taxation for tbe year 1898, be stricken therefrom.\\nReversed.\"}"
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+"{\"id\": \"2019197\", \"name\": \"Griffin, Receiver, v. Woolford\", \"name_abbreviation\": \"Griffin v. Woolford\", \"decision_date\": \"1902-06-26\", \"docket_number\": \"\", \"first_page\": \"473\", \"last_page\": \"480\", \"citations\": \"100 Va. 473\", \"volume\": \"100\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:28:44.033940+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Griffin, Receiver, v. Woolford.\", \"head_matter\": \"Wytheville.\\nGriffin, Receiver, v. Woolford.\\nJune 26, 1902.\\n1. Stabe Decisis&emdash;Obiter Opinions.&emdash;An opinion expressed in one case is not to be regarded as binding authority in subsequent cases unless the case called for its expression.\\n2. Limitation op Actions&emdash;Non-Residence&emdash;Code, Section 2938.&emdash;The non-residence of the maker of note, who was never a of this State, does not prevent the running of the act of limitations on the note. Such non-resident is not within the of section 2933 of the Code, as it existed prior to the amendment of Acts 1897-\\u20198, page 441. Wilkinson v. Holloway, 7 Leigh, 277, explained and distinguished.\\n3. Residence.&emdash;Residence, within the meaning of the act of limitation, is the permanent abiding or dwelling in a place'for a length of time, as contra-distinguished from a mere temporary locality of existence.\\nError to a judgment of the Circuit Court of Roanoke city, rendered January 30, 1902, in an action of debt, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.\\nAffirmed.\\nThe opinion states the ease.\\nMalcolm Griffin and Scott & Staples, for the plaintiff in error.\\nEverett Perkins, for the defendant in error.\", \"word_count\": \"2395\", \"char_count\": \"13810\", \"text\": \"Whittle, J.,\\ndelivered the opinion of the court.\\nThe controversy in this case arises out of the following facts: On January 22, 1892, O. A. Woolford and the defendant in error, O. W. Woolford, made two notes to the Hew Lansdowne Land Company, which were dated and made payable at Roanoke, Va., one and two years after date, respectively. These notes were endorsed and delivered by the payee to the Lansdowne Improvement Company. Subsequently, plaintiff in error, having been appointed receiver of the latter company, recovered judgment upon the notes against C. A. Woolford and the endorser, the Hew Lansdowne Land Company. C. W. Woolford was made a defendant to that action, but was not served with process.\\nSo far 'as the record discloses, no further effort was made to collect these notes from C. W. Woolford until the fall of 1901, when Receiver Griffin instituted an action of debt against him, with an ancillary attachment against certain parties who were ascertained to be indebted to him, in the Circuit Court of Roanoke. Affidavit having been made that C. W. Woolford was a non-resident, he was proceeded against by an order of publication. To that action the defendant filed pleas of nil debet, and the statute of limitations.\\nThere was a special replication to the latter plea, that at the time of the execution of the notes in question the defendant was a resident of the State of Virginia, and by departing without the same, within less than twelve months thereafter, obstructed, and, by ever since remaining a non-resident of the State, had ever since obstructed the plaintiff in his right of action upon the notes. To that replication the defendant filed a special rejoinder putting in issue all its averments.\\nBy agreement of parties all matters of law and fact were submitted to the court, which rendered judgment for the defendant.\\nThe provision relied on to defeat the bar of the statute of limitations is found in section 2933 of the Code of 1887, which is as follows:\\n\\\"Where any such right as is mentioned in this chapter shall accrue against a person who had before resided in this State, if such person shall, by departing without the same, or by absconding or concealing himself, or by any other indirect ways or means, obstruct the prosecution of such right, the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted. But this action shall not avail against any other person than him so obstructing, notwithstanding another might have been jointly sued with him, if there had been no such obstruction. And upon a contract which was made and was to be performed in another State or country, by a person who then resided therein, no action shall be maintained after the right of action thereon is barred by the laws of such State or country.\\\"\\nThe plaintiff in error rests his case on the affidavit of the non-residence of the defendant in error, upon which the order of publication was awarded, and the inference that the notes were made in Virginia, to be drawn from the fact that they purport to have been dated at Boanoke.\\nOn the other hand, it affirmatively appears from the evidence, that the defendant in error was a resident of the city of Baltimore, in the State of Maryland, and had never resided in the State of Virginia. Indeed, it was shown that he had never been to Boanoke on more than three occasions, probably only twice, and then on business trips, neither of which lasted longer than a day. The dates of these visits are not fixed with accuracy, the witness expressing the opinion that they were during the years 1890, 1891, and 1892.\\nThe sole question submitted for decision is whether or not, under that state of facts, the plaintiff in error has brought his case within the provisions of the statute.\\nHe relies upon the case of Wilkinson v. Holloway, 7 Leigh, 277, as decisive of the question. That case arose under sec. 14, Ch. 128, 1 Rev., Code 1819, which, in the case of Ficklin v. Carrington, 31 Gratt. 219, was declared to be substantially of the same import as section 2933, though differing somewhat in phraseology. The last paragraph of the syllabus of that case is as follows:\\n\\\"A debt is contracted at Petersburg, in Virginia, for goods sold there. The debtor resides at the time, and continues to reside, in North Carolina. The creditor brings suit in a court of this State against the debtor, who pleads the statute of limitations in bar. Held, by the 14th section of that statute, 1 Rev. Code, ch. 128, p. 491, he is precluded from making such defence.\\\"\\nNotwithstanding that statement 'by the distinguished reporter, his report in the case does not clearly show whether Holloway was a resident of Virginia, or of North Carolina, at the time he contracted the debt with Wilkinson & Co., and at the time it became payable. Notbiug appears in the statement of the facts of the case as to his residence, and Judges Brockeubrough and Cabell do not discuss the subject in their opinions. Nor does the language of Judge Brooke remove the uncertainty. He says: \\\"As the debt of Holloway to the plaintiff was contracted in Virginia, and he soon afterwards went or returned to North Carolina, and has resided there ever since, I cannot see how he Pan avail himself of the statute of limitations.\\\"\\nJudge Carr, on the other hand, seems to have been of opinion that PIblloway was a resident of Virginia when the debt was contracted, for he says: \\\"He left Virginia as soon as he executed the instrument, and' resided in North Carolina., thereby obstructing the plaintiff's action.\\\"\\nMr. Johnson, of counsel for Holloway, in adverting to the question as to where the bond was executed, remarked that, -\\\"To say the least, the facts touching this point do not appear in the record with sufficient certainty.\\\"\\nAnd, in speaking of the case, the author' in 1 Kob. New. Pr., p. 620, observes: \\\"A plaintiff had the benefit of this provision in an action against a defendant who, soon after executing a note, went from Virginia to reside in another State, thereby obstructing the plaintiff's action.\\\"\\nThus it appears that the value of Wilkinson v. Holloway as a precedent to 'bring this case within the influence of sec. 2933 is greatly impaired, if not destroyed, by the uncertainty of the facts upon which the decision rests.\\nBut aside from these considerations, it is apparent that but little attention was paid by the judges to that phase of the case. That question was of minor importance, and not at all necessary to a decision of that case, in as much as Holloway's original liability was a bond debt, which was not barred at the date of the institution of the suit against him.\\nThe real question discussed and decided was that where an attorney at law, employed to collect a debt, took in satisfaction the debtor's assignment of a bond of a third .party, which was put in suit by the creditor, who paid the cost of the litigation, the creditor did not thereby ratify the act of the attorney in thus commuting the original debt, and, the recovery on the assigned bond having proved unavailable, the debtor's original liability continued.\\nIt is obvious that the remarks of the judges as to the residency of Holloway, if not obiter, were merely incidental, and had no bearing upon the decision of the case.\\nIn determining the weight to be attached to such observations, it would be well to bear in mind the remarks of Chief-Justice Marshall, in that connection, in Marbury v. Madison, 1 Cranch. 127 and 174:\\n\\\"It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very, point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care and considered in its full ex tent. Other principles which may serve to Al\\u00fastrate it are considered in their relation to the ease decided, hut their possible bearing on all other cases is seldom completely investigated. The eases of Ex-Parte City Bank, 3 How. 292, and Peck v. Jenness, 7 How. 612, are illustrations of the rule that any opinion given here or elsewhere, cannot be relied on as a binding authority, unless the case called for its expression. Its weight of reason must depend on what it contains.\\\"\\nIn Markle v. Burch, 11 Gratt. 29, the court said: \\\"In Wilkinson v. Holloway, 7 Leigh, 277, four of the five judges who decided that case held that the debt due to the attaching creditors was a bond debt, and that therefore the statute was no bar to the recovery.\\\"\\nMr. Barton, in 1 Bar. L. Pr. 71, remarks: \\\"The apparently conflicting opinion rendered in the case of Wilkinson v. Holloway, 7 Leigh, 277, is explained by the court in Markle's Administrator and Others v. Burch's Administrator, by the statement, that the former case was upon a bond, and the statute would not have constituted a bar independent of any question of the debtor's non-residence.\\\"\\nAnd in 4 Min. Inst., Pt. I. (2d ed.), 555, it is said: \\\"It will be observed that the statute contemplates that the defendant shall once have been a resident of Virginia, at some time before the cause of action accrued, and not simply that the cause of action arose in Virginia. Hence the case of Wilkinson v. Holloway, 7 Leigh, p. 297 (in which it was held that a resident of Morth Carolina who contracted a debt in Petersburg, Va., and immediately returned to his home in iSTorth Carolina, thereby obstructing the plaintiff's remedy, and thereby precluded the defence of the statute) is no- longer maintainable.\\\"\\nIt will thus be perceived that, while the learned author accepted the reporter's version of the facts in Wilkinson v. Holloway, that Holloway was a resident of isTorth Carolina, he entertained, no doubt, that a debtor's prior residence in Virginia is essential to bring a case within the provisions of sec. 2933.\\nIt may be further remarked that in the year 1898 the Legislature amended sec. 2933, so as to dispense with prior residence, an amendment which would have been wholly unnecessary, if the construction contended for by counsel for plaintiff in error is correct. Acts 1897-8, p. 441.\\nThe conclusion having been reached that Wilkinson v. Holloway does not sustain the position of plaintiff in error, there is no difficulty in arriving at a proper construction of the statute. It means, what it so plainly declares: That where a right of action accrues against a person who had resided in this State before such right accrued, and, after such right accrued, by departing without the same . . . obstructs the prosecution of such right, the time during which such obstruction continues is not to be computed as any part of the time, within which the right might or ought to be prosecuted. Ficklin v. Carrington, 31 Gratt. 220; Dorr v. Rohr, 82 Va. 361; Brown v. Butler, 87 Va. 625; Embrey v. Jemison, 131 U. S. 172.\\nAs to what constitutes residence under the Virginia statutes, Mr. Minor says: ' '\\n\\\"Residence or inhabitancy (for they seem to have the same meaning) is defined to be the place of abode, dwelling, or habitation for some continuance of time. To reside in a place is to abide or dwell there permanently for a length of time, as contradistinguished from a mere temporary locality of existence.\\\" 4 Min. Inst. (Pt. I.), p. 367.\\nMr. Barton gives the following definition: \\\"He is a resident who, though absent in person, has here his home and permanent abiding place; and 'he is a non-resident who, though present, has his home and permanent abiding place in some other State or country.\\\" 2 Bar. Law Pr. 915. Long v. Ryan, 30 Gratt. 720.\\nIn the light of the foregoing definitions, it is apparent from an analysis of the statute, that the case of the plaintiff in error falls under neither of its provisions (while a concurrence of both is essential to stop the running of the statute of limitations)-\\u2014 not under the first, because the defendant in error had not resided in the State before the right of action accrued; and not under the second, because he did not depart without the same, after such right had accrued, and his previous departure could not have obstructed the prosecution of the right of action.\\nIt will be remembered that Woodford's last visit to- Roanoke was in 1892, and the first note was not payable until January 2, 1893.\\nThere is no error in the judgment complained of, and it must be affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"2024614\", \"name\": \"Richmond Passenger & Power Company v. Gordon\", \"name_abbreviation\": \"Richmond Passenger & Power Co. v. Gordon\", \"decision_date\": \"1904-03-10\", \"docket_number\": \"\", \"first_page\": \"498\", \"last_page\": \"508\", \"citations\": \"102 Va. 498\", \"volume\": \"102\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T19:15:53.276347+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Richmond Passenger & Power Company v. Gordon.\", \"head_matter\": \"Richmond.\\nRichmond Passenger & Power Company v. Gordon.\\nMarch 10, 1904.\\n1. Street Railways\\u2014Persons and Vehicles Crossing Track\\u2014Foresight.\\u2014A street-ear company owes the duty of foresight to persons and vehicles crossing its tracks in a city, and if the failure to keep a proper lookout was the proximate cause of an injury inflicted upon a person crossing its track, it is liable, notwithstanding the fact that the person injured was guilty of negligence in, going upon the track.\\n2. Negligence\\u2014Concurrent negligence of Plaintiff and Defendant.\\u2014If the proximate cause of an injury is the negligence of both plaintiff and defendant concurring and co-operating together, the plaintiff cannot recover.\\n3. Instructions\\u2014Conflicting Evidence\\u2014Different Theories of Case.'\\u2014\\u25a0 Where there is evidence tending to prove that the injury sued for was caused by the concurrent and co-pperative negligence of both plaintiff and defendant, and also evidence tending to prove that the defendant\\u2019s negligence alone was the proximate cause of the injury, each party has the right to have his view or theory of the case presented to the jury by proper instructions for that purpose.\\n4. Ordinary Care\\u2014Street Railways\\u2014Crossing Tracks.\\u2014While it is difficult to frame a perfectly clear and accurate definition of the term \\u201cordinary care,\\u201d a jury could not have been misled by an instruction which told them that it was not negligence as a matter of law for one about to. cross a street railway to omit to look and listen for cars, and that the question was whether men of ordinary prudence, exercising ordinary care and prudence, would have thought it unnecessary to do so.\\n5. Instructions\\u2014negligence\\u2014Burden of Proof.\\u2014In a case involving questions of negligence and contributory negligence, it is not error to instruct the jury as to who has the burden of proof.\\nError to a judgment of the Law and Equity Court of the city of Richmond in an action of trespass on the case, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.\\nReversed.\\nThe opinion states the case.\\nHenry Taylor, Jr., for the plaintiff in error.\\nMeredith & Cocke, for the defendant in error.\", \"word_count\": \"3681\", \"char_count\": \"21012\", \"text\": \"Buchanan, J.,\\ndelivered the opinion of the court.\\nThis action was instituted by John W. Gordon to Recover damages for injuries done him at a street crossing in the city of Richmond by the alleged negligent -running of an electric street railway car operated by the Richmond Passenger & Power Companv.\\nUpon the trial of the cause the plaintiff asked for eight instructions, and the defendant for three. All the instructions asked for were given as asked, or with such modifications as the court saw proper to make. Eo objections are made here to instructions numbered 2, 3, 4, 5, and 8, given for the plaintiff, nor to instruction \\\"a\\\" given for the defendant. The assignments of error chiefly relied on are the giving of the plaintiff's instruction Eb. 1, and the refusal of the court to give the defendant's instructions \\\"b\\\" and \\\"c\\\" as asked, and in giving them as modified by the court.\\nThe following is a copy of instruction ETo. 1:\\n\\\"If the jury find that the plaintiff was guilty of want of reasonable and ordinary care in attempting to cross the tracks of the defendant under the circumstances referred to, then he is not entitled to recover, unless they believe from the evidence that the motorman could have avoided the accident by the use of ordinary care after lie saw, or by the use of ordinary care might have seen, that the plaintiff was on the track, or very near thereto, and driving towards the same, and was in danger of being struck by the car; and, if they shall so believe, then they must find for the plaintiff.\\\"\\nThe objection made to that instruction is, first, that there was no evidence to show that the motorman could have avoided the accident by the exercise of ordinary care after he saw the plaintiff's peril; and second, that the proposition that they must find for the plaintiff if the jury believed that the motorman might, by the exercise of ordinary care, have seen the plaintiff's peril, and avoided the accident, is not law.\\nThere is no evidence that after the motorman saw the plaintiff's danger he could have avoided the accident; but there is evidence tending to prove that, if the motorman had been exercising ordinary care as his car approached the crosing, he could have seen the plaintiff's peril in time to have prevented the injury. There is evidence tending to show that the plaintiff, as he drove along Eloyd avenue towards the crossing where that avenue intersects Harrison or Beech street, stopped or checked the one-horse vehicle in which he, his wife, and son were riding about forty feet from the crossing at the time a north-bound street car crossed Eloyd avenue, and that he then proceeded towards the crossing; that the north-bound car passed the car going south, which did the injury, from sixty to seventy-five feet north of Eloyd avenue; that from that point there was nothing to prevent the motorman on the south-bound car from seeing the plaintiff's vehicle as it approached the street car track; that from the point where the cars passed each other to the point where the plaintiff's vehicle was struck was one hundred feet or more; that a car running at the rate of six or seven miles an hour, as the motorman said his.car was running, could, under favorable circumstances, be stopped in about a car length, which was shown to be about thirty-five feet, and that the car was actually stopped in about forty-five feet after tbe motorman saw the plaintiff's vehicle. This evidence was sufficient to justify the court in giving the instruction in question, under a long line of decisions of this court.\\nIn the case of R. & D. R. R. Co. v. Anderson, 31 Gratt. 812, 31 Am. Rep. 750, decided a quarter of a century ago, it was held, Judge Burks delivering the opinion of the court, that, though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse the defendant. To sustain the conclusion reached in that case the learned judge approved and followed the decision of the House of Lords in the case of Radley v. London etc. Ry Co., 1 App. Cases (Law Rep. 1875-'76), 754, 759, which cites and affirms Davies v. Mann, 10 M. & W. 545, and Tuff v. Warman, 5 C. B. (N. S.) 573.\\nIn the case of Marks etc. v. Petersburg R. R. Co., 88 Va. 1, 10, 13 S. E. 299, which was an action for damages for causing the death of a traveller at a street crossing by the defendant railroad company's cars, it was said by Judge Lewis, in discussing the subject of contributory negligence: \\\"If a person attempts to cross a railroad at a highway crossing without using his senses of sight and hearing, even though the company be negligent, the law, as well as common prudence, condemns his act as careless. But this is a mere presumption, which may be repelled by evidence showing that the case is within one or more of the exceptions to the general rule before mentioned. In the absence of such evidence, however, the contributory negligence of such person, when injured, will preclude a recovery, unless the company might, by the exercise of ordinary care on its part, have avoided the consequences of the plaintiff's negligence.\\\" \\\"This qualification of the doctrine of contributory negligence,\\\" he continues, \\\"is laid down in the leading case of Tuff v. Warman, 2 C. B. (N. S.) 740, and so often recognized by this court.\\\" After citing a number of the decisions of this court, he adds: \\\"Applying this test to the present case, we are of opinion that the plaintiff is not entitled to recover, for it is manifest that ordinary care on the part of the defendant could not have discovered the negligence of the deceased in time to avoid the accident.\\\"\\nIn the case of the Seaboard, etc., R. R. Co. v. Joyner, 92 Va. 354, 23 S. E. 773, this court, in considering the question of the duty of a railroad company to avoid injuring a trespasser, said: \\\"The law upon this subject is, we think, properly stated in the ninety-ninth section of Shearman & Redfield on the law of ISTegligence (4th Ed.), where it is said that: 'The plaintiff should recover, notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he complains was approximately caused by the omission of the defendant, after having such notice of the plaintiff's danger as would put a prudent man on his guard, to use ordinary care for the purpose of avoiding such injury. It is not necessary that the defendant should actually know of the danger to which the plaintiff is exposed. It is enough if he have sufficient notice or belief to put a prudent man on the alert, and he does not take such precautions as a prudent man would take under similar notice or belief.' \\\" To the same effect is Tucker s case, in 92 Va. 549, 24 S. E. 229, and Dunnaway's in 93 Va. 29, 36, 37, 24 S. E. 698.\\nIn the ease of B. & O. R. R. Co. v. Few's Ex'r, 94 Va. 82, 89, 26 S. E. 406, it was held that a railroad company is liable for a personal injury inflicted on a traveller at a public crossing if its agents or servants in charge of a moving train saw him in a position of danger, or by the use of diligence might have seen him, and failed to stop the train, and prevent it from injuring him.\\nIn Blankenship's case, 94 Va. 449, 457, 27 S. E. 20, 22, it was said, in discussing this question and explaining what was meant by certain language used in Dunnaway's case, supra, that: \\\"By the use of the language Svhen the trespasser is discovered, or by ordinary care and caution might have been discovered/ it was not intended to say that under ordinary conditions it was the duty of the railroad company to keep a lookout for trespassers (for the question was not involved in that case), but to declare, where it had such notice or belief that some one might be in danger as ought to put a prudent man on the alert, it became the company's duty to be on the lookout, and it might be held responsible for injuries done a trespasser under such circumstances, not only after his danger was discovered, but where, by ordinary care and caution, it might have been discovered, unless it did all that could be done to avoid injuring him consistently with its higher duties to others.\\\"\\nIn Washington etc. R. Co. v. Lacy, 94 Va. 460, 476, 26 S. E. 834, 839, which was also a street crossing case, it was said, after declaring what the duty of a traveller was in approaching a street crossing over which a steam railroad was operated: \\\"If he fails to use these necessary precautions, and injury ensues, he cannot recover, unless the defendant company, by the exercise of ordinary care and diligence, might have prevented the injury after it discovered, or ought to have discovered, his peril.\\nIn C. & O. Ry. Co. v. Rodgers, 100 Va. 324, 325, 41 S. E. 732, where the party injured was walking on the defendant company's track at a point where persons were accustomed to walk, it was held that in such a case a defendant was liable for the injury inflicted upon the plaintiff, notwithstanding the latter's negligence, if, by the exercise of reasonable care, the plaintiffs danger could have been discovered in time to save him.\\nRichmond P. & P. Co. v. Steger, 101 Va. 319, 43 S. E. 612, and Richmond Traction Co. v. Martins Adm'x, ante p. 205, 45 S. E. 886, are to the same effect. In the last-named case, decided at the December term, 1903, it was said by Judge Whittle, speak ing for the court, that: \\\"The well-known rule in this class of cases is that a plaintiff seeking to recover damages for an injury caused by the negligence of the defendant must himself be free from negligence, and, if it appears that his negligence has contributed as an efficient cause to the injury of which he complains, the court will not undertake to balance the negligence of the respective parties for the purpose of determining which was most at fault. The law recognizes no gradations of fault in such case, and, where both parties have been guilty of negligence, as a general rule, there can be no recovery. There is really no distinction between negligence in the plaintiff and negligence in the defendant, except that the negligence of the former is called 'contributory negligence.'\\n\\\"The general rule adverted to is subject, however, to the qualification that, where the negligence of the defendant is the proximate cause of the injury, and that of the plaintiff only the remote cause, the plaintiff may recover notwithstanding his negligence; the doctrine in that respect being that the law regards the immediate or proximate cause which directly - produces the injury, and not the remote cause which may have antecedently contributed to it. From that principle arises the well-established exception to the general rule that if, after the defendant knew, or, in the exercise of ordinary care, ought to have known, of the negligence of the plaintiff, it could have avoided the accident, but failed to do so, the plaintiff can recover. In such case the subsequent negligence of the defendant in failing to exercise ordinary care to avoid injuring the plaintiff becomes the immediate or proximate and efficient cause of the accident, which intervenes between the accident and the more remote negligence of the plaintiff.\\\"\\nThese cases establish the doctrine that, where a railroad company or a street railway company knows or has reason to believe that persons are likely to be on their tracks at a particular point, such company owes two duties to such persons: First, to keep a lookout in approaching such point; and second, to avoid injury when it sees such persons in peril, if it can be done by the exercise of ordinary care. And if it fails to keep such lookout, and thereby fails to see such persons' peril, and inflict injury, it cannot escape liability on that ground, but its liability will depend not upon what it actually knew, but upon what it would have known if it had performed its duty in keeping a proper lookout. And this seems to be the rule generally.\\nShearman & Redfield, in their work on [Negligence (5th Ed. 484), say: \\\"The rule that a plaintiff is as a matter of law negligent if he fails to see what he was bound to look for and ought to have seen, is rigidly enforced; and the same rule must, in common justice, be applied to the defendant. And in fact it actually is in almost every court where the question is squarely presented.\\\" And in section 485c they say: \\\"The operator of a street car, especially if it is impelled by cable or electric power, is bound to keep a constant watch for persons and vehicles on the street; and although he is not bound to anticipate that foot passengers will attempt to cross otherwise than at regular crossings, and therefore need not maintain quite the same degree of vigilance elsewhere, he is always responsible for failing to see even persons crossing at other places, if he would have seen them, had he been in the exercise of ordinary care. The rule exempting railroads from responsibility -where train men do not in fact see a person on the track . . . certainly applies only against trespassers, and therefore does not apply to city streets or street cars.\\\"\\nThe court did not err in giving the instruction in question.\\nInstruction \\\"b,\\\" as offered, is as follows: and shall further believe that in the exercise of reasonable care, by looking or listening, he could have seen or heard the car approaching before getting into a position of danger, and failed to so ascertain the approach of the car, and that he thereby contributed to the accident, they must find for the defendant.\\\"\\n\\\"The court further instructs the jury that if they believe from the evidence that John W. Gordon slowed down his horse when about forty feet from the track to allow the north-bound car to pass, and shall further believe from the evidence that after the north-bound car had passed he quickened the pace of his horse,\\nInstruction \\\"b,\\\" as offered, stated the general rule on the subject of contributory negligence, but failed to state the exception to it. In that respect it was amended by the court. As offered, it was in conflict with instruction Ho. I, which, as we have seen, was properly given. There was no error either in refusing to give instruction \\\"b\\\" as offered or in giving it as modified by the court.\\nInstruction \\\"c,\\\" as asked for by the defendant, was in the following words:\\n\\\"The court further instructs the jury that if they believe from the evidence that this accident was caused by the concurrent negligence of the motorman and of John W. Gordon, due to each failing to keep a proper lookout, they must find for the defendant.\\\"\\nIf the proximate cause of the injury was the negligence of both plaintiff and defendant concurring and co-operating together, then the general rule as to contributory negligence, and not the exception to the rule, applied, and the plaintiff was not entitled to recover. Beach on Contributory Hegligence, section 56.\\nThe defendant therefore had the right to have that theory or view of the case submitted to the jury. Where there is evidence tending to prove that the case comes within the general rule as to contributory negligence, and also evidence tending to prove that the case comes within the exception to that rule, each party has the right to have his theory or view of the case presented to the jury by proper instructions. If any authority were needed for this statement, it will be found in the case of Richmond Traction Co. v. Martin's Adm'x, supra.\\nThe court therefore erred in refusing to give instruction \\\"c\\\" as offered, which presented the defendant's theory of the case, and which, if sustained by the evidence, would have entitled it to a verdict.\\nIn the modified form in which the court gave it, it was clearly erroneous. If the proximate and efficient cause of the accident was the concurrent negligence of both parties, the plaintiff could not bring himself-within the exception to the general rule, and he was not entitled to recover.\\nInstruction Ho. 1, as given by the court, is as follows:\\n\\\"The jury are instructed that travellers may walk, ride, or drive either across or along a street railway track just as freely as upon any other part of the street, so long as they do not obstruct the cars, or carelessly expose themselves to danger. And while generally speaking, one who is about to cross a street railway should both look and listen for cars, this is not an inflexible rule, nor is it to be enforced with any such strictness as in cases of an ordinary steam railway. It is not negligence as a matter of law to omit to do so. The question is whether men of ordinary prudence, exercising ordinary care and prudence, would have thought it unnecessary to do so.\\\"\\nThe last sentence of this instruction is criticised as not correctly* stating the rule by which the jury might determine whether or not the plaintiff exercised ordinary care in approaching the street car crossing. The language used varies somewhat from the usual statement of the rule as to what constitutes ordinary care. It is difficult, if not impossible, to frame a definition of \\\"ordinary care\\\" which will be perfectly clear and accurate. But the definition given in the instruction does not differ in substance from that usually given in such cases, and the jury could not have been misled by it.\\nObjection is also made to instruction Ho. 6, which is as follows:\\n\\\"The jury are instructed that the burden is on the plaintiff to prove the negligence of the defendant company as charged in the declaration; and that, if the defendant relies on the contributory negligence of the plaintiff as a defence, the burden is on the defendant to prove such contributory negligence, unless it is disclosed by the plaintiff's evidence, or may be fairly inferred from all the circumstances of the case; and in the absence of such proof and inferences from the circumstances the plaintiff is presumed to have been -without fault.\\\"\\nIt is conceded that this instruction (Ho. '6) correctly states the law as an abstract proposition, but it is insisted that the court erred in giving it because it had no application to the facts of this case.\\nThe case before the jury was one involving questions of negligence and contributory negligence. An instruction which correctly stated to the jury upon whom the burden of proof was in such a case cannot be regarded as erroneous, or as tending to mislead the jury.\\nIt is unnecessary to consider the remaining assignment of error that the verdict is against the evidence, as the judgment will have to be reversed, the verdict set aside, and a new trial o awarded for the error committed by the court in refusing to give instruction \\\"c,\\\" as offered, and in giving it as amended by the court.\\nReversed.\"}"
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+"{\"id\": \"2026721\", \"name\": \"Swift & Company v. City of Newport News\", \"name_abbreviation\": \"Swift & Co. v. City of Newport News\", \"decision_date\": \"1906-03-01\", \"docket_number\": \"\", \"first_page\": \"108\", \"last_page\": \"128\", \"citations\": \"105 Va. 108\", \"volume\": \"105\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"Swift & Company v. City of Newport News.\", \"head_matter\": \"Richmond.\\nSwift & Company v. City of Newport News.\\nMarch 1, 1906.\\n1. Municipal Corporations\\u2014Streets\\u2014Change of Grade\\u2014Damaging Private Property.\\u2014At common law municipal corporations were not liable to one whose land was not taken for consequential damages arising from the change of grade of a street, although his improvements had been made on his lot in conformity to a former grade, and such was the law in this State prior to July 10, 1902, when the present Constitution was proclaimed. Since that date it is unlawful to damage private property for a public use without just compensation, just as it was unlawful theretofore to take private property for a public use without just compensation.\\n2. Eminent Domain\\u2014Damage to Property\\u2014Constitutional Provision\\u2014 How Enforced.\\u2014The provision of the present Constitution which forbids damage to private property for a public use without just compensation is self-executing, and, there being no statute providing a remedy for the recovery of such compensation, the appropriate common law action may be brought therefor.\\n3. Eminent Domain\\u2014Damage to Property\\u2014Constitutional Provision\\u2014 Effect on Statutes.\\u2014Upon the adoption of a Constitution forbidding the damaging of private property for a public use without just compensation, all existing statutes inconsistent with the Constitution are thereby nullified, and subsequent inconsistent statutes are forbidden.\\n4. Eminent Domain\\u2014Damage to Property\\u2014Constitutional Provision\\u2014 Prior Enactments\\u2014Subsequent Taking.\\u2014The constitutional inhibition upon taking or damaging private property for a public use without just compensation applies to the time of the actual taking or damaging, not to a mere paper taking or damaging. The fact that an ordinance of a city council directing a change in the grade of a street which damages the property of an adjacent land owner was adopted prior to the proclamation of the Constitution can have no effect if the actual damage was done after such proclamation. It is the actual taking or damaging which the Constitution protects, and for which an action will lie.\\n5. Municipal Corporations\\u2014Changing Grade of Streets\\u2014Effect of Constitutional Provision\\u2014Damages\\u2014Bight to Nominal Damages.\\u2014The new Constitution (1902) has not taken from the cities of the State-the right to raise or lower the surface of a street when necessity requires, nor made it dependent upon the will of the parties affected' thereby, but only provides that just compensation shall be made-for the damage done. Hence, if no damages have been done, no right has been violated, even though the established grade of the-street may have been changed. The gist of an action brought under the Constitutional provision against \\u201ctaking or damaging\\u201d is not to establish a legal right, but to recover just compensation, substantial damages. Hence, there can be no recovery of nominal damages as such.\\n6. Eminent Domain\\u2014Property Damaged but not Taken\\u2014Measure of Damages\\u2014Adjusting Property to Improvement.\\u2014Where private-property has been simply damaged by a public improvement, but no part thereof has been taken, the measure of damages is the diminution in the value of the property by reason of the improvement\\u2014difference between the fair market value of the property immediately before and after the construction of the public improvement. The cost of adjusting the property to the improvement, as,, for example, the cost of laying a new sidewalk, is a proper element to be taken into consideration in determining whether the property has been depreciated in value or not, but is not to be considered and assessed separately, independent of the enhanced value of the-property by reason of the improvement.\\n7. Eminent Domain\\u2014Damage to Property\\u2014Expert Testimony.\\u2014Experts may give their opinions as to whether a particular piece of private property has been enhanced or depreciated in value by reason of a public improvement.\\nError to a judgment of the Corporation Court of the city of Newport News, in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.\\nAffirmed.\\nThe opinion states the case. The instructions given by the ;trial court were as follows:\\n\\u201cA. The court \\\"instructs the jury that in determining from the evidence whether or not the plaintiff has been damaged by the change of grade occasioned by the public improvement made .'in 23d street in front of the property they will take into eon.\\u25a0sideration the benefits, if any, derived therefrom as a whole, .and likewise the damages, if any, to the said property, as a whole and not to any specific part thereof, and if they believe firom all of the evidence that the market value of the said property was as much immediately after the grade in the street lad been so changed, as it was immediately before, not knowing it was to be so changed, then they will find for the defendant.\\u201d\\n\\u201cB. The court instructs the jury that if they believe from the evidence that the raising of the grade of 23d street was occasioned by the city\\u2019s paving at its own expense the said street in front of the plaintiff\\u2019s property, and that such improvement \\u25a0of the street did not reduce the market value of said property, you will find for the defendant. By street is meant \\u2018drive-way\\u2019 mot \\u2018sidewalk.\\u2019 \\u201d\\n\\u201c1. If the jury believe from the evidence that, at some time .-after 12 o\\u2019clock M. of July 10, 1902, and prior to the institution of this action, the defendant city of Newport News changed, \\u2022or caused to be changed, the grade of 23d street in front of the premises of the plaintiff, Swift and Company, and raised the -surface and grade of said street about seven inches above the -surface and grade as it had theretofore existed, thereby leaving the lot of the plaintiff, and the building thereon, which had been luilt with reference to the original grade, below grade, and so \\u25a0damaged the property of the plaintiff, they must find for the plaintiff.\\u201d\\nBickford & Stuart, for the plaintiff in error.\\nJ. A. Massie, for the defendant in error.\", \"word_count\": \"6684\", \"char_count\": \"39109\", \"text\": \"Cardwell, J.,\\ndelivered the opinion of the eonrt.\\nThis action was brought in the Corporation Court of the city of Newport News by Swift & Co., a private corporation, to recover of the said city damages alleged to have been sustained in consequence of a change in the grade of a street.\\nThe plaintiff is the owner of two lots, with a frontage of fifty feet, on Twenty-third street, between Washington and Huntington avenues in said city, upon which is a costly building used by the plaintiff in the conduct of a wholesale beef and cold storage business, with a branch depot for the distribution of its beef to purchasers. In this building there is a basement with windows, around which are light shafts which extend into the sidewalk, which basement is used for the operation of an electric motor and other machinery. The building was erected with reference to the then existing grade of Twenty-third street, and in front of same was laid a granolithic sidewalk. The defendant city determined to pave this street entirely at its own expense, and, in order to do so, found it necessary to make a slight change in the grade in front of plaintiff's property, and to raise the surface of the street between four and seven inches. This change of the grade of the street was made, and a contract for paving the street in accordance with the new grade was let prior to the taking effect of the new Constitution of the State, at 12 M., July 10, 1902, and work was begun under the contract on other parts of the street; but the contractors did not reach the point in front of plaintiff's property until shortly after the new Constitution took effect. In front of plaintiff's premises the city put iu what is known as a low or \\\"drive-over\\\" curb, which does not extend above the pavement, but the street when completed was several inches higher than the sidewalk theretofore constructed by the plaintiff, and thereupon it proceeded to construct another sidewalk, which is fifteen feet in width, bringing it up to the surface of the pavement, at a cost of $128.00.\\nThe declaration filed sets out the foregoing acts on the part of the defendant city as wrongful and unlawful, and alleges injury and damage to the plaintiff's property, and depreciation of its market and rental value to the amount of $400.00.\\nIts demurrer to the declaration having been overruled, the city filed its plea of not guilty, and upon the issue joined on this plea the verdict and judgment were for the defendant.\\nWe are asked to review and reverse this judgment because of misdirection of the jury in the giving and refusal of instructions, and because the verdict is contrary to the law and the evidence.\\nAt common law, as has been repeatedly held by this court, municipal corporations were not liable for consequential damages, arising from the change of grade, of a street, to one whose land was not taken, although his improvements had been made on his lot in conformity to a former grade. Harrisonburg v. Roller, 97 Va. 582, 34 S. E. 523; Home Building, &c., Co. v. Roanoke, 91 Va. 52, 20 S. E. 895, 27 L. R. A. 551, and authorities cited.\\nIt is also well settled that the common law remains in force in this State, except when changed by statute or the Constitution, which operate prospectively only, unless the words employed show clearly and expressly the intention that it should be otherwise. Arey v. Lindsay, 103 Va. 250, 48 S. E. 889; Kesterson v. Hill, 101 Va. 739, 45 S. E. 288; Cooley's Const. Lim. 97.\\nThis action, therefore, can be maintained, if at all, only by reason of some right secured to plaintiff in error by a change of some provision or provisions of the old Constitution of the State found in the present Constitution, as it is not alleged that there has been any legislation, and in fact there has been none, on the subject of damages to private property by public improvements since the present Constitution went into effect. There was no taking of property, and the defendant in error had the power, both at common law and by section 29 of its charter (Acts 1895-'06, p. 80), to grade and improve streets without the payment of consequential damages.\\nThe provision in the Bill of Bights, in the old Constitution (section 8, Article 1), that \\\"all men, having sufficient evidence of permanent common interest with, and attachment to, the community have the right of suffrage and cannot be taxed, or deprived of their property for public uses, without their consent, or that of their representatives duly elected\\\" . . . has been changed by adding in the corresponding section of the new Constitution (section 6), after the words \\\"or deprived of,\\\" the words \\\"or damaged in,\\\" so that the provision of the Bill of Bights contained in the present Constitution is that citizens of the State cannot be deprived of, or damaged in, their property for public uses, without their own consent, or that of their representatives duly elected, &c.\\nBy the change made in section Id, Article 5, of the old Constitution, which contained the provision that the General Assembly should not enact any law whereby private property might be taken for public uses without just compensation, it is now provided (section 58, Article d, new Constitution) that the General Assembly \\\"shall not enact any law whereby private property shall be taken or damaged for public uses, without just compensation.\\\"\\nConstitutional provisions, in pari materia, like statutes, are to be construed together, and effect is to be given to the policy established by the Constitution. To that end, a fair interpretation is to be given to the language used, construing words in their common and ordinary acceptation, unless it clearly appears that they were intended to be used in some other sense. Ry. Co. v. Clowers' Admr., 102 Va. 867, 47 S. E. 1003; Funkhouser v. Spahr, 102 Va. 306, 46 S. E. 378.\\nIt clearly appears, we think, that it was the policy of the framers of the present Constitution, in adopting section 6 of-Article 1, and section 58 of Article 4, worded in a similar way that the corresponding provisions in the old Constitution were worded, that it should be unlawful thereafter to damage private property for public use without just compensation, just as it was unlawful theretofore to take private property for public use without just compensation.\\nThis change follows similar provisions in the Constitution of West Yirginia, adopted in 1872, which were taken from the Constitution of the State of Illinois of 1870, except that the provision in the two last-named Constitutions is a positive statement that \\\"private property shall not be taken or damaged for public use without just compensation.\\\"\\nIt was the design of the amendment to our Constitution under consideration to remove an existing mischief, viz: the damaging of private property for public use without just compensation, and a constitutional provision should never be construed as dependent for its efficiency and operation upon legislative will. 6 A. & E. Ency. L. 913, and authorities cited. So that when the provision of a Constitution, as-does ours, no less than the provision in the Constitutions of the States of West Yirginia and Illinois, forbids damage to private property, and points out no remedy, and no statute affords one, for the invasion of the right of property thus secured, the provision is self-executing, and the common law, which provides a remedy for every wrong, will furnish the appropriate action for the redress of such grievance. 6 A. & E. Ency. L. 913, and authorities cited in note. And all statutes existing when such a Constitution is adopted, or which might thereafter he passed, inconsistent with its provisions, are nullified by such constitutional prohibition, though legislation may nevertheless be desirable and valuable for the purpose of defining the right and aiding in its enforcement. Same authority just cited, and Oakland Paving Co. v. Hilton, 69 Cal. 479 , 11 Pac. 3.\\nIn People v. McRoberts, 62 Ill. 41, the contention was made that the provision of the Illinois Bill of Bights, inhibiting the taking of private property for public use was only prospective, and inoperative without legislative action; but the contrary view was taken, the opinion of the court saying: \\\"The right of property thus intended to be secured cannot depend upon the mere will of the Legislature. The prime object of the Bill of Bights is to place the life, liberty, and property of the citizen beyond the control of legislation, and to prevent either legislatures or courts from any interference with or deprivation of the rights therein declared and guaranteed, except upon certain conditions. It would be the merest delusion to declare a subsisting right as essential to the acquisition and protection of property, and make its employment depend upon legislative will or judicial interpretation.\\\"\\nIt is contended, however, by counsel for defendant in error here, that notwithstanding our Bill of Bights and Constitution provide that an individual cannot be damaged in his property for public use without either his consent or that of his representatives duly elected, and that where the necessary consent is obtained by means of the passage of an ordinance, the legisla ture (city council) shall not enact any law whereby private property shall he taken or damaged for public use without just compensation, the passage of such an ordinance, pursuant to-authority given in the city's charter, without making provision for just compensation, before the time when the Constitution became effective, is a sufficient and legal justification for doing the work on the street upon which plaintiff in errors property abuts and causing damage thereto without compensation after the Constitution began to operate, and the constitutional provisions relied on do not apply. In other words, that although the\\\" ordinance under which the work is done, if enacted at this time, would be unconstitutional, or at least could not be put into operation by doing the work without providing for just compensation, such an ordinance passed before the present Constitution became operative, which was carried into effect after by bringing the street to the grade established by it, and inflicting damage upon plaintiff in error's property, is valid authority for doing the work, because when it was passed it would have been lawful to have performed the work without rendering compensation.\\nTo give a city ordinance, passed prior to July 10, 1902, the effect here contended for, would, as it appears clear to us, make the constitutional provisions we have under consideration meaningless.\\n\\\"A law cannot be enforced in a State, no matter when passed,, which contravenes the provisions of the Constitution of the State.\\\" State v. Maynard, 14 Ill. 519.\\nThe question as to the effect of a new constitutional provision incorporating the word \\\"damage\\\" in the Constitution of Illinois was passed upon by the United States Supreme Court in Chicago v. Taylor, 125 U. S. 166, 31 L. Ed. 638, 8 Sup. Ct. 820, and the opinion says: \\\"Touching the provision in the Constitution of 1870, the court (State court) said that the framers of that instrument evidently had in view the giving of greater security to private rights by giving relief in cases of hardship not covered hy the preceding Constitution, and for that purpose extended the right to compensation to those whose property had been 'damaged' for public use; that the introduction of that word, so far from being superfluous or accidental, indicated a deliberate purpose to make a change in the organic law of the State, and abolish the old test of direct physical injury to the corpus or subject of the property affected. The new rule of civil conduct, introduced by the present Constitution, the court adjudged required compensation in all cases where it appeared 'there has been some physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property, in excess of that sustained by the public generally.' . . .\\n\\\"The conclusion there reached was that, under this constitutional provision, a recovery may be had in all cases where private property has sustained a substantial damage by the making and using of an improvement that is public in its character; that it does not require that the damage shall be caused by a trespass, or an actual physical invasion of the owners of real estate, but if the construction and operation of a railroad or other improvement is' the cause of the damage, though consequential, the party may recover. . .\\n\\\"Our attention has not been called to, nor are we aware of, any subsequent decision of the State court giving the Constitution of 1870 an interpretation differing from that indicated in Rigney v. Chicago (102 Ill. 64), and Chicago, &c., Rd. Co. v. Ayers (106 Ill. 511). We concur in that interpretation. The use of the word 'damaged' in the clause providing compensation to owners of private property, appropriated to public use, could have been with no other intention than that expressed by. the State court. Such a change in the organic law of the State was not meaningless. But it would be meaningless if it should be adjudged that the Constitution of 1870 gave no additional or greater security to private property, sought to be appropriated to public use, than was guaranteed by the former Constitution.\\\"'\\nWe have been unable to find a ease where it is held that where-an ordinance establishing a grade is passed prior to the adoption of a constitution, affording protection against damage in such cases, and no. work of grading was done under the ordinance until after the adoption of the Constitution, the plaintiff cannot recover because the grade ordinance was passed before the Constitution became effective. There are, however, a number of cases to be found taking the opposite view, and among them the following: Ogden v. Philadelphia, 143 Pa. St. 430, 22 Atl. 694; O'Brien v. Philadelphia, 150 Pa. St. 589, 24 Atl. 1047, 30 Am. St. 832; Johnson v. Parkersburg, 16 W. Va. 402, 27 Am. Rep. 779.\\nIn the first-named ease, the grade w\\u00e1s established on the-city plan in 1871; the Constitution of Pennsylvania giving the right of compensation for property damaged for public use was adopted in 1874; and the opinion of the court, after stating these facts, and that when the grade of the street was established there was no right of action for consequential damages to property owners, says: \\\"But the Constitution of 1874 (article 16, section 8) gave a right to owners to have compensation for property injured, as well as for property taken by municipal or other corporations in the construction or enlargement of their works. The right of action which this section gives is clearly for the actual establishment of the grade on. the lands. The general rule is that the cause of action arises when the injury is complete, and this has been uniformly applied to the taking of property for public use, from the case of Schuylkill Nav. Co. v. Thoburn, 7 Serg. & R. 411, down to the present day, etc.....There is nothing in the constitutional provision which indicates an intent to depart from the general rule under which, in the present case, the cause of action could not arise until the actual cutting down of the ground in 1887.\\\"\\nIn Johnson v. Parkersburg, supra, a case similar in all essential particulars to this, the grade of the street was adopted before the Constitution of West Virginia of 1872, and the work of grading was done after the adoption of the Constitution. Held-. Where a city in changing the grade of streets permanently injures private property, and thus infringes the explicit provision of the Bill of Eights that private property shall not be taken or damaged for public use without compensation, an action lies for the injury, although no statute has ever been enacted for the enforcement of this constitutional provision.\\\" The opinion in that case says: \\\"The private right of the individual was secure under the Constitution. That part did execute itself. It contained a positive inhibition on the part of the Legislature to pass any law by which private property could be taken or damaged for public use without compensation.\\\"\\nIn the later case of Blair v. Charleston, 43 W. Va. 68, 26 S. E. 341, 35 L. R. A. 856, 64 Am. St. 837, it is held that \\\"If a street be opened and used upon the natural surface as a grade line, and it is recognized and treated by the city or town as a public street, and owners of lots upon it build with reference to said natural grade line, and it is changed, the city or town is liable to lot owners for damages consequential upon the change of grade, though no grade of the street was ever adopted by the municipality, under section 9, article 3 of the Constitution. Such natural grade thus became the established grade.\\\"\\n\\\"It is not the making of the paper grade that inflicts the injury, but its application to the ground. It is the direct disturbance of a right which the owner had enjoyed in connection with his property that gives the right of action.\\\" See also Jones v. Bangor, 144 Pa. St. 430, 23 Atl. 252.\\nUpon this branch of the case at bar we are of opinion that, under the present Constitution, proper acts of the legislature (or ordinances of the city council) for the purpose of both obtaining the necessary consent and providing just compensation, are essential to the act of taking or damaging private property for public use, unless in fact the owner of the property taken or damaged himself consents that it be done, and waives compensation. In other words, that the provisions of the present Constitution against the taking or damaging of private property for public use, without just compensation, were self-executing, and repealed and displaced all existing laws inconsistent therewith; and that plainly the charter of defendant in error and the city ordinances, in so far as they authorized the change of the grade of streets, resulting in injury to the property of abutting lot owners, without providing just compensation for such injury, are inconsistent with said provisions of the new Constitution, and are to that extent repealed. Section 117 of article 8, new Constitution; 6 A. & E. Ency. L. 919.\\nThe next question for consideration is: What is the true rule for the measure of damages in a case like this ?\\nIt is earnestly insisted by counsel for plaintiff in error that as defendant in error has violated the provisions of the new Constitution which gave plaintiff in error a right of action, it follows that it has suffered damage. In other words, as the action is brought to protect a right secured to the plaintiff in error by tbe new Constitution, it is at least entitled to recover nominal damages.\\nIf this contention could be maintained, there could never be a verdict for the defendant in such a ease, and the great weight \\u2022of authority is, therefore, against the contention. \\\"The failure to give nominal damages, unless. it be upon a matter which involves the settlement of a right other than the right to recover damages, is not a ground for reversal.\\\" Briggs v. Cooke, 99 Va. 273.\\nThe new Constitution has not taken from the cities of the State the right to raise or lower the surface of a street when necessity requires, nor made it dependent upon the will of the parties affected thereby, but only provides that just compensation shall be made for the damage done. Therefore, if no damage has been done, no right has been violated, even though the established grade of the street may have been changed.\\n\\\"It is only in cases where damages are not the gist, that is, in \\u2022cases of forbidden conduct, that nominal damages can be recovered.\\\" Hale on Damages, p. 25, 8 A. & E. Ency. L. 551.\\nThe action here is for just compensation. The gist of the action is for substantial damages, and not an invasion of a legal right. Therefore, under the pleadings, nominal damages, as such, are not recoverable.\\nIn Stewart v. Ohio River Ry. Co., 38 W. Va. 438, 18 S. E. 604, the declaration filed was similar to the one in this case, and the opinion says: \\\"Under our view of the pleadings as .already discussed, nominal damages, as such, were not recoverable, for the plaintiff did not sue for an invasion or infringement of a legal right, as for a trespass or a nuisance, but for .just compensation for damages done to his property.\\\"\\n\\\"Where the suit is for the 'just compensation' guaranteed by \\\"the Constitution, the measure of the damages is the depreciation in the value of the property by the causes sued for.\\\" 2 Lewis Em. Domain, section 625. The same author, discussing the rule for measuring the damages of a plaintiff who has suffered loss by reason of a public improvement, in section 494, citing numerous cases, says: \\\"The correct measure of damages in all such cases is undoubtedly the diminution in the value of the property by reason of the change. The owner should receive such an amount as will make him whole.\\\"\\nIn Stewart v. Ohio River Ry. Co., supra, the opinion of the court in Springer v. Chicago, 135 Ill. 552, construing the Illinois Constitution, is quoted with approval as follows: \\\"Where the action is brought to recover damages, where no part of the property is taken but merely damaged by a public improvement, the law is well settled that a recovery cannot be had unless, the property claimed to be damaged has been depreciated in value by the construction of the public improvement. In other words, if the fair cash value of the property is as much immediately after the construction of the improvement as it was before the improvement was made, no damage has been sustained and no recovery can be had.\\\" To the same effect is Blair v. Charleston, supra; Chicago v. Taylor, supra.\\nIn City Council v. Schrameck, 96 Ga. 426, 23 S. E. 400, 51 Am. St. 146, the same contention was made that is made by plaintiff in error here, viz: That benefits deducted in measuring damages where no part of the property is taken, but merely damaged by a public improvement, must be, as in a case where a part of the property is taken and the action is to recover for damage to the residue, special and peculiar, and cannot include general benefits shared in common with other, property in the neighborhood, and that the plaintiff was in any event entitled tO' recover the costs of adjusting his property to the new conditions brought about by the public improvement; but the court held. otherwise, and in accordance with the rule sanctioned in the authorities just adverted to, the opinion saying that evidence as to the necessity of filling in the lot and raising the buildings on the lot, with the probable costs of such work was admissible,, not as furnishing a reason for the allowance of such costs as an independent item of special damage, but as a circumstance-throwing light upon the general question of the diminution of' market value.\\nIt is insisted that the rule established for assessing the damages to the residue, where a part of a tract of land is taleen, by the decisions of this court before our Constitution was changed by inserting the word \\\"damaged,\\\" should be adhered to, and Hickman v. Kansas City, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658, 41 Am. St. 684, is greatly relied on as supporting that view; but while the opinion in that case reaches the conclusion that the change in the Missouri Constitution, made in 1875, by inserting the word \\\"damaged\\\" and coupling it with the word \\\"taken,\\\" secured to the property owner the right to compensation when his property is damaged, in the same terms as when it is actually invaded and taken, the later Missouri cases do not follow that view, but approve the rule for the measure of damages, where no part of the property of the plaintiff is taken, that was sanctioned in Stewart v. Ohio R. Co., and other cases cited above, viz: \\\"If the fair market value of the property is as much immediately after the construction of the improvement as it was before the improvement was made, no damage has been sustained and no recovery can be had.\\\"\\nThe opinion by Gantt, P. J., in Grover v. Cornet, 135 Mo. 21, 35 S. W. 1143, citing, among other cases, Markowitz v. Kansas City, 125 Mo. 485, 28 S. W. 642, 46 Am. St. 498, says: \\\"The measure of damages in such cases has been laid down time and again by this court.' It is the difference in the market value \\u2022of the property before and after the grading, and caused solely by the grading.\\\"\\nThe same view is taken in Walters v. St. Louis, 132 Mo. 1, 33 S. W. 441, citing a number of cases decided by that court after the change made in the Missouri Constitution by inserting the word \\\"damaged\\\" and coupling it with the Word \\\"taken,\\\" requiring that thereafter \\\"just compensation\\\" should be made for property \\\"damaged\\\" as theretofore had been m'ade for property \\\"taken.\\\"\\nIt is, however, further insisted here, that the jury should bave been instructed as follows: \\\"If the jury find for the plaintiff, in estimating its damages, they should take into consideration the diminution in value, if any, of the said plaintiff's property caused by the change of the grade of the street, the peculiar benefits, if any, derived in respect to this particular property, not in common with the property of other persons along said street, and the actual damage, if any, incurred by the plaintiff in laying a new pavement in front of its premises; and if they find from the evidence that such diminution in value exceeds in value such peculiar benefits, such excess is to be added to the damage incurred in laying the new pavement; but if the damage by diminution in value of the premises falls short of such peculiar benefits, then the deficiency is not to be charged to the plaintiff, nor deducted from the amount to which the said plaintiff is entitled on account of damage incurred in laying the new pavement; provided that the damages shall not exceed the amount of $400.00 claimed in the declaration.\\\" In other words, that the jury should have been instructed that in estimating plaintiff in error's damages, they should disregard benefits, if any, to its property derived from the improvement \\\"in common with the property of others along said street,\\\" and that they should in any event find for the plaintiff in error the sum of $128.00, the cost incurred in laying the new pavement,, regardless of any benefits.\\nThis independent item of cost incurred in laying the new pavement tended to show damage, and was proper to be considered as such by the jury, yet they could not take separate items and award damages for them and add them together and say that is the damage suffered, nor could there he a recovery for any specific item of damage as such, but all of them were to be taken together as elements tending to show whether the-property had been depreciated in value when considered in connection with the benefits. 2 Lewis Em. Domain, sec. 494; City Council v. Schrameck, supra; Chambers v. South Chester (Pa.), 21 Atl. 409.\\nIn the last-named case the following charge to the jury was-approved: \\\"You may consider these several matters\\\" (special items of alleged damages) \\\"as elements in the cause, but you are not to award damages for the building of walls or the filling-up of lots as special damages, or for the likelihood of injuring-the building, etc. You are not to take up these separate items- and award separate damages for them and add them together- and say that is the damage suffered.' The law has given another rule for the measuring of damages, and that rule is, as before-stated, and which I will now repeat. The law is this: You will consider the market value of the property before the change and unaffected by it, and its market value with the grade as-affected by it. If the establishing of the new grade has added more value to the property than it has depreciated from it, the verdict should be for the defendant. If it has depreciated from the property more than it has added to it, the verdict should be-for the plaintiff, and the measure of damages should be thedifferenee between its value before and its value after.\\\"\\nThe case of Blair v. Charleston, supra, is exactly in point as -to the rule for measuring the damages in a case where there is no taking of any part of the property alleged to have been \\u2022damaged by a public improvement; and, in an elaborate opinion by Brannon, J., citing all of the decisions of this court pertinent to the issue, it is held: \\\"If property is enhanced in value by reason of a public improvement, as distinguished from the general benefits to the whole community at large, it is specially benefited and is to be assessed for the special benefits, notwithstanding every other piece of property upon or near the improvement may, to greater or less extent, be likewise specially benefited. In other words, it is not only such benefits as are special, \\u2022or limited to the particular property, thereby excluding the consideration of such benefits as are common to other property similarly situated, but it is such benefits as that the particular property is by the improvement enhanced in value, that is, specially benefited, that are to be considered. If a piece of property is enhanced in value, its enhancement or, in other words, benefits to the property cannot be said to be common to any other piece of property specially enhanced in value, and it is thus specially benefited within itself, and irrespective of the benefit that may be conferred by the improvement upon other properties.\\\"\\nThe opinion in that case also disposes of the contention made here that evidence of experts, i. e., opinion evidence, is not admissible on the question, whether the property has been enhanced or depreciated in value by the public improvement, and holds that such evidence is admissible.\\nThe rule sanctioned by the authorities we have referred to, and in fact universally recognized, it may be said, in all cases in which recovery was sought for damages where no part of the property is taken, but merely damaged, by a public improve ment, is in entire harmony witli the rule adopted in a long line of cases holding that the damages to the residue of the tract was an amount equal to the difference in the market value of the residue at the time of the taking and its market value after the same had been so taken. If this were not the correct rule, and plaintiff in error's contention could be sustained, damages would be recoverable in every case where the owner of property along the line of a public improvement incurred expense in adjusting his property to the improvement, although his property had been enhanced in value beyond the expense incurred, not because his property has been depreciated in value by the improvement more than benefited, but merely because other property similarly situated had been more or less benefited. Such a result would not only be unjust and inequitable, but would greatly retard the making of such common and necessary public improvements as are here complained of, and many others of like character and importance.\\nThere is no evidence in this case, whatever, of any benefits to the community at large by reason of the paving of Twenty-third street, upon which plaintiff in error's property assessed for taxation at $22,000, abuts, but the evidence was limited solely to the special benefits which enhanced the value of this particular property, both in fee simple and rental value, tending to show an increase in both respects greatly in excess of the damages claimed as having been sustained by reason of the change in the grade of the street; and it would seem clear that the only inference that could be drawn from the evidence was that the other property in the community, not fronting on this paved street, was not enhanced in value, as the evidence shows that the fact that the property fronted upon the paved street was the sole cause of the enhancement of its value.\\nThe case is of the first impression in Virginia upon the question of the measure of damages caused by a change of the grade of a street, where no part of the property was taken, and we have considered and determined the principles of the case instead of discussing in detail the instructions given and refused at the'trial, and deem it only necessary to say with reference to the instructions, that those given by the learned judge who presided at the trial so clearly and concisely expounded the principles of law applicable to the case, and in accordance with the views expressed in this opinion, that the jury could not have been misled as to their duty in disposing of the questions submitted to them.\\nEnough has been said of this evidence to warrant, in our opinion, the conclusion that the jury could not have rightly found any other verdict than they did find, and therefore the court below did not err in overruling plaintiff in error's motion for a new trial.\\nThe judgment of the corporation court is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"2042099\", \"name\": \"Ross Oakley Johnson v. Town of Damascus\", \"name_abbreviation\": \"Johnson v. Town of Damascus\", \"decision_date\": \"1965-03-08\", \"docket_number\": \"Record No. 5890\", \"first_page\": \"893\", \"last_page\": \"896\", \"citations\": \"205 Va. 893\", \"volume\": \"205\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:03:12.818212+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ross Oakley Johnson v. Town of Damascus.\", \"head_matter\": \"Richmond\\nRoss Oakley Johnson v. Town of Damascus.\\nMarch 8, 1965.\\nRecord No. 5890.\\nPresent, Eggleston, C. J., and Spratley, Buchanan, Snead, I\\u2019Anson and Carrico, JJ.\\nJoseph P. Johnson, Jr., for the plaintiff in error.\\nE. Summers Sheffey, for the defendant in error.\", \"word_count\": \"1168\", \"char_count\": \"6725\", \"text\": \"I'Anson, J.,\\ndelivered the opinion of the court.\\nDefendant, Ross Oakley Johnson, was convicted by a jury of a second offense of driving a motor vehicle while under the influence of intoxicants in violation of an ordinance of the town of Damascus, Virginia. Judgment was entered on the verdict of the jury, and defendant is here on a writ of error.\\nDefendant assigns numerous errors, but they involve only two questions. He contends (1) that the evidence was insufficient to sustain his conviction; and (2) that the town ordinance was not proved.\\nAlthough defendant asks that we set aside his conviction on the ground that the evidence is insufficient to support it, he failed to designate for printing the evidence which is necessary and material for us to determine that issue. The printed record contains only the evidence which is favorable to him.\\nRule 5:1, \\u00a7 6, requires the defendant to \\\"designate not only that which is favorable to him, but that which is favorable to his opponent, for obviously without access to all of the material evidence it is impossible for us to determine its sufficiency.\\\" DeMott v. DeMott, 198 Va. 22, 24, 92 S. E. 2d 342, 343. See also Jenkins v. Womack, 201 Va. 68, 69, 109 S. E. 2d 97, 98.\\nBecause of defendant's failure to comply with the rule, we would be justified in not considering that assignment of error. But in the interest of justice we will consider all the pertinent evidence in the transcript, including that designated and that omitted from the printed record. See Carter, Adm'r v. Nelms, 204 Va. 338, 340, 341, 131 S. E. 2d 401, 402, 403; Rule 5:1, \\u00a7 6(f).\\nThe evidence, stated in the light most favorable to the town, since all conflicts in the evidence have been resolved in its favor by the jury's verdict, shows that on the night of August 11, 1963, the defendant stopped his truck at a business establishment in the town of Damascus and picked up three young men and drove them to a bowling alley in the town. These young men, testifying to substantially the same facts, said that after they got in the truck and the defendant started it in motion, he struck a fence and barely missed hitting a building. On the way to the bowling alley the truck \\\"was weaving backwards and forward across the solid line\\\" on the roadway. Upon arriving at the bowling alley parking lot, they got out of the truck and walked approximately 50 to 75 yards down the road. Within eight to ten minutes after leaving the truck they observed that the defendant had been taken into custody by a police officer. The arresting officer, Beattie Fulcher, testified that as he was leaving the bowling alley in a patrol car he observed defendant's truck turning into the parking lot. He returned to the area within ten minutes because he had received a complaint that a truck had been operating in the town in a careless and negligent manner. He found defendant's truck parked in the bowling alley lot and the defendant was sitting behind the steering wheel in an intoxicated condition. When he removed defendant from the truck he staggered and was very belligerent. Defendant admitted that he had been drinking, but denied that he had driven the truck to the parking lot. Several bottles and cans of beer were found in the truck and a subsequent blood test revealed .19 per cent alcohol in defendant's blood.\\nDefendant admitted during the trial in the court below that he had driven the truck to the parking lot, but he said that he did not begin drinking until after he had parked it and that he had been there from 30 to 40 minutes before the officer arrested him.\\nSeveral witnesses corroborated defendant's testimony that he had been in the parking lot from 30 to 40 minutes before he was arrested, and testified that they drank intoxicating beverages with him during that time. Thus defendant argues that he became intoxicated after parking his truck and the evidence is insufficient to support his conviction of driving under the influence of intoxicants.\\nDefendant relies on Bland v. City of Richmond, 190 Va. 42, 55 S. E. 2d 289, in support of his argument, but the case is readily distinguishable on the facts. There two police officers found Bland's automobile resting against a fireplug which it had hit. A third officer, who was not called as a witness, brought Bland to the scene \\\"a few minutes\\\" after the two officers had discovered the accident, and at that time the accused talked with a thick tongue and was under the influence of intoxicating liquors. The evidence did not show how far the accused was from the scene of the accident when apprehended by the officer, or whether he had sought out the officer, or was picked up because of apparent drunkenness. In reversing Bland's conviction, this Court held that because of the uncertainty of the interval between the time of the accident and when the accused was brought back to the scene, the evidence did not establish that Bland operated a motor vehicle while under the influence of intoxicating liquors.\\nIn the instant case there was evidence that the defendant operated his truck in a careless and reckless manner while driving to the bowling alley parking lot in the town of Damascus. The arresting officer saw the defendant drive the truck into the parking lot, and when he was arrested within ten minutes thereafter he was under the influence of alcohol. The question presented was one of fact for the jury, and their finding that the defendant had operated the truck while under the influence of intoxicating beverages is clearly supported by the evidence.\\nThe contention of the defendant that the town ordinance prohibiting the operation of a motor vehicle while under the influence of intoxicating beverages, and the punishment therefor, was not proved, is without merit.\\nThe town met the burden that was required of it under our holding in Sisk v. Shenandoah, 200 Va. 277, 105 S. E. 2d 169.\\nThe record shows that the town of Damascus code, with its pocket parts, was introduced into evidence, without objection, pursuant to the provisions of Code \\u00a7 8-270, as amended, Code of 1950, 1957 Repl. VoL, after the clerk of the circuit court, when called as a witness, identified the code and testified that it was on file in his office. Moreover, defendant expressly waived the reading of the applicable ordinance and we do not have it before us as a part of the record. Nor was it printed in defendant's brief.\\nFor the reasons stated, the judgment is\\nAffirmed.\"}"
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+"{\"id\": \"2042251\", \"name\": \"Southern Railway Company v. City of Richmond, Et Al.\", \"name_abbreviation\": \"Southern Railway Co. v. City of Richmond\", \"decision_date\": \"1964-11-30\", \"docket_number\": \"Record No. 5762\", \"first_page\": \"699\", \"last_page\": \"711\", \"citations\": \"205 Va. 699\", \"volume\": \"205\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:03:12.818212+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Southern Railway Company v. City of Richmond, Et Al.\", \"head_matter\": \"Richmond\\nSouthern Railway Company v. City of Richmond, Et Al.\\nNovember 30, 1964.\\nRecord No. 5762.\\nPresent, Eggleston, C. J., and Spratley, Buchanan, Snead, I\\u2019Anson and Carrico, JJ.\\nThomas B. Gay and H. Merrill Pasco (Roderick D. Sinclair, on brief), for the appellant.\\nJames A. Eichner, Assistant City Attorney (J. E. Drinard, City Attorney, on brief), for appellee, City of Richmond.\\nWilliam Eldridge Spain, for appellees, Henry A. Maurice, Jr.; John Prussing, et al., individually, and as Members of The Forest Hill-Woodland Heights Citizens Association.\", \"word_count\": \"4748\", \"char_count\": \"28413\", \"text\": \"Carrico, J.,\\ndelivered the opinion of the court.\\nThis appeal is a sequel to the case of City of Richmond v. Southern Railway Company, 203 Va. 220, 123 S. E. 2d 641, where we decided, inter alia, that the State Corporation Commission was without jurisdiction to pass upon the validity of the zoning ordinance of the city, as applied to the railway. Following our decision, the railway filed against the city, in the Law and Equity Court of the City of Richmond, a motion for declaratory judgment (Code, \\u00a7 8-578 et seq.).\\nThe motion alleged that the railway owned a tract of land in the city of Richmond, adjacent to its main line right-of-way, which, under the zoning ordinance of the city, was included within the boundaries of R-3, R-4 or R-5 dwelling districts; that it had made certain improvements to the land preparatory to installing tracks and appurtenant facilities for use as an extension of its existing yard for the storage and handling of trains; that such extension was essential in order for it to perform its public duties, and that the city had taken the position that the railway did not have the right, under the zoning ordinance, to use the land for the extension of its yard facilities. The motion prayed for a declaration that the zoning ordinance was, \\\"unconstitutional and void to the extent that it is claimed to prohibit the construction and use by the Railway of the Proposed Facilities.\\\"\\nAfter a plea in abatement and a demurrer,, filed by the city, were overruled, the city filed its answer asserting that its zoning ordinance was valid and applicable to prohibit the proposed use of the railway's land.\\nHenry A. Maurice, Jr., and others, individually and as members of the Forest Hill-Woodland Heights Citizens Association were, upon motion, permitted to intervene as parties defendant, and thereupon filed their answer adopting all pleadings filed by the city.\\nThe trial court heard the evidence ore terms and, in a written opinion and a final decree, upheld the validity of the zoning ordinance and ruled that the ordinance prohibited the proposed use of the railway's land. The railway was granted an appeal.\\nThe evidence shows that the railway is a public service corporation doing a public transportation business by rail. The line from West Point through Richmond to Danville, where it connects with one of the railway's principal north-south lines, is known as the Richmond Division. Freight service only is furnished on this division, the passenger service once provided having been abandoned.\\nRichmond is the principal station on the Richmond Division, where the railway has 81 regular customers. Richmond is also the point of primary interchange of the railway with the lines of four other railroad companies and is the terminal of the railway's trains to and from Danville and to and from West Point.\\nThe railway's fine from Danville enters Richmond along the southern bank of the James River, passing the tract of land involved in this controversy, farther on running through the railway's Belle Isle and South Richmond yards, thence across the James via a bridge on the western end of Mayo's Island, then through the 28th Street yard and on to West Point.\\nThe railway daily operates one through train from Danville to Richmond and one such train from Richmond to Danville. In addition,, one local train is operated from Danville to Richmond on Tuesday, Thursday and Saturday of each week and another local train is operated from Richmond to Danville on Monday, Wednesday and Friday of each week. One local train makes the round trip from Richmond to West Point each day of the week.\\nThe railway's operations in Richmond include the building and breaking np of trains and the classification and switching of cars, incident to the delivery to and receipt from its customers of cars in Richmond and throughout the Richmond Division, as well as the delivery to and receipt from the other railroads of cars at the interchange points.\\nPreviously, the South Richmond yard was used by the railway for the bulk of its work in the switching and classification of cars but, with the advent of diesel locomotives, this yard was gradually abandoned, except for storage purposes, and a portion of the yard was sold in 1961 to Reynolds Metals Company. Beginning in 1953, the railway began to use its Belle Isle yard, lying principally east of Lee Bridge, for its switching and classification work.\\nThe railway considered its facilities at Belle Isle yard to be inadequate and, consequently, in 1960 began to improve the tract of land in question for use as an extension of its yard facilities, contemplating the ultimate location on the land of eleven tracks for the switching and classification of cars. The tract of land proposed to be used contains approximately 16 acres, a portion thereof having been owned by the railway since 1917 and the balance of 8.86 acres having been purchased by the railway in 1960, at a cost of approximately $530 per acre. The tract is located in South Richmond approximately 2800 feet west of Lee Bridge,, between the southern bank of the James River and the northern edge of the railway's main line right-of-way, which is 80 feet wide. The tract varies in width from 50 feet to 250 feet and, prior to being improved by the railway, was low and swampy and subject to periodic flooding. The land lies below and to the north of a high bluff. Riverside Drive, one of Richmond's most scenic parkways, runs along the top of the bluff. Fronting on and south of the drive are located many substantial and attractive dwellings, in some of which the intervening parties reside.\\nBetween the southern edge of the railway's right-of-way and the northern side of Riverside Drive, lies a strip of land of natural beauty which the city has acquired over a number of years for inclusion in its park system. Adjacent to the railway and south of a point about midway of the tract in question, is located Forest Hill Park, which was described in the testimony as one of Richmond's most beautiful parks.\\nThe railway commenced to clear, drain, grade and fill the tract in July of 1960. The present controversy arose several months later when nearby residents and city officials learned of the use which the railway proposed to make of the tract. The railway then suspended its improvement work, after expending the sum of $149,000 thereon.\\nNegotiations were conducted in November, 1960, between the objecting residents and railway officials in an effort to effect a compromise, without success. On January 9, 1961,, the city council adopted an ordinance directing the proper officers of the city to take the necessary steps for the acquisition of the tract for park purposes.\\nThe assistant city real estate agent contacted the superintendent of the Richmond Division of the railway with regard to the purchase of the tract, but the railway advised that it was not willing to sell. The litigation before the State Corporation Commission between the railway and the city, described in 203 Va. 220, then followed.\\nThe tract in dispute was first placed in a residential zoning district by an ordinance adopted by the city on April 13, 1927, which permitted in residential districts:\\n\\\"(14) Railway passenger stations, railway right-of-way, not including railroad yards.\\\" (Art. 3, sec. 4)\\nThe 1927 ordinance also established certain business districts in the city in which were permitted:\\n\\\"(10) Freight and other railway yards.\\\" (Art. 7, sec. 19)\\nThe tract was continued in a residential district by a zoning ordinance adopted by the city on May 19, 1943. Neither railway rights-of-way nor railway yards were included in the permitted uses in residential areas under the 1943 ordinance. However, such uses were authorized in light industrial districts by virtue of their not having been excluded from such districts.\\nOn June 1, 1960, the city adopted a new zoning ordinance, which again placed the land in question in a residential district. This ordinance, in R-l,, R-2 and R-4 dwelling districts, permitted:\\n\\\"(9) Rights-of-way and easements for public transportation and for public utilities.\\\" (Art. 5, sec. 39-12)\\nThe June 1, 1960, ordinance did not expressly provide for the use of land for railway yards. However, such use would be permitted, under certain circumstances, in particular industrial districts.\\nOn December 12, 1960, after the present controversy arose, the city adopted an ordinance amending and reordaining section 39-12 of Article 5 of the ordinance of June 1, 1960, so as to make the section read in the following language:\\n\\\" (9) Rights-of-way and easements for public transportation and for public utilities but not including railroad yards for marshalling or classifying cars, tracks for storage or parking railroad cars or trains of cars, freight depots or stations, loading platforms, train sheds, car or locomotive shops,, motor vehicle repair shops or storage yards, generating plants or transformer stations.\\\"\\nIt is upon these circumstances that the railway makes two contentions which it says point out the error of the trial court in denying it the relief for which it prayed.\\nThe railway first contends that the use to which it proposes to put the land in question is necessary for the performance of its duties as a public service corporation, imposed upon it by law, and that insofar as the zoning ordinance purports to prohibit such use and thus prevent the performance of such duties, the ordinance is void.\\nHere, the railway says that the Constitution and statutes of Virginia impose upon it the duty, \\\"to give reasonable and adequate service at reasonable rates and without delay\\\" and vest in the State Corporation Commission exclusive authority to supervise, regulate and control railroad companies. The city is powerless, the railway asserts, by its zoning ordinance to prevent the proposed use of the land because this would interfere with the railway's performance of its public duties and constitute an invasion of the State Corporation Commission's authority to control the railroad companies.\\nThe railway argues that it proved the necessity for its proposed use in the trial court but that the court erred in holding that such use was not necessary and that the ordinance did not, therefore, interfere with the railway's discharge of its public duties or encroach upon the State Corporation Commission's field of control.\\nThe railway concedes that it had the burden of proving the necessity of the proposed use and that such was a factual issue. Although not so stated, inherent in the railway's position is the tacit concession that if necessity was not proven, the ordinance would not then interfere with the performance of its public duties or affect the State Corporation Commission's authority and would not, for those reasons, be void. The railway's first contention, then, fails if the evidence was sufficient to support the trial court's finding of lack of necessity.\\nThe gist of the railway's case in this connection was that the dieselization of its system had resulted in longer trains which could not adequately be built and broken up and the cars classified and switched in its present facilities in Richmond, thus necessitating, so it claimed, the utilization of the 16-acre tract. It pointed to delays in the move ment of trains and delivery of cars which it attributed to the conditions in its Belle Isle and Richmond yards; it showed the amount of overtime wages it was required to pay to employees because of such delays; it demonstrated the unsafe working conditions present in its existing facilities; it stressed the business which it had lost to truck and barge companies and its inability to compete with those companies because it could not provide fast service; it complained that its Richmond Division business was \\\"static\\\" because of its, \\\"inability to expand and improve our physical facilities,\\\" and it asserted that if it intended \\\"to share\\\" in the new business arising from the, \\\"great potential in industrial development\\\" in eastern Virginia, \\\"we must prepare to handle it properly.\\\"\\nAll of this was sufficient to show that there was considerable room for improvement of the railway's facilities in Richmond; that with such improvement, it might be able to operate more economically and more efficiently, from its standpoint,, and with more safety to its employees; that it could put itself in a position, perhaps, to compete more profitably with truck and barge companies, and that it would, perchance, be able to garner a portion of the new business if such arose from the \\\"potential\\\" in industrial development in eastern Virginia.\\nBut, though the evidence was sufficient to show that utilization of the 16-acre tract might be necessary to effect improvement of the railway's internal problems, that does not mean, a fortiori, that it was sufficient to prove that there was a public necessity that the land be so utilized.\\nTo the contrary, there was no evidence that tended to indicate that the railway had, to any extent, failed to perform its public duty, that is, to give reasonable and adequate service at reasonable rates and without delay, or that it could not continue to do so in the reasonably foreseeable future. It was not shown that the railway's customers had ever suffered from the delays encountered by the railway in the conduct of its operations. There was no indication that there was, or reasonably soon would be,, any public need incapable of fulfillment by the railway. No directive or policy of the State Corporation Commission was alleged to have been violated or left unobserved. The evidence did not show that the railway's loss of business in the Richmond Division was due to the inadequacy of the Richmond facilities but, rather, that such loss was a part of a general pattern of the loss of business, generally, by railroads to truck and barge competition caused, in the words of one railway witness, primarily by, \\\"our inability to quote minimum rates.\\\" And finally, there was testimony that the ra\\u00fcway had not made full and proper use of its land in the Belle Isle and Richmond yards to provide more adequate classification and switching facilities.\\nIn short, it was insufficient for the railway to show that it, and it alone, would have benefitted by the proposed improvements. More was needed\\u2014proof that the proposed use, once accomplished, would, in some way, benefit the public as well. Under these circumstances, the necessity for the contemplated use of the 16-acre tract did not appear, and the trial court was fully justified in holding that the zoning ordinance of the city did not prevent the railway from performing its public duties or encroach upon the authority of the State Corporation Commission.\\nThe railway's other contention is that the residential zoning classification which has been assigned to its land is arbitrary and unreasonable and that the zoning ordinance of the city is,, therefore, invalid in its application to the tract in question.\\nEstablished principles of zoning law control the determination of the question here presented. Such principles were succinctly stated by Mr. Justice I'Anson in Board of Supervisors v. Carper, 200 Va. 653, 660, 107 S. E. 2d 390, when he wrote:\\n\\\"The general priniciples applicable to a judicial review of the validity of zoning ordinances are well settled. The legislative branch of a local government in the exercise of its police power has wide discretion in the enactment and amendment of zoning ordinances. Its action is presumed to be valid so long as it is not unreasonable and arbitrary. The burden of proof is on him who assails it to prove that it is clearly unreasonable, arbitrary or capricious, and that it bears no reasonable or substantial relation to the public health, safety, morals, or general welfare. The court will not substitute its judgment for that of a legislative body, and if the reasonableness of a zoning ordinance is fairly debatable it must be sustained. Board of County Supervisors of Fairfax County v. Davis, 200 Va. 316, 322 106 S. E. 2d 152, 157; West Bros. Brick Co. v. City of Alexandria, 169 Va. 271, 288, 192 S. E. 881, 888 (appeal dismissed 302 U. S. 658,, 58 S. Ct. 369, 82 L. ed. 508, rehearing denied 302 U. S. 781, 58 S. Ct. 480, 82 L. ed. 603). The exercise of the police power is subject to the constitutional guarantee that no property shall be taken without due process of law and where the police power conflicts with the Constitution the latter is supreme, but courts will not restrain the exercise of such power except when the conflict is clear. West Bros. Brick Co. v. City of Alexandria, supra (169 Va. at 281, 192 S. E. at 885).\\n\\\". . . '[T]he purpose of zoning is in general two-fold: to preserve the existing character of an area by excluding prejudicial uses, and to provide for the development of the several areas in a manner consistent with the uses for which they are suited. The regulations should be related to the character of the district which they affect; and should be designed to serve the welfare of those who own and occupy land in those districts.' See also I Yoldey, Zoning Law and Practice, \\u00a7 10, pp. 12, 13.''\\nIn line with these concepts are the provisions of the city charter, by the authority of which the city's zoning ordinance was enacted. The charter provides, in part, as follows:\\n\\\"The regulations and restrictions shall be uniform and shall apply equally to all land, buildings and structures and to the use and to each class or kind thereof throughout each district but the regulations and restrictions applicable in one district may differ from those provided for other districts.'' (\\u00a7 17.11)\\n\\\"The regulations and restrictions shall be enacted with reasonable consideration, among other things of the character of each district and its peculiar suitability for particular uses and with a view of conserving the value of land, buildings and structures and encouraging the most appropriate use thereof throughout the city.\\\" (\\u00a7 17.12)\\nThe trial court held that the action of the city in placing the railway's land in a residential classification was not arbitrary and unreasonable but was, instead, directly based upon considerations of public health, welfare and safety. The crucial question is, does the evidence sustain these findings?\\nAt the outset, it should be noted that the evidence before the trial court was in conflict, with the city's witnesses expressing views contrary to those of the railway's witnesses on the essential points relating to the proper zoning of the land. The trial court observed the witnesses and heard them testify. The court was free, as it chose to do, to accept the testimony of the city's witnesses rather than that given by the witnesses for the railway.\\nThe evidence before the trial court showed that the residential area in the neighborhood of the tract in question was one of the most desirable in the city, south of the James; that to implant in such an area the operation proposed by the railway, with its accompanying danger, undesirable noise and unpleasant view, would depreciate the value of the nearby residential property, curtail its enjoyment and introduce into the area an inharmonious use.\\nThe evidence further showed that the planning and development of the parkway and parks along the southern shore of the James had been in progress for many years, implemented by all of the zoning ordinances enacted since 1927 and given real force by the 1946 master plan, adopted by the city, which stated that, \\\"property lying between the [Riverside] drive and the river should be brought under public control in order to protect this property from uses which might be detrimental to use of the drive for pleasure driving.\\\" It was made clear that diversion of the railway's land to an industrial use would, at the same time, disrupt the planning of decades which envisioned use of the very tract in dispute as an integral part of the city's park system.\\nAnd, lastly, the evidence established that the zoning action of the city was not directed to any specific tract but to an entire zoning district, integrated into an overall plan for the development of the city, in accordance with the provisions of \\u00a7 17.11 and 17.12 of the city charter.\\nAll of this demonstrates, in our opinion, the correctness of the trial court's finding that the railway's land had not been arbitrarily and unreasonably zoned.\\nBut, the railway argues, the zoning action of the city unlawfully renders its land valueless because it assigns the land to a classification which only permits uses to which the land cannot physically be put.\\nHere, the railway cites and relies upon the rule that, \\\"zoning cannot render private property valueless.\\\" 8 McQuillin, Municipal Corporations, \\u00a7 24.45 (3d ed. 1957). Quoting further from McQuillin, the railway says that, \\\"If the application of the zoning ordinance has the effect of completely depriving the owner of the beneficial use of his property by precluding all practical uses or the only use to which it is reasonably adapted, the ordinance is invalid.\\\"\\nThe railway states that it, \\\"recognizes that it has the burden of proving that the Property is not reasonably adaptable to any of the uses permitted by \\u00a7 39.12 of the Zoning Ordinance.\\\" It insists, however, that it,, \\\"established unequivocally that the Property could not be used for any of the purposes\\\" permitted by the zoning ordinance.\\nSection 39.12 of the city zoning ordinance, in addition to per mitting, in R-l, R-2 and R-4 residential districts, rights-of-way and easements for public transportation and for public utilities, also permits, among other things,, single family dwellings and public and private parks and recreational areas.\\nThe trial court, in its written opinion, properly held that the railway had proved conclusively that the tract in question was not adaptable to use for single family dwelling purposes. The focus of the opinion was then directed to whether the railway had shown that the tract was not adaptable to public and private park and recreational purposes. The court concluded that not only had the railway failed in this respect but that the city had, on the other hand, proved that the tract was practically adaptable to public park use. Further, the court held that the tract was peculiarly adaptable to use as a private, non-commercial area for boating, fishing, water-siding, etc.\\nWe are of the opinion that the evidence sustains the findings of the trial court in this connection. In addition to the evidence which has already been recited relating to the city's planning for parkway and parks in the area involved,, the city's witnesses said of the proposal for a park on the tract that, \\\"there is a very great need for a park of this kind in the city . . . this particular stretch is unique and it is in the heart of Richmond and has tremendous recreational potentialities which any other city would be most jealous of . . . this would be an ideal area for park development, with the river as part of the park . . . it would be about the heart\\\" of an extended park or parkway along the river.\\nIt was also disclosed that the tract in question abounded in wildlife and botanical specimens and, to the delight of the fisherman, that the river in the area of the tract, \\\"is one of the best small-mouth bass streams in the state.\\\"\\nThe evidence further showed that the existing park areas of the city were far less than required by accepted planning standards; that the tract in question would provide the site for, \\\"a naturalist park\\u2014a type of park which the city needs very much\\\" and that there was no, \\\"other land similarly situated which the city could use for such a purpose\\\" on the bank of the James, \\\"except further upstream.\\\"\\nThe railway attempts to discredit the suitability of the tract for park purposes by asserting that access thereto could be had only by way of a grade crossing over its right-of-way, which it says it is unwilling voluntarily to grant. But this does not destroy the suitability of this land for these purposes. In the first place, the city's experts in park planning said that, as incidental to development of Riverside Drive, the scenic value of the tract would not be diminshed by the lack of access. Further, it is inconceivable that if the railway sold the land to a private group for development as a recreational area, it would not, as a part of its sale, also provide access thereto. And, if the city should be successful in its efforts to acquire the tract, it would have the right to proceed under the provisions of Code, \\u00a7 25-233 to secure permission of the State Corporation Commission to institute condemnation proceedings to provide proper access to the land.\\nFinally, the railway says that even conceding the adaptability of the land to park and recreational purposes, this does not justify the assignment of the land to a residential classification. Here, the railway argues that the zoning for such purposes relegates it to the position of owning property for which there is only one purchaser, the city, and that since the latter, \\\"has not attempted to acquire the Property\\\" for park purposes, \\\"even though it has been so zoned since 1927, the limitation which it has placed upon the land is unlawful, confiscatory and must be invalidated.\\\"\\nThe railway cites numerous cases in support of its position, a discussion of which would unnecessarily extend the length of this opinion. Suffice to say that the factual propositions presented in those cases are so substantially different from the situation now before us as to make the decisions unpersuasive here.\\nThe key point in this case, which renders the railway's position without merit, is the long history of the city's planning, acquisition and development of land in the area for parkway and park purposes, culminating in the ordinance of January 9, 1961, directing the acquisition by the city of the tract in dispute.\\nThe railway asserts that the acquisition ordinance was but mere, \\\"window dressing, adopted by the City in an effort to shore up what Southern contends to be the vulnerable Ordinance of December 12, 1960, \\\" the amendment to \\u00a7 39.12 of the zoning ordinance.\\nThe trial court held that the December 12, 1960, ordinance was merely definitive of the June 1, 1960, zoning ordinance which, if otherwise valid, prohibited the use of the land as proposed by the railway. The railway, on appeal, does not attack this ruling of the court. The December, 1960, ordinance, then, needed no \\\"shoring up\\\" and there is nothing in the record to indicate that the January 9, 1961, ordinance was \\\"window dressing,\\\" or anything other than the valid granting of authority to carry out the city's long-expressed intention to acquire the tract. Nor is there any evidence in the record to assail the city's statement that it, \\\"is ready, willing and able to acquire the property at a fair price.\\\"\\nUnder these circumstances, the application of the zoning ordinance to the land of the railway is not confiscatory. The only result is that the railway will not be permitted to put the land to the use it desires, a result which is not unusual or unexpected when the wishes of a property owner run counter to the provisions of a valid zoning ordinance.\\nThe trial court made an inspection of the area involved, conducted lengthy hearings and gave consideration to the arguments and citations of authority of the litigating parties. The court's able and comprehensive written opinion displays full knowledge of the evidence, a complete grasp of the issues involved and a thorough understanding of the applicable law. The court's decision is presumed to be correct and the burden is upon the railway to establish the error therein. This the railway has failed to do. Accordingly, the decree appealed from will be\\nAffirmed.\"}"
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+"{\"id\": \"2058568\", \"name\": \"James S. Newton v. City of Richmond\", \"name_abbreviation\": \"Newton v. City of Richmond\", \"decision_date\": \"1957-03-11\", \"docket_number\": \"Record No. 4645\", \"first_page\": \"869\", \"last_page\": \"875\", \"citations\": \"198 Va. 869\", \"volume\": \"198\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:00:28.516746+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James S. Newton v. City of Richmond.\", \"head_matter\": \"Richmond\\nJames S. Newton v. City of Richmond.\\nMarch 11, 1957.\\nRecord No. 4645.\\nPresent, All the Justices.\\nThe opinion states the case.\\nF. Ward Harkrader, Jr. (G. William White, Jr., on brief), for the plaintiff in error.\\nJames A. Eichner, Assistant City Attorney, (J. E. Drinard, City Attorney, on brief), for the defendant in error.\", \"word_count\": \"2552\", \"char_count\": \"14575\", \"text\": \"Miller, J.,\\ndelivered the opinion of the court.\\nJames S. Newton was convicted by a jury and fined one hundred dollars on the charge of operating an automobile on March 24, 1956 while under the influence of intoxicants in violation of \\u00a7 80, ch. 40, Richmond City Code of 1937. From a judgment confirming the verdict, we granted accused an appeal.\\nIn his assignments of error Newton challenges instruction No. 3 given at the instance of the city and complains of the court's refusal to give instructions A and B tendered by him. Error is also assigned to the court's refusal to strike certain evidence and direct the jury to disregard it.\\nThe city has moved us to reject Newton's assignments of error because of his failure to comply with Rule of Court 1:8 (formerly Rule 22), which follows:\\n\\\"In civil and criminal cases, all objections to writs of every kind, pleadings, instructions, notices, the admissibility of evidence or other matters requiring a ruling or judgment of the trial court, shall state with reasonable certainty the ground of objection, and, unless it appears from the record to have been so stated, such objections will not be considered by this court except for good cause shown, or to enable this court to attain the ends of justice.\\\"\\nThe record discloses that no objection was made to instruction No. 3, and upon the court's refusal to give instructions A and B, the only notation that appears in the record with regard to either of these instructions was stated thus: \\\"Exception noted.\\\" Before rendition of judgment accused moved the court to set the \\\"verdict of the jury aside as being contrary to the law and the evidence and for not allowing him certain instructions in the case\\\", but no ground of objection to the disallowance of instructions was stated.\\nIn construing and applying Rule 1:8 in Harlow v. Commonwealth, 195 Va. 269, 273, 77 S. E. 2d 851, we said:\\n\\\"The only objection to the rulings of the trial court as shown by the record is stated thus: 'Defendant objected and excepted to the action in giving instruction No. 2 offered by the Commonwealth, and to the refusal to give instruction F offered by defendant.'\\n\\\"Rule 1:8 requires that the trial judge be informed of the precise points of objection in the minds of counsel so that he may rule intelligently, thereby avoiding delay and the expense incident to appeals, reversals and new trials upon grounds of objection which might have been obviated or corrected in the trial court. Therefore this Rule must be adhered to unless the exceptions therein stated apply. Ross v. Schneider, 181 Va. 931, 27 S. E. (2d) 154; Rook v. Atl. Coast Line R. Co., 184 Va. 670, 36 S. E. (2d) 559; Regensburg v. Commonwealth, 159 Va. 1024, 167 S. E. 247. See annotations to Rule 1:8, Cum. Supp., 1950 Code.\\nIn Smith v. Commonwealth, 165 Va. 776, 781, 182 S. E. 124, the following objection was made: 'The foregoing instructions Nos. A, B, C, D, E, F, and G were offered by the defendant and refused bv the court to which action of the court the defendants excepted.' This objection was held insufficient because it failed to comply with Rule 22 (now 1:8).\\\"\\nNo objection was made to instruction No. 3, and nothing more than a mere \\\"exception\\\" was taken to the refusal to give instructions A and B. Clearly this does not constitute compliance with Rule 1:8, and the assignments of error pertaining to the giving and refusal of instructions will not be considered.\\nThe testimony appears in the record in narrative form, and the objection made to the admissibility of certain evidence introduced by the city, which is the basis of an assignment of error, is also set out in narrative form. It follows:\\n\\\"At this point counsel for the defendant moved the Court to strike from the record and instruct the jury to disregard all the testimony of Dr. Kaye relating to his findings of the blood test, which motion was overruled by the Court, and exception was made the the Court's ruling.\\\"\\nIn accused's brief it is stated that his motion to strike Dr. Kaye's testimony relating to his findings upon analysis of the blood taken from the vial was made because it had not been properly identified. In the record this motion follows immediately after Dr. Kaye's testimony, but as recorded it does not specify the ground of objection as set out in the brief.\\nDetermination of whether or not the objection meets the requirements of Rule 1:8 or should be considered by us to \\\"attain the ends of justice\\\" depends to some extent upon the scope of this witness's testimony and what part was open to question.\\nDr. Kaye is an expert in blood analysis, and the fact that blood taken from a vial that bore accused's name was analyzed by him and that his analysis was correct does not seem to have been questioned when he testified. However, his testimony, though in narrative form, does show that he was subjected to interrogation bearing upon and challenging the identification of the blood that he analyzed. In fact, when all of his narrative testimony is read and weighed, it does not appear that any of it was questioned or challenged except that part that tended to identify the blood. We are thus led to believe that when request to exclude his findings was made, opposing counsel and the court were aware that the motion was directed toward the identification of the blood that had been analyzed. The motion to exclude the evidence from the jury did not properly state the ground relied upon. Yet the character of the witness's testimony, and the setting and circumstances under which the motion was made, disclose its purpose, and to attain the ends of justice, the motion to exclude the blood analysis findings is held to have been sufficient.\\nWas the evidence identifying the blood sufficient to establish, beyond a reasonable doubt, that the sample analyzed was blood extracted from accused? If not, the motion to exclude Dr. Kaye's findings should have been sustained and the analysis stricken from the jury's consideration.\\nDr. Kaye is the State Toxicologist, and his qualifications as an expert in blood analysis to determine alcoholic content and the effect upon' the human system of alcohol in the blood stream were conceded. This expert witness expressed the opinion that the drunlt-o-meter test was not so accurate as the blood analysis test. He also said that \\\"alcohol may affect different people differently at different times,\\\" but that an \\\"alcoholic content of .15 or more\\\" in the blood \\\"is sufficient to cause any person to be under the influence of intoxicants\\\" and that a .23 per cent alcoholic content would be definitely consistent with intoxication.\\nIn testifying about his receipt and analysis of the sample of blood in question and how it came into his possession, he said:\\n\\\"I examined and tested a sample of blood bearing the label as being the blood of James S. Newton taken on March 24, 1956, at the Medical College of Virginia Hospital. I took this sample of blood from the safe as the hospital the day after the same had been taken. My analysis of this blood determined that the blood bore an alcoholic content of .23 per cent. In my opinion this definitely shows that the person from whom the sample was taken was under the influence of intoxicants to a degree where he was not fit to operate an automobile. (Emphasis added.)\\n\\n\\\"I did not take the sample, and I could not say for sure who did. I don't know who put it in the safe. I would assume the night superintendent did. I don't know who the physician who took the sample gave it to, but it had to be handled by at least the physician and superintendent, two sets of hands, before I received it. I don't know who handled it before I receive it. The label bore Mr. Newton's name. I never saw Mr. Newton before today.\\\"\\nThe only other testimony bearing upon the identity of the blood sample was given by officer G. H. Bowles, who arrested accused at the scene of a traffic accident. The record indicates that he testified prior to Dr. Kaye. In this connection he said:\\n\\\"I asked him if he would take the drunk-o-meter test, which he agreed to do, so I took him to the station house where the test was given. Mr. Newton requested the test in writing. He was not satisfied with the results of the test, and so he was advised that he could have a blood test, if he so desired. He was taken to the Medical College Hospital and blood was drawn from his arm by a physician there. I observed the talcing of the blood and the physician put a label on the container.\\\"\\nThe container from which the analyzed blood was taken bore the name \\\"James S. Newton\\\" but officer Bowles did not attempt to describe the label in any manner. He did not even say that accused's name was written on the label, nor was the label or vial produced at the trial. Neither the physician nor the night superintendent, the former of whom it is said labeled the container and the latter of whom is supposed to have handled it and placed it in the safe, testified, nor was their absence explained.\\nSo far as the record discloses, their identity is not known. The physician is not named nor is the recipient of the container identified for it is merely assumed that the night superintendent obtained the sample from someone and put it in the safe. Dr. Kaye did not know and could not attempt to say who or how many persons handled or had access to the sample of blood taken from accused before a vial bearing accused's name came into his possession the next day. In short, officer Bowles' testimony proves that a sample of Newton's blood was extracted by an unnamed party at the Medical College Hospital and put in a container and labeled. Dr. Kaye's testimony shows that the next day he found a vial of blood with accused's name on it in the safe at the Medical College Hospital and he analyzed that blood.\\nThe drunk-o-meter test was given Newton by an experienced officer shortly after Newton's truck had collided with a cab. It was accomplished by having accused breathe or blow into a small balloon \\\"the contents of which\\\" were then analyzed by chemicals and resulted in a finding of .24 alcohol content. There was also other evidence definitely tending to prove that Newton was under the influence of intoxicants when the truck he was driving collided with the cab. However, Newton testified that he was not under the influence of intoxicants and the testimony of another witness tended to corroborate him. Thus a jury issue was presented and the admissibility of the blood analysis was of vital importance.\\nIn Rodgers v. Commonwealth, 197 Va. 527, 531, 90 S. E. 2d 257, we said:\\n\\\"Such an analysis is important evidence in a trial of this sort, and care must be exercised to establish the essential links in the chain of evidence relied on to identify the blood analyzed as being the blood taken.\\n\\\" \\u00a3# It is rudimentary that a specimen taken from a human body for the purpose of analysis must be identified before such specimen or any analysis made from it attains standing as evidence of the condition of the person whose conduct is questioned. Without identification, there is no connection between the two. ' McGowan v. Los Angeles, 100 Cal. App. (2d) 386, 223 P. (2d) 862, 21 A. L. R. (2d) 1206, at 1212.\\n\\\"In proving identity legal presumptions may of course be relied on unless rebutted, e.g., that articles regularly mailed are delivered in substantially the same condition in which they were sent, Schacht v. State, 154 Neb. 858, 50 N. W. (2d) 78, 80; and that an analysis made by an official in the regular course of his duties was properly made, 20 Am. Jur., Evidence, \\u00a7 170-1, pp. 174-8. But where the substance analyzed has passed through several hands, the evidence must not leave it to conjecture as to who had it and what was done with it between the taking and the analysis. See generally Brown v. State, 156 Tex. Cr. 144, 240 S. W. (2d) 310; American Mut. &C Co. v. Industrial Accident Commission, 78 Cal. App. (2d) 493; 178 P. (2d) 40; Novak v. District of Columbia, 82 App. D. C. 95, 160 F. (2d) 588; State v. Romo, 66 Ariz. 174, 185 P. (2d) 757; Annotation, supra, 21 A. L. R. (2d) 1216, at 1220 ff.\\\"\\nMeasured by this test, the evidence does not establish beyond a reasonable doubt that the analyzed blood was in fact Newton's blood.\\nThe city attorney asserts that the alcoholic content shown by the drunk-o-meter test was so nearly identical with that found by the analysis that the former can and should be resorted to in aid of the blood's identification. We cannot accept this near coincidental result found by two wholly disconnected and dissimilar tests, which are admittedly unequal in scientific accuracy, as of probative value to identify the subject matter of the tests. To do so leaves too much, maybe all, to chance and hazard to meet the demands of acceptable proof.\\nNo reliable evidence of probative value has been offered to establish beyond a reasonable doubt that the blood extracted from Newton and then labeled in some manner was in fact the blood that was analyzed except that the vial obtained by Dr. Kaye from the safe bore accused's name. At best the meager proof leaves too much to conjecture, speculation and assumption to prove beyond a reasonable doubt that the analyzed blood was that extracted from accused.\\nThe motion to strike out and exclude Dr. Kaye's findings should have been sustained. This analysis showing the alcoholic content of the blood was undoubtedly prejudicial to accused and its admission without sufficient identification requires that the judgment be reversed and a new trial awarded.\\nNo specific objection was made to that part of Dr. Kaye's testimony which says that in his opinion the person whose blood he analyzed was intoxicated \\\"to a degree where he was not fit to operate an automobile.\\\" Yet upon a retrial he should not be allowed to express his opinion upon accused's fitness \\\"to operate an automobile.\\\" To do so goes beyond giving expert testimony as to degrees of intoxication and invades the province of the jury.\\nReversed and Remanded.\\nOrdinance adopted pursuant to Acts 1936, ch. 425, p. 1015, as amended, now \\u00a7 15-553, Code 1950.\\nFor recent legislation on the subject, not, however, affecting this case, see Acts 1956, ch. 557, p. 912.\"}"
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+"{\"id\": \"2061366\", \"name\": \"Nannie Terry Owens v. Charles Green Owens\", \"name_abbreviation\": \"Owens v. Owens\", \"decision_date\": \"1956-01-16\", \"docket_number\": \"Record No. 4450\", \"first_page\": \"681\", \"last_page\": \"684\", \"citations\": \"197 Va. 681\", \"volume\": \"197\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T20:40:57.172027+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Nannie Terry Owens v. Charles Green Owens.\", \"head_matter\": \"Richmond\\nNannie Terry Owens v. Charles Green Owens.\\nJanuary 16, 1956.\\nRecord No. 4450.\\nPresent, Hudgins, C. J., and Buchanan, Miller, Smith and Whittle, JJ.\\nThe opinion states the case.\\nWilliam Davis Butts, for the appellant.\\nPercy S. Smith and Robert J. Smith, for the appellee.\", \"word_count\": \"1246\", \"char_count\": \"7240\", \"text\": \"Whittle, J.,\\ndelivered the opinion of the court.\\nCharles Green Owens, hereinafter called complainant, was granted a divorce from the bonds of matrimony from Nannie Terry Owens, hereinafter called respondent. The decree was based upon alleged wilful desertion and abandonment for a period of one year. (Virginia Code, 1950, \\u00a7 20-91, as amended by Acts of Assembly, 1952, ch. 100, p. 110). We granted respondent an appeal.\\nThe first assignment of error charges: \\\"The court erred in entering the final decree of divorce because the record showed that no notice had been given to the defendant or her attorney that the depositions would be taken.\\\" This assignment is closely alan to the second, which reads: \\\"The court erred in entering the decree based on the depositions taken November 29, 1954, because the taking of the said depositions was contrary to both Sections 20-104 and 8-74, Code.\\\" These assignments will be treated together.\\nRespondent was a non-resident of Virginia, living in New York. A copy of the bill for divorce, accompanied by \\\"proof of service\\\" was served upon her there on November 3, 1954. Such service under our statute (Va. Code, 1950, \\u00a7 8-74) has the effect of an order of publication \\\"duly executed\\\".\\nThere is no merit in respondent's contention that she was not notified of the date on which depositions were to be taken. When a respondent has been duly summoned by publication and has not appeared in person or by counsel within the period allowed, no notice of the taking of the depositions is required unless ordered by the court. Va. Code, 1950, \\u00a7 8-73, 8-74, modified by Rule of Court 2:21; Lile's Equity Pleading and Practice (Meade), \\u00a7 248, p. 142; Baker v. Baker, 194 Va. 284, 290, 72 S. E. (2d) 632, 635. As will be seen, respondent did not appear within the period allowed.\\nRespondent next complains that the taking of the depositions was premature and contrary to Code, \\u00a7 20-104 and 8-74. With this we. do not agree. As aforesaid, respondent was served with a copy of the bill and \\\"proof of service\\\" in New York on November 3, 1954, and the depositions were not taken until November 29th.\\nSection 20-104, which deals with the taking of depositions against non-residents, and which provides for service by an order of publication, further provides that the taking of depositions cannot be commenced until \\\"at least ten days shall have elapsed after the order of publication shall have been duly published as required by law.\\\" This provision has not been violated in taking the depositions in this case. Personal service, such as was had in this instance, has the effect of an order of publication \\\"duly executed\\\". (Code, \\u00a7 8-74) The effect of the Rules (2:6(c) and 2:21) is to make the time after which no notice is required twenty-one days instead of ten days as provided in Code, \\u00a7 8-73 and 20-104. Rule 2:21 provides: \\\"No notice of the taking of depositions shall be required to be given to any defendant proceeded against by order of publication who has not appeared, unless specially ordered by the court.\\\" (Italics supplied). And Rule 2:6(c) gives a defendant personally served outside the State twenty-one days in which to appear before the cause can be set for hearing and docketed. Therefore, in this instance, the respondent, under Rule 2:21, is a defendant \\\"who has not appeared\\\"; and under Rule 2:6(c) the twenty-one-day provision applies.\\nIt was proper to take depositions at any time after at least twenty-one days had elapsed from the time of service. Therefore, the depositions were properly taken.\\nThe record discloses no appearance by respondent or her attorney prior to the taking of the depositions. No answer was filed within twenty-one days as prescribed by Rule 2:7, and the case was duly \\\"set for hearing and docketed\\\" as provided by Rule 2:8, although the bill for divorce could not be \\\"taken for confessed\\\" under the provisions of this Rule. See also Rule 2:11; Code, \\u00a7 20-99; Baker v. Baker, supra, 194 Va., at p. 290, 72 S. E. (2d), at p. 635.\\nAfter a cause has been set for hearing and docketed, (where no further notice is required), the complainant may proceed to take depositions. Lile's Equity Pleading and Practice (Meade), \\u00a7 251, p. 143.\\nThe third assignment of error challenges the sufficiency of the evidence, and in our view is controlling.\\nThe proof establishes the fact that these parties were married in New York on April 4, 1952, and \\\"cohabited as husband and wife\\\" until April 5, 1952, at which time complainant returned to the Army. His home was in Virginia.\\nComplainant testified that he and his wife had not lived together since the day after their marriage; that he was discharged from the Army in June, 1953, \\\"and she said she was not going to come to Richmond to live with me and told me that she didn't want to leave her people.\\\"\\nIn an effort to corroborate the testimony of complainant, one Alvin Bassfield testified that \\\" in June, 1953, he [complainant] was in Richmond and I saw him and he said that he had gotten out of Service and I also saw a letter from Nannie to Charles stating that she was not coming to Richmond because she liked New York better than living with him. \\\".\\nThe testimony of complainant and Bassfield comprises the evidence in the case. It will be observed that complainant nowhere mentions, the letter testified to by Bassfield; the date of the letter is not given, and there is no proof that Bassfield had any means of knowing respondent's handwriting.\\nComplainant was in the Army from April 5, 1952 to June, 1953. During this period he was not at his home in Virginia. While the bill for divorce was filed October 28, 1954, there is no evidence in the record to show when the alleged desertion occurred. Neither is there credible evidence, aside from complainant's own testimony, to show that respondent wilfully deserted and abandoned complainant. It can hardly be said that Bassfield's testimony in any way corroborates complainant. The letter itself was the best evidence but it was not introduced, and no excuse was given for not producing it. There are too many \\\"gaps\\\" in the testimony which would, of necessity, have to be filled by surmise and conjecture in order to grant a divorce on the meagre evidence in this case.\\nFull and satisfactory proof of desertion should be required in order for the court to determine the legal question involved. A decree of absolute divorce should not be granted unless the evidence relied upon proves wilful desertion without justification or excuse, and the burden of establishing this rests on the complainant. We have no such proof in the case under consideration. Walker v. Walker, 120 Va. 410, 412, 91 S. E. 180; Grim v. Grim, 126 Va. 245, 247, 101 S. E. 140; Davis v. Davis, 187 Va. 63, 69, 45 S. E. (2d) 918, 921; Raiford v. Raiford, 193 Va. 221, 235, 68 S. E. (2d) 888, 897.\\nFor the foregoing reasons the decree is reversed and the bill dismissed.\\nReversed and dismissed.\"}"
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+"{\"id\": \"2068022\", \"name\": \"Commercial Union Insurance Company v. Esther L. Moorefield, Administratrix, etc., et al.\", \"name_abbreviation\": \"Commercial Union Insurance v. Moorefield\", \"decision_date\": \"1986-04-25\", \"docket_number\": \"Record No. 830506\", \"first_page\": \"260\", \"last_page\": \"268\", \"citations\": \"231 Va. 260\", \"volume\": \"231\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:43:02.758927+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commercial Union Insurance Company v. Esther L. Moorefield, Administratrix, etc., et al.\", \"head_matter\": \"Commercial Union Insurance Company v. Esther L. Moorefield, Administratrix, etc., et al.\\nRecord No. 830506\\nApril 25, 1986\\nPresent: All the Justices\\nW. Charles Waddell, III for appellant.\\nSandra Keen McGlothlin (Keary R. Williams; McGlothlin & Wife; Williams & Gibson, on brief), for appellee.\", \"word_count\": \"3054\", \"char_count\": \"18139\", \"text\": \"COMPTON, J.,\\ndelivered the opinion of the Court.\\nThis appeal arises from an action on an insurance contract to recover for a fire loss occurring on residential property. The sole question is whether a verdict properly was set aside because of alleged juror misconduct which took place before the trial commenced.\\nIn February 1980, the Buchanan County residence of Fred J. and Esther L. Moorefield was damaged by fire. At the time, he was the named insured in a policy providing fire coverage issued by appellant Commercial Union Insurance Company. He died in February 1981. Seven months later, she, individually and as administratrix of her husband's estate, filed the present action against the insurer to recover under the policy for fire damage to the home and its contents. In the grounds of defense, the insurer alleged the fire was set deliberately by Fred Moorefield.\\nIn the first trial held in March 1982, a jury found for the defendant insurer. The plaintiffs filed a motion to set aside the verdict, alleging that \\\" [p] rior to selection of the jury panel and during the jury deliberation, the jury considered extraneous evidence which was not adduced at trial; and such evidence was used by the jury in reaching the verdict.\\\" After a hearing, the trial court sustained the motion and granted the plaintiffs a new trial.\\nIn the second trial in December 1982, another jury found for the plaintiffs and assessed damages in the amount of $40,000. We awarded the insurer this appeal. The sole assignment of error is that the trial court erred in granting the plaintiffs' motion to set aside the first verdict and in awarding a new trial.\\nIn the April 1982 hearing on the motion to set aside, only one witness testified. Called by the plaintiffs, Pricilla Ann Yates, age 28, testified that she was on the thirteen-person jury panel summoned for the first trial. Yates did not serve because she was stricken peremptorily.\\nYates testified that, while at the courthouse \\\"early that morning\\\" before trial, she \\\"and some more of the ladies were all standing there talking.\\\" According to Yates, Esther Moorefield \\\"had come through and when she did,\\\" June L. Dotson asked Yates \\\"who she was.\\\" Dotson, another panel member, later was selected and served on the jury. Yates testified she responded to Dotson, \\\" 'That is one of my girlfriends.' \\\" Dotson asked Yates how she \\\"got to know Esther.\\\" Yates told Dotson she and Moorefield were members of the same local ladies' auxiliary.\\nAccording to Yates, she told Dotson, \\\" 'She has had an awful hard life.' \\\" Dotson wanted to know \\\"why.\\\" Yates testified, \\\"I went into detail and said that a friend at the club had accused her husband of burning their house down.\\\" Yates further testified, \\\"June went on and asked me more questions about it.\\\"\\nReferring to juror Dotson, Yates also testified: \\\"She nor I neither one knew that Esther had a lawsuit in with an insurance company . I mean, that wasn't even part of our discussion. She was more or less wanting to find out about the Ladies' Auxiliary, but then she wanted to know how we become friends.\\\"\\nThe record shows that, during the voir dire, the trial court did not give a detailed summary of the pleadings. The court only advised the panel that they were about to hear an action by Moorefield, in her individual and representative capacities, against the insurer \\\"based on alleged losses sustained as a result of a fire to the residence or home.\\\" The basis of the insurer's defense was not mentioned during voir dire. Following this summary of the case, the trial court asked the jurors, among other things, whether they had \\\"discussed this case or heard it discussed,\\\" whether they were \\\"aware of any bias or prejudice in this case,\\\" and whether they knew of any reason why they could not render a fair and impartial verdict in the case. The record shows the prospective jurors shook their heads \\\"negatively\\\" in response to these questions.\\nTestifying on cross-examination during the hearing on the motion to set aside the verdict, Yates said that she had known Esther Moorefield \\\"for the last four or five years through the club\\\" and that she and Moorefield's nephew \\\"work together.\\\" Yates stated she learned the outcome of the trial from the nephew and called Moorefield, telling her that she may have caused Moorefield to lose the case due to the statements made to Dotson. At Moorefield's suggestion, Yates contacted Moorefield's attorney. The motion to set aside subsequently was filed.\\nAt the conclusion of the hearing on the motion, the trial court invited counsel to file memoranda of law on the issues raised and stated, \\\"the Court will give you an opportunity to present any evidence in the case or to recall [Yates], if. need be.\\\" One issue raised was whether the trial court, in a post-trial hearing, properly could receive testimony from a member of the jury panel.\\nIn a memorandum subsequently filed in June 1982, counsel for the insurer argued that if the court construed the incident as one of juror misconduct, as the plaintiffs alleged, the trial court had \\\"the power to summon June Dotson to court for an examination concerning whether the conversation occurred and, if so, whether it affected the jury deliberations.\\\" In July 1982, the trial judge notified counsel by letter that he had decided to award plaintiffs a new trial. The court reasoned that because the \\\"real issue\\\" in the case was whether or not the fire was set intentionally, \\\"the statements made in the presence of one or more jurors to that effect could very well have been very prejudicial.\\\"\\nWithin a week, the insurer filed a motion asking the court to reconsider its ruling. The insurer moved the court \\\"to summon June Dotson before the court to give oral testimony.\\\" Noting that in its prior memorandum it had \\\"requested\\\" that the \\\" 'tainted juror' \\\" Dotson be questioned about whether the alleged conversation occurred and, if so, whether it affected the jury deliberations, the insurer urged the court to \\\"exercise its power to examine June Dotson before ruling on the plaintiffs' motion.\\\"\\nFiled with the motion to reconsider was an affidavit executed by counsel of record for the insurer. The affidavit recited that counsel had contacted Dotson by telephone in May 1982 in order to determine whether she had a conversation with Yates on the morning of trial. The affidavit stated that Dotson said she \\\"recently\\\" had been asked by Yates if she remembered the conversation and whether Dotson had been influenced by it. The affidavit further shows Dotson said that \\\"she did not remember such a conversation and that, in any event, such a conversation would not have influenced her decision.\\\"\\nIn a further memorandum filed with the court in August 1982, the insurer argued: \\\"Virginia case law is clear that the Court may properly summon June Dotson to Court to be examined with respect to the alleged misconduct and any influence it may have had on the jury deliberation.\\\" Accordingly, the insurer contended, the court should summon the juror for examination before granting plaintiffs' motion to set aside.\\nIn September 1982, the trial judge stated in another letter to counsel that the court was still of the opinion that the motion for a new trial should be granted. The court said: \\\"By having another trial the appearance of impropriety brought about by the comments in the presence of the jurors about the fire being voluntarily set would be eliminated and therefore harmless.\\\" The court did not address the request that the juror be examined prior to a ruling on the motion to set aside. The ground assigned in the order granting the new trial was \\\"that extraneous statements made in the presence of one (1) or more jurors could have prejudiced the jury in determining the major issues of this action.\\\"\\nOn appeal, the insurer argues the trial court erred in using testimony from Yates alone as the basis for setting aside the verdict and erred in failing to interrogate Dotson before ruling on the motion. The plaintiffs disagree with the insurer and contend the trial court properly exercised its discretion in granting a new trial.\\nCertain settled principles relating to alleged unfair and improper influences on jurors in civil cases are essential to our review. All parties to the litigation are entitled to a fair and impartial trial by a jury of persons who \\\"stand indifferent in the cause.\\\" Code \\u00a7 8.01-358. A motion for a new trial on the ground of juror misconduct is addressed to the sound discretion of the trial court and, unless there has been abuse of that discretion, the judgment below will not be reversed on appeal. Litz v. Harman, 151 Va. 363, 375, 144 S.E. 477, 480 (1928).\\nBut neither the sole fact of irregularity nor the mere suspicion of injustice based upon the irregularity is sufficient to warrant setting aside a verdict. \\\"Mere suspicion or possible inferences cannot be allowed to overrule the orderly administration of justice, for otherwise there would be continued delays and many proper verdicts set aside. The importance of avoiding another trial, if the first trial was fair, is of paramount importance.\\\" Yellow Cab Corp. v. Henderson, 178 Va. 207, 221, 16 S.E.2d 389, 396 (1941), quoted in Davis v. Webb, 190 Va. 997, 1003, 59 S.E.2d 116, 119 (1950).\\nIn considering a motion to set aside when juror misconduct is alleged, the trial court has the affirmative duty \\\"to investigate the charges and to ascertain whether or not, as a matter of fact, the jury was guilty of such misconduct.\\\" Kearns v. Hall, 197 Va. 736, 743, 91 S.E.2d 648, 653 (1956). The trial court properly may summon one or more jurors to testify under oath in open court and to answer relevant questions propounded by the court and counsel about what had transpired. Dozier v. Morrisette, 198 Va. 37, 40, 92 S.E.2d 366, 368 (1956). This is an exception to the general rule that testimony of jurors is inadmissible to impeach their verdict. Id., 92 S.E.2d at 368. Ordinarily, jurors will not be allowed \\\"to explain their verdict by stating the reasons upon which their conclusions are based.\\\" Federal Deposit Insurance Corp. v. Mapp, 184 Va. 970, 983, 37 S.E.2d 23, 28 (1946).\\nAlthough juror testimony may be received upon an issue of juror misconduct, hearsay affidavits are not admissible in support of a motion for a new trial. Kearns v. Hall, 197 Va. at 742, 91 S.E.2d at 652. Nevertheless, such an affidavit may be sufficient to require the trial court to investigate the matters recited in the document. Id., 91 S.E.2d at 652. See Dozier, 198 Va. at 40, 92 S.E.2d at 368.\\nThe test to be used in determining whether a verdict should be set aside, when alleged juror misconduct may have affected the impaneling of jurors, is mandated by statute. Code \\u00a7 8.01-352 provides that an unintentional \\\"irregularity\\\" in the \\\"impaneling of jurors\\\" shall not be cause for setting aside a verdict or granting a new trial \\\"unless it appears . . . that the irregularity . be such as to probably cause injustice . in a civil case to the party making the objection.\\\" This standard was adopted in 1973 to be included in former Code \\u00a7 8-208.27. Acts 1973, ch. 439 at 651. We applied a predecessor to current \\u00a7 8.01-352 in Oyler v. Ramsey, 211 Va. 564, 179 S.E.2d 904 (1971), a damage suit involving a situation of alleged juror misconduct analogous to the instant case. There, under a slightly different statutory standard, we held a new trial was not warranted when a juror stood mute when the trial court asked the prospective jurors on voir dire: \\\" 'Do any of you have any close business relations with either of the parties or any of the attorneys in the case?' \\\" 211 Va. at 565, 179 S.E.2d at 905. Defense counsel learned after the verdict that plaintiff's counsel at the time of trial was representing one of the jurors in a damage claim pending in another court.\\nAgainst this background, we turn to the present facts to determine whether the trial court properly sustained the plaintiffs' motion to set aside, keeping in mind the precise ground of the motion, that is: \\\"Prior to selection of the jury panel and during the jury deliberation, the jury considered extraneous evidence which was not adduced at trial; and such evidence was used by the jury in reaching the verdict.\\\" These allegations are aimed at the effect of Yates' statements on the deliberations of the jury collectively and Dotson individually. Because of the charges made in the plaintiffs' pleading and because of the information disclosed in the affidavit, the trial court had the responsibility to fully investigate the matter to determine whether the situation was such \\\"as to probably cause injustice,\\\" according to the statutory standard.\\nUnder these circumstances, an inquiry into the effect of innocent but improper pre-trial statements made to a juror is incomplete when the trial court has not summoned and examined the particular juror to whom the statements were made. Information only from a non-juror, a person not privy to jury deliberations, is inadequate to form the basis for a conclusion that the jury's deliberative process was probably tainted by extraneous statements.\\nConsequently, we hold that the trial court abused its discretion in failing to summon and examine juror Dotson. Only Dotson, or perhaps other jurors, could competently furnish probative information to the court on the issues raised. For example, Dotson may not have fully heard or clearly understood Yates' statement that a third party said the husband intentionally set fire to his own home. Her attention'instead may have been on the activities of the ladies' auxiliary. Moreover, assuming Dotson heard and understood the statement, she may have discounted it as purely hearsay and rumor. And, even if she accepted the statement, Dotson may have disregarded it in an effort to be a conscientious juror and to give the parties a fair trial. In these connections, a court, without evidence on the subject, should not presume that a juror has lied on voir dire when, as here, she has denied that she had discussed the case or heard it discussed and has indicated that she was unbiased and could render an impartial verdict in the case.\\nFinally, plaintiffs argue the defendant waived its right to insist that Dotson be examined. According to the argument, defendant failed to summon Dotson, failed to make explicit, timely demand that the court take such action, and failed to arrange for a hearing at which Dotson's testimony could be presented. We reject this contention. As the recitation of the facts has demonstrated, before entry of the new-trial order defendant reminded the trial judge on three occasions that the court had the power to summon Dotson, and on two occasions formally moved the court to summon Dotson before finally ruling on the motion. Although counsel could have been more aggressive in obtaining Dotson's testimony, the trial court cannot shift to counsel its duty to conduct a full investigation. After all, a jury that has been formally impaneled becomes an integral part of the judicial process for the trial of that particular case. That judicial structure is under the direct supervision and control of the presiding judge. Understandably, counsel may be reluctant to assume control over any part of the judicial apparatus, even when the jury has been discharged after verdict. And, significantly, the trial court did not hold that counsel had waived the right to insist that Dotson be summoned and examined by the court.\\nFor these reasons, we conclude that the trial court erred in setting aside the first verdict. However, we will not reinstate the first verdict, as the defendant urges. Instead, we will remand the case for further hearing on the motion to set aside. In so doing, we will follow precedent established by this Court in Kearns v. Hall, supra.\\nIn that case, the trial judge set aside a defendants' verdict in a damage suit arising from an automobile accident on the ground of juror misconduct during a court-authorized view of the scene at which the trial judge and counsel were not present. In sustaining a motion to set aside the verdict, the court relied upon an affidavit of one of the attorneys for the plaintiff relating information he had obtained from four of the jurors, and upon the court's ex parte conversations with the deputy sheriff and deputy clerk who accompanied the jury on the view. Following a second trial resulting in a verdict and judgment for the plaintiff, this Court reversed. The Court held that the trial court had \\\"erred in refusing to call the jurors and the court's officers . as witnesses to testify under oath, as to the accuracy of the allegations of the jury's misconduct contained in [the] affidavit.\\\" 179 Va. at 743, 91 S.E.2d at 653. The Kearns Court did not reinstate the first verdict. Rather, the case was remanded to the lower court to determine whether the jury in the first trial was guilty of such misconduct as warranted the setting aside of their verdict. We shall do likewise.\\nAccordingly, the verdict and judgment in the second trial in favor of the plaintiff will be set aside, the order setting aside the first verdict and awarding a new trial will be annulled, and the case will be remanded to the trial court with directions. The trial court shall conduct a further investigation, within the framework of the motion to set aside and in accordance with the views expressed in this opinion, to determine whether any irregularity in impaneling the first jury was such as to probably cause injustice. If the court so finds, it shall sustain plaintiffs' motion to set aside, reinstate the second verdict, and enter judgment on it. If the court finds to the contrary, it shall overrule the plaintiffs' motion, reinstate the first verdict, and enter judgment on that verdict.\\nReversed and remanded.\"}"
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+"{\"id\": \"2079872\", \"name\": \"Robert H. Blodinger, et al. v. Broker's Title, Inc., et al.\", \"name_abbreviation\": \"Blodinger v. Broker's Title, Inc.\", \"decision_date\": \"1982-09-09\", \"docket_number\": \"Record No. 791723\", \"first_page\": \"201\", \"last_page\": \"205\", \"citations\": \"224 Va. 201\", \"volume\": \"224\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:00:23.589359+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert H. Blodinger, et al. v. Broker\\u2019s Title, Inc., et al.\", \"head_matter\": \"Richmond\\nRobert H. Blodinger, et al. v. Broker\\u2019s Title, Inc., et al.\\nRecord No. 791723.\\nSeptember 9, 1982.\\nPresent: All the Justices.\\nGeorge R. St. John (George R. St. John Associates, on brief), for appellants.\\nCraig T. Redinger (Lowe & Gordon, Ltd., on brief) for appellees.\\nAmicus Curiae: Commonwealth of Virginia, Virginia State Bar. (Marshall Coleman, Attorney General; Walter H. Ryland, Chief Deputy Attorney General; Leonard L. Hopkins, Jr., Assistant Attorney General, on brief), for appellants.\", \"word_count\": \"1129\", \"char_count\": \"7026\", \"text\": \"STEPHENSON, J.,\\ndelivered the opinion of the Court.\\nRobert H. Blodinger and four other attorneys (collectively, the attorneys) filed a declaratory judgment action against Broker's Title, Inc., and certain of its officers (collectively, the company or Broker's Title), asking the trial court to determine that the company was engaged in the unauthorized practice of law. The trial court dismissed the suit, holding there was no actual, justiciable controversy between the parties and, therefore, declaratory judgment did not lie. The attorneys appeal this ruling.\\nBroker's Title serves as the local agent for a title insurance company. As such, it participates in the closing of real estate transactions. The attorneys refused to deal with the company or to participate in closings where it was represented, believing to do so would aid the unauthorized practice of law.\\nCounsel for Broker's Title wrote the attorneys, denied the company was engaged in the unauthorized practice of law, and suggested the parties seek an \\\"amicable remedy\\\" to the situation. If this was not possible, the company suggested the parties seek a judicial determination. Less than two weeks later, the attorneys brought this suit. Thereafter Broker's Title brought an antitrust action against the attorneys in federal court. (The federal suit has been stayed pending a resolution of this case.)\\nBroker's Title asserts no actual controversy exists between the parties and, therefore, declaratory judgment is not proper. Virginia Bus Assoc, v. Tunnel Dist., 219 Va. 988, 990, 254 S.E.2d 54, 55 (1979); City of Fairfax v. Shanklin, 205 Va. 227, 229, 135 S.E.2d 773, 775 (1964). This assertion is contradicted by the company's actions. It was the company that suggested the parties seek a judicial determination, which the attorneys proceeded to do. It is the company that alleges, in the federal suit, that the attorneys are engaged in an illegal boycott. Clearly, an actual controversy exists between the parties.\\nThe company argues that while there may be a disagreement over whether it is engaged in the unauthorized practice of law, no rights or obligations of the attorneys have been infringed entitling them to a declaration of this fact. The attorneys, however, had a vested interest in this determination. They feared participation in closings with Broker's Title would subject them to possible disciplinary action. Conversely, they worried, as has turned out to be the case, their continued refusal to deal with the company would lead to possible antitrust liability.\\nThe attorneys were not seeking an answer to a hypothetical question. A determination of the legality of the company's activities was essential if the attorneys were to avoid the possibility of both disciplinary action and a law suit.\\nThe company asserts further that if a controversy exists it has matured past the point where declaratory judgment would lie. Citing Liberty Mutual Ins. Co. v. Bishop, 211 Va. 414, 177 S.E.2d 519 (1970), it argues once damages accrue the proper remedy is an action at law. Broker's Title argues it was damaged the moment the attorneys started their boycott.\\nUnlike Liberty Mutual, this case involves an alleged continuing harm and mounting damages. Further, the company's position is that the attorneys could not bring a declaratory judgment action because it was entitled to file an antitrust suit. This argument puts the attorneys at the company's mercy, forcing them to continue their boycott and subject themselves to possible growing liability until the company sees fit to file suit. Yet the purpose of the Declaratory Judgment Act is to \\\"afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor.\\\" Code \\u00a7 8.01-191.\\nFinally, Broker's Title argues declaratory judgment was precluded by the availability of other remedies. It argues a determination of its conduct could have been made through a criminal prosecution (Code \\u00a7 54-44), a writ of quo warranto (Code \\u00a7 8.01-636, or an advisory opinion of the Virginia State Bar (Rules of Court, Part 6, \\u00a7 IV, 11 10, 219 Va. 367-71 (1978)). We reject the argument that the existence of any of these remedies precluded the use of declaratory judgment.\\nNeither a criminal proceeding nor a writ of quo warranto was available to the attorneys, since such actions may be brought only on behalf of the Commonwealth. Nor does the fact that unauthorized practice of law is a misdemeanor preclude declaratory relief. The attorneys were not vigilantes seeking to prosecute the company in the stead of the Commonwealth. See Connecticut Soc'y. of Architects, Inc. v. Bank Bldg. & Equipment Corp., 151 Conn. 68, 193 A.2d 493 (1963); Wisconsin Pharmaceutical Ass'n. v. Lee, 264 Wis. 325, 58 N.W.2d 700 (1953). Their goal was not solely to stop the illegal conduct of others, but to insure their own conduct conformed to the law and the tenets of the legal profession.\\nFurther, the availability of an advisory opinion did not preclude the use of declaratory judgment. In fact, the attorneys sought help from the State Bar, only to be told all advisory opinions in regard to the subject recently had been withdrawn. In any event, an advisory opinion, based on a hypothetical set of facts, could not resolve questions regarding the actual conduct of Broker's Title. These issues could be resolved by declaratory judgment.\\nFor the reasons stated, we conclude the bill of complaint stated a cause of action for declaratory judgment under the statute, and the trial court erred in dismissing the suit. Indeed, the court had the \\\"inherent power, apart from statute\\\" to inquire into possible unauthorized practice of law. Richmond Ass'n of Cr. Men v. Bar Ass'n, 167 Va. 327, 335, 189 S.E. 153, 157 (1937). Accordingly, the decree of the trial court will be reversed and the cause remanded.\\nReversed and remanded.\\nThe attorneys were concerned that by dealing with Broker's Title they would violate Disciplinary Rule 3-101A which prohibits a lawyer from aiding the unauthorized practice of law. 216 Va. 1090 (1976).\\nAfter the present suit was brought, this section was amended to provide for the issuance of a writ against any person engaged in the unauthorized practice of a profession. Acts 1980, ch. 705.\\nWe have recently approved advisory opinions regarding the practice of law by title insurance companies. Rule 6.1-7.\"}"
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+"{\"id\": \"2079916\", \"name\": \"Norman Wayne Addison v. Commonwealth of Virginia\", \"name_abbreviation\": \"Addison v. Commonwealth\", \"decision_date\": \"1983-01-21\", \"docket_number\": \"Record No. 811198\", \"first_page\": \"713\", \"last_page\": \"719\", \"citations\": \"224 Va. 713\", \"volume\": \"224\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:00:23.589359+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Norman Wayne Addison v. Commonwealth of Virginia\", \"head_matter\": \"Richmond\\nNorman Wayne Addison v. Commonwealth of Virginia\\nJanuary 21, 1983.\\nRecord No. 811198.\\nPresent: All the Justices.\\nPaul J. Neal, Jr., for appellant.\\nBrian L. Buniva, Assistant Attorney General (Gerald L. Baliles, Attorney General, on brief), for appellee.\", \"word_count\": \"2192\", \"char_count\": \"12835\", \"text\": \"RUSSELL, J.,\\ndelivered the opinion of the Court.\\nThis appeal presents the question whether a confession, given in a sheriffs office at a time when no probable cause existed to arrest the defendant, was voluntary.\\nNorman Addison was convicted, pursuant to Code \\u00a7 18.2-80, of aiding and abetting the arson of an unoccupied building. At his non-jury trial, after offering proof of the corpus delicti, the Commonwealth relied on several statements made by the defendant to the sheriff and his deputies as proof of the defendant's participation in the crime. The defendant moved to suppress these statements on the ground that, notwithstanding his receipt of Miranda warnings and his election to discuss the case without the assistance of counsel, he gave them in coercive circumstances, while he was subjected to a custodial interrogation, and at a time when no probable cause existed to arrest him. The trial court found that the defendant was at the sheriffs office voluntarily and that the statements were untainted by coercion. The defendant appeals this ruling.\\nWe review the evidence, as we must, in the light most favorable to the Commonwealth. In the fall of 1980, Culpeper County had been plagued by a series of incendiary fires destroying unoccupied buildings. The suspicions of the local authorities had begun to focus on David Addison, the defendant's brother, and David's girlfriend, Susan Dodson. On the night of October 29-30, 1980, almost all the available personnel of the sheriffs office were on duty, maintaining routine patrol in the area where the fires had been occurring. Deputy Andy Hitt was maintaining surveillance of the vicinity where David Addison lived, from the intersection of Routes 522 and 650. A State Trooper discovered an abandoned house afire at the western end of the county about 11:30 p.m. and reported this information, through his dispatcher, to the sheriffs department.\\nA few minutes after midnight, a Ford Falcon sedan passed Deputy Hitt, southbound on Rt. 522 toward Culpeper. The deputy could not see the driver and did not recognize the car, but he turned on his flashing red lights and pursued it because it had no light on its rear license plate. He reported this fact by radio to the sheriff, who instructed him to the stop the Falcon. After he had followed it for nearly two miles, the Falcon turned into the driveway of the home of Charles L. Addison, the defendant's uncle. Hitt inquired of the dispatcher by radio and was informed that the Falcon was registered to Charles Addison. It was being driven by the defendant. The defendant got out of the Falcon and walked over to Hitt, who opened the door but remained seated in his cruiser while writing out a summons charging the defendant with \\\"improper equipment.\\\"\\nSheriff Peters, who was some distance away, heard the radio transmissions tracing the registration of the Falcon to someone named Addison. He remembered seeing such a Falcon parked in the driveway of the home of David Addison, the primary arson suspect, earlier that evening. He decided to investigate further. He arrived at Charles Addison's home about fifteen minutes after Hitt had stopped the defendant there. Two or three other sheriff's cars arrived on the scene. Their emergency lights were not operating, but the occupants were in uniform and were armed. No weapons were displayed.\\nThe defendant's aunt appeared in front of the house, and she and the defendant \\\"hollered\\\" back and forth. The defendant turned away from Hitt and appeared to be starting toward the house. Hitt testified: \\\". . . I told Mr. Addison when he started to walk toward the house, I told him that technically he was under arrest for these two summonses until I finished with him with this . . . if . . . that he walked away from me that I'd have to charge him with resist [sic].\\\" Hitt explained that this took place before the defendant signed the summons. When Hitt had completed the summons, he gave it to the defendant, who signed it.\\nThe defendant's aunt came out to the cars and gave the sheriff permission to take the Falcon to the sheriff's office in Culpeper and search it there. The sheriff told the defendant that he \\\"wanted to talk to him about the fire.\\\" He asked the defendant if he would agree to go to his office in Culpeper to talk about it. The defendant said yes, and got into the back seat of the sheriff's car. The sheriff testified that he did not consider the defendant to be under arrest because \\\"I had no grounds to stop him at that time.\\\" The usual practice of the department in making a night arrest was at least to pat the subject down for weapons. In this case, however, the defendant was not frisked, searched, handcuffed, or physically touched by any of the officers. He was not ordered into the car or told that he was required to go with them. The sheriff testified that if the defendant had refused to go with him, he could have gone home.\\nWhen the sheriff and the defendant arrived at the office in Culpeper, about eight miles from the Charles Addison house, the defendant was offered coffee, which he declined, and was given the usual Miranda warnings. He was never told that he was free to leave, but never asked about it. Defense counsel asked the sheriff:\\nQ. And once you got to the Sheriffs Department, would he have then also been free to go?\\nA. If he had said, I'm going home, he could have walked out.\\nQ. And you wouldn't have done anything?\\nA. No, sir. I[t] wouldn't have pleased me, I'll say that. But\\nno, I think that I would have just let him go at that time.\\nThe sheriff called deputy William Partlow, an investigator who knew the defendant. Partlow had had a previous conversation with him at the scene of one of the earlier fires. Partlow arrived about 2:00 a.m., gave additional Miranda warnings to the defendant, and interviewed him for an additional two hours, off and on. During this time the defendant gave him the three statements under attack. Partlow also testified that the defendant never asked to leave, was never told either that he was or was not free to leave, but, in fact, would have been permitted to depart at any time if he had indicated a desire to do so. He was in an interview room with Partlow most of the time, but was occasionally unattended. Near the end of the interview, he expressed a wish to go to the bathroom. Partlow waited outside the door while he was there and then followed him back to the interview room. This occurred, however, after the defendant had given a statement admitting his participation in the crime, when probable cause existed to arrest him.\\nPartlow testified that the defendant showed no reluctance to discuss the case with him, but rather that he wanted to do so in an effort to get some kind of help for his brother, David Addison. The defendant said that he thought David had experienced some psychological problems in the military service, that David's job had been \\\"secretive\\\" and that he wasn't sure what his difficulties had been, but that \\\"he was concerned for him and that he was doing this as a way to get David help.\\\" The defendant's statement made it clear that he knew David had been setting the fires since July. He said that \\\"David has said these fires are really bothering him, especially the barn where the Baldwin boys lost their equipment.\\\" David promised him on the night of October 29, he said, that \\\"this was going to be the last fire.\\\"\\nThe defendant argues that this case is controlled by Dun-away v. New York, 442 U.S. 200 (1979). There, a Rochester detective, having a \\\"lead\\\" casting suspicion on Dunaway for a robbery-murder, ordered two detectives to \\\"pick him up\\\" and \\\"bring him in.\\\" The \\\"lead\\\" fell far short of the probable cause requisite for an arrest. Dunaway was taken into custody, placed in an interrogation room in the police station, and given Miranda warnings. He was questioned about an hour and during this time made self-incriminating statements. He was never told that he was under arrest, but he was in fact detained. The trial court found as a fact that Dunaway would have been physically restrained if he had attempted to leave. The Supreme Court held, following the rule in Brown v. Illinois, 422 U.S. 590 (1975), that detention for custodial interrogation offends the Fourth and Fourteenth Amendments unless supported by probable cause. The Court further held, following Brown, that while Miranda warnings and waivers would establish the \\\"voluntariness\\\" of the confession for Fifth Amendment purposes (and, presumably, would also satisfy the Sixth Amendment guarantee of the right to counsel), it would not \\\"attenuate the taint\\\" of an unconstitutional seizure of the person in violation of the Fourth Amendment. Thus the exclusionary rule was applied to Dunaway's confession.\\nThis case is distinguished from Dunaway by the trial court's finding of fact, supported by credible evidence, that the defendant, prior to giving the statements which established probable cause, was never seized or detained against his will. The trial court correctly applied the rule of Witt v. Commonwealth, 215 Va. 670, 212 S.E.2d 293 (1975), where we held that the resolution of factual questions underlying the admissibility of confessions is in the province of the trial judge, is to be determined by the preponderance of the evidence, and is to be accorded the same weight on appeal as a finding of fact by a jury. Id. at 674, 212 S.E.2d at 296-97. Here, as in Witt, the trial court conducted a full pre-trial hearing on the defendant's motion to suppress his statements, and gave counsel wide latitude in examining the witnesses. The trial court was in a unique position to resolve the conflicts in their testimony.\\nThe defendant, however, says that the evidence supporting the trial court's finding of voluntariness was incredible. He invites our attention to United States v. Mendenhall, 446 U.S. 544, reh'g denied, 448 U.S. 908 (1980), in which a part of the opinion in which only two justices joined, stated: \\\"We conclude that a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.\\\" Id. at 554. In Gomez v. Turner, 672 F.2d 134 (D.C. Cir. 1982), the court declined to follow the above-quoted dictum in Mendenhall, holding that \\\"in this circuit the test of whether a seizure has occurred is whether a reasonable person, innocent of any crime, would have felt free to walk away under the circumstances.\\\" Gomez at 141. [Emphasis added].\\nThe defendant argues that the totality of the circumstances surrounding his conversation with Partlow was coercive. He stresses the fact that he was never expressly told that he was free to leave. But this is no more controlling than the unarticulated state of mind of the officers. See Comm. v. E. A. Clore Sons, 222 Va. 543, 281 S.E.2d 901 (1981). The issue on appeal is simply whether there was credible evidence to support the trial court's finding that the defendant voluntarily accompanied the sheriff and was not detained against his will. On this point we need look no further than his expressed desire to talk to the authorities to seek help for his troubled brother.\\nThe defendant also assigns error to the trial court's refusal to strike the evidence of an expert who testified that the value of the burned building, before the fire, would have exceeded $100, which was then the minimum threshold for a felony conviction under Code \\u00a7 18.2-80. The defendant conceded the qualifications of the witness, but contends that his reasoning was faulty and that he had no experience in this kind of appraisal. This argument lacks merit. The validity of the reasoning process by which an expert reaches his opinion is within the province of the trier of fact, and goes only to the weight to be accorded to his opinion. See Ford v. Ford, 200 Va. 674, 107 S.E.2d 397 (1959). The trial court, for reasons articulated in the record, found it worthy of credit.\\nFor the foregoing reasons, the judgment will be\\nAffirmed.\\nBecause the defendant could not produce a valid registration card at the time, a charge of \\\"no registration\\\" was added.\\nThe summons is not in evidence. Its effect, of course, was to command the accused to appear in court at the time and place specified. Rule 3A:4(c)2. By signing it, the accused gave his written promise to appear at that time and place. The giving of such a promise by the accused requires that the officer \\\"forthwith release him from custody.\\\" Code \\u00a7 19.2-74A.1.\"}"
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+"{\"id\": \"2087358\", \"name\": \"Time Insurance Company v. Doris J. Bishop, Individually and as Administrator of the Estate of Beeken E. Bishop, DECEASED\", \"name_abbreviation\": \"Time Insurance v. Bishop\", \"decision_date\": \"1993-01-08\", \"docket_number\": \"Record No. 920348\", \"first_page\": \"48\", \"last_page\": \"59\", \"citations\": \"245 Va. 48\", \"volume\": \"245\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:15:22.675740+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Time Insurance Company v. Doris J. Bishop, Individually and as Administrator of the Estate of Beeken E. Bishop, DECEASED\", \"head_matter\": \"Time Insurance Company v. Doris J. Bishop, Individually and as Administrator of the Estate of Beeken E. Bishop, DECEASED\\nRecord No. 920348\\nJanuary 8, 1993\\nPresent: All the Justices\\nMelissa Warner Scoggins; Daniel Patrick Frankl (Gentry, Locke, Rakes & Moore, on briefs), for appellant.\\nCharles R. Better, III (Paul M. Barnett; Crow gey & Barnett, on brief), for appellee.\", \"word_count\": \"4030\", \"char_count\": \"24527\", \"text\": \"JUSTICE WHITING\\ndelivered the opinion of the Court.\\nThe sole issue in this insurance case is whether the evidence establishes as a matter of law that an insured knowingly misrepresented a material fact in his application for insurance.\\nOn July 1, 1987, Beeken E. Bishop applied for a policy of hospitalization and life insurance to be issued by Time Insurance Company (Time). Charles M. James, an agent of Time, filled in an application for this insurance by recording Bishop's answers to the questions on Time's application form. In a section entitled \\\"Evidence of Insurability,\\\" the following question was asked of Bishop: \\\"To the best of your knowledge and belief, have you or any family member applying for the insurance: 1. Ever had any indication, diagnosis or treatment for: . . . use of alcohol or drugs?\\\" James recorded Bishop's negative response in the \\\"No\\\" block opposite this question.\\nIn fact, however, unbeknownst to Time or James, Dr. Michael E. Slayton, an internal medicine specialist in Montgomery County, had been treating Bishop during the preceding 15-month period for physical problems arising out of Bishop's abuse of alcohol. Dr. Slayton's treatment involved eight office visits and one hospitalization.\\nJames checked the appropriate \\\"Yes\\\" blocks to indicate Bishop's affirmative responses concerning his confinement in a hospital during the preceding five years and his treatment by a physician within the preceding two years. And, with the information furnished by Bishop, in the blank space next to these questions, James wrote: \\\"Beeken had Broken Blood Vessell in Esophagus in Sept 1986 Treated at Montgomery Hospital by Dr. Slayton for 10 Days \\u2014 Fully Recovered.\\\" (Quoted with errors in spelling and grammar from the original.) Again, unknown to Time and James, Dr. Slayton's notes regarding this hospital discharge stated, among other things, that Bishop had \\\"alcoholic liver disease with portal hypertension [and] chronic alcohol abuse.\\\"\\nThe application contained the following language just above Bishop's signature:\\nI represent that all statements and answers to the above questions are complete and true to the best of my knowledge and belief. I apply for insurance to be issued solely in reliance upon this application. I understand that the insurance contains a two year contestability period in the event of material misrepresentation.\\nAfter James completed the application, Bishop read and signed it. On August 1, 1987, without any further investigation, Time issued the policy.\\nThereafter, Dr. Slayton and others continued to treat Bishop for his alcohol-related and other problems. When Time received the bills for such treatments, it began an independent investigation of Bishop's medical history to determine whether it should contest coverage on the ground that Bishop had given false information in his application.\\nHowever, on January 31, 1989, before Time's investigation was completed, Bishop died in a Roanoke hospital. Bishop's death was attributed to cirrhosis of the liver caused by his excessive use of alcohol.\\nUpon Time's refusal to pay Bishop's bills for treatment and the life insurance benefits provided by the policy, his widow, Doris J. Bishop, individually and as administrator of his estate, filed this action seeking damages for Time's breach of contract. Time agreed in the trial court that if it were liable under its policy, it would be responsible for Bishop's medical, nursing, and hospital expenses in the sum of $130,625.10 and life insurance benefits of $10,000.\\nAt a jury trial, Time asserted that the policy was void because of Bishop's material misrepresentations, and it introduced evidence in support of this affirmative defense. One of Time's witnesses was Dr. Slayton, whose notes of Bishop's first interview disclose that Bishop \\\"readily admits that his main problem is one of excessive alcohol consumption. For at least the last 5 years, he has drank alcohol to excess of as much as a fifth a day.\\\"\\nIn describing his treatment of Bishop for liver disease and associated illnesses linked to Bishop's abuse of alcohol in the 15 months prior to Bishop's application for insurance, Dr. Slayton testified that:\\nWe explained to him that we thought he had liver disease as a complication of alcohol exposure.\\n[W]e spoke to him at length about the concerns that we had about continued alcohol exposure on his part and requested that he abstain henceforth. We tried to educate him as to the risk of not doing so.... I dare say that the gist of the conversation was that continued alcohol exposure would be extremely dangerous and may result in further complications of the problem other than what we had already seen.\\nAnd in each of Bishop's eight office treatments, Dr. Slayton stressed the importance of abstaining from alcohol.\\nTo assist Bishop in abstaining from alcohol, Dr. Slayton prescribed two drugs that are similar to drugs used in detoxification facilities. Initially, he prescribed Valium or Diazepam, anti-anxiety medication that \\\"might be beneficial to [Bishop] if indeed he was going to be compliant as far as alcohol abstinence.\\\" When Bishop reported on one of those visits that he had resumed drinking, Dr. Slayton changed the prescription from Valium or Diazepam to Librium, another anti-anxiety medication, to help \\\"wean\\\" Bishop off alcohol.\\nThe court submitted to the jury the issue whether Bishop's alleged misstatements were \\\"knowingly\\\" made. The jury returned a verdict in favor of the plaintiff in the agreed amount, and Time appeals.\\nTime had the affirmative burden of \\\"clearly\\\" proving that Bishop's representation was untrue and that it was material to the risk. Mutual of Omaha Ins. Co. v. Dingus, 219 Va. 706, 713, 250 S.E.2d 352, 355 (1979). We think Time carried this burden of proof.\\nIn responding to Time's questions, Bishop clearly misstated the facts in denying that he \\\"ever had any indication, diagnosis or treatment' ' for ' 'use' ' of alcohol. The evidence is overwhelming that Dr. Slayton was treating Bishop for conditions directly related to the latter's use of alcohol.\\nAnd Bishop's representation would be material to the risk if it would reasonably influence the insurance company in deciding whether to issue the policy. Mutual of Omaha Ins. Co. v. Echols, 207 Va. 949, 953-54, 154 S.E.2d 169, 172 (1967). Steven Liebherr, Time's underwriting supervisor, testified that given the information on Bishop's application, Time would have decided to issue the policy without any additional investigation and at standard premium rates. Liebherr testified further, however, that if Bishop had disclosed that he had consulted Dr. Slayton for alcohol-related problems during the 15-month period preceding the issuance of the policy, Time would not have issued the policy.\\nThere was no contradiction of Time's evidence relating to the falsity or the materiality of Bishop's representation. Hence, the trial court should have ruled as a matter of law that the representation was both untrue and material.\\nThe plaintiff argues correctly, however, that because Bishop's application recited that his answers were correct \\\"to the best of [his] knowledge and belief,\\\" Time had the further burden of establishing that Bishop's false statement was \\\"knowingly\\\" made. Old Republic Life Ins. Co. v. Bales, 213 Va. 771, 773, 195 S.E.2d 854, 856 (1973). And, the plaintiff maintains, because the evidence was in conflict on this issue, a jury question was created.\\nWe do not agree. In this phase of the case, the plaintiff called Susan Dawn Pauley, director of the substance abuse division of the local Community Services Board, and qualified her as \\\"an expert in the field of substance abuse counselling.\\\" Over Time's objection, Pauley was permitted to testify that alcohol abusers unconsciously use a \\\"defense mechanism\\\" termed \\\"denial,\\\" by which they \\\"deny information.\\\"\\nHowever, even though a jury may have accepted Pauley's testimony of Bishop's probable \\\"denial\\\" or \\\"rationalization\\\" as an indication that he did not believe he had a problem with alcohol, whether he had a problem with alcohol was not the question he was asked in the application. Rather, the question was whether, to the best of his knowledge and belief, he had ever had any indication, diagnosis or treatment for use of alcohol. And, with respect to that question, Pauley's testimony about Bishop's state of denial was irrelevant.\\nA similar observation may be made concerning testimony elicited from members of Bishop's family. These witnesses testified variously that no one ever told Bishop he was an alcoholic, that neither the family members nor Bishop himself regarded him as an alcoholic because he worked regularly and led a normal life, that after his period of hospitalization in September 1986, he said \\\"[he would] never touch another drop,\\\" and that he did, in fact, abstain for a period of time. But with the question in the application focused narrowly upon indication, diagnosis, or treatment for the use of alcohol, whether Bishop himself or someone else believed he was not an alcoholic was completely beside the point.\\nGiven the evidence concerning Bishop's excessive use of alcohol, the admission he made to Dr. Slayton that alcohol was his \\\"main problem,\\\" the warnings he received from Dr. Slayton about the effect of his continued use of alcohol upon his already damaged liver, and the prescriptions for drugs Dr. Slayton gave him to help him stop drinking alcohol, we hold that no reasonable person could conclude that Bishop unknowingly made the misrepresentation concerning whether he had any indication, diagnosis, or treatment for the use of alcohol. The trial court erred, therefore, in failing to rule as a matter of law that Time is not liable to the plaintiff for breach of contract.\\nAccordingly, we will reverse the judgment of the trial court and enter final judgment here for Time.\\nReversed and final judgment.\\nJUSTICE COMPTON, with whom JUSTICE STEPHENSON and JUSTICE LACY join, dissenting.\\nI do not agree that final judgment should be entered for the insurer. Rather, I would reverse the judgment in favor of the plaintiff and remand the case for a new trial upon all issues.\\nThe main inquiries upon appeal are whether the testimony of the plaintiff's expert witness created an issue for the jury upon the question of knowing misrepresentation and whether the expert erroneously was permitted to give an opinion on the ultimate fact in issue. Upon the former inquiry, the majority says that the evidence established conclusively that Bishop knowingly made a false statement in his application and that the insurer was, therefore, entitled to judgment as a matter of law. I disagree.\\nThe printed application contained a section labelled ' 'Evidence of Insurability.\\\" The following language appeared in this section: \\\"To the best of your knowledge and belief, have you or any family member applying for insurance: 1. Ever had any indication, diagnosis or treatment for: . . . i. use of alcohol or drugs?\\\" When asked this question, the decedent answered in the negative, and the agent checked a block labelled \\\"No\\\" opposite the question.\\nThe agent asked the following application question: \\\"2. Been confined to a hospital or similar institution within the past 5 years?\\\" The decedent answered in the affirmative, and the agent checked the \\\"Yes\\\" block opposite this question.\\nThe agent asked the following additional question: \\\"3. Been seen or treated by a physician or taken any medication within the past two years?\\\" The decedent answered affirmatively, and the agent checked the \\\"Yes\\\" block opposite this question.\\nThe agent documented on the application additional information furnished at the time by the decedent pertaining to questions 2 and 3. In space available opposite those questions, the agent wrote the following, complete with spelling and grammatical errors: \\\"Beeken had Broken Blood Vessell in Esophagus in Sept 1986 Treated at Montgomery Hospital by Dr. Slayton for 10 days \\u2014 Fully Recovered.\\\"\\nThe essence of the testimony of Pauley, the plaintiff's expert, was that persons who abuse alcohol employ unconsciously a \\\"defense mechanism\\\" known as \\\"denial.\\\" This is manifested, she said, when \\\"people deny information. They find ways in their mind, through rationalizing or minimizing or other ways, to basically deny something that is real for their life or that others see exists.\\\" She stated, \\\"Rationalizing means taking information and making it make sense to you in some way even if it doesn't make sense to other people.\\\" Elaborating, she testified that rationalizing \\\"is a lot of excuse making. But it is really not just excuse making. It is turning it around so it makes sense to you even though it may not make sense to other people.\\\" She said that because of \\\"denial\\\" and \\\"rationalization,\\\" abusers of alcohol \\\"believe their own excuses.\\\"\\nThe following colloquy between the witness and plaintiff's counsel illustrates the expert's opinions as related to the decedent:\\n\\\"Q. Okay. How could somebody go to the doctor and, whether he volunteered it to the doctor or the doctor in getting a medical and social history forced them to admit, 'Yes, I have drunk as much as a fifth a day,' and the doctor says, 'You have liver problems and your drinking hurts your liver problems and you have to stop,' and every time he checks back with the doctor the doctor reiterates about, 'You have to stay off the liquor,' how could somebody like that not know that they have an alcohol problem?\\n\\\"A. Because denial is a very powerful and potent defense mechanism. I deal with people who have had charges directly related to alcohol usage, have family members confront them with information about their behavior when they are under the influence who still remain in denial. The family even remains in denial; it is not just the individual.\\n\\\"Things usually have to get pretty chaotic or some major crisis occurs before something breaks through and someone realizes that alcohol and drugs have something to do with this situation. Denial is [a] very powerful defense mechanism.\\\"\\nCode \\u00a7 38.2-309 provides, as pertinent, that no statement in an application for insurance \\\"made before . . . loss under the policy shall bar a recovery upon a policy of insurance unless it is clearly proved that such answer or statement was material to the risk when assumed and was untrue.\\\" Materiality of a misrepresentation is an affirmative defense, and the burden is upon the insurer of \\\"clearly\\\" proving that the applicant's answers in the application were material to the risk assumed and were untrue. Harrell v. North Carolina Mut. Life Ins. Co., 215 Va. 829, 831, 213 S.E.2d 792, 794 (1975). \\\"In a case like this, whether a representation is made and the terms on which it is made are questions of fact for the jury; but when a misrepresentation is proved, its materiality is a question of law for the court.\\\" United States Fidelity & Guaranty Co. v. Haywood, 211 Va. 394, 396, 177 S.E.2d 530, 532 (1970). \\\"A fact is material to the risk to be assumed by ah insurance company if the fact would reasonably influence the company's decision whether or not to issue a policy.\\\" Mutual of Omaha Ins. Co. v. Echols, 207 Va. 949, 953-54, 154 S.E.2d 169, 172 (1967).\\nAs I have said, whether a statement is untrue is a question of fact for the jury in an ordinary case, and the burden is upon the insurer to prove \\\"clearly\\\" that the statement in an application is untrue. Clear proof of the mere falsity of the statement is sufficient in the ordinary case. But this is not the ordinary case because in the application submitted by the decedent it was recited that his answers were correct \\\"to the best\\\" of his \\\"knowledge and belief.\\\" Where there is such a recitation, the burden upon the insurer increases from that specified in Code \\u00a7 38.2-309 to clear proof that the answer is knowingly false. Old Republic Life Ins. Co. v. Bales, 213 Va. 771, 773, 195 S.E.2d 854, 856 (1973).\\nProof leading to a determination of the knowing falsity of a statement made on an application for insurance by a potential insured is uniquely subjective. The inquiry is just what the applicant knew and believed at the time of the application. Here, the insurer's evidence that Bishop knew about his condition resulting from the use of alcohol was contradicted by the testimony of the plaintiff's expert witness. That testimony established that Bishop suffered from the defense mechanism of \\\"denial\\\" and thus supported a jury finding that he told the truth as he knew and believed it at the time of the application. In other words, there was sufficient evidence for a jury to conclude that Bishop answered the questions on the application truthfully to the best of his knowledge and belief; the jury could have found that Bishop never actually believed or accepted the fact that he was being treated for the use of alcohol, even though the answer he gave was blatantly false.\\nThe majority dismisses the expert opinion testimony as \\\"irrelevant\\\" because the majority claims that whether Bishop believed \\\"he had a problem with alcohol was not the question he was asked in the application.\\\" However, the obligation of a potential insured is to \\\"answer questions truthfully and as he understands them.\\\" Flannagan v. Mutual Ins. Co., 152 Va. 38, 67-68, 146 S.E. 353, 361 (1929). Not only does the expert testimony create a dispute regarding Bishop's state of knowledge and belief at the time of the application, the expert testimony also creates an issue upon whether the question was \\\"misleading, ambiguous or confusing,\\\" id.., to one who suffered from denial.\\nIn Sterling Insurance Co. v. Dansey, 195 Va. 933, 81 S.E.2d 446 (1954), this Court construed the meaning of the language in an insurance application that answers are ' 'true to the best knowledge and belief of the applicant.\\\" Id at. 941, 81 S.E.2d at 451. In that case, the question whether an insurance applicant made a knowing misrepresentation was implicitly recognized as a question for the jury. Id. at 937, 81 S.E.2d at 449. Subsequently, in Old Republic Life Insurance Co. v. Bales, supra, this Court explicitly recognized that, in the face of conflicting evidence, whether a knowing misrepresentation was made was \\\"peculiarly within the province of the jury.\\\" 213 Va. at 772, 775, 195 S.E.2d at 856, 858. Cf. Mutual of Omaha Ins. Co. v. Echols, supra (recognizing that the issue of a knowing misrepresentation was a question for the jury but finding that the applicant's \\\"statements were not true and correct to the best of her knowledge and belief' ' because of admissions in her motion for judgment). Because I believe the evidence on the issue of Bishop's knowing misrepresentation to the question as he understood it was in dispute, I believe the issue was peculiarly within the province of the jury.\\nConsequently, I would hold that the trial court did not err in submitting the misrepresentation issue to the jury. The insurer argues, however, that even if the issue was properly submitted to the jury, the plaintiff's expert was allowed to testify at least on one occasion, to the ultimate fact in issue and that the trial court committed reversible error in permitting such testimony. I agree.\\nIn Virginia, we are committed to the rule that while an expert witness may be permitted to express an opinion relating to the existence or nonexistence of facts not within common knowledge, the expert cannot give an opinion upon the precise or ultimate fact in issue, which must be left to the trier of fact for determination. Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d 22, 29 (1963); Venable v. Stockner, 200 Va. 900, 904-05, 108 S.E.2d 380, 383-84 (1959); Thornton v. Commonwealth, 113 Va. 736, 744, 73 S.E. 481, 484 (1912). Accord Bond v. Commonwealth, 226 Va. 534, 538, 311 S.E.2d 769, 771-72 (1984).\\nHere, plaintiff's counsel directed the expert Pauley's attention to the application in question. The expert testified that she found \\\"significant' ' the fact that the insurer had placed the use of alcohol and drugs on the same line in the application. She said: \\\"Often someone who has a problem with just alcohol doesn't see themself as a substance abuser or a drug addict. Many people don't even recognize that alcohol is a drug.\\\" She testified: \\\"Putting those two on the same line is something that, in my opinion, with Mr. Bishop could feed in to denial.\\\"\\nAgain, referring to the application, plaintiff's counsel elicited the following answer with this question:\\n\\\"Q. You mentioned 'to the best of your knowledge and/or belief.' What is the significance of that so far as Beeken Bishop is concerned?\\n' 'A. The other piece is that as you go down he did answer no to that. But when he was asked about seeing a doctor or being in a hospital he answered yes.\\n\\\"In my opinion, that is another indicator that he wasn't consciously saying, 'Oh, I have an alcohol thing that I need to hide,' because he did acknowledge that he had seen a doctor and been in a hospital and had given them information. . . .\\n\\\"Basically what I mean by that is that he acknowledged yes to the question that had to do with health and no to questions that had to do with alcohol or drugs, which is another indicator to me of someone in denial of what is affecting the problem.\\\"\\nThe foregoing testimony, reasonably construed, violates the principle of law I have just articulated. No matter what twist the plaintiff tries to place on the language in arguing that the expert was merely advancing her \\\"denial\\\" theory, the fact remains that the testimony amounted to a statement by the expert that Bishop did not knowingly make a misrepresentation in response to question l(i) on the application.\\nThe jury was told that because the use of drugs was linked to the use of alcohol on the same line, \\\"with Mr. Bishop\\\" that \\\"could feed in to denial.\\\" Clearly, this comments on Bishop's intention, knowledge, and belief at the time he answered the question. Additionally, the witness opined that a comparison of the \\\"No\\\" answer to question l(i) and the \\\"Yes\\\" answers to questions 2 and 3 is \\\"another indicator\\\" that Bishop was not \\\"consciously saying\\\" he needed to conceal his alcohol problem. Manifestly, that answer is ' 'another indicator' ' that the witness was stating that Bishop did not knowingly give a false answer on the application. That determination was for the jury to make, not the expert witness.\\nConsequently, I would remand the case for a new trial on all issues due to the foregoing error.\\nOrdinarily, the trial court decides the issue of materiality as a matter of law where a misrepresentation has been proved. Harrell v. North Carolina Mut. Life Ins. Co., 215 Va. 829, 831-32, 213 S.E.2d 792, 794 (1975). Inexplicably, here, the trial court neither decided the issue itself nor submitted it to the jury.\\n\\\"Indication\\\" is defined in part as \\\"something (as a signal, sign, suggestion) that serves to indicate.\\\" Webster's Third New Int'l Dictionary 1150 (1986).\\nBecause we consider Pauley's testimony about Bishop's state of denial irrelevant, we do not decide whether it also constituted an inadmissible expression of opinion on the ultimate fact in issue.\\nOur research discloses only one similar case, Leigh v. Consumers Nat'l Life Ins. Co., 240 Or. 290, 401 P.2d 46 (1965). There, an applicant had been told that he was an alcoholic, and he had received treatment for alcoholism. In an application for insurance, he answered in the negative a question whether he had \\\"ever taken treatment or a 'cure' for alcoholism.\\\" The insurance company denied coverage, claiming that because the insured had been treated for alcoholism, the answer was false.\\nOregon law required that false representations on applications for insurance be shown to have been \\\"knowingly made.\\\" The insured contended that even though his answer was false, it was not made knowingly because he was \\\"in denial.\\\" Holding that the misrepresentation had been made knowingly, the Oregon court pointed out that the application did not ask whether the insured believed he was or was not an alcoholic, but whether he had been treated for alcoholism. Id. at 291-93, 401 P.2d at 47.\"}"
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+"{\"id\": \"2090978\", \"name\": \"Dorothy Black, et al. v. Richard Edwards, Executor of the Estate of James G. Keene, Deceased, et al.\", \"name_abbreviation\": \"Black v. Edwards\", \"decision_date\": \"1994-06-10\", \"docket_number\": \"Record No. 930788\", \"first_page\": \"90\", \"last_page\": \"94\", \"citations\": \"248 Va. 90\", \"volume\": \"248\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:18:27.751862+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Dorothy Black, et al. v. Richard Edwards, Executor of the Estate of James G. Keene, Deceased, et al.\", \"head_matter\": \"Dorothy Black, et al. v. Richard Edwards, Executor of the Estate of James G. Keene, Deceased, et al.\\nRecord No. 930788\\nJune 10, 1994\\nPresent: All the Justices\\nHarry J. Kostel, for appellants.\\nLouis J. Rickman, Jr., for appellees.\", \"word_count\": \"1332\", \"char_count\": \"8111\", \"text\": \"JUSTICE WHITING\\ndelivered the opinion of the Court.\\nThis case involves the mutual and reciprocal wills of a husband and wife. The primary issue is whether, as a matter of law, the testimony of the scrivener of the wills established a contract between the spouses for the disposition of their property upon the death of the survivor.\\nIn May or June 1991, James G. Keene and his wife, Rebecca T. Keene, asked Gerald D. Robertson, an attorney, to prepare wills for them leaving their respective properties to the survivor. The wife had no children; the husband had children by a prior marriage.\\nWhen Robertson told the Keenes that the survivor would have the power to dispose of their combined estates, the Keenes responded that they wanted the survivor's estate divided among eight persons. Thereafter, each spouse designated four relatives as beneficiaries. Robertson then explained to the Keenes that if they signed mutual and reciprocal wills, \\\"this would be a contract between the two of them, that they would each, the ultimate survivor, would agree to leave the property as the wills were originally drawn.\\\"\\nRobertson testified that he had not drawn a joint will, or a separate contract reflecting such an agreement, nor had he recited the agreement in the wills because he thought the Keenes \\\"had a clear understanding of . . . how the ultimate beneficiaries would take the property.\\\" Instead, Robertson prepared a will for each spouse under the terms of which the surviving spouse would receive the entire estate of the first decedent and the eight parties named by the Keenes in their wills would receive the estate of the survivor.\\nOn June 27, 1991, both wills were executed. The wife died two months later, on August 31. The husband revoked his June 27 will by executing a will on September 10, 1991. That will left his property to his two sons and the same four relatives he had named in his June 27 will. The husband died on November 7, 1991, and shortly thereafter his September 10 will was probated.\\nThe persons named by the wife as beneficiaries in her June 27 will filed this suit against the executor and beneficiaries of the husband's September 10 will. In this suit, they sought their share of the husband's estate under the June 27 will. At an ore tenus hearing, the plaintiffs presented Robertson's testimony and other evidence and the defendants presented no testimony. After argument, the court concluded that Robertson's testimony was \\\"not sufficient to establish a reciprocal will\\\" and found for the defendants. The plaintiffs appeal.\\nWe recognized the enforceability of contracts to make mutual and reciprocal wills in Williams v. Williams, 123 Va. 643, 648-49, 96 S.E. 749, 751 (1918). Proof of such contracts may be supplied by \\\"competent witnesses who testify to admissions of the testators, or it may result as an implication from the circumstances and relations of the parties and what they have actually provided for by the instrument. Direct evidence is not necessary.\\\" Id. at 649-50, 96 S.E. at 751. However, such proof must be \\\"clear and satisfactory.\\\" Id. at 649, 96 S.E. at 751.\\nFurther, the standard of review of the evidence in this case has been established by statute and our cases construing that statute.\\nWhen a case is decided by a court sitting without a jury and, as here, parties object to the decision on the ground that it is contrary to the evidence, the judgment of the trial court will not be set aside, \\\"unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it.\\\" Code \\u00a7 8.01-680.\\nCity of Hopewell v. County of Prince George, 239 Va. 287, 296, 389 S.E.2d 685, 690 (1990).\\nHowever, a trial court's conclusion based on evidence that is \\\"not in material conflict\\\" does not have this binding effect on appeal. The trier of fact must determine the weight of the testimony and the credibility of the witnesses, but it \\\"may not arbitrarily disregard uncontradicted evidence of unimpeached witnesses which is not inherently incredible and not inconsistent with facts in the record.\\\"\\nHankerson v. Moody, 229 Va. 270, 274, 329 S.E.2d 791, 794 (1985) (citations omitted).\\nApplying these principles, we conclude that the uncontradicted testimony of Robertson, an unimpeached witness, was \\\"not inherently incredible\\\" and was consistent with the facts in the case. That testimony clearly and satisfactorily indicated that both spouses understood that, upon execution of their wills, they were contracting to leave the property remaining at the survivor's death to the eight parties named in those wills. Under these circumstances, the trial court's decision that the evidence was \\\"not sufficient to establish a reciprocal will\\\" was plainly wrong.\\nEven so, defendants note that the marital residence held by the husband and wife as tenants by the entirety was the wife's only property interest established by the record. Thus, the defendants contend, there was no consideration for the husband's alleged contractual agreement. We reject this argument because sufficient consideration is supplied by the mutual agreement that the third parties named as beneficiaries in each spouse's June 27 will would ultimately receive the balance of the survivor's estate. See Williams, 123 Va. at 648-49, 96 S.E. at 751.\\nFinally, the defendants argue that the contract cannot be enforced because it was an oral postnuptial agreement which was not in writing, as required by Code \\u00a7 20-155 and -149. Code \\u00a7 20-155 provides:\\nMarried persons may enter into agreements with each other for the purpose of settling the rights and obligations of either or both of them, to the same extent, with the same effect, and subject to the same conditions, as provided in \\u00a7 20-147 through 20-154 for agreements between prospective spouses, except that such marital agreements shall become effective immediately upon their execution.\\n(Emphasis added.) Code \\u00a7 20-150 provides in pertinent part that parties to a premarital agreement may contract with respect to \\\"[t]he disposition of property upon separation, marital dissolution, death\\\" and the \\\"making of a will . to carry out the provisions of the agreement[.]\\\" Code \\u00a7 20-149 requires that a \\\"premarital agreement shall be in writing and signed by both parties.\\\"\\nIn support of their expansive reading of \\\"marital agreements,\\\" the defendants note that their construction of Code \\u00a7 20-155 is consistent with \\u00a7 2-701 of the Uniform Probate Code, 8 U.L.A. 155 (1983), which requires written evidence of any party's agreement not to revoke a will. However, Virginia has not adopted such a provision, and we do not think that the legislature intended Code \\u00a7 20-155 to require that contracts between spouses be in writing, while permitting other persons to make such contracts orally.\\nRather, we are of opinion that the emphasized portion of Code \\u00a7 20-155 clearly limits its provisions to those contracts affecting those \\\"rights and obligations\\\" that arise from the marital relationship. Here, each spouse's contractual intent to benefit third parties after the death of both spouses did not affect the \\\"rights and obligations\\\" arising from the Keenes's marital relationship. Thus, we conclude that Code \\u00a7 20-155 is inapplicable.\\nFor these reasons, we will reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.\\nReversed and remanded.\\nDorothy Black, Lale Bee Hicks, Larry J. Wright, Curtis J. Wright, and Charles O. Wright are named as complainants in this action. The copy of the husband's June 27 will in the record lists Dorothy W. Black, Lain Bee Hicks, Larry J. Curtis, and Charles O. Wright as the four persons apparently named by the wife. The record contains no explanation of the insertion of the name of a fifth plaintiff or of the discrepancy between the underlined names in the will and bill of complaint.\"}"
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+"{\"id\": \"2109328\", \"name\": \"William H. Trout, et al. v. Commonwealth Transportation Commissioner of Virginia\", \"name_abbreviation\": \"Trout v. Commonwealth Transportation Commissioner\", \"decision_date\": \"1991-01-11\", \"docket_number\": \"Record No. 900259\", \"first_page\": \"69\", \"last_page\": \"75\", \"citations\": \"241 Va. 69\", \"volume\": \"241\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T01:08:23.014082+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William H. Trout, et al. v. Commonwealth Transportation Commissioner of Virginia\", \"head_matter\": \"William H. Trout, et al. v. Commonwealth Transportation Commissioner of Virginia\\nRecord No. 900259\\nJanuary 11, 1991\\nPresent: All the Justices\\nGlenn H. Silver (C. Thomas Brown; Rust, Rust & Silver, on briefs), for appellants.\\nJames F. Hayes, Senior Assistant Attorney General (Mary Sue Terry, Attorney General; K. Marshall Cook, Deputy Attorney General; Richard L. Walton, Jr.; Senior Assistant Attorney General; Stephen C. Price; Price & Zimmerman, on brief), for appellee.\", \"word_count\": \"1727\", \"char_count\": \"10757\", \"text\": \"JUSTICE RUSSELL\\ndelivered the opinion of the Court.\\nThe sole question presented in this eminent domain appeal is whether a condemnor, who has obtained defeasible title to condemned land by recording a certificate of deposit, may terminate condemnation proceedings as a matter of right by taking a non-suit. We answer the question in the negative.\\nOn March 13, 1989, the Commonwealth Transportation Commissioner of Virginia (the Commissioner), acting pursuant to Code \\u00a7 33.1-121, caused a certificate of deposit to be recorded among the land records of Loudoun County. The effect of the recordation was to vest in the Commissioner defeasible title to a\\nO. 9892-acre tract situated at the intersection of Routes 7 and 28, formerly owned by William H. Trout and Barbara A. Trout (the owners). On March 24, 1989, the Commissioner filed a petition for condemnation in the circuit court. The court appointed commissioners to ascertain compensation and continued the case to December 12, 1989, for trial.\\nPursuant to Rule 4:1(b)(4), the owners addressed interrogatories to counsel for the Commissioner, requesting that the Commissioner identify any expert witnesses he intended to call at trial and provide summaries of their expected testimony. In response, the Commissioner filed only incomplete answers to the interrogatories. The court, on the owners' motion, entered an order on December\\n1, 1989, compelling the Commissioner to provide \\\"complete and full responses\\\" on or before December 6.\\nWhen the case came to trial on December 12, the Commissioner had not complied with the court's order. The owners made a motion in limine to preclude the Commissioner from adducing any expert testimony at trial. The court granted the motion. The Commissioner then made a motion for a continuance, which the court denied.\\nFaced with this unappealing prospect, the Commissioner moved the court for a voluntary nonsuit pursuant to Code \\u00a7 8.01-380. The owners indicated that they would agree to a voluntary dismissal of the proceeding if the Commissioner would pay the expert witness fees, attorneys' fees, and other costs they had incurred in trial preparation, but objected to a nonsuit which would deny them such compensation. The court took the question under consideration and, on December 21, issued a letter opinion ruling that the Commissioner was entitled to a nonsuit. The court entered an order on January 5, 1990, nonsuiting the proceeding without compensation to the owners. We granted the owners an appeal.\\nThe power of eminent domain is vested in the Commissioner by Code \\u00a7 33.1-89. The procedure governing highway condemnation proceedings was, prior to 1970, \\\"mutatis mutandis the same as is prescribed by law for railroad corporations,\\\" except as altered by former Title 33. Michie Code 1942, \\u00a7 1969j(2); Code 1950, \\u00a7 33-59. In 1970, a self-contained procedure was prescribed in Title 33.1 for highway condemnations. Acts 1970, c. 322; Code \\u00a7 33.1-98 (1970 Repl. Vol.). There were no statutory provisions permitting the condemnor to dismiss the proceeding without the owners' consent. There were provisions, still in force, authorizing the court to invalidate a certificate of deposit upon the condemnor's motion, but the owner was given the right to pursue a claim for damages caused thereby \\\"in the proper proceeding.\\\" Code \\u00a7 33.1-125.\\nIn 1972, \\u00a7 33.1-98 was again amended to provide a cross reference to Title 25. Acts 1972, c. 765. The statute presently provides: \\\"Proceedings for condemnation under this article shall be instituted and conducted in accordance with the procedures provided in Chapter 1.1 (\\u00a7 25-46.1 et seq.) \\u00f3f Title 25 of this Code, except that the provisions of \\u00a7 33.1-119 through 33.1-132 shall be applicable to such proceedings.\\\" Code \\u00a7 33.1-98.\\nThe cross reference above is to the Virginia General Condemnation Act, Code \\u00a7 25-46.1 et seq., which provides that all condemnation proceedings shall be brought and conducted according to its provisions \\\"[u]nless otherwise specifically provided by law.\\\" Code \\u00a7 25-46.2 (emphasis added). That act contains a provision permitting a condemnor to obtain a voluntary dismissal of a condemnation proceeding, as a matter of right, if no hearing has begun, if the condemnor has not acquired title or a lesser interest in the property, if the condemnor has not taken possession of the property, and if the condemnor pays the owners their reasonable expenses actually incurred in preparation for trial. Code \\u00a7 25-46.34(a). Subsequent subsections provide for dismissal, subject to similar conditions, after a hearing has begun, or at any time by stipulation of the parties, but there are no provisions giving the condemnor authority to dismiss the proceeding as a matter of right after he has acquired an interest in, or taken possession of, the property. Similarly, Title 33.1, relating to highway condemnations, is silent with respect to dismissal after the Commissioner has acquired title or taken possession.\\nAgainst that background, the trial court held that the non-suit statute, Code \\u00a7 8.01-380, applied. That section permits a party to suffer a voluntary nonsuit as a matter of right \\\"as to any cause of action or claim,\\\" subject to specified conditions. The court referred to the definition of \\\"action\\\" in Code \\u00a7 8.01-2 as including \\\"all civil proceedings whether at law, in equity, or statutory in nature.\\\" Because the word \\\"action\\\" is included in \\\"cause of action,\\\" the court held that the nonsuit statute was made specifically applicable to condemnation proceedings by its own terms. Although Code \\u00a7 25-46.2 provides that the Virginia General Condemnation Act governs all condemnation proceedings \\\"[u]nless otherwise specifically provided,\\\" the court held that the nonsuit statute was indeed such a specific provision.\\nWe do not agree with that analysis. An \\\"action\\\" and a \\\"cause of action\\\" are quite different. \\\"Action\\\" is defined by Code \\u00a7 8.01-2, as noted above. We defined \\\"cause of action\\\" in Roller v. Basic Construction Co., 238 Va. 321, 327, 384 S.E.2d 323, 326 (1989), as \\\"a set of operative facts which, under the substantive law, may give rise to a right of action.\\\" Because of that difference, there are no express terms in the nonsuit statute making it specifically applicable to condemnation proceedings.\\nThe right to take a nonsuit on the eve of trial, notwithstanding a defendant's loss of time and expense incurred in preparation, and notwithstanding any disruption which may result to the court's docket, is a powerful tactical weapon in the hands of a plaintiff. The General Assembly has provided, in Code \\u00a7 8.01-380, several conditions to give balance to the exercise of that right. Nonsuit remains, however, distinctly a weapon in the arsenal of a plaintiff.\\nAs we recently pointed out in Hamer v. School Bd. of the City of Chesapeake, 240 Va. 66, 72-73, 393 S.E.2d 623, 627 (1990), the parties to a condemnation proceeding are not in the position of plaintiffs and defendants in traditional actions or suits. The exercise of the power of eminent domain, and the implementation of the constitutional just-compensation clause which circumscribes it, grow out of an entirely different history. Traditional burden-of-proof rules are inapplicable to condemnation cases. Id. at 73-74, 393 S.E.2d at 628. The petitioner in a condemnation case is, therefore, not a traditional plaintiff. Although he has the statutory duty to institute the proceeding, he has no ultimate \\\"risk of nonpersuasion.\\\" Id. at 74, 393 S.E.2d at 628.\\nIndeed, after the condemnor has acquired title and instituted the proceeding for the ascertainment of just compensation, he is in the position of a defendant. The owner is the party seeking an award of compensation and damages; the condemnor's interest is to defend against an excessive award. The condemnor, therefore, is not entitled to nonsuit the proceeding over the owner's objection because of any traditional advantages inhering in the position of a plaintiff in an action at law.\\nWhen the 1972 amendment transferred highway condemnation proceedings to the Virginia General Condemnation Act, such cases became subject to Code \\u00a7 25-46.34, which, as noted above, permits dismissal by the condemnor as a matter of right where no title or possession has been acquired, but makes no provision for such a dismissal after the condemnor has acquired an interest in, or possession of, the property. We think the legislative silence on this subject is significant.\\nPrior to the adoption of the present statutory scheme, we had held in Board of Supervisors v. Proffit, 129 Va. 9, 16-17, 105 S.E. 666, 668 (1921), that the petitioner in a highway condemnation had the absolute right to dismiss the proceedings \\\"at any time before any rights have vested\\\" (emphasis added). In Keys v. Shirley, 153 Va. 461, 466, 150 S.E. 401, 402-03 (1929), however, we reversed a dismissal of a highway condemnation case, where no compensation had been paid to the owner for his costs and expenses, after the Commissioner had taken possession of the land. There, we said:\\n[Presumably [,] the land is in use as part of a highway. The [owner] has been deprived of his property and has not received any compensation or damages for the injury done him, and the Commonwealth has no title to the land. In such a situation, each party has vested rights in the controversy, and the proceeding should not be dismissed, except by consent, until these are determined.\\nIn subjecting highway condemnations to the Virginia General Condemnation Act, the General Assembly was, presumably, aware of the state of the law established by Proffit and Keys. See Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974), appeal dismissed, 421 U.S. 901 (1975). The language of Code \\u00a7 25-46.34, made applicable to highway condemnations by the 1972 amendment, indicates a legislative intent to leave that state of the law undisturbed. Accordingly, we conclude that a condemnor has no right to a nonsuit or a voluntary dismissal of a condemnation proceeding, without the owners' consent, after any interest in, or possession of, the property has been acquired.\\nFor that reason, we will reverse the order of dismissal and remand the case to the trial court for further proceedings.\\nReversed and remanded.\"}"
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+"{\"id\": \"2109363\", \"name\": \"Thomas H. Oxenham, III v. Virginia Johnson\", \"name_abbreviation\": \"Oxenham v. Johnson\", \"decision_date\": \"1991-03-01\", \"docket_number\": \"Record No. 900544\", \"first_page\": \"281\", \"last_page\": \"299\", \"citations\": \"241 Va. 281\", \"volume\": \"241\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"Thomas H. Oxenham, III v. Virginia Johnson\", \"head_matter\": \"Thomas H. Oxenham, III v. Virginia Johnson\\nRecord No. 900544\\nMarch 1, 1991\\nPresent: Carrico, C.J., Compton, Stephenson, Russell, Whiting, and Hassell, JJ., and Poff, Senior Justice\\nElizabeth Oxenham Davis (Susan K. Rohde; Thomas H. Oxenham, III; Oxenham, Davis & Rohde, on briefs), for appellant.\\nBarbara J. Gaden, Assistant Attorney General (Mary Sue Terry, Attorney General; Gail Starling Marshall, Deputy Attorney General; William H. Hauser, Senior Assistant Attorney General, on brief), for appellee.\", \"word_count\": \"6044\", \"char_count\": \"38046\", \"text\": \"JUSTICE WHITING\\ndelivered the opinion of the Court.\\nIn this case, we consider whether a trial court properly imposed a sanction upon a lawyer who brought an unsuccessful action and failed to conduct any pretrial investigation of allegedly adverse information. Specifically, we decide whether, and under what cir cumstances, the Code \\u00a7 8.01-271.1 duty of \\\"reasonable inquiry\\\" required the lawyer to investigate information opposing counsel gave him indicating that the lawyer's client might not prevail in the litigation.\\nOn July 8, 1988, Virginia Johnson, a licensing inspector for the Virginia Department of Social Services, accompanied by Barbara Ann Gestwick, the licensing administrator, and William Davidson, a zoning officer of the City of Richmond, sought permission from Ralph M. Montecalvo to inspect his residence in Richmond for possible violation of Code \\u00a7 63.1-182. Code \\u00a7 63.1-182 prohibits the operation of a home for the care of more than four aged, infirm or disabled adults without obtaining a license therefor from the Virginia Department of Social Services.\\nUpon advice of counsel, Montecalvo refused to permit an inspection. Whereupon, Johnson, Gestwick and Davidson went to a magistrate and got a search warrant. Although allegedly not requested to do so, the magistrate also issued an arrest warrant charging Montecalvo with the statutory violation of interfering with Johnson in the performance of her duties (the interference charge). The arrest warrant showed that the magistrate found probable cause for the interference charge \\\"based on the sworn statements of Virginia Johnson . . . Complainant.\\\"\\nJohnson appeared pursuant to subpoena and was the only prosecution witness who testified at the trial of the interference charge. Montecalvo was found not guilty.\\nShortly thereafter, Thomas H. Oxenham, III, Montecalvo's counsel in the criminal proceeding, filed this malicious prosecution action on behalf of Montecalvo against Johnson because of her alleged instigation of the interference charge. In a pretrial deposition, Montecalvo testified that he had never talked to Johnson, that he had not felt \\\"harassed\\\" by Johnson, and that he had no reason to believe she bore him any ill will. Prior to trial, opposing counsel advised Oxenham orally, in responsive pleadings, and in legal memoranda filed in the case, that Gestwick, not Johnson, had executed the affidavit for the search warrant, and that no one had requested the arrest warrant to be issued against Montecalvo for interfering with them in the performance of their duties. Nevertheless, Oxenham continued to press Montecalvo's claim by filing and signing two memoranda of law and his client's answers to Johnson's interrogatories.\\nAt trial, Montecalvo's evidence that linked Johnson to the institution of the interference charge consisted of the magistrate's notation on the warrant and Montecalvo's testimony that Johnson was the only prosecution witness who appeared at the interference charge trial. Johnson's evidence confirmed her counsel's pretrial information to Oxenham. After only 10 minutes' deliberation, a jury returned a verdict for Johnson and judgment was entered on the verdict.\\nInvoking Code \\u00a7 8.01-271.1, Johnson filed a \\\"Motion to Assess Attorneys' Fees and Costs\\\" against Oxenham and Montecalvo, alleging violations of a duty to make reasonable inquiry regarding Johnson's role in the issuance of the arrest warrant. As pertinent, Code \\u00a7 8.01-271.1 provides:\\nThe signature of an attorney . . . constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact . . ., and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . .\\nAn oral motion made by an attorney . in any court of the Commonwealth constitutes a representation by him that (i) to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact . . ., and (ii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.\\nIf a pleading, motion, or other paper is signed or made in violation of this rule, the court . . . shall impose upon the person who signed the paper or made the motion . an appropriate sanction .\\n(Emphasis added.)\\nOxenham's failure, after being told by opposing counsel that Johnson had nothing to do with the issuance of the arrest warrant, led the trial court \\\"to the inevitable conclusion that the purpose of filing the motion for judgment was not to prevail on the merits but to harass the defendant.\\\" The court also found that Oxenham failed in his duty to \\\"continually review and re-evaluate his position\\\" by failing to \\\"follow up with investigation or . . . conduct any discovery.\\\"\\nAccordingly, the court assessed a sanction against Oxenham in the sum of $4,500, representing a part of Johnson's counsel's projected billings of $10,383. Oxenham appeals.\\nFirst, we review some of the policy considerations in sanction cases. The possibility of a sanction can protect litigants from the mental anguish and expense of frivolous assertions of unfounded factual and legal claims and against the assertions of valid claims for improper purposes. And, sanctions can be used to protect courts against those who would abuse the judicial process. Yet the threat of a sanction should not be used to stifle counsel in advancing novel legal theories or asserting a client's rights in a doubtful case. Finally, courts should take care that the litigation of a sanction issue does not itself defeat one purpose of Code \\u00a7 8.01-271.1, that of reducing the volume of unnecessary litigation.\\nBecause of the harm that can be caused by an unjustified imposition of a sanction, Oxenham argues that the standard of review applicable in a sanction case in Virginia is \\\"somewhat deferential . . . [but] appears more closely akin to a de novo review\\\" than to an abuse-of-discretion standard. Oxenham notes that in Cooter & Gell v. Hartmarx Corp., 496 U.S. _,_, 110 S.Ct. 2447, 2461 (1990), the United States Supreme Court held that \\\"an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court's Rule 11 determination.\\\" Oxenham, however, contends that this Court has adopted a standard \\\"somewhat at odds\\\" with the federal standard, citing County of Prince William v. Rau, 239 Va. 616, 620, 391 S.E.2d 290, 293 (1990), and Tullidge v. Board of Sup. of Augusta County, 239 Va. 611, 614, 391 S.E.2d 288, 289 (1990). These cases do not support Oxenham's contention.\\nTullidge merely held that where the issue underlying the imposition of a sanction \\\"is one of law, and not fact, we do not accord the trial court's ruling the same weight it would be accorded if reached upon conflicting factual evidence.\\\" 239 Va. at 614, 391 S.E.2d at 289; see Rau, 239 Va. at 620, 391 S.E.2d at 293. This holding does not differ in substance from the statement in Cooter & Gell that \\\"[a trial] court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.\\\" 496 U.S. at _, 110 S.Ct. at 2461 (emphasis added). Thus, we apply an abuse-of-discretion standard in reviewing a trial court's award or denial of a sanction.\\nWe now turn to this case. To create a factual issue in his malicious prosecution action against Johnson, Montecalvo was required to present credible evidence: (1) that the prosecution was set on foot by Johnson and that it terminated in a manner not unfavorable to Montecalvo; (2) that it was instituted or procured by the cooperation of Johnson; (3) that it was without probable cause; and (4) that it was malicious. See Bain v. Phillips, 217 Va. 387, 393, 228 S.E.2d 576, 581 (1976). Legal malice, inferred from the circumstances, suffices for an award of compensatory damages, but actual malice must be shown to recover punitive damages. F.B.C. Stores, Inc. v. Duncan, 214 Va. 246, 252, 198 S.E.2d 595, 600 (1973).\\nJohnson contends that Montecalvo had no evidence that she instituted the prosecution or that her actions were malicious. According to Johnson, if Oxenham had complied with his duty of \\\"reasonable inquiry\\\" and interviewed her witnesses at any time before trial, he would have discovered that he could not have established that Johnson \\\"instituted or procured\\\" the prosecution or that she acted with malice. Therefore, Johnson argues, Oxenham's pleadings and oral motions violated Code \\u00a7 8.01-271.1 because they were frivolous and were filed for an improper purpose.\\nBecause no cross-error was assigned to the trial court's ruling that the initial filing was justified, we are concerned only with Oxenham's conduct after the action was filed. Although we agree with Oxenham's contention that Code \\u00a7 8.01-271.1 imposes no continuing duty upon a lawyer to \\\"update his pleadings in light of any new findings,\\\" see Pantry Queen Foods v. Lifschultz Fast Freight, 809 F.2d 451, 454 (7th Cir. 1987) (construing Federal Rule of Civil Procedure 11), we reject his contention that he had no further duty to investigate Johnson's role after filing the motion for judgment. The duty of \\\"reasonable inquiry\\\" arises each time a lawyer files a \\\"pleading, motion, or other paper\\\" or makes \\\"an oral motion.\\\" Code \\u00a7 8.01-271.1. If Oxenham had filed any paper or made any motion in the case after he knew, or reasonably should have known, that he could not create a factual issue of Johnson's involvement and malice, the court would have been justified in imposing a sanction against him. See, e.g., Schoenberger v. Oselka, 909 F.2d 1086, 1088 (7th Cir. 1990) (construing Federal Rule of Civil Procedure 11).\\nBecause different levels of malice are required in the recovery of compensatory and punitive damages for malicious prosecution, we consider first Montecalvo's claim for compensatory damages. Initially, the trial court found that the documentary and circumstantial evidence of Johnson's role in the institution of the criminal action against Montecalvo was sufficient to justify filing Montecalvo's malicious prosecution action. Apparently, the same evidence also justified submission of the case for jury consideration. Indeed, the jury may not have believed the three witnesses who, in contradiction to the language in the arrest warrant, denied Johnson's role in instituting the interference charge against Montecalvo. Juries are not required to accept testimony which is contradicted by credible documentary or circumstantial evidence. See Chaves v. Johnson, 230 Va. 112, 122-23, 335 S.E.2d 97, 104 (1985) (circumstantial and documentary evidence); Drake v. National Bank of Commerce, 168 Va. 230, 243-44, 190 S.E. 302, 308 (1937) (circumstantial evidence).\\nAdditionally, the appearance of Johnson's name as the complainant on the arrest warrant sufficed to support an inference that she acted with legal malice in instigating the interference charge against Montecalvo. Whoever caused the arrest warrant to issue had no probable cause to claim an unlawful interference with Johnson's performance of her duties because Montecalvo had a constitutional right to require a search warrant before such an inspection. This lack of probable cause was sufficient to support an inference of Johnson's legal malice. Giant of Virginia, Inc. v. Pigg, 207 Va. 679, 685, 152 S.E.2d 271, 276 (1967). Accordingly, the trial court's conclusion that this claim was frivolous was erroneous and an abuse of discretion.\\nNext, we consider whether the evidence supports the trial court's finding that Oxenham's failure to investigate Montecalvo's claim for compensatory damages demonstrated an intent \\\"not to prevail on the merits but to harass [Johnson].\\\" Although a number of adverse inferences might be drawn from Oxenham's failure to make any investigation after filing the motion for judgment, an intent to harass is not one of them. The record contains no evidence of threats or expressions of ill will on Oxenham's part, no pattern of persistent and harassing pleadings, and nothing to show that Oxenham was not attempting to recover damages for his client. Under these circumstances, we conclude that the trial court's inference of an intent to harass from a failure to investigate was based on a clearly erroneous assessment of the evidence and, therefore, was an abuse of discretion.\\nFor these reasons, we hold that the trial court erred in basing its award, in whole or in part, upon Oxenham's continued assertion of Montecalvo's claim for compensatory damages.\\nWe now consider whether the sanction might have been justified because of Oxenham's continued assertion of the punitive damage claim. Johnson's legal malice in instigating the arrest warrant would not have authorized an award of punitive damages. In malicious prosecution actions, evidence of \\\"misconduct or actual malice, or such recklessness or negligence as to evince a conscious disregard of the rights of others\\\" is required. Giant of Virginia, 207 Va. at 685, 152 S.E.2d at 277.\\nMontecalvo's pretrial discovery testimony established conclusively that Johnson was not guilty of misconduct or actual malice. Furthermore, if Oxenham had made \\\"reasonable inquiry,\\\" he would have known, or reasonably should have known, that he had no evidence that Johnson had acted in reckless and wanton disregard of Montecalvo's rights. Therefore, Oxenham should not have asserted Montecalvo's frivolous claim for punitive damages at trial.\\nHowever, the trial court did not distinguish between the two damage claims in its award of an attorneys' fee sanction. Attorneys' fee sanctions have been imposed under Federal Rule 11 for asserting a frivolous claim with nonfrivolous ones, where the defense of the frivolous claim was essentially unrelated to the defenses of the nonfrivolous claims. Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir. 1988) (suing a party who had no conceivable liability in a separate count of a multiple count complaint); Frantz v. U.S. Powerlifting Fed'n, 836 F.2d 1063, 1067 (7th Cir. 1987) (assertion of baseless legal theory in multiple count antitrust complaint containing other counts with colorable legal theories).\\nHere, however, any award of damages, compensatory and punitive, would have turned largely upon what inferences a jury might draw from Johnson's actions in instigating the arrest warrant. Indeed, Johnson's liability for punitive damages depended upon an award of compensatory damages, Valley Acceptance Corp. v. Glasby, 230 Va. 422, 432, 337 S.E.2d 291, 297 (1985), and any such award would have had to bear a reasonable relation to the award of compensatory damages. Philip Morris Inc. v. Emerson, 235 Va. 380, 414, 368 S.E.2d 268, 287 (1988).\\nHere, the elements of Montecalvo's claim for compensatory damages are subsumed in his claim for punitive damages. Additionally, the sanction requested and imposed was an award of attorneys' fees. Therefore, Johnson's attorneys' time spent in defending the punitive damage claim should have been segregated and the sanction based only on the time taken in defending that claim. Although the trial court did not award the full amount of the attorneys' fees claimed, it based its award upon a projection of the time Johnson's attorneys spent in defending the entire case. In doing so, it based its conclusion upon an erroneous application of the law and thereby abused its discretion.\\nWe further are of opinion that any effort to segregate the additional expense and anguish occasioned by Oxenham's continued assertion of a frivolous claim for punitive damages would impose additional and unnecessary burdens upon Johnson and the trial court. Under these circumstances, we will reverse the trial court's sanction' of the payment of attorneys' fees and enter final judgment for Oxenham on that issue.\\nReversed and final judgment.\\nThe inspection confirmed that Montecalvo was operating an adult home without a license, and he later pleaded guilty to a violation of Code \\u00a7 63.1-182.\\nCode \\u00a7 63.1-182 provides in part that \\\"[a]ny person who interferes with any authorized agent of the Commissioner [of Social Services] in the discharge of his duties . . . shall be guilty of a misdemeanor.\\\"\\nConcluding that there was no evidence that Montecalvo had participated in \\\"the frivolous filing and prosecution of this suit,\\\" the trial court denied the motion for a sanction against him.\\nRule 11 of the Federal Rules of Civil Procedure and Code \\u00a7 8.01-271.1 are similar in the respects material here.\\nCiting Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d 440 (1985), the trial court said that \\\"[t]he only reason the case survived the motion to strike was the court's policy against striking the evidence in order to preserve a full record on appeal . . . .\\\" However, in conformity with Brown, the court must have concluded that the evidence did not make it \\\"conclusively apparent that plaintiff ha[d] proven no cause of action against defendant.\\\" Id. at 531, 331 S.E.2d at 445 (citation omitted).\"}"
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+"{\"id\": \"2113942\", \"name\": \"Jack W. Edwards v. Elizabeth Ann Edwards\", \"name_abbreviation\": \"Edwards v. Edwards\", \"decision_date\": \"1971-01-18\", \"docket_number\": \"Record No. 7262\", \"first_page\": \"483\", \"last_page\": \"483\", \"citations\": \"211 Va. 483\", \"volume\": \"211\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:06:02.329467+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jack W. Edwards v. Elizabeth Ann Edwards.\", \"head_matter\": \"Richmond\\nJack W. Edwards v. Elizabeth Ann Edwards.\\nJanuary 18, 1971.\\nRecord No. 7262.\\nPresent, Snead, C.J., I\\u2019Anson, Gordon, Harrison, Cochran and Harman, JJ.\\nLowry J. Miller (James B. Miller and Gary W. Reese, on brief), for appellant.\\nKen McFarlane Smith (James W. Korman; Kinney, Smith \\u25a0& Bar-ham, on brief), for appellee.\", \"word_count\": \"59\", \"char_count\": \"384\", \"text\": \"Decree affirmed without opinion by equally divided Court.\"}"
\ No newline at end of file
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+"{\"id\": \"2138794\", \"name\": \"Linwood Earl Briley v. Commonwealth of Virginia\", \"name_abbreviation\": \"Briley v. Commonwealth\", \"decision_date\": \"1980-11-26\", \"docket_number\": \"Record No. 800690\", \"first_page\": \"532\", \"last_page\": \"546\", \"citations\": \"221 Va. 532\", \"volume\": \"221\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:00:45.235252+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Linwood Earl Briley v. Commonwealth of Virginia\", \"head_matter\": \"Richmond.\\nLinwood Earl Briley v. Commonwealth of Virginia\\nNovember 26, 1980.\\nRecord No. 800690.\\nPresent: All the Justices.\\nFrank N. Cowan (Deborah S. O\\u2019Toole; Cowan, Owen & Nance, on brief), for appellant.\\nJames E. Kulp, Deputy Attorney General (Marshall Coleman, Attorney General, on brief), for appellee.\", \"word_count\": \"4741\", \"char_count\": \"29181\", \"text\": \"CARRICO, J.,\\ndelivered the opinion of the Court.\\nIn a two-stage jury trial conducted in accordance with Code \\u00a7 19.2-264.3 and -264.4, the defendant, Linwood Earl Briley, was convicted of capital murder for a willful, deliberate, and premeditated killing occurring in the commission of robbery while armed with a deadly weapon, Code \\u00a7 18.2-31(d), and his punishment was fixed at death. After receipt of a post-sentence report of a probation officer, Code \\u00a7 19.2-264.5, the trial court imposed upon the defendant the sentence fixed by the jury. Pursuant to Code \\u00a7 17-110.1(A) and -110.1(F), the defendant is here for automatic review of his death sentence, consolidated with his appeal from his conviction.\\nThe victim in the case, John Harvey Gallaher, was a disc jockey for a Richmond radio station and a member of a small \\\"musical combo.\\\" On the evening of September 14, 1979, Gallaher was playing with the \\\"combo\\\" at the Log Cabin, a southside Richmond restaurant. During an intermission, Gallaher left the restaurant by a rear door. He never returned. Two days later, his bullet-torn body was found, half-submerged, at the foot of a bank on Mayo Island in the James River.\\nOn October 22, 1979, Duncan Meekins was arrested and charged in connection with the robbery and murder of Gallaher. Subsequently, Meekins implicated the defendant in the offenses.\\nMeekins was the Commonwealth's principal witness at the defendant's trial. In his testimony, Meekins stated that, on the evening in question, he was with the defendant and the latter's two brothers, Anthony and James, when the foursome decided to look for \\\"somebody to mug.\\\" The group had a sawed-off shotgun and a high-caliber rifle in their car as they drove up and down Jefferson-Davis Highway in southside Richmond looking for a likely victim. Unsuccessful in their quest, they parked near the Log Cabin \\\"to see if [a possible victim] was going to come out.\\\" Exiting their car, they hid behind some bushes at the rear of the Log Cabin, with the defendant carrying the rifle and Meekins the shotgun.\\nAccording to Meekins' further testimony, Gallaher came out the rear door of the Log Cabin and walked over to the bushes where the waiting gunmen were hiding. The defendant accosted Gallaher, ordered him to lie face-down on the ground, and removed his wallet and keys. At the defendant's direction, Meekins went to look for Gallaher's automobile. When Meekins returned with the car, a Lincoln Continental, he and the defendant forced Gallaher to lie on the rear floorboard. With Meekins in the back seat guarding Gallaher, the defendant drove the car away. Anthony and James drove off in the automobile in which they had arrived at the Log Cabin; sometime later, Anthony and James parked their car and joined the defendant and Meekins in Gallaber's automobile.\\nContinuing with his testimony, Meekins stated that the defendant drove to Mayo Island in the James River and parked on the grounds of a paper company located there. The defendant and Meekins forced Gallaher from the car. When Gallaher \\\"started struggling like to stand up,\\\" the defendant \\\"came up with the rifle and shot him.\\\"\\nConcluding his testimony, Meekins said that 15 to 20 minutes elapsed from the time Gallaher was seized at the Log Cabin until he was shot on Mayo Island. After the shooting, the assailants left the murder scene and drove around the city in Gallaher's car. When the \\\"tank . . . almost . . . was on empty,\\\" the culprits parked the car and stripped it of parts.\\nTestifying in his own behalf as his only witness, the defendant denied all complicity in the robbery and murder of Gallaher. The defendant stated that, on the evening in question, he gave Meekins a ride to the home of Meekins' uncle in southside Richmond. After Meekins left the vehicle, the defendant proceeded toward a fried chicken restaurant to see a girl who worked there; en route, his car broke down, and he tried unsuccessfully to restart it. Sometime later, Meekins drove up in a Lincoln automobile and gave the defendant a ride home. The defendant admitted that he and Meekins stripped the Lincoln of parts.\\nOther testimony below showed that the defendant's fingerprints were found in Gallaher's car. When arrested, the defendant was wearing Gallaher's ring; Gallaher's watch was found in the defendant's home. The defendant told the arresting officer that he bought the ring and watch from a person known as \\\"A.C.\\\" In his testimony, however, the defendant stated he purchased the items from Meekins.\\nIn a pretrial motion, the defendant sought dismissal of his capital murder indictment on the ground that Virginia's death penalty statutes are unconstitutional. The trial court denied the motion. On appeal, the defendant states that he is familiar with the constitutional arguments advanced against the death penalty statutes in earlier cases before this court, and he recognizes that the rulings in those cases are adverse to his position. The defendant says, therefore, that, while he wishes to preserve the points, he need not repeat the arguments. Further, the defendant raises purportedly novel arguments against the validity of the death penalty statutes. These arguments, however, are mere variations of the themes previously argued and ruled meritless. We need not repeat the rulings; we reaffirm them and, accordingly, reject all the defendant's arguments concerning the validity of the death penalty statutes.\\nIn another pretrial motion, the defendant sought a change of venue based upon a claim of prejudicial publicity. The trial court denied the motion. On the morning of trial, the defendant renewed the motion; the court again denied the request.\\nIn support of his change-of-venue motion, the defendant submitted affidavits from members of the community, scripts of broadcasts by local television stations, and a notebook containing approximately 70 articles from local newspapers. These materials showed that, in the months preceding the defendant's trial for the present offenses, he and his brothers had been tried in the Richmond area on numerous charges of rape, robbery, and murder, all of which had been given extensive media coverage. In the opinion of the affiants in the several affidavits, the defendant could not \\\"receive a fair trial by an unbiased and impartial jury in the City of Richmond.\\\"\\nAlthough acknowledging that the question whether to change venue generally is left to the sound discretion of the trial court, the defendant contends that the \\\"unusual circumstances of this case and the resulting extensive media coverage\\\" concerning his present and earlier crimes required the granting of his motion to change venue. Citing a number of our prior decisions involving change-of-venue questions, the defendant argues that, in resolving the issue in this case, we should consider (1) the time elapsed between the commission of the crimes charged and trial, (2) the community interest in the case, and (3) the difficulty encountered in selecting a fair and impartial jury.\\nThe defendant says that the publicity concerning his current and earlier crimes continued \\\"right up to the time\\\" of trial of the present charges. He states further that community interest in the case was aroused by the publicity to the extent that his name became \\\"almost synonymous with 'brutal killings.' \\\" Finally, he asserts that the selection of a jury in his case proved difficult, the process consuming over ten hours and requiring examination of 55 prospective jurors.\\nThere are fatal weaknesses, however, in the defendant's position. He does not claim that any of the publicity about which he complains was either inaccurate or intemperate. Greenfield v. Commonwealth, 214 Va. 710, 717, 204 S.E.2d 414, 419 (1974). Neither has he demonstrated \\\"such a widespread feeling of prejudice on the part of the citizenry as [would have been] reasonably certain to prevent a fair and impartial trial.\\\" Coppola v. Commonwealth, supra note 2, 220 Va. at 248, 257 S.E.2d at 801. Nor has he directed us to specific portions of the record \\\"which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected.\\\" Dobbert v. Florida, 432 U.S. 282, 303 (1977).\\nIn this latter connection, the defendant cites the voir dire examination of two prospective jurors, Barbara Smith and William Slaughter. The defendant argues that these prospective jurors should have been excluded for cause since widespread media coverage had influenced them to the extent that they had formed opinions concerning his guilt and, therefore, they could not stand indifferent in the case.\\nThe record shows clearly, however, that while these two prospective jurors had read accounts or listened to broadcasts concerning the criminal activities of the defendant, neither venireman had formed an opinion concerning the defendant's guilt. Furthermore, both prospective jurors stated unequivocally that they would determine the case solely upon the evidence presented in court. Their exposure to media coverage, therefore, did not disqualify them from service on the defendant's jury. Irvin v. Dowd, 366 U.S. 717, 723 (1961).\\nThe defendant's complaint concerning pretrial publicity is no more than a claim that the sheer volume of the media coverage of his and his brothers' many crimes required a change in the location of his trial. Such a claim, standing alone, does not suffice to require a change of venue. Dobbert v. Florida, supra, 432 U.S. at 303; Smith v. Commonwealth, supra note 2, 219 Va. at 462, 248 S.E.2d at 140.\\nThe defendant's next contention involves an incident occurring during the guilt stage of his trial. When chief prosecution witness Duncan Meekins was under cross-examination, defense counsel began to question him concerning a plea agreement he had made with the Commonwealth. Meekins stated that, in return for his truthful testimony, the Commonwealth had promised he would \\\"get no more time than anybody else in this case.\\\" Asked whether this was \\\"the extent of the agreement,\\\" Meekins replied, \\\"[f]or this case, yeah.\\\" At this point, the prosecutor asked the court to confer with counsel out of the hearing of the jury.\\nIn the conference, it was revealed that the plea agreement encompassed not only the present case but also a number of other cases in which Meekins was charged along with the defendant and his brothers. In one of these prosecutions, Meekins himself was subject to the death penalty. The plea agreement provided that, in return for Meekins' testimony against the Brileys in each case involving them, the Commonwealth would not seek the death penalty against Meekins and he would not receive any sentence greater than was imposed upon his accomplices in the various cases.\\nDefense counsel proposed to inquire fully into the plea agreement and the other crimes with which Meekins was charged. Defense counsel desired to show the \\\"pressure brought to bear\\\" upon Meekins and to demonstrate that he was testifying against the defendant in return for the Commonwealth's promise that \\\"he [would] not get the chair.\\\"\\nThe trial court ruled that, if defense counsel examined Meekins concerning the other crimes, the Commonwealth would be permitted to question the witness with respect to the defendant's participation in the same offenses. Defense counsel elected not to pursue the matter further.\\nThe defendant argues that \\\"there was no basis upon which the trial court [could] have made [its] ruling\\\"; the defendant's involvement in the other crimes was irrelevant to Meekins' motivation for testifying on behalf of the Commonwealth. In imposing a condition upon further cross-examination, the defendant maintains, the trial court denied his constitutional right to confront his accusers and limited his ability to demonstrate a basis for bias or prejudice on Meekins' part.\\nThe defendant relies upon our decisions in Woody v. Commonwealth, 214 Va. 296, 199 S.E.2d 529 (1973), and Deavers v. Commonwealth, 220 Va. 14, 255 S.E.2d 458 (1979), as support for his argument. Both cases, however, are inapposite. In Woody, we reversed the trial court's refusal to permit the accused to cross-examine accomplices concerning their participation in other crimes, not involving the accused. We said the cross-examination was proper to show the witnesses were testifying falsely in the hope of obtaining leniency in the other cases. In Deavers, we held that the trial court had erred in denying the accused permission to cross-examine an accomplice concerning whether the latter had been offered leniency in exchange for his testimony.\\nIn both Woody and Deavers, the denial of the right of cross-examination was absolute with respect to the particular point involved. Here, there was no denial of any right. The defendant had shown the jury that Meekins was testifying pursuant to a plea agreement and had brought out what the agreement provided concerning the present case. The trial court merely warned defense counsel of the consequences that would flow from inquiry into the other crimes with which Meekins was charged.\\nWe do not believe the trial court erred in its ruling. The situation here is identical with that addressed in United States v. Barrentine, 591 F.2d 1069 (5th Cir.), cert. denied, 444 U.S. 990 (1979). There, in a gambling prosecution, the government's star witness, an accomplice of the appellants, was cross-examined concerning his prior arrests on other charges. On redirect examination, the prosecution was permitted to show by the witness that one of his prior arrests involved an incident where he had picked up marijuana at the request of one of the appellants. As in the present case, the trial judge in Barrentine had warned defense counsel that questioning the witness concerning other crimes would open the door to redirect testimony of the appellants' involvement in those crimes. The Fifth Circuit affirmed, stating:\\nCross-examination on a part of a transaction enables the opposing party to elicit evidence on redirect examination of the whole transaction at least to the extent that it relates to the same subject.\\n591 F.2d at 1081. We adopt the quoted language as applicable here and dispositive of the question under discussion.\\nThis brings us to the defendant's major contention. Here, the defendant argues that the trial court erred in refusing a defense instruction which would have permitted the jury to find that the robbery of Gallaher terminated at the Log Cabin restaurant and, therefore, that the defendant was guilty only of the non-capital offense of first degree murder in the subsequent killing of Gallaher. As a corollary, the defendant argues that the court erred further in refusing to permit defense counsel to argue the first-degree-murder theory before the jury.\\nAt this point, it is important to clarify what the trial court ruled and what it did not rule. Contrary to the indication in the defendant's brief, the court did not rule as a matter of law that the killing of Gallaher occurred in the commission of robbery. Out of the hearing of the jury, the court did rule that, if the jury believed the defendant robbed Gallaher at the Log Cabin, then, as a matter of law, the robbery continued until Gallaher's subsequent death on Mayo Island. The record does not reveal, however, that this ruling was ever com municated to the jury. Further, contrary to what the defendant suggests, the lower court did not prohibit counsel from arguing to the jury that the killing did not occur in the commission of robbery.\\nThe record shows the trial court granted Instruction 6, which told the jury that the burden was upon the Commonwealth to prove, inter alia, the killing of Gallaher occurred during the commission of robbery and that, in the failure of this burden of proof, the jury should find the defendant not guilty of capital murder. The court also granted Instruction 10A, which defined the offense of robbery. And, in the discussion between court and counsel concerning instructions, the trial judge made clear defense counsel could argue to the jury that the Commonwealth had failed to prove \\\"the elements of the crime\\\" of capital murder, including the element \\\"that the killing occurred during the comission of robbery.\\\" The court only prohibited defense counsel from arguing that the robbery, if it occurred, terminated with the conclusion of the events at the Log Cabin restaurant.\\nWith this clarification, it is obvious that the trial court took the position that the jury should be permitted only two options, viz., to find the defendant guilty of capital murder or to acquit him. Relying upon Beck v. Alabama, 447 U.S. 625 (1980), the defendant argues that the jury should have been given a third alternative, viz., to convict him of the lesser included offense of first degree murder on the theory that the robbery of Gallaher had terminated well in advance of the murder.\\nIn Beck, a capital case involving robbery and murder of the victim by the accused and an accomplice, the trial court refused the defense a first-degree-murder instruction. Noting that the accused had admitted participation in the robbery but had denied killing the victim or intending his death, the Supreme Court reversed, stating that the defense was entitled to the instruction.\\nBeck, however, is inapposite. Unlike the accused there, this defendant denies all complicity in both the robbery and the killing of the victim. Furthermore, in Beck, an Alabama statute forbade the granting of lesser-included-offense instructions in capital cases. Virginia has no similar statute or other rule of law requiring the same result. In this state, such instructions are proper, but only when supported by evidence. Clark v. Commonwealth, supra note 2, 220 Va. at 209, 257 S.E.2d at 789; Painter v. Commonwealth, 210 Va. 360, 367, 171 S.E.2d 166, 171 (1969). Beck did not affect this rule. Indeed, the holding in Beck was responsive to this question:\\n\\\"May a sentence- of death constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict?\\\" (Emphasis added.)\\n447 U.S. at 627. The question becomes, therefore, whether there was any basis in the present case for permitting the jury to consider a verdict of guilt of a lesser-included non-capital offense.\\nIn this connection, both the defendant and the Attorney General cite our decision in Haskell, et al. v. Commonwealth, 218 Va. 1033, 243 S.E.2d 477 (1978). There, the three appellants and a fourth assailant named Gaynor attacked a sailor pursuant to a predesigned plan to rob him. When the robbers found no money on the victim, they tried to get into their car and drive away. The victim attempted to prevent their escape, and Gaynor shot and killed him. Convicted of attempted robbery and murder, the appellants contended on appeal that the evidence did not sustain their convictions under the felony-murder doctrine because the attempted robbery had been abandoned before the victim was shot. Rejecting this contention after an examination of numerous authorities, we said that, under the prevailing rule:\\n[T]he felony-murder statute applies where the initial felony and the homicide were parts of one continuous transaction, and were closely related in point of time, place, and causal connection, as where the killing was done in flight from the scene of the crime to prevent detection or promote escape.\\n218 Va. at 1041, 243 S.E.2d at 482.\\nWe stated further:\\nThe rule which we adopt, therefore, consistent with the weight of authority elsewhere, is that the felony-murder statute applies where the killing is so closely related to the felony in time, place, and causal connection as to make it a part of the same criminal enterprise.\\n218 Va. at 1043-44, 243 S.E.2d at 483.\\nThe defendant here relies upon the portion of the Haskell opinion wherein we observed that \\\"[i]t was for the fact finder to determine . . whether the attempted robbery had been terminated within the purview of the [felony-murder] statute.\\\" 218 Va. at 1043, 243 S.E.2d at 483. But, in Haskell, the finding concerning the termination of the attempted robbery actually had been made by the trier-of-fact; we were not called upon to decide whether the determination properly might have been made as a matter of law. As the Attorney General points out, Haskell does not require that the trier-of-fact always determine whether an initial felony has terminated in advance of a homicide. Indeed, the Haskell opinion indicates clearly that, in an appropriate case, the issue properly may be decided as a matter of law. 218 Va. at 1044, 243 S.E.2d at 484.\\nThe defendant maintains, however, that, in refusing to permit the jury in this case to determine whether the robbery of Gallaher terminated before the killing, the trial court improperly applied a liberal interpretation of the felony-murder doctrine. A capital murder case differs from the typical felony-murder situation, the defendant asserts, and the decisions of the United States Supreme Court require a more restrictive interpretation of applicable principles in death penalty cases.\\n. Even giving applicable principles strict interpretation, we believe the trial court did not err in refusing a first-degree-murder instruction and in ruling that, if a robbery occurred in this case, it did not terminate with the conclusion of the events at the Log Cabin restaurant. Uncontradicted evidence supported the trial court's holding concerning the continuation of the robbery; no evidence supported granting the instruction.\\nThe distinctive elements of robbery are (1) the use of violence, or the threat thereof, against the victim, and (2) the theft of property from his person or in his presence. Theft of property is a trespass upon the rights of the owner therein for as long as he is deprived of the use thereof; he retains legal possession of the goods stolen even when they are in the actual possession of the thief. Dunlavey v. Commonwealth, 184 Va. 521, 525-26, 35 S.E.2d 763, 765 (1945). In a robbery prosecution, where the violence against the victim and the trespass to his property combine in a continuing, unbroken sequence of events, the robbery itself continues as well for the same period of time.\\nHere, obviously, the jury believed a robbery occurred. It is equally obvious that Gallaher's automobile was a fruit of the robbery. Uncontradicted testimony submitted by the Commonwealth showed conclusively that the violence against Gallaher and the trespass to his automobile combined and continued unabated from the time of the initial taking of the car at the Log Cabin until Gallaher was killed on Mayo Island only 15 to 20 minutes later. Thus, borrowing and adapting the language of Haskell, we hold that the killing involved here was so closely related in time, place, and causal connection as to make the killing, as a matter of law, a part of the same criminal enterprise. Cf. Doane v. Commonwealth, 218 Va. 500, 237 S.E.2d 797 (1977) (where no causal relationship or nexus shown between antecedent felony and killing, accused not guilty of felony-murder) .\\nOne defense argument remains in this phase of the case. The defendant maintains that he cannot be convicted of capital murder for a robbery involving the theft of Gallaher's car because there was no evidence that the defendant or his accomplices \\\"intended to take [the car] permanently.\\\" We reject this argument out of hand. We can conceive of no more conclusive evidence of the intent to deprive an owner of his car permanently than the testimony presented in this case that the car was stolen contemporaneously with the murder of its owner and later abandoned and stripped of parts.\\nThe defendant's next contention concerns the trial court's refusal, in the penalty stage of the trial, to grant defense Instruction A2. This instruction would have told the jury:\\nThe Court instructs the jury that even though you may believe that the Commonwealth has proven, beyond a reasonable doubt, the elements necessary for you to recommend that Linwood E. Briley be put to death, you are not required by law to recommend the death penalty and you may fix Linwood Earl Briley's punishment at imprisonment for life.\\nThe defendant argues this instruction was necessary to inform the jury clearly that it was not bound to recommend the death sentence in any event. In Instruction 1A, however, the trial court told the jury:\\nYou have convicted the defendant of an offense which may be punished by death. You must decide whether the defendant shall be sentenced to death or to life imprisonment. Before the penalty can be fixed at death, the Commonwealth must prove beyond a reasonable doubt at least one of the following two alternatives:\\n(1) That, after consideration of his past criminal record, there is a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society;\\nor\\n(2) That his conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder.\\nIf you find from the evidence that the Commonwealth has proven beyond a reasonable doubt either of the two alternatives, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment.\\nIf the Commonwealth has failed to prove either alternative beyond a reasonable doubt, then you shall fix the punishment of the defendant at life imprisonment. (Emphasis added.)\\nIn our opinion, this last-quoted instruction clearly and sufficiently informed the jury of its option to fix the defendant's punishment at life imprisonment, even though it also found the existence of the aggravating circumstances permitting a recommendation of the death penalty. Defense Instruction A2, therefore, was unnecessary. Smith v. Commonwealth, supra note 2, 219 Va. at 479-80, 248 S.E.2d at 149-50.\\nIn his final assignment of error,' the defendant contends that his sentence of death was imposed under the influence of passion, prejudice, or other arbitrary factor and that the sentence is excessive or disproportionate to the penalty imposed in similar cases. Our examination of this record, however, convinces us that the defendant's sentence was not influenced by passion, prejudice, or other arbitrary factor. With respect to excessiveness or disproportionality, we have examined the records in two other death penalty cases decided today and in cases decided previously in which death sentences were upheld. From this examination, we conclude that the defendant's sentence is not excessive or disproportionate.\\nFinding neither error in the judgment appealed from nor other reason to disturb the death sentence imposed in this case, we will affirm the defendant's conviction and sentence.\\nAffirmed.\\nThe defendant was convicted also of using a firearm in the commission of murder. This conviction, however, is not involved in, or pertinent to, this appeal.\\nThe defendant cites: Stamper v. Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), cert. denied, 445 U.S. 972 (1980): Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1979), cert. denied, 444 U.S. 1103 (1980); Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d 784 (1979), cert. denied, 444 U.S. 1049 (1980); Mason v. Commonwealth, 219 Va. 1091, 254 S.E.2d 116, cert. denied, 444 U.S. 919 (1979); Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d 202, cert. denied, 442 U.S. 924 (1979); and Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967 (1979).\\nThe defendant cites: Newcomer v. Commonwealth, 220 Va. 64, 255 S.E.2d 485 (1979); Poindexter v. Commonwealth, 218 Va. 314, 237 S.E.2d 139 (1977); Lewis v. Commonwealth, 218 Va. 31, 235 S.E.2d 320 (1977); Foster v. Commonwealth, 209 Va. 297, 163 S.E.2d 565 (1968); and Rees v. Commonwealth, 203 Va. 850, 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964 (1963).\\nBarbara Smith actually served on the defendant's jury. William Slaughter was excluded by the exercise of a peremptory challenge by the defense.\\nThe defendant cites: Godfrey v. Georgia, 446 U.S. 420 (1980), Jurek v. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Gregg v. Georgia, 428 U.S. 153 (1976); and Furman v. Georgia, 408 U.S. 238 (1972).\\nJames Dyral Briley v. Commonwealth, 221 Va. 563, 273 S.E.2d 57 (1980); Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (1980).\\nThe cases decided previously are listed at the end of the opinion in James Dyral Briley v. Commonwealth, supra note 6.\"}"
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+"{\"id\": \"2138844\", \"name\": \"Jesse Bloodworth v. Robert I. Ellis, et al.\", \"name_abbreviation\": \"Bloodworth v. Ellis\", \"decision_date\": \"1980-06-06\", \"docket_number\": \"Record No. 780893\", \"first_page\": \"18\", \"last_page\": \"24\", \"citations\": \"221 Va. 18\", \"volume\": \"221\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"Jesse Bloodworth v. Robert I. Ellis, et al.\", \"head_matter\": \"Richmond.\\nJesse Bloodworth v. Robert I. Ellis, et al.\\nJune 6, 1980.\\nRecord No. 780893.\\nPresent: All the Justices.\\nH. Lewis Allen (Howard James Marx; Fine, Fine, Legum & Fine, on briefs), for appellant.\\nStuart L. Nachman (Christopher C. North; Cooper & Cooper, on brief), for appellees.\", \"word_count\": \"1851\", \"char_count\": \"11502\", \"text\": \"I'ANSON, C.J.,\\ndelivered the opinion of the Court.\\nIn this appeal, we must determine whether the trial court erred in failing to receive evidence concerning a challenge to the jurisdiction of a sister state's court prior to giving that court's judgment full faith and credit pursuant to the Constitution of the United States, article IV, section 1.\\nIn November 1976, the plaintiffs, on behalf of themselves and all other stockholders of Atlantic General Corporation, obtained a judgment against several defendants, including Jesse Bloodworth, in the Court of Common Pleas of Philadelphia County, Pennsylvania. During the course of the proceedings, the Court of Common Pleas entered an order dated September 12, 1975, in which the clerk of the court was directed to note that service of the complaint and amended complaint had been accepted by the defendants, including Bloodworth. The order recited that Bloodworth and the defendants appeared in court on August 27, 1975, and acknowledged the acceptance of the complaint and amended complaint through their attorney. In addition, a certified copy of several pages of the transcript of the Pennsylvania proceeding was submitted to the Virginia trial court. The transcript revealed that the attorney representing the several defendants agreed to a stipulation waiving objections to jurisdiction and asking that the subject matter of the suit be adjudicated. In addition, the transcript revealed that Bloodworth was called as a witness and testified at the August 27 hearing. The attorney for the plaintiffs in the Pennsylvania proceeding filed in the court below an affidavit stating that, inter alia, Bloodworth was \\\"present in Court during the several days of trial of this case and [was] represented by counsel throughout the proceedings.\\\"\\nBloodworth admits that he appeared in the Court of Common Pleas on August 27, 1975, but claims that he participated in the proceedings solely as a witness. In an affidavit submitted to the Virginia trial court, he avers that he did not engage the attorney who stipulated to a waiver of jurisdictional objections, that he did not authorize this attorney to accept service of the complaint or the amended complaint, and that, to his knowledge, during the proceeding the attorney took no action suggesting that he considered himself to be Bloodworth's attorney.\\nOn the basis of the affidavits and pleadings submitted, the Virginia trial court granted the plaintiffs' motion for summary judgment and held that the Pennsylvania court order was entitled to full faith and credit. In his appeal, Bloodworth contends that summary judgment was improper in that there were \\\"material fact[s]. . . genuinely in dispute.\\\" Supreme Court of Virginia Rule 3:18. The plaintiffs, on the other hand, contend that no material facts were at issue and that consequently summary judgment was appropriate.\\nThe Full Faith and Credit Clause of the Constitution of the United States requires that \\\"[a] judgment entered in one State must be respected in another provided that the first State had jurisdiction over the parties and the subject matter.\\\" Nevada v. Hall, 440 U.S. 410, 421 (1979). The threshold issue to be resolved in this case is whether the Pennsylvania court's recitation of jurisdiction in its court order and other court records precluded the Virginia trial court from further inquiry into the Pennsylvania court's jurisdiction. As a general rule, a court, when asked to give effect to the judgment of a court in another state, may inquire into that court's jurisdiction without offending the Full Faith and Credit Clause, \\\"notwithstanding the averments contained in the record of the judgment itself.\\\" Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 469 (1873). Accord, Williams v. North Carolina, 325 U.S. 226, 229 (1945); Chicago Life Insurance Co. v. Cherry, 244 U.S. 25, 29 (1917); Bigelow v. Old Dominion Copper Co., 225 U.S. 111, 135-36 (1912); Bowler v. Huston, 11 Va. (30 Gratt.) 266, 275 (1878). Where, however, the second court's inquiry \\\"discloses that those [jurisdictional] questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment,\\\" the second court is precluded from re-examining the jurisdiction of the court rendering the original judgment. Durfee v. Duke, 375 U.S. 106, 111 (1963). Thus, a litigant is barred from relitigating in Virginia issues that were properly before and decided by a sister state's court, even when the issues concern jurisdictional matters. See also Romeo v. Romeo, 218 Va. 290, 293, 237 S.E.2d 143, 145 (1977); Osborne v. Osborne, 215 Va. 205, 208, 207 S.E.2d 875, 879 (1974); Evans v. Asphalt Roads, Etc., Co., 194 Va. 165, 173, 72 S.E.2d 321, 325 (1952).\\nIn the present case, the Pennsylvania court's recitation of jurisdiction rested upon a stipulation of the parties, rather than a litigation of the jurisdictional issues. This stipulation, if duly authorized, would preclude further review of jurisdiction in this case. Blood-worth's affidavit represents, however, that the attorney making the stipulation had not been authorized by him to waive such objections and, in fact, had not even been retained by him. Furthermore, the affidavit represents that Bloodworth was unaware of any actions taken by the attorney which suggested that the attorney believed he was Bloodworth's counsel. If these statements are correct, the stipulation recited in the court order as the basis for the Pennsylvania court's jurisdiction was unauthorized. Cf. Durfee v. Duke, 375 U.S. at 111 n.8 (first court's jurisdiction of the person acknowledged). A jurisdictional waiver made by an attorney unauthorized to make such a waiver does not confer jurisdiction upon a court. See, e.g., People v. Mickow, 58 Ill. App. 3d 780, 783, 374 N.E.2d 1081, 1083 (1978); Wright v. Estate of Treichel, 36 Mich. App. 33, 38, 193 N.W.2d 394, 396 (1971); Raub v. Otterback, 89 Va. 645, 650, 16 S.E. 933, 934 (1893); Batchelder v. Mantak, 136 Vt. 456, 462, 392 A.2d 945, 949 (1978). Since the question of the Pennsylvania court's jurisdiction over Bloodworth was not \\\"fully and fairly litigated\\\" in the Pennsylvania court, we conclude that the Thompson rule is applicable and that the Pennsylvania court's recitation of jurisdiction did not preclude the Virginia trial court's inquiry into the Pennsylvania court's jurisdiction.\\nHaving determined that the Pennsylvania court's recitation of jurisdiction is not dispositive of this appeal, we must resolve whether the pleadings and affidavits submitted to the Virginia trial court raised a factual issue concerning the Pennsylvania court's jurisdiction. Issues concerning the jurisdiction of the court rendering the original judgment are determined by examining the law of the state in which the original judgment was entered. See Piedmont and Arlington Life Insurance Company v. Ray, 75 Va. 821, 823 (1881). Accord, Hosiery Mills v. Burlington Industries, 285 N.C. 344, 352, 204 S.E.2d 834, 840 (1974). In this case, this principle requires that we look to Pennsylvania law in determining whether Bloodworth made an appearance, thus conferring jurisdiction upon the Pennsylvania court.\\nWe conclude that, under Pennsylvania law, the agreed-upon facts in this case do not merit summary judgment. Under Pennsylvania law, a party's general appearance constitutes a waiver of any juris dictional objections he might have had. Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232, 242, 255 A.2d 577, 583 (1969); Yentzer v. Taylor Wine Co., 409 Pa. 338, 342, 186 A.2d 396, 398 (1962). Pennsylvania holds that a person has made an appearance if any actions taken by him seek a determination upon the merits. Vant v. Gish, 412 Pa. 359, 367, 194 A.2d 522, 527 (1963). A person's physical presence at a trial, however, does not constitute an appearance. In First Regular Baptist Church v. Allison, 304 Pa. 1, 12, 154 A. 913, 917 (1931), the Supreme Court of Pennsylvania held that a person's appearance at trial to testify as a witness does not constitute a submission to the jurisdiction of the court. Accord, Appeal of Dethlefson, 434 Pa. 431, 433, 254 A.2d 6, 7 (1969); Stonecipher v. Keane, 268 Pa. 540, 546, 112 A. 233, 235 (1920); Northampton Residents Ass'n v. Northampton Township Bd. of Supervisors, 14 Pa. Commw. Ct. 515, 322 A.2d 787 (1974). In Van Aken v. Pennyback Woods Home Ownership Ass'n, 18 Pa. Commw. Ct. 552, 554, 336 A.2d 895, 896 (1975), the Pennsylvania Commonwealth Court followed this ruling and noted that the witness contesting jurisdiction in Allison had been named in the complaint. Thus, we conclude that, under Pennsylvania law, a person who is named in the complaint and who appears in court as a witness has not necessarily entered an appearance conferring jurisdiction over him upon the court.\\nOur conclusion that summary judgment was inappropriate should not be viewed as an assessment of the credibility of Blood-worth's factual allegations. Such a task belongs to the trier of fact unless the testimony is \\\"irreconcilable with logic and human experience.\\\" Williams v. Vaughan, 214 Va. 307, 310, 199 S.E.2d 515, 518 (1973). Although the inferences to be drawn from the evidence may differ in degree of probability, courts deciding upon motions for summary judgment must adopt those inferences most favorable to the party whose evidence it is sought to have struck, unless the inferences are strained, forced, or contrary to reason. Id.; Green v. Smith, 153 Va. 675, 680, 151 S.E. 282, 283 (1930).\\nOn remand, the trier of fact is the proper party to weigh the credibility of Blocdworth's claims. In weighing these claims, the trier of fact should remember that \\\"[t]he records of any judicial proceeding and any other official record of any court . of another state . . . shall be received as prima facie evidence\\\" of the facts asserted therein, provided such records are authenticated by the clerk of that court and certified by a judge of that court. Code \\u00a7 8.01-389. Moreover, \\\"[t]he judgment of a court of general jurisdiction of a sister state duly authenticated is prima facie evidence of the jurisdiction of the court to render it.\\\" Barber v. Barber, 323 U.S. 77, 86 (1944). Jurisdiction of the sister state's court is presumed unless disproved by extrinsic evidence or the record itself. Adam v. Saenger, 303 U.S. 59, 62 (1938). Thus, the party challenging the jurisdiction of a sister state's court is under a heavy burden when attempting to establish the absence of that court's jurisdiction. Barber v. Barber, 323 U.S. at 86. If, after receiving the evidence, the trier of fact concludes that the attorney entering into the stipulation was authorized by Bloodworth to enter such a stipulation or that Bloodworth engaged in any conduct seeking a determination upon the merits, the trier of fact should enter judgment for the plaintiffs.\\nThe judgment of the circuit court is reversed and the case is remanded for further proceedings.\\nReversed and remanded.\\nU. S. Const, art. IV, \\u00a7 1, states that \\\"[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.\\\" See also Code \\u00a7 8.01-389 (1977 Repl. Vol.).\"}"
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+"{\"id\": \"2160659\", \"name\": \"Horace W. Lindsey and Mary Louise Lindsey v. Floyd H. Clark and Helen Clark\", \"name_abbreviation\": \"Lindsey v. Clark\", \"decision_date\": \"1952-03-10\", \"docket_number\": \"Record No. 3905\", \"first_page\": \"522\", \"last_page\": \"528\", \"citations\": \"193 Va. 522\", \"volume\": \"193\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T01:55:45.515854+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Horace W. Lindsey and Mary Louise Lindsey v. Floyd H. Clark and Helen Clark.\", \"head_matter\": \"Richmond\\nHorace W. Lindsey and Mary Louise Lindsey v. Floyd H. Clark and Helen Clark.\\nMarch 10, 1952.\\nRecord No. 3905.\\nPresent, All the Justices.\\nThe opinion states the case.\\nGr. H. Branaman, for the appellants.\\nOwen 8. Livsie and McRae Werth, for the appellees.\", \"word_count\": \"1977\", \"char_count\": \"10758\", \"text\": \"Buchanan, J.,\\ndelivered the opinion of the court.\\nThis suit was instituted hy the Lindseys to enjoin the Clarks from using a driveway along the north side of the Lindsey lots and to have themselves adjudged the fee simple owners of the two lots claimed hy them. The trial court held that the Clarks owned a right of way on the south side of the Lindsey lots and, in effect, pnt the Lindseys on terms to make it available to them or else allow the Clarks to continue using the one on the north side.\\nThere is no controversy about the controlling facts.\\nIn 1937 the Clarks were the owners of four adjoining lots, Nos. 31, 32, 33 and 34, each fronting 25 feet on the east side of Magnolia avenue in West Waynesboro, and running back 150 feet to a 20-foot alley. The Clark residence was on Nos. 31 and 32.\\nBy deed dated July 24, 1937, the Clarks conveyed to C. W. Six and Mabel G. Six, his wife, the latter being a daughter of the Clarks, the front two-thirds of Lots 33 and 34, being a frontage of 50 feet and extending back 100 feet. On the rear one-third of these two lots Clark erected a dwelling and. garage for rental purposes. After this conveyance the Sixes built a house on their property, approximately 15 feet from the Clark line on the north and about 8 feet from their own line on the south. The Clark deed to the Sixes contained this reservation:\\n\\\"There is reserved, however, a right-of-way ten (10) feet in width, along the South side of the two lots herein conveyed, for the benefit of the property in the rear.\\\"\\nBy deed of January 16, 1939, the Sixes conveyed their property to William H. McGhee and wife, with the same reservation; and by deed of March 16,1944, the McGhees conveyed the property to the Lindseys, without any reservation.\\nThese three deeds were all made with general warranty and both the deed to the Sixes and the deed to the McGhees were duly recorded prior to the date of the deed to the Lindseys.\\nNotwithstanding that the 10-foot right of way was reserved by Clark along the south .side of the property conveyed to the Sixes, now owned by the Lindseys, Clark proceeded to use it along the north side of the Six property, and has so rased it ever since, without objection by the Sixes, or by the McGhees, or by the Lindseys until a few months before this suit was brought. There is no explanation of this change of location. Six, a witness for the Lindseys, testified that Clark stood in the driveway on the north and said, \\\"lam reserving this driveway to get to my back property.\\\" The time of that statement is not shown, but the words suggest it was at or before the time of the conveyance to the Sixes. When the McGhees bought the property in 1939, Six pointed out to them the driveway on the north, brat the reservation in the deed he made to the McGhees was, as stated, on the south.\\nIn 1946 the Lindseys had their attorney write to Clark, referring to the right of way in the deed to the McGhees, their grantors, and complaining, not of its location, hut of its being used for parking purposes. Again, on November 7, 1949, they had their attorney write Clark, calling attention to the fact that the reservation was along the south side of .their property- and complaining about the use of a water line on their property which had not been reserved. The Lindseys, the letter stated, wanted to erect a line fence and suggested a discussion of the matter before this was done.\\nThe Lindseys contend that the Clarks now have no right of way across their property because none was reserved along the north side and the one reserved on the south side has been abandoned and thereby extinguished. The trial court held it had not been abandoned and that holding was clearly right.\\nAbandonment is a question of intention. A person entitled to a right of way or other easement in land may abandon and extinguish such right by acts in pais; and a cessation of use coupled with acts or circumstances clearly showing an intention to abandon the right will be as effective as an express release of the right. Scott v. Moore, 98 Va. 668, 687, 37 S. E. 342, 348, 81 Am. St. Rep. 749; Daniel v. Doughty, 120 Va. 853, 858, 92 S. E. 848, 850; Magee v. Omansky, 187 Va. 422, 430, 46 S. E. (2d) 443, 448.\\nBut mere non-user of an easement created by deed, for a period however long, will not amount to abandonment. In addition to the non-user there must be acts or circumstances clearly manifesting an intention to abandon; or an adverse user by the owner of the servient estate, acquiesced in by the owner of the dominant estate, for a period sufficient to create a prescriptive right. Watts v. Johnson, etc., Corp., 105 Va. 519, 525, 54 S. E. 317, 319. 28 C. J. S., Easements, \\u00a7 60, p. 724. Nor is a right of way extinguished by the habitual use by its owner of another equally convenient way unless there is an intentional abandonment of the former way. Scott v. Moore, supra, 98 Va. at p. 686, 37 S. E. at p. 348. 17 Am. Jur., Easements, \\u00a7 144, p. 1029.\\nThe burden of proof to show the abandonment of an easement is upon the party claiming such abandonment, and it must be established by clear and unequivocal evidence. Daniel v. Doughty, supra, 120 Va. at p. 858, 92 S. E. at p. 850; Blanford v. Trust Co., 142 Va. 73, 82, 128 S. E. 640, 643.\\nClark specifically reserved a right of way over the lots now owned by the Lindseys. Very clearly he had no intention of abandoning that right of way. He was evidently mistaken as to where it was located; but his grantees, the Sixes, were likewise mistaken, as were also their grantees, the McGhees. Clark's use on the wrong location of the right of way reserved by him did not establish an intention on his part to abandon his right of way on the right location. He could not have intended to abandon his easement on the south of the Lindsey lots when he did not know that that was where his easement was.\\nThe residence built by the Sixes, and now occupied by the Lindseys, encroaches by about two feet on the 10-foot alley when located on the south side, and the Lindsey property on that side within the 10-foot space is terraced and planted with shrubbery and a tree. The Lindseys argue that the Clarks are estopped from claiming a right of way on that side because Clark knew where the Sixes were building the house. The only testimony about that is from Six, who said that Clark was away at work when the house was being built but came and went every day to and from his home on the adjoining property, saw where the house was located and made no objection; but Six also said that Clark had nothing to do with locating the house. There is no evidence that Clark knew, any more than Six knew, that the house was encroaching on the right of way. Clark did not think the right of way was on that side. Even if he had known it was there, he would not likely have known that Six was building on it. The location of the house was not influenced by anything Clark did or said. Clark knew nothing about the matter that Six did not know.\\n\\\"It is essential to the application of the principles of equitable estoppel, or estoppel in pais, that the party claiming to have been influenced by the conduct or declarations of another to his injury, was not only ignorant of the true state of facts, but had no convenient and available means of acquiring such information, and where the facts are known to both parties, and both had the same means of ascertaining- the truth, there can be no estoppel.\\\" Lindsay v. James, 188 Va. 646, 659, 51 S. E. (2d) 326, 332, 7 A. L. R. (2d) 597. The Lindseys had both actual and constructive knowledge of the situation. The driveway was there on the north side when they bought the property and Lindsey testified he could see where ears had been using it. They negligently failed to have their title examined but they are, of course, chargeable with the information contained in the recorded deeds. Pillow v. Southwest Virginia Imp. Vo., 92 Va. 144, 152, 23 S. E. 32, 34, 53 Am. St. Rep. 804; Florance v. Morien, 98 Va. 26, 33, 34 S. E. 890, 891; 15 M. J., Recording Acts, \\u00a7 15, p. 561.\\nThe suit therefore developed this situation: The Clarks were entitled to a 10-foot right of way along the south side of the Lindsey property. That right of way was partially blocked by the Lindsey house with its terraces and shrubbery. To require their removal would be very expensive to. the Lindseys and damaging to their property.- The Clarks were willing to let their right of way continue to be located on the north side.\\nThe court was well warranted in resolving the matter by applying the maxim \\\"He who seeks equity must do equity.\\\" That means that \\\"he who seeks the aid of an equity court subjects himself to the imposition of such term\\u00ae as the settled principles -of equity require, and that whatever be the nature of the controversy between the parties, and whatever be the nature of the remedy demanded, the court will not confer its equitable relief on the party seeking its interposition and aid, unless he has acknowledged and conceded, or will admit and provide for, all the equitable rights, claims, and demands justly belonging to the adversary party, and growing out of, or necessarily involved in, the subject matter of the controversy.\\\" 30 C. J. S., Equity, \\u00a7 91, p. 461. 2 Pom. Eq. Jur., 5th ed., \\u00a7 385, pp. 51-2.\\nA court of equity may in a case in which the principles and rules of equity demand it, condition its granting of the relief sought by the complainant upon the enforcement of a claim or equity held by the defendant which the latter could not enforce in any other way. United Cigarette Machine Co. v. Brown, 119 Va. 813, 825, 89 S. E. 850, 855, L. R. A. 1917 F, 1100; 2 Pom. Eq. Jur., supra, \\u00a7 386a, p. 57; 19 Am. Jur., Equity, \\u00a7 463, p. 319.\\nThe decree of the trial court provided: \\\"The Court will not require the expensive removal of the obstruction, so long as the right-of-way along the north side of the property is made available. However, it is ordered that the defendants desist from the use of the right-of-way for any purpose other than the use of the rear one-third portion of Lots 33 and 34, and only for the right of passage over and across the said- right-of-way to and from the property in the rear.\\\" And, further, \\\"Should the complainants make an election under this order, a further order will be entered fiving the rights of the respective parties.\\\"\\nThe decree appealed from is affirmed and the cause is remanded for further decree as indicated.\\nAffirmed and remanded.\"}"
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+"{\"id\": \"2284796\", \"name\": \"TIMOTHY L. REED v. COMMONWEALTH OF VIRGINIA\", \"name_abbreviation\": \"Reed v. Commonwealth\", \"decision_date\": \"1987-02-17\", \"docket_number\": \"No. 1189-85\", \"first_page\": \"665\", \"last_page\": \"667\", \"citations\": \"3 Va. App. 665\", \"volume\": \"3\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:47:58.047387+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TIMOTHY L. REED v. COMMONWEALTH OF VIRGINIA\", \"head_matter\": \"Richmond\\nTIMOTHY L. REED v. COMMONWEALTH OF VIRGINIA\\nNo. 1189-85\\nDecided February 17, 1987\\nCounsel\\nJohn W. Dozier, Jr., for appellant.\\nThomas C. Daniel, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.\", \"word_count\": \"635\", \"char_count\": \"3793\", \"text\": \"Opinion\\nBAKER, J.\\nA grand jury in the City of Richmond returned an indictment against Timothy L. Reed (appellant) which charged that he \\\"did feloniously and unlawfully while a prisoner in the State Penitentiary of Virginia or while in the custody of an employee thereof, willfully break, cut or damage any building, furniture, fixture or fastening of such facility or any part thereof, rendering such facility less secure as a place of confinement. Va. Code \\u00a7 53.1-203.2.\\\" The relevant portion of the code section referenced in the indictment reads as follows:\\nIt shall be unlawful for a prisoner in a a state, local or community correctional facility or in the custody of an employee thereof to . .\\n2. Willfully break, cut or damage any building, furniture, fixture or fastening of such facility or any part thereof for the purpose of escaping, aiding any other prisoner to escape therefrom or rendering such facility less secure as a place of confinement .\\nFor violation of any of the provisions of this section, the prisoner shall be guilty of a Class 6 felony, (emphasis added).\\nAppellant was arraigned in the Circuit Court of the City of Richmond (trial court), waived trial by jury and was tried by the court. He was found guilty and sentenced to three years in the penitentiary. From that judgment he appeals to this court. The question of sufficiency of evidence is not before us, as the panel which granted this appeal limited the question to the error here assigned, to-wit: that the \\\"trial court erred in permitting the Commonwealth to amend the indictment to include an allegation of purpose or intent to render the penitentiary less secure as a place of confinement.\\\" We have examined the record in this case and we find that it does not disclose a motion to amend nor that the indictment was in fact amended as alleged by appellant.\\nAt the conclusion of the Commonwealth's evidence appellant moved for dismissal of the charges on the ground that the phrase \\\"for the purpose of' was not stated in the body of the indictment. After the trial court overruled his motion appellant rested without presenting any evidence on his behalf. He then renewed his motion to dismiss for the same reason previously stated, and was again overruled.\\nThe indictment incorporated by reference the provisions of Code \\u00a7 53.1-203(2). The inference to be drawn from the provisions of Code \\u00a7 19.2-220 and Rule 3A:6(a) is clearly that incorporation by such reference is contemplated by the Rule. Wall Distributors, Inc. v. City of Newport News, 228 Va. 358, 362, 323 S.E.2d 75, 77 (1984). Rule 3A:6(a), in pertinent part, provides: \\\"The indictment or information, in describing the offense charged, shall cite the statute or ordinance that defines the offense.\\\" By the citation of the statute in the indictment appellant was informed of the essential elements of the case against him. See Washington v. Commonwealth, 216 Va. 185, 192, 217 S.E.2d 815, 822 (1975). He suffered no prejudice by the omission in the body of the indictment of the words \\\"for the purpose of.\\\"\\nAlthough it would have been better practice to have included the phrase \\\"for the purpose of' in the body of the indictment, appellant was sufficiently informed of the offense with which he was charged and could fairly prepare his defense. See Wall Distributors, Inc., 228 Va. at 364, 323 S.E.2d at 78. We conclude that the failure to use that phrase did not invalidate the indictment.\\nAccordingly, we affirm the judgment of the trial court.\\nAffirmed.\\nBenton, J., and Keenan, J., concurred.\"}"
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+"{\"id\": \"2310338\", \"name\": \"Robert ELMORE, s/k/a Robert D. Elmore v. COMMONWEALTH of Virginia\", \"name_abbreviation\": \"Elmore v. Commonwealth\", \"decision_date\": \"1996-05-14\", \"docket_number\": \"Record No. 2366-94-2\", \"first_page\": \"424\", \"last_page\": \"431\", \"citations\": \"22 Va. App. 424\", \"volume\": \"22\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T19:08:09.076821+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert ELMORE, s/k/a Robert D. Elmore v. COMMONWEALTH of Virginia.\", \"head_matter\": \"470 S.E.2d 588\\nRobert ELMORE, s/k/a Robert D. Elmore v. COMMONWEALTH of Virginia.\\nRecord No. 2366-94-2.\\nCourt of Appeals of Virginia, Richmond.\\nMay 14, 1996.\\nElder, J., filed dissenting opinion.\\nPeter D. Eliades (Marks & Harrison, on brief), Hopewell, for appellant.\\nMarla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.\\nPresent: BAKER, COLEMAN and ELDER, JJ.\", \"word_count\": \"2291\", \"char_count\": \"13623\", \"text\": \"COLEMAN, Judge.\\nRobert D. Elmore was convicted in a bench trial of bank robbery and use of a firearm in the commission of a robbery. Elmore contends that the Commonwealth did not prove that he actually possessed a firearm and, therefore, the evidence is insufficient to sustain the conviction for use of a firearm in the commission of a robbery in violation of Code \\u00a7 18.2-53.1. We hold that the evidence is sufficient and affirm the defendant's conviction.\\nAt approximately 9:07 a.m. on March 10, 1995, the defendant entered the First Colonial Bank in Petersburg and approached Noni Deets, a teller at the bank. The defendant handed Deets a blue \\\"bank bag,\\\" and Deets immediately became \\\"suspicious\\\" because the bag was light and contained a note. Deets testified that the note stated, \\\"this is a robbery.\\\" The note also stated that the defendant did not want to hurt anyone and instructed Deets to \\\"quietly put all [her] twenties, fifties and hundreds in the bank bag.\\\" Deets explained the events that followed:\\nAfter I read the note I looked back down, like I couldn't believe what he was doing. He looked at me and he said, very quietly, I don't want to hurt anyone. And then he pointed to his pocket. And that indicated to me there was a gun, like he had stated in his note.\\n(Emphasis added). Deets put money in the bag, including \\\"bait money\\\" that triggered the alarm system. The defendant grabbed the bag and the note and fled from the bank.\\nDeets recognized the bank photograph of the robber but could not identify the defendant in court. However, two other bank employees who were present during the robbery positively identified the defendant as the person who robbed Deets.\\nThe defendant was indicted for bank robbery, use of a firearm in the commission of a robbery, and entering a bank while armed with a deadly weapon. After the Commonwealth presented its case, the defendant moved to strike the evidence on all three charges on the ground that the evidence was insufficient to prove that he was the person who committed the robbery. The trial court overruled the motion with respect to the indictments for bank robbery and use of a firearm in the commission of a robbery but struck the evidence as to the charge of entering a bank with a deadly weapon because the Commonwealth failed to prove \\\"the actual existence of a weapon.\\\" After the defendant presented his evidence, the court convicted him of the remaining two charges.\\nTo obtain a conviction under Code \\u00a7 18.2-53.1, \\\"the Commonwealth must prove that the accused actually had a firearm in his possession and that he used or attempted to use the firearm or displayed the firearm in a threatening manner.\\\" Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994). On appeal, the evidence must be reviewed in the light most favorable to the Commonwealth and must be accorded all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The trial court's judgment will not be disturbed unless it \\\"is plainly wrong or without evidence to support it.\\\" Id.\\nIn Yarborough, the accused approached the victim and stated, \\\"this is a stickup[;] give me all your money.\\\" 247 Va. at 217, 441 S.E.2d at 343. The victim testified that the accused had both of his hands in his pockets as he approached and that \\\"[s]he saw 'something protruding . from his right hand pocket of his jacket,' and she 'thought [there] was a gun in his pocket.' \\\" Id. On appeal, the Supreme Court held that \\\"the fact that [the victim] merely thought or perceived that [the accused] was armed is insufficient to prove that he actually possessed a firearm.\\\" Id. at 219, 441 S.E.2d at 344. The defendant contends that Yarborough is controlling here because the evidence is insufficient to prove that he actually possessed a firearm.\\nIn Sprouse v. Commonwealth, 19 Va.App. 548, 453 S.E.2d 303 (1995), we held that in light of Yarborough a \\\"defendant may not be convicted for the use of a firearm under Code \\u00a7 18.2-53.1 unless the evidence discloses beyond a reasonable doubt that the object used to cause the victim to reasonably believe it was a firearm was, in fact, a firearm.\\\" Id. at 551-52, 453 S.E.2d at 306. Therefore, we held that the evidence was insufficient to sustain a conviction under Code \\u00a7 18.2-53.1 where the Commonwealth conceded at trial that the object Sprouse used during the robbery \\\"was a toy pistol.\\\" Id. at 550, 453 S.E.2d at 305. In Sprouse, we would not permit the fact finder to infer from circumstantial evidence that an object was a firearm, where the Commonwealth conceded that the uncontroverted direct evidence proved that the object was not a firearm.\\nConversely, in Wilson v. Commonwealth, 19 Va.App. 535, 452 S.E.2d 884 (1995), we affirmed a conviction under Code \\u00a7 18.2-53.1 where the victim \\\"stated that she saw [a] gun's brown handle hanging out of [the accused's] jacket pocket during the robbery.\\\" Id. at 537, 452 S.E.2d at 885. Although the gun was not produced at trial, the victim \\\"stated that she knew what guns looked like and she was sure she saw the handle of a gun.\\\" Id.\\nHere, Noni Deets testified that the note the defendant gave her stated that he had a \\\"gun.\\\"\\nAnd then he pointed to his pocket. And that indicated to me there was a gun, like he had stated in his note.\\nAn out-of-court statement by the defendant that admits or acknowledges a fact or facts tending to prove guilt is admissible in evidence against the defendant. See Caminade v. Commonwealth, 230 Va. 505, 510, 338 S.E.2d 846, 849 (1986); Alatishe v. Commonwealth, 12 Va.App. 376, 378, 404 S.E.2d 81, 82 (1991). Thus, the evidence in this case, unlike the evidence in Yarborough, consists of more than the victim's mere belief or perception that the defendant had a gun. Here, the defendant's out-of-court statement admitted the existence of a \\\"gun.\\\" The circumstances here are distinguishable from those in Sprouse, where the Commonwealth con ceded at trial that Sprouse used a toy pistol. The only evidence that refutes the defendant's admission that he possessed a firearm is his general denial, which the trial court rejected.\\nThe record reveals that the defendant gave Deets a note stating that he had a \\\"gun,\\\" pointed to his pocket and said that he did not want to hurt anyone. This evidence is sufficient to prove beyond a reasonable doubt that the defendant actually possessed a firearm and used it in a threatening manner. Accordingly, we affirm the defendant's conviction under Code \\u00a7 18.2-53.1.\\nAffirmed,.\\n. On its face, the trial court's striking the evidence on the foregoing ground appears to be inconsistent with the defendant's conviction for the use of a firearm in the commission of robbery. Although it is well established that in a jury trial, the defendant cannot attack a conviction on the ground that it is inconsistent with a verdict of acquittal on a related charge, United States v. Powell, 469 U.S. 57, 63, 105 S.Ct. 471, 475-76, 83 L.Ed.2d 461 (1984); Sullivan v. Commonwealth, 214 Va. 679, 679-80, 204 S.E.2d 264, 265 (1974), no Virginia case has addressed inconsistent verdicts in a bench trial. Other jurisdictions, however, have held that the considerations that may justify inconsistent jury verdicts do not apply in a bench trial. See, e.g., United States v. Maybury, 274 F.2d 899, 903 (2d Cir.1960); Haynesworth v. United States, 473 A.2d 366, 368 (D.C.1984); Shell v. State, 307 Md. 46, 512 A.2d 358, 363 (1986). We are unwilling to fully address the issue in the context of the present case; it has not been briefed or argued by the parties. Nevertheless, assuming for purposes of this appeal that inconsistent verdicts in a bench trial are grounds for reversal in Virginia, we hold that the defendant's conviction for use of a firearm in the commission of robbery is not inconsistent with the dismissal of the charge for entering a bank while armed with a deadly weapon.\\nThe elements necessary to prove the existence of a \\\"firearm\\\" under Code \\u00a7 18.2-53.1 are not necessarily identical to those required to establish the existence of a \\\"deadly weapon\\\" under Code \\u00a7 18.2-93. Compare Holloman v. Commonwealth, 221 Va. 196, 197-99, 269 S.E.2d 356, 357-58 (1980) (holding that a spring-operated BB gun is a firearm for purposes of Code \\u00a7 18.2-53.1) with Cox v. Commonwealth, 218 Va. 689, 690, 240 S.E.2d 524, 525 (1978) (holding that a pistol that was \\\"capable of firing live ammunition \\\" was a deadly weapon even though it was actually \\\"loaded with wooden bullets\\\") (emphasis added). Here the trial court expressly noted that the Commonwealth had to prove that the defendant entered the bank while armed \\\"with a deadly weapon\\\" and \\\"struck the firearms in the bank [charge] because the specific firearm had not been prove[d].\\\" (Emphasis added). These statements indicate that the court found the evidence was insufficient to prove the existence of a deadly weapon because the Commonwealth did not show the specific type of firearm the defendant allegedly possessed. Therefore, in dismissing the charge for entering a bank while armed with a deadly weapon, the trial court did not necessarily find that the evidence was insufficient to prove the existence of a firearm under Code \\u00a7 18.2-53.1. Cf. Simon v. Commonwealth, 220 Va. 412, 418, 258 S.E.2d 567, 571 (1979) (\\\"Collateral estoppel becomes applicable only when the prior acquittal necessarily resolved the issue now in litigation\\\"); Lee v. Commonwealth, 219 Va. 1108, 1111, 254 S.E.2d 126, 127 (1979) (\\\"[Collateral estoppel does not apply if it appears that the prior judgment could have been grounded 'upon an issue other than that which the defendant seeks to foreclose from consideration' \\\") (quoting Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970)).\\n. Deets testified that the defendant took the note before leaving the bank. Therefore, the note was unavailable at trial and Deets' testimony regarding the contents of the note was admissible. Charles E. Friend, The Law of Evidence in Virginia \\u00a7 16-5, at 646-47 (4th ed. 1993).\"}"
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+"{\"id\": \"2336274\", \"name\": \"Pope v. Transparent Ice Company and Others\", \"name_abbreviation\": \"Pope v. Transparent Ice Co.\", \"decision_date\": \"1895-01-31\", \"docket_number\": \"\", \"first_page\": \"79\", \"last_page\": \"87\", \"citations\": \"91 Va. 79\", \"volume\": \"91\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T21:13:01.626337+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pope v. Transparent Ice Company and Others.\", \"head_matter\": \"Richmond.\\nPope v. Transparent Ice Company and Others.\\nJanuary 31, 1895.\\n1. Application of Payments\\u2014Rights of Surety.\\u2014-Where a debtor makes a payment he has the undisputed right to make such application of it as he sees fit. If he fails to exercise his right, the creditor may then make the application, and if neither makes the application it becomes the ' duty of the court to so apply the payment as a sound discretion may, under the circumstances, dictate. And in the exercise of this discretion the interest of the debtor and the creditor are alone to be considered. Even sureties have no advantage in this particular over others.\\n2. Application of Payments by the Court.\\u2014Where a creditor has two claims against the same debtor, the one secured and the other not, and a payment has been made which neither the debtor nor the creditor has applied, and the court is called upon, in the exercise of its discretion, to make the application, and there is no other fact or circumstance upon which the court can lay hold to guide and direct its discretion, the payment must be appropriated to that debt which is least secured.\\nAppeal from a decree of tlie Circuit Court of Roanoke county pronounced at April term, 1894.\\nReversed.\\nThe Transparent Ice Company of Roanoke city purchased a lot in the city of Roanoke on which to erect its plant. It paid part of the purchase money in cash, and gave a deed of trust on the lot to secure certain deferred payments. The deed provided that, in case of sale, if there was a surplus after paying the debt secured and expenses, the surplus should be payable at such time and secured in such manner as the grantor might prescribe, or, upon his failure to give directions, as to the trustee might seem proper. Subsequently, the company purchased machinery of the Eichmond Ice Machine Company, paid part cash, and gave its notes for the deferred payments. The Eichmond company retained the title to the property sold by it, and this was written across the face of the notes given by the Transparent Ice Company. At a later date the Transparent Ice Company gave a deed of trust on its real and personal property to secure the notes due for the deferred payments on the machinery. This deed constituted the second lien on the plant. Several of these notes were renewed once or twice, and curtails were paid on some of them, and the notes themselves transferred to various holders. The appellant became the holder of two of them.\\nDefault having been made in the payment of certain of the notes, the trustees under each of the deeds of trust advertised the property for sale. The Transparent Ice Company thereupon filed its bill in the Circuit Court of Roanoke county against the trustees and the creditors secured to enjoin the sale.\\nThe bill sets forth several grounds for the injunction, but the most material was that the amount of the debts secured was not definitely fixed, and the rights of the respective creditors were not ascertained; that it was very doubtful how the money arising from the sale should be applied; and that creditors did not know their rights, and the property was in danger, from this cause, of being sacrificed. The injunction was awarded.\\nThe subsequent proceedings sufficiently appear in the opinion of the court.\\nJohn Dunlop, for the appellant.\\nJames Caskie, and Scott & Staples, for the appellees.\\nThe doctrine of the application of payments does not apply to this case for two reasons:\\n1. The doctrine is never invoked for the application of pay ments yet to be made of funds on hand; but only for the application of payments already made and not applied. Lingle v. Cook, 32 Gratt. 264. Here the fund is in hand under a judicial sale, there has been no application, and the debtor has had no opportunity to give his direction; but the court is asked to make an application.\\n2. The application was directed by the deed of trust when it was executed. Both notes were equally secured by the deed of trust. If this is an- express direction it must control; if there is no express direction, then the case is controlled by sec. 2442 of the Code, which declares that where the deed creates no priority, the proceeds shall be applied pro rata among all the debts secured.\\nLet it be admitted, however, for the sake of argument, that the doctrine of the application of payments applies to this case, and that all the contentions of the appellees heretofore made are untenable; ner ertheless, there can be no error in the decree of the court below of which the appellant can complain.\\nIf there be nothing in the case but the question of the order of the maturity of the notes, the rule as settled in Virginia is that the payments should be applied to the notes in the order of their maturity. In the case of Ross\\u2019 Ex\\u2019r v. McLauglan\\u2019s Adm\\u2019r and others, reported in 1 Gratt. 86, it was held that \\u201ca debtor by four bonds payable at successive periods, makes payments to his creditor, which, upon a settlement after the death of the debtor, are ascertained to amount to more than is sufficient to discharge the first bond. The creditor will not be permitted to apply the amount remaining after discharging the first bond as a credit upon the fourth; but the court will apply it to the second bond in relief of a party bound as surety for the amount of the second bon.\\\"\", \"word_count\": \"2953\", \"char_count\": \"16612\", \"text\": \"Keith, P.,\\ndelivered the opinion of the court.\\nThe Transparent Ice Company conveyed certain property by deed of trust dated February 18, 1891, to J. A. Dupuy, to secure three notes of 'the Richmond Ice Company, for $2,778.06 each, payable at the First National Bank of Roanoke, Va., in four, six, and nine months, respectively, from date, with interest from date. The trust creates no priorities as to these notes, but the note falling due at four months, having been first negotiated, became thereby entitled to priority of payment when the property was subsequently sold upon a decree in this cause. There remained after the payment of this note the sum of $1,132.82. When the property was advertised for sale, the Transparent Ice Company procured an injunction for reasons stated in its bill, and the trustee and creditors under this deed, and certain other prior lien creditors, were made defendants, and such proceedings were had that the property of the plaintiff was sold, and the proceeds proving insufficient to pay all its debts, this controversy arises as to the proper application of a payment upon the two notes secured in the deed of trust, payable at six and nine months. In these two notes the Richmond Ice Company was payee, and afterwards endorsed them to the present holder, the appellant. At maturity, the first note was duly protested, and the liability of\\u00bb the Richmond Ice Company, the endorser, was thereby established. When the second note fell due. the appellant, for some reason, failed to have it protested, and the endorser was thereby discharged. It is contended, upon the part of John Pope, the appellant, that the whole of the sum of $1,132.82 should be appropriated to the unsecured note, while upon the part of the Richmond Ice Company, it is claimed that the whole of that sum should be applied to the note upon which it is bound as endorser. The Circuit Court referred the case to a commissioner, to ascertain the lien; and the commissioner returned a report in which he places the debt held by the appellant, evidenced by the two notes, in the same class, finding that there was no priority between them; and that report was confirmed by the decree of the Circuit Court, which is now sought to be reviewed here.\\nThere are certain undisputed principles of law applicable to the subject of the appropriation of payments, which I shall state without referring to authorities to support them, as they are universally accepted.\\nThe first is where a debtor makes a payment, he has the undisputed right to make such application of it as he sees fit.\\nIf the debtor fails to exercise his right, the creditor may then make the application, and if the power be exercised by neither, it becomes the duty of the court to make it, and in its performance a sound discretion is to be exercised. It is said that the interest of the debtor and the creditor only are to be considered, and none others have any right to insist on the mode in which the payments shall be appropriated. In Gordon v. Hobart, 2 Story, 243, Judge Story said that the \\\"right of appropriation of payments was one strictly existing between the original parties; and no third person had any authority to insist upon any appropriation of such money in his own favor.\\\" To the same effect, see Coles v. Withers, 33 Gratt. 186. Even sureties, so much favored by the courts in many respects, enjoy in this particular no advantage over others. The Supreme Court of Connecticut in case of Stamford Bank v. Benedict, 16 Conn. 437, declares that \\\" a surety of a debtor has no voice in the appropriation of payments made by the debtor. ' ' \\\"The debtor and crditor have the sole ' right of controlling the payment, and the doctrine that sureties will be favored in the construction and enforcement of contracts has no application in such a case. To do so would be to defeat the object and end of suretyship, and to hold that the surety might have the money which was paid by the debtor so applied as to leave the creditor a loser notwithstanding his care and vigilance. ' ' And this seems to be the general current of judicial opinion. In the case just cited, the court held that to allow the endorser to direct the application of the money would be inequitable, and that neither the debtor nor creditor having exercised their privilege, the court would apply it to the most precarious debt.\\nThese may be considered cardinal rules by which courts are governed in the exercise of their discretion. Subordinate to these are certain minor rules by which the courts are influenced when neither the debtor nor the creditor have exercised their unquestioned right in making application of the' payment in controversy. As was said by this court in the case of Chapman v. Commonwealth, 25 Gratt. 721, 751: \\\"Where there are no other circumstances upon which the court can lay hold, it will apply the payment to the debt oldest in point of time. ' ' As said by the same court in Coles v. Withers, 33 Gratt. 186, 203-4:: \\\"The general rule subject to exceptions is, where there are two debts, the one secured and the other not, the court will apply the payment to the debt for which there is no security, and the reason given is that without such application, the creditor will lose part of his debt. ' ' And the court further says, \\\"that this rule is sustained by the uniform current of authorities all over the country. \\\" How, in this case, the deed of trust creates no priorities among the debts secured, and the debts, though falling due at different dates, came into existence at one and the same time. The debtor has made no application of the money under the control of the court, nor does it appear that it has the slightest interest in the disposition which the court may make of this question. Its only interest is to see that its property, or the proceeds of it, is applied in accordance with the trust which it created upon it, and it is one and the same thing to the Transparent Ice Company, whether the wdiole of this disputed sum shall be appropriated to the note due in six months, or to the one due in nine months, or shall be equally divided between them as was clone by the decree appealed from. ISTor does it appear that the creditor, the appellant here, has exercised,.or that he has been in a position to exercise the right of appropriation which devolves upon him, his debtor having failed to give any direction upon the subject. Unlike the debtor, however, he is vitally interested in the 'decision of the question. Upon the note due at six months, as has been before stated, he holds the Richmond Ice Company as endorser, while the note due at nine months is wholly unsecured, except by the deed of trust before referred to. The case then is before us stripped of all the circumstancs and, facts upon which courts have usually laid hold to aid their discretion in the application of pajcments, where that duty has been imposed upon them by the failure of both debtor and creditor to exercise their confessed rights, save that upon one note there is an endorser, while the other is wholly unsecured except by the deed of trust. It is believed that this question has not hitherto been thus presented in this court. In all the reported cases there has been some other fact, sufficient to influence the decision. Elsewhere, however, it seems to have arisen frequently.\\nThere is some diversity of authority, as courts have inclined to the common law rule that the application was to be made, where not otherwise directed, in the interest of the creditor, or to the rule of the civil law, that, under such circumstances, regard was to be had primarily to the interest of the debtor.\\nThe great weight of authority seems to be that in such a case as that now under consideration, where the court has no peculiar fact to aid its discretion, the application' must be made to that debt which is least secured, or in other words, in the interest of the creditor; and this seems to have been the principle of Chapman v. Commonwealth, 25 Gratt. 121, where it was applied to the oldest debt, and the law as recognized in Coles v. Withers, where it is said that, in such a case, it should be applied to the least secured or most precarious debt.\\nJudge Gibson says, in Harker v. Conrad, 12 Serg. and R. 301, 305: \\\"Where neither party has exercised it, the lanv nevertheless presumes, in ordinary cases, that the debtor intended to pay in the way which at the time was the most to his advantage, ' ' but here, as we have seen, the debtor has made no application, and can have no sort of interest in the decision of the question by the court.\\\" \\\"Where, however,\\\" Judge Gibson goes on to say, \\\"the interest of a debtor could not be promoted by any particular appropriation, there is no ground for a presumption of any intention on his part, and the law then raises a presumption, for .the same reason, that the payment was actually received in the way that was most to the advantage of the creditor. ' '\\nIn the case of Mathews v. Switzler, 46 Mo. 301, 303, the court says: \\\"The substantial question here is: shall the original creditor, who holds all the notes, have the full benefit of all the securities which he took for his own protection? He was not satisfied with the security of the deed of trust, and therefore required an additional name upon one of the notes. -x- In. the meantime he has surrendered no security, and done nothing to prejudice the right of the surety upon the note.\\\" There it seems that, so far from the court applying the payment so as to exonerate the surety, the fact that one note was made secure by the addition of a surety's name was * the reason which determined the court to apply the payment to the unsecured debt. Where a creditor has two claims against the same debtor, the one secured and the other not, upon a payment being made the court will apply it to the debt for which no security was taken. And Munger on Application of Payments lays it down as law that the holder of different notes, secured by deed of trust, may apply the entire proceeds of the sale under the deed to the payment of those last maturing, and will not be prevented thereby, either in law or equity, from obtaining judgment against a surety on the note first falling due, aud which, was the only note endorsed. And the same conclusion is stated in 18 Amer. and Eng. Ency. Law, page 251.\\nI am therefore constrained to the conclusion that, in accordance with the preponderance of decisions in other states, and the law as recognized by this court in the case of Coles v. Withers, 33 Gratt. 186; and Smith v. Lloyd, 11 Leigh, 512, where neither the debtor nor creditor has applied the payment, and the court is called upon in the exercise of its discretion to make an application of it, and there is no other fact or circumstance upon which the court can lay hold to guide and direct its discretion, the payment must be appropriated to that debt which is least secured, and that, therefore, the Circuit Court of Roanoke county should' have appropriated the whole of the sum in dispute to the note \\u00f3f the Transparent Ice Company falling due at nine months from the date thereof, instead of distributing the money between the two notes, and for this error the decree complained of must be reversed.\\nReversed.\"}"
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+"{\"id\": \"2338399\", \"name\": \"Miller v. Miller's Adm'r and Others\", \"name_abbreviation\": \"Miller v. Miller's Adm'r\", \"decision_date\": \"1896-01-23\", \"docket_number\": \"\", \"first_page\": \"510\", \"last_page\": \"516\", \"citations\": \"92 Va. 510\", \"volume\": \"92\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:09:51.400280+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Miller v. Miller\\u2019s Adm\\u2019r and Others.\", \"head_matter\": \"Richmond.\\nMiller v. Miller\\u2019s Adm\\u2019r and Others.\\nJanuary 23, 1896.\\n1. Equitable Separate Estate\\u2014No Particular Words to Create\\u2014\\u201c To Her Only Use and Behoof\\u201d Sufficient\\u2014Trustee Not Necessary.\\u2014No particular form of words is necessary to create a separate estate in a married woman. It is sufficient if the instrument, in any way, shows that it was intended for the wife to have the property to her sole and separate use. And though express trustees are usual in equitable separate estates, they are not necessary. If the property be given directly to the wife by apt words to create a separate estate, equity will treat the husband as trustee as to such property. A conveyance of land to two persons \\u201c to their only use and behoof,\\u201d one of whom is a married woman, vests in the' married woman a separate estate in her share of the land.\\n2. Equitable Separate Estate\\u2014Liability for Debts\\u2014Evidence of Intention to Charge.\\u2014The equitable separate estate in fee in lands, which a married woman holds free from any restraint on her powers of alienation, is liable for the payment of debts contracted on the faith and credit of it, which liability a court of equity will enforce during the coverture, or after its termination; and, if the rents and profits of such real estate will not pay such debts in a reasonable time, the land itself may be sold for that purpose. The execution of a bond, note, or other writing for the payment of money by such married woman, whether as principal or surety, is sufficient evidence of an intention to charge such separate estate.\\n3. Equitable Separate Estate\\u2014Liability for Open Accounts.\\u2014Where husband and wife occupy, as a home, the separate equitable estate in fee of the wife, and husband and wife employ laborers to cultivate the land for her benefit, which cultivation is necessary for her support and the enjoyment of the \\u25a0 estate, the separate estate is liable for such services, though only evidenced by open account.\\n4. Evidence\\u2014Exception to Incompetency of Witness\\u2014Cross-Examination.\\u2014 If, after an exception has been taken to the competency of a witness, the exceptor cross-examines him as to matters not brought out on the examination in chief, against the objection of the party calling him, the exceptor thereby waives his exception to the competency of the witness and makes him his own witness.\\nAppeal from a decree of the Circuit Court of Culpeper county, pronounced March 26, 1892, wherein the appellant was the complainant, and the appellees were the defendants.\\nReversed.\\nThis was a suit in chancery brought by the appellant for the purpose of having the estates of his father and mother, John A. Miller and Sarah J. Miller, settled under the direction of the court, and especially for the purpose of having an account of the debts and their priorities, and subjecting their real estate to the payment of said debts. The complainant sets forth in his bill an indebtedness to him, evidenced by several bonds of his father and mother, exhibited with the bill, and also an indebtedness of his mother to him of $360 for three years\\u2019 services on her farm. He charges that his mother owned an equitable separate estate in a tract of seventy-five or eighty acres of land, and also a small personal estate. The chief contention related to the liability of the land for the payment of the complainant\\u2019s debt. The land was acquired by his mother by a deed from her father, dated April 20, 1867, by which he conveyed to his daughters, Maria E. White and Sarah J. Miller (then a married woman), a tract of land in Culpeper county, \\u201cto have and to hold the hereby-granted premises unto the said Sarah J. Miller and Maria E. White forever, to their only use and behoof.\\u201d The land was after-wards divided between these daughters, and each thereafter held her share in severalty.\\nThe evidence showed that Sarah J. Miller and her husband lived on the land thus acquired, as a home, and used and enjoyed it, by having it cultivated and taking the proceeds for their support. A part of the time the land was cultivated on shares, but for several years the complainant lived with his parents on the land, and cultivated it for $120 a year. The complainant, in his deposition, states : \\u201c My father and mother agreed jointly to pay me $120 a year.\\u201d\\nBixey c& Barbour, for the appellant.\\nHill & Jeffries and Jeffries & White, for the appellees.\", \"word_count\": \"2365\", \"char_count\": \"13281\", \"text\": \"Riely, J.,\\ndelivered the opinion of the court.\\nThe first question to be disposed of is whether or not Sarah J. Miller took a separate estate in the land conveyed to her jointly with Maria E. White by the deed from Carter B. Cropp and his wife, to their only use and behoof.\\nbTo particular form of words is necessary in order to vest property in a married woman for her separate use, and thus create a separate estate. Whenever it appears, either from the language used, or from the nature of the transaction, or from the whole context of the instrument giving the estate, that it was intended for the wife to have the property to her sole and separate use, that intention will prevail; but such intention must be clear and unequivocal, for the law will not lightly deprive the husband of his legal rights. Nixon v. Rose, Trustee, 12 Gratt. 425, 428; Burks' \\\" Separate Estates,\\\" p. 12; 1 Minor's Insts. 317; Bishop on Law of Married Women, sec. 828; Pomeroy's'Eq. J., sec. 1102, and 1 Leading Cases in Equity, Pt. II., p. 732.\\nCertain words or expressions, where a contrary intention is not disclosed by other parts of the instrument conferring the' estate, have been held per se to manifest an intention to create an estate for the separate nse of the wife. And among the words and phrases so construed are the following : \\\" For her sole use and benefit \\\" ; \\\" for her own and sole use \\\"; \\u00a3i for her own nse and benefit, independent of any other person \\\" ; \\u00a3\\u00a3 for her sole and only nse,\\\" and \\u00a3\\u00a3 only for the use and benefit of the wife or her heirs.\\\" Nixon v. Rose, Trustee, supra; 1 Minor's Institutes 317, 318; Schouler on Husband and Wife, sec. 192; Bishop on .the Law of Married Women, sec. 828, and 1 Leading Oases in Equity, Part II., pp. 733-31.\\nIn the case at bar the gift is simply \\\" to their [her] only use and behoof.\\\" These words manifest at least as strong an intention to exclude the rights of the husband as some of those which, as we have seen, have been held per se to create an estate for the separate use. It is difficult to perceive any substantial difference between the words \\u00a3\\u00a3 to her only use and behoof\\\" and the words \\\" for her sole use and benefit,\\\" or the words \\\" for her own and sole use,\\\" or the words \\\" only for the use and benefit.\\\" The deed is a very simple one, and contains nothing whatever besides the words \\\" to their only use and behoof\\\" to explain or qualify the gift. It being made to her while a married woman, and expressed to be for \\\" her only use and behoof,\\\" we are of opinion that the words annexed to the gift clearly manifest an intention to exclude the rights of the husband, and created in her an equitable separate estate in fee.\\nThe deed conveyed the land directly to her, and not to a trustee for her use and benefit. This, however, makes no difference in the result, for it is a fundamental maxim of equity that a trust shall never fail for want of a trustee. \\u00a3\\u00a3Although the wife's separate estate is an equitable one,\\\" says Mr. Pomeroy, \\\" being in conception of equity a trust estate with the legal and equitable titles separated ; and although in strict theory, and in every regular form of settlement, the legal title should be conveyed to or held by express trustees, yet it is well settled, whatever doubts may have once existed, that the interposition of actual trustees is unnecessary.\\\" 3 Pom. Equity Jur., sec. 1100. If the property is given, by sufficient and apt words to express the intention, directly to the wife, for her sole and separate use, without the intervention of trustees, equity will carry the intention into effect, and treat the property as her separate estate, by declaring and holding the husband himself as trustee for her with respect to such property. 1 Leading Cases in Equity, Pt. II., p. 689; 1 Minor's Insts. 319; Story's Eq. Jur., sec. 1380, and Jones v. Clifton, 101 U. S. 225, 229.\\nInasmuch as Mrs. Miller took under the deed from her father an equitable separate estate in fee in her share of the land, free from the imposition of any restraint on her power of alienation, either expressly or impliedly, she had the power to make it liable for her contracts, w'hich liability may be enforced in a court of equity. The extent of the liability of the separate estate for the general engagements of the married woman, and the manner of its enforcement, were fully\\n\\u2022 considered in the case of Price, by, &c. v. Planters National Bank et als., decided at the present term, ante, p. 468, which -renders any extended discussion of the subject here unnecessary. It was there held that the liability will be enforced, as -well after the termination of the coverture as during its existence ; and that where the separate estate consists of realty,\\n\\u2022 only the rents and profits thereof will be subjected to the pay-ment of the debts, unless these will never discharge the debts, \\u2022or will not do so within a reasonable time, in which case the land itself may be sold.\\nUpon a review of the evidence, we are of opinion that there is no error in the decree of the Circuit Court establishing the debts reported by Commissioner Grimsley to be a charge in favor of the appellant upon the separate estate of Sarah J. Miller, deceased. The report of the commissioner is sustained by the evidence, whether the testimony of the appellant be admitted or rejected.\\nThe debts are in part evidenced by her bonds ; and it has been held time and again by this court that the execution of a bond, note, or other writing for the payment of money by a married -woman having an equitable separate estate, -whether as principal or surety, was sufficient evidence of an intention to charge the separate estate, without any proof of a positive intention to do so, or without even a reference to such estate contained in the writing. In no other way could the instrument be made effectual, and it could not be presumed that she intended to do a vain thing in executing it. Burnett and Wife v. Hawpe's Ex'or, 25 Gratt. 481; Darnall and Wife v. Smith's Adm'r, 26 Gratt. 878; Leake, Trustee, v. Benson, 29 Gratt. 153 ; Harshberger's Adm'r v. Alger and Wife, 31 Gratt. 52 ; Frank & Adler v. Lilienfeld et als., 33 Gratt. 377, and Bain & Bro. v. Buff's Adm'r, 76 Va. 371.\\nThe rest of the debts are open accounts for wages due for labor performed in the cultivation of the land which was her separate estate. The land was occupied by herself and her husband, who seems to have been an invalid and the owner of only a small amount of personal property, as their home. Its cultivation was for her benefit, and necessary for her support and the enjoyment of the estate. And if the testimony of the appellant is read, as we think it should be, it is clearly shown that he was employed, at the prices charged, by Sarah J. Miller and her husband, and that the services were duly rendered.\\nHe was asked but a single question on his examination-in-chief, and only examined as to the statement made by the witness, E. C. Wood, that he (the appellant) had told him (Wood) that he was working for a part of the crop, which statement he wholly denied. Upon this matter he was not cross-examined at all, but the counsel for the appellees com menced at once to subject him to a most rigid and protracted examination upon all the matters of fact involved in the suit. This was done, too, after exception by the counsel for the appellant, and notice, that if the appellant were cross-examined as to other matters than those to which the examination-in-chief related, he must be treated as a witness for the appellees, and the exception as to his competency waived. In the case of the Philadelphia and Trenton R. R. Co. v. Siimpson, 14 Peters 448, 461, it was said^ by Judge Story, in delivering the opinion of the court, \\\" that a party has no right to cross-examine any witness, except as to facts and circumstances connected with the matter stated in his direct examination. If he wishes to examine him as to other matters, he must do so by making the witness his own, and calling him, as such, in the subsequent progress of the cause,\\\" which was practically what was done in this case. And to the same effect is 1 Greenleaf on Evidence, sec. 445.\\nThe course of cross-examination pursued was, in effect, to make the appellant the witness of the appellees, and to waive their exception as to his competency.\\nWe find no error in the decree of the Circuit Court, except its refusal to subject the separate estate of Sarah J. Miller to the payment of the debts due to the appellant, and which it established against her estate. Por this error its decree, to that extent, must be reversed, and the cause remanded to the Circuit Court, with direction to cause the land to be rented for the payment of the debts until they are discharged, or to sell the same for that purpose, if the rents and profits of the land will not discharge the debts, or do so within a reasonable time.\\nReversed.\"}"
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+"{\"id\": \"2412672\", \"name\": \"Harper Green Langford v. Commonwealth\", \"name_abbreviation\": \"Langford v. Commonwealth\", \"decision_date\": \"1930-06-12\", \"docket_number\": \"\", \"first_page\": \"879\", \"last_page\": \"889\", \"citations\": \"154 Va. 879\", \"volume\": \"154\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:00:10.338408+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harper Green Langford v. Commonwealth.\", \"head_matter\": \"Mytheville.\\nHarper Green Langford v. Commonwealth.\\nJune 12, 1930.\\nAbsent, Prentis, C. J., and Epes, J.\\nThe opinion states the case.\\nO. G. Kendig and N. S. Turnbull, Jr., for the plaintiff in error.\\nJohn R. Saunders, Attorney-General,.Leon M. Bazile and Edwin H. Gibson, Assistant Attorneys-General, and Joel W. Flood, for the Commonwealth.\", \"word_count\": \"2357\", \"char_count\": \"13313\", \"text\": \"Holt, J.,\\ndelivered the opinion of the court.\\nHarper Green Langford, at the July term of the Circuit Court of Charlotte county, was convicted of violating the prohibition law. A jury fixed his punishment at four years confinement in the penitentiary. That verdict was confirmed by the trial court and its judgment is now before us on a writ of error.\\nThe indictment contains two counts. In the first he is charged with the unlawful manufacture of ardent spirits and in the second with the possession without permit of a still. Each of these counts contains a^ charge of previous conviction.\\nThe defendant moved to quash on the ground that his first conviction was on a blanket indictment; that the record of this conviction does not show the particular offense upon which it rests; that the law only imposes additional and different penalties for certain violations of the prohibition law when committed a second time, and that for these reasons it. is not possible to say, looking to the record alone, that the rules governing second conviction apply at all to the instant case. Keeney v. Commonwealth, 147 Va. 678, 137 S. E. 478.\\nBy statute in Virginia any person who unlawfully manufactures distilled ardent spirits is guilty of a felony [Code, section 4675(5)]; and in the same section it is declared that any person who shall violate other provisions of designated sections shall be deemed guilty of a misdemeanor for the first offense and of a felony for any subsequent offense committed after the first conviction; and as an exception to the general rule thus stated it was futher provided that the offense of drinking, giving away or receiving ardent spirits should not be deemed a felony in any case, subject to certain further exceptions, and that the purchasing or having in possession of ardent spirits for personal use should in no case be deemed, a felony, all of which makes plain the necessity for setting out in detail the offense, for which the first conviction was had.\\nA prior conviction does not change or increase the penalty for manufacturing, which is a felony in itself, and since this is true there was no occasion for putting a charge of second conviction in the first count, and it should not have been done, but no harm followed because it properly appeared in the second count and in that way and in orderly procedure came to th\\u00e9 jury's attention.\\nWhen we come to the second count the situation changes. The possession of a still is a misdemeanor, Code sections 4675(6), 4675(20), punishable by a fine of not less than $50.00 nor more than $500.00 and by confinement in jail not less than one nor more than six months, and in this subsection 6 it is provided that the penalty for any subsequent offense committed after the first conviction which is not declared to be a felony, shall be by a fine not exceeding $500.00 and by imprisonment in jail for not less than three nor more than twelve months. It was, therefore, proper in the second count to set out the first conviction which raised the offense from a simple to an aggravated misdemeanor carrying heavier penalties. The additional penalties apply to all second offenses not made felonies by the statute and apply in the instant case. When we are dealing with first convictions relied upon to support a charge of felony we find that there are certain exceptions; that not all first convictions will support such a charge and, therefore, that their character should be set out, but when we come to first convictions which aggravate the second offense and enlarge its punishment, as a misdemeanor only, we find that any previous conviction is sufficient unless it be one which makes the second offense a felony, and for that reason its details are not necessary. A very satisfactory discussion of the subject';of second conviction by Judge Chichester will be found in. Keeney v. Commonwealth, 147 Va. 678, 137 S. E. 478.\\nThe motion to quash was general and since the-second count was good,- it should have been rejected even though the first contained prejudicial error. State v. Cartright, 20 W. Va. 32; Commonwealth v. Litton, 6 Gratt. (47 Va.) 691; 31 Corpus Juris, page 812.\\nSince no objection can be successfully urged against the second count, it follows that the court committed no error in permitting the introduction of a record showing a first conviction, although that record does not show the crime in detail upon which, it rests. If the first conviction did not make the second offense a felony, it increased its gravity even, though it remained a misdemeanor, and so this evidence was competent.\\nDoes the evidence sufficiently support the verdict? The trial court thought it did and confirmed it by judgment. By statute it is provided, Code section 6363, that: \\\"The judgment of the trial court shall not be set aside unless it appears from the evidence that such judgment is plainly wrong, or without evidence to support it.\\\" Davis v. Commonwealth, 132 Va. 527, 110 S. E. 252; Nelson v. Commonwealth, 153 Va. 909, 150 S. E. 407. Of course the evidence relied upon must not strain the credulity of the court; in short, it must fairly sustain the verdict. Flannagan v. Northwestern Mutual Life Insurance Co., 152 Va. 38, 146 S. E. 353; Meade v. Saunders, 151 Va. 636, 144 S. E. 711.\\nOn the day preceding the arrest, S. A. Jackson, a deputy sheriff, with a companion, went to see R. A. Langford about a matter of business not connected with this prosecution. Upon reaching Mr. Langford's home they were told that he was not there, but had gone with one A. J. Camp to the home of R. G. Lang-ford, father of the defendant. Jackson then set out for the R. G. Langford home, but after traveling about six miles his car mired and he had to get out and walk. Not being familiar with that locality he followed a fresh car track which led him down a plantation road to its intersection with another plantation road and then into an obscure side road, down which he came upon the car he was following. It stood by a ford across a branch and by it stood a young girl who seemed much excited. He asked to be directed to the Langford home and was told that he should have turned to the right instead of to the left at the plantation road. Jackson then started back to his car. When he had gone about sixty yards over a hill and out of sight of the ear in the branch, he heard its horn blow and turned back. When he again came in sight the small girl was still standing by it. Coming down the branch and about twenty-five steps away was an older girl, and coming up the branch and about forty yards down the stream was the accused, who when first seen was about sixty-eight yards from where the still was afterwards found downstream. About the time that Jackson first saw him he \\\"ducked down out of sight\\\" and came to his car from a direction different from that of his first approach. When Langford reached his automobile he began to pour water on the front wheel and told Jackson that he had come there to wash his ear. Jackson left and Langford soon afterwards overtook and passed him. His car was then still unwashed.\\nThe accused, testifying as to what occurred on this occasion, said that he took his car to wash it and when Jackson came was away because of some call of nature. He further denied that when seen by Jackson he was coming up the branch from the direction of this distillery. Neither of the girls was called as witnesses,\\nHe did not, as a matter of fact, wash his car and so the jury was warranted in believing that he did not take it to this branch for that purpose and that on a material point his testimony did not conform to the facts.\\nOn the day following, Jackson, another deputy sheriff, and two prohibition officers went back to this ford. Downstream 128 yards, not on Langford's land but near it, they found a still being operated by A. J. Camp. Camp ran but was captured after a chase and about a mile away. The party then returned to the still site to await possible developments. After half an hour the defendant, leading a pair of mules, came down the road, tied them to a tree a little over 100 yards away, and started directly to the still itself. After going a short distance he whistled to signal his approach and one of the deputy sheriffs answered. With confidence so fortified, he continued to advance until he found himself under arrest.\\nSubstantially the same account of what took place is given by the other officers. Mr. Robey, a deputy sheriff, said that while Camp was under arrest, and when the accused was coming towards the still, Camp raised his hands and tried to motion him back, and persisted in talking so loud when Langford was approaching that he threatened to shoot him unless he kept quiet.\\nCamp, himself, lived several miles from, where this still was and had left his automobile at Langford's home on the day of the arrest. His evidence is that he took his ear to Langford's to get a connecting rod for it and walked from there to the distillery.\\nThe accused, when arrested, made no resistance, disclaimed all knowledge of the still, and said that he was then engaged in hauling ties in that neighborhood for his father. In further explanation of his conduct he stated that he saw smoke down in the woods and impelled by curiosity came to find out about it, and furthermore, suspecting the possibilities of a still, he whistled as he came to prevent being shot by some suspicious and nervous operator. We think it may be taken as true that the accused was, or had been, hauling ties for his father, but this explanation of his conduct is not entirely satisfactory and manifestly did not satisfy the jury. We find him on the day preceding his arrest coming from the direction of the still which was only sixty-eight yards away, and we have seen that he accounted for his presence there by statements which appeared not to conform to the facts. The next day he turned up at this same out-of-the-way place, led, as he said, by curiosity and because he saw some smoke. It is not reasonable to believe that the fire had been replenished from the time Camp ran until Langford was arrested, or for about an hour, by that time it probably gave off little or no smoke; nor is it likely 1hat Camp would have come seven or eight miles from home to locate a still where ties were being cut and hauled unless there was some understanding with the lumbermen. He seems to have made the Langford home his headquarters; he was there upon the day preceding his arrest; his automobile was there on the day he was arrested and by his evidence he walked from there to the still. When the officers stood concealed around it, and when Langford was approaching, Camp in vain gave him the grand hailing sign of distress, and made so much noise that an officer had to threaten to shoot him to keep him quiet. None of these incidents are sufficent to establish guilt, but taken together they are sufficient to sustain the jury's verdict. Of course circumstancial evidence should be looked upon with caution, but evidence is seldom sufficient to establish any fact as demonstrated and beyond all doubt. Witnesses sometimes perjure themselves and if too much were required by way of proof the administration of law as a practical proposition would be at an end. Facts which a jury find to be true and which, from the evidence, may be true, must be taken as established.\\nThose found present at a still in operation are presumed to be guilty of manufacturing, Code section 4675(20); Zimmerman v. Commonwealth, 148 Va. 745, 138 S. E. 569. Of course this presumption is rebuttable. When it is overborne it is usually a question for the jury. Langford, at the time of his' arrest,- was-only twenty or twenty-five yards from the still and coming directly towards it.\\nWe think that he was present within the purview of the statute, nor Was it necessary that he should have actually beea present on that particular day. Any day within the twelve months preceding his indictment was sufficient. Widgeon v. Commonwealth, 142 Va. 658, 128 S. E. 459.\\nThe jury did not accept the evidence of the defendant, of his father, or of Camp, and they were not obliged to accept it, even when uneontradieted. Clopton's Case, 109 Va. 813, 63 S. E. 1022; Boggs v. Commonwealth, 153 Va. 828, 149 S. E. 445, and authorities there cited. Camp may have been disinterested, but his conduct does not support that conclusion. He had already been convicted and so was beyond praise or blame. He had tried to protect Langford once and the jury may have believed that he was still anxious to help. The jury heard these witnesses testify. They were not called upon to accept their statements and did not accept them, and their judgment the trial judge has stamped with his approval.\\nThe jury reached the conclusion that the accused was guilty, the trial judge thought they were right, there is evidence to support their judgment, and it must stand affirmed.\\nAffirmed.\\nHudgins, J., dissenting.\"}"
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+"{\"id\": \"251634\", \"name\": \"Ricky Arnez CHRISTIAN v. COMMONWEALTH of Virginia\", \"name_abbreviation\": \"Christian v. Commonwealth\", \"decision_date\": \"2000-11-07\", \"docket_number\": \"Record No. 0558-98-1\", \"first_page\": \"704\", \"last_page\": \"723\", \"citations\": \"33 Va. App. 704\", \"volume\": \"33\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:07:48.898854+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ricky Arnez CHRISTIAN v. COMMONWEALTH of Virginia.\", \"head_matter\": \"536 S.E.2d 477\\nRicky Arnez CHRISTIAN v. COMMONWEALTH of Virginia.\\nRecord No. 0558-98-1.\\nCourt of Appeals of Virginia, Richmond.\\nNov. 7, 2000.\\n(Robert Moody, IV; Timothy S. Fisher; Kinick, Segall, Moody & Lewis; Overman & Cowardin, P.L.C., Newport News, on brief), for appellant.\\nShelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.\\nPresent: FITZPATRICK, C.J., BENTON, COLEMAN, ELDER, BRAY, BUMGARDNER and HUMPHREYS, JJ., and COLE, Senior Judge.\", \"word_count\": \"5418\", \"char_count\": \"33785\", \"text\": \"UPON A REHEARING EN BANC\\nBRAY, Judge.\\nRicky Arnez Christian (defendant) was convicted in a bench trial for possession of cocaine with intent to distribute, a violation of Code \\u00a7 18.2-248, and related firearm offenses. On appeal, he complains that the trial court erroneously refused to suppress evidence seized during an unlawful detention and, additionally, challenges the sufficiency of the evidence to prove the requisite intent to distribute the offending drugs. Finding no error, a panel of this Court affirmed the convictions. Upon rehearing en banc, we, likewise, affirm the trial court.\\nI.\\nUpon review of both a denial of a motion to suppress and a challenge to the sufficiency of the evidence, we consider the record in the light most favorable to the prevailing party below, the Commonwealth in this instance. Bynum v. Commonwealth, 23 Va.App. 412, 414-15, 477 S.E.2d 750, 751-52 (1996).\\nOn the evening of October 4, 1996, officers of the Newport News Police Narcotics Enforcement Unit were conducting a \\\"drug reverse [sting] operation in Fairfield Apartments,\\\" undertaken in response to \\\"a lot of complaints in reference to drug sales in that area,\\\" \\\"a high drug area.\\\" \\\"[V]ice and narcotics\\\" Officer W.L. Stokes acted as \\\"security for two female officers [in \\\"plain clothes\\\"] who . were making sales of imitation cocaine to people who walked up or drove up in the area.\\\" The undercover officers were equipped with hidden communication devices and, following each transaction, notified an \\\"apprehension team,\\\" assembled in the laundromat office of a nearby apartment building, to arrest the purchaser. The office, located \\\"just inside the doorway\\\" of the building, opened directly into a foyer, which also accessed two occupied apartments.\\nIn the midst of the ongoing undercover police activity, at approximately 10:15 p.m., Officer Stokes noticed someone holding a \\\"gun,\\\" walking directly toward the apartment building. Via the communication link, he quickly advised the team that a person was approaching with \\\"a gun in his hand.\\\" Alerted by Stokes, Officer T.G. Lecroy, the team member assigned \\\"to prevent anyone from getting hurt,\\\" observed the individual \\\"come through the door, saw a gun, took the gun from him\\\" and escorted him into the \\\"office area.\\\" Once inside, Lecroy immediately recognized defendant and, aware he was a convicted felon, arrested him for possession of the firearm. A related search of defendant disclosed a plastic bag containing 2.3 grams of cocaine, a pager, and $935, \\\"broken into nine $100 bundles,\\\" with the balance \\\"just loose in his pocket.\\\" No \\\"means of ingesting\\\" the cocaine was found on defendant's person.\\nAfter advising defendant of his Miranda rights, Lecroy \\\"asked . how much cocaine he had started with,\\\" and defendant answered, \\\"a large eight-ball,\\\" \\\"drug . terminology\\\" referencing one-eighth of an ounce of cocaine, approximately 3.5 grams. Upon further inquiry, defendant stated that he obtained the cocaine from \\\"Wooten,\\\" an individual known to Lecroy as \\\"into dealing narcotics.\\\"\\nOfficer M.L. Davenport, an expert in \\\"drug matters,\\\" opined that possession of an \\\"eightball\\\" of cocaine, together with the pager, cash and weapon, was \\\"inconsistent with personal use\\\" of the drug. Davenport explained that a pager provides communication to \\\"persons in the drug trade\\\" and \\\"weapons . a means of protection.\\\" He noted that \\\"large amounts of money\\\" derived from \\\"drug distribution\\\" are oftentimes packaged in \\\"hundred dollar increments\\\" because \\\"[i]t's easier to count.\\\" On cross-examination, Davenport added that users of cocaine will, \\\"in most cases,\\\" carry on their person \\\"some means\\\" of consuming the drug. Questioned further, he approximated the \\\"street value\\\" of an \\\"eightball\\\" at \\\"one fifty to two twenty-five.\\\"\\nDefendant testified that, on the day of arrest, he cashed his weekly \\\"paycheck,\\\" \\\"seven hundred and some dollars, . [and] arranged [his] money,\\\" commingling the funds with $500 already in his possession. \\\"He subsequently purchased \\\"about an eight-ball\\\" of cocaine for personal use and \\\"took [several] hits\\\" in his wife's car before approaching the apartment building. At the time of the offense, defendant was regularly earning $7.71 per hour over a forty-hour workweek, resulting in $251.28 net pay for the period.\\nII.\\nDefendant first complains that he was unlawfully seized by Officer Lecroy, requiring suppression of all evidence subsequently obtained by police. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691-92, 6 L.Ed.2d 1081 (1961).\\n\\\"Ultimate questions of reasonable suspicion and probable cause to make a warrantless . seizure involve issues of both law and fact and are reviewed de novo on appeal.\\\" Glasco v. Commonwealth, 26 Va.App. 763, 770-71, 497 S.E.2d 150, 153 (1998) (citation and internal quotations omitted). However, \\\"[i]n performing such analysis, we are bound by the trial court's findings of historical fact unless 'plainly wrong' or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.\\\" McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citation omitted). \\\"In reviewing a trial court's denial of a motion to suppress, 'the burden is upon appellant to show that this ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.' \\\" Glasco, 26 Va.App. at 770, 497 S.E.2d at 153 (citation omitted).\\nIn resolving defendant's argument, we find it helpful to revisit Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the landmark decision of the Supreme Court of the United States that addressed the Fourth Amendment implications of the detention and pat-down of a citizen by police investigating suspicious conduct. In Terry, Cleveland Police Officer Martin McFadden, a detective with thirty-five years experience, was patrolling the \\\"vicinity . downtown . for shoplifters and pickpockets\\\" when his \\\"attention was attracted by\\\" defendant and a companion \\\"standing on [a] corner.\\\" Id. at 5, 88 S.Ct. at 1871. As McFadden watched, each man in turn repeatedly \\\"walk[ed] . past some stores[,] . paused for a moment and looked in a store window, . walked on ., turned around\\\" and returned to the corner to confer with the other, \\\"looking in the same window\\\" en route. Id. at 6, 88 S.Ct. at 1872. After ten or twelve minutes of such behavior, the two, then joined by a third man, \\\"walked off.\\\" Id.\\nSuspicious that the men were \\\"casing a job, a stick up,\\\" McFadden decided \\\"that the situation was ripe for action,\\\" approached the three, identified himself and \\\"asked for their names.\\\" Id. at 6-7, 88 S.Ct. at 1872. Receiving a \\\" 'mumbled' . 'response' \\\" and fearful \\\" 'they may have a gun[,]' \\\" he \\\"grabbed [Terry], . spun him around ., and patted down the outside of his clothing[,]\\\" discovering a pistol. Id. Terry was then arrested and subsequently convicted of a weapons offense. Id. at 7, 88 S.Ct. at 1872. On appeal, he advanced a Fourth Amendment challenge to the constitutionality of the stop, seizure and search.\\nIn affirming Terry's conviction, the Court recognized that \\\"effective crime prevention and detection\\\" often requires \\\"swift action predicated upon the on-the-spot observations\\\" of police. Id. at 20, 22, 88 S.Ct. at 1879, 1880. However, the Court cautioned that, to comport with the \\\"Fourth Amendment's general proscription against unreasonable searches and seizures[,]\\\" police acting in response to such circumstances \\\"must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant . intrusion\\\" upon the protected interests of citizens. Id. at 20-21, 88 S.Ct. at 1879-80. Thus, the dispositive inquiry becomes, \\\"would the facts available to the officer at the moment of the seizure or the search \\\"warrant a man of reasonable caution in the belief that the action taken was appropriate?[,]\\\" an objective test. Id. at 21-22, 88 S.Ct. at 1880 (citation omitted). If so, \\\"a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.\\\" Id. at 22, 88 S.Ct. at 1880.\\nThe \\\"crux\\\" of Terry, however, was not the propriety of McFadden's \\\"steps to investigate . suspicious behavior,\\\" but, rather, the \\\"invasion of Terry's personal security by searching him for weapons in the course of that investigation[,]\\\" an issue related to the more \\\"immediate interest of the police officer in taking steps to assure . that the person . is not armed with a weapon that could . be used against him.\\\" Id. at 23, 88 S.Ct. at 1881. Unwilling to expose police to \\\"unnecessary risks[,]\\\" the Court refused to \\\"blind [itself] to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.\\\" Id. at 23-24, 88 S.Ct. at 1881 (emphasis added). Accordingly, \\\"[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would . be clearly unreasonable to deny . the power to take necessary measures to determine . and to neutralize the threat____\\\"\\nId. at 24, 88 S.Ct. at 1881 (emphasis added).\\nThus, like the objective test for reasonable suspicion, \\\"the issue is whether the reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.\\\" Id. at 27, 88 S.Ct. at 1883 (emphasis added). If so, police may undertake a search and related seizure appropriate to the \\\"concrete factual circumstances of individual cases,\\\" \\\"confined in scope to an intrusion reasonably designed to discover\\\" \\\"hidden instruments\\\" that threaten both police and others. Id. at 29, 88 S.Ct. at 1884.\\nApplying these companion principles to the facts in Terry, the Court noted that McFadden had observed Terry and his companions engage in a pattern of conduct which, though lawful, was \\\"unusual\\\" and reasonably supported a police officer, \\\"experience[d] in the detection of thievery,\\\" in the \\\"hypothesis that these men were contemplating a daylight robbery . likely to involve weapons.\\\" Id. at 23, 28, 88 S.Ct. at 1881, 1883. The Court, therefore, concluded that the circumstances provided sufficient justification for the encounter, seizure and \\\"pat down\\\" of Terry, limited acts \\\"necessary for the protection of (McFadden] and others\\\" in the pursuit of an appropriate investigation. Id. at 30, 88 S.Ct. at 1884.\\nSeveral years after deciding Terry, the Court, in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), again considered the Fourth Amendment implications of an investigatory seizure and search of a citizen. There, Bridgeport Connecticut Police Sergeant John Connolly received a tip, deemed reliable by the Court, that Williams, then seated in a nearby vehicle, was \\\"carrying narcotics and had a gun at his waist.\\\" Id. at 144-45, 92 S.Ct. at 1922. Connolly, alone at 2:15 a.m. on \\\"car patrol duty\\\" in a \\\"high-crime area,\\\" \\\"approached the vehicle to investigate the . report,\\\" \\\"tapped on the car window and asked . Williams[ ] to open the door.\\\" Id. When Williams instead \\\"rolled down the window[,]\\\" Connolly \\\"reached into the car and removed a fully loaded revolver from Williams' waistband.\\\" Id. at 145, 92 S.Ct. at 1923.\\nIn a resulting prosecution for illegal possession of the weapon, Williams challenged the admissibility of the evidence, complaining that it was the fruit of an unlawful search and seizure. Id. In affirming the conviction, the Supreme Court recalled the lessons of Terry, concluding that\\n[t]he Fourth Amendment does not require a policeman . to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.\\nId. at 145-46, 92 S.Ct. at 1923 (citation omitted) (emphasis added).\\nMoreover, the Court again emphasized that police engaged in an \\\"investigatory stop\\\" \\\"may conduct a limited protective search for concealed weapons\\\" whenever justified in the belief that the subject is armed and dangerous. Id. at 146, 92 S.Ct. at 1923. Echoing Terry, the Court reasoned that such intrusion\\nis not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.\\nId. (emphasis added).\\nIn the years following Terry, Williams and their progeny, our Court has frequently cited such decisions with approval, incorporating the attendant principles as familiar guideposts in our jurisprudence. Faithful to the rationale of Terry, we have resolved countless fact-specific \\\"stop and frisk\\\" appeals, consistently instructing that\\n\\\"[tjhere is no 'litmus test' for reasonable suspicion. Each instance of police conduct must be judged for reasonableness in light of the particular circumstances.\\\" \\\"In order to determine what cause is sufficient to authorize police to stop a person, cognizance must be taken of the 'totality of the circumstances \\u2014 the whole picture.' \\\"\\nHarmon v. Commonwealth, 15 Va.App. 440, 445, 425 S.E.2d 77, 79 (1992) (citations omitted). Circumstances we have recognized as relevant in a TerryfWilliams analysis include characteristics of the area surrounding the stop, the time of the stop, the specific conduct of the suspect individual, the character of the offense under suspicion, and the unique perspective of a police officer trained and experienced in the detection of crime. Williams v. Commonwealth, 4 Va.App. 53, 67, 354 S.E.2d 79, 86-87 (1987).\\nHere, police observed defendant suddenly appear, displaying a firearm, late at night, in an area notorious for \\\"drug sales.\\\" Defendant's presence coincided with an ongoing police operation that involved several undercover officers in the sale of imitation illegal drugs, clearly an environment conducive to unlawful conduct and fraught with danger. With weapon in hand, defendant proceeded directly to an apartment building occupied both by police and residents. Confronted with such circumstances, police, experienced in the deadly mix of guns and narcotics and other violent crimes, reasonably suspected criminal activity which posed an immediate threat both to themselves and others, justifying a brief investigatory detention. In undertaking the encounter, Lecroy, the officer responsible for operational safety, was entitled to seize defendant and take control of the weapon, thereby neutralizing an imminent threat in a prudent and measured fashion. Had police ignored the full import of defendant's conduct, although perhaps facially lawful, and a tragedy resulted, the folly of such indifference would have been apparent.\\nWhen, during the course of the stop, defendant was identified as a person then involved in felonious activity, police properly effected his arrest and undertook the disputed search.\\nIII.\\nDefendant next contends that the evidence was insufficient to prove an intention to distribute the cocaine in his possession.\\nThe credibility of a witness, the weight accorded testimony, and the inferences drawn from proven facts are matters to be determined by the fact finder. See Long v. Commonwealth, 8 Va.App. 194, 199, 379 S.E.2d 473, 476 (1989). \\\"Circumstantial evidence may establish the elements of a crime, provided it excludes every reasonable hypothesis of innocence.\\\" Lovelace v. Commonwealth, 27 Va.App. 575, 586, 500 S.E.2d 267, 272 (1998). \\\"Whether a hypothesis of innocence is reasonable is a question of fact and a finding by the trial court is binding on appeal unless plainly wrong.\\\" Id. at 586, 500 S.E.2d at 273 (citation omitted).\\n\\\"[F]or a defendant to be convicted of possession of a controlled substance with the intent to distribute, the Commonwealth must prove that the defendant possessed the controlled substance contemporaneously with his intention to distribute that substance.\\\" Stanley v. Commonwealth, 12 Va.App. 867, 869, 407 S.E.2d 13, 15 (1991) (en banc). \\\"Because direct proof of intent [to distribute drugs] is often impossible, it must be shown by circumstantial evidence.\\\" Servis v. Commonwealth, 6 Va.App. 507, 524, 371 S.E.2d 156, 165 (1988). Such evidence may include the possession of large sums of money, pagers, and firearms, \\\"regularly recognized as factors indicating an intent to distribute.\\\" Glasco, 26 Va.App. at 775, 497 S.E.2d at 156:\\nOfficer Lecroy discovered 2.3 grams of cocaine, together with a pager, $935 \\\"broken down into nine $100 bundles,\\\" and a firearm on defendant's person, an aggregation of circumstances inconsistent with personal use of the drug. Moreover, defendant possessed no paraphernalia necessary to the consumption of cocaine. Although defendant testified that he possessed the drugs for personal use and attributed the cash to wages, the evidence proved otherwise, and \\\"[t]he trial court was entitled to disbelieve [defendant's] explanation and conclude that he lied to conceal his guilt.\\\" Dunbar v. Commonwealth, 29 Va.App. 387, 394, 512 S.E.2d 823, 827 (1999). Such evidence sufficiently established that defendant possessed the cocaine with the requisite intent to distribute.\\nAccordingly, we affirm the convictions.\\nAffirmed.\\n. Asked on cross-examination, \\\"why did you seize this gentleman,\\\" Lecroy responded,\\nWhen we have undercover officers out in the parking lot which are conducting sales of illegal drugs, imitation illegal drugs, my concern is for their safety along with anyone else that I may be working with if I \\u2014 and any other people who may be in the area.\\nWhen I heard that a man had a gun in the middle of a high drug area which \\u2014 which we wouldn't have been there if it wasn't a high drug area, then I'm going to take it from him and find out what his purpose is for being there.\\n. A similar search of the others revealed a second handgun. Id. at 7, 88 S.Ct. at 1872.\\n. The Court expressly noted that Terry's conduct, although \\\"innocent in itself,\\\" became suspicious when \\\"taken together\\\" with other circumstances and \\\"warranted further investigation.\\\" Id. at 22, 88 S.Ct. at 1880 (emphasis added).\\n. Recently, in Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the Court once more reaffirmed Terry, approving an investigatory stop and related \\\"pat-down search\\\" of a citizen pur sued and detained after fleeing at the sight of police. Id. at 122-27, 120 S.Ct. at 675-77. The Court acknowledged \\\"that there are innocent reasons for flight from police,\\\" id. at 125, 120 S.Ct. at 677, but reasoned that \\\"[h]eadlong flight \\u2014 whenever it occurs- \\u2014 is the consummate act of evasion: it is not necessarily indicative of wrongdoing but . certainly suggestive of such.\\\" Id. at 124, 120 S.Ct. at 676. Thus, again, the reasonable suspicion requisite to a Terry stop arose from lawful conduct that assumed a suspicious appearance when viewed with \\\"commonsense judgments and inferences about human behavior.\\\" Id. Doubtless, such investigatory authority clearly imposes the \\\"risk that officers may stop innocent people,\\\" but \\\"Terry accepts the risk,\\\" permitting a \\\"minimal intrusion . allowing [police] to investigate further.\\\" Id. at 126, 120 S.Ct. at 677.\\n. \\\"The relationship between the distribution of controlled substances, . and the possession and use of dangerous weapons is now well recognized.\\\" Logan v. Commonwealth, 19 Va.App. 437, 445, 452 S.E.2d 364, 369 (1994) (en banc).\"}"
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+"{\"id\": \"252510\", \"name\": \"Tyric Javon WILLIAMS v. COMMONWEALTH of Virginia\", \"name_abbreviation\": \"Williams v. Commonwealth\", \"decision_date\": \"2000-11-14\", \"docket_number\": \"Record No. 0792-99-2\", \"first_page\": \"725\", \"last_page\": \"728\", \"citations\": \"33 Va. App. 725\", \"volume\": \"33\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:07:48.898854+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Tyric Javon WILLIAMS v. COMMONWEALTH of Virginia.\", \"head_matter\": \"536 S.E.2d 916\\nTyric Javon WILLIAMS v. COMMONWEALTH of Virginia.\\nRecord No. 0792-99-2.\\nCourt of Appeals of Virginia, Richmond.\\nNov. 14, 2000.\\nAnthony G. Spencer (Morchower, Luxton & Whaley, on briefs), Richmond, for appellant.\\nMarla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General; Shelly R. James, Assistant Attorney General, on brief), for appellee.\\nPresent: BUMGARDNER, FRANK and HUMPHREYS, JJ.\", \"word_count\": \"832\", \"char_count\": \"5165\", \"text\": \"BUMGARDNER, Judge.\\nTyric Javon Williams, a juvenile, pleaded guilty to second degree murder. He contends the trial court lacked jurisdiction to convict him. Concluding the defendant waived the error he now asserts when he pled guilty, we affirm.\\nThe defendant was charged with committing murder in the first degree on April 29, 1998. The juvenile and domestic relations district court found probable cause on July 16, 1998, and a grand jury indicted on August 10, 1998. In February 1999, the Commonwealth recognized the trial court would not have jurisdiction under the ruling in Baker v. Commonwealth, 28 Va.App. 306, 313, 504 S.E.2d 394, 398 (1998), because the defendant's father had not been notified of the preliminary hearing.\\nWhile the Baker case was pending before the Supreme Court, the trial court remanded this case to the juvenile court. It gave the required notice, conducted a new preliminary hearing on February 26, 1999, and certified the case to the circuit court. The grand jury indicted on March 1, 1999, and a jury trial commenced on March 5, 1999. After the Commonwealth presented a part of its evidence, the defendant moved to change his plea. He unconditionally pled guilty to second degree murder pursuant to a plea agreement, agreed that he had thoroughly discussed the plea with his attorney, and acknowledged that he was waiving his right of appeal.\\nThe defendant contends a violation of Code \\u00a7 16.1-277.1 divested the trial court of jurisdiction to convict him. We conclude Code \\u00a7 16.1-277.1 was inapplicable. The defendant was 16 years old and charged with murder. Code \\u00a7 16.1-269.1 limited the juvenile court to conducting a preliminary hearing and certifying the charge to the grand jury. Once the juvenile court found probable cause and certified the charge, it lost jurisdiction.\\nCode \\u00a7 16.1-277.1 applies when the juvenile court has authority to adjudicate the matter or decide whether to transfer it for trial under adult procedures. The statute protects juveniles when held in secure detention, and its remedy is limited to release from detention. In this case, the defendant was transferred to jail after his first preliminary hearing and was no longer held in juvenile detention. Code \\u00a7 16.1-277.1 did not apply while he was in jail.\\nThe indictment cured any error of which the defendant now complains that arose in the juvenile proceedings. \\\"An indictment in the circuit court cures any error or defect in any proceeding held in the juvenile court except with respect to the juvenile's age.\\\" Code \\u00a7 16.1-269.1(E). Moore v. Commonwealth, 259 Va. 405, 410, 527 S.E.2d 415, 418 (2000).\\nFurther, the guilty plea waived any contention that the speedy trial provisions of Code \\u00a7 19.2-243 were violated. Protections granted by Code \\u00a7 19.2-243 may be waived. Stephens v. Commonwealth, 225 Va. 224, 230, 301 S.E.2d 22, 25 (1983); Brooks v. Peyton, 210 Va. 318, 321, 171 S.E.2d 243, 246 (1969); Butts v. Commonwealth, 145 Va. 800, 806, 133 S.E. 764, 766 (1926). A guilty plea waives all objections to non-jurisdictional defects that occurred before the plea. Terry v. Commonwealth, 30 Va.App. 192, 197, 516 S.E.2d 233, 235-36 (1999). (en banc) (violation of right to counsel claim waived by plea); Cardwell v. Commonwealth, 28 Va.App. 563, 566, 507 S.E.2d 625, 627 (1998) (double jeopardy claim barred by plea).\\nAccordingly, we affirm the conviction.\\nAffirmed.\\n. The Court affirmed the decision in Commonwealth v. Baker, 258 Va. 1, 516 S.E.2d 219 (1999).\\n. Code \\u00a7 16.1-277.1 provides, in relevant part:\\nA. When a child is held continuously in secure detention, he shall be released from confinement if there is no adjudicatory or transfer hearing conducted by the court for the matters upon which he was detained within twenty-one days from the date he was first detained.\\nB. If a child is not held in secure detention or is released from same after having been confined, an adjudicatory or transfer hearing on the matters charged in the petition or petitions issued against him shall be conducted within 120 days from the date the petition or petitions are filed.\\n(Emphasis added.)\\n. Code \\u00a7 16.1-269.1(B) provides, in part, that \\\"[t]he juvenile court shall conduct a preliminary hearing whenever a juvenile fourteen years of age or older is charged with murder____\\\" Code \\u00a7 16.1-269.1(D) provides that \\\"[ujpon a finding of probable cause pursuant to a preliminary hearing under subsection B ., the juvenile court shall certify the charge, . to the grand jury. Such certification shall divest the juvenile court of jurisdiction____''\\n. Juveniles are confined in \\\"secure detention\\\" \\\"designed to prevent escape and to restrict the movement and activities of children held in lawful custody.\\\" Code \\u00a7 16.1-228.\"}"
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+"{\"id\": \"278728\", \"name\": \"Robert Charles HOLDEN v. Jena Taetz HOLDEN\", \"name_abbreviation\": \"Holden v. Holden\", \"decision_date\": \"1999-11-16\", \"docket_number\": \"Record No. 2614-98-3\", \"first_page\": \"24\", \"last_page\": \"30\", \"citations\": \"31 Va. App. 24\", \"volume\": \"31\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T17:57:34.184020+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert Charles HOLDEN v. Jena Taetz HOLDEN.\", \"head_matter\": \"520 S.E.2d 842\\nRobert Charles HOLDEN v. Jena Taetz HOLDEN.\\nRecord No. 2614-98-3.\\nCourt of Appeals of Virginia, Salem.\\nNov. 16, 1999.\\nCharles B. Phillips (Philips & Swanson, on brief), Salem, for appellant.\\nFrank K. Friedman (John P. Grove; Woods, Rogers & Hazlegrove, P.L.C., on brief), Roanoke, for appellee.\\nPresent: FITZPATRICK, C.J., and COLEMAN and BUMGARDNER, JJ.\", \"word_count\": \"1646\", \"char_count\": \"10119\", \"text\": \"FITZPATRICK, Chief Judge.\\nIn this domestic appeal, Robert Charles Holden (husband) contends the trial court erroneously classified a parcel of real estate purchased during the marriage. Husband argues that the property was \\\"hybrid property\\\" from which he was entitled to receive $17,000 as his separate property before the net value was divided between the parties. For the following reasons, we reverse the trial court's order and remand for the entry of an order consistent with this opinion.\\nI.\\nWe view the evidence in the light most favorable to wife, the prevailing party below. See Barker v. Barker, 27 Va.App. 519, 528, 500 S.E.2d 240, 244 (1998); Cook v. Cook, 18 Va.App. 726, 731, 446 S.E.2d 894, 896 (1994). So viewed, the evidence established that during the marriage the parties agreed to purchase a parcel of real estate in Bedford County. Husband sold approximately 300 comic books for $17,000 in order to raise funds necessary for the purchase of this property. Hus band testified that these comic books were his separate property acquired prior to the marriage. Additionally, he presented copies of two checks payable to him for the comic books, as well as the bank records of the parties' joint checking account showing $9,000 deposited February 4, 1992, and $8,000 deposited February 14,1992.\\nOn April 18, 1992, the parties withdrew approximately $21,114 from this joint checking account to buy the Bedford County property. Both parties testified that they refinanced the marital residence to provide additional funds for the purchase of the Bedford property and it is uncontested that at least $13,000 in marital funds were used to fund the $30,000 purchase.\\nThe trial court found that husband's contribution from the sale of comic books acquired prior to marriage was transmuted into marital property. The trial court stated:\\nWhile there has been a showing that $17,000 was derived from the sale of comic books that may have been acquired by [husband] prior to the marriage, the Court finds that under 20.107.3(d) (sic) that that property has been commingled by contributing it into the category of marital property both by depositing it in an account with joint marital funds, but then commingling it with other funds that were derived from other sources and ultimately the property which was jointly titled.\\nAccordingly, the trial court concluded that husband had not met his burden to retrace the $17,000 as his separate property-\\nII.\\nA decision regarding equitable distribution rests within the sound discretion of the trial court and will not be disturbed unless it is plainly wrong or without evidence to support it. See McDavid v. McDavid, 19 Va.App. 406, 407-08, 451 S.E.2d 713, 715 (1994) (citing Srinivasan v. Srinivasan, 10 Va.App. 728, 732, 396 S.E.2d 675, 678 (1990)). \\\"Unless it appears from the record that the trial judge has not considered or has misapplied one of the statutory mandates, this Court will not reverse on appeal.\\\" Ellington v. Ellington, 8 Va.App. 48, 56, 378 S.E.2d 626, 630 (1989).\\nAt the time of the equitable distribution hearing, the parties jointly owned a parcel of real estate with an agreed value of $30,000. Husband claimed $17,000 of that $30,000 as his separate, retraceable property.\\nPursuant to the provisions of Code \\u00a7 20-107.3(A)(3), property may be classified as part marital and part separate. Under subsection (e), \\\"when marital property and separate property are commingled into newly acquired property resulting in the loss of identity of the contributing properties, the commingled property shall be deemed transmuted to marital property,\\\" unless the contributed property is retraceable and not a gift. Code \\u00a7 20-107.3(A)(3)(e). We have explained the requirements of tracing under that section:\\nIn order to trace the separate portion of hybrid property, a party must prove that the claimed separate portion is identifiably derived from a separate asset. This process involves two steps: a party must (1) establish the identity of a portion of hybrid property and (2) directly trace that portion to a separate asset.\\nRahbaran v. Rahbaran, 26 Va.App. 195, 208, 494 S.E.2d 135, 141 (1997) (citing Code \\u00a7 20-107.3(A)(3)(d)-(f)). \\\"[T]he party claiming a separate interest in transmuted property bears the burden of proving retraceability.\\\" von Raab v. von Raab, 26 Va.App. 239, 248, 494 S.E.2d 156, 160 (1997).\\nHere, it is uncontroverted that husband deposited $17,-000 of the proceeds from the sale of his separate property, the comic books, in the parties' joint checking account. He concedes that these proceeds were \\\"commingled\\\" with marital funds; the $17,000 was deposited into the joint account two months before the funds were paid out for the land purchase. Husband argues that consistent with the rule in Rahbaran, he sufficiently established \\\"the identity of a portion of hybrid property\\\" (i e., $17,000 from the sale of his comic books) and \\\"directly traee[d] that portion to a separate asset.\\\" Rahbaran, 26 Va.App. at 207, 494 S.E.2d at 141. We agree and hold that husband adequately retraced his contribution of discrete, identifiable funds that were in the account and which were used to purchase the Bedford County property.\\nWe have previously held that where separate property is used for a down payment on property that becomes marital property, the trial court does not abuse its discretion in making an award that restores the down payment to the contributing spouse. See, e.g., Rowe v. Rowe, 24 Va.App. 123, 136, 480 S.E.2d 760, 766 (1997) (holding that husband's evidence that he had invested $82,000 into a new home was sufficient to retrace the property claimed as separate by husband); Pommerenke v. Pommerenke, 7 Va.App. 241, 247-50, 372 S.E.2d 630, 634 (1988) (holding that under the prior Code \\u00a7 20-107.3(A)(3) the \\\"court does not abuse its discretion by making an award that restores the down payment to the contributing spouse, if the court finds that equity dictates such a result\\\").\\nAdditionally, husband was not required to have segregated the $17,000 from all other marital funds in order to claim a separate interest in that amount. See Rahbaran, 26 Va.App. at 207, 494 S.E.2d at 141 (\\\"[TJracing of the separate portion of hybrid property does not require the segregation of the separate portion.\\\"). Because husband commingled separate funds and marital funds in a jointly-owned bank account, which was then used for the purchase of marital property, he was only required to trace those separate funds to the account and to prove that those discrete funds could be identified as being in the account. See id. at 209, 494 S.E.2d at 141-42 (\\\"[S]eparate property does not become untraceable merely because it is mixed with marital property in the same asset. As long as the respective marital and separate contribution to the new asset can be identified, the court can compute the ratio and trace both interests.\\\") (emphasis added) (citing Brett R. Turner, Equitable Distribution of Property 266 n.591 (1994)).\\nThe trial court's conclusion that husband failed to retrace $17,000 in separate property commingled with other marital funds is not supported by the evidence. To the contrary, the record established that $17,000 was an identifiable portion of the value of the hybrid Bedford County property and husband directly traced that portion to a separate asset (ie., proceeds derived from the sale of the comic books). Husband introduced into evidence copies of two checks payable to him for the comic books, as well as the bank records of the parties' joint checking account showing $9,000 and $8,000 deposited on February 4, 1992, and February 14, 1992, respectively. While other deposits and withdrawals occurred within this time period, it is uncontested that the $17,000 deposited to the account from husband's separate property was to be part of the down payment on the Bedford property. Absent the $17,000 deposited into the joint account by husband, the parties would have had insufficient funds to make the withdrawal of $21,114 on April 18, 1992 for the purchase price of the land. We conclude that the $17,000 contributed to acquire the Bedford property was directly traced to the sale of husband's separate property, the comic books, and should have been allocated to husband. Accordingly, we reverse the equitable distribution award and remand for an order consistent with this opinion.\\nReversed and remanded.\\n. Husband also appealed the trial court's award of spousal support. However, he withdrew that assignment of error and spousal support is no longer a subject of this appeal.\\n. Husband also presented evidence that he sold a 1985 track for $4,000 or $5,000, which was applied to the purchase price of the real estate. In this appeal, however, husband does not claim a separate interest in that amount.\\n. We note that wife never contested husband's claim that the comic books sold for $17,000 were his separate property. In addition to husband's testimony that the comic books were acquired prior to the parties' marriage, James Payette, the dealer who purchased the collectibles, testified that they were published in the 1940s and 1950s, which corroborated husband's position that the books were separate property. Therefore, the only question before us is whether husband carried his burden of retraceability under Code \\u00a7 20-107.3(A)(3).\\n. Wife argues for the first time on appeal that husband's contribution of $17,000 to the down payment of the Bedford property constituted a gift, which would result in the loss of identity of the separate property under Code \\u00a7 20-107.2(A)(3)(d)-(e). However, no evidence was presented that husband's contribution was intended as a gift and the trial court never addressed this issue.\"}"
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+"{\"id\": \"337968\", \"name\": \"John Miller v. Marion Armentrout, and Others\", \"name_abbreviation\": \"Miller v. Armentrout\", \"decision_date\": \"1954-06-21\", \"docket_number\": \"Record No. 4189\", \"first_page\": \"32\", \"last_page\": \"38\", \"citations\": \"196 Va. 32\", \"volume\": \"196\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:20:06.045810+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Miller v. Marion Armentrout, and Others.\", \"head_matter\": \"Richmond\\nJohn Miller v. Marion Armentrout, and Others.\\nJune 21, 1954.\\nRecord No. 4189.\\nPresent, All the Justices.\\nThe opinion states the case.\\nHale Collins and John T. Delaney, for the appellant.\\nC. S. Minter, for the appellees.\", \"word_count\": \"1942\", \"char_count\": \"10978\", \"text\": \"Buchanan, J.,\\ndelivered the opinion of the court.\\nThis is a suit in chancery for the partition of a tract of 143 acres of land alleged to have been owned by Fielding P. Sizer at the time of his death in 1895. The bill was filed in 1948 by Marion Armentrout and H. F. Wright. It averred that by his will, copy of which was exhibited with the bill, Sizer devised the land, after the life estate of his wife, to his three daughters, namely, Diana J. Arritt, Martha A. Whiting and Mary M. Lowry, and to his granddaughter, Emma Miller, and that \\\"by successive conveyances\\\" one-half of the one-fourth interest of Diana J. Arritt vested in complainants and the other one-half thereof in Floyd J. Arritt, her son.\\n^ The bill further alleged that the heirs of Mary M. Lowry, without naming any of them, conveyed their one-fourth interest in said land to John D. Bowen, who died after the death of his wife leaving three children who inherited this one-fourth interest, one of whom was Ellen Bowen Miller, the wife of John Miller, the appellant. It was alleged that Ellen Bowen Miller and John Miller lived on the property for some time and then separated, but John Miller remained thereon and now claimed the 143-acre tract by adverse possession; that his possession was not in fact adverse but had been taken and held in the right of his wife. The bill averred that the land could not be divided in kind and prayed for a sale thereof and division of the proceeds.\\nTwo amended bills were filed, the first alleging that in view of the ambiguity of the Sizer will it was possible that the devisees therein took only a life estate with remainder to the heirs of Sizer,, who were made parties defendant. The second amended bill, after reciting that in the first two inadvertently no relief had been asked against John Miller, alleged that Miller's claim constituted a cloud on the title of the real owners; that Miller did not own and never had owned any interest in the land and prayed that his claim be removed as a cloud on the title and that Miller be removed from the property.\\nMiller filed his answer to the bill as amended denying that Sizer or any of the parties to the cause claiming under him had any title to the land, and alleging that in March, 1931, he had taken possession of the land, which was then open and unclaimed, had fenced and improved it, paid the taxes on it and had ever since held it adversely to all claimants and now claimed the fee simple title thereto by adverse possession.\\nDepositions were taken by both sides, those for the complainants attempting to identify the Sizer heirs and to show that Miller's possession of the property was not adverse, and those for Miller attempting to prove that he had complete title by adverse possession.\\nBy the decree appealed from the court held that Miller had failed to acquire title to the land by adverse possession, and that the fee simple title thereto was owned in undivided shares under the will of Fielding P. Sizer, as follows: One-eighth by complainants; one-fourth by John D. Bowen's three children; one-eighth by Floyd J. Arritt; one-fourth by Martha A. Whiting, if living; and one-fourth by Emma Miller, if living. It was decreed that the land was not divisible in kind and it was ordered sold.\\nMiller made several assignments of error to this decree but we find it necessary to consider only the charge that the trial court erred in overruling his motion to dismiss the complainants' bill after the proof was taken. This motion should have been sustained.\\nThere was no proof of complainants' title adequate to give equity jurisdiction of their suit. Code \\u00a7 8-690 provides that tenants in common, joint tenants, and coparceners shall be compellable to make partition, and provides that equity shall have jurisdiction in such cases. The complainants' bill merely alleged that \\\"by successive conveyances, the title to the one-fourth (%) interest of Diana J. Arritt vested in Marion Armentrout and H. F. Wright as to an undivided one-eighth (%).\\\" No copy of any such conveyance was either filed with the bill or introduced in evidence; nor was it attempted to prove that any such conveyance existed. The only evidence touching upon the complainants' claim is the following in the deposition of Armentrout (the other complainant did not testify): On direct examination: \\\"Q. I believe you claim you own an interest in this property? A. Yes, sir. Q. What interest do you claim? A. Suppose to own the Dianah Arritt interest. Q. In other words you and Mr. F. H. Wright jointly own an undivided one-eighth interest? A. Yes, sir. Q. I don't recall whether I have asked you or not. Did you know Floyd J. Arritt? A. No, sir, I did not. Q. Then you and Mr. Wright own the interest that Dianah Arritt owned in the Fielding P. Sizer land? A. Yes, sir.\\\" On cross-examination: \\\"Q. You are claiming here now the interest, whatever interest, might come down through inheritance under the will of Fielding Sizer, is that right? A. Yes, sir.\\\"\\nMiller's answer denied that the complainants have or have ever had any title to the tract of land now in Miller's possession. This denial put the complainants on proof as to their title and their consequent right to invoke the aid of equity to make partition. Elkins v. Hare, 105 W. Va. 307, 142 S. E. 439; Ashworth v. Cole, 180 Va. 108, 21 S. E. (2d) 778. \\\"Undoubtedly the complainant in a partition suit must aver and prove that he occupies such a relationship to the defendant as entitles him to invoke the equity jurisdiction.\\\" Goodman v. Goodman, 124 Va. 579, 582, 98 S. E. 625, 626. An estate in land is conveyed by deed or will. Code \\u00a7 55-2. The question having thus been put in issue, the title of the complainants and their right to partition was not established merely by the testimony of one of the complainants that he and his co-complainant claimed to own or were supposed to own an undivided one-eighth interest in the land. Peatross v. Gray, 181 Va. 847, 27 S. E. (2d) 203.\\nThe complainants' bill should have been dismissed for the further .reason that the proof disclosed a question of title not properly cognizable by equity in a partition suit.\\nBailey v. Johnson, 118 Va. 505, 88 S. E. 62, was a suit for partition in which, after a sale of the property and distribution of the proceeds, persons not original parties filed a petition claiming the land, with the result, as stated in the opinion, \\\"that if the original parties in whose favor the sale for partition was made had any interest at all in the land, they were the sole owners thereof, while per contra, if the parties who filed the petition in question have any interest at all in the land, they are the sole owners.\\\" It was held that \\\"The circuit court was without jurisdiction to determine in this cause the question of title between these two wholly distinct and hostile claims.\\\" 118 Va. at pp. 507-8, 88 S. E. at pp. 63-4.\\nThat case was decided in 1916 when the statute in effect was \\u00a7 2562 of Pollard's Code, 1904, permitting courts of equity in partition suits to \\\"take cognizance of all questions of law affecting the legal title that may arise in any proceedings, as well between tenants in common, joint tenants, and coparceners as others.\\\" In the 1919 revision, Code 1919, \\u00a7 5279, the words \\\"as others\\\" were omitted and the statute made to read as it now does in the 1950 Code, \\u00a7 8-690, supra, giving to the equity courts jurisdiction of all questions of law affecting the legal title arising \\\"between such tenants in common, joint tenants, coparceners and lien creditors.\\\" In the Revisor's Note to \\u00a7 5279 it was explained that the change was made because of the suggestion \\\"that the former language might in some cases deprive third persons of their constitutional right of trial by jury.\\\"\\nBy the terms of the present statute the power of courts of equity to adjudicate questions of law affecting the legal title in partition suits is confined to the conflicting claims of parties who may compel or be compelled to make partition. See Jones v. Comer, 123 W. Va. 129, 13 S. E. (2d) 578, 583; Minor on Real Property, 2d ed., Ribble, Vol. II, \\u00a7 892.\\nIn Goodman v. Goodman, supra, the defendant filed an answer claiming to be the owner of the fee and in possession of the land sought to be partitioned and denying that the plaintiff had any title. The court thereupon dismissed the bill, but this court reversed and held that where a bill states a good case for partition a defendant cannot defeat jurisdiction merely by denying the complainant's allegations and asserting a hostile claim to the whole property; but the court added: \\\"It may be that when the case is fully developed upon the evidence the defendant can show that there has never been any community of interest at any time between him and the complainant; but upon the record as it now stands the case is clearly one for equity jurisdiction.\\\" 124 Va. at p. 584, 98 S. E. at p. 627.\\nHere it does not appear from the evidence that the questions of title are between tenants in common, joint tenants or coparceners. Miller claims complete title to the land, acquired not through any community of interest with any party to the suit who claims under Fielding P. Sizer, or any predecessor of his, but by adverse possession, entirely hostile to and independent of the title under which all the other parties to the suit claim an interest in the land. Nor does complainants' evidence in any way show that Miller took through or under Sizer. \\\"An independent hostile claim going to the whole property involved, and denying in toto and ab initio the title of the parties claiming the joint ownership of the land, cannot be set up and adjudicated in a partition suit brought by the latter.\\\" Bailey v. Johnson, supra, 118 Va. at p. 509, 88 S. E. at p. 64.\\nThe decree appealed from is reversed and this suit is dismissed without prejudice to the right any party may have to proceed at law or under \\u00a7 55-153 of the Code. See Duty v. Honaker Lumber Co., 131 Va. 31, 108 S. E. 863.\\nReversed and dismissed.\\nBy a blanket order entered October 22, 1951, complainants' suit was dismissed under Code \\u00a7 8-154 permitting that to be done when there has been no order or proceeding, except a continuance, for more than two years. On November 24, 1952, the date of the final decree, complainants moved to reinstate the cause, claiming that the dismissal was inadvertent and without notice to them. Miller objected because the motion for reinstatement was not made within the time prescribed by the statute. The court overruled the objection and reinstated the cause on the docket. That ruling is the subject of one of the assignments of error. As stated, we rest this decision on another ground and do not decide that question.\"}"
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+"{\"id\": \"3699956\", \"name\": \"Kevin L. HOLLOWAY, Appellant, v. COMMONWEALTH of Virginia, Appellee\", \"name_abbreviation\": \"Holloway v. Commonwealth\", \"decision_date\": \"2010-02-23\", \"docket_number\": \"Record No. 0828-08-1\", \"first_page\": \"132\", \"last_page\": \"132\", \"citations\": \"56 Va. App. 132\", \"volume\": \"56\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:44:13.981247+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kevin L. HOLLOWAY, Appellant, v. COMMONWEALTH of Virginia, Appellee.\", \"head_matter\": \"692 S.E.2d 248\\nKevin L. HOLLOWAY, Appellant, v. COMMONWEALTH of Virginia, Appellee.\\nRecord No. 0828-08-1.\\nCourt of Appeals of Virginia.\\nFeb. 23, 2010.\\nBefore ELDER and ALSTON, JJ., and CLEMENTS, Senior Judge.\", \"word_count\": \"119\", \"char_count\": \"727\", \"text\": \"Upon a Petition for Rehearing\\nOn February 3, 2010 came appellee, by the Attorney General, and filed a petition praying that the Court set aside the judgment rendered herein on January 26, 2010, and grant a rehearing thereof.\\nOn consideration whereof, the petition for rehearing is granted, the mandate entered herein on January 26, 2010 is stayed pending the decision of the Court, and the appeal is reinstated on the docket of this Court.\\nThe appellant shall file an answering brief in compliance with Rule 5A:35(c).\"}"
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+"{\"id\": \"3777088\", \"name\": \"Walter H. Horner v. Virginia Department of Mental Health, Mental Retardation, and Substance Abuse Services, Western State Hospital\", \"name_abbreviation\": \"Horner v. Virginia Department of Mental Health, Mental Retardation, & Substance Abuse Services\", \"decision_date\": \"2002-07-11\", \"docket_number\": \"\", \"first_page\": \"250\", \"last_page\": \"255\", \"citations\": \"59 Va. Cir. 250\", \"volume\": \"59\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Virginia Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:16:01.399127+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Walter H. Horner v. Virginia Department of Mental Health, Mental Retardation, and Substance Abuse Services, Western State Hospital\", \"head_matter\": \"CIRCUIT COURT OF THE CITY OF STAUNTON\\nWalter H. Horner v. Virginia Department of Mental Health, Mental Retardation, and Substance Abuse Services, Western State Hospital\\nJuly 11, 2002\", \"word_count\": \"2135\", \"char_count\": \"13778\", \"text\": \"By Judge Humes J. Franklin, Jr.\\nThe Court hereinafter sets forth its opinion with respect to the appeal of Walter H. Homer from the decisions of the Virginia Department of Employment Dispute Resolution (EDR) hearing officer in grievances designated \\\"No. 5248\\\" and \\\"No. 5249.\\\"\\nAppellant Homer was employed as a physician at Western State Hospital by the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services. During his employment, Homer received three \\\"Group II\\\" disciplinary notices and was dismissed from his job. Dismissal is warranted on the accumulation of two such notices.\\nHomer contested the notices under Virginia's statutory grievance procedure. See \\u00a7 2.1-116 et seq. of the Code of Virginia (2000) (currently \\u00a7 2.2-3000 et seq. Va. Code). The grievance statute provides for up to three levels of management review. \\u00a7 2.1-116.05(B), Va. Code (2000). At the first level of management review, Homer's immediate supervisor, the so-called \\\"First-step Respondent,\\\" stated, in separate decisions, that he supported reversal of both notices at issue in this appeal and he concluded that Horner should be reinstated with back pay and benefits. However, the second-level and third-level management respondents disagreed with, and overturned, the decisions of the first-level respondent.\\nThe matters went before an EDR hearing officer. One notice was dismissed and, on August 20,2001, in separate decisions, the hearing officer affirmed the notice at issue in \\\"Grievance No. 5248\\\" (failure to follow a supervisor's instructions) and the notice at issue in \\\"Grievance No. 5249\\\" (failure to comply with written policy).\\nHomer then sought, and obtained, reconsideration by the hearing officer, but both decisions were reaffirmed. Next, Horner sought review of the reconsidered decisions by EDR and by the Department of Human Resource Management (DHRM). Ultimately, both EDR and DHRM upheld the hearing officer's decisions and Horner appealed to this Court.\\nAppellant's Bases for Appeal\\nHomer asserts four bases in his appeal. First, according to Homer, the Virginia statutory grievance procedure requires the remedy provided by Appellant's first-level respondent be given effect. Second, the government failed to abide by the statutory requirement that \\\"all time limitations prescribed in the grievance procedure... shall be reasonable, specific, and equally applicable to the agency and the employee\\\" as specified by \\u00a7 2.1 -116.05(G), Va Code (2000), and, moreover, failed to respond to grievant within the time frame specified under the agency adopted Grievance Procedure Manual. Third, the hearing officer, in Grievance No. 5249, mischaracterized an e-mail message sent by Appellant. Fourth, the decision ofthe hearing officer, in Grievance No. 5248, was \\\"plainly wrong and without evidence to support it.\\\" Appellant's \\\"Memorandum in Support of Appeal,\\\" page 7.\\nPrior Action of this Court\\nIn March 2002, the Court overruled Homer's motion to obtain a typed transcript of the record of proceedings before the hearing officer.\\nIn May 2002, the Court overruled the Attorney General's motion to dismiss, which maintained that Horner had failed to comply with statutory deadlines for prosecuting the matter and that decidittg the case on briefs was improper. The Court found that a consent order signed by both parties established that the matter would be resolved through briefs, rather than by a hearing. While the Attorney General has preserved his objection to the Court's ruling on the motion to dismiss, it should be noted that, in addition to the consent order, the Attorney General sent a letter to this Court on February 8, 2002, stating, in part, \\\"Please advise if the Court prefers briefing or oral argument.\\\"\\nCircuit Court Review on Appeal\\nFollowing a hearing officer's final decision in a grievance, \\\"a party may appeal [to Circuit Court] on the grounds that the determination is contradictory to law____\\\" \\u00a7 2.1-116.07:1(B), Va. Code (2000). \\\"The [Circuit] court may affirm the decision or may reverse or modify the decision.\\\" Id.\\nHorner's First Contention: \\\"Remedy,\\\" not \\\"Recommendation\\\"\\nThe Virginia General Assembly has established a statutory framework for a state employee grievance procedure. See \\u00a7 2.1-116.05 et seq., Va. Code (2000). Under the statute, the Virginia Department of Employment Dispute Resolution (EDR) is required to develop a grievance procedure that \\\"includes not more than three successively higher grievance resolution steps and a formal hearing....\\\" \\u00a7 2.1-116.05(B), Va. Code (2000). The statute also specifies that, on receipt of a formal grievance complaint, management shall review and respond to the merits of the case and that \\\"each level of management review shall have the authority to provide the employee with a remedy.\\\" \\u00a7 2.1-116.05(E), Va. Code (2000).\\nIn administratively implementing the statutory grievance procedure, EDR adopted a \\\"Grievance Procedure Manual\\\" (GPM). In the GPM, consistent with \\u00a7 2.1-116.05(B), Va. Code (2000), EDR provided for three levels of management review for the purpose of resolving an employee's grievance short of elevating the matter to a formal hearing. GPM, \\u00a7 2.1 and \\u00a7 3.1 to 3.3. hi the GPM scheme, the first of three potential \\\"Management Resolution Steps\\\" is conducted by the \\\"First-step Respondent.\\\" GPM, \\u00a7 3.1. The \\\"First-step Respondenf ' is an employee's immediate supervisor. GPM, \\u00a7 9. Appellant Horner went through the first resolution step for both matters that later formed the bases for Grievance Nos. 5248 and 5249. As noted above, Homer's supervisor, Michael T. Clayton, M.D., was the \\\"First-step Respondent.\\\" On June 11, 2001, Dr. Clayton issued separate written decisions regarding the disciplinary notices. In both decisions, Dr. Clayton reviewed the cases and formally concluded both documents in the same manner, stating: \\\"I support the complete reversal of Disciplinary Action, [Homer's] reinstatement with back pay, and restoration of all his fringe benefits. I also believe he merits an apology.\\\" See Exhibits 32 and 33, Appellant's \\\"Memorandum in Support of Appeal\\\" (containing copies of Dr. Clayton's decisions).\\nHowever, in the subsequent two levels of management review, management disagreed with Dr. Clayton's decisions in both matters. The matters then went before an EDR hearing officer as Grievance Nos. 5248 and 5249 and, following formal hearings, the hearing officer sided with the determination made by management in the second and third resolution steps to uphold the disciplinary notices. See Decision of (EDR) Hearing Officer In re Grievance No. 5248, August 20,2001; Decision of (EDR) Hearing Officer In re Grievance No. 5249, August 20, 2001.\\nIn both decisions, the hearing officer stated: \\\"[A] prior ruling by the Director of the Department of Employment Dispute Resolution (EDR) has established that upper level management has the discretion to review the immediate supervisor's decision and to make a determination to award the requested relief or uphold the disciplinary action.\\\" Decision of (EDR) Hearing Officer In re Grievance No. 5248, p. 7, and Decision of (EDR) Hearing Officer In re Grievance No. 5249, p. 5 (with both decisions of the hearing officer citing \\\"Compliance Ruling of Director, In re DMHMRSAS, March 23,2001 (Ruling # 2001QQ).\\\").\\nThe Court notes that in the ruling relied on by the hearing officer, Compliance Ruling of [EDR] Director, In re DMHMRSAS, March 23,2001, Ruling # 2001QQ, the Director characterized the decision of the immediate supervisor, the First-step Respondent in the underlying case, as a \\\"recommendation\\\" that was not accepted by upper level management and the Director also, without citing any authority, asserted that \\\"the grievance statutes do not provide management step respondents any more authority to grant a 'remedy' than those respondents would otherwise possess within the management hierarchy.\\\"\\nHomer contends that the statutory grievance procedure, specifically \\u00a7 2.1-116.05(E), Va. Code (2000), requires that the state must give effect to Dr. Clayton's decisions. This is so, Homer maintains, because the statute provides that, at each of the three potential management resolution steps, the management respondent, including the first level respondent, has \\\"the authority to provide the employee with a remedy.\\\" \\u00a7 2.1-116.05(E), Va. Code (2000). However, Homer argues that the government's action, here, demonstrates that the government views the first-level respondent's decision as a \\\"recommendation\\\" that may be accepted or ignored by higher-level management, rather than, as the statutes states, a \\\"remedy.\\\" See \\u00a7 2.1-116.05(E), Va. Code (2000).\\nThe Attorney General, in this appeal, shares the view of the hearing officer in maintaining that higher-level management may, on its own initiative, overrule a \\\"First-level Respondent.\\\" Appellee's \\\"Memorandum in Opposition to Appellant's Memorandum in Support of Appeal,\\\" page 4. This Court's decision is guided by well-settled principles. \\\"Under basic rules of statutory construction,\\\" a court must examine the language of the Code section at issue \\\"in its entirety and determine the intent of the General Assembly from the words contained in the statute, unless a literal construction of the statute would yield an absurd result. When the language of a statute is plain and unambiguous, we are bound by the plain meaning of that language. Thus, when the General Assembly has used words of a plain and definite import, courts cannot place on them a construction that amounts to holding that the General Assembly meant something other than that which it actually expressed.\\\" Vaughn, Inc. v. Beck, 262 Va. 673, 677, 554 S.E.2d 88 (2001) (citations omitted).\\nIn the instant case, the General Assembly explicitly employed the term \\\"remedy\\\" in the statute providing for a state employee grievance procedure. See \\u00a7 2.1-116.05(E), Va. Code (2000). \\\"Remedy\\\" is specific legal term of definite import, and for this Court to construe \\\"remedy\\\" to mean merely \\\"recommendation\\\" would be to violate the prohibition of Vaughn against construing a statute so as to \\\"hold[] that the General Assembly meant something other than that which it actually expressed.\\\" Vaughn, 262 Va. at 677.\\nThe Court is not unmindful of the Attorney General's argument that allowing an immediate supervisor to make a final, conclusive, determination would mean that \\\"a lower-level employee would have more authority on disciplinary matters than an agency director,\\\" and that such a stance \\\"is legally and logically untenable,\\\" as well as \\\"unworkable in practice and would literally turn an agency chain of command upside-down.\\\" Appellee's \\\"Memorandum in Opposition to Appellant's Memorandum in Support of Appeal,\\\" page 5.\\nHowever, the Court notes that nothing in the statute requires EDR to develop and adopt an employee grievance procedure that endows an immediate supervisor with such authority. The statute simply provides for up to three levels of management review, each with the authority to provide a remedy, but the statute does not specify that an immediate supervisor be involved in any of the formal grievance procedure levels.\\nYet EDR, of its own accord, adopted a grievance procedure that designated the position of immediate supervisor as the management respondent in the first of three potential resolution steps. See GPM, \\u00a7 9. Having placed an immediate supervisor in the position of \\\"First-step Respondent,\\\" a position that, by statute, has the authority to provide a grievant with a remedy, EDR cannot now be heard to complain that it is illogical to give an immediate supervisor such authority.\\nThe Court also notes that, following a \\\"First-step Respondent's\\\" determination, GPM \\u00a7 3.1 expressly provides an avenue for a grievant to continue to the next step in the management resolution process. Similarly, following a second step determination, a grievant may choose to continue to the third step under GPM \\u00a7 3.2. However, neither section of the GPM provides management such an avenue to contest the outcome a decision.\\nThe Court, then, finds that the decisions of the hearing officer in both Grievance Nos. 5248 and 5249 were contradictory to law. See \\u00a7 2.1-116.07:1(B), Va. Code (2000). As such, the Court may reverse or modify the decisions. Id. The Court reverses the hearing officer's decisions in both grievances and reinstates the remedies of the \\\"First-step Respondent,\\\" Dr. Clayton, to wit complete reversal of the disciplinary actions which formed the bases for Grievance Nos. 5248 and 5249, reinstatement of Dr. Homer with, from the date of his termination, back pay, and restoration of all his fringe benefits.\\nHaving so determined, the Court refrains from addressing Homer's three other asserted bases for challenging the decisions of the hearing officer in Grievance Nos. 5348 and 5249.\\nEDR \\\"Grievance Procedure Manual\\\" (version 07/01/2001) online at http://www.edr.state.va.us/gpmtoc.htm (viewed May 14, 2002, and July 1,2002).\\n\\\"[A] remedy is that part of the judicial process which permits actualization of substantive private law rights when the rules of practice are properly invoked.\\\" John L. Costello, Virginia Remedies, \\u00a7 1-1 (a) (2d ed. 2001). \\\"Traditionally, one thinks of a remedy as a procedural device at law or equity for administering justice to a person injured by the disfavored act of another.... Remedies come into being as vested individual rights only upon the occurrence of a defined wrong and entitle the injured person to a final readjustment of the distribution of assets or of patterns of conduct.\\\" Id., \\u00a7 1-1.\"}"
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+"{\"id\": \"3781910\", \"name\": \"Louis Scott Hudson v. Director of the Department of Corrections\", \"name_abbreviation\": \"Hudson v. Director of the Department of Corrections\", \"decision_date\": \"2005-05-16\", \"docket_number\": \"Case No. (Law) 04-4838\", \"first_page\": \"319\", \"last_page\": \"340\", \"citations\": \"67 Va. Cir. 319\", \"volume\": \"67\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Clarke County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T17:26:06.495214+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Louis Scott Hudson v. Director of the Department of Corrections\", \"head_matter\": \"CIRCUIT COURT OF CLARKE COUNTY\\nLouis Scott Hudson v. Director of the Department of Corrections\\nMay 16, 2005\\nCase No. (Law) 04-4838\", \"word_count\": \"8840\", \"char_count\": \"53115\", \"text\": \"By Judge John e. Wetsel, Jr.\\nThis case came before the Court on May 12,2005, for consideration of the Petition for Writ of Habeas Corpus challenging the validity of the Petitioner's conviction based upon ineffective assistance of counsel and procedural defects in the appeal of his case arising from counsel's failure to assign cross-error on the Commonwealth's appeal from the Court of Appeals to the Supreme Court. After careful consideration of the record, the Court has made the following decision to dismiss the petition.\\nI. Statement of Material Facts\\nThe following facts are established by the record in this case.\\nA. Material Proceedings\\nThe petitioner is in custody pursuant to final judgment of this Court entered on March 27,2001. A jury tried Hudson on January 11-13,2001, on charges of murder and use of a firearm in the commission of murder. Following the defense motion to strike the Commonwealth's evidence, the Court struck the-first-degree murder count and the charge proceeded as second-degree murder. The Court instructed the juiy on second-degree murder and voluntary manslaughter. The jury convicted Hudson of second-degree murder and use of a firearm in the commission of murder and fixed his punishment at seventeen years in prison for the murder and three years for the firearm charge. The Court sentenced Hudson in accordance with the jury's verdict, but suspended five years of the murder sentence. (Case Nos. 00-4371 through 00-4372.) (Exhibit 1, copy of final order.) The petitioner was represented in this Court by Timothy S. Coyne, Esquire.\\nThe petitioner appealed his convictions to the Court of Appeals of Virginia. The Court of Appeals granted Hudson's petition for appeal. (Record No. 0917-01-4.) By an unpublished opinion dated July 16, 2002, that Court reversed and dismissed Hudson's convictions, holding that the evidence was insufficient to sustain the convictions, so it did not address the evidentiary issues-it also had granted. The Court of Appeals noted, \\\"Because we find the evidence insufficient to sustain Hudson's second-degree murder conviction, we do not address these additional issues.\\\" (Exhibit 2, at p. 2, n. 1.)\\nThe Commonwealth filed a petition for appeal in the Supreme Court of Virginia assigning as error (1) that the Court of Appeals failed to apply the appropriate appellate standard of review and instead held that the evidence was insufficient to prove Hudson committed murder beyond a reasonable doubt, and (2) that the Court of Appeals erred by holding that the Commonwealth failed to exclude the reasonable hypothesis of innocence that the victim shot herself accidentally or as an act of suicide.\\nThe Supreme Court granted the appeal and in a unanimous opinion issued April 17, 2003, reversed the judgment of the Court of Appeals and reinstated the judgment of the Trial Court. Commonwealth v. Hudson, 265 Va. 505, 578 S.E.2d 781 (2003).\\nHudson filed a petition for rehearing in the Supreme Court of Virginia limited to the issue that the Supreme Court erred in failing to remand the case to the Court of Appeals for consideration of the issues that the Court of Appeals had granted but not decided in its opinion. (Exhibit 4.) The Court denied the petition for rehearing. (Exhibit 5.)\\nHudson by counsel subsequently filed a petition for certiorari to the United State Supreme Court, alleging that (1) the evidence was insufficient to sustain the convictions and that (2) the Supreme Court of Virginia erred in failing to remand the case to the Court of Appeals of Virginia for determination of the three issues that it had accepted for review but not addressed. By order of October 20, 2003, the Supreme Court of the United States denied the petition for certiorari.\\nIn his habeas petition, Hudson raises the following two claims.\\n1. Ineffective Assistance of Counsel\\nThe petitioner was denied his right to appeal and his right to effective assistance of counsel on appeal. Due to attorney error and through no fault of his own, the petitioner was denied his constitutional right to have all of his appellate issues, save one, decided by the Court of Appeals of Virginia and the Supreme Court of Virginia. Thus, he is entitled to a delayed appeal to the Court of Appeals.\\n2. Due Process/Fundamental Fairness Violation\\nThe petitioner was denied his due process rights and his right to fundamental fairness under the United States and Virginia Constitutions when he was denied his constitutional right to have all of his appellate issues, save one, decided by the Court of Appeals of Virginia and the Supreme Court of Virginia.\\nB. Facts Upon Which the Conviction is Based\\nThe petitioner lived with Mary Donovan for several years prior to their marriage in July 1999. (Tr. 555,1054.) He was unemployed during this entire period. (Tr. 559.) Donovan received an allowance from her trust fund. (Tr. 577.) According to Donovan's doctor, she had a mental age of about twelve years old. (Tr. 1085.)\\nDonovan had severe chronic pain and took prescription medication for her condition. (Tr. 1085-86.) At the time of her death, Donovan had an infection in her right elbow which caused her pain and which made movement of her right arm very difficult. (Tr. 1082.) She had difficulty bending it, lifting, or holding anything. (Tr. 1082.) According to Donovan's brother David, Donovan did eveiything she could to avoid pain. (Tr. 573.) Although Hudson owned guns, Donovan did not like guns and did not like to handle them. (Tr. 560.)\\nOn the morning of September 20,1999, Donovan went fox hunting. (Tr. 497, 499, 520.) That afternoon, she attended a funeral service for her father, who had passed away after a long illness. (Tr. 554.) A reception was held after the service at which both Donovan and the petitioner drank alcohol. (Tr. 567.) Donovan wore a new dress to the events and had received a ring, which was a family heirloom. (Tr. 554.) She was pleased to have-received the piece of jewelry and appeared in good spirits. (Tr. 499, 578.)\\nFollowing the reception, Donovan and Hudson were alone at their home. Donovan telephoned long-time friend Wes Thompson to ask if he had heard about her father's death. (Tr. 603.) During the phone call, which Thompson estimated occurred around 7:45 p.m., Hudson spoke into the phone in a nasty tone, calling Thompson a \\\"son of a bitch mother fucker,\\\" and asking why Thompson was talking to his wife. (Tr. 603-05,611.) Thompson hung up the phone. (Tr. 604.)\\n' Hudson thereafter telephoned his mother and said that Donovan had shot herself. (Tr. 694.) He did not call 911 to seek medical help or notify the police. (Tr. 1026.) Hudson's parents went to his house, which was only a few miles away. They saw Donovan's body, but they did not touch it. (Tr. 696, 1065.) Hudson was not there, and his father called the police at 7:52 p.m. to report the shooting. (Tr. 631, 696,1065.)\\nThe officers arrived at Donovan's home around 8:00 p.m. and discovered that it was in violent disarray and that Hudson was not there. (Tr. 646, 662.) There was broken glass on the kitchen floor, near which lay a military shovel. (Tr. 646, 662.) Deputy Jones saw Donovan's body lying on the living room couch. A .22 caliber firearm was awkwardly positioned in her right hand. The gun was lying in the palm of the hand, essentially facing backwards. (Tr. 645.) There was a large bloody hand print on the back cushion of the couch.' (Tr. 645, 676.) However, Donovan did not appear to have blood on her hands. (Tr. 648, 1004.)\\nIt was raining hard that night. (Tr. 1068,1222.) As Officer Crosson was leaving the defendant's house, he noticed a garden hose outside with water running from it \\\"full blast.\\\" (Tr. 1068.)\\nAt 9:17 p.m., the police received a call that Hudson was at his parents' home. (Tr. 631.) Hudson's brother, Steven Hudson, saw Hudson in the driveway of their parents' home and helped him inside to try to \\\"sober him up.\\\" (Tr. 1172.)\\nHudson's father removed a .270 caliber rifle from Hudson's car and put it in the house. (Tr. 1164.) The gun was not in a case. (Tr. 1168.) Hudson's father did not advise law enforcement that he had removed the weapon. (Tr. 1168-69.) Hudson's father did not see blood on the defendant. (Tr. 1169.)\\nWhen officers arrived at the house, they saw Hudson seated in his parents' living room, holding a cup of coffee. He was extremely intoxicated. (Tr. 652.) Hudson's father told the officers that he did not want Hudson in his home. (Tr. 652.) The police arrested Hudson for being drunk in public.\\nHudson was taken to the sheriff s department. During a pat down search at the jail, Sergeant Elland discovered a .22 caliber bullet in Hudson's coat pocket. (Tr. 634) A gunshot residue test was administered and Deputy Roper obtained a search warrant for Hudson's clothes. (Tr. 1/9/01 at 121,137-38.) The next morning, about 6:30 a.m., Roper saw Hudson at the jail, and advised him of the Miranda warnings. Hudson then gave a statement. (Tr. 1024.)\\nHudson stated that Donovan was unhappy because she thought that she deserved more from her father's estate. (Tr. 1025.) According to Hudson, Donovan picked up the gun and began playing with it. (Tr. 1025.) Hudson said that he told her not to do so. (Tr. 1025.) He said he heard a shot while he was in a nearby bathroom. (Tr. 1025.) He returned and saw Donovan \\\"slumping over\\\" on the couch. He said he left the house and went to his mother's home. (Tr. 1026.)\\nHudson stated that he \\\"never got close to\\\" Donovan's body. (Tr. 1026.) Hudson did not know why he did not call 911, and did not remember calling anyone after the shooting. (Tr. 1026-27.) When asked to explain the .22 caliber bullet found in his pocket, Hudson said that he must have picked it up with loose change from his dresser. (Tr. 1027.)\\nInvestigator Stan Gregg of the Virginia State Police interviewed Hudson in the presence of his attorney on November 18,1999. (Tr. 1053-54.) Hudson said in that statement that, on September 20, he and Donovan were drinking at their home and Donovan was upset because the trust would not let her purchase a truck. (Tr. 1058.) He said that Donovan pulled out a gun, began playing with it, and said she was going to shoot herself. (Tr. 1059.)\\nHudson said that he went into the bathroom and while there heard a shot. (Tr. 1059.) When he came out of the bathroom, he saw a \\\"little bit\\\" of blood around Donovan's eyes. (Tr. 1059.) He repeatedly denied going near her body. (Tr. 1059.)\\nHudson also denied handling any firearm that night. (Tr. 1060.) He said he last touched a firearm two nights prior to Donovan's death. (Tr. 1061.) He could not account for his whereabouts between the time of the shooting and the time he arrived at his parents' house, a period of more than an hour. (Tr. 1060-61.) According to Hudson, neither he nor Donovan made or received any telephone calls that night. (Tr. 1061.)\\nAt trial, the medical examiner testified that Donovan had suffered a \\\"contact range\\\" wound to the head and that the bullet traveled into her head at the left ear and then went into her brain. (Tr. 830-32.) The medical examiner explained that such a wound would cause immediate unconsciousness, and death would follow within minutes. (Tr. 834.) There would have been no voluntary movement by the victim after the gunshot. (Tr. 841.) The doctor also testified that blood would \\\"pour\\\" from the ear wound and would flow quickly after the shot. (Tr. 833-34.)\\nA firearm expert opined that it was necessary to cock the hammer back before firing the weapon. (Tr. 850.) An expert in gunshot residue testified that both of the defendant's hands showed primer residue. (Tr. 892, 896.) Donovan had residue on her right hand. (App. 559.)\\nAn expert in blood splatters identified bloody contact transfer stains on the couch cushion, the left front thigh of Donovan's jeans, and on Donovan's right forearm. (Tr. 972-73.) The expert testified that the contact transfers came from heavily bloody hands, but not the victim's, because no blood was visible on Donovan's hands. (Tr. 1004.) The expert also testified about blood found beneath an open telephone book on which the victim's hand was propped. The expert opined that a majority of the accumulated blood stain had been \\\"covered\\\" by an open telephone book. (Tr. 979.) She stated that the \\\"blood would have had to be placed there first and then the telephone book on top of that.\\\" (Tr. 979.)\\nForensic scientist Carol Palmer testified that a spot of blood on Hudson's shirtsleeve matched the victim's blood. (Tr. 920-21.) DNA testing showed that the possibility that the blood came from anyone other than Donovan was one in 51 million. (Tr. 921.)\\nII. Conclusions of Law\\nA. Hearing\\nThe allegations of illegality can be fully determined on the basis of the record; therefore, no plenary hearing is necessary in this case. Va. Code \\u00a7 8.01-654(B)(4); See also Friedline v. Commonwealth, 265 Va. at 277, 576 S.E.2d at 493-94, and Arey v. Peyton, 209 Va. 370, 164 S.E.2d 691 (1968). Petitioner's counsel stated his reasons for not assigning cross-error in his Petition for Rehearing filed in the Supreme Court.\\nB. Standard of Ineffective Assistance of Counsel\\nTo prevail on his ineffective assistance of counsel claim, the petitioner has the burden to show both that his attorney's performance was deficient and that he was prejudiced as a result. See Strickland v. Washington, 466 U.S. 668, 687 (1984). \\\"Unless [the petitioner] establishes both prongs of the two-part test, his claims of ineffective assistance of counsel will fail.\\\" Jerman v. Director, Department of Corrections, 267 Va. 432, 438, 593 S.E.2d 255, 258 (2004). \\\"A defendant is constitutionally entitled to effective assistance of counsel on direct appeal, and the standards governing effectiveness at trial are equally applicable to representation on direct appeal.\\\" Tucker v. Catoe, 221 F.3d 600, 613 (4th Cir. 2000) (citation omitted). See Smith v. Murray, 477 U.S. 527, 535-36 (1986).\\nThe first prong of the Strickland test, the \\\"performance\\\" inquiry, \\\"requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.\\\" Strickland, 466 U.S. at 687. In Bell v. Cone, 535 U.S. 685, 702 (2002), the Supreme Court held:\\nWe cautioned in Strickland that a court must indulge a \\\"strong presumption\\\" that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.\\nSee Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000) (reviewing court \\\"must be highly deferential in scrutinizing [counsel's] performance and must filter the distorting effects of hindsight from [its] analysis\\\"). \\\"The Sixth Amendment's guarantee of assistance of counsel requires that counsel exercise such care and skill as a reasonably competent attorney would exercise for similar services under the circumstances.\\\" Frye v. Commonwealth, 231 Va. 370, 400, 345 S.E.2d 267, 287 (1986).\\nThe prejudice requirement of the Strickland test requires a showing that there is a \\\"reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.\\\" Strickland, 466 U.S. at 694. A reasonable probability is a \\\"probability sufficient to undermine confidence in the outcome.\\\" Id. An ineffective counsel claim may be disposed of on either prong because deficient performance and prejudice are \\\"separate and distinct elements.\\\" Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994). See Strickland, 466 U.S. at 697; Sheikh v. Buckingham Correctional Center, 264 Va. 558, 566-67, 570 S.E.2d 785, 790 (2002). A reviewing court need not determine \\\"whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies____ If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed.\\\" Strickland, 466 U.S. at 697.\\nC. Failure to Anticipate an Adverse Ruling by the Supreme Court Is Not Ineffective Assistance of Counsel\\nThe petitioner alleges that his counsel was ineffective in prosecuting his appeal because counsel failed to assign cross-error in the Supreme Court of Virginia to the Court of Appeals' failure to address the evidentiary issues on which it has granted his appeal but which were extraneous to the Court of Appeals' decision reversing his conviction. The petitioner contends that he is entitled to a delayed appeal in the Court of Appeals of Virginia so that it can determine the issues accepted for review in that Court, but never reached by the Court of Appeals in its decision.\\n\\\"[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.\\\" Strickland, 466 U.S. at 690. Counsel was not ineffective in failing to assign cross-error to the Court of Appeals' failure to address the evidentiary issues it had granted. A sine qua non for an appeal is an adverse decision, so it was reasonable for petitioner's counsel to have concluded that it was not necessary to bring the undecided assignments of error before the Supreme Court because those issues had not been decided adversely to him by the Court of Appeals. It was very logical to assume that, if the Supreme Court reversed the Court of Appeals, that it would remand the case to the Court of Appeals for consideration of the unaddressed points. While Rule 5:18 of the Rules of the Virginia Supreme Court provides that the appellee may assign cross-error in a brief in opposition, there was no cross-eiTor to assign in this case because the Court of Appeals never rendered any decision on the three issues which it did not consider.\\nAfter its decision in this case, the Supreme Court of Virginia expressly ruled in Horner v. Department of Mental Health, 268 Va. 187, 194, 597 S.E.2d 202,206 (2004), that, in order to preserve for review an issue on which the Court of Appeals did not rule favorably to a party, that party must assign cross-error to the Court of Appeals' failure to rule. \\\"The Court of Appeals did not rule in favor to the Department on the issue of the circuit court's lack of jurisdiction. In order to preserve that issue for our review, an assignment of cross-error citing the Court of Appeals failure to so rule was necessary.\\\" Id. at 4. See also Riner v. Commonwealth, 268 Va. 296, 325, 601 S.E.2d 555, 572 (2004). Horner at 194 cites a footnote in Wells v. Shoosmith, 245 Va. 386, 388, n. 1, 428 S.E.2d 909, for the proposition that \\\"an assignment of cross-error citing the Court of Appeals' failure to so rule was necessary [to preserve the point for argument before the Supreme Court].\\\" Although Wells involved an appeal from the trial court not an appeal from the Court of Appeals, the Supreme Court apparently, saw no difference between a case appealed from the trial court in which alleged errors are properly placed before the appellate courts for review and the failure of the Court of Appeals to rule on points which are not necessary for their decision. In this case, the error was properly preserved for appeal to the Court of Appeals but simply not addressed because the Court of Appeals decided that it was not necessary to its decision.\\nIn the years before this case, the Supreme Court of Virginia appears to have applied a different procedural rule in similar cases. In Michael Dotson v. Commonwealth, 00 Vap UNP 1541993 (2000), Dotson appealed his conviction for felony child abuse to the Court of Appeals of Virginia, which granted the appeal on the issue of sufficiency of the evidence and on other evidentiary issues. The Court of Appeals reversed and dismissed the conviction based on its finding that the evidence was insufficient. The Court did not address some of the other issues that it had granted. The Court stated in the opinion issued July 5, 2000, \\\"Because we hold that the evidence was insufficient to support the conviction, we do not address the remaining issues.\\\" (Exhibit 8, copy of Court of Appeals Dotson opinion at p. 10.) The Commonwealth appealed the decision of the Court of Appeals to the Supreme Court of Virginia. Dotson did not assign cross-error to the Court of Appeals' failure to address other issues it had granted. (Exhibit 9, copy of brief in opposition.) The Supreme Court granted the Commonwealth's appeal. (Record No. 001898.) In its unpublished opinion of June 8, 2001, reversing the decision of the Court of Appeals, the Supreme Court of Virginia noted that \\\"the Court of Appeals failed to resolve certain questions concerning the admissibility of evidence. In this case, in order to determine the sufficiency of the evidence, the Court of Appeals must first determine what evidence is subject to their consideration. Accordingly, we reverse and vacate the judgment of the Court of Appeals of Virginia and remand to the Court of Appeals of Virginia for determination of evidentiary questions not decided, and for disposition of the case utilizing the proper standard of appellate review.\\\" (Exhibit 10, copy of unpublished Dotson opinion of Supreme Court) (Emphasis added.)\\nSimilarly, in Megel v. Commonwealth, 262 Va. 531, 551 S.E.2d 638 (2001), the Supreme Court of Virginia remanded a matter to the Court of Appeals for its determination of an issue. A panel of the Court of Appeals of Virginia had affirmed Megel's firearm conviction, and that Court en banc had also affirmed the judgment. The Court of Appeals ruled that Megel's participation in a home electronic incarceration program was analogous to serving a sentence and thus his home was the functional equivalent of a jail or prison cell, resulting in a loss of Fourth Amendment protection. Megel appealed the decision to the Supreme Court of Virginia. The Supreme Court noted in its opinion that the Commonwealth had argued that \\\"even if Megel was entitled to the protection of the Fourth Amendment, the record supports the trial court's alternative holding that Megel voluntarily consented to the search.\\\" Megel, 262 Va. at 537, 551 S.E.2d at 642. The Court continued, \\\"The Court of Appeals, however, declined to address this issue in light of its holding that Megel had no reasonable expectation of privacy____Although we question whether Megel raised this issue before the Court of Appeals, we will leave that determination to the Court of Appeals.\\\" Id. (citation omitted). The Supreme Court concluded:\\nAccordingly, the judgment of the Court of Appeals will be reversed and, because the Court declined to consider the issue of consent and the issue is not before us as an assignment of error, the case will be. remanded to the Court of Appeals for consideration thereof.\\nId. (emphasis added).\\nEffective assistance of counsel is not perfect or errorless performance, but is \\\"professionally reasonable performance.\\\" Poyner v. Murray, 964 F.2d 1404, 1423 (4th Cir. 1992). Moreover, as Strickland instructs, the determination of the reasonableness of counsel's actions must be judged \\\"as of the time of counsel's conduct.\\\" Strickland, 466 U.S. at 690. At least at the time of the Commonwealth's appeal in Hudson, it was not reasonable to conclude that the Supreme Court would not remand unresolved issues to the Court of Appeals. Hudson has failed to demonstrate the performance prong of the Strickland test.\\nCourts are creatures of constraint; consequently, their prerogative to act depends upon the jurisdiction which they been granted by the Constitution, by the legislature, and by judicial pronouncements in decisions or rules, like the Rules of Court. The only Rule applicable to this case is Rule 5:18(b), which provides that \\\"cross-error not then assigned will be noticed by this Court.\\\" Since courts are creatures of constraint, they decide only those questions presented to them which are necessary to resolve the issue which they are presented. For example, there may be ten assignments of error, but if only one assignment of error is case dispositive in the court's view, as was the view of the Court of Appeals in this case, then only that point of error is or should be decided. The plethora- of other assignments of error, even if valid, are superfluous to the decision, so in the interests of judicial economy and in furtherance of the policy of judicial restraint, once a dispositive point is decided, if that decision then merits reversal and the entry of final judgment, the other assignments of error are not addressed. Since the other assignments of error were not considered by the Court of Appeals, there was no decision of the Court of Appeals on the undecided issues to which to assign cross-error, by the Defendant, or at least that is how this case would have appeared to counsel and to the Supreme Court in Dotson v. Commonwealth, 00 VAP UNP 1541993 (2000), and Megel v. Commonwealth, 262 Va. 531, 551 S.E.2d 638 (2001), where the Supreme Court, after reversing the Court of Appeals, remanded the case to the Court of Appeals to consider the appeal points which it had not addressed in its earlier decision.\\nThe law is always in a state of evolution towards perfection. Between July 1,1997, when the Commonwealth was given its right of appeal and June 10,2004, when Horner v. Department of Mental Health, supra, was decided, the rule governing the assignment of cross-error in appeals to the Supreme Court to issues not decided by the Court of Appeals was in a state of flux. Apparently, in this case, the Supreme Court decided to change or deviate from its prior policy, so it declined to remand the case to the Court of Appeals for further consideration as it had done in other recent, similar cases. This issue was expressly presented to the Supreme Court in the Petition for a Rehearing, and the Supreme Court could have exercised its discretion to remand this case to the Court of Appeals, and it declined to do so. Counsel could not reasonably have anticipated this unannounced procedural shift by the Supreme Court, and counsel is only required to perform to a professionally reasonable standard; they are not required to be either prescient or perfect. Therefore, the claim of ineffective assistance of counsel is denied.\\nSince this Court has decided that there was no ineffective assistance of counsel, as a technical matter for the reasons stated above, as a matter of judicial restraint, it need not address the other assignments of error, but it will, since this case is sure to be appealed, and there are alternative grounds for this court's decision.\\nD. The Assignments of Error Not Considered by the Court of Appeals\\nThe Petitioner has failed to demonstrate that, but for counsel's alleged error, there is a reasonable probability of a different outcome on the appeal. The three issues of which the Court of Appeals granted review, but did not decide were:\\n1. Did the trial court properly deny Hudson's motion to suppress evidence obtained following his arrest?\\n2. When the Commonwealth disclosed a DNA report outside of the statutory time requirement, did the trial court properly exercise its discretion in offering Hudson a continuance and in ruling that the facts did not warrant exclusion of the evidence?\\n3. Did the trial court properly refuse Hudson's proffered instruction regarding suicide and accident?\\nA decision on any or all of the three issues would not have resulted in a reversal and remand for new trial.\\n1. Denial of the Motion to Suppress\\nHudson argues that the trial court erred in denying his motion to suppress. He claimed that the officers lacked probable cause to arrest him for being drunk in public because he was inside his parents' home when he was arrested; consequently, any evidence seized as a result of the arrest should have been suppressed, including the gunshot residue test results, the clothing seized from him, and statements given by him. However, the trial court did not err in denying the motion to suppress. The trial court held a hearing on the motion to suppress. When an appellate court reviews a trial judge's denial of a motion to suppress, the court considers the \\\"evidence adduced at both the trial and suppression hearing.\\\" Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994). See DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43 (1987). The burden is on the defendant to show that the trial court's denial of a motion to suppress, \\\"when the evidence is considered most favorably to the Commonwealth, constituted reversible error.\\\" McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).\\n\\\"Probable cause exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed.\\\" Jones v. Commonwealth, 18 Va. App. 229, 231, 443 S.E.2d 189, 190 (1994) (citation omitted). The probable cause standard is a \\\"'practical, nontechnical conception' that deals with 'the factual and practical considerations of eveiyday life on which reasonable and prudent men, not legal technicians, act.' 'Probable cause is a fluid concept - turning on the assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced to a neat set of legal rules'.\\\" Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citations omitted).\\nWhen the officers arrived at Hudson's parents' home, at his parents' request, they knew that Hudson's father had called dispatch and relayed Hudson's report that Donovan had shot herself in the head. (Tr. 1/9/01 at 82.) For Hudson to have made that report to his father, it was reasonable to infer that he had been present at the home where the shooting occurred. The police responded to Hudson's home around 8:00 p.m. (Tr. 1/9/01 at 66.) Hudson was not there. At 9:17 p.m., Hudson's father called the police and reported that Hudson's location was at the father's home. (Tr. 1/9/01 at 76.) Hudson's father wanted his son removed from his home. (Tr. 1/9/01 at 79, 100, 126, 134; Tr. 652.) The parents' home was a few miles away from Hudson's home. (Tr. 1065.) Clearly, Hudson had traveled from his own home or somewhere to his parents' home. During that journey, he would have been in public. When the police arrived at the parents' home, Hudson was very intoxicated. (Tr. 1/9/01 at 77-78.)\\nGiven the totality of all of these circumstances, the officers had probable cause to believe that Hudson had arrived at his parents' home in a state of intoxication. Thus, the officers had probable cause to believe that Hudson had committed the offense of being drunk in public. In fact, Hudson was intoxicated when he arrived at his parent's home. Hudson's brother, Steven Hudson, testified at trial that he saw Hudson in the driveway and took him inside to try to \\\"sober him up.\\\" (Tr. 1172-73.) Hudson's statement acknowledged that he was drinking that evening at his home. (Tr. 1058.) The officers' failure to observe Hudson's intoxication \\\"in public,\\\" prior to arresting him, may constitute a violation of Virginia Code \\u00a7 19.2-81, but it did not strip the officers of probable cause to arrest him. Significantly, such a statutory violation does not constitute grounds for suppression of evidence. See Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218, 420 S.E.2d 713 (1992) (per curiam). See also Thompson v. Commonwealth, 10 Va. App. 117, 123, 390 S.E.2d 198, 202 (1990) (where officer had probable cause to arrest defendant and no deprivation of constitutional rights occurred, any violation of Va. Code \\u00a7 19.2-81 did not warrant exclusion of defendant's voluntary confession). Because the officers had probable cause to arrest Hudson for being drunk in public, any violation of Va. Code \\u00a7 19.2-81 did not require exclusion of evidence or statements obtained as a result of the arrest.\\nThe police also had probable cause to arrest Hudson for the homicide of his wife. The fact that they did not subjectively rely on that ground for arrest is of no consequence. \\\"Whether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, ' and not on the officer's actual state of mind at the time the challenged action was taken.\\\" Limonja v. Commonwealth, 8 Va. App. 532, 538, 383 S.E.2d 476, 480 (1989) (en banc) (citations omitted). The reviewing court must look at all the objective facts. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court found as follows: \\\"[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.\\\" Id. at 813 (citation omitted). See Devenpeck v. Alford, 543 U.S. \\u2014, 125 S. Ct. 588 (2004).\\nIn this case, the officers had probable cause to arrest Hudson for the homicide of Mary Donovan. Deputy Jones knew that Hudson had reported to his father that Donovan had shot herself. (Tr. 1/9/01 at 82.) However, upon arriving at the home Donovan and Hudson shared, Jones found evidence that was not consistent with suicide, but which was indicative of violence and homicide. (Tr. 662.) There was broken glass on the kitchen floor. (Tr. 1/9/01 at 67; Tr. 642, 662.) The body of the victim was lying on the couch in the living room. The gun lay awkwardly in the victim's hand. Although Donovan's face was bloody, no blood appeared on her hands. (Tr. 648.) Yet, Jones saw a bloody hand print on the back of the couch. (Tr. 1/9/01 at 69.) Finally, although Hudson had reported the shooting to his father, thus indicating that he was at the home when the shooting occurred, he fled from the home before the police arrived. (Tr. 1/9/01 at 68, 75.)\\nThis \\\"totality of circumstances\\\" justified the police in arresting Hudson for homicide. Although the police did not state that they were arresting Hudson for the homicide of his wife, the officers objectively had probable cause to do so. Thus, even if the officers erred in arresting Hudson for being drunk in public, they had probable cause to arrest him for the killing, and the evidence and statement obtained as a result of the arrest were not subject to suppression.\\nIn his Court of Appeals brief, Hudson relied on Knowles v. Iowa, 525 U.S. 113 (1998), and Rhodes v. Commonwealth, 29 Va. App. 641, 513 S.E.2d 904 (1999) (en banc), to argue that the trial court should have suppressed the results of the gunshot residue test administered to Hudson after he was arrested and brought to the sheriffs department. Unlike the Defendants in Knowles and Rhodes, Hudson was arrested. While a summons was issued, an arrest warrant was subsequently issued. (Tr. 1/9/01 at 103.) The defendant was extremely intoxicated. His father had requested that he be removed from the father's home. Hudson's own home was the scene of a police investigation into his wife's shooting death. The officers could not release Hudson. Deputy Small testified that Hudson was taken into custody \\\"for his safety.\\\" (Tr. 810.) Thus, he was properly arrested. Virginia Code \\u00a7 19.2-74(A)(2) specifically excludes from its coverage the offense of public drunkenness. Because of their boisterous nature, the police are permitted to make custodial arrests of intoxicated persons, and when doing so, they may search or question those persons incident to that arrest.\\nFurthermore, as argued above, the police had probable cause to arrest Hudson for homicide. Consequently, they had probable cause to conduct the gunshot residue test on Hudson's hands. The police also faced exigent circumstances with regard to such a test. Residue evidence is fragile and can be washed off or rubbed off. (Tr. 1/9/01 at 74-77, 117.) The record reveals that it was raining on the night of September 20, 1999. (Tr. 1068, 1222.) Furthermore, Deputy Roper testified that a magistrate was not always on duty and a delay could have been fatal to the ability to conduct a valid test for residue. (Tr. 1/9/01 at 117-18.)\\nProbable cause and exigency combined to justify the gunshot residue test. See Wright v. Commonwealth, 222 Va. 188, 193, 278 S.E.2d 849, 853 (1981) (\\\"Where there are exigent circumstances in which police action literally must be 'now or never' to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation.\\\"). See generally Verez v. Commonwealth, 230 Va. 405, 337 S.E.2d 749 (1985). The trial court did not err in denying the motion to suppress. Thus, even had the issue been decided on appeal, there is no reasonable probability that Hudson would have obtained relief on that basis.\\n2. Objection to DNA Evidence\\nHudson also contended before the Court of Appeals that the trial court abused its discretion in overruling his objection to the admission of DNA evidence, due to the Commonwealth's tardiness in providing certain DNA reports. He claimed on appeal that the Court's refusal to bar the admission of the evidence violated due process. The Court, however, did not err, but properly exercised the discretion provided to it by Va. Code \\u00a7 19.2-270.5, which provides in pertinent part as follows:\\nAt least twenty-one days prior to commencement of the proceeding in which the results of a DNA analysis will be offered as evidence, the party intending to offer the evidence shall notify the opposing party, in writing, of the intent to offer the analysis and shall provide or make available copies of the profiles and the report or statement to be introduced. In the event that such notice is not given, and the person proffers such evidence, the court may in its discretion either allow the opposing party a continuance or, under appropriate circumstances, bar the person from presenting such evidence. The period of any such continuance shall not be counted for speedy trial purposes under \\u00a7 19.2-243.\\nIn Caprio v. Commonwealth, 254 Va. 507, 493 S.E.2d 371 (1997), the Supreme Court of Virginia held that, where there is an untimely disclosure of DNA evidence, the clear language of Code \\u00a7 19.2-270.5 limits atrial court's discretion \\\"to a choice of 'either' of two defined options.\\\" Id. at 512, 493 S.E.2d at 374. The Court in Caprio determined that, if the trial court determines that the evidence is admissible, \\\"the statute requires the court to grant a motion to interrupt and postpone the progress of the trial to afford the defense a period of time for consultation with other experts and preparation of an appropriate response to the new evidence.\\\" Id.\\nIn this case, at the hearing on Hudson's motion, the trial court asked Hudson if he wanted a continuance in the event the Court did not find appropriate circumstances to bar admission of the evidence. Hudson said he did not and argued that he should not have to ask for a continuance because he was not at fault. (Tr. 1/3/01 at 36.) The Court then stated that it did not find the circumstances appropriate to bar admission of the evidence. (Tr. 1/3/01 at 44.) The Court advised Hudson again that he was allowed a continuance. Hudson declined the continuance. (Tr. 1/3/01 at 45.)\\nIn light of the laboratory's inability to complete the analysis in a timely manner, the fact that the scientist had met with Hudson's counsel, and the prosecutor represented that the scientist would be available to meet with him again, the Court did not abuse its discretion in finding that the circumstances did not warrant a bar to the admission of the evidence. Having ruled that it would not bar the admission of the evidence, the Court complied with the statute and afforded Hudson a continuance. Hudson declined the continuance. The Court did not err. Significantly, the critical DNA testimony at trial concerned blood on Hudson's shirtsleeve. Those findings were included in an earlier report from September 1,2000. There is not a reasonable probability of reversal on this ground, had this issue been decided by the appellate courts.\\nThe principles governing the review of trial counsel's performance were restated by the Supreme Court of the United States in Burger v. Kemp, 483 U.S. 776, 97 L. Ed. 2d 638, 107 S. Ct. 3114 (1991):\\n\\\"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a Court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting affects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.\\\" Strickland v. Washington, 466 U.S. at 689, 80 L. Ed. 2d 674, 104 S. Ct. 2052.\\nThe Burger Court went on to note at 483 U.S. at 657:\\n[I]n considering claims of ineffective assistance of counsel, \\\"[w]e address not what is prudent or appropriate, but only what is constitutionally compelled.\\\" United States v. Chronic, 466 U.S. 648, 655, n. 38, 80 L. Ed. 2d 657, 104 S. Ct 2039 (1984). We have decided that \\\"strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.\\\" Strickland, 466 U.S. at 690-91, 80 L. Ed. 2d 674, 105 S. Ct. 2052.\\nIt would appear that there were reasonable grounds for the strategic judgment of the Petitioner ' s trial counsel in not pursuing a continuance which, if done, would have obviated the Petitioner's objection to the timeliness of the DNA report about which he now complains.\\n3. Failure to Grant Suicide Instruction\\nHudson claims that the suicide instruction was supported by the evidence and was a proper statement of the law and that, without the proffered instruction, the jury received incomplete guidance for their deliberations. While this instruction was a proper statement of the law and perhaps could have been given, the trial court did not err in refusing the proffered instruction. In instructing the juiy, the trial judge is responsible for seeing that \\\"the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.\\\" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (citation omitted). \\\"If the principles set forth in a proposed instruction are fully and fairly covered in other instructions that have been granted, a trial court does not abuse its discretion in refusing to grant a repetitious instruction.\\\" Joseph v. Commonwealth, 249 Va. 78, 90, 452 S.E.2d 862, 870 (1995). SeeHubbard v. Commonwealth, 243 Va. 1, 16, 413 S.E.2d 875, 883 (1992).\\nThe instruction at issue concerned accident and suicide and read as follows:\\nWhere the defense is that the killing was an accident or suicide, the defendant is not required to prove this fact. The burden is on the Commonwealth to prove beyond a reasonable doubt that the killing was not accidental or by suicide. If after considering all the evidence you have a reasonable doubt whether the killing was accidental or suicidal or intentional, then you shall find the defendant not guilty.\\n(Exhibit 11.)\\nThe proposed instruction was modified from Model Jury Instruction 33.850, which addresses accident only. While the model does not expressly address suicide, the principle does apply to suicide as well as to an accidental death.\\nThe Commonwealth was required to prove that the defendant killed the victim. It was not required to prove that the victim did not commit suicide. See State v. Babb, 877 P.2d 905, 912 (Idaho 1994). The trial court recognized that the jury already was instructed \\\"with regard to burden of proof.\\\" (Tr. 1281.) Indeed, in Instruction 2, the jury was instructed that the presumption of innocence remains with the defendant throughout the trial and is enough to require acquittal \\\"unless and until the Commonwealth proves each and every element of the offense beyond a reasonable doubt.\\\" (Exhibit 13.) That instruction stated that there was no burden on the defendant to produce any evidence. Instruction 3 recited the elements that the Commonwealth was required to prove. The first numbered element was, \\\"That the defendant killed Mary Donovan Hudson.\\\" (Exhibit 14.) Instruction 4 directed the jury to resolve any doubt as to the grade of the offense in favor of the defendant. (Exhibit 15.)\\nThese instructions advised the juiy that the Commonwealth was required to prove criminal agency. Furthermore, when coupled with counsel's argument, the granted instructions leave no doubt that the jury understood that it was the Commonwealth's burden to prove that the defendant was the one who shot his wife. See Buchanan v. Angelone, 522 U.S. 269, 278-79 (1998) (in entire context in which instructions given, including testimony and argument of counsel, no reasonable likelihood that jurors misunderstood instructions). Under these circumstances, the trail court's refusal of this instruction did not prejudice the petitioner.\\nE. Procedural Default\\nIn Allegation B, the petitioner alleges that he was denied his due process rights and his right to fundamental fairness when he was denied his constitutional right to have all of his appellate issues decided, except one. That \\u2022 claim, however, is not cognizable in a habeas corpus action in this Court. \\\"A prisoner is not entitled to use habeas corpus to circumvent the trial and appellate processes for an inquiry into an alleged non-jurisdictional defect of a judgment of conviction.\\\" Slayton v. Parrigan, 215 Va. 27, 30, 205 S.E.2d 680, 682 (1974). \\\"[A] claim that could have been raised at the criminal trial or on direct appeal is not cognizable in habeas corpus because to do so would circumvent the trial and appellate process for non-jurisdictional defects.\\\" Henry v. Warden, Riverside Regional Jail, 265 Va. 246, 248, 576 S.E.2d 495, 496 (2003). Furthermore, \\\"a non-jurisdictional issue raised and decided either in the trial or on direct appeal from the criminal conviction will not be considered in ahabeas corpus proceeding.\\\"Henry, 265 Va. at 249, 576 S.E.2d at 496.\\nIn the petition for rehearing filed in the Virginia Supreme Court, Hudson argued that neither the Code of Virginia nor the Virginia Constitution required the Supreme Court to enter final judgment. (Exhibit 4, at p. 2.) He argued that under Article VI, \\u00a7 6, of the Virginia Constitution, the Virginia Supreme Court had discretion to enter final judgment as well as to remand a case for further proceedings. He argued that, because issues remained unresolved, \\\"substantial justice has not been reached in this matter and the cases must be remanded for further proceedings in the interest of fairness.\\\" (Exhibit 4, at p. 6.)\\nThe petitioner did not argue his current constitutional claims in his petition for rehearing. He now contends in habeas corpus that the failure of the Court of Appeals to decide all of the issues it had granted and the Supreme Court's failure to remand those issues to the Court of Appeals for a decision violated the state and federal constitutions. He cites the 5th, 6th, and 14th amendments to the United States Constitution and Article I, \\u00a7 8, of the Virginia Constitution. However, he did not rely on these provisions in the petition for rehearing. He argued that the only way to \\\"ensure proper appellate review\\\" and \\\"achieve substantial justice\\\" in the case, was to remand the matter to the Court of Appeals for determination of the \\\"unresolved issues.\\\" (Exhibit 4, at p. 5.) He did not argue his current constitutional claims and the issue is barred pursuant to the rule in Slayton v. Parrigan, supra.\\nIn the very last sentence of the argument in the petition for rehearing, Hudson argued that the issues must be resolved by the appellate courts to ensure that he received \\\"a fair trial on the merits, that the ends of justice and fairness are achieved, and the Defendant receives full and complete due process of law.\\\" Even if the trial court were to find that, by this sentence, Hudson presented his current habeas Claim B on direct appeal, the claim would be barred pursuant to the rule in Henry v. Warden, supra.\\nIII. Decision\\nFor the foregoing reasons, it is adjudged and ordered that (1) Petitioner's Motion for an evidentiary hearing is denied and (2) the Petition for Habeas Corpus is dismissed with prejudice.\\nThe Clerk shall forward copies of this order to the Petitioner, Respondent's counsel, and to the Commonwealth's Attorney of Clarke County. Counsel of record shall file such objections hereto as deemed advisable within ten days of their receipt of a copy of this order. Endorsement is dispensed with pursuant to Supreme Court Rule 1:13.\\nThis is a final order, and the Clerk is directed to place this case in the ended files. Any notice of appeal of this order to the Supreme Court of Virginia must be filed with the Clerk of this Court within thirty days of the entry of this order.\\n\\\"Tr.\\\" refers to the trial transcript.\\nThe residue on Hudson's hands contained three elements, barium, lead, and antimony. Residue on Donovan's hands contained only lead and barium. (Tr. 892-900.)\\nIn Riner, the Court included the following parenthetical following a reference to Horner: \\\"failure to assign cross-error on an issue the Court of Appeals didnot address waives further appellate review of the issue.\\\"\\nThe Court admitted evidence that the defendant had pleaded guilty in the district court to the charge ofbeing drunk in public. (Tr. 1/9/01 at 92-93.) The Court expressly noted that it was considering the plea of guilty to that charge, as an \\\"admission,\\\" not the fact that Hudson had been convicted by the district court. (Tr. 1/9/01 at 86,151.)\\nHudson's clothing was seized as result of a subsequently issued search warrant. (Tr. 1/9/01 at 121.) The statement obtained the night of the arrest was quite similar to a subsequent statement given by Hudson, in the presence of his attorney. (Tr. 1/9/01 at 121; Tr. 1025-27,1055-61.)\\nThe arrest warrant was not made part of the record. When the Commonwealth attempted to introduce it into evidence, Hudson objected on the ground that it contained extraneous information about his conviction in the district court. The Court sustained the objection. (Tr. 1/9/01 at 104.)\\nThe value of the gunshot residue test was that it demonstrated that Hudson had touched a firearm, contrary to his claim that he had not handled a gun in two days. Of course, Hudson relied on the actual results of the gunshot residue test because the elements present on his hands were not completely consistent with the elements present in the ammunition which killed the victim.\\nOn appeal, Hudson limited his challenge to the admission of DNA evidence to the report filed on December 29,2000. An additional report, concerning DNA analysis of the victim's twin brother, was filed on January 9, 2001. The trial court limited the Commonwealth's introduction of the results of the January 9th report to rebuttal evidence in the event the defense challenged the forensic scientist's statistics based on the fact that the victim had a twin brother. (Tr. 183.) The report from January 9,2001, was not introduced at trial.\\nHudson filed a written objection in the trial court to the admission of the DNA evidence which was the subject of the report provided to him on December 29,2000. The written motion did not rely on constitutional arguments. The Court held a hearing on the motion on January 3,2001. (The Court heard argument regarding an additional DNA certificate on January 10,2001.) Hudson challenged the constitutionality of the provision in Va. Code \\u00a7 19.2-270.5 that states that any continuance granted because a party was late in providing DNA reports shall not be counted for speedy trial purposes under Va. Code \\u00a7 19.2-243. (Tr. 1/3/01 at 37,45,47.) A party must raise the specific allegation at trial that he wishes to pursue on appeal. See Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994); Rule 5A:18. An objection thataportion of a statute violates due process is not the same as an objection that the court's ruling on an objection violated due process. Thus, any due process argument raised in the Court of Appeals would be barred by Rule 5A: 18.\\nDefense counsel argued extensively that the victim committed suicide. (Tr. 1308, 1314,1338-1350.) The Commonwealth addressed suicide in its closing argument. (Tr. 1302.)\"}"
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diff --git a/va/3783459.json b/va/3783459.json
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+"{\"id\": \"3783459\", \"name\": \"Bank of Virginia v. Norport Supply Co., Inc.\", \"name_abbreviation\": \"Bank of Virginia v. Norport Supply Co.\", \"decision_date\": \"1969-11-03\", \"docket_number\": \"Case No. (Law) 3250\", \"first_page\": \"456\", \"last_page\": \"458\", \"citations\": \"6 Va. Cir. 456\", \"volume\": \"6\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Norfolk Law and Chancery Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:34:16.833699+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bank of Virginia v. Norport Supply Co., Inc.\", \"head_matter\": \"LAW AND CHANCERY COURT OF THE CITY OF NORFOLK\\nBank of Virginia v. Norport Supply Co., Inc.\\nNovember 3, 1969\\nCase No. (Law) 3250\", \"word_count\": \"654\", \"char_count\": \"3791\", \"text\": \"By JUDGE EDWARD L. RYAN, JR.\\nWithin twenty-one days of the entry of (summary) judgment in favor of the plaintiff, the defendant moved the court to vacate and set aside said judgment. Within the same period, the court entered an order noting the filing of defendant's written motion and concluding with the following language:\\nAnd the court desiring additional time to further consider and adjudicate upon said motion to vacate said judgment, doth therefore continue said matter until a further hearing may be had by the parties and the court thereon.\\nThe twenty-one days now having expired, the plaintiff says that the judgment has become absolutely final and that this court has no authority to vacate the judgment. In essence, the plaintiff says that failure to \\\"modify\\\" or \\\"vacate\\\" the judgment within twenty-one days results in the finality. Rules of Court (Va.) 3:21.\\nIn Gabbard v. Knight, 202 Va. 40 (1960), the plaintiff filed motions within twenty-one days to set aside the judgments, which the court overruled. The Court of Appeals said the following:\\nHence, at the time of the last motion of the plaintiffs the judgments had not become final and the lower court had full power and authority to inquire into the sufficiency of the evidence to sustain the verdicts and the objections made during the trials on its rulings on the instructions. (Italics added.)\\nIn Lyle and Allen v. Ekleberry, 209 Va. 349 (1968), counsel for defendant, merely by letter, \\\"wrote the judge of the trial court expressing the desire to submit additional authorities and reargue the motion to set aside the verdict.\\\" The Court of Appeals held that this was not sufficient, saying the following:\\nHowever, no order was entered of record vacating or suspending the (earlier judgments), or indicating that the court had under consideration such action. . . .\\nIn Cobb v. Commonwealth, 152 Va. 941, 146 S.E. 270 (1929), we held that where the record showed that a motion to set aside or vacate a judgment of conviction had been made and taken under consideration by the trial court before the judgment had become final, the time for perfecting an appeal ran from the date on which such motion was disposed of. . In the present case the record fails to show that before the judgment of December 22, 1966, became final a similar motion to set aside or vacate it was made and taken under consideration by the trial court. Cf. Gabbard v. Knight, 202 Va. 40, 43, 116 S.E.2d 73, 75 (1960).\\nCounsel's letter of January 6, 1967, to the judge of the trial court, requesting that final judgment be vacated, did not have that effect. An order of the court was necessary. (Italics added.)\\nSee also Smith v. Comm., 207 Va. 459 (1966); Harvey v. C. & P. Tel. Co., 198 Va. 213 (1956).\\nThe order entered in this case indicated \\\"that the court had under consideration such action\\\" (to vacate the judgment), and it was an order \\\"suspending\\\" the earlier judgment.\\nSUSPEND. To interrupt; to cause to cease for a time; to stay, delay or hinder; to discontinue temporarily, but with an expectation of resumption. Black's Law Dictionary, 3rd Ed., p. 1690.\\nFinally, plaintiff says that the action of the court in taking the factual issue from the jury at the conclusion of all the evidence now deprives it of a jury trial and that it is entitled to such by way of a new trial. The court holds, as a matter of law, that no actual fact issue was presented calling for resolution by a jury.\\nThe motion of plaintiff for leave to suffer a nonsuit comes too late and is denied.\\nThe court is entering today (November 3, 1969) an order setting aside the judgment for plaintiff and granting judgment for defendant.\"}"
\ No newline at end of file
diff --git a/va/3784920.json b/va/3784920.json
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--- /dev/null
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+"{\"id\": \"3784920\", \"name\": \"Christopher Lee Lewis v. Roger A. Glover, Jr., et al.\", \"name_abbreviation\": \"Lewis v. Glover\", \"decision_date\": \"1983-06-02\", \"docket_number\": \"Case No. 2856\", \"first_page\": \"67\", \"last_page\": \"68\", \"citations\": \"8 Va. Cir. 67\", \"volume\": \"8\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Washington County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T21:41:08.076286+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Christopher Lee Lewis v. Roger A. Glover, Jr., et al.\", \"head_matter\": \"CIRCUIT COURT OF WASHINGTON COUNTY\\nChristopher Lee Lewis v. Roger A. Glover, Jr., et al.\\nJune 2, 1983\\nCase No. 2856\", \"word_count\": \"441\", \"char_count\": \"2725\", \"text\": \"By JUDGE CHARLES B. FLANNAGAN, II\\nThis matter is currently before the court on the defendant Dr. Glover's motion to strike paragraph VII of the amended motion for judgment. Defendant Glover contends that the Notice of Claim of Medical Malpractice, given pursuant, to the Code of Virginia, 8 8.01-581.2, gave notice of a claim for medical malpractice occurring prior to the time of the infant's birth, whereas, paragraph VII of the amended motion for judgment makes a claim based on acts of malpractice occurring subsequent to the infant's birth, specifically, negligence in resuscitation efforts on the infant.\\nOn March 7, 1983, the court entered an order permitting the amended pleading. However, at the time of the entry of that order, counsel for defendant Glover appeared and orally objected to the amendment on the grounds now cited. The court ruled that the amendment would be allowed, but that defendant Glover would be permitted to raise the issue by formal pleadings. Subsequently, defendant Glover filed a motion to strike paragraph VII, which motion was argued on May 19, 1983.\\nThe Code of Virginia 8 8.01-581.2 provides that no action may be brought for medical malpractice unless the claimant notifies the Health Care Provider in writing of his claim prior to commencing the action. Specifically, that Code Section requires that \\\"the written notification shall include the time of the alleged malpractice and a reasonable description of the act or acts of malpractice.\\\"\\nIn the case at bar, the Notice of Claim of Medical Malpractice given to defendant Glover details the acts complained of, stating precise times of occurrences. The negligence detailed in the notice ranges from inadequate prenatal office treatment to failure to give adequate attention between the time of the mother's admission to the hospital and the time of a forceps delivery of the infant claimant:\\nwho had by that time sustained irreversible brain damage caused by placental insufficiency and other related, complicating conditions, all of which resulted from the failure of the Hospital and Dr. Glover to provide proper medical care and treatment to Mrs. Lewis and her unborn child. Notice of Claim, p. 3. (Italics added.)\\nThe court is of the opinion that the Notice given did not provide a reasonable description of a claim that defendant Glover was negligent in failing to provide \\\"proper and effective resuscitation\\\" to the infant and plaintiff is not in compliance with Section 8.01-581.2 of the Code. Accordingly, defendant Glover's motion to strike paragraph VII of the amended Motion for Judgment will be granted.\"}"
\ No newline at end of file
diff --git a/va/3785662.json b/va/3785662.json
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--- /dev/null
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+"{\"id\": \"3785662\", \"name\": \"Commonwealth of Virginia v. Garland Hornbaker; Commonwealth of Virginia v. Byron Hornbaker\", \"name_abbreviation\": \"Commonwealth v. Hornbaker\", \"decision_date\": \"1985-01-30\", \"docket_number\": \"Cases No. (Criminal) 4491, 4492\", \"first_page\": \"183\", \"last_page\": \"185\", \"citations\": \"6 Va. Cir. 183\", \"volume\": \"6\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Loudoun County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:34:16.833699+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth of Virginia v. Garland Hornbaker Commonwealth of Virginia v. Byron Hornbaker\", \"head_matter\": \"CIRCUIT COURT OF LOUDOUN COUNTY\\nCommonwealth of Virginia v. Garland Hornbaker Commonwealth of Virginia v. Byron Hornbaker\\nJanuary 30, 1985\\nCases No. (Criminal) 4491, 4492\", \"word_count\": \"646\", \"char_count\": \"3788\", \"text\": \"By JUDGE THOMAS D. HORNE\\nThe defendant has filed several motions which are presently before the Court for review. Counsel have submitted written memoranda of law. These motions include a motion to suppress evidence seized as a result of a warrantless automobile search on May 4, 1984; a motion to suppress evidence seized as a result of a search conducted pursuant to a warrant; a motion to dismiss on grounds of entrapment; and a motion to dismiss pursuant to Section 19.2-294, Code of Virginia, 1980 amended.\\nThe Court finds that the issue of entrapment should properly be raised at trial. See generally Bacigal, Virginia Criminal Procedure, \\u00a7 17-29. Accordingly, the Court will deny the motion to dismiss on grounds of entrapment, with leave to the defendant to raise such defense at the time of trial.\\nThe Court finds that the defendants do not have standing to object to the search of Mr. Moreland's car or the subsequent seizure of certain items from the trunk. Rakus v. Illinois, 439 U.S. 128 (1978); United States v. Salvucci, 448 U.S. 83 (1980); Rawlings v. Kentucky, 448 U.S. 98 (1980). Therefore, the Court will deny the motion to suppress the evidence relating to the seizure of various items from the trunk of the car.\\nThe Court finds that the affidavit for the search warrant states sufficient articulable facts to satisfy the \\\"totality of the circumstances\\\" criteria of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). See also United States v. Leon, 468 U.S. 897, 35 Cr. L. 3273 (1984). Furthermore, the warrant is not a \\\"general warrant.\\\" Andresen v. Maryland, 427 U.S. 463 (1976); United States v. Ladd, 704 F.2d 134 (4th Cir. 1983).\\nThe warrant is an \\\"independent source\\\" sufficient to remove any taint of the prior entry by the police. Segura, et al. v. United States, 468 U.S. 796, 35 Cr. L. 3298 (1984). Assuming, without deciding, the illegality of the prior entry, it would be \\\"wholly irrelevant\\\" to a determination of the propriety of the seizure under the warrant. Segura, supra at 3303, (\\\"fruit of the poisoned tree\\\"). Accordingly, the Court will deny the motion to suppress those items seized pursuant to the search warrant.\\nThe defendant Garland Hornbaker, was arrested by federal law enforcement officers on May 4, 1984. His detention after the stop of the Moreland vehicle was such that any \\\"reasonable person would have believed he was not free to leave.\\\" Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); United States v. Mendenhall, 446 U.S. 544 (1980). An arrest is the initial stage in a criminal prosecution. Terry v. Ohio, 392 U.S. 1 (1968). Under the provisions of Section 19.2-294, it is provided that:\\nif the same act be a violation of both a state and a federal statute, a prosecution or proceeding under the federal statute shall be a bar to a prosecution or proceeding under the state statute.\\nThis arrest was within the parameters for pre-emption under the statute. Sigmon v. Commonwealth, 200 Va. 258 (1958). As the federal officers had made an arrest (whether they later released the defendant before taking him to a magistrate), then this action was a bar to a state prosecution for the same acts, as would have provided probable cause for the arrest. Therefore, as to the defendant Garland Hornbaker, the Court will limit the evidence of the Commonwealth so as to exclude testimony or exhibits relating to the events of May 3 and 4, which preceded his arrest. The exclusion of such evidence will not, however, operate to dismiss the indictment as drawn. The Court will deny the motion with respect to Byron Hornbaker.\"}"
\ No newline at end of file
diff --git a/va/3785706.json b/va/3785706.json
new file mode 100644
index 0000000000000000000000000000000000000000..7c934644f9460a3641b1138019dc08f643715b90
--- /dev/null
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+"{\"id\": \"3785706\", \"name\": \"Ray M. Fite, Jr. v. Gertrude C. Winkelman and Aetna Casualty & Surety Co.\", \"name_abbreviation\": \"Fite v. Winkelman\", \"decision_date\": \"1984-01-13\", \"docket_number\": \"Case No. (Law) 8485-FB\", \"first_page\": \"93\", \"last_page\": \"96\", \"citations\": \"6 Va. Cir. 93\", \"volume\": \"6\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Newport News Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:34:16.833699+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ray M. Fite, Jr. v. Gertrude C. Winkelman and Aetna Casualty & Surety Co.\", \"head_matter\": \"CIRCUIT COURT OF THE CITY OF NEWPORT NEWS\\nRay M. Fite, Jr. v. Gertrude C. Winkelman and Aetna Casualty & Surety Co.\\nJanuary 13, 1984\\nCase No. (Law) 8485-FB\", \"word_count\": \"1135\", \"char_count\": \"7024\", \"text\": \"By JUDGE FRED W. BATEMAN\\nOn December 15, 1981, the plaintiff Fite (hereafter referred to as Fite), while permissively operating his employer's vehicle (insured by defendant The Aetna Casualty and Surety Company, hereafter referred to as Aetna, with uninsured motorist limits of 50/100/25), was involved and injured in an auto accident with the defendant Gertrude C. Winkelman (hereafter referred to as Winkelman), who was insured by Lumbermans Insurance Company (hereafter referred to as Lumbermans, with minimum statutory limits of 25/50). Upon Lumbermans tendering the $25,000. statutory limit of its policy to Fite, a dispute has arisen between Fite and Aetna concerning the limits of Aetna's policy as the same may be applicable to Fite. Aetna concedes the limits of its uninsured motorist endorsement are 50/100/25, but contends that by virtue of Lumbermans tender of its limits of $25,000., Aetna's total possible exposure to Fite is $25,000. by reason of the reduction provision of Section E2 of its uninsured motorist endorsement. Fite contends that Aetna's total possible exposure to him is $50,000. and seeks a determination of the dispute by way of declaratory judgment.\\nVirginia Code Section 8.01-184 et seq deals with declaratory judgments. This section is sufficiently broad to cover the coverage issue raised by Fite. Furthermore, Rodgers v. Danko, 204 Va. 140, 143 (1963), held that that issue (coverage afforded by the policy) may be decided in an action ex contractu brought on the policy by the interest judgment plaintiff or in a declaratory judgment proceeding to determine the rights of the parties.\\nThe significant provisions of Aetna's uninsured motorist endorsement that are in dispute are:\\nParagraph 4B - Uninsured motor vehicle means a land motor vehicle or trailer for which the sum of all liability bonds or policies at the time of an accident provide at least the amounts required by the Virginia Motor Vehicle Safety Responsibility Act, but their limits are less than the limits of this insurance.\\nParagraph B1 - We (Aetna) will pay in accordance with the Virginia Uninsured Motorist Insurance Law all sums the insured is legally entitled to recover as damages from the owner or driver of an uninsured motor vehicle.\\nParagraph B2 - If this insurance provides a limit in excess of the amounts required by the Virginia Motor Vehicle Safety Responsibility Act, we will pay only after all liability bonds or policies have been exhausted by judgments or payments.\\nParagraph E2 - Any amount payable under this insurance shall be reduced by all sums paid by or for anyone who is legally responsible, including all sums paid under the policy's liability insurance.\\nFactually it is undisputed that at the time of the accident in question the minimum limit for each person required by the Virginia Financial Responsibility Act was $25,000. and Winkelman's policy complied therewith; that paragraph 4B of Aetna's uninsured motorist endorsement (commonly known as an underinsured provision) was not required by the Virginia uninsured motorist statute at the time the policy was issued. It is obvious that Aetna's insurance provides the limit in excess of the amount then required by the Virginia Motor Vehicle Safety Responsibility Act and it is undisputed that Lumbermans has tendered the limits of its policy to the plaintiff, hence there is no issue as to priority of coverage.\\nThe remaining issue to be resolved is whether or not Aetna's maximum potential liability to Fite is $25,000. or $50,000. and this appears to be an issue of first impression in Virginia.\\nIn the present case, of course, it is not known what the amount of the judgment, if any, would be in favor of Fite. Consequently, this opinion will deal with the maximum potential liability that Aetna would owe to Fite under the facts in this case.\\nPrior to January 1, 1983, Section 38.1-381 did not mandate the inclusion of under insured coverage in liability insurance policies. Consequently, Aetna was not required to include such a provision in its uninsured motorist endorsement. Accordingly, it would follow that Aetna could provide such coverage under such terms and conditions as it desired, and one would only have to look to that provision in the endorsement to ascertain the coverage and conditions. Counsel for Fite argues that since Aetna chose to define the under insured coverage in paragraph 4 of its endorsement entitled \\\"Uninsured Motor Vehicle,\\\" and the further fact that in paragraph B1 Aetna asserted that it would pay in accordance with the Virginia Uninsured Motorist Insurance Law all sums the insured is legally entitled to recover as damages from the owner or driver of an uninsured motor vehicle, it could not thereafter limit its obligation by virtue of paragraph E2, supra.\\nVirginia Code Section 38.1-381(b) prohibits the issuance of any automobile liability insurance policy in this state \\\"unless it contains an endorsement or provision undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle within limits which shall be no less than the requirement of Section 46.1-1(8)\\\" (in this case $25,000). Paragraph 4(a) of Aetna's endorsement complies with Virginia's Uninsured Motorist Law. Paragraph 4(b), supra, provides for under insurance coverage on which there is no statutory mandate. Paragraphs 4(a) and 4(b) are mutually exclusive. Therefore, Aetna may pay under paragraph 4(a) in accord with Virginia Uninsured Motorist Insurance Law, but this does not mean that such condition is applicable to paragraph 4(b).\\nUnder paragraph 4(b), supra, Aetna may pay under such terms as it may prescribe in clear and unambiguous language. This conclusion is not inconsistent with deci sions of our Supreme Court in a number of cases dealing with \\\"stacking\\\" of uninsured motorist coverage, one of which is Goodville Mutual Casualty Company v. Joanne Borror, 221 Va. 967 (1981), cited by Aetna in support of its position. The specific issue in Goodville was whether an insurer, by terms of its policy, could prevent stacking. The Supreme Court held that the Virginia rule permitted stacking unless the policy, by clear and unambiguous language, prevents such multiple coverage. It further held that the restrictive language contained in Goodville's policy was clear and unambiguous.\\nWhile the Goodville case deals with \\\"stacking,\\\" the law enunciated by the Court appears to be applicable to this case. The language of paragraph E2 of Aetna's policy is clear and unambiguous.\\nThe Court is of the opinion that dependent on the amount of the judgment, if any, that favors Fite against Winkelman, Aetna's maximum potential liability to Fite is $50,000., less the minimum statutory coverage of $25,000. which has been tendered and presumably would be made by Lumbermans.\"}"
\ No newline at end of file
diff --git a/va/3786815.json b/va/3786815.json
new file mode 100644
index 0000000000000000000000000000000000000000..f941b62a9efe0350d9dc4eb503f49a676899a209
--- /dev/null
+++ b/va/3786815.json
@@ -0,0 +1 @@
+"{\"id\": \"3786815\", \"name\": \"Riselli v. William J. Veigel\", \"name_abbreviation\": \"Riselli v. Veigel\", \"decision_date\": \"1995-02-22\", \"docket_number\": \"Case No. (Law) 132397\", \"first_page\": \"68\", \"last_page\": \"69\", \"citations\": \"36 Va. Cir. 68\", \"volume\": \"36\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Fairfax County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:51:40.803418+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Riselli v. William J. Veigel\", \"head_matter\": \"CIRCUIT COURT OF FAIRFAX COUNTY\\nRiselli v. William J. Veigel\\nFebruary 22, 1995\\nCase No. (Law) 132397\", \"word_count\": \"666\", \"char_count\": \"3846\", \"text\": \"By Judge Thomas A. Fortkort\\nThis case was taken under advisement on February 17, 1995, to consider the defendant's motion to dismiss. This is a personal injury auto accident case which was filed on May 20,1994, alleging defendant's negligence in an accident which occurred on May 23, 1992. Service upon \\\"William J. Veigel\\\" was effected by posting at his Old Keene Mill Road address, the same address listed on the police report.\\nOn November 16,1994, Veigel filed a Grounds of Defense. On December 29, 1994, \\\"William J. Veigel\\\" was again served by posting at an address in Manassas. On January 19,1995, he filed by counsel a Grounds of Defense identical to that filed on November 16.\\nNow Veigel moves for dismissal of the suit, arguing that he is not the correct party-defendant; that William J. Veigel, m, is the person involved in the accident; and that since the wrong parly has been named and the real party-defendant was never served, the suit should be dismissed.\\nRiselli replies that the William J. Veigel served with process in Fairfax and in Manassas is the actual and correct party-defendant. Moreover, the omission of the suffix \\\"IQ\\\" at the end of Veigel's name is harmless, the designation being surplusage.\\nThis Court agrees that service was properly made, and denies the motion to dismiss. There is no dispute that the motion for judgment was timely filed within the two-year statute of limitations. After this timely filing, the plaintiff has one year within which to effect service on the defendant. See Rule 3:3. Therefore, defendant's argument that the service effected in Manassas was outside of the two year statute of limitations is without merit The service was effected within one year of the filing of the suit first at the address listed on the police report, then at the address discovered by the plaintiff to be the correct address.\\nAs to the failure of the motion for judgment to include the designation \\\"10\\\" after the defendant's name, this Court believes that the suffix is mere surplusage. Apparently the only Virginia case which comes close to the point is O'Bannon v. Saunders, 65 Va. (24 Gratt.) 138 (1873). There, in a judgment on a debt, die descriptive \\\"Jr.\\\" was omitted from the declaration. The court held that \\\" 'Jr.' is no part of the name, but a mere descriptio personae, and may be rejected as surplusage.\\\" O'Bannon at 146. The court then listed many common law precedents for its holding. Similar cases in West Virginia have held that a proper name consists of the Christian name and surname, Slingluff v. Gainer, 49 W. Va. 7, 37 S.E. 771 (1901), and that middle names or initials are no part of a nan\\u00bb and may be omitted without prejudice. Long v. Campbell, 37 W. Va. 665,17 S.E. 197 (1893).\\nThis Court believes this is a sound view. Timing to the case at hand, the defendant maintains he was not involved in the accident and is the wrong party. The plaintiff maintains he is the correct party and has properly served him. The omission of \\\"HI\\\" from his name in the motion for judgment should not bar the plaintiff from proceeding with her case. She will have to carry the burden of proving at trial that she has named the proper defendant It is enough at this stage of the proceedings that she has named and properly served the person she claims is the correct defendant\\nThe motion to dismiss is denied.\\nSubsequently, the reasoning of O'Bannon was applied in Bassett v. Commonwealth, 222 Va. 855 (1981), which held that a similar defect in the name of a victim in a criminal case was not cognizable error. Although the circumstances of that case are different from die present one, the Supreme Court there did indicate its approval of the O'Bannon reasoning by favorably citing die case on this point\"}"
\ No newline at end of file
diff --git a/va/3794205.json b/va/3794205.json
new file mode 100644
index 0000000000000000000000000000000000000000..9ba53de7ca9966336fd9a5b4b4a468e1fb120230
--- /dev/null
+++ b/va/3794205.json
@@ -0,0 +1 @@
+"{\"id\": \"3794205\", \"name\": \"Johnson Controls, Inc. v. Norair Engineering Corp. et al.\", \"name_abbreviation\": \"Johnson Controls, Inc. v. Norair Engineering Corp.\", \"decision_date\": \"2013-01-10\", \"docket_number\": \"Case No. CL-2012-0006504\", \"first_page\": \"138\", \"last_page\": \"143\", \"citations\": \"86 Va. Cir. 138\", \"volume\": \"86\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Fairfax County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:27:06.818423+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Johnson Controls, Inc. v. Norair Engineering Corp. et al.\", \"head_matter\": \"CIRCUIT COURT OF FAIRFAX COUNTY\\nJohnson Controls, Inc. v. Norair Engineering Corp. et al.\\nJanuary 10, 2013\\nCase No. CL-2012-0006504\", \"word_count\": \"2604\", \"char_count\": \"15158\", \"text\": \"By Judge Michael F. Devine\\nOn December 14, 2012, this case came before the Court on the Defendant's Motion to Dismiss for Failure to Name a Necessary Party and Plea in Bar. After considering the parties' arguments and the applicable provisions of law, the Court grants die motion to dismiss Count IV of the Amended Complaint.\\nBackground\\nThe facts relevant to this motion are undisputed. On February 8,2011, Johnson Controls, Inc. (\\\"JCI\\\") entered into a Purchase Order (the \\\"PO\\\") with Norair Engineering Corp. (\\\"Norair\\\"). Pursuant to the PO, JCI provided fan coil units and related equipment and materials to Norair, which used them in a construction project for which Norair was a subcontractor.\\nAfter Norair failed to pay JCI pursuant to the PO, JCI filed a mechanic's lien on November 1, 2011. On November 29, 2011, Norair petitioned the Court to substitute a bond for the lien pursuant to Va. Code \\u00a7 43-71. That Code provision states as follows:\\nAt any time after the perfecting of any such lien and before a suit be brought for the enforcement thereof. . . parties in interest may, after five days' notice to the lienor, apply to the court... for permission to make such payment into court, or to file such bond, as prescribed in \\u00a7 43-70.. . Upon the granting of such permission, and the payment of such money into court, or the filing of such bond, as the case may be, the property affected thereby shall stand released from such lien.\\nVa. Code \\u00a7 43-71.\\nThe Court granted the petition, and a bond was issued with Norair as principal and Travelers Casualty and Surety Company of America (\\\"Travelers\\\") as surety.\\nJCI then brought this case against Norair and Travelers. After a demurrer and motion for leave to amend were filed and heard, JCI filed its Amended Complaint. The Amended Complaint alleges four causes of action, breach of contract, quantum meruit, and unjust enrichment against Norair (Counts I, n, and IE), and a bond claim against Travelers (Count IV).\\nTravelers argues that the Court must dismiss the bond claim because Norair is a necessary party to the claim and JCI is barred from now adding Norair as a party to that count. JCI filed its response to the motion, and after oral argument, the Court took the matter under advisement.\\nAnalysis\\nA motion to dismiss and plea in bar reduces the case to \\\"a distinct issue of fact which, if proven, creates a bar to the plaintiffs right of recovery.\\\" Tomlin v. McKenzie, 251 Va. 478, 480, 468 S.E.2d 882, 884 (1996). The moving party carries the burden in proving the issue. Id. at 480, 468 S.E.2d at 884. The Court must draw reasonable factual inferences in favor of the non-moving party. Davey Tree Expert Co. v. Jackson, 69 Va. Cir. 350, 351-52 (Fairfax 2005). Indeed, the facts alleged in the complaint are taken as true. See Tomlin, 251 Va. at 480, 468 S.E.2d at 884.\\nTravelers' motion raises two issues this Court must decide. First, the Court must determine whether Norair is a necessaiy party to the bond claim. Second, if Norair is a necessaiy party, the Court must determine whether JCI can now add Norair to the claim.\\nA. Necessary Parties\\nThe Court must first determine whether Norair, the bond principal, is a necessary party to Count IV, which is JCI's attempt to enforce the bond. \\\"A court is powerless to proceed with a suit unless all necessary parties are properly before the court.\\\" Mendenhall v. Douglas L. Cooper, Inc., 239 Va. 71, 74, 387 S.E.2d 468, 470 (1990). Necessary parties are defined as follows:\\nWhere an individual is in the actual enjoyment of the subject matter, or has an interest in it, either in possession or expectancy, which is likely either to be defeated or diminished by the plaintiff's claim, in such case he has an immediate interest in resisting the demand, and all persons who have such immediate interests are necessary parties to the suit.\\nId. at 75, 387 S.E.2d at 470 (quoting Raney v. Four Thirty Seven Land Co., 233 Va. 513, 519-20, 357 S.E.2d 733, 736 (198)).\\nIn the context of mechanic's liens, the Supreme Court of Virginia has held that the beneficiaries and trustees of a deed of trust on the property subject to the lien are necessary parties to a lawsuit to enforce die lien. Walt Robbins, Inc. v. Damon Corp., 232 Va. 43, 48, 348 S.E.2d 223, 227 (1986). The property owners are also necessary parties to such a lawsuit. See Mendenhall, 239 Va. at 75, 387 S.E.2d at 470. The Supreme Court found these parties necessary because of due process principles. Walt Robbins, 232 Va. at 47, 348 S.E.2d at 226. Specifically, the necessary parties have \\\"a property right which entitles [them] to notice and an opportunity to challenge the perfection of the mechanic's lien or to invoke the forfeiture provisions of Va. Code \\u00a7 43-23.1.\\\" Id. at 47, 348 S.E.2d at 226 (emphasis added).\\nWhen a mechanic's lien is bonded off pursuant to the Code, these due process considerations lead to different necessary parties. Unlike lawsuits to enforce the lien itself, the property owners and the beneficiaries and trustees of die deed of trust are not necessary parties to a lawsuit to enforce the bond. George W. Kane, Inc. v. NuScope, Inc., 243 Va. 503, 510, 416 S.E.2d 701, 705 (1992). Instead, the bond principal and surety are necessary parties. Id. at 509-10, 416 S.E.2d at 705.\\nIn the present case, JCI seeks to enforce the bond through Count IV of the Amended Complaint. Count IV names Travelers, the surety on the bond, as the only defendant. Norair, the bond principal, is not named. Thus, Count IV does not include all necessary parties. JCI contends, however, that the prior cases only require JCI to name the bond principal as a party to the lawsuit. According to JCI, it is not necessarily to name the bond principal as a defendant on the specific count relating to the bond.\\nThe Court finds this argument unpersuasive. The cases do state that necessary parties must be made parties to the lawsuit. See Mendenhall, 239 Va. at 75, 387 S.E.2d at 470 (stating that \\\"the new defendants were necessary parties in the suit to enforce\\\"); Walt Robbins, 232 Va. at 48, 348 S.E.2d at 227 (stating that \\\"the trustees and the beneficiary of the deed of trust were not made parties to the suits to enforce\\\"). In both of these cases, however, the missing necessary parties were not named defendants at all in the lawsuits. See Mendenhall, 239 Va. at 74, 387 S.E.2d at 469-70; Walt Robbins, 232 Va. at 44-45, 348 S.E.2d at 224-25. Further, in NuScope, the necessary parties were properly named to the bond claim action. 243 Va. at 505,416 S.E.2d at 702.\\nGiven the facts underlying these prior cases, it is understandable why the Supreme Court would state that necessary parties must be named in the lawsuit, as opposed to some more specific phrasing such as \\\"claim\\\" or \\\"cause of action.\\\" This Court finds no reason to construe the prior cases as merely allowing a plaintiff to name a necessary party to the lawsuit and not the relevant count. See ADS Constr., Inc. v. Bacon Constr. Co., 2012 Va. Cir. lexis 89, *7 (Loudoun 2012) (sustaining a demurrer on necessary party grounds where the plaintiff named only the bond surety as a party to the bond count and the bond principal was a party to other counts in the case). More importantly, the necessary parties cases, as previously noted, are based upon due process principles. A necessary party is entitled to \\\"notice and an opportunity to challenge\\\" the lien. Walt Robbins, 232 Va. at 47, 348 S.E.2d at 227. Norair does have notice because it is named to other causes of action in this case; however, Norair does not presently have an opportunity to challenge JCI's lien. To successfully enforce the bond, JCI must prove \\\"the same elements of [its] claim that [it] would have had to prove in a suit to enforce the lien released by that bond.\\\" NuScope, 243 Va. at 509,416 S.E.2d at 704. Since Norair is not a party to the bond claim, it has no right to defend JCI's perfection of the lien, which JCI must prove in the bond action. Moreover, Norair has no right to present defenses to the bond claim generally. Norair gains this right only if it is named to the bond claim count.\\nDuring oral argument, JCI suggested that the bond itself holds Norair and Travelers jointly and severally liable. Moreover, the Code requires JCI to sue the surety on the bond when seeking to enforce the bond. Va. Code \\u00a743-71. According to JCI, it was therefore entitled to sue either party under the bond, thought it was only required to sue Travelers under the Code. This argument similarly does not appreciate the due process principles outlined in the cases. As a party whose interests may be affected, Norair must be given the right to defend the bond claim, regardless of what the bond itself may state.\\nFor these reasons, the Court finds that Norair is a necessary party to Count IV of the Amended Complaint.\\nB. Statute of Limitations\\nHaving found that Norair is a necessary party to the bond claim, the Court must next determine whether JCI is barred from now adding Norair as a party. \\\"[A] suit, time-barred as to any necessary party, must be dismissed because such necessary party is not subject to the court's jurisdiction.\\\" Mendenhall, 239 Va. at 75, 387 S.E.2d at 470.\\nThe Code provides the relevant statute of limitations as follows:\\nNo suit to enforce any lien... shall be brought after six months from the time when the memorandum of lien was recorded or after sixty days from the time the building, structure, or railroad was completed or the work thereon otherwise terminated, whichever time shall last occur.\\nVa. Code \\u00a7 43-17. In this case, the parties agree that JCI filed its memorandum of mechanic's lien on November 1, 2011. Accordingly, the statute of limitations ran on May 1,2012.\\nDuring oral argument, JCI repeatedly referred to the six month statute of limitations applicable in this case. Thus, JCI does not apparently contest that Va. Code \\u00a7 43-17 applies to bond enforcement actions, even though it refers to lien enforcement actions. Nonetheless, the Court affirms that Va. Code \\u00a7 43-17 applies to bond enforcement actions, which is consistent with this Court's prior rulings. See SLM Concrete v. Rice, 24 Va. Cir. 132, 134 (Fairfax 1991) (stating that \\\"the legislature did not intend to substitute the contract limitation period of Section 8.01-246(2) for the six-month limitations period set forth in Va. Code \\u00a7 43-17 to enforce a lien when it enacted \\u00a7 43-71\\\").\\nSince the statute has run, fire Court can allow amendment only if the relation back doctrine applies. If an amended pleading \\\"simply varies and expands the original cause of action,\\\" then it automatically relates back to the date the original pleading was filed. Neff v. Garrard, 216 Va. 496, 498, 219 S.E.2d 878, 879 (1975) (citations omitted). Conversely, if the amended pleading \\\"introduces a new or different cause of action, or makes a new or different demand,\\\" it does not relate back to the initial filing. Id. at 498, 219 S.E.2d at 879. In such a situation, the Court can allow amendment only if some other provision of law provides for relation back.\\nIn this case, JCI undoubtedly seeks to add a new cause of action against Norair. JCI contends that it can rely upon the relation back provision in Va. Code \\u00a7 8.01-6.1 to add Norair as a party to Count IV. That provision states that \\\"an amendment of a pleading changing or adding a claim or defense against a party relates back to the date of the original pleadings\\\" if the Court finds that three factors are met. Va. Code \\u00a7 8.01-6.1. Importantly, however, the Code specifically states that this relation back provision does not apply to \\\"mechanics' lien claims or defenses.\\\" Id. Indeed, the courts have applied the six month statute rigidly in the context of lien enforcement lawsuits, not allowing such relation back. See Mendenhall, 239 Va. at 76, 387 S.E.2d at 471 (dismissing the plaintiff's case because the necessary parties were not made parties within the six month statute of limitations).\\nThe Court acknowledges that, when a bond is substituted for a lien, \\\"the mechanic's lien would cease to exist, leaving the bond as the mechanic's sole recourse.\\\" NuScope, 243 Va. at 509, 416 S.E.2d at 704. Thus, the present case is somewhat factually different from Mendenhall because there is no longer a lien in place. That distinction does not, however, change the substance of the case. \\\"[W]ith respect to a bond enforcement suit, the party-plaintiff has the burden of proving the same elements of his claim that he would have had to prove in a suit to enforce the lien released by that bond.\\\" Id. at 509, 416 S.E.2d at 704. Indeed, the Code itself establishes that the bond \\\"shall be subject to the final judgment of the court adjudicating the lien . to be valid and determining the amount for which the same would have been enforceable against the real estate in any suit... brought for the ascertainment of the rights of the parties in interest.\\\" Va. Code \\u00a7 43-71.\\nThe Court holds that, when a party seeks enforcement of a bond posted pursuant to Va. Code \\u00a7 43-71, the substantive and procedural requirements of the mechanic's lien statutes apply. The bond merely substitutes the security given to the mechanic. It does not change the underlying claims or defenses raised by the parties. Accordingly, JCI cannot rely upon the relation back statute to cure its failure to name a necessary party within the statute of limitations. The Court finds no authority stating otherwise. Indeed, this ruling is consistent with those of this Court and other circuits. See Rice, 24 Va. Cir. at 136-37 (denying the plaintiff's motion for leave to amend because the six month statute had run); ADS Construction, 2012 Va. Cir. lexis 89, *8 (sustaining a demurrer because the plaintiff could not amend its complaint to add a necessary party after the six month statute had run).\\nJCI notes that \\\"enforcement statutes are to be construed liberally while the requirements of the perfection statute are to be construed strictly.\\\" American Standard Homes Corp. v. Reinecke, 245 Va. 113, 119, 425 S.E.2d 515, 518 (1993). This Court has previously noted that the statute of limitations in bond enforcement actions \\\"is a condition precedent to the maintenance of the suit.\\\" Rice, 24 Va. Cir. at 135 (citing Barksdale v. H. O. Engen, Inc., 218 Va. 496, 498, 237 S.E.2d 794, 796 (1977)). Thus, compliance with the statute of limitations should be strictly construed, which is consistent with cases discussing statute of limitations in the context of liens. See Mendenhall, 239 Va. at 76, 387 S.E.2d at 471 (construing the statute of limitations strictly).\\nFor these reasons, the Court finds that JCI is barred from amending Count IV to include Norair.\\nConclusion\\nThe Court finds that Norair is a necessary party to Count IV of the Amended Complaint, and JCI is barred by the statute of limitations from now adding Norair as a party. Accordingly, the Court dismisses Count IV. The Court will enter an order dismissing Count IV and incorporating this opinion.\"}"
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+"{\"id\": \"3795170\", \"name\": \"John S. Supchak v. Fuller Construction Corp. et al. v. Westwood Contractors, Inc., G&B Earthworks, Inc., and Excel Paving Corp.\", \"name_abbreviation\": \"Supchak v. Fuller Construction Corp.\", \"decision_date\": \"2013-07-12\", \"docket_number\": \"Case No. CL10-1999\", \"first_page\": \"517\", \"last_page\": \"525\", \"citations\": \"86 Va. Cir. 517\", \"volume\": \"86\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Chesapeake Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:27:06.818423+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John S. Supchak v. Fuller Construction Corp. et al. v. Westwood Contractors, Inc., G&B Earthworks, Inc., and Excel Paving Corp.\", \"head_matter\": \"CIRCUIT COURT OF THE CITY OF CHESAPEAKE\\nJohn S. Supchak v. Fuller Construction Corp. et al. v. Westwood Contractors, Inc., G&B Earthworks, Inc., and Excel Paving Corp.\\nJuly 12, 2013\\nCase No. CL10-1999\", \"word_count\": \"3537\", \"char_count\": \"21990\", \"text\": \"By Judge Randall D. Smith\\nOn Februaiy 6, 2013, this matter was before the Court on Defendants' demurrers. The Court has considered the arguments of counsel, the briefs submitted to the Court, and the applicable law. The Court stands ready to rule.\\nI. Background\\nJohn S. Supchak alleges that he was injured on September 19,2008, as a business invitee at 1417 Battlefield Blvd., a property owned/operated by 1417 Battlefield, L.L.C., and operated/managed by Harmony Investments, Inc. (\\\"Harmony\\\"). Menyman Grounds Maintenance, Inc. (\\\"Merryman\\\") was responsible for grounds maintenance at the property. Fuller Construction Corp. (\\\"Fuller\\\") was performing construction work on the property at the time, including work on the walkway area. Plaintiff allegedly slipped and fell due to an unexpected drop-off and debris at the edge of the walkway under construction. Plaintiff seeks damages from Fuller and three other entities for his injuries, jointly and severally.\\nHarmony and 1417 Battlefield, L.L.C., filed a Cross-Claim against Fuller seeking indemnification. (Harmony Ans. \\u00b6 14.)\\nFuller filed a Third-Party Complaint against Westwood Contractors, Inc. (\\\"Westcon\\\"), G&B Earthworks, Inc. (\\\"G&B\\\"), and Excel Paving Corp. (\\\"Excel\\\"). Fuller alleges Westcon and G&B contracted with Fuller to perform service on the walkway and that G&B had contracted with Excel to perform G&B's services for Fuller. Fuller alleges G&B, Westcon, and Excel were performing services for Fuller at the time of Plaintiff's injury. In its Amended Third-Party Complaint, Fuller plead five counts based on the proposition that, if Fuller is liable to Plaintiff or Cross-Claim Plaintiffs, then the Third-Party Defendants are liable to Fuller.\\nOn April 17, 2012, the Court sustained the Third-Party Defendants' demurrers to Counts I, HI, IV, and V. The Court overruled Third-Party Defendants' demurrers to Count EL Fuller filed an Amended Third-Party Complaint. Westcon, G&B, and Excel filed demurrers to Fuller's Amended Third-Party Complaint.\\nII. Standard of Review\\n\\\"A demurrer tests the legal sufficiency of facts alleged in pleadings, not the strength of proof.\\\" Glazebrook v. Board of Supervisors of Spotsylvania County, 266 Va. 550, 554, 587 S.E.2d 589,591 (2003). Further, a demurrer \\\"admits the truth of the facts contained in the pleading to which it is addressed, as well as any facts that may be reasonably and fairly implied and inferred from those allegations. A demurrer does not, however, admit the correctness ofthe pleader's conclusions of law.\\\" Taboada v. Daily Seven, Inc., 271 Va. 313, 317, 626 S.E.2d 428, 429 (2006); Harris v. Kreutzer, 271 Va. 188, 195, 624 S.E.2d 24, 28 (2006).\\nTo survive a challenge by demurrer, a \\\"pleading must be made with 'sufficient definiteness to enable the court to find the existence of a legal basis for its judgment'.\\\" Eagle Harbor L.L.C. v. Isle of Wight County, 271 Va. 603, 611, 268 S.E.2d 298, 302 (2006) (quoting Moore v. Jefferson Hospital, Inc., 208 Va. 438, 440, 158 S.E.2d 124, 126 (1967)). Rule 1:4(d) of the Rules of the Supreme Court of Virginia states: \\\"Every pleading shall state the facts on which the party relies in numbered paragraphs, and it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense.\\nA trial court is \\\"not permitted on demurrer to evaluate and decide the merits of the allegations set forth in a [Complaint], but only may determine whether the factual allegations of the [Complaint] are sufficient to state a cause of action.\\\" Harris, 271 Va. at 195-96, 624 S.E.2d at 24 (quoting Riverview Farm Assocs. Va. Gen. P'ship v. Board of Supervisors, 259 Va. 419, 427, 528 S.E.2d 99,103 (2000)); accord Almy v. Grisham, 273 Va. 68, 76, 639 S.E.2d 182, 186 (2007) (\\\"[A] demurrer presents an issue of law, not an issue of fact.\\\").\\nVirginia Code \\u00a7 8.01-273 states, in part: \\\"All demurrers shall be in writing and shall state specifically the grounds on which the demurrant concludes that the pleading is insufficient at law. No grounds other than those stated specifically in the demurrer shall be considered by the court.\\\"\\nIE. Count I: Negligence\\nFuller argues Westcon, G&B, and Excel are liable to Fuller for any amount the Court finds that Fuller is liable to Plaintiff. Fuller claims that Westcon, G&B, and Excel are independent contractors and, therefore, had a duty to protect third parties from injury caused by negligent acts of independent contractors.\\nIt is well established by Supreme Court of Virginia Rule 3:18(b) that an allegation of negligence is sufficient without specifying the particulars of the negligence.\\nThe Supreme Court of Virginia has observed:\\nWhen a . . . complaint contains sufficient allegations of material facts to inform a defendant of the nature and character of the claim, it is unnecessary for the pleader to descend into statements giving details of proof in order to withstand demurrer. And, even though a... complaint may be imperfect, when it is drafted so that defendant cannot mistake the true nature of the claim, the trial court should overrule the demurrer....\\nCaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993) (citations omitted). In light of these principles, a demurrer to a complaint on the grounds that it contained only 'Vague and generic allegations\\\" was overruled where the complaint:\\n[R]efers to the duty of [the defendant], it alleges it was negligent in that it \\\"failed to inspect the rear of the trailer for proper lighting, and carelessly and negligently failed to maintain proper or sufficient lighting on the rear of the trailer and further carelessly and negligently failed to inspect the underride guard and negligently failed to maintain the trailer and its underride guard.\\\"\\nDudley v. Cash, 82 Va. Cir. 1, 9 (2010).\\nSimilarly, another circuit court overruled a demurrer on the same grounds for eight subparagraphs of a complaint where the plaintiff alleged that a physician had failed to properly evaluate her before prescribing medication, failed to monitor the effects of the medication on her, and that he prescribed medication that was inappropriate for her condition, to which she had a demonstrated sensitivity, were contraindicated, and which were known to cause complications with plaintiff's other conditions. Elliot v. Cook, 60 Va. Cir. 1,2 (2002). However, the circuit court did sustain the demurrer as to one other subparagraph of the complaint, which alleged negligence \\\"[i]n such other ways as may come to light as discovery progresses,\\\" on the grounds that it contained no facts and did not alert the defendants to the true nature of the claim. Id. at 2-3.\\nDespite the liberal pleading standard in negligence actions, Fuller has alleged very few facts regarding the negligence of Westcon, G&B, and Excel in the Amended Third-Party Complaint. Fuller has pleaded (1) it contracted with Westcon and G&B and that G&B contracted with Excel, (2) that the parties provided services on the properly prior to or at the time of Plaintiff's accident, (3) that Plaintiff allegedly slipped and/or tripped on the property, and (4) that these defendants had duties to the Plaintiff, the public, and Fuller to adopt \\\"safe measures to perform their work and any other necessary protective devices to protect the plaintiff and the public while using the area in which the work was performed.\\\"\\nThese allegations appear to be significantly less that the pleadings in Dudley and Elliot, which contained at least some facts describing how or in what manner the defendants breached their duty of care. Instead, the Amended Third-Party Complaint appears to plead as much negligence as pleaded in the subparagraph for which the demurrer was sustained in Elliot. The Third-Party Complaint does not contain any facts of how any duty was breached by these defendants and does not alert them to the true nature of the claim, except that the Plaintiff fell on the premises that these defendants were providing services to during or after the time those services were provided. Therefore, Westcon's, G&B's, and Excel's demurrers are sustained as to Count I.\\nIV. Count II: Breach of Contract\\nFuller argues Westcon, G&B, and Excel are liable to Fuller for any amount the Court finds that Fuller is liable to Plaintiff by virtue of breach of contract.\\n\\\"The elements of a breach of contract action are (1) a legally enforceable obligation of a defendant to a plaintiff, (2) the defendant's violation or breach of that obligation, and (3) injury or damage to the plaintiff caused by the breach of obligation.\\\" Filak v. George, 267 Va. 612, 619, 594 S.E.2d 610, 614 (2004). Using the contract itself or its express words is \\\"generally the best and safest mode\\\" of pleading a breach of contract, however the plaintiff may also make his claim \\\"in equivalent words.\\\" Smith v. Lloyd, 57 Va. (16 Gratt.) 295 (1862). Additionally, Rule l:4(d) requires pleadings to \\\"state the facts on which the party relies in numbered paragraphs, and it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense.\\\" Va. S. Ct. R. 1:4(d).\\nAlthough Fuller has pleaded that it entered into a contract directly with Westcon and G&B and indirectly with Excel, Fuller has failed to plead any facts indicating what obligations were breached by Westcon, G&B, and Excel under the contracts and how Westcon, G&B, and Excel allegedly breached those obligations. Fuller simply references Section 7 of the Subcontract between Westcon and Fuller and Article 4.6 of the Terms and Conditions of Agreement between Contractor and Subcontractor between G&B and Fuller. (Fuller Ex. 5; Fuller Ex. 6.) G&B contracted with Excel to perform part of the work G&B had agreed to perform for Fuller. Section 2.2 of that subcontract states that Excel owes the same duties to Fuller as to G&B. Fuller does not provide any facts as to how Westcon, G&B, or Excel breached their contracts with Fuller. As such, Fuller has failed to plead sufficient facts to show a breach of contract. Therefore, Westcon's, G&B's, and Excel's demurrers are sustained as to Count II.\\nV. Count III: Contractual Indemnity\\nFuller argues Westcon, G&B, and Excel are required to indemnify Fuller either through express contract or by common law/equitable indemnity.\\nIndemnity is very similar to contribution, except that indemnity \\\"must necessarily grow out of a contractual relationship.\\\" VEPCO v. Wilson, 221 Va. 979, 982, 277 S.E.2d 149, 150 (1981) (citing Jennings v. Franz Torwegge Machine Works, 347 F. Supp. 1288 (W.D. Va. 1972)). Parties to an indemnification agreement are entitled to enforce that agreement. Farmers Ins. Exch. v. Enterprise Leasing Co., 281 Va. 612, 619, 708 S.E.2d 852, 856 (2011). When a party seeks to enforce an indemnity provision in an express contract, \\\"and no provision of the contract provides otherwise, he may recover reasonable attorney's fees and expenses of litigation spent in defense of the claim indemnified against.\\\" Appalachian Power Co. v. Sanders, 232 Va. 189, 196, 349 S.E.2d 101, 106 (1986).\\nA. Express Contract for Indemnification\\nFuller argues that its express contracts with Westcon, G&B, and Excel require the Third-Party Defendants to indemnify Fuller.\\nSection 7 of the Subcontract between Fuller and Westcon states, \\\"To the fullest extent permitted by law, Subcontractor shall indemnify and hold harmless... Contractor.... This indemnification... shall apply only to the extent that the claim or loss is caused in whole or in part by any negligent act or omission of Subcontractor. . . . This indemnity shall be effective regardless of whether the claim or loss is caused in some part by a parly to be indemnified.\\\" (Fuller Ex. 5.)\\nArticle 4.6.1 of the Subcontract between Fuller and G&B states, \\\"To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless... the Contractor... but only to the extent caused in whole or in part by negligent acts or omissions of file Subcontractor's... regardless of whether or not such a claim, damage, loss, or expense is caused in part by a party indemnified hereunder.\\\" (Fuller Ex. 6.)\\nVa. Code Ann. \\u00a7 11-4.1 provides that certain indemnification provisions in construction contracts are void as against public policy. Specifically:\\nany provision contained in any contract relating to the construction of projects other than buildings by which the contractor performing such work purports to indemnify or hold harmless another party to the contract against liability for damage arising out of bodily injury to persons or damage to property suffered in the course of performance of the contract, caused by or resulting solely from the negligence of such other party or his agents or employees, is against public policy and is void and unenforceable.\\nVa. Code Ann. \\u00a7 11-4.1.\\nThe Supreme Court of Virginia has interpreted this statute to \\\"void[] any indemnification provision that reaches damage caused by the negligence of the indemnitee, even if the damage does not result from the negligence of the indemnitee. Uniwest Constr. v. Amtech Elevator Serv., Inc., 280 Va. 428, 442, 699 S.E.2d 223, 230 (2010).\\nIn Uniwest, the Supreme Court ofVirginia found void an indemnification clause that stated, \\\"If any claims . be made or asserted, whether or not such claim(s) are based upon the negligence of Uniwest or [Fountains], [Amtech] agrees to indemnify and save harmless Uniwest from any and all such claims----\\\" Id. (emphasis in original). The Supreme Court ofVirginia found that the language was so broad that it indemnified Uniwest for its own negligence. Id. at 442, 230. As such, the indemnification provision violated Va. Code Ann. \\u00a7 11-4.1 and was declared void. Id.\\nSimilarly, in this case, it appears that Fuller is attempting to indemnify itself for its own negligence in Section 7 of the Subcontract with Westcon and Article 4.6.1 of the Subcontract with G&B. The language in the indemnification clause in Uniwest and the subject provisions here is almost identical. As in Uniwest, the subject provisions require the indemnitor to indemnify the indemnitee regardless of whether the indemnitee's own negligence caused the claim. The language of Section 7 and Article 4.6.1 reaches beyond the negligence of other parties and indemnifies Fuller. As such, the subject provisions violate Va. Code Ann. \\u00a7 11-4.1 and are void. Therefore, the Court sustains Westcon's and G&B's demurrers with respect to Fuller's claim for indemnification by express contract.\\nFuller and Excel did not enter into a contract. Rather, Excel and G&B entered into a contract that referenced Fuller. As such, an express contract between Fuller and Excel does not exist. As such, Fuller cannot maintain a claim for indemnification by express contract. Therefore, the Court sustains Excel's demurrer with respect to Fuller's claim for indemnification by express contract.\\nB. Implied Indemnification\\nFuller argues Westcon, G&B, and Excel are required to indemnify Fuller by reason of common law indemnity. Implied indemnity must grow out of a contractual relationship. See RML Corp. v. Lincoln Window Products, Inc., 67 Va. Cir. 545, 562 (2005).\\nIn this case, Fuller alleges an express indemnity contract between the parties. However, Fuller failed to plead any facts indicating a separate implied indemnity contract existed between the parties. Fuller did not provide facts regarding any conversations, actions, warranties, or agreements between the parties that would provide the basis for an implied indemnity contract. As such, Fuller has failed to plead sufficient facts to show an implied indemnification contract.\\nTherefore, Court sustains Westcon's, G&B's, and Excels' demurrers as to implied indemnification.\\nC. Equitable Indemnification\\nIn the alternative, Fuller argues Westcon, G&B, and Excel are required to indemnify Fuller by reason of equitable indemnity.\\nThe Supreme Court of Virginia has recognized claims for indemnity arising in non-contractual cases. \\\"Equitable indemnification arises when a party without personal fault is nevertheless legally liable for damages caused by the negligence of another.\\\" Carr v. The Homes Ins. Co., 250 Va. 427, 430, 463 S.E.2d 457, 458 (1995). \\\"A prerequisite to recovery based on equitable indemnification is the initial determination that the negligence of another person caused the damage. Without that determination, neither the negligent actor nor the innocent party can be held liable for the damages claimed.\\\" Id.\\nIn Carr, the subrogee filed a motion for judgment against the subrogor. Id. at 429-30. The Court found that, at the time the subrogee filed the motion for judgment to recover damages, no determination of negligence had been made. Id. at 430. Because a prerequisite to recovery based on equitable indemnification is the initial determination that the negligence of another person caused the damage, the Court held the elements necessary to support equitable indemnification were not met. Id.\\nIn this case, Fuller seeks to allege a claim of equitable indemnification rather than to collect a judgment based on equitable indemnification as in Carr. Although a finding of negligence is required to collect damages based on equitable indemnification, it does not appear a finding of negligence is required to allege a claim of equitable indemnification. As such, Fuller's allegation of equitable indemnification is appropriate at this stage in the pleadings.\\nHowever, as discussed above, Fuller has failed to allege sufficient facts to maintain a suit for negligence against Westcon, G&B, and Excel. As such, it follows that Fuller has not pleaded sufficient facts to maintain a claim of equitable indemnification against Westcon. Equitable indemnification requires a finding of negligence, and Fuller has not provided sufficient facts to even maintain a suit for negligence against Westcon, G&B, and Excel. As such, the Court sustains Westcon's, G&B's, and Excel's demurrers as to equitable indemnification.\\nVI. Count IV: Indemnity Active-Passive\\nFuller argues Westcon, G&B, and Excel must indemnify Fuller for any damages found against Fuller because any negligence by Fuller was passive and/or secondary and any negligence by Westcon, G&B, and Excel was active and/or primary.\\nActive/passive indemnify \\\"arises between parties from equitable considerations . . . [where] the indemnitee is liable to the injured party because of some positive duty created by statute or common law, however, the actual cause of injury to the third party was the act of the indemnitor.\\\" RML Corp v. Lincoln Window Products, Inc., 67 Va. Cir. 545, 564 (2005) (quoting Teleglobe USA, Inc. v. USA Global Link, Inc., 52 Va. Cir. 553, 558 (1999)).\\nOn April 17, 2012, this Court sustained the Third-Party Defendants' Demurrer for Count IV. No additional facts were added to the Amended Third-Party Complaint that would distinguish the allegations in Count IV of the Amended Third-Party Complaint from the allegations in Count IV of the initial Third-Party Complaint. In paragraph 5, Fuller includes allegations from Plaintiff's Complaint. Fuller also includes additional citations. However, none of these additional \\\"facts\\\" include allegations of what positive duty was created between the parties by statute or common law. As such, Count IV of the Amended Third-Party Complaint and Count IV of the initial Third-Party Complaint are indistinguishable. The Court sustains Westcon's, G&B's, and Excel's demurrers as to Count IV.\\nVII. Count V: Contribution\\nFuller also seeks contribution from Westcon, G&B, and Excel. Virginia Code \\u00a7 8.01-34 permits contribution among wrongdoers when the wrong results from negligence and involves no moral turpitude. However, \\u00a7 8.01-34 \\\"does not create any greater liability than existed before its enactment.\\\" Norfolk Southern RR v. Gretakis, 162 Va. 597, 600, 174 S.E. 841, 842 (1934). The Supreme Court of Virginia has explained, \\\"[B]efore contribution may be had, it is essential that a cause of action by the person injured lie against the alleged wrongdoer from whom contribution is sought. Further, this right arises only when one tortfeasor has paid or settled a claim for which other wrongdoers are also liable.\\\" Bartlett v. Roberts Recapping, Inc., 207 Va. 789, 793, 152 S.E.2d 193, 196 (1967). See also Gemco-Ware, Inc. v. Rongene Mold & Plastics Corp., 234 Va. 54, 58, 260 S.E.2d 342, 344-45 (1987) (\\\"But if such cause of action existed, the right of action to recover contribution arises upon discharge of the common obligation \\u2014 \\\").\\nIn Gretakis, the defendant railroad could not seek contribution from the minor plaintiff's father because the parental immunity doctrine prohibited an action by the minor against his father. 162 Va. at 600, 174 S.E. at 842. Likewise, the plaintiffs in VEPCO v. Wilson could not recover against Wilson, their employer, because they had received workers' compensation; therefore, VEPCO could not seek contribution from Wilson. 221 Va. 979, 980, 277 S.E.2d 979, 980 (1981).\\nRegardless of whether Fuller has pleaded sufficient facts to show that Plaintiff has a cause of action against Westcon, G&B, or Excel, Fuller cannot maintain its contribution claim against any of these defendants. The right of contribution only arises when one wrongdoer has paid or settled a claim for which other wrongdoers are also liable. Fuller has neither paid nor settled with Plaintiff; therefore, Fuller cannot seek contribution from Westcon, G&B, or Excel. Therefore, the Court sustains Westeon's, G&B's, and Excel's demurrer as to Count V.\\nVIH. Conclusion\\nUpon the briefs and oral arguments of counsel, the Court sustains the demurrers of Westcon, G&B, and Excel as to Counts I, n, III, IV, and V of Fuller's Amended Third-Parly Complaint.\"}"
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+"{\"id\": \"3859843\", \"name\": \"Terry Monroe v. Melissa Rae Taylor; Thalisa Monroe v. Melissa Rae Taylor; Robert Jackson v. Melissa Rae Taylor\", \"name_abbreviation\": \"Monroe v. Taylor\", \"decision_date\": \"1994-01-19\", \"docket_number\": \"Case No. (Law) 18888-WS; Case No. (Law) 18886-WS; Case No. (Law) 18887-WS\", \"first_page\": \"521\", \"last_page\": \"522\", \"citations\": \"49 Va. Cir. 521\", \"volume\": \"49\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Newport News Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T01:33:51.170040+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Terry Monroe v. Melissa Rae Taylor Thalisa Monroe v. Melissa Rae Taylor Robert Jackson v. Melissa Rae Taylor\", \"head_matter\": \"CIRCUIT COURT OF THE CITY OF NEWPORT NEWS\\nTerry Monroe v. Melissa Rae Taylor Thalisa Monroe v. Melissa Rae Taylor Robert Jackson v. Melissa Rae Taylor\\nCase No. (Law) 18888-WS\\nCase No. (Law) 18886-WS\\nCase No. (Law) 18887-WS\\nJanuary 19, 1994\", \"word_count\": \"577\", \"char_count\": \"3522\", \"text\": \"By Judge J. Warren Stephens\\nThe court has considered the pleadings, die evidence, the authorities submitted by and argument of counsel and renders its opinion respecting defendant Melissa Rae Taylor's pleas of sovereign immunity.\\nThe Supreme Court of Virginia beginning with its decision in James v. Jane, 221 Va. 43, 53 (1980), and subsequently outlined with particularity in Messina v. Burden, 228 Va. 301, 313 (1984), has developed a four-factor test to be employed to determine if government employees are clothed with immunity. The parties at the time of the hearing on August 17, 1983, stipulated that the first three factors of that test were satisfied, namely, (1) the nature of the function performed by the employee, (2) the extent of the school board's interest and involvement in die function, and (3) the degree of control and direction exercised by the school board over the employee. The issue comes down to whether the act complained of by the plaintiffs involved the use by the employee of judgment and discretion.\\nAt die time of die collision, Taylor was operating a school bus loaded with students en route from the school along her assigned route when she was involved in a rear-end collision with the vehicle occupied by the three plaintiffs.\\nTaylor relies on James and Messina and on Stanfield v. Peregoy, 245 Va. 339 (1993), asserting that she was actually performing the governmental function of transporting school children while operating a school bus. Plaintiffs rely on the opinion in Heider v. Clemons, 241 Va. 143 (1991), contending that the simple operation of a school bus does not involve special risks arising from governmental activity or the exercise of judgment or discretion about the proper means of effectuating the governmental purpose of Taylor's employer. Plaintiffs further contend that the facts in the subject actions are clearly distinguishable from those in Stanfield, i.e., Taylor's operation of the school bus was a simple, routine traffic act and was thus ministerial. The court is not persuaded.\\nThe operation of a loaded school bus clearly involves exercise of judgment and discretion by the driver who has the responsibility for picking up die children at the school site, supervising the conduct of the children while on the bus and assuring herself that each pupil properly and safely alights from the same. In Stanfield, the city employee was required to exercise discretion and judgment as to (1) what streets required plowing or salting or both, (2) the amount of salt to be applied and where, and (3) whether or not to undertake the plowing and salting at all. At page 1170, die Supreme Court concluded by stating \\\"In die present case, die defendant was not just operating a government vehicle utilized for salting snow and ice. Rather, the defendant was actually performing the governmental function while operating such vehicle.\\\"\\nThe court is of the opinion and finds that at the time of the collision of which complaint is made by the plaintiffs, Taylor was performing the governmental function of transporting school children while operating the bus, thus the fourth factor of the test is satisfied.\\nTaylor's special pleas of sovereign immunity are sustained, and she is dismissed as a party defendant in each action.\"}"
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+"{\"id\": \"3875477\", \"name\": \"John E. Crews v. Richmond Newspaper, Inc.\", \"name_abbreviation\": \"Crews v. Richmond Newspaper, Inc.\", \"decision_date\": \"1987-12-10\", \"docket_number\": \"Case No. LK1294-4\", \"first_page\": \"311\", \"last_page\": \"319\", \"citations\": \"10 Va. Cir. 311\", \"volume\": \"10\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Richmond Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T19:57:52.550487+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John E. Crews v. Richmond Newspaper, Inc.\", \"head_matter\": \"CIRCUIT COURT OF THE CITY OF RICHMOND\\nJohn E. Crews v. Richmond Newspaper, Inc.\\nDecember 10, 1987\\nCase No. LK1294-4\", \"word_count\": \"2802\", \"char_count\": \"17050\", \"text\": \"By JUDGE RANDALL G. JOHNSON\\nPlaintiff filed this action to recover damages sustained in a fall which he alleges occurred when his fee became entangled in a plastic band or strap of the kind used to bundle newspapers and other items.\\nCount I of the motion for judgment alleged that Richmond Newspapers was negligent in that the strap \\\"had been negligently, carelessly, and recklessly left in the area [of plaintiff's fall] by agents, servants, and employees of the defendant.\\\" Count II alleged that the straps used by defendant \\\"were unreasonably dangerous for their intended use and, in the condition in which they were negligently left in the area where plaintiff fell, they constituted a dangerous instrumentality.\\\" The case was tried to a jury on November 24 and 25, 1987. At the close of plaintiff's case-in-chief, defendant moved to strike plaintiff's evidence as to both counts of the motion for judgment on the grounds, inter alia, that (1) the evidence was insufficient to present a jury question as to whether the strap which caused plaintiff's fall was ever owned or used by Richmond Newspapers, Inc.; (2) even if the strap had been shown to belong to Richmond Newspapers, there was no evidence to show that any of plaintiff's employees were guilty of negligence proximately causing plaintiff's fall; and (3) even if it could be inferred that the strap was negligently discarded by a Richmond Newspaper carrier, and that such negligence did proximately cause plaintiff's injuries, such carrier is, as a matter of law, an independent contractor for whose negligence defendant is not liable. In addition, defendant moved to strike the evidence with regard to Count II on the ground that no evidence was presented to show that the straps used by defendant were unreasonably dangerous for their intended use, that is, to bundle newspapers. The court agreed that no evidence was presented with regard to plaintiff's dangerous instrumentality theory, and accordingly granted defendant's motion to strike in that regard. The remainder of defendant's motion, however, was denied. Defendant then presented its case, after which plaintiff put on rebuttal evidence.\\nAt the close of all the evidence, defendant renewed its option to strike on the grounds previously relied upon, which motion was taken under advisement. After instructions and closing arguments, the case was submitted to the jury, which returned a verdict for plaintiff for $50,000. Defendant moved to set the verdict aside and enter final judgment for defendant, again on the grounds previously relied upon, and on the additional ground that immediately prior to retiring to reach a verdict, one of the jurors asked the court if the jury was \\\"also supposed to determine how much plaintiff should get,\\\" or words to that effect. That motion was also taken under advisement.\\nOn June 25, 1984, at approximately 9:00 a.m., plaintiff was walking east through the intersection of Cary Street and the Boulevard in the City of Richmond. As he neared the east curb, he fell and severely injured his right knee. According to the testimony of plaintiff and Wilbert King, who was walking in the same direction but some distance behind, plaintiff's fall was caused, as previously indicated, by his feet becoming entangled in the plastic strap. Both men also testified that the strap was still wrapped around plaintiff's ankles as he lay on the ground, and that there were three or four other straps along the curb. The investigating officer testified that when he arrived, plaintiff was holding the strap which plaintiff says caused his fall. The officer also verified the fact that other straps were in the area. Plaintiff was taken to the hospital where he was admitted and treated. The evidence is clear that his injuries were severe and that they were caused by his fall.\\nAt this point, two additional observations must be made. First, while plaintiff, King, and Officer Sparrow all testified that immediately after the accident, plaintiff was either holding the strap which caused his fall or that it was still wrapped around his ankles, no one now knows what happened to it. It was not submitted at trial. Instead, a different strap was introduced. Plaintiff, King, and Officer Sparrow all testified that the strap introduced at trial \\\"looks just like\\\" or is at least \\\"similar to\\\" the one that tripped plaintiff. Moreover, Oscar Meyers, defendant's superintendent in charge of preparing defendant's newspapers for delivery, when shown the strap introduced at trial, testified that it was a strap used by defendant.\\nSecond, there was no testimony as to how the strap which tripped plaintiff came to be in the street; that is, whether it was thrown there by a carrier, blown there by the wind, fell off a truck, or got there some other way. There was evidence, however, that the location of plaintiff's fall was near a \\\"drop-site\\\" for defendant's newspapers; that is, a place where bundled papers are left by defendant's trucks for the carrier. There was also evidence that a newspaper vending machine owned by defendant was located on the southwest corner of the subject intersection. With the above facts in mind, I now turn to a consideration of defendant's motions.\\nThe first two grounds of defendant's motions are related. In essence, defendant argues that since there was no direct evidence that the particular straps which caused plaintiff's fall belonged to Richmond Newspapers, or that anyone associated with Richmond Newspapers was responsible for the strap being where it was, no jury question could exist as to those issues. In support of its argument, particularly on the issue of ownership of the strap, defendant cites the testimony of J. Marsicano, the area distributor for Signode Corporation, which supplies the bundling straps used by defendant. According to Marsicano, defendant is only one of many customers who purchase and make use of Signode straps in the Richmond area. Among those other customers are at least one other newspaper company, magazine publishers, a corrugated box manufacturing company and two or more meat and poultry producers. In all, marsicano stated that at least fifteen customers other than defendant purchase Signode straps from him. He further testified that each of those customers purchase straps identical to those purchased by defendant, and that once used, it is impossible to tell who had purchased a particular strap. In addition, Marsicano testified that Signode is only one of several manufacturers of plastic straps, and that other manufacturers also sell to customers in and around Richmond. According to Marsicano, differences in Signode's straps and those of other manufacturers are indiscernible to the naked eye and can only be noted by intricate measurement or chemical analysis. These facts, according to defendant, raise such a strong possibility that the strap which caused plaintiff's fall belonged to someone other than defendant, that a jury could find defendant liable only by engaging in improper speculation.\\nTo counter this argument, plaintiff points to the circumstantial evidence referred to previously. Specifically, plaintiff cites the fact that plaintiff's fall occurred in an area \\\"near\\\" one of defendant's drop-sites, and the fact that one of defendant's vending boxes was located across the street. In addition, defendant cites Marsicano's testimony that even though defendant is only one of several of Signode's customers, it purchases 20% of the strapping sold by Signode in the Richmond area. Finally, defendant refers to several cartoons and articles in Carrier Progress, a publication produced by defendant for distribution to its carriers. Those cartoons and articles warn carriers about the dangers of leaving straps on the ground, and also state that several people have been injured as a result of tripping on improperly discarded straps. Since any fact which may be proved by direct evidence may be proved by circumstantial evidence (see, e.g., Northern Virginia Power Co. v. Bailey, 194 Va. 464, 470 (1952)), plaintiff argues that all of the above factors make the question of Richmond Newspapers' liability a proper one for the jury. The court disagrees.\\nIt is well-settled that negligence cannot be presumed from the mere happening of an accident. Moreover:\\nThe burden is on the plaintiff to produce evidence of preponderating weight from which the trier of fact can find that the defendant was guilty of negligence which was a proximate cause of the accident. The evidence must prove more than a probability of negligence. The plaintiff must show why and how the accident happened. And if the cause of the accident is left to conjecture, guess, or random judgment, the plaintiff cannot recover. Sneed v. Sneed, 219 Va. 15, 17 (1978).\\nWith regard to circumstantial evidence, Sneed teaches that in order to establish a prima facie case of negligence, such evidence must do more than show that an accident resulted from one of two causes, for one of which defendant is responsible and for the other of which it is not. 219 Va. at 18. See also, Farren v. Gilbert, 224 Va. 407, 411 (1982). And in General Accident, Fire, etc. v. Murray, 120 Va. 115 (1916), the Court stated:\\n[T]he right to recover. . . must be established by a preponderance of the evidence adduced in the case, and not be based merely upon conjecture, guess or random judgment, that is, upon mere supposition without a single known fact. 120 Va. at 126.\\nThe above cases are controlling here. In the case at bar, plaintiff proved by direct evidence that he tripped on a strap and fell. He also proved that the strap which caused his fall was similar to the kind used by defendant, that a vending box operated by defendant was located across the street, and that the situs of the fall was near one of defendant's drop-sites. This is all plaintiff proved. Everything else relied upon by plaintiff to establish defendant's liability is based on conjecture, guess, or random judgment. Thus, in order for plaintiff to recover, a jury would have to infer that the strap which tripped up plaintiff was a Signode strap. If that inference could properly be drawn, the jury would then have to infer that it was one of the 20% of the Signode straps sold in the Richmond area to defendant, rather than one of the 80% sold in the same area to other customers. Next, even if both of those inferences could properly be drawn, the jury would then have to infer that defendant's strap was negligently discarded by a person or persons for whose negligence defendant is liable, rather than by someone else; for example, a refuse collector who negligently allowed a properly discarded strap to escape its container or a bookstore owner who buys bundles of newspapers and improperly discarded the strap in question. The court does not believe that these inferences can properly be drawn.\\nFirst, to conclude that the strap which caused plaintiff's fall is the same one which was used to bundle any of defendant's newspapers is to ignore the evidence that Signode is only one of several manufacturers who sell the same type of straps in the Richmond area, and that it is impossible for laymen such as plaintiff and his witnesses to differentiate between those straps. Such a conclusion also ignores the fact that the vast majority of Signode straps, 80%, are purchased and used by Richmond area customers other than defendant.\\nSecond, such a conclusion is not bolstered by the presence of a newspaper vending box across the street from plaintiff's fall since there was no evidence that bundling straps were ever placed, inadvertently or on purpose, in or around such box by defendant's agents or employees.\\nFinally, the fact that plaintiff's fall occurred near one of defendant's drop-sites does little to lessen the speculation required to find liability on the part of defendant. As defendant points out, there is hardly a place in Richmond which is not \\\"near\\\" one of defendant's drop-sites. Moreover, there is no evidence to show, and no reason to believe, that carriers or other persons identified with defendant are more likely to improperly discard their straps than are employees or agents of other users of similar straps in the Richmond area. To base a finding of liability on the mere fact of proximity between the location of plaintiff's fall and the location of defendant's drop-site is to require defendant to be a guarantor of the safety of everyone in Richmond with regard to improperly discarded straps, regardless of whose straps they are. Because a finding of liability on the part of defendant on the circumstantial evidence presented in this case can only be made upon the type of \\\"conjecture, guess or random judgment\\\" frowned upon in General Accident, Fire, etc. v. Murray, supra, defendant's motions to strike and to set aside the verdict must be granted.\\nAside from the above reasons for granting defendant's motions, the court would also grant those motions upon an additional ground. If the plaintiff were entitled to a proper, favorable inference from the proximity between the location of his fall and the location of defendant's drop-site, that inference would be that the subject strap was negligently discarded by one of defendant's carriers. The evidence is uncontroverted that all of defendant's carriers at the time in question were covered by one of two standard contracts issued by defendant, with the only difference in those contracts being that one provides for a discount in the wholesale price paid by the carriers\\nfor the newspapers, and the other does not. The court has reviewed those contracts and finds no difference between them and the contract considered by the Supreme Court of Virginia in Richmond Newspapers v. Gill, 224 Va. 92 (1982). Gill involved a claim under the Workmen's Compensation Act by the administrator of a newspaper carrier who was killed in an automobile accident while he was delivering newspapers for the same defendant as is involved here. In interpreting the precise standard form contract which is involved in the case at bar, the Supreme Court held that such contract made the carrier an independent contractor, and not an employee. While the present action does not arise under the Workmen's Compensation Act, the Court in Gill specifically noted:\\n[Wjhether a person is an employee or an independent contract \\\"is governed, not by any express provision of the workmen's compensation law, but by the common law.\\\" Hann v. Times-Dispatch Pub. Co., 166 Va. 102, 105, 184 S.E. 183, 184 (1936). The Act \\\"does not undertake to change, as between themselves, the rights of owners and independent contractors. This statute leaves that relationship as it was at common law, and we must look to it in determining who is master and who is servant.\\\" Crowder v. Haymaker, 164 Va. 77, 79, 178 S.E. 803, 804 (1935). Gill, supra, at 97 (footnote omitted).\\nBecause no facts were introduced in this case to distinguish the contract which covered al of defendant's carriers in Richmond at the time of plaintiff's accident from the contract before the Supreme Court in Gill, this court must conclude that even if a jury could infer that it was a Richmond Newspapers' carrier who negligently discarded the strap, that carrier was necessarily an independent contractor. And since an employer is not liable for the negligence of an independent contractor, defendant cannot be liable for the \\\"inferred\\\" negligence of a carrier here. See, e.g., Norfolk & Western Railway v. Johnson, 207 Va. 980 (1967) cert. denied, 389 U.S. 995 (1967); Broaddus v. Standard Drug Co., 211 Va. 645 (1971); Smith v. Grenadier, 203 Va. 740 (1962).\\nFor the reasons stated above, defendant's motion to strike plaintiff's evidence, which motion was previously taken under advisement by the court, will be granted; the verdict of the jury will be set aside; and final judgment will be entered in favor of defendant.\\nBecause of the court's decision with regard to the three grounds set out above, the propriety of the juror's question need not be addressed. The court has also received a pleading from defendant titled \\\"Amendment to Motion to Set Aside Jury Verdict,\\\" which asserts as an additional reason to set aside the verdict the fact that the jury was allowed to consider whether the person who allegedly discarded the strap was an employee or an independent contractor when, according to defendant, that question is one of law and not fat. The court feels that this \\\"additional\\\" ground is identical to one of the grounds already relied upon. Therefore, it will not be addressed separately.\\nPlaintiffs fall occurred a few feet from the southeast intersection.\\nOf course, such a result would be avoided where the actual strap causing a fall is available for inspection and testing to determine ownership. In cases such as the one at bar, however, defendant's burden to \\\"disprove\\\" ownership is virtually impossible.\"}"
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+"{\"id\": \"3904388\", \"name\": \"Commonwealth of Virginia v. Abdirizak Abdulahi Siad\", \"name_abbreviation\": \"Commonwealth v. Siad\", \"decision_date\": \"1997-03-06\", \"docket_number\": \"Case No. (Criminal) 9463\", \"first_page\": \"95\", \"last_page\": \"100\", \"citations\": \"42 Va. Cir. 95\", \"volume\": \"42\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Loudoun County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T01:33:56.775527+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth of Virginia v. Abdirizak Abdulahi Siad\", \"head_matter\": \"CIRCUIT COURT OF LOUDOUN COUNTY\\nCommonwealth of Virginia v. Abdirizak Abdulahi Siad\\nMarch 6, 1997\\nCase No. (Criminal) 9463\", \"word_count\": \"2272\", \"char_count\": \"13351\", \"text\": \"By Judge James H. Chamblin\\nOn January 28,1997, the defendant was tried without a jury on a charge of possession with intent to distribute cathinone, a Schedule I controlled substance, in violation of Virginia Code \\u00a7 18.2-248. After consideration of the evidence and argument of counsel, both at trial and in the memoranda requested by the Court, the defendant, Abdirizak Abdulahi Siad, is found not guilty of the charge for the reasons set forth hereafter.\\nEvidence\\nOn October 13,1994, the defendant arrived at Dulles International Airport in Loudoun County on a United Airlines flight from London. He had a large suitcase (approximately two feet by three feet by twelve inches) and a carry-on bag. When he reached the primary customs checkpoint, he presented the inspector with a \\\"Customs Declaration\\\" in which he placed an \\\"X\\\" in the block for \\\"No\\\" to the following declaration:\\nI am/we are bringing fruits, plants, meats, food, soil, birds, snails, other live animals, farm products, or I/we have been on a farm or ranch outside the U.S.\\nHe was directed with his luggage to a secondary checkpoint. He did not go directly to that checkpoint, and the inspector had to yell at the defendant to get him to go to the secondary checkpoint.\\nAt the secondary checkpoint, the defendant presented the declaration to Customs Inspector Cullum, placed the large suitcase on a belt, and opened it. The suitcase was filled with a \\\"vegetable substance\\\" described by Cullum as \\\"bundles of plants\\\" tied up with cords like \\\"some greens\\\" or \\\"beet tops.\\\"\\nCullum suspected the plants to be khat (pronounced \\\"cot\\\") which he had seen before. He asked the defendant what it was, and he said he had the right to bring it into the United States and it should not be illegal. Cullum called a supervisor to look at the suitcase and its contents. Cullum testified that the defendant was \\\"argumentative\\\" but gave no specifics.\\nThe suitcase was closed, and it and the defendant were taken to a search room. Other inspectors came to the room. Eventually the suitcase and its contents were turned over to Investigator Gary Gaither of the Loudoun County Sheriff's Department. The defendant raised no objection to the chain of custody of the suitcase, its contents, or that part of its contents which were eventually sent to the Northern Virginia Laboratory for analysis.\\nWhile the defendant was in the search room at Dulles Airport, Special Agent Philip Reed of the United States Customs interviewed the defendant after he was advised of and waived his rights. The defendant said that he was in route to Chicago for a cousin's wedding, that the khat was his (the defendant used the word \\\"khat\\\" but never said \\\"cathinone\\\"), that he was taking it to the wedding, and that it was traditional in his culture to smoke it at weddings.\\nInvestigator Gaither testified that khat is a plant native to East Africa and Saudi Arabia. Its technical or scientific name is catha edulis. Photographs of khat were introduced as Commonwealth's Exhibit 4. Gaither testified that it is chewed like tobacco, but the juice is swallowed. Its effect is similar to alcohol, making one, for example, hyper and talkative. He acknowledged that it is used by East Africans such as Ethiopians, and also by Muslims during ceremonies such as weddings and holidays.\\nGaither testified that both cathinone and cathine are found naturally in khat. Cathinone is a Schedule I controlled substance, and Cathine is a Schedule IV controlled substance. He never testified that \\\"khat\\\" is the street name for cathinone or cathine.\\nGaither took possession of the suitcase and its contents. A sample of the khat was bagged by Gaither, frozen, and sent to the laboratory for analysis. It was frozen by Gaither \\\"to keep its potency intact.\\\" The certificate of analysis received in evidence without objection as Commonwealth's Exhibit 9 showed the item described as \\\"sealed packaging containing plant material\\\" which was analyzed as \\\"cathinone (Schedule I), 655.3 grams of plant material.\\\"\\nThe defendant was bom in Somalia, but he is now an American citizen. He came to the United States at age nineteen. He is now thirty-two. His family is in Somalia, except for the cousin in Chicago. In October 1994, he lived in Chicago. He went to London in early October to visit an uncle having surgery. When he left London to return to Chicago, he was asked by family in London to bring the khat for the cousin's wedding.\\nThe defendant and his family are actively practicing Muslims. When he grew up in Somalia, khat was around \\\"all the time.\\\" Although he has never chewed it, he has been around persons who have. He has attended weddings in Somalia and London where khat was used. He does not know how it is grown. He has seen numerous people chew khat, but he has never seen anyone become violent while chewing it.\\nThe defendant testified that khat is legal in London. He said he checked \\\"No\\\" in the customs declaration as set forth above because of a prior experience in 1990 when he brought khat into Toronto where it was taken from him as a violation of Canadian agricultural regulations. He was not charged with a crime. He checked \\\"No\\\" because he feared that United States Customs would take the khat and it would spoil his cousin's wedding. He testified that he did not think that the khat was illegal, but it could be taken away from him for agricultural reasons.\\nThe defendant does not remember arguing with the customs inspectors or saying that he felt that khat should be legal.\\nMohammed Sudi, a friend of the defendant and a United States citizen but bom in Somalia (he came to the United States in 1978 at age twenty-four), testified that he had experience with khat growing up in Somalia. He said that it grows in Kenya and Ethiopia, and Somalis use it for weddings. The older generations used it to help them stay up late to read the Koran. He further testified that khat is legal in London and Somalia.\\nLegal Analysis\\nInitially, it is important to recognize that the defendant is not charged with possession with intent to distribute khat. He is charged with possession with intent to distribute cathinone. The controlled substance is cathinone. Khat is not a controlled substance in Virginia.\\nThe Commonwealth has the burden to prove beyond a reasonable doubt that the defendant knew the nature and character of the controlled substance, i.e. cathinone, he is charged with possessing with intent to distribute. Anderson v. Commonwealth, 19 Va. App. 64, 67 (1994). He does not have to know the accurate and precise name of the substance, but only that it is a controlled substance which is illegal to possess with intent to distribute. Id. at 67.\\nThe model jury instruction (No. 23.340) for this offense would be as follows:\\nKnowledge that the drug possessed is a controlled substance is an element of the crime of possessing with intent to distribute. Thus, you may not find the defendant guilty of such crime unless you believe beyond a reasonable doubt that he was aware that the substance he possessed was a controlled substance. It is not necessary, however, for you to find that the defendant was aware that the very act of possessing cathinone was against the law.\\nThis instruction was approved by the Court of Appeals in Anderson, 19 Va. App. at 64, where it was held that the refusal to give it in a distribution case was error, but because of the way counsel argued the scienter requirement and because the jury could not have properly found that the defendant lacked the requisite knowledge, the refusal was found to be harmless error.\\nSection 18.2-248 is a penal statute. Such a statute is construed strictly against the Commonwealth and favorably to the liberty of a citizen. Such a statute must be limited to cases clearly within the language used. See, e.g., Harward v. Commonwealth, 229 Va. 363 (1985). A penal statute must be construed as to proscribe only the conduct which the General Assembly clearly intended to be within the statute's ambit. Battle v. Commonwealth, 12 Va. App. 624 (1991). Under \\u00a7 18.2-248, it is \\\"unlawful for any person to . possess with intent to . distribute a controlled substance .\\\" Under \\u00a7 54.1-3446, cathinone is a controlled substance. Strictly construed, the statute makes it unlawful to possess with intent to distribute cathinone, not a plant containing cathinone.\\nThe defendant had cathinone in his possession because the laboratory found it in the khat seized from the defendant on October 13,1994. But there is also the constitutionally required scienter element. Here there was no evidence that the defendant was aware of the character and nature of cathinone. He was aware of the character and nature of khat, but he was not aware of the cathinone found in khat.\\nWhile the defendant suspected that there may be some agricultural regulatory problems in bringing khat into the United States, I cannot find beyond a reasonable doubt that he knew that cathinone was in khat and that cathinone was a controlled substance. He could well have thought that khat may be a controlled substance to some extent because he had a prior experience in Canada when khat was confiscated from him. But that knowledge only applied to khat, not to cathinone.\\nThe Commonwealth has cited no cases indicating that an accused can be found guilty of possessing a controlled substance found in a plant when the accused's knowledge extended only to the nature and character of the plant. Defense counsel stated that he could find no reported cases concerning khat. There could be a variety of reasons for it, but I feel that it only shows that few persons are ever charged with possessing cathinone when they are possessing khat because khat is not a controlled substance. If khat needs to be controlled, then it should be done by the legislature, not the courts.\\nIf an accused merely has some reason to feel that a particular plant which is not controlled has some legal impediments to it (e.g., it cannot be brought into the United States), he does not have the requisite knowledge of the nature and character of the controlled substance found in the plant. He cannot be deemed to know, absent some special knowledge, the nature and character of all the substances found in the plant.\\nThis is not a situation where the defendant merely did not know the chemical name of the controlled substance. It is not a \\\"green\\\" means PCP case, as Anderson, 19 Va. App. at 64, or \\\"pot\\\" or \\\"weed\\\" means marijuana, as Ritter v. Commonwealth, 210 Va. 732 (1970), or Anderson v. Commonwealth, 215 Va. 21 (1974). Regardless of the words used by Investigator Gaither, I cannot find from his testimony that khat is the street name for cathinone. He never used the words \\\"street name.\\\" At most, he said that khat was the natural form of cathinone, but his own testimony was that khat contained two different controlled substances, cathine as well as cathinone. I cannot help but conclude that khat is not cathinone because khat contains other things besides cathinone.\\nThis is also not about the defendant's only being convicted if the substance is in its pure form. The defendant could be convicted if he knew that khat contained cathinone and he was aware of the nature and character of cathinone. The cathinone could be found in or mixed with other things as long as the defendant had knowledge of the cathinone. If the defendant knew about the cathinone, then it would be similar to PCP sprayed on parsley or cigarettes, or cocaine cut with lactose.\\nI agree that the defendant does not have to know that it is illegal to possess cathinone, but he still must be aware of the nature and character of cathinone. In this case I have a reasonable doubt that the defendant was aware of the nature and character of cathinone.\\nThis decision is not made because khat is \\\"not common.\\\" This decision flows from the simple proposition that the crime charged concerns possession of cathinone, not possession of khat.\\nThe case of Staples v. United States, 114 S. Ct. 1793 (1994), cited by the defendant provides a very logical approach for cases involving a defendant with general knowledge of a class of items, some of which are illegal to possess but lacking specific knowledge of what makes a specific item illegal to possess. In Staples, a prosecution under the National Firearms Act, the Supreme Court held that in order to be convicted of possessing a machine gun in violation of the Act, the government has to prove beyond a reasonable doubt that the defendant knew that the rifle he possessed had the characteristics that brought it within the definition of a machine gun. Although this case is not completely analogous, there is a significant similarity. Machine guns are legitimate items for governmental control as are certain types of substances. Mr. Staples' claim of ignorance of the automatic firing capabilities of the rifle he possessed is similar to the claim of the defendant that he did not know that khat contained a controlled substance. Unlike Staples, the controlled item is not one subject to control because of modifications to it but is a substance found in an item, a plant, not subject to control by law.\\nFor the foregoing reasons, the defendant is found not guilty.\"}"
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+"{\"id\": \"3910438\", \"name\": \"Primrose Development Corp. et al. v. Benchmark Acquisition Fund I, L.P.\", \"name_abbreviation\": \"Primrose Development Corp. v. Benchmark Acquisition Fund I, L.P.\", \"decision_date\": \"1998-10-29\", \"docket_number\": \"Case No. (Law) 19161\", \"first_page\": \"296\", \"last_page\": \"299\", \"citations\": \"47 Va. Cir. 296\", \"volume\": \"47\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Loudoun County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:51:54.546323+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Primrose Development Corp. et al. v. Benchmark Acquisition Fund I, L.P.\", \"head_matter\": \"CIRCUIT COURT OF LOUDOUN COUNTY\\nPrimrose Development Corp. et al. v. Benchmark Acquisition Fund I, L.P.\\nOctober 29, 1998\\nCase No. (Law) 19161\", \"word_count\": \"1360\", \"char_count\": \"8422\", \"text\": \"BY JUDGE JAMES H. CHAMBLIN\\nThis cause is before the Court on the Defendant's Plea in Bar to Count n of the First Amended Motion for Judgment. Count B is an unjust enrichment claim which the Defendant asserts is barred by the applicable three-year statute of limitations. Upon consideration of the record and argument of counsel on October 2,1998, the Plea in Bar is overruled for the reasons that fellow.\\nThe overall events giving rise to this litigation are not in dispute. In March of 1990, the developers of the Cascades subdivision entered into a Master Cable Television Cascades Service Agreement (\\\"cable agreement\\\") with Defendant Benchmark Acquisition Fund I, Limited Partnership (\\\"Benchmark\\\"), giving Benchmark, inter alia, the right to install and operate a cable television system in the Cascades subdivision and the exclusive right to provide cable service to the residents of the subdivision. In exchange, Benchmark agreed to install and operate such a system, reimburse the developers for their cost in constructing conduits through which the cable would run under public roads and driveways, and to pay the developers a fee of $260.00 for each new occupied residential unit passed by the cable system. A residential unit was considered \\\"passed\\\" once a main cable line had been installed along the street adjacent to that unit. The unit fee was to increase by ten percent each year and was payable within thirty days of the end of each quarterly period for those new units that had been occupied and provided with the appropriate access to cable during the previous quarter.\\nIn September of 1990, the original developers of the Cascades subdivision assigned their respective rights and obligations under the cable agreement to the Plaintiffs herein, Primrose Development Corporation (\\\"Primrose\\\") and Bondy Way Development Corporation (\\\"Bondy Way\\\"). Benchmark apparently made all appropriate payments to the Plaintiffs under the terms of the cable agreement through the quarter ending March 31, 1994, but has made, according to the First Amended Motion for Judgment, no such payments since then. Beginning with the quarter ending June 30, 1994, and continuing through the quarter ending March 31,1997, Benchmark allegedly accumulated an indebtedness totaling $935,101.00 in quarterly unit fees owed to the Plaintiffs and $28,318.00 in unpaid reimbursements for the Plaintiffs' conduit construction costs.\\nThe Plaintiffs filed a Motion for Judgment against Benchmark on May 19, 1997, asserting a claim for breach of contract. Benchmark subsequently filed Affirmative Defenses and Counterclaims seeking to have the cable agreement rescinded or adjudged unenforceable. On December 29,1997, Primrose and Bondy Way filed, with leave of this Court, a First Amended Motion for Judgment, adding Count n, a claim for unjust enrichment. The Plaintiffs assert that regardless of the cable agreement's enforceability, they may recover against Benchmark for the rights, goods, and services provided by them to Benchmark in connection with the installation and operation of the cable television system in Cascades. Otherwise, they contend, Benchmark is unjustly enriched at the Plaintiffs' expense. Thereafter, Benchmark filed the instant Plea in Bar to Count II of the First Amended Motion for Judgment.\\nTurning to that plea of the statute of limitations, neither side disputes that the Plaintiffs' claim for unjust enrichment, although a claim in equity, is subject to the statute of limitations; nor that, pursuant to Virginia Code \\u00a7 8.01-246(4), the statute of limitations that is to be applied is three years.*See Belcher v. Kirkwood, 238 Va. 430, 432, 433 (1989); Tsui v. Sobral, 39 Va. Cir. 486, 488 (Fairfax 1996); see generally, Po Water and Sewer v. Indian Acres Club, 255 Va. 108, 114 (1998) (holding that equity will effect a contract implied in law to avoid unjust enrichment); Harbour Gate Owners Assn. v. Berg, 232 Va. 98, 106 (1986) (holding that a contract implied in law is governed by the three-year statute of limitation of Code \\u00a7 8.01-246(4)).\\nThe parties to this matter differ, however, on the question of when the statute of limitations started to run. The Defendant argues that the Plaintiffs' unjust enrichment claim accrued in September 1990 when the Plaintiffs first conferred the alleged benefits on Benchmark, i.e., when Benchmark first exercised its right to run cable television lines in the Cascades development. The Plaintiffs contend that their cause of action did not accrue until July 30, 1994, when Benchmark failed for the first time to pay the fees and conduit construction costs that were due pursuant to the cable agreement.\\n\\\"A cause of action is the operative set of facts giving rise to a right of action. It accrues when a wrongful act or breach of duty occurs, even though actual damage may not occur until a later date.\\\" Harbour Gate Owners 'Assn., 232 Va. at 105. The requirements for relief under the doctrine of unjust enrichment are as follows:\\n(1) One party has conferred a benefit by rendering services or expending properties on the other;\\n(2) This person has a reasonable expectation of being compensated;\\n(3) The benefits were conferred at the express or implied request of the person receiving them; and\\n(4) If the defendant is allowed to retain the benefits without compensating the plaintiff, he would be unjustly enriched.\\nThe Court is of the opinion that a cause of action for unjust enrichment accrues when the unjust enrichment of the defendant actually occurs; that is, at the moment the expected compensation is not paid. There is no breach of the contract implied in law prior to that moment.\\nIn this case, Benchmark's enrichment became unjust only when Benchmark stopped making the expected payments to the Plaintiffs for the benefits they conferred on the Defendant. The first agreed payment date that passed without payment being made by Benchmark was July 30, 1994. Prior to July 30,1994, Benchmark had paid in accordance with the cable agreement those sums that were expected for the benefits conferred on it by the Plaintiffs. Hence, the Plaintiffs could make no demand for unpaid compensation prior to July 30,1994. It was only then that the unit fees and the reimbursement for the Plaintiffs' conduit construction costs for the previous quarter became due and went unpaid. Thus, the Plaintiffs had no unjust enrichment cause of action until July 30,1994. Accordingly, the Court finds that the Plaintiffs' claim for unjust enrichment accrued to the Plaintiffs on July 30,1994, at which time the statute of limitations started to run.\\nTo withstand Benchmark's plea of the statute of limitations, the Plaintiffs' claim for unjust enrichment must therefore have been brought within three years of July 30, 1994. The suit itself was commenced on May 19, 1997; however, the First Amended Motion for Judgment, which introduced Count n, was not filed until December 29,1997. The Plaintiffs assert that their unjust enrichment claim was timely filed in that it relates back to the filing of the original Motion for Judgment, pursuant to Virginia Code \\u00a7 8.01-6.1.\\nThe Court agrees. The claim asserted in Count II of \\u00bfte First Amended Motion for Judgment arose out of the same \\\"conduct, transaction, or occurrence\\\" set forth in the original Motion for Judgment, Primrose and Bondy Way were \\\"reasonably diligent in pleading the amended claim,\\\" and Benchmark will not be \\\"substantially prejudiced in litigating on the merits as a result of the timing of the amendment.\\\" Virginia Code \\u00a7 8.01-6.1.\\nTherefore, as it was brought no later than three years from July 30,1994, Count II is not time barred.\\nHaving made such a determination, the Court would also note that by the same token, the Plaintiffs may make no claim under a theory of unjust enrichment for compensation for any benefits rendered by them to the Defendant prior to April 1, 1994. April 1,1994, marks the beginning of the quarter for which the Plaintiff were not allegedly paid for the benefits they provided Benchmark. There are no allegations that any compensation is owed to Primrose and Bondy Way by Benchmark for services or rights rendered prior to that day. Furthermore, any unjust enrichment that occurred prior to April 1,1994, would be time barred.\"}"
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+"{\"id\": \"3921207\", \"name\": \"Jones v. Jones\", \"name_abbreviation\": \"Jones v. Jones\", \"decision_date\": \"1989-10-03\", \"docket_number\": \"Case No. (Chancery) 689-88\", \"first_page\": \"318\", \"last_page\": \"319\", \"citations\": \"17 Va. Cir. 318\", \"volume\": \"17\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Chesterfield County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:04:12.945774+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jones v. Jones\", \"head_matter\": \"CIRCUIT COURT OF CHESTERFIELD COUNTY\\nJones v. Jones\\nOctober 3, 1989\\nCase No. (Chancery) 689-88\", \"word_count\": \"230\", \"char_count\": \"1396\", \"text\": \"By JUDGE WILLIAM R. SHELTON\\nI have reviewed defendant's motion for leave to amend his cross-bill and plaintiff's motion to amend the bill of complaint in the above-referenced case. I am of the opinion that defendant's motion should be granted and plaintiff's motion denied.\\nBoth parties seek to amend their pleadings to allege adultery. The crucial factual difference is that the plaintiff's alleged adultery occurred after the filing of the cross-bill, whereas the defendant's adultery occurred prior to and was known by the plaintiff at the time of the filing of the bill of complaint. To allow the defendant to amend would be consistent with the holdings in Coe v. Coe, 225 Va. 616 (1983), and Rosenberg v. Rosenberg, 210 Va. 44 (1969), in which the Court allowed amendment to include the ground of adultery when the adultery occurred subsequent to the filing of the bill of complaint.\\nThe plaintiff's position is less compelling. The bill of complaint alleges that adultery took place but prays for relief on the ground of desertion. Obviously, the plaintiff was aware of the defendant's adultery and was in a position to request relief on that ground at the time of filing suit.\\nI would ask Mr. Burgess to prepare the appropriate Order granting defendant's motion and denying plaintiff's motion.\"}"
\ No newline at end of file
diff --git a/va/3926302.json b/va/3926302.json
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+"{\"id\": \"3926302\", \"name\": \"Commonwealth of Virginia v. Phillip Mark Corrie\", \"name_abbreviation\": \"Commonwealth v. Corrie\", \"decision_date\": \"1990-03-06\", \"docket_number\": \"Case No. (Criminal) 62715\", \"first_page\": \"110\", \"last_page\": \"112\", \"citations\": \"20 Va. Cir. 110\", \"volume\": \"20\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Fairfax County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:48:46.398547+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth of Virginia v. Phillip Mark Corrie\", \"head_matter\": \"CIRCUIT COURT OF FAIRFAX COUNTY\\nCommonwealth of Virginia v. Phillip Mark Corrie\\nMarch 6, 1990\\nCase No. (Criminal) 62715\", \"word_count\": \"820\", \"char_count\": \"5107\", \"text\": \"By JUDGE ROSEMARIE ANNUNZIATA\\nThe case before the Court arises from defendant's constitutional challenge to \\u00a7 18.2-460(A) on the grounds that the statute is impermissibly vague and overbroad in violation of the First and Fourteenth amendments of the United States of America. Phillip Mark Corrie was arrested on August 13, 1989, and charged with the obstruction of justice for failure to give the arresting officer his correct name and age. Corrie claims his refusal was intended as a protest to his arrest under the circumstances. He relies on Houston v. Hill, 482 U.S. 451 (1987), in support of his contention that the Virginia statute in question is unconstitutional.\\nIn Houston, the challenged statute reads:\\n(a) It shall be unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest. Code of Ordinances, City of Houston, Texas, \\u00a7 34-11(a) (1984).\\nThe Court in Houston held that the First Amendment \\\"protects a significant amount of verbal criticism and challenge directed at\\\" arresting officers, Id., at 461, and struck down the ordinance concluding it swept protected speech within its ambit.\\nWhen a statute is challenged as unconstitutionally vague and overbroad, the Court must first determine whether a substantial amount of constitutionally-protected conduct is within the enactment's reach. Houston v. Hill, 482 U.S. at 481, citing Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982); Kolender v. Lawson, 461 U.S. 352 (1983).\\nVirginia Code \\u00a7 18.2-460(A) provides:\\nA. If any person without just cause knowingly obstructs a judge, magistrate, justice, juror, witness, or any law enforcement officer in the performance of his duties as such or fails to refuses without just cause to cease such obstruction when requested to do so by such judge, magistrate, justice, juror, witness or law enforcement officer, he shall be guilty of a Class 4 misdemeanor. (Code 1950, \\u00a7 18.1-310, c. 358; 1975, cc. 14, 15; 1976, c. 269; 1984, c. 571; 1989, c. 506).\\nAlthough defendant contends \\u00a7 18.2-460(A) encompasses protected speech within the scope of its prohibition, the language of the paragraph A, as framed and as construed by the Virginia Court of Appeals and Supreme Court, is sufficiently circumscribed to exclude protected speech. Love v. Commonwealth, 212 Va. 492 (1971). (\\\"To constitute obstruction of an officer in the performance of his duty . . . there must be acts clearly indicating an intention on the part of the accused to prevent the officer from performing his duty, as to obstruct ordinarily implies opposition or resistance by direct action and forcible or threatened means.\\\" Jones v. Commonwealth, 141 Va. 471, 478-79, 126 S.E. 74, 77 (1925); see Polk v. Commonwealth, 4 Va. App. 590, 594 (1987).\\nUnlike the ordinance struck down in Houston, the Virginia statute proscribed speech which constitutes direct action intended to impede a police officer in the performance of his duties. In Houston, one could be punished for a mere interruption of an officer in the line of duty. Houston v. Hill, 682 U.S. at 463. Section 18.2-460(A) only punishes words which have the effect of obstructing or interfering with a police officer in the performance of his duties.\\nIn addition to arguing that the statute is overbroad on its face, defendant also argues it is unconstitutionally vague. Under this doctrine, a criminal offense must be defined with \\\"sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.\\\" Kolender v. Lawson, 461 U.S. at 357. In my judgment, \\u00a7 18.2-460(A) is sufficiently definite to withstand constitutional challenge. The statute clearly prohibits only intentional obstruction or interference with a law officer in performance of his duty by direct action which results in actual hindrance or obstruction. Love v. Commonwealth, 212 Va. 492, 184 S.E.2d 769 (1971); see Polk v. Commonwealth, 4 Va. App. 590 (1987).\\nThis standard applies whether the obstruction is by physical or verbal conduct. The statute thus clearly defines the type of speech which must be exhibited to come within its ambit, leaving little if any discretion to the police for determining whether a violation has occurred, and giving fair notice to persons of common intelligence of the type of conduct which violates the statute.\\nSince protected speech is not encompassed within the ambit of \\u00a7 18.2-460(A), the defendant's challenge to its constitutionality must fail.\\nThe question remaining is whether defendant's failure to give his correct name and age to the police officer constitutes direct action which effectively hindered the police officer in the performance of his duty. I find the evidence in this case supports such a finding and supports the conclusion that defendant's conduct violates Section 18.2-460(A).\"}"
\ No newline at end of file
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--- /dev/null
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+"{\"id\": \"3931515\", \"name\": \"Commonwealth of Virginia v. James P. Tipton, III\", \"name_abbreviation\": \"Commonwealth v. Tipton\", \"decision_date\": \"1992-05-14\", \"docket_number\": \"\", \"first_page\": \"152\", \"last_page\": \"160\", \"citations\": \"28 Va. Cir. 152\", \"volume\": \"28\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Albemarle County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:47:36.248232+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth of Virginia v. James P. Tipton, III\", \"head_matter\": \"CIRCUIT COURT OF ALBEMARLE COUNTY\\nCommonwealth of Virginia v. James P. Tipton, III\\nMay 14, 1992\", \"word_count\": \"3076\", \"char_count\": \"18571\", \"text\": \"By Judge Paul M. Peatross, Jr.\\nThis matter comes before the court on the Defendant's Motion to Suppress the results of a blood test administered to the Defendant at the University of Virginia Hospital following an automobile accident on August 3, 1991. An evidentiary hearing was held on April 15, 1992.\\nFactual Findings of Court\\nOn August 3, 1991, at approximately 2:15 a.m., the Defendant in this case, James R. Tipton, III, was involved in a two-car accident on Route 250 West in Albemarle County. The officer responding to the scene was Trooper Parker, who found emergency personnel on the scene and treating injured victims upon his arrival. Trooper Parker sought information as to the drivers of the two vehicles, and one of the rescue personnel informed the trooper that the Defendant, Mr. Tipton, was the driver of one of the vehicles and that there was a detectable odor of alcohol about Mr. Tipton following the accident. Trooper Parker was also told that Mr. Tipton was cursing and behaving in a belligerent manner when first spoken to and that he had told the rescue personnel that he had consumed three beers and had \\\"screwed up.\\\"\\nBy the time Trooper Parker had arrived at the scene of the accident, however, Mr. Tipton had already been transported to the University of Virginia hospital emergency room. Because trooper Parker could not leave the accident scene, he radioed his dispatcher that he had probable cause for a possible \\\"DWI\\\" arrest, and that he needed another trooper to conduct a follow-up investigation of Mr. Tipton at the hospital. He did not tell the dispatcher of the amount of alcohol consumed but did inform the dispatcher that there was a possible fatality involved.\\nThe dispatcher telephoned Trooper Pannell in Albemarle County at his home at 3:14 a.m. and advised him that Trooper Parker was investigating an accident crash and that the dispatcher wanted him to go to the hospital to get a blood test and an interview from the driver, who was erroneously identified as \\\"Phillips.\\\" Upon arriving at the hospital at 3:57 a.m., Trooper Pannell, who was in uniform, talked to the nurses at the emergency room and was told that the crash victim from the area of the accident was indeed registered as Phillips. Trooper Pannell subsequently went to the emergency room and spoke to the Defendant, identifying himself as a state trooper. Mr. Tipton verified that he had been involved in the crash and that his name was Tipton and not Phillips.\\nAt that point, Trooper Pannell read Mr. Tipton his Miranda rights and also read him the \\\"implied consent\\\" law found in Va. Code \\u00a7 18.2-268(b). After hearing the implied consent law, Mr. Tipton informed Trooper Pannell that he wished to take a blood test. He informed the trooper that he had been coming down the mountain and had seen bright lights, and that upon seeing the lights he swerved to avoid the lights and a crash occurred. He further informed Trooper Pannell that he wanted a blood test because he had only had three beers at 8:00 p.m. that evening. The trooper responded that Mr. Tip-ton was entitled to a blood test for his own defense and proceeded to enlist the aid of a physician to administer the test.\\nAt the time the test was given, Trooper Pannell had not placed Mr. Tipton under arrest, nor did he believe that he had authority to make an arrest under Va. Code \\u00a7 19.2-81. Consequently, the Commonwealth concedes that the blood test is not admissible under Va. Code \\u00a7 18.2-268(b), since it was taken more than two hours after the accident and was not taken pursuant to a valid arrest. Instead, the Commonwealth contends that Trooper Pannell was entitled to conduct a search of Mr. Tipton because he consented to the test and that, even absent such consent, there was sufficient probable cause to justify an exception to the warrant requirement of the Fourth Amendment of the United States Constitution.\\nQuestion Presented\\nIn considering the Defendant's Motion to Suppress, this court must determine whether the results of the warrantless blood test administered to the Defendant will be admissible as evidence obtained through a consensual search, and also whether the results would be admissible under any relevant exceptions to the Fourth Amendment warrant requirement.\\nDiscussion\\nThe Supreme Court has acknowledged that a blood test of the sort administered to the Defendant in the case at bar plainly qualifies as a \\\"search\\\" within the meaning of the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767-768, 86 S. Ct. 1826, 1833-34, 16 L. Ed. 2d 908 (1966). Furthermore, any subsequent examination of the blood obtained through that test may also be a search, if doing so infringes an expectation of privacy that society recognizes as reasonable. Skinner v. Railway Labor Executives Association, 489 U.S. 602, 619, 109 S. Ct. 1402, 1414, 103 L. Ed. 2d 639 (1989). Except in certain well-defined circumstances, a search and seizure conducted without a warrant issued upon probable cause is per se unreasonable. Crosby v. Commonwealth, 6 Va. App. 193, 197 (1988). In order to introduce the evidence obtained in the warrantless search of Mr. Tip-ton's blood, then, the Commonwealth bears the burden of showing that this case falls into one of those well-defined exceptions. Simmons v. Commonwealth, 238 Va. 200, 204 (1989).\\nWarrantless Consensual Searches\\nIt is well-established that one exception to the warrant requirement occurs when a subject voluntarily consents to a search of his person or property. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854 (1973). In the case now before the court, the Commonwealth contends that the Defendant voluntarily asked to have a blood test performed and that this request rendered the blood test a consensual search.\\nIt is clear, however, that any consent actually granted by Mr. Tip-ton is tainted by Trooper Pannell's recital of the \\\"implied consent\\\" law. Where, as here, an arrest has not taken place within two hours of the alleged offense, the \\\"implied consent\\\" law will not apply, and a defendant will not be deemed to have given implied consent to a blood or breath test under Va. Code \\u00a7 18.2-268(b). Thomas v. Town of Marion, 226 Va. 251, 254 (1983). By reading the \\\"implied consent\\\" law, Trooper Pannell generated a belief in the Defendant that he was bound to submit to either a blood test or a breath test and that his only option was to choose between the two. Id. The Defendant's request for a blood test thus may have been simply a choice between what he perceived to be his only two options, rather than a conscious and voluntary decision to submit to a blood test. Accordingly, the Defendant's actual consent is rendered invalid.\\nWarrantless Searches Without Consent\\nEven where there is no voluntary consent to a search, however, the Supreme Court has recognized several exceptions to the warrant requirement. One such exception is the search incident to a lawful arrest. Reid v. Boylan, 929 F.2d 990, 994 (4th Cir. 1991). Another well-established exception occurs when there are exigencies in a situation which make such an exception \\\"imperative.\\\" New York v. Belton, 453 U.S. 454, 457, 101 S. Ct. 2860, 2862, 69 L. Ed. 2d 768 (1981).\\n1. Search Incident to Arrest\\nVirginia Code \\u00a7 19.2-81 contains the requirements necessary to enable a police officer to make a lawful warrantless arrest. For example, the section authorizes a warrantless arrest where the arresting officer has reasonable grounds or probable cause to believe that the suspect has committed a felony not in his presence. Crowder v. Commonwealth, 213 Va. 151, 152-53 (1972). Law enforcement officers may also make warrantless arrests at a hospital of any person involved in a motor vehicle accident even though the crime was not committed in the officer's presence, provided the officer is in uniform or displaying a badge of office and has reasonable grounds to believe, based on personal investigation, that a crime arising from the accident was committed by that person. Paige v. City of Lynchburg, 10 Va. App. 162, 163 (1990).\\nIn the case at bar, the Commonwealth has failed to demonstrate that Trooper Pannell had the requisite authority to make a valid arrest under \\u00a7 19.2-81. According to Trooper Pannell's own testimony, the message from the dispatcher summoning him to the hospital failed to include any information concerning fatalities suffered in the accident. As a result, Trooper Pannell had no reason to believe that the Defendant had in fact committed a felony at the time the blood test was performed.\\nFurthermore, all of the information known to Trooper Pannell concerning the accident came not from his own personal investigation of the accident scene, but from the dispatcher's message and from Tip-ton's own statements. A defendant's warrantless arrest for driving under the influence is unlawful where the officer's only source of knowledge is a radio call for assistance. Durant v. City of Suffolk, 4 Va. App. 445, 448 (1987). Probable cause for what appears to be a misdemeanor arrest in such a circumstance must have some basis in the officer's own personal investigation. Paige, 10 Va. App. at 163.\\nThus, it is clear that Va. Code \\u00a7 19.2-81 would not have authorized Trooper Pannell to make a warrantless arrest of Mr. Tipton at the hospital, based on the knowledge he had at the time. He did not yet know of the potential felony charge against Mr. Tipton, nor had he conducted the \\\"personal investigation\\\" of the accident site which would permit a warrantless arrest for a misdemeanor. Accordingly, the blood test administered to the Defendant cannot be justified as a search incident to a valid arrest under Virginia law.\\nHowever, the fact that Virginia law would not have authorized Trooper Pannell to make a warrantless arrest does not mean that the evidence obtained in the blood test must necessarily be excluded. The mere fact that Virginia has adopted a more stringent statutory requirement for warrantless misdemeanor arrests does not mean that a defendant has acquired a greater constitutional privilege. Penn v. Commonwealth, 13 Va. App. 399 (1991). Furthermore, under Virginia law, no suppression of evidence is required when the evidence is obtained in violation of state law but when no constitutional violation has occurred. Thompson v. Commonwealth, 10 Va. App. 117, 121-22 (1990). Although violations of state procedural statutes are to be viewed with disfavor, neither the Court nor the legislature has adopted an exclusionary rule in response. Id.\\n2. Constitutional Requirements\\nThe Supreme court has held that a warrantless search must be based, as a general matter, on probable cause to believe that the person to be searched has violated the law. Skinner, 489 U.S. at 623, 109 S. Ct. at 1416-17. Under Cupp v. Murphy, 412 U.S. 291, 296-97, 93 S. Ct. 2000, 2003-04, 36 L. Ed. 2d 900 (1973), a warrantless search incident to arrest will be constitutionally valid if the officer had probable cause to believe: (1) that a crime had been committed by the defendant; (2) that evidence of the crime would be found in the search; and (3) that an immediate, warrantless search was essential to prevent the destruction or loss of evidence. An actual arrest prior to the search is not necessary. Id. See also, United States v. Gomori, 437 F.2d 312, 314 (4th Cir. 1971). The only requirement is that the results of the search itself are not necessary to support probable cause to arrest. Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980).\\nSince there is no Fourth Amendment violation for misdemeanor arrests committed outside the presence of the arresting officer, Penn v. Commonwealth, 13 Va. App. 399 (1991), the blood test administered to Mr. Tipton by Trooper Pannell will qualify as a valid search incident to arrest if Trooper Pannell had sufficient facts available to him to meet the standards for a warrantless search incident to arrest required under the Fourth Amendment.\\nExamining the facts of the instant case, the court finds that Trooper Pannell was aware of sufficient facts to reasonably believe that a crime had been committed by Mr. Tipton. He had received a report of an accident from the dispatcher and was requested to obtain a blood test from a patient at the hospital who had been involved in the accident. Furthermore, upon interviewing the suspect, Trooper Pannell learned that Mr. Tipton admitted to being the driver of one of the vehicles in the accident and to having several beers that evening prior to driving his vehicle. Based on these facts, it was reasonable for Trooper Pannell to believe that Mr. Tipton had committed the offense of driving under the influence of alcohol.\\nIn addition, the same facts could clearly have been the basis for a reasonable belief that evidence of the suspected crime would be found in an examination of the Defendant's blood alcohol level. Although he was initially given an incorrect name for the Defendant, the information transmitted to Trooper Pannell was sufficient to allow him to identify the Defendant in the hospital emergency room. Furthermore, the subsequent interview with the Defendant made it clear to Trooper Pannell that Mr. Tipton had been involved in an accident as a driver and that he had been drinking. The court finds these facts adequate to create a reasonable belief that evidence of the DWI offense would be obtained in an examination of the Defendant's blood.\\nFinally, Trooper Pannell reasonably believed that an immediate warrantless search was necessary in order to preserve the evidence of Mr. Tipton's blood alcohol level. It is well-known that blood samples must be taken as soon as possible after an accident in order to preserve their evidentiary value. Schmerber, 384 U.S. at 770-71, 86 S. Ct. at 1836. If Trooper Pannell could have ordered Mr. Tipton to stop metabolizing the alcohol he had consumed, a warrant might have been appropriate. However, such an order is clearly impossible. By ordering the blood test without a warrant, Trooper Pannell properly sought to preserve evidence of a possible crime which might otherwise have been lost through the passage of time.\\nAccordingly, this court finds that the constitutional requirements for probable cause have been met. Although Trooper Pannell correctly believed that he did not have legal authority to arrest Mr. Tip-ton under Virginia law, he had available to him sufficient facts to create probable cause to arrest Mr. Tipton under the Fourth Amendment. As a result, the blood test administered to Mr. Tipton may be characterized as a search incident to a constitutionally valid arrest, and since Mr. Tipton suffered no violation of his constitutional rights, the evidence obtained in his blood sample will not be excluded on those grounds.\\n3. Exigent Circumstances\\nAnother exception to the warrant requirement occurs when there are exigencies in a situation which make exemption from the warrant requirements imperative. United States v. Reid, 929 F.2d 990, 993 (4th Cir. 1991). Such a situation typically arises in drunk-driving cases because the percentage of alcohol in the blood begins to diminish shortly after drinking. Id. Particularly in cases such as the one at bar, where time had to be taken to transport the suspect to the hospital, there is often no time to seek out a magistrate and secure a warrant.\\nThus, where an officer has reason to believe that a driver involved in an accident might have been intoxicated and where the delay necessary to obtain a warrant threatens the destruction of the evidence, the \\\"exigent circumstances\\\" exception to the warrant requirement will allow a blood test to be administered without a warrant. Id. See also Schmerber, 384 U.S. at 770-71, 86 S. Ct. at 1835-36. This exception to the warrant requirement is justified on policy grounds by the Commonwealth's need to combat drunk driving on the one hand and by the fact that blood tests of this sort have become almost routine in our everyday life and therefore represent a minimal intrusion on the defendant's privacy interests. Winston v. Lee, 470 U.S. 753, 762, 105 S. Ct. 1611, 1617, 84 L. Ed. 2d 662 (1985).\\nAs noted previously, the facts known to Trooper Pannell at the time the blood test was administered were sufficient to lead him to reasonably believe that Mr. Tipton had been driving while intoxicated. Furthermore, the impermanent nature of the evidence contained in Mr. Tipton's blood clearly made it imperative that Trooper Pannell obtain the sample without undue delay. As a result, this court finds that the blood test, although obtained without a warrant, was nevertheless reasonable under the Fourth Amendment, under the \\\"exigent circumstances\\\" exception.\\n4. Schmerber Limits\\nNo discussion of a non-consensual blood test administered to a defendant would be complete without examining the procedural limits placed on law enforcement officers by the Supreme Court. Under Schmerber, a warrantless blood test will be upheld only if the process is: (1) a \\\"reasonable one\\\" which is (2) \\\"performed in a reasonable manner.\\\" 384 U.S. at 771, 86 S. Ct. at 1836. No evidence was introduced that the blood test given to Mr. Tipton was unexceptional, and a test will typically not be an unreasonable one so long as the defendant does not object for religious or health-related reasons. Id. Such was not the case here, as Mr. Tipton clearly expressed a preference for a blood test over a breath test. Furthermore, a blood test will have been performed in a reasonable manner if it was taken by an attending physician according to acceptable medical practices. Id. No evidence was presented to indicate that routine medical practices were not followed by qualified personnel in Mr. Tipton's case. The court finds that the procedural limitations of Schmerber were satisfied.\\nConclusion\\nIn conclusion, this court finds that the blood test given to Mr. Tip-ton, although performed without a warrant and without valid consent, was nevertheless reasonable under the Fourth Amendment, due to both the exigent circumstances exception and the search incident to a constitutionally valid arrest exception. Although Trooper Pannell could not have made a valid arrest of Mr. Tipton under Virginia law, it is clear that there was no violation of Mr. Tipton's constitutionally-protected rights. Accordingly, the court finds that exclusion of the evidence obtained in the blood test would be inappropriate.\"}"
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+"{\"id\": \"3934689\", \"name\": \"Robert T. Plate v. Kincannon Place Condominium Unit Owners' Association Board of Directors\", \"name_abbreviation\": \"Plate v. Kincannon Place Condominium Unit Owners' Ass'n Board of Directors\", \"decision_date\": \"1993-04-05\", \"docket_number\": \"Case No. (Chancery) 128638\", \"first_page\": \"323\", \"last_page\": \"326\", \"citations\": \"30 Va. Cir. 323\", \"volume\": \"30\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Fairfax County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:48:50.820426+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert T. Plate v. Kincannon Place Condominium Unit Owners\\u2019 Association Board of Directors\", \"head_matter\": \"CIRCUIT COURT OF FAIRFAX COUNTY\\nRobert T. Plate v. Kincannon Place Condominium Unit Owners\\u2019 Association Board of Directors\\nApril 5, 1993\\nCase No. (Chancery) 128638\", \"word_count\": \"1357\", \"char_count\": \"8558\", \"text\": \"By Judge Rosemarie Annunziata\\nThe matter before the Court was brought pursuant to \\u00a7 8.01-184 et seq. of the Code of Virginia, 1950, as amended. The complainant seeks a Declaratory Judgment setting forth the scope of a condominium association's authority to regulate parking on property owned by the association. Correlatively, the complainant seeks a temporary injunction to enjoin the association from towing vehicles parked by the complainant on the condominium property, pending final adjudication of this matter.\\nComplainant is the owner of several units in a condominium project known as United American Business Center at Hilltop. He operates a vehicle repair business on the premises. The defendant is the Board of Directors of the condominium unit owners' association. In addition to complainant's auto body shop, the type of businesses operated on the condominium property relate primarily to the construction and building industry. All unit owners have an undivided interest in the common elements of the condominium and are assessed condominium fees for maintenance and operation of the common elements in proportion to their ownership interest. (Declaration, Article II) The Common elements are used for ingress and egress and to meet the parking needs of each individual business, including employee and visitor parking needs.\\nThe Declaration of the Condominium was recorded among the land records of Fairfax County and reserves a limited common element for the exclusive use of the complainant. The Bylaws give the Board the authority to regulate and/or assign vehicular parking on the limited common elements and the common elements of the condominium. Article X, Section 4(b)(2), of the Bylaws prohibits \\\"inoperable, junk, or stored vehicles, including any vehicle bearing expired registration tags\\\" from being parked on these elements.\\nIn conjunction with his auto body business, the complainant generally uses between 45 and 80 of the 110 available parking spaces on the common elements to meet the needs of his business. Most of the cars parked are being held pending repair. In the latter part of 1992, after notices of violation had been issued to complainant, allegedly without response, the complainant was notified by the condominium's property manager that the Board of Directors intended to have \\\"any vehicle... towed from the Limited Common Elements or Common Elements . and charge the Unit Owner responsible for any expenses or liability incurred.\\\" Respondent acted, in part, on the grounds that the complainant was parking inoperable, junk, or stored vehicles on the premises. The complainant filed this action as a result.\\nSubsequently and before the matter was heard, the respondent Board of Directors issued a new parking regulation which assigns each condominium unit owner a certain number of marked parking spaces on the common elements for use by that owner. The regulation was adopted after reviewing the business needs of each unit owner. Complainant declined to participate in the discussions held by the Board regarding parking allocations but was assigned 28 of the 110 available parking spaces. The new regulation was made part of this action after complainant was granted leave to file a Second Amended Bill of Complaint for Declaratory Relief, incorporating the issue.\\nIn his original Bill of Complaint, as amended, complainant alleges that, by its notice to tow vehicles from the premises, the respondent \\\"selectively, unreasonably, arbitrarily, and capriciously enforces the Bylaws, threatening to substantially injure his business.\\\" (Amended Bill of Complaint for Declaratory Judgment, paras. 18 and 19.)\\nWith respect to the new regulation, complainant alleges that the Board's allocation of spaces \\\"bears no relation to the legitimate busi ness needs of the unit owners\\\" and that the complainant's business requires the use of substantially more than the number of spaces assigned to him. (Second Amended Bill of Complaint for Declaratory Relief, paras. 28 and 32.) Complainant further alleges that the assignment of spaces unduly restricts his ability to serve the needs of his customers and \\\"will substantially reduce the value of complainant's business.\\\" (Second Amended Bill of Complaint for Declaratory Relief, paras. 34 and 35.)\\nThe factors to be balanced by the court in determining whether to issue a preliminary injunction include: the likelihood that the plaintiff will prevail on the merits at the final hearing; irreparable injury to the plaintiff if no injunction is issued; injury to defendant if the injunction is issued; whether an adequate remedy at law exists; the interests of the public. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977); Zaki v. Oberoi, 18 Va. Cir. 209, 210 (Fairfax County 1989); Heublein, Inc. v. Dept. of A.B.C., 12 Va. Cir. 1 (Fairfax County 1985), reversed on other grounds 237 Va. 192 (1989). While the harm to the complainant relative to that of the respondent are the two factors considered paramount, they must be weighed in relation to complainant's likelihood of success on the merits. Doe v. Shenandoah County School Bd., 737 F. Supp. 913 (W.D. Va. 1990); Proffit v. United States, 758 F. Supp. 342 (E.D. Va. 1990).\\nIn light of these factors, a temporary injunction will issue against the towing of vehicles which the respondent defines as \\\"inoperable, or stored,\\\" since to deny the relief requested would irreparably harm the complainant, and I find he is likely to prevail on the merits in the final hearing. The respondent defines \\\"inoperable\\\" vehicles to include vehicles which are temporarily inoperable in that they cannot be driven to and from the premises. I defines \\\"stored\\\" vehicles as vehicles which are part of inventory or being held pending repair. I find that the definitions urged by the respondent are inconsistent with the intent of the parties. Furthermore, the application of the respondent's definition of the terms unreasonably restricts and, indeed, may prohibit the operation of complainant's business. I specifically find that only vehicles not intended to be repaired are to be included in the definition of \\\"inoperable\\\" and \\\"stored.\\\"\\nWith respect to vehicles parked in the limited common elements reserved to the complainant's exclusive use, a temporary injunction will also issue prohibiting the respondent from placing restrictions on the parking of vehicles by the complainant in the limited common elements since, under the Bylaws, Article X, Section 4(b), they are reserved to his exclusive use and may not be made subject to the restrictions at issue.\\nThe respondent will not be enjoined from towing any vehicle parked outside the spaces specifically assigned to the complainant in the common elements pursuant to the regulation adopted by the respondent on January 20, 1993. In balancing the relevant factors, I find that the complainant has not shown on this issue that (1) the \\\"decided imbalance of hardship\\\" lies with him and (2) that he will likely prevail on the merits. See, id.; see also, Brookfield Centre Ltd. Partnership v. CFS Mgt. Co., 133 Bankr. 74, 75 (E.D. Va. 1991); Baker v. Loudoun County School Board, 17 Va. Cir. 217, 218 (1989).\\nWith respect to the likelihood complainant will prevail on the merits, my inquiry has been focused on whether the respondent Board has acted within die scope of its authority as defined under the Bylaws and whether it has adopted a limitation on the use of property which is reasonably related to a legitimate purpose. See, Unit Owners Assoc. of Build America-1 v. Gillman, 223 Va. 752, 770 (1982). The Board of Directors in this case has the authority to regulate parking on the common elements pursuant to Article X, Section 4, of die Bylaws, and there is insufficient evidence to support the conclusion it has acted unreasonably in exercising that authority in adopting the January 20, 1993, regulation. See, Friedberg v. Riverpoint Building Committee, 218 Va. 659, 665 (1977); Countryside Proprietary, Inc. v. King, Chancery No. 12815 (Loudoun County Cir. Ct., 1991).\\nI denied the injunction relating to the towing of junked vehicles at the hearing, finding that the Bylaws clearly prohibit parking \\\"junked\\\" vehicles on the common elements, defining them as vehicles which have been declared \\\"totaled\\\" or are otherwise found to be beyond repair and/or not intended to be repaired.\"}"
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+"{\"id\": \"4374513\", \"name\": \"Slagle v. Rust's adm'r.; Same v. Bank of the Valley\", \"name_abbreviation\": \"Slagle v. Rust's adm'r\", \"decision_date\": \"1848-01\", \"docket_number\": \"\", \"first_page\": \"274\", \"last_page\": \"277\", \"citations\": \"4 Gratt. 274\", \"volume\": \"45\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:28:23.024039+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Slagle v. Rust\\u2019s adm\\u2019r. Same v. Bank of the Valley.\", \"head_matter\": \"Richmond.\\nSlagle v. Rust\\u2019s adm\\u2019r. Same v. Bank of the Valley.\\n1848. January Term.\\nA third endorser having endorsed a note on the faith of the solvency of a prior endorser; and on a renewal of the note, the order of the endorsements having been changed without the consent of this third endorser, who, for the convenience of renewing the note, had left his blank endorsement with the makers; a Court of Equity will relieve him as against the endorser who should have preceded him.\\nIn 1826, the Bank of the Valley at Winchester, discounted a note for 1000 dollars, which was made by William M. Sperry & Co. and endorsed by Joseph Slagle, for the accommodation of the makers. This note was renewed from time to time, with Slagle as the only endorser thereon until June 1833. During this period, he had taken a deed of trust on a house and lot in Winchester, to indemnify him against loss on account of his endorsement. In 1833, Sperry & Co. becoming embarrassed, the bank made an order requiring another endorser on the note, or that the property conveyed to indemnify Slagle should be insured. Under this order, Jacob Cooper became the endorser of the note ; Slagle being first, and Cooper second endorser. The bank, however, was not satisfied with Cooper, and continued its order; and in May 1834, Peter Rust endorsed the note as last endorser.\\nAt the time Rust endorsed the note, he knew that Sperry & Co. were embarrassed, and he endorsed it on the faith of Slagle\\u2019s solvency, of which Sperry & Co. were fully aware; though it does not appear that either Rust or Sperry & Co. so informed Slagle.\\nThe note continued to be renewed and discounted at the bank until September 1835, with the same endorsers in the same order, Slagle being the first, Cooper the second, and Rust the third; and Rust, who lived some miles from Winchester, was accustomed to endorse blank notes, which were left with Sperry & Co. for the purpose of renewing the note, with his name written on the face of the note, under the words \\u201ccredit the makers.\\u201d The note which was discounted in September 1835, had been thus endorsed by Rust and left with Sperry & Co.; and it was made payable, not to Slagle, as had been previously done, but to Cooper, and Cooper endorsed it, writing his name so close above Rust\\u2019s that there was not room between them for Slagle to write his name. It was then taken to Slagle by one of the makers, and Slagle wrote his name below Rust\\u2019s. When the note was handed by Sperry to the bank ofii cer, it was objected to on the ground that Must had, by writing his name under the words \\u201ccredit the makers,\\u201d transferred the proceeds to Sperry & Co., and that therefore nothing passed to Slagle: and to obviate the objection, he suggested that Slagle\\u2019s name should be erased, the name of Sperry & Co. should be endorsed next under Rust\\u2019s, and then Slagle should endorse after them, and should also write his name under Rust\\u2019s on the face of the note. This was accordingly done, and the note so endorsed was discounted, and when it fell due, was protested for nonpayment.\\nThe bank afterwards brought separate actions against Slagle and Rust, as endorsers on the note, and obtained judgments, and having sued out execution on the judgment against Rust, it was levied on his property, but before a sale thereof, he died.\\nAfter the death of Rust, his administrator Griffin Frost enjoined the sale under the execution, on the ground that Rust had endorsed the note of Sperry & Co. expressly on the faith of the prior endorsement of Slagle; and that the bank and Slagle had, without his consent, changed the order of the endorsements to his prejudice. He made the bank, Slagle and others, defendants.\\nThe bank having been enjoined from proceeding on their execution against Rust, issued an execution on their judgment against Slagle; whereupon he enjoined the proceeding upon that execution.\\nThe Court afterwards dissolved both injunctions, and the amount of the debt was paid to the bank by Slagle. And the causes coming on together to be finally heard, the Court held that, as between Rust\\u2019s adm\\u2019r and Slagle, the latter was bound to pay the debt; and it was decreed that the bill should be dismissed as against the bank without costs, and that Slagle should pay the plaintiff his costs; and the bill in the second suit was dismissed with costs. From this decree, Slagle applied to this Court for an appeal, which was allowed.\\nBrooke and Cooke, for the appellant.\\nPatton and Robinson, for the appellee.\", \"word_count\": \"793\", \"char_count\": \"4531\", \"text\": \"I3r the Court.\\nThe decree is affirmed.\"}"
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+"{\"id\": \"4391992\", \"name\": \"ROBERT JENNINGS, JR., et al. v. DIVISION OF CRIME VICTIMS' COMPENSATION FUND\", \"name_abbreviation\": \"Jennings v. Division of Crime Victims' Compensation Fund\", \"decision_date\": \"1988-02-16\", \"docket_number\": \"No. 0304-87\", \"first_page\": \"536\", \"last_page\": \"541\", \"citations\": \"5 Va. App. 536\", \"volume\": \"5\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:11:19.475366+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ROBERT JENNINGS, JR., et al. v. DIVISION OF CRIME VICTIMS\\u2019 COMPENSATION FUND\", \"head_matter\": \"Richmond\\nROBERT JENNINGS, JR., et al. v. DIVISION OF CRIME VICTIMS\\u2019 COMPENSATION FUND\\nNo. 0304-87\\nDecided February 16, 1988\\nCounsel\\nJulia Hunt Brasfield (J. Hunt Brasfield; Ashcraft & Gerel, on brief), for appellant.\\nChristopher D. Eib (Mary Sue Terry, Attorney General; Walter A. McFarlane, Deputy Attorney General, on brief), for appellee.\", \"word_count\": \"1549\", \"char_count\": \"9504\", \"text\": \"Opinion\\nCOLEMAN, J.\\nVirda Jennings, whose husband was the victim of a bank robbery shooting, appeals the Industrial Commission's denial of her claim and her daughter's claim for an award under the Crime Victims' Compensation Act. The commission denied the award because Mrs. Jennings received payment from collateral sources in an amount that exceeded the statutory allowable maximum. For the reasons that follow, we affirm the decision in part, reverse in part and remand.\\nRobert Jennings, the deceased, was depositing his paycheck at his bank in Arlington, Virginia, when armed men entered to rob the bank. Mr. Jennings was shot and killed during that robbery, apparently as a result of trying to dissuade the robbers from using their guns. His widow, Virda Jennings, filed a claim for compensation on behalf of herself and her minor child, Nicole Jennings. She also filed for social security payments and in December 1985, Nicole Jennings began receiving $554 per month from the Social Security Commission. Virda Jennings received $20,000 in life insurance benefits. The director of the Crime Victims' Compensation Fund denied the claim on the ground that Virda Jennings had received the life insurance proceeds. Because that sum exceeded the statutory maximum of $15,000, Mrs. Jennings could not receive an award. See Code \\u00a7 19.2-368.12(C).\\nMrs. Jennings appealed to the full commission, which affirmed the director's decision. Neither the director nor the commission specifically considered Nicole's entitlement, although her claim was made in the original claim letter. The record is not clear whether the director and commission treated both the claimants as one for purposes of reducing the award, or whether they were simply unaware of Nicole's claim.\\nAppellant's primary argument is that the commission misapplied the statute when it failed to determine that Nicole was an eligible claimant and to apportion the award before reducing it. Appellee argues that when one claimant receives from collateral sources more than the maximum allowable amount, Code \\u00a7 19.2-368.12(C) precludes any award, regardless of whether any other claimants receive collateral funds or not. We hold that the insurance payments to Mrs. Jennings did not preclude an award to Nicole, but that the collateral payments to Nicole from social security would reduce her award.\\nIn construing a statute, we look first to its plain language. The whole body of the act must be considered in applying each part. National Maritime Union v. City of Norfolk, 202 Va. 672, 682, 119 S.E.2d 307, 314 (1961). The Crime Victims' Compensation Act begins by detailing the legislative intent behind the statute. It next defines the terms used, explains the powers and duties of the commission, and then establishes the eligibility requirements. Code \\u00a7 19.2-368.1 to .4. The following several sections discuss the procedure for filing claims, investigation and review. Code \\u00a7 19.2-368.5 to .9. The statute next details when awards are to be made, \\u00a7 19.2-368.10; how the amount of the award shall be determined, \\u00a7 19.2-368.11; when awards shall be apportioned, \\u00a7 19.2-368.12(B); and when awards shall be reduced, \\u00a7 19.2-368.12(C).\\nThe order of the statute follows a scheme which is significant and carries out the stated intentions of the legislature. The first section states in part, \\\"[victims of crime] or their dependents may [because of the crime] suffer disability, incur financial hardships or become dependent upon public assistance. The General Assembly finds and determines that there is a need for govern mental financial assistance for such victims of crime.\\\" Code \\u00a7 19.2-368.1. The provision for reducing the award indicates that the statute has a limited purpose to provide some assistance for those victims or dependents who have no other source of aid. The statute plainly does not intend that payment from a collateral source to a claimant who may have no legal obligation to provide assistance to other dependents of the crime victim will preclude an award to other claimants.\\nWe therefore hold that the analysis the director and the commission should have applied is as follows: (1) determine eligibility; (2) determine whether the award is allowed; (3) determine the amount of the award; (4) apportion the award, if necessary; and (5) reduce the award to each claimant by the amount of payments received or to be received by that claimant from any collateral source as a result of the injury.\\nApplying that analysis to the facts of this case, the record establishes that the two claimants, Mrs. Jennings and Nicole, were both eligible. It is equally apparent that an award should be allowed since the commission found as follows: \\\"It is undisputed that the victim, Robert Jennings, Jr., died on November 22, 1985, having been shot by a bank robber.\\\" The record shows that the crime was promptly reported to the authorities. See Code \\u00a7 19.2-368.10.\\nThe amount of the award pursuant to Code \\u00a7 19.2-368.11:1 may not exceed $15,000, with the portion attributable to loss of earnings payable in the amount of $311 per week (two-thirds of Robert Jennings' average weekly wages). Code \\u00a7 19.2-368.12(B) provides that \\\"if there are two or more persons entitled to an award as a result of the death of a person which is a direct result of a crime, the award shall be apportioned among the claimants.\\\" Because there are two persons entitled to the award, it must be apportioned between Mrs. Jennings and Nicole. Code \\u00a7 19.2-368.12(B). Because the statute provides that any award shall be made in accordance with Code \\u00a7 65.1-65, each claimant would be entitled to one-half the benefits, or $155.50 each per week, not to exceed $7,500. Next, the awards must be reduced by \\\"the amount of any payment received or to be received as a result of the injury.\\\" Code \\u00a7 19.2-368.12(C) (emphasis added). Mrs. Jennings received payments from insurance policies totaling $20,000, so her award, which could not exceed $7,500, is reduced to zero. Nicole Jennings is receiving social security payments of $554 per month or $127.77 per week as a result of her father's death. Her entitlement to these payments will extend until her eighteenth birthday and, if fully paid, will total approximately $75,000. We hold that the social security payments are funds to be received as a result of the injury from any other public source, as provided by Code \\u00a7 19.2-368.12(C)(2). Her funds to be received from collateral sources, if fully paid, will exceed the statutory maximum and her award, not to exceed $7,500, would be reduced to zero.\\nWe recognize that because Nicole's social security payments extend into the future and are thus subject to change, disqualification, or discontinuance, the reduction of her award is conditional upon her continued receipt of payments. But, \\u00a7 19.2-368.12(C) specifically envisions such a contingency. If the social security payments were to cease before the $7,500 limit of her award is reached, she still would be entitled to the balance of an award from the Crime Victims' Compensation Fund. Code \\u00a7 19.2-368.8(B) mandates annual reconsideration of awards upon which periodic payments are being made. The provision for reconsideration indicates that once the decision is made, the commission should have flexibility in implementing it. Therefore, if an award is reduced because payments are to be received in the future but those payments are never received or not received in full, the commission need not reopen or reinvestigate the case pursuant to Code \\u00a7 19.2-368.8(A) to order that payments be made. It need only consider that the collateral source funds were never paid or not paid in full and that the award already entered, or the balance after reduction by collateral payments, should be paid from the Crime Victims' Compensation Fund.\\nWe hold, therefore, that the eligibility and entitlement of Virda Jennings and Nicole to an award were established. The award must be apportioned between those entitled to the benefits. The commission properly found that any portion of an award to Mrs. Jennings had been reduced to zero because she has already received her $7,500 maximum; therefore, her award is final and may not be reconsidered. The commission erred in failing to consider an award to Nicole or in finding that Nicole was not entitled to an award. However, because the award to which Nicole is entitled is reduced on the basis of payments to be received, we remand the issue of Nicole's award to the commission with direc tions. Although in this instance the collateral payments expected to be received by Nicole will exceed or may already have exceeded the maximum award, payment is not always assured. Therefore, the commission must determine and make an award to Nicole. It must reduce the payments to her to zero, so long as collateral payments are expected to exceed the award and continue to be received. Finally, the commission must reconsider the award, pursuant to Code \\u00a7 19.2-368.8(B), until the collateral payments equal the award or otherwise affect its payment.\\nAffirmed in part, reversed in part, and remanded.\\nHodges, J., and Keenan, J., concurred.\"}"
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+"{\"id\": \"4392951\", \"name\": \"CITY OF BRISTOL POLICE DEPARTMENT, et al. v. OSCAR GRAY BROOME, JR\", \"name_abbreviation\": \"City of Bristol Police Department v. Broome\", \"decision_date\": \"1988-09-20\", \"docket_number\": \"No. 0929-87-3\", \"first_page\": \"161\", \"last_page\": \"168\", \"citations\": \"7 Va. App. 161\", \"volume\": \"7\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T01:07:49.737310+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CITY OF BRISTOL POLICE DEPARTMENT, et al. v. OSCAR GRAY BROOME, JR.\", \"head_matter\": \"Roanoke\\nCITY OF BRISTOL POLICE DEPARTMENT, et al. v. OSCAR GRAY BROOME, JR.\\nNo. 0929-87-3\\nDecided September 20, 1988\\nCounsel\\nLinda D. Frith (Gentry, Locke, Rakes & Moore, on brief), for appellant.\\nFrederick A. Rowlett (Mary Lynn Tate, Yeary, Tate & Lowe, P.C., on brief), for appellee.\", \"word_count\": \"2021\", \"char_count\": \"12699\", \"text\": \"Opinion\\nDUFF, J.\\nThis appeal by the employer and carrier seeks review of an Industrial Commission decision that awarded compensation to the claimant for disability caused by a heart condition. They contend (1) that the medical evidence overwhelmingly shows the claimant is not disabled as a result of heart disease, and (2) the record contains sufficient medical evidence to rebut the presumption of causation provided in Code \\u00a7 65.1-47.1. From our review of the record and consideration of the briefs and arguments presented we agree with these contentions and, accordingly, the decision appealed from is reversed.\\nI.\\nOscar Broome, Jr. was employed by the City of Bristol Police Department in 1959 as a patrolman. In 1967, he began teaching radiological monitoring, and in 1974 he was transferred to the Detective Division where he spent forty to fifty percent of his time training officers. In 1980 he was placed in charge of the Administrative Division as a Captain. Broome estimated the percentage of time he spent doing desk work and administering polygraphs in the Administrative Division was between eighty-five and ninety percent.\\nBroome first saw Dr. Sarfraz A. Zaidi in 1977. At that time his blood pressure was described as normal; an EKG showed a questionable infarction, and his weight was 254 pounds. He continued with visits to Dr. Zaidi for blood pressure and weight monitoring, and Valium was prescribed. In March, 1984 claimant experienced a blackout spell while eating lunch and was hospitalized for three days. Dr. Zaidi was not able to diagnose the exact cause of this event. Broome returned to work without further incident until June 18, 1985, when he was hospitalized for shortness of breath and ankle swelling. As a result of an echocardiogram, Dr. Zaidi concluded that claimant was suffering from congestive heart failure, with atrial fibrillation. Broome returned to work in August, 1985 without further incident until he took a medical leave of absence on September 22, 1986.\\nBroome then filed a claim with the commission, alleging that he contracted an occupational disease (hypertension, atrial fibrillation, and congestive heart failure) as a result of his employment with the City of Bristol Police Department. After receiving notice of the claim, the employer and insurer, by counsel, had claimant's medical records and job description reviewed by four cardiologists: Dr. George Craddock, Dr. Manta Sayers, Dr. Stephen Davis, and Dr. Joseph Austin. In addition, Drs. Sayers and Austin also performed cardiological examinations of Broome.\\nThe deputy commissioner, after an evidentiary hearing, held that claimant failed to show, by a preponderance of the evidence, that he was incapable of engaging in his regular duties; therefore, he could not claim the benefit of the statutory presumption with respect to causation. The deputy commissioner found that the ma jority of the physicians associated with the case related the claimant's subjective complaints, such as fatigue, to his obesity and to the medications that he takes, or has taken. Upon review, the full commission reversed and awarded compensation, with one member dissenting.\\nII.\\nThe claimant contends that, pursuant to Code \\u00a7 65.1-47.1 he is entitled as a police officer to compensation for alleged disability due to heart disease. The statute provides police officers with a presumption of causal relationship between their job and heart disease if they establish that they have the disease and are disabled as a result. The presumption may be rebutted upon a showing by the employer that there was a non-work related cause for the heart disease. Estate of Montgomery v. City of Portsmouth Police Department, 4 Va. App. 525, 538, 358 S.E.2d 762, 764 (1987).\\nThe commission relied upon the evidence of Dr. Zaidi in finding that Broome was disabled from heart disease. At the time of the claimant's hospitalization in June, 1985, Dr. Zaidi diagnosed him as suffering from \\\"congestive heart failure with atrial fibrillation.\\\" He noted that Broome was \\\"markedly overweight.\\\" In his report of October 30, 1985, Dr. Zaidi stated:\\nMr. Broome suffers from atrial fibrillation and has been in heart failure which is under control by drug therapy. He is on anticoagulant therapy for atrial fibrillation. He has been advised to avoid undue exertion but should be able to continue normal activities and should be able to resume work, which does not involve undue labor and is basically a desk-type position, (emphasis added)\\nHowever, almost a year later in a report to the Virginia Supplemental Retirement System, Dr. Zaidi indicated that the claimant, because of his heart condition, was \\\"unfit to work\\\" and was \\\"permanently disabled for his job.\\\"\\nThe office notes of Dr. Zaidi, for the period between October, 1985 and October, 1986, do not disclose a worsening of claimant's condition. In fact, on several of the visits the notes indicated improvement. Also, the basic nature of the claimant's normal duties, i.e., sedentary work as an administrative officer, remained the same. We agree with the deputy commissioner's observation that \\\"the rationale . for Dr. Zaidi's marked change in his assessment of the claimant's ability to work is not readily apparent.\\\" Thus, there is an internal conflict in the claimant's expert evidence, or at least an inexplicable change of position without foundation in the record.\\nAnother conflict in the expert evidence is Dr. Zaidi's September, 1986 finding that Broome was disabled by congestive heart failure. He based this diagnosis on an echocardiogram taken when claimant was admitted to the hospital in June, 1985. Three of the four cardiologists engaged by the employer to review the case and/or examine claimant reviewed the June, 1985 echocardiogram and concluded that it showed normal function. Drs. Craddock, Austin, and Davis attributed Dr. Zaidi's incorrect diagnosis of congestive heart failure to his failure to adjust the echo-cardiogram for claimant's gross obesity of 312 pounds. The doctors stated that, due to such obesity, the measurements of the chamber size had to be corrected according to the body surface area. Once this was done, the results of the echocardiogram showed claimant's chamber size to be normal and his heart pumping strength, or contractibility, also to be normal. Those reports were furnished to the commission and the claimant's counsel in January, 1987. In Dr. Zaidi's final medical report of March 3, 1987, no mention was made, as was previously, of congestive heart failure or cardiomyopathy, the condition allegedly diagnosed from the echocardiogram. The doctor stated the claimant was in atrial fibrillation that, when combined with physical or psychological stress, could adversely affect his heart rate.\\nWhile we are bound by findings of fact made by the commission on credible conflicting medical opinion, in those instances where an internal conflict exists in the expert opinion of the claim ant's attending physician, it is proper for us to review and consider the other medical opinions in the record to resolve that conflict. See Miller v. Island Creek Coal Co., 223 Va. 645, 292 S.E.2d 328 (1982).\\nIII.\\nThe other medical evidence in the record consists of the opinions of Drs. Davis, Sayers, Craddock and Austin. Dr. Stephen V. Davis, a fellow in clinical cardiology at the Univeristy of Virginia Medical School, reviewed the medical records and reported that although claimant's atrial fibrillation placed him at \\\"increased risk for future cardiovascular and cerebrovascular events,\\\" it was \\\"not disabling for a sedentary occupation.\\\"\\nDr. Marta C. Sayers, a cardiologist at the Community Hospital of Roanoke Valley, examined Broome on January 2, 1987. She found no physical evidence of congestive heart failure and saw no reason why he should not continue to work.\\nDr. Joseph L. Austin,' a Roanoke, cardiologist, reviewed claimant's records and subsequently conducted an examination on February 16, 1987. He opined that there was no objective evidence that Broome was suffering from congestive heart failure. He further opined that the left ventricle, which he identified as being the \\\"main pumping chamber of the heart,\\\" was normal in size, and that Broome's blood pressure was under good control. Noting that the claimant had stopped work in September, 1986 because of difficulties with fatigue and sleeplessness, Dr. Austin stated that these symptoms were \\\"more likely to be secondary to Mr. Broome's obesity and his emotional response to stress rather than to his heart disease.\\\"\\nBroome's records were also examined by Dr. George B. Craddock, an Associate Professor of Medicine, Division of Cardiology, at the University of Virginia's School of Medicine. He questioned Dr. Zaidi's interpretation of the echocardiogram in light of that physician's failure to take into account the claimant's body size. He found that Broome was not suffering from any significant heart muscle disease and found no evidence that claimant's occupation had \\\"any bearing on his clinical diagnosis.\\\"\\nThe commission's opinion made no mention of the apparent misreading of the echocardiogram by Dr. Zaidi. The commission further disregarded the defense cardiologists' opinions that the claimant was not disabled from heart disease, concluding that \\\"there is little in those reports (reports of Drs. Davis, Sayers and Austin) to reflect any familiarity with the duties of the Claimant's work.\\\"\\nWe find that the commission's conclusion is not supported by the evidence in the record. Broome's job description was approved by the claimant and was attached as an exhibit to his deposition. It was submitted for review to all four doctors. Dr. Austin, in a letter dated January 5, 1987, stated that he had reviewed Mr. Broome's detailed job description. He also stated that he discussed the various stresses, aggravations and frustrations of his job with Broome at the time of the cardiac examination on February 16, 1987. Similarly, the record contains evidence that both Dr. Davis and Dr. Sayers had reviewed and/or were familiar with the claimant's job description.\\nWe review a decision of the Industrial Commission under familiar principles. Although findings of the commission, if based on credible evidence, are conclusive and binding on us, the commission's findings of fact are not binding upon us when there is no credible evidence to support them. The question of the sufficiency of the evidence then becomes one of law. Breckenridge v. Marval Poultry Co., 228 Va. 191, 196, 319 S.E.2d 769, 772 (1984). In the recent decision of Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 348 S.E.2d 876 (1986), we stated:\\nThe trier of fact must determine the weight of the testimony and the credibility of the witnesses, but it may not arbitrarily disregard uncontradicted evidence of unimpeached witnesses which is not inherently incredible and not inconsistent with facts in the record.\\nId. at 279, 348 S.E.2d at 877.\\nIn mistakenly finding that the majority of the physicians involved in the case were not familiar with the claimant's duties, the commission erroneously disregarded their opinions regarding disability and causation. Our review of the entire record satisfies us that Broome failed to establish that he was incapacitated by his hypertension or heart condition. He, thus, was not entitled to the benefit of the statutory presumption. The weight of the expert evidence points to obesity and medication as the causes of Broome's fatigue and sleeplessness, which he assigned as the primary reasons for his disability.\\nFor these reasons, the decision is reversed.\\nReversed.\\nColeman, J., and Hodges, J., concurred.\\nThe death of, or any condition or impairment of health of, salaried or volunteer fire fighters caused by respiratory diseases, and the death of, or any condition or impairment of health of, salaried or volunteer fire fighters, or of any member of the State Police Officers Retirement System, or of any member of a county, city or town police department, or of a sheriff, or of a deputy sheriff, or city sergeant or deputy city sergeant of the City of Richmond, caused by hypertension or heart disease, resulting in total or partial disability shall be presumed to be an occupational disease suffered in the line of duty that is covered by this Act unless the contrary be shown by a preponderance of competent evidence.\"}"
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+"{\"id\": \"4395428\", \"name\": \"REX ALLEN HARRISON v. COMMONWEALTH OF VIRGINIA\", \"name_abbreviation\": \"Harrison v. Commonwealth\", \"decision_date\": \"1989-10-17\", \"docket_number\": \"No. 0087-88-3\", \"first_page\": \"187\", \"last_page\": \"190\", \"citations\": \"9 Va. App. 187\", \"volume\": \"9\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:09:33.044056+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"REX ALLEN HARRISON v. COMMONWEALTH OF VIRGINIA\", \"head_matter\": \"Salem\\nREX ALLEN HARRISON v. COMMONWEALTH OF VIRGINIA\\nNo. 0087-88-3\\nDecided October 17, 1989\\nCounsel\\nG. Carter Greer (Greer, Greer & Furrow, on brief), for appellant.\\nFrank S. Ferguson, Assistant Attorney General (Mary Sue Terry, Attorney General; Mildred B. Cain, Assistant Attorney General, on brief), for appellee.\", \"word_count\": \"992\", \"char_count\": \"6066\", \"text\": \"Opinion\\nBAKER, J.\\nRex Allen Harrison (appellant) appeals from a judgment of the Circuit Court of Franklin County (trial court), which approved a jury verdict convicting him of aggravated sexual battery. The issues he presents are: (1) whether a composite sketch made by a state police artist from information given him by the complaining witness (victim), and admitted into evidence without the testimony of the artist, was inadmissible hearsay; and (2) whether the sketch constituted an expert opinion of the person who drew it, thereby requiring a foundation be laid before admitting it into evidence.\\nThe Commonwealth argues that because appellant failed to state with specificity the ground for his objection to the admissibility of the composite sketch, we should not consider either issue presented by this appeal. Our review of the record reveals that the trial court considered and ruled upon the objection on the issues submitted for our consideration. For that reason we decline to sustain the Commonwealth's motion to dismiss.\\nViewing the evidence most favorable to the Commonwealth, granting to it all reasonable inferences therefrom, the relevant facts disclose that at approximately 8:00 p.m. on March 28, 1987, in the backyard of her home, victim was grabbed by her assailant, thrown to the ground and struck in her face. She suffered a fractured mandible and multiple lacerations and contusions which required emergency room treatment at the hospital where she was employed as a nurse. In addition, her blouse and bra were torn from her body and her breasts were fondled by the attacker. Although the events occurred at dusk, nearby lights enabled victim sufficiently to see the assailant's face to describe him to a police artist. Because victim believed that two or three months prior to the attack she had seen her assailant on the hospital grounds, a copy of the sketch was displayed at the hospital. On June 3, 1987, one of the nurses at the hospital who had seen the sketch saw appellant in its emergency room and advised victim by telephone. Victim immediately came to the hospital, saw appellant, and contacted the police, who came to the hospital and placed appellant under arrest.\\nAt trial, victim made an in-court identification of appellant as her assailant. In addition, she identified the sketch as the one drawn by the artist from information she personally gave him on the night she was assaulted. The jury viewed the sketch and was able to compare its likeness to appellant as he testified on his behalf.\\nAppellant argues that the hearsay rule applies to written as well as oral statements, and argues that it is the picture itself that speaks hearsay and that its implicit assertions are an expression of the artist's opinion. Appellant's arguments are not in accord with the majority of the courts which have addressed those issues. In Commonwealth v. Thornley, 400 Mass. 355, 509 N.E.2d 908 (1987), the Massachusetts Supreme Court concluded that a composite sketch is not a \\\"statement\\\" within the meaning of the hearsay rule and is admissible if the process used to obtain it was not impermissibly suggestive. No such suggestion is contained in the record before us. In United States v. Moskowitz, 581 F.2d 14 (2nd Cir.), cert. denied, 439 U.S. 871 (1978), the Court of Appeals, speaking through Judge Meskill, reached a similar conclusion. Noting that, as here, the sketch was made from information given to a police artist soon after the crime was committed, Judge Meskill said:\\nThe sketch itself . . . need not fit an exception to the rule against hearsay because it is not a \\\"statement\\\" and therefore can no more be \\\"hearsay\\\" than a photograph identified by a witness.\\n\\nThe testimony of the artist was no more necessary as a condition of admissibility than a photographer's testimony would have been had the witnesses identified a photograph.\\nId. at 21; see also State v. Packard, 184 Conn. 258, 439 A.2d 983 (1981) (where the Connecticut court likened a composite sketch to photographs and held that the sketch did not constitute a statement which would bring it within the hearsay rule). Other states have declared that as a general rule sketches are not hearsay or are admissible because of specific exceptions to the hearsay rule. State v. Ginardi, 111 N.J. Super. 435, 268 A.2d 534, aff'd, 57 N.J. 438, 273 A.2d 353 (1971) (prior identification); People v. Rogers, 81 Ill. 2d 571, 411 N.E.2d 223 (1980) (prior extrajudicial identification); People v. Bills, 53 Mich. App. 339, 220 N.W.2d 101 (1974) (res gestae).\\nViews contrary to the majority have been expressed in Commonwealth v. Rothlisberger, 197 Pa. Super. 451, 178 A.2d 853 (1962) and People v. Johnson, 505 N.Y.S.2d 451, 122 A.D.2d 812 (1986). In Rothlisberger, the sketch was clearly classified as hearsay; however, in Johnson, the reason the evidence was excluded was because no one testified that a witness had given the artist the information from which the picture was created.\\nWe adopt the views expressed in Thornley and Moskowitz and hold that a composite sketch is not a \\\"statement\\\" within the meaning of the hearsay rule. We also hold that a composite sketch is admissible when properly identified by the person who gave the artist the information from which the sketch was created. The testimony of the artist was no more necessary as a condition of admissibility than a photographer's testimony would be when a competent witness has identified a photograph as an accurate portrayal of that which it purports to depict.\\nFor the reasons stated, the judgment of the trial court is affirmed.\\nAffirmed.\\nColeman, J., and Moon, J., concurred.\\nThe assailant fled the scene when lights from an automobile temporarily shone into the yard.\"}"
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diff --git a/va/4398506.json b/va/4398506.json
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+"{\"id\": \"4398506\", \"name\": \"FAIRFAX COUNTY v. MARIO E. ESPINOLA\", \"name_abbreviation\": \"Fairfax County v. Espinola\", \"decision_date\": \"1990-10-02\", \"docket_number\": \"No. 1877-89-4\", \"first_page\": \"126\", \"last_page\": \"132\", \"citations\": \"11 Va. App. 126\", \"volume\": \"11\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T01:51:36.550775+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FAIRFAX COUNTY v. MARIO E. ESPINOLA\", \"head_matter\": \"Alexandria\\nFAIRFAX COUNTY v. MARIO E. ESPINOLA\\nNo. 1877-89-4\\nDecided October 2, 1990\\nCounsel\\nPeter D. Andreoli, Jr., Senior Assistant County Attorney (David T. Stitt, County Attorney; Robert Lyndon Howell, Deputy County Attorney, on briefs), for appellant.\\nGregory C. Mitchell (Dale & Mitchell, on brief), for appellee.\", \"word_count\": \"1851\", \"char_count\": \"11535\", \"text\": \"Opinion\\nKOONTZ, C.J.\\nFairfax County (the County) appeals a decision of the Industrial Commission awarding benefits to Mario E. Espin\\u00f3la, claimant, for disability due to an occupational disease. On appeal, the County contends that the commission erred in finding that Espin\\u00f3la met his burden of proof under Code \\u00a7 65.1-46.1 to establish that his hepatitis was compensable. The County also asserts that the commission erred in finding that Espin\\u00f3la had filed his application for hearing within the time limits of Code \\u00a7 65.1-52. We agree with the commission's decision and affirm.\\nEspin\\u00f3la worked as a senior medical technician for the Fairfax County Police Department for ten years, beginning in 1976. Throughout his employment, Espin\\u00f3la regularly administered blood tests and breathalyzer tests to persons arrested for driving while intoxicated. He conducted over 5,000 such tests and was exposed to blood approximately 200 times through needle punctures and breaking or seeping vials. On several occasions, he was exposed to blood from persons known to have hepatitis in their medical histories. His last recorded exposure to blood from a suspect who tested positively for hepatitis occurred on December 29, 1983.\\nEspin\\u00f3la did not have hepatitis when he was hired by the police department in 1976. In 1977, his liver function tests were normal. In 1982, his blood tests showed abnormal liver enzyme levels indicative of hepatitis. In a letter dated July 15, 1988, Dr. Vinod K. Rustgi stated that he saw Espin\\u00f3la in December, 1987. and performed a liver biopsy, which showed evidence of chronic persistent hepatitis. Dr. Rustgi diagnosed that Espin\\u00f3la had chronic non-A, non-B (NANB) viral hepatitis and referred him to the National Institutes of Health in February, 1988. Dr. Rustgi stated in a letter dated September 1, 1988, \\\"Mr. Espinola's abnormal liver enzymes and his NANB hepatitis are most likely due to exposure to blood products during his job with the police department in the past.\\\" Dr. Frederic B. Walker, IV, examined Espinola's medical records at the request of the County. He reported on October 30, 1988, that \\\"[i]t is virtually certain that Mr. Espin\\u00f3la acquired the disease as a consequence of his work, perhaps from exposure of 5/ 12/82.\\\"\\nEspinola's last day of work with the police department was May 17, 1986. He filed an application for hearing on July 1, 1988. A hearing was held before the deputy commissioner on November 22, 1988. The deputy commissioner found that Espin\\u00f3la had not met his burden of proof under Code \\u00a7 65.1-46.1 because he admitted that he had not, to his knowledge, been exposed to NANB hepatitis and if the hepatitis was contracted as a result of his employment with the police department, he had been infected on or before May 12, 1982, thereby barring his claim under Code \\u00a7 65.1-52. On review, the full commission reversed, finding that there was sufficient medical evidence to establish with reasonable medical certainty that Espin\\u00f3la contracted NANB hepatitis as a result of long periods of exposure to blood products in his employment and that there was no persuasive evidence of significant exposure outside of his employment. The commission also found that Espinola's application was filed within two years of a communication of diagnosis on December 16, 1987 and within five years of the last injurious exposure on the last day of employment, May 17, 1986.\\nThe County argues that there was not sufficient evidence to show that Espin\\u00f3la had been exposed to NANB hepatitis while employed with the police department. Upon appellate review, the findings of fact of the Industrial Commission will be upheld when supported by credible evidence. Russell Loungewear v. Gray, 2 Va. App. 90, 92, 341 S.E.2d 824, 825 (1986). \\\"Whether a disease is causally related to the employment and not causally related to other factors is such a finding of fact.\\\" Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788 (1988). We construe the evidence and the inferences therefrom, using familiar principles, in the light most favorable to the party prevailing below. See, e.g., Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). In order for an ordinary disease of life to be compensable as an occupational disease under Code \\u00a7 65.1-46.1, the claimant must establish by clear and convincing evidence, to a reasonable medical certainty, that the disease (1) arose out of and in the course of employment, (2) did not result from causes outside of the employment, and that (3) it follows as an incident of an occupational disease; or is an infectious or contagious disease contracted in the course of employment in a hospital, sanitarium, public health laboratory or nursing home or in the course of employment as emergency rescue person nel; or is characteristic of the employment and was caused by conditions peculiar to the employment. Breeding, 6 Va. App. at 9, 365 S.E.2d at 786-87.\\nThe medical evidence in the record strongly supports the commission's finding that Espinola's NANB hepatitis was compensable under Code \\u00a7 65.1-46.1. The medical experts involved in the case unanimously agreed that Espin\\u00f3la contracted his hepatitis due to the environment in which he worked. Dr. Walker, the expert hired by the County, stated that he was \\\"virtually certain\\\" that Espin\\u00f3la contracted his NANB hepatitis from his employment. Espin\\u00f3la had ten years of exposure to blood and blood products, which came into contact with his skin every day at work, and had suffered over 200 percutaneous exposures from needles and shattered blood vials. He had no significant exposure to blood or blood products outside of his employment.\\nThe commission evaluated Espinola's statement that to his knowledge he was never exposed to NANB hepatitis and concluded that Espin\\u00f3la \\\"knew he risked exposure to hepatitis but was not aware of a specific exposure to NANB.\\\" The commission also found that \\\"exposure from contaminated blood products, including contamination by viral hepatitis, is characteristic of the medical technician position held by Espin\\u00f3la.\\\" This finding was based on the unanimous opinions of the medical experts, the information in The Merck Manual of Diagnosis and Therapy (15th ed. 1987) describing the epidemiology of the illness, and evidence of the conditions of Espinola's employment. The commission's findings regarding the compensability of Espinola's illness are based on credible evidence and will not be disturbed on appeal.\\nThe County argues further that Espin\\u00f3la failed to file his application for hearing in a timely manner within the limits prescribed in Code \\u00a7 65.1-52. The filing of a claim within the statutory period is jurisdictional and the burden of proving a timely application is on the claimant. Breeding, 6 Va. App. at 6, 365 S.E.2d at 785 (citations omitted). A claim for an occupational disease must be filed either within \\\"two years after a diagnosis of the disease is first communicated to the employee or within five years from the date of the last injurious exposure in employment, whichever first occurs.\\\" Code \\u00a7 65.1-52(3). Espinola's uncontradicted testimony established that he was first advised that he had contracted NANB hepatitis by Dr. Rustgi on December 16, 1987 and the commission found that this was the date of his first communication of a diagnosis. Therefore, the filing of his application for hearing on July 1, 1988 was within two years after a first communication of a diagnosis of the disease.\\nThe County asserts that Espinola's last injurious exposure was on May 12, 1982 because this date was the documented exposure to a known carrier of hepatitis relied upon by Dr. Walker in stating his opinion that Espinola's disease was contracted in the course of his employment. However, the commission rejected this reasoning and found that Espinola's last day of work, May 17, 1986, was the date of his last injurious exposure in employment. In reaching this finding, the commission noted that the undisputed evidence established that it was impossible to pinpoint the exact occurrence which exposed Espin\\u00f3la to the disease. Blood tests for hepatitis were recorded for prisoners and suspects only upon special request. His last recorded exposure to blood from a suspect who tested positively for hepatitis occurred on December 29, 1983. This date was within five years of the date on which Espin\\u00f3la filed his application for hearing. He was also exposed to blood and blood products throughout his ten years of employment with the County. Espin\\u00f3la estimated that his skin was accidentally penetrated by needles and he sustained injuries which caused blood from other persons to be on and under his skin approximately twenty times each year. The commission stated that \\\"injurious exposure to hepatitis occurred in a significant number of cases, although not specifically determinable mathematically, and this exposure continued so long as Espin\\u00f3la had regular contact with numerous subjects from whom he drew blood and had percutaneous exposure to their blood in the recurring incidents described in the record.\\\"\\n\\\"Injurious exposure\\\" to an occupational disease, as the term is used in Code \\u00a7 65.1-52, means \\\"an exposure to the causative hazard of such disease which is reasonably calculated to bring on the disease in question.\\\" Code \\u00a7 65.1-52(3). A claimant can meet the statutory standard either \\\"by establishing actual causation or aggravation of the disease or by showing that the exposure was of such duration and intensity that it generally causes the disease in question, even though actual causation or aggravation cannot be established in the claimant's case.\\\" Breeding, 6 Va. App. at 7, 365 S.E.2d at 785. The statutory definition of \\\"injurious expo sure\\\" supplants the common-law definition and is broader in its scope in order to relieve claimants of the burden of establishing actual causation in cases where such proof is difficult, if not impossible. Caudle-Hyatt, Inc. v. Mixon, 220 Va. 495, 499-500, 260 S.E.2d 193, 195-96 (1979). The Mixon case dealt with exposure to asbestos. Asbestosis differs in nature from hepatitis because it is a progressive disease which may be latent during the employment and manifest itself many years later, after the cessation of employment. See Parris v. Appalachian Power Co., 2 Va. App. 219, 230, 343 S.E.2d 455, 461 (1986). However, this case involves the same inherent difficulties in establishing a specific and identifiable causative incident which led to the claimant's contraction of his occupational disease. The commission found in this case that \\\"Espinola's exposure was of such duration and intensity over the years that a reasonable and rational determination can readily be made that his employment exposure proximately caused the disease.\\\" This finding is supported by the unanimous opinions of the medical experts. We therefore uphold the commission's ruling that Espinola's last day of employment was the date of his last injurious exposure for purposes of Code \\u00a7 65.1-52.\\nFor the reasons stated above, we affirm the judgment of the Industrial Commission in this case.\\nAffirmed.\\nDuff, J., and Keenan, J., concurred.\"}"
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+"{\"id\": \"4434501\", \"name\": \"Hoback v. Kilgores\", \"name_abbreviation\": \"Hoback v. Kilgores\", \"decision_date\": \"1875-06\", \"docket_number\": \"\", \"first_page\": \"149\", \"last_page\": \"150\", \"citations\": \"26 Gratt. 442\", \"volume\": \"67\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:13:22.749476+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"*Hoback v. Kilgores.\", \"head_matter\": \"*Hoback v. Kilgores.\\n[21 Am. Rep. 317.]\\nJune Term. 1875,\\nWytheville.\\n1. Mistake\\u2014Mutual\\u2014Compensation. \\u2014K sells to H a tract of land, expressing- the belief, which he no doubt entertained, that there were 127 acres in the tract, and H relying on that belief purchased, and paid the purchase money. There were in fact but 81 acres. K haying sold, and H haying purchased under a mutual mistake, H is entitled to compensation for the deficiency.\\n2. Same- Same\\u2014Same\\u2014Measnre. \\u2014Although in cases of mere deficiency in quantity, within the boundaries of a tract sold, the general rule of compensation is according to the average value of the whole tract, yet where, as In this case, there are valuable improvements upon the land, the value of which bears a very large proportion to the value of the land, the just and true measure of compensation is according to the average value of the land without the improvements, considering both together with the price for which it was sold, estimating the quantity of the land, as the parties did. at 1.27 acres.\\n3. Sales of Land\\u2014Warranty\\u2014General\\u2014Special.\\u2014A vendor of land in his own right is bound to convey it with general warranty, unless it be otherwise agreed between the parties. But a party who had sold to the vendor, and had retained the legal title, or had some interest in the land, is only required to convey with special warranty.\\nThis was suit in equity in the Circuit court of Wise county, brought in August 1872, by Bevi Hoback against Isaac and Hiram Kilgore, to enforce a contract for the sale of a tract of land by Isaac Kilgore to Hoback. The plaintiff in his bill charged, that Isaac Kilgore had sold him the land, and assured him that the tract contained one hundred and twenty-seven and a half acres, for which he was to pay him $1,400; which he had paid. That he had since had *the land surveyed, and the tract in fact contained but eighty-one acres and a fraction. He therefore claimed compensation for the deficiency.\\nThe defendant, Isaac Kilgore, in his answer, insisted that he sold the land by the boundaries, and denied that he gave assurance of any particular quantity.\\nIt appears irom the evidence, that Isaac j Kilgore had purchased the land from his I brother Hiram Kilgore, in 1856, and they | estimated that there was in the tract one ! hundred and twenty-seven and a half acres; and that he expressed strongly to Hoback, at the time of the sale to him, that he believed, as he no doubt did believe, that there was that quantity of land; and that Hoback purchased supposing there was that quantity.\\nIt appeared further, that Isaac Kilgore had, after his purchase of the land, put improvements on it, consisting of a dwelling-house, a barn and other outhouses, also a tan-yard and a grist-mill.\\nAnd it also appeared, that at the time of the sale to Hoback, the title to the land was in the Commonwealth.\\nThe cause came on to be finally heard on the 4th day of April 1874, when the court held that the sale to the plaintiff was a sale in gross, and that Isaac Kilgore was not liable to account for any deficiency in the estimated number of acres of the land; and decreeing that Isaac and Hiram Kilgore should convey to the plaintiff all their right, interest and claim to the land, with special warranty, gave them their costs. From this decree Hoback applied to this court for an appeal; which was allowed.\\nBurns, for the appellant.\\nGilmore, for the appellees.\\nMistake\\u2014Mutual\\u2014Compensation.\\u2014As to the necessity for mutuality in order to allow relief, see citation of the principal case in French v. Chapman, 88 Va. 322; Massie v. Heiskell, 80 Va. 801. See also, as to equitable relief, Mauzy v. Sellars, 26 Gratt. 641. In Crislip v. Cain, 19 W. Va. 550, the court says: \\u201cThe case of Hoback y. Kilgores is very imperfectly reported, the contract, between vendor and vendee not being stated, nor its contents even alluded to by the court. The vendee was relieved in part from the payment of the purchase-money because of a deficiency. Judge Monguee, on page 444 states, that \\u2018the vendor represented to the vendee, that the quantity of the land was one hundred and twenty-seven and a half acres; and the vendee made the purchase on the faith of that representation. Whereas in truth and in fact there were but eighty-one acres of land in the tract. \\u2019 If this be a correct statement of the case, on the principles, which we have laid down, an abatement should have been made on account of the deficiency, as was done. But the reporter slates a case essentially different, as does the syllabus; and if the reporter is right in his statement of the case, on correct principles no such relief could have been granted the vendee.\\u201d\\nSame\\u2014Same\\u2014Same\\u2014Measure.\\u2014The mode of ascertaining the compensation, as laid down in the principal case, is followed in Yost v. Mallicote, 77 Va. 614; Trinkle v. Jackson, 86 Va. 241; Nichols v. Cooper, 2 W. Va. 347; Triplett v. Allen, 26 Gratt.721; Blessing v. Beatty, 1 Rob. 287. See especially. Watson v. Hoy, 28 Gratt. 713. and note. The principal case is cited in 21 Am. Rep. 317.\", \"word_count\": \"1678\", \"char_count\": \"9422\", \"text\": \"*Moncure, P.\\ndelivered the opinion of the court.\\nThe court is of opinion, that there was a mutual mistake between the vendor and vendee in this case as to the quantity of land included in the boundaries of the tract sold by Isaac Kilgore to Bevi Hoback, as in the proceedings mentioned; the vendor having represented to the vendee that the said quantity was one hundred and twenty-seven and a half acres, and the vendee having made the purchase on the faith of that representation; whereas, in truth and in fact, there were but eighty-one acres of land in the said tract.\\nThe court is further of opinion, that the vendee, having fully paid the purchase money of the said tract according to the contract of the parties, is entitled to be compensated for the said deficiency in the quantity of land in the said tract, according to the principles laid down in Blessing's adm'rs v. Beatty, 1 Rob. R. 287, and the cases therein cited.\\nThe court is further of opinion, that although, in the case of a mere deficiency in quantity within the boundaries of a tract of land conveyed or contracted to be conveyed, the general rule of compensation is according to the average value of the whole tract \\u2014Id. p. 305; yet there will be a departure from that rule when particular circumstances require it\\u2014Id. And the court is of opinion, that there are such circumstances in this case, arising from the fact that there are valuable improvements upon the land, consisting of a dwelling-house, barn, and other outhouses, a tan-yard, and a gristmill, the value of which improvements bears a very large proportion to the value of the land. And the court is therefore of opinion, that in this case the just and true measure of compensation *is according to the average value of the land without the improvements, condsidering both together to be worth the contract price of fourteen hundred dollars, estimating the quantity of the land, as the parties did, at one hundred and twenty-seven and a half acres.\\nThe court is further of opinion, that a vendor of real estate in his own right is bound to convey the same with general warranty, unless it be otherwise agreed between the parties; and there having been no such other agreement between these parties, the vendor, Isaac Kilgore, is bound to convey the said tract of land to the vendee, Revi Hoback, with general warranty. But though it is necessary for the appellee, Hiram H. Kilgore, who seems to have the legal title to or some interest in the land, to join in the said conveyance; yet as he was not the vendor, he is bound to convey only with special warranty.\\nAnd the court is therefore of opinion, that the Circuit court, instead of making the final decree which it did, ought to have decreed that the said vendee, Hoback, is entitled to a specific execution of the said contract for the purchase of the said tract of land, and to be compensated for the deficiency in the quantity of the said tract which was sold to him as containing one hundred and twenty-seven and a half acres, the said compensation to be ascertained in the manner aforesaid. And the court ought to have ascertained the extent of the deficiency and the amount of compensation to which the said vendee is entitled therefor, by a reference to a commissioner of the court, unless such reference had been rendered unnecessary by an agreement of the parties as to such extent and amount; and ought to have decreed the payment of the said amount with interest from the time at which it was due by the vendor to the vendee, and the conveyance *of the said tract of land in fee simple to the vendee by the vendor Isaac Kilgore with general warranty, and by the said Hiram H. Kilgore with special warranty, and the payment by the said Isaac Kilgore of the costs of the plaintiff in this suit in the said Circuit court.\\nThe court is therefore of opinion, that the decree appealed from is erroneous; and it is decreed and ordered that the same be reversed and annulled, that the appellee Isaac Kilgore pay to the appellant bis costs by him expended in the prosecution of his appeal aforesaid here, and that this cause be remanded to the said Circuit court for further proceedings to be had therein to a final decree, in conformity with the foregoing opinion.\\nWhich is ordered to be certified to the said Circuit court of Wise county.\\nDecree reversed.\"}"
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+"{\"id\": \"4436434\", \"name\": \"Skipwith & als. v. Cabell's Ex'or & als.; Lee & als. v. Cabell's Ex'or & als.\", \"name_abbreviation\": \"Skipwith v. Cabell's Ex'or\", \"decision_date\": \"1870-04\", \"docket_number\": \"\", \"first_page\": \"282\", \"last_page\": \"298\", \"citations\": \"19 Gratt. 758\", \"volume\": \"60\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:37:01.244595+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"*Skipwith & als. v. Cabell\\u2019s Ex\\u2019or & als. Lee & als. v. Cabell\\u2019s Ex\\u2019or & als.\", \"head_matter\": \"*Skipwith & als. v. Cabell\\u2019s Ex\\u2019or & als. Lee & als. v. Cabell\\u2019s Ex\\u2019or & als.\\nApril Term, 1870, Richmond,\\ni. Wills\\u2014Interpretation \\u2014 Conditional Legacy. \\u2014Mrs. C. au old and very wealthy lady, after disposing by her will and two codicils, of a large amount of her property, at the close of the second codicil says: In case of a sudden and unexpected death, I give the remainder of my property to he equally divided between my cousin Dr. C. of Philadelphia and my cousin P. S., of New Orleans, one-halt of which each must hold in trust for the benefit of their children. This is not a conditional legacy dependent upon the sudden and unexpected death of the testatrix.\\n2. Same\\u2014Same\\u2014Same.\\u2014In such cases the question is whether the contingency Is referred to as the reason or occasion for making the disposition, or as the condition upon which the disposition Is to become operative.\\n3. Same\\u2014Revocation.\\u2014The second codicil Is dated August 18, 1861. On the 27th November 1861. the testatrix made a sixth codicil, as follows: In consequence of the state of the country, I now revoke my bequests to Dr. O. and his children, and also to Mrs. T. her daughter C. and also to Miss D. all of them residents of Philadelphia. Evidence was offered to prove that testatrix had been advised that there was danger that the legacies would be confiscated by the Confederate government, and that this was the reason of the revocation. Hem):\\n1. Same\\u2014Same.\\u2014If the advice was erroneous it would not avoid the revocation.\\n2. Same \\u2014Same\\u2014Parol Evidence \\u2014 Inadmissible to Show mistake o\\u00ed Testatrix. \\u2014Parol evidence is not admissible to show the views or opinions of the testatrix, in order to show that she acted under a mistake. The mistake which Induces the revocation must appear on the face of the will.\\n3. Same\\u2014Tenants in Common\\u2014Effect of Revocation as to One Tenant.\\u2014o. and S. took under the residuary clause of the will each one-half as tenants in common, and upon the revocation of the bequest to Dr. C., the half given to him does not pass to S. but is undisposed of by the will and goes to the next of kin.\\n4. Same\\u2014\\u201cMoney Legacies.\\u201d -By thefirst clause of her will testatrix says: Of the ten thousand *and fifty dollars which I received from my uncle Fitzhugh Garter\\u2019s estate, I give and bequeath two thousand dollars of it to Mrs. O.; two thousand dollars of It to Mrs. J.; two thousand dollars of it to my cousin Mrs. Y.; one thousand dollars of it to my friend Miss L.; one thousand dollars of it to Mrs. B.; one thousand and fifty dollars to Mrs. F. of Philadelphia, and one thousand dollars of It to my cousin Miss It. 1 give the sums mentioned above to Gen\\u2019l Cocke in trust, &c. At the death of the husband of testatrix he had standing in his name $10,050 of bonds of the State of Virginia which he had purchased with money derived from the estate of Fitzhugh Carter; he intended these bonds to be transferred to his wife and they were accordingly transferred to her by his ex'or. These are money legacies, and are not specific bequests of the bonds.\\n5. Same\\u2014Ademption.\\u2014By another danse of the will testatrix leaves to the unmarried daughters of her cousins B. and C. \\u201cmy guaranteed bonds of the James River and Kanawha Company, to be equally divided between them.\\u201d After the date ot\\\" the will an act was passed which authorized the holders of the bonds of this Company, for which the State was bound, to surrender them and receive in lieu thereof, bonds of the State for the same amount, and under this act the testatrix exchanged her guaranteed bonds for State bonds, which she held at her death. The exchange of the guaranteed bonds for Stale bonds was not an ademption of the legacy; and the legatees are entitled to have the State bonds.\\n6. Investment in Confederate Bonds.\\u2014In tiie progress of a suit brought by the ex\\u2019or to have the estate administered, the court authorized him to invest funds of the estate in his hands, in Confederate bonds. He paid large sums of Confederate money to one of the residuary legatees, but the parties entitled, to the other half of that legacy being unascertained, he paid nothing to them. Heed:\\n1. Same\\u2014Loss Borne Ratably.\\u2014That the loss sustained by the investment in Confederate bonds, must be borne ratably by all the parties entitled to residuum.\\n2. Same\\u2014Scaling.\\u2014That in ascertaining the residuum, and the payments made to the one residuary legatee, these payments must be scaled according to the value of the money at the time of the payment.\\n7. Will\\u2014Interpretation.\\u2014-By the second clause of the will testatrix says: I give half the Virginia State stock that I may own when I die to my cousin S. L. He is entitled to one-half of the 'aggregate \\u2019'\\\"amount of State stocks she owned at her death, except the Slate bonds exchanged for the guaranteed bonds of the James River and Kanawha Company. But though her money was invested in State bonds by a bank in its own name, and deposited with the treasurer of the State, under an agreement with her to pay the taxes on the bonds, and also the investment, and return her the bonds when she required it, or purchase others and deliver them to her, this does not make the bonds hers, so as to entitle S. L. to one-half thereof.\\nThis was a bill filed in January 1863, in the Circuit court of Nelson county, by D. J. Hartsook, executor of Mary W. Cabell, deceased, to obtain a construction of certain clauses of her will and the codicils thereto, and to have the direction of the court in the administration of the estate. The legatees interested in the clauses, which were supposed to be of doubtful construction, and the next of kin, so far as they were known, were made parties defendants.\\nMrs. Cabell was the widow of the late Joseph C. Cabell, of Nelson county, and she died in that county in December 1861. She was the daughter of George Carter, and her mother was a Skipwith. She was an old lady, possessed of a very large estate, consisting principally of slaves, bank stock and bonds, without children, or brothers or sisters, or their descendants; all her uncles and aunts but one were dead, and her next of kin scattered over the United States, and a number of them in Furope, were the descendants of these uncles and aunts; and those of them who were known and made parties in this suit were about one hundred.\\nThe will of Mrs. Cabell, and the six codicils thereto, were written by herself; and they give abundant proof that not only the handwriting, but the whole frame and structure, as well as the provisions of these instruments, were her own work. The legatees number about fifty, and the legacies range from a gold thimble up to twenty thousand dollars, and even more, given specifically, *beside the residuary bequests. The clauses of the will \\u2022and codicils on which the questions decided in this court arose, or which may throw light upon them, are the following: The will is dated the 22d of December 1859, .and says first: \\u201cOf the ten thousand and fifty dollars which I \\u25a0 received from my uncle Fitzhugh Carter\\u2019s estate, I give and bequeath two thousand dollars of it.to Mrs. Hill Carter, of Shirley; two thousand dollars of it to Mrs. Mary Cabell Irvine; two thousand dollars of it to my cousin Mrs. Fanny Young; one thousand dollars of it to my friend Miss Buey Claiborne; one thousand dollars of it to Mrs. Margaret Brown, daughter of Mrs. McClelland; one thousand and fifty dollars to my friend Mrs. Fanny Taylor, of Philadelphia; and one thousand dollars of it to my cousin Miss Bandonia Randolph. I leave the sums mentioned above, to Gen\\u2019l Cocke, in trust for the sole and separate use of the ladies whose names are mentioned.\\u201d\\nThe second bequest is:\\u2014\\u201cI give and bequeath half the Virginia State stock that I may own, when I die, to my cousin Smyth Bee.\\u201d\\nAfter a number of other bequests, the first of them being to her cousin Peyton Skip-with of all the Richmond city stock that she might own at her death, and her mother\\u2019s portrait, comes the following: \\u201cI leave to Dr. Charles Cocke, in trust for the sole and separate use of the now unmarried daughters of my cousin Carter Braxton, and my cousin Dr. Corbin Braxton, my guaranteed bonds of the James River and Kanawha Company, to be equally divided between them.\\u201d\\nIn the conclusion she says:\\u2014-\\u201cI have written one, and I mean to write another codicil to this will. \\u2019 \\u2019 And after signing it she says:\\u2014I appoint my cousin, P. H. Skipwith, my executor; if he cannot act, I appoint D. J. Hartsook, without either of them giving security.\\nThe first codicil is dated the 24th of December 1859. After making a number of bequests of money, trinkets, *portraits and furniture to different persons, sh^ signs it; and then adds: I intend, hereafter, writing another codicil to dispose of the rest of my property; but in case of a sudden death, I will add to this codicil, that I give to my cousin, Peyton H. Skipwith, my servant Peyton, &c., mentioning several slaves. And then, after another signing, comes the following clause: \\u201cI have specified in several instances, exactly what different stocks are to be given to different persons; but in case changes be made in the location of my stock, I wish it to be distinctly understood, that out of my general property, those same persons are to receive the sums of money specified as given to them. I also leave all and every thing' that I have given to my cousins, Peyton Skip-with and Smyth Bee, in trust to D. J. Hartsook for their sole and separate use, to do with as they please.\\u201d\\nThe second codicil, which is dated at its commencement, on the 28th of February 1861, and at its conclusion, August 18th, 1861, after several legacies of money to other persons, gives to Miss Cornelia Taylor, of Philadelphia, one thousand dollars, and to Mrs. Bewis, of Philadelphia, two thousand dollars; and then says: \\u2018 \\u2018In case of a sudden and unexpected death, I give the remainder of my property to be equally divided between my cousin, Dr. Carter of Philadelphia, and my cousin Peyton Skip-with, of New Orleans one-half of which, each must hold in trust for the benefit of their children.\\u201d\\nThe third, fourth and fifth codicils are of no importance; the sixth, which bears date the 27th of November 1861, says: \\u201cIn consequence of the state of the country, I now revoke my bequest to Dr. Charles Carter and his children, and also to Mrs. Fanny Taylor, her daughter Miss Cornelia Taylor, and also to Miss Fanny Bewis, all of them residents of Philadelphia.\\u201d\\n*On the 30th of April 1863, the court, on the motion of the plaintiff, made an order, that it appearing that the plaintiff has money in his hands received in the due course of his trust, belonging to the estate of his testatrix, which moneys, owing to the difficulties and doubts concerning the construction of the will, and the dispersed situation of some of the legatees, he is unable to -pay over to the parties entitled, leave is granted him to invest the whole or any part of said money in registered bonds of the Confederate States or of the State of Virginia, taking said bonds in his name in his fiduciary character. And it shall be the duty of the plainfifl: to preserve the bonds thus taken, and to exercise due diligence in collecting the interest thereon.\\nSeveral of.the legatees mentioned in the first clause of the will, Smyth Bee and Peyton H. Skipwith, answered separately, and all the next of kin mentioned in the bill united in an answer; all of them setting up their respective pretensions. But without going into detail, the several questions, with the evidence in relation to them, may be stated as follows:\\nIt was contended by the legatees under the first clause, that they were demonstrative legacies, and that the legatees were entitled to receive in money, the sums men-, tioned. And it appeared from the evidence that Joseph C. Cabell, the husband of the testatrix, had, in his lifetime, received from the representatives of Ritzhugh Carter\\u2019s estate, a sum of money which he invested in State bonds in his own name, to the amount of ten thousand and fifty dollars. As this was money derived through his wife, he wished it to be transferred to her, and had executed a power of attorney to D. J. Hartsook, authorizing him to transfer the stocks to her; though this power had not been delivered to Hartsook, and nothing was done under it during his lifetime ; but after his death, with the consent of the residuary legatees of Joseph C. Cabell, his executors transferred the *stock to Mrs. Cabell. These bonds were kept separate from her other bonds by Mrs. Cabell, and they are entered separately in the book in which she entered a statement of the bonds and stocks which she held. This book was before the commissioner, and is referred to as marked A.\\nUnder the second clause of the will, Smyth Uee claimed that he was entitled to one-half of all the State bonds which the testatrix owned at her death. Of these bonds, there were $29,550 of which there was no dispute, that he was entitled to one-half. He contended that the bonds mentioned in the first clause should be taken into the estimate and added to the above sum; and further, that bonds to the amount of $7,600, which she held at her death, and for which she had exchanged her guaranteed bonds of the James River and Kanawha Company, should be taken as constituting a part of the State bonds referred to in the second clause of the will. And he insisted still further, that the Bank of Howardsville held the State bonds of the testatrix to the amount of $34,600, which should also be taken as a part of the fund of which he was entitled to share.\\nIt appears from the evidence, that at the time Mrs. Cabell wrote her will, she held $7,600 of the bonds of the James River and Kanawha Company, guaranteed by the State. These are the bonds given in the will to the unmarried daughters of Carter and Corbin Braxton. On the 23d of March 1860, the general assembly passed an act to amend the charter of the James River and Kanawha Company, bj' the 4th section of which act, the Board of Public Works was directed, upon the surrender by the holders thereof, of any of the bonds of the James River and Kanawha Company, for the payment of which the State is responsible, to issue to said holders a correspondent amount of the bonds of the State. Under this act, Mrs. Cabell surrendered her guaranteed bonds, and received in lieu thereof, a certificate *of debt of the State for $7,600, bearing date January 1st, 1861; and this she held at her death.\\nIn relation to the $34,600, Hartsook who was the agent of Mrs. Cabell during her widowhood, for the management of her property, and also the cashier of the Howardsville Bank, states in his first examination: \\u201cThe sum of $34,600 of State stock, purchased from time to time, in the lifetime of Mrs. Cabell, was transferred by her or by me as her agent, to the Bank of Howardsville; the agreement being that the said bank should pay the State taxes, and Mrs. Cabell should receive the interest. This stock was either purchased in the name of the Bank of Howardsville, or transferred to said bank, and now stands in the name of said bank, and is held by the State treasurer as security for the redemption of the issues of said bank. This stock is not entered in the book marked A (the book kept by Mrs. Cabell in which she entered her stocks and bonds), and heretofore referred to; not being in her possession, but standing as above stated, in the name of the bank, and the certificates in the hands of the State treasurer.\\nIn his second examination he says: On the ledger of the Bank of Howardsville, there stands to the credit of Mrs. Mary W. Cabell\\u2019s estate the sum of $34,600, in the registered stock of the State of Virginia. This affiant was cashier of said bank, and the agent of Mrs. Cabell; and at various times had collected for her, and had in his possession, large sums of her money, which money she wished invested in stocks. This affiant at various times purchased from others certificates of stock of the State of Virginia, which was by them transferred to the Bank of Howardsville, and by it deposited with the treasurer of the State for the purposes mentioned in the charter of the bank. This was done in pursuance of an agreement with Mrs. Cabell, that the bank was to pay her the whole interest on said stock, taxes thereon to be paid by the bank; and whenever *Mrs. Cabell wished it, the bank was to redeem the stock so deposited, or purchase for her a like amount. After her death I transferred to her credit on the books of the bank all the stock thus purchased and deposited with the treasurer of the State, amounting to $34,600 as above stated. During her lifetime this affiant was credited with this stock on the books of the bank, but the officers of the bank knew it to be Mrs. Cabell\\u2019s,under the agreement aforesaid; and therefore her estate was credited with it. \\u201cThere was no written contract between Mrs. Cabell and the bank in regard to this matter.\\u201d He further stated, that of this $34,600 there were still deposited with the treasurer three certificates of $10,000 each deposited by the bank, two of which are the identical certificates deposited by him; the residue, amounting to $4,600, he believed had been exhausted in the redemption of the issues of the bank.\\nThe commissioner who was directed to enquire into the facts in relation to these subjects, reported the facts as herein stated; and on the last question concluded his report as follows: No evidence that Mrs. Cabell ever owned any such stock appears on her book, wherein she kept lists of her stocks, which is herewith filed, marked cotn\\u2019r A. It therefore appears to the com\\u2019r that the Bank of Howardsville was a borrower of Mrs. Cabell to the extent of said $34,600, and is debtor to her estate in that amount; and he, so regarding it, has listed the same among the assets of the estate, as a debt due from said bank; and under the provisions of the charter of said bank has reported it as a good debt. The report on this question was excepted to by Smyth Dee.\\nThe legatees of the bonds of the James River and Kanawha Company, guaranteed by the State, insisted that the exchange of the bonds was an ademption of the legacy; and that under the provision of the 1st codicil, they were entitled to be paid out of the general *property of the estate the nominal amount of the bonds. And Peyton H. Skipwith insisted that the residuary clause of the will in favor of Dr. Carter, of Philadelphia, having been revoked, he was entitled to the whole of the residuum. Whilst the next of kin insisted, first, that the bequest of the residuum having been on the contingency of her sudden and unexpected death, and this not having occurred, the bequest was void; and, second, that if the bequest was valid, it was revoked as to the one moiety given to Dr. Carter; and as to that and the other legacies mentioned in the clause of revocation, Mrs. Cabell died intestate, and that the legacies given to these legatees, passed to them as the next of kin.\\nIn relation to the revocation of the bequest to Dr. Carter and the other legatees living in Philadelphia, Hartsook, in his examination, says: Some time before her (Mrs. Cabell\\u2019s) death, I was at her house, and she said she had made her will and had written it so plain that no difficulty could be made; and said she wanted the persons to whom she had given her property to get it as soon after her death as possible. I remarked to her, that under the sequestration act, if she had given property to any of her northern friends, it might be confiscated, and that I mentioned it for her consideration. She thanked me, and said she had, and that she would revoke the bequests. On visiting her the next time, she remarked that she had revoked the bequests to her northern friends on account of the state of the country. I then asked her if she had made any disposition of the property given in these revoked bequests, or whether she had any residuary clause to her will which would take it. She replied she had a residuary clause; and that would do. I told her that perhaps it would not. She replied, well, I cannot help it now. She was suffering greatly and very feeble.\\nMrs. Mosby, another witness, says: \\u201cShe (Mrs. *Cabell) talked about dying for several months before her death, but I do not think she gave up all expectation of recovery until about eight days before she died.\\nThe only other questions in the cause were, whether the assets, amounting to $47,600, invested under' the order of the court in the cause in 'Confederate bonds, were to be considered as invested for the next of kin, and they to bear the whole loss, or whether it was to be considered a part of the residuum, and the loss to be borne by all the parties interested in that residuum; and, second, whether the payments made by the executor during the war to \\\" Peyton H. Skipwith, on account of his interest in the residuum, should be charged to Skipwith at their nominal amount, or at their real value at the time of payment. These payments amounted to $73,910 in Confederate money.\\nBy the decree of the court made on the 10th of October 1866, the court held, 1st. That the bequest of the residuum was not on a contingency which avoided it. 2d. That Peyton H. Skipwith took only one-half of the residuum, and the testatrix died intestate as to the half left to Dr. Carter. 3d. That the legatees of the Fitzhugh Carter fund under the first clause took only the State bonds. 4th. That the legacy of the guaranteed bonds of the James River and Kanawha Company was adeemed by the change into State bonds; and that the legatees were entitled to be paid the nominal amount of said bonds out of the general assets of the testatrix. 5th. That the State bonds constituting the Fitzhugh Carter fund, except the $1,050 left to Mrs. Fanny Taylor of Philadelphia, and afterwards revoked, were not to be taken into the account of the State bonds owned by the testatrix at her death, of which Smyth Dee was to receive one-half. And the commissioner\\u2019s report was recommitted, with instructions to retake the accounts before ordered and any others which the parties may require to be taken.\\n*The second decree was made on the 10th of October 1867, when the court held, that the $47,600 invested under the order of the court in Confederate bonds, should be embraced in the residuum, and all the parties interested in that residuum should bear the loss ratably; and that Peyton H. Skipwith should be charged only the real value of the Confederate money received by him from the executor on account of his interest in the residuum, as at the time it was paid to him.\\nFrom these decrees, Skipwith for himself, and as trustee for his children, obtained an appeal to the District court, where they were affirmed; and he then obtained an appeal to this court. On the 8th of May 1868, after the decision in the District court and before the appeal to the Supreme Court of Appeals, the Circuit court made another decree, carrying out the principles settled in the former decrees. And C. C. Dee and others, the next of kin, obtained an appeal from that and the former decrees.\\nBaldwin, for the appellant Skipwith. It is obvious on the face of these testamentary papers, that it was the intention of this testatrix not to die intestate as to any part of her property. Her next of kin are exceedingly numerous, there being over one hundred of them parties on this record; and they are scattered over the world; many of them wholly unknown to her.\\n1st. I shall discuss the effect of two of the codicils of this testatrix: first, that of the 18th of August 1861, which is the second codicil to the will; and second, that of the 27th of November 1861, which is the sixth of these papers. It is said for the next of kin that the provision in the second codicil, giving the residuum of the estate to Dr. Carter and Peyton Skipwith and their children, is contingent, depending on the sudden and imexpected death of the testatrix; and that she did not so die. This language is used in the first codicil; and *it is not pretended that in that codicil it has this effect. Here is an old lady, seventy-five years old; what death as to her can be sudden and unexpected. In construing such words the courts are cautious in construing them as conditions. 1 homax Ex\\u2019ors 19; 1 Redfield on Wills 176, 178-9, 180. This being an olograph will, no particular formality7 is required in its ptiblication. Now this second codicil is dated the 18th of August. She made several codicils afterwards; and in none of them has she shown a disposition to change it. In the sixth codicil she recognizes this provision in the second, for there is no other bequest to Dr. Charles Carter and his children.\\n2d. It is said on behalf of Dr. Carter and his children, that the revocation of the bequest to him and his children in the sixth codicil is void, because it was done under a mistake. There are some cases of mistake which will avoid a provision in a will; there are some cases in which a testator is allowed to be deceived; as a bequest under the belief that the attention of the legatee proceeds from affection; it will not be allowed to show that this was not the fact. On the other hand, when there has been a bequest to a son, which has been revoked under the belief that he was dead; the revocation will be held to be void. And if there is a bequest to a woman under the belief that she is his wife, and it appears she is not his wife, the bequest is void. But in all these cases you must find the mistake on the face of the will, and it cannot be proved by parol. 1 Domax Ex\\u2019ors SI; 1 Redfield Wills 3S8. The distinction taken in the cases is shadowy; and the only safe rule is that you must stand upon the will and the facts appearing in it which induces the revocation. In this case the testatrix says in consequence of the state of the country she revokes the bequest. If the state of the country was not as it was, then you might say the mistake would avoid the revocation.\\n*It is said that this is a patent ambiguity, and therefore parol proof is admissible to explain it. Parol evidence to prove what was the state of the country; what Mrs. Cabell thought was the state of the country ! Counsel confine it to her mistake as to confiscation; but no case goes so far as to hold that a mistaken belief or opinion or conjecture will avoid the revocation. Who will say what was the state of the country at that time? Though Hartsook says he suggested the danger of confiscation, she says, she revokes on account of the state of the country.\\n3d. The counsel, all of them, seem to consider that the rule in relation to lapsed legacies governs this case. It in fact has no application to it. A lapsed legacy is a defeat pro tanto of the testator\\u2019s will. The courts have said if a specific legatee dies in the testator\\u2019s lifetime, the legacy goes into the residuary bequest; not because the testator intended it; but for no reason but the strong disposition to prevent an intestacy. They presume what is true, that a party sitting down to write his will intends to dispose of the whole of his estate.\\nThen when they came to the residuary estate, as there may be two residuary legatees, they established the rule, that where they were joint legatees, and one died in the lifetime of the testator, the survivor should take the whole; but if they7 were to take as tenants in common, it does not pass to the survivor.\\nAnd so there is another rule. If there is a bequest to a class, the legacy will go to those who survive the testator.\\nThese are arbitrary rules established by the courts; and these being established, gentlemen jump to the conclusion, that the rule applies to a revocation of a legacy. But there is no ground for this conclusion. When a testator revokes a legacy, he is doing a testamentary act; and it is his intention which is to govern. In the *one case, the intention of the testator is defeated; in the other, his intention is expressed. The codicil is a part of the will, and both are to be regarded as one paper. It is a republication of the will as modified by7 the codicil, and if there is a clause of revocation, the will is to be read as if the clause revoked was non scriptum.\\nThen, if the courts struggle against an intestacy when the intention of the testator is defeated, much more should it be the policy of the courts to construe the testamentary acts to effect the same object. 2 Redfield Wills 442, giv.es the rule as to lapses. The testator is supposed to give away the legacy from the residuary legatee only in favor of the special legatee. A fortiori, the court is bound to presume against the intestacy in the case of a revocation, and to enquire what is the intention of the testator expressed upon the face of the paper read as one.\\nIt may be supposed that this question is concluded upon authority; but I have been surprised to find how little authority there is upon it. The judges and text writers have fallen into the error of confounding the principles; yet, there is no such authority as concludes it. The first case is Humphreys v. Taylor, Amb. R. 136. This case shows that the will is to be read as if the bequest revoked was non scriptum. In a case of a lapse, you must read the will as with the clause in it; but when you consider a revocation, you read it as with the clause out. This case is referred to in several books. Larkins v. Larkins, 3 Bos. & Pul. R. 16, , 17, refers to Humphreys v. Taylor, for the principle that a revocation without a new gift is the gift of the whole to the other. Bacon\\u2019s Abr. folio edi. Wills & Testaments, Letter G.\\nThis case of Larkins v. Larkins, is a case in favor of the appellant; as is also Harris v. Davis, 28 Eng. Ch., 1 Coly. R. 416.\\nThe only case in which in such a case as the present, *the revocation was held to be a lapse, is Creswell v. Cheslyn, 2 Eden\\u2019s R. 123. To this case, is appended a note of sergeant Hill, in which he -questions its correctness.. Then the question is, whether this case so disapproved, so settles the law as to bind this court.\\nThen how does this will read as corrected by the codicil. I give the remainder of my property to be equally divided between my cousin Dr. Carter of Philadelphia, and my cousin Peyton Skipwith of New Orleans, &c. Strike out all that relates to Dr. Carter ; and it will all be given to Skipwith. This is not a case of artificial construction, where you are settling a principle; but it is a case of the intention of the testatrix in writing the two provisions. The whole is given to be divided; the division is dispensed with, and therefore-it is not to be divided. You re-write the will and strike out every thing which relates to Dr. Carter and his children.\\nFitzpatrick, for Smyth Lee\\u2019s adm\\u2019x. We contend that there is error in the decrees and rulings of the court below, in so far as the decrees relate to the distribution of the Virginia State stocks; first, because $10,050 of State stocks, called the Fitzhugh Carter fund, is ordered to be distributed as specific stock legacies, and not to be estimated as stock owned by the testatrix at her death, in the computation to be made, to ascertain the legacy which would pass to Smyth Lee under the second clause of the will; by which ruling the legacy of Smyth Lee is diminished to the extent of $4,500 in State stocks.\\nSecond, because $34,600 of State stocks which were loaned to or deposited with the Howardsville Bank, were not treated as the property of the testatrix, whereby the legacy to Smyth Lee is diminished the sum of $17,300, being one-half of the stocks so deposited.\\nThe question i.s one purely of construction, and *must be decided by gathering the intention of the testatrix from the instrument itself. The language used in the second clause of the will is general and not restricted in the least. By it Smyth ,Lee is entitled to receive one-half of all the State stock owned by the testatrix at her death; no exceptions whatever are made; we have only to ascertain what amount of Virginia stocks were owned by testatrix at her death in order to fix the rights of this legatee. But it is contended that the legacies given under the first clause of the will are specific stock legacies and not demonstrative, as the authorities would indicate. If this be so, which we submit is not the case, yet the general legacy to Smyth Lee, although it ma3r have been fluctuating during the life of the testatrix, cannot be reduced by reason of such specific legac3\\u2019-, provided the common fund charged with the specific and general legacy be sufficient to satisfy both; as in this instance. It appears from the master\\u2019s report that the testatrix owned at her death $37,700 of Virginia stocks, one-half of which is $18,850, which, if the Fitzhugh Carter stock be added, will amount to $28,900, which being deducted from the $37,700, leaves in stock for general administration, the sum of $8,800, after paying all stock legacies, general and specific. Thus it will be seen that, without necessity, the provisions of the second clause of the will are limited and restricted by the decree of the court, so as to reduce the legacy thereunder; thus doing violence, to the plain meaning of the language used. But it is contended that the first clause qualifies the second. In what wa3r? No allusion is made in either clause to the other. If the legacies under the first clause were specific, and there was not enough stock to satisfy all stock legacies, general and specific, then the specific stock legacies would be paid to the exclusion of the general stock legacies; but no such question can arise here, as a large amount of stock remains after satisfying all. *But it may not be amiss to enquire if the legacies under the first section of the will are specific; if so, they are specific stock legacies, and a sale of the stocks by the testatrix in her lifetime would have defeated the legacies. Would such a sale have so operated? We think not. The Fitzhugh Carter fund would have remained, and the legacies would be paid as general money legacies or as demonstrative legacies; which would not be the case if they are specific legacies. We think there is clearty error in this part of the decree.\\nAs to the second ground of the complaint, we think that the record abundantly shows that at the time the testatrix made her will, she believed that she was the owner of State stocks, deposited with the Bank of Howardsville, to the amount of $34,600, which had accumulated in the hands of her agent D. J. Hartsook during the period from 1856 to 1858, and which had been invested by said agent under her direction. Under this belief she makes her will in 1859, giving Smyth Lee one-half of all her State stocks. Was it not her intention to embrace one-half of the State stocks deposited with the Bank of Howardsville in this bequest? Clearly it was. The stocks were purchased with her money. She received the interest. Her agent, who was also the cashier of the bank, regarded them as belonging to her.. She died under that conviction; they were listed and appraised as her property; and were in truth hers against the world, except that being in the hands of the State treasurer they were liable to make good the redemption of the notes of the bank; and that, not because they belonged to the bank, but because they were deposited for that purpose under an arrangement between the bank and the owner, which was accomplished bjr the cashier of the one and agent of the other, who happened to be one and the same person. But for the results of the war, this stock would have been released by the bank, and returned *to the estate; in which event no difficulty or question would have been raised as to the right of Smyth Bee to receive one-half of the same. If the bank cannot replace the stocks, is not Smyth Bee entitled to one-half of the claim against the bank for said stocks? We think he is, and therefore ask that the decree be corrected accordingly. We do not think it necessary to add words in support of that portion of the decree which gives to Smyth Bee one-half of the guaranteed bonds of the James River and Kanawha Company which had been converted into State stocks in the lifetime of the testatrix. They were Virginia stocks at her death, and, as such must pass under the will.\\nByons and Young, for Mrs. Irvine, &c., insisted:\\nI. That the bequests to Mrs. Irvine, Mrs. Young, and Miss Buey Ann Claiborne are demonstrative legacies, so far partaking of the nature of specific legacies, that they are not liable to abatement, and must be paid before any residuum can be declared. I. Roper on Begacies 198-9; 2 Bomax on Ex\\u2019ors 70, 71.\\nII. That the bequests in the second codicil to Dr. Charles Carter and Peyton Skipwith, being made \\u201cin case of a sudden death,\\u201d which did not occur, pass nothing, and the subsequent codicils show that the testatrix so regarded them. 1 Jarman on Wills 156, 7, 8.\\nThe testatrix left no residuary legatee; therefore,\\nIII. The legacies to Dr. Carter and his children, Mrs. P. Taylor, Mrs. Cornelia Taylor and Miss Panny Bewis, were expressly revoked by the sixth codicil.\\nIV. The devisees, Skipwith and Carter, if they took at all, took in severalty, and not jointly, as they would have done if the subject had not been money ; the bequest is not to them jointly, but \\u201cto be equally divided\\u201d between them, and each therefore took one moiety in severalty, and not one-half of each dollar and each share *of stock. And the executor could not legally have paid or transferred to either, more than a moiety; to have paid two-thirds to either, when both were living, would have been a devastavit as to the excess above a moiety. Between such owners or tenants there would have been no survivorship at the common law; but if there would, there can be none in Virginia, because of the statute which abolishes it. The idea that Skipwith succeeds to the share of Dr. Carter and his children, is entirely without foundation ; and as to that share, as well as to the share of Mrs. Panny Taylor and her daughter, and Mrs. Bewis, the testatrix died intestate. The legacy to Dr. Carter was for his children, and did not lapse, but was revoked. But the rule that lapsed legacies fall into the residuum does not apply to the subject of the residuary legacy itself. Frazier v. Frazier\\u2019s ex\\u2019or et al., 2 Leigh 642.\\nV. As to the bequest to Smyth Bee, there is no difficulty, and no conflict between that bequest and the bequest to these appellees. First, because, as already shown, the legacies to those legatees cannot fail. Secondly, because the testatrix, knowing that the $10,050, which she received from Fitzhugh Carter, was invested in State stock prior to the devise, by the bequest of the fund bequeathed the stock necessary to pay it, and therefore did not intend to bequeath it, and did not bequeath it to Smyth Bee; and intended, of course, to bequeath him one-half of her State stock, exclusive of that in which the fund aforesaid was invested, and so much, if any, as might be necessary to raise the amount of the legacies. Any other interpretation of her will would convict the testatrix of the absurdity of bequeathing a fund in the first clause of her will to one set of persons, and the very next clause to another person. Such interpretation is repudiated by the law, as it is by common sense; the rules of law being, first, that every interpretation of a will shall be rational; and secondly, *that the interpretation shall be such, if practicable, as to give effect to all parts of the will, and destroy none.\\nIn this case, the interpretation here insisted upon conforms to all these rules, and makes the will harmonious; while the opposing interpretation violates them all, and makes the will incongruous. 2 Williams on Ex\\u2019ors, p. 974, {j 3.\\nHowison, for Dr. Carter and his children, insisted:\\n1. That it was the clear intent and meaning of the testatrix that Dr. Carter and his children should have one-half the residuum of her estate, and full effect should be given to this intent.\\n2. That the deposition of D. J. Hartsook is admissible in evidence to show acts and declarations of the testatrix or in her presence just before and just after the 6th codicil was made, in order to ascertain its true meaning. 1 Jarman on Wills 362-367; Shelton\\u2019s ex\\u2019ors v. Shelton, 1 Wash. 53; Flemings v. Willis, 2 Call 5; Mackey v. Fuqua, 3 Call 19; Bates v. Holman, 3 Hen. & Mun. 502; Ambler v. Norton, 4 Hen. & Mun. 23; Jones v. Robertson, 2 Munf. 187; Land v. Jeffries, 5 Rand. 211; Early v. Wilkinson & Hunt, 9 Gratt. 68; Smith\\u2019s ex\\u2019or v. Spiller, 10 Gratt. 318.\\n3. That in the light of this deposition, of the codicils themselves, and of the public history of that time, it is clear that the testatrix did not intend to revoke her bequest to Dr. Carter and his children unless it was subject to confiscation.\\n4. That her impression that it was so subject was false both in law and in fact. In law, because the sequestration acts of the Confederate congress were null and void in law. Folliott v. Ogden, 1 H. Black. R. 123, 136; Same on appeal, 3 Durnf. & East 726-737; Wolff v. Oxholm, 6 Maule & Sel. 92; Texas v. White & als., 7 Wall. U. S. R. 701. In fact, because the sequestration acts never confiscated the property, but only sequestered the ^annual interest, rents and profits. Act August 30th, 1861, sec. 6.\\n5. That the sixth codicil being made under the influence of an impression false at the time, though not ascertained to be false until afterwards, did not revoke the bequest previously made in favor of Dr. Carter and his children. Jarman\\u2019s Powell on Devises, 21 Baw Bib. top pages 306, 309; 1 Jarman on Wills 163-166; T Bomax on Ex\\u2019ors 51-S3; Campbell v. French, 3 Ves. R. 321; In re Moresby, 1 Haggard\\u2019s R. 378; Doe dem. Evans v. Evans, 2 Perry & Dav. R. 378; Tulk v. Houlditch, 1 Ves. & Beame R. 248. The distinction made in the following cases does not weaken, but rather confirms the above: Att\\u2019y Gen\\u2019l v. Ward, 3 Ves. R. 327; Ashburnham v. Bradshaw, 2 Atk. R. 36; Att\\u2019y Gen\\u2019l v. Lloyd, 3 Atk. R. 551; Willet v. Sandford, 1 Ves. sen. R. 178, 186.\\nEven the word \\u201crevoke\\u201d will be construed not to revoke a bequest, when the true intent is not to destroy the benefit previously given. Lord Carrington v. Payne, 5 Ves. R. 404; 1 Jarman Wills 441, 458.\\nGrattan and Young, for the unmarried daughters of Carter and Corbin Braxton. Dor these legatees we insist:\\nThat by the surrender of the guaranteed bonds and the taking the State bonds, these legatees have become entitled to come under the provisions of the codicil, and to receive the amount of the bonds out of the general property of the testatrix.\\n1st. Upon the language.of the codicil.\\n2nd. Because the legacy was specific, and adeemed by the change of the bonds; and thus is the case provided for by the codicil.\\n1. Begacy specific.\\n2 Lomax Ex\\u2019ors, p. 73, 74; Barton v. Cooke, 5 Ves. R. 461; Sibley v. Perry, 7 Ves. R. 522, 529, 530; Parrott *v. Worsford, 1 Jac. & Walker 574, 582; Ashburner v. McGuire, Lead. Cas. Equ. 201, 346, 352, 353; Patteson v. Patteson, 1 Mylne & Keene 12; Ademption, Lead. Cas. 356-7-8. Intention not the enquiry. King\\u2019s ex\\u2019ors v. Sheffey\\u2019s adm\\u2019r, 8 Leigh 614.\\nThe act of March 23d, 1860, Sess. Acts of 1859-60, p. 113, did not, of its own operation, convert the bonds of the company into State bonds. See \\u00a7 13, p. 117.\\n2. The amount of the bonds is to be paid out of the general property. On the language of the codicil.\\n3. If the legacy is not adeemed, the legatees are entitled to the State bond into which the guaranteed bonds were converted.\\nHalyburton & Gites, and J. Alfred Jones, for the next of kin, insisted. 1st. That the disposition made by the codicil of August 18th, 1861, is inoperative because it was only to take effect \\u201cin case of sudden and) unexpected death\\u201d of the testatrix; and her death was not sudden and unexpected. And they referred to the cases of Parsons v. Banoe, 1 Ves. sen. R. 190; and Sinclair v. Hone, 6 Ves. R. 607.\\n2d. That the legacy of the guaranteed bonds to the unmarried daughters of Carter and Corbin Braxton was not adeemed; or if it was, they were not entitled to be paid out of the general property of the testatrix. And they referred on this point to 2 Bomax Ex\\u2019ors 105-6; Stout v. Hart, 2 Halst. Law R. 414; Anthony v. Smith, 1 Busbee Equ. R. 188.\\n3d. That the legacy to Mrs. Irvine and others of the Ditzhugh Carter fund, was a specific legacy of the State bonds. That it came precisely within the definition of a specific legacy as given by Williams; and exactly resembles the case of Rider v. Wager, 2 P. Wms. R. 328, cited 2 Wins. Ex\\u2019ors 820, 821.\\n4th. That the legacy to Dr. Carter and his children of one-half the residuum of the estate, was revoked *by the codicil of the 27th of November. That the bequest was not shown to have been revoked under a false impression or in consequence of such impression; and they insisted that extrinsic evidence was inadmissible to show a different motive from that stated in the will. And thejr referred to 1 Jarm. on Wills 343 top, 348 marg. 2d Amer. edi. ; 2 Philips on Evi. Cow. & Hill 350, (S 4; Wooten v. Redd, 12 Gratt. 196; Ratcliffe v. Allison, 3 Rand. 537; Land v. Jeffries, 5 Id. 211; Roberts v. Roberts, Law Journal 1862, No. 4, p. 46, of Probate, Matrimonial and Admiralty; In re Winn, Jurist of 1861, part 1st, p. 764; Maxwell v. Maxwell, 3 Metc. Ken. R. 102; Dougherty v. Dougherty, 4 Id. 25.\\n5th. That by the revocation of the bequest to Dr. Carter, the next of kin became entitled to the legacy bequeathed to him. And they referred to 2 Wm\\u2019s Ex\\u2019ors 763; Viner v. Francis, 2 Cox\\u2019s R. 189; Doe v. Sheffield, 13 East\\u2019s R. 526; Andrews v. Partington, 3 Bro. C. C, 401 in note; Gaskell v. Holmes, 25 Eng. Ch. R. 438: Mann v. Mann, 2 Stra. R. 905; Bagnell v. Dry 1 P. Wm\\u2019s R. 700; Page v. Page, 2 Stra. R. 820; Knight v. Gould, 2 Myl. & Keene R. 295, 8 Cond. Eng. Ch. R. 2; Sykes v. Sykes, 3 Law R. 1867-68, 299; S. C. in the Chancery Appeal Cases, 3 vol. p. 301; Lord Bindon v. Earl of Suffolk, 1 P. Wm\\u2019s R. 96.\\n6th. And they insisted that Skipwith should have been charged with the whole amount received by hini from the executor at its nominal amount, $73,910.\\nWiIIs \\u2014 Interpretation \\u2014 Conditional Legacy. \\u2014 In French v. French, 14 W. Va. 499, the court, after quoting in full the first two headnotes of the principal case, said: \\u201cIt seems that it is now an established principle, that while a person may make a conditional will, his intention to do so must appear clearly. \\u201d\\nSee also, the principal case approved in Cody v. Conly, 27 Gratt. 322.\\nSame-Parol Evidence\\u2014In French v. French, 14 W. Va. 507, the court, citing as authority the principal case, said: \\u201cParol declarations of the testator cannot be admitted to control the construction of a will, except when the terms used in the will apply indifferently without ambiguity to each ot several different sub: ects or persons, when evidence may be received as to which of the sub: ects or persons so described was intended by the testator.\\u201d See also, Wootton v. Redd, 12 Gratt. 196.\\nSee Young v. Cabell, 27 Gratt. 761 for the sequel of the principal case.\\nSame\\u2014\\u201cMoney Legacies.\\u201d\\u2014See, as to Demonstrative \\\"Legacies, foot-note to Corbin v. Mills, 19 Gratt. 438.\", \"word_count\": \"17008\", \"char_count\": \"94212\", \"text\": \"JOYNES, J.\\nThese are three several appeals in the same case. The bill was filed by D. J. Hartsook, executor- of Mrs. Mary W. Cabell, dec'd, against her legatees and distributees, for the purpose of obtaining the advice and direction of the court, in his administration of the estate, and especially in respect to the construction and effect of certain provisions of the will and codicils of the testatrix. The first two appeals are from the decree *of the District court affirming interlocutory decrees of the Circuit court. The last appeal is from the first decree of the Circuit court. The various questions arising on these appeals will now be disposed of:\\nI. Mrs. Cabell, after disposing, by her will and two codicils of a large amount of her property, embracing probably the greater part of it, at the close of the second codicil, made the following provision: \\\"In case of a sudden and unexpected death, I give the remainder of my property to be equally divided between my cousin Dr. Carter of Philadelphia, and my cousin Peyton Skipwith of New Orleans, one-half of which, each must hold in trust for the benefit of their children.\\\"\\nIt is contended, on behalf of the next of kin, that the bequest contained in this clause is dependent on the condition of the testatrix dying suddenly and unexpectedly. It is contended, that according to the evidence, she did not die suddenly and unexpectedly, and that, therefore, nothing passed by the bequest.\\nIn cases of this sort, the question to be determined is, whether the contingency is referred to as the reason or occasion for making the disposition, or as the condition upon which the disposition is to become operative. Porter's case, Eaw Rep. 2 P. & D. 22; Dobson's case, Eaw Rep. 1 P. & D. 88. These were cases in which the words of contingency had reference to the whole will; but the same principles apply when they have reference only to a particular bequest, as in the present case. In Dob-son's case, the court said, that a will will not be held to be conditional, unless it is clear that the testator intended that it should operate only in a certain event; and in Porter's case, the court said, that if the language used by the testator can, by any reasonable interpretation, be construed to mean that he referred to the contingent event as the reason for making the will, then the will is not conditional. In Dob-son's case, the language was this : 1 'In case of any fatal accident ^happening to me, being about to travel by railway, I hereby leave all my property, ' ' &c. The court said, that the meaning seemed to be this: \\\"My mind is drawn to the consideration that all railway travelling is attended with danger, and I, therefore, think I had better make my will. ' ' It was accordingly held, that the will was not conditional, and it was admitted to probate, although the testator returned unhurt from the travel by railway alluded to in the will.\\nMrs. Cabell had disposed of part, and probably the greater part, of her property by her will, and the codicils already made, and she evidently desired and intended to dispose of the residue. The fact, no doubt, was, that she had not fully made up her mind as to the objects, or all the objects, on whom she would bestow the residue, and she seems to have apprehended, that she might be cut off by a sudden and unexpected death, before she would be able to do so. To provide against that contingency, she thought proper to make the disposition contained in the clause in question, which she intended to stand, in case she should make no other. So, in like manner, in a previous codicil, she had said: \\\"I intend hereafter writing another codicil, to dispose of the rest of my property, but in case of a sudden death, I now add to this codicil, ' ' &c.\\nIn putting a construction upon the ambiguous language of this clause, we may properly take into consideration the character of the contingency referred to. And when we do so, it seems hardly possible to believe that the testatrix could have intended the bequests in this clause to be contingent, upon her happening to meet a sudden and unexpected death. What is a \\\"sudden death?\\\" What we call the occasion or the cause of death, as a shot, or a blow, or a fall, may be sudden, but how soon must death follow, to give it the character of a \\\"sudden death?\\\" And what is an \\\"unexpected death?\\\" Unexpected to whom? Unexpected *for how long a time? We may well say of a death taking place under certain circumstances, that it was sudden and unexpected; and of a death taking place under certain other circumstances, that it was not sudden and unexpected. But how can we draw the line? It is plainly impossible, in the nature of things, to lay down a rule for determining when a death is sudden and unexpected, and when it is not; and this must have been as obvious to the testatrix as it is to us. And then, what possible motive could she have had to make her bounty dependent on such a condition? She might live many years. Could she have intended, in that event, that it should depend upon the mere manner of her death, whether her legatees should take? Such a purpose would have been whimsical and absurd to the last degree, and inconsistent with all our experience of human motives and feelings.\\nUpon the whole, it seems clear, that such expressions as those used in this clause, could not properly be construed as creating a condition, unless accompanied by other language, so clear as to admit of no other interpretation. They are not so accompanied in the present case, and without putting the slightest strain upon the language, we can understand it as designed only to express the reason, which led the testatrix to dispose of the residue at that time, and to avoid the risk of further delay.\\nThe bequests, therefore, were absolute and not conditional,. and so the Cicuit court held.\\nII. The second codicil, containing the residuary clause just considered, is dated, at the beginning, February 28, 1861, and at the end is the date August 18, 1861. On the 27th day of November 1861, the testatrix made a sixth codicil, as follows:\\n\\\"In consequence of the state of the country, I now revoke my bequests to Dr. Carter and his children, and also to Mrs. Fanny Taylor, her daughter Miss Cornelia *Taylor, and also to Miss Fanny Bewis, all of them residents of Philadelphia.\\\" It is contended on behalf of Dr. Carter and his children, that this revocation is inoperative and void, because made under a mistake. To establish the alleged mistake,-they refer to the testimony of Mr. Hartsook, who says that in a conversation with the testatrix, he suggested to her, for her consideration, that if she had given property to any of her northern friends, it might be confiscated under the sequestration act [of the Confederate States]\\u2014that she replied, that she had done so, and would revoke the bequests; and that she subsequently told him that she had revoked the bequests to her northern friends, in consequence of the state of the country. The alleged mistake is, that she supposed that these legacies, if not revoked, would or might be confiscated, whereas, it is insisted, the sequestration act was wholly void in law; and, moreover, did not confiscate the corpus of any property, but only sequestered the profits.\\nThe most that can be made of this evidence is, that the testatrix had been advised by the witness, as his opinion, that the legacies referred to would be liable to confiscation, and that she adopted that opinion by making the revocation. But it is laid down, that if a revocation is made dependent upon the information received by the testator, or upon his belief or opinion, the act will be held valid, notwithstanding he may have been misinformed, or under a misapprehension. 1 Redfield on Wills 358, pi. 25. It is as if she had. said, \\\"I have been advised that these legacies will be liable to confiscation, and, to avoid all risk, I revoke them.\\\" She chose to make the revocation because she had been so advised, but she does not put it on the soundness of the advice, and the revocation cannot be set aside by showing that the advice was unsound. 1 Powell on Devises 527; Atto. Genl. v. Lloyd, 3 Atk. R. 551. Besides, it has not been shown that the testatrix was *under any mistake. The counsel admits that the profits of - the legacies would have been liable to confiscation, or to sequestration, which was practically the same thing: and this may have been just what she apprehended. We ought to presume so, if this was the only sort of confiscation that was lawful or usual. And if she apprehended confiscation of the whole, it has not been shown that the apprehension was unfounded.\\nBut the codicil does not state any fact upon the supposition of whose existence the testatrix proceeded in making this revocation. All that she says is, that she revokes the bequests, \\\"in consequence of the state of the country.\\\" What there was in the state of the country that caused her to do so, or what she thought or feared in regard to the state of the country, does not appear on the face of the will. In the cases cited by counsel, the fact which the testator assumed to exist, and the assumed existence of which induced the revocation, appeared on the face of the will. But here we are asked to go outside of the will, and to ascertain from paro'l evidence what were the particular views and opinions of the testatrix, so as to lay the foundation for a case of mistake. No case has been found in which this has been allowed, and to allow it would violate fundamental principles.\\nThe Circuit court, therefore, was right in holding, that the revocation was. valid and effectual. .\\nIII. The next question is, what became of the half of the residuum, the bequest of which was thus revoked? The next of kin claim, that it passed to them as undisposed of; which was the view held by the Circuit court; while Skipwith claims, that the effect of the revocation was to make the whole residuum pass to him and his children.\\nThe claim of Skipwith has been maintained on two grounds, one of which is, that the original bequest of *the residue was to a class, composed of the children of Carter and the children of Skipwith. The short answer to this is, that the bequest was not to the children of Carter and the children of Skipwith, jointly and collectively, but to the children of Carter and the children of Skipwith, as separate families, each family taking one-half; in other words, the bequest was not to one class, but to two classes.\\nBut the ground mainly relied upon is, that, in'consequence of the revocation, the will must be read as if the revoked bequest, and'everything relating to it, were struck out, or had never been inserted; the effect of which, it is said, will be, that the whole residuum is still disposed of, and that Skip-with and his children are the only persons to whom it is given.\\nIt is clear that under the terms of the residuary clause, Dr. Carter and Mr. Skip-with, as trustees for their children respectively, took the residuum as tenants in common. Each took a moiety, and a moiety only.' If, therefore, -the words importing a bequest to the Carters, be considered as struck out, there will remain only a bequest of a moiety to the Slcipwiths. And it is a well settled doctrine in England, that where there is a devise or bequest of a residue to several as tenants in common, and a revocation by codicil of the devise or bequest of one of the shares, that share does not fall into the residuum and pass under the will, to the other devisees or legatees, but becomes undisposed of, and goes under the law to the heir at law, in case of real estate, and to the next of kin [distributees], in case of personal estate. The reason is, that each tenant in common took only his several share, by the original gift, since tenants in common do not, like joint tenants, take per my et per tout, and there being no new gift by the codicil of the share revoked from one of them, the others can take no greater share than they had by the original will.\\n*The leading case on this subject, is Cresswell v. Cheslyn, 2 Eden R. 123, decided by Bord Northington in 1761, whose decision was affirmed by the House of Rords. There is a note to that case by Serjeant Hill, in which he questions the correctness of the decision upon the same ground as that mainly relied upon in the present case. That case, however, has always been followed, and its doctrine is firmly established in England. The latest case is Sykes v. Sykes, decided at the Rolls in 1867, Raw R. 4 Eq- 200 and by the Rord Chancellor on appeal in 1868, Raw R. 3 Ch. App. 301. The Master of the Rolls said, that Cresswell v. Cheslyn had been considered an authoritjT for more than one hundred years, and that he did not know a single case in which its authority had been doubted. See, also, the following cases, in which the doctrine of Cresswell v. Cheslyn was recognized and approved. Skrymsher v. Northcote, 1 Swanst. R. 566; Shaw v. McMahon, 4 Dr. & War. R. 431; Harris v. Davis, 1 Coll. R. 416; Clark v. Phillips, 21 Eng. R. & Eq. R. 122; Ramsey v. Shelmerdine, Law Rep. 1 Eq. 129. In Humphrey v. Taylor, Ambl. R. 136, cited by the counsel for Skip-with, the legatees took as joint tenants, and not as tenants in common; and that was the ground of the decision. Cresswell v. Cheslyn has likewise been approved and followed in this country. Brownell v. De Wolf, 3 Mason R. 486; Floyd v. Barker & al., 1 Paige R. 480.\\nIV. By the first clause of her will the testatrix bequeathed as follows :\\n\\\"Of the ten thousand and fifty dollars which I received from my uncle Eitzhugh Carter's estate, I give and bequeath two thousand dollars of it to Mrs. Hill Carter of Shirley, two thousand dollars of it to Mrs. Mary Cabell Irvine, two thousand dollars of it to my cousin Mrs. Eanny Young, one thousand dollars of it to my friend Miss Rucy Claiborne, one thousand dollars of it to Mrs. Margaret Brown, daughter of Mrs. ^McClelland, one thousand and fifty dollars to my friend Mrs. Eanny Taylor of Philadelphia, and one thousand dollars of it to my cousin Miss Randonia Randolph. I give the sums mentioned above to Gen'l Cocke, in trust for the sole and separate use of the ladies, whose names are mentioned.\\\"\\nIt appears from the evidence, that, at the death of the husband of Mrs. Cabell, he had standing in his name S10,050 of bonds of the State of Virginia, which he had purchased with money derived from the estate of Wm. Eitzhugh Carter; that he regarded these bonds as belonging to his wife, and they were accordingly transferred to her by his executor; that in a book kept by Mrs. Cabell, and containing a list of all her stocks and public bonds, the said bonds were entered under the head of \\\"State bonds transferred by J. C. Cabell's ex'or to Mars' W. Cabell, derived from Wm. Eitzhugh Carter's estate,\\\" and that these bonds were kept by Mrs. Cabell, and were found after her death, wrapped up together in a separate wrapper.\\nIt is contended, on behalf of the next of kin, that the language of this clause of the will must be construed with reference to the facts disclosed by this evidence; and that the effect of it, when so construed, is to give specific legacies of stock, and not legacies of money, as the words, taken literally, import. And so the Circuit court held. The legatees, on the other hand, insist, that the legacies are money legacies, with a fund referred to out of which they are to be paid, though they are to be paid at all events; in other words, that the3T are what are called demonstrative legacies.\\nIt is a well settled rule, that the court will incline against construing a legacy to be specific, and that a legacy will not be held to be specific, unless there appears in the will a clear intention to make it so.\\nThe following language is used in 1 Roper on Regacies 213, *in reference to the class of cases in which the question is, whether a legacy of stock is general or specific. \\\"The intention of the testator to bequeath specifically must not be inferred by conjecture, nor upon a term which is capable of a double intendment, when the form of bequest is general; for a court of equity requires the intention to give specifically, either to be expressed, or to be clearly and indisputably manifested from perusal of the whole will.\\\" Thus, a direction to transfer stock to a legatee will not make the legacy specific, though the testator had such stock at the date of his will. Eor the testator may have meant a transfer of the particular stock he had at the date of the will; or that the executor should purchase stock and transfer it to the legatees. In a case of that sort (Sibley v. Perry, 7 Ves. R. 522), Rord Eldon held, that the legacy was not specific, though he had no doubt, in private, that the testator meant to give the stock which he had; but he said there was no case deciding that a legacy was specific, without something marking the specific thing, the very corpus.\\nSo when the bequest is of stock, the fact that the testator possessed at the date of his will, the precise number of shares bequeathed, will not of itself make the bequest specific. Thus, in Robinson v. Addison, 2 Beav. R. 515, the testator made a bequest of five and a half shares in the Reeds and Riverpool canal, and two other bequests of five shares each ; making fifteen and a half shares in all. At the date of the will, he owned just fifteen and a half of those shares. Rord Rangdale held, that the bequest was not specific, and in giving judgment, said: \\\"In the gift, the testator has used no words of description or reference by which it appears that he meant to give the specific and particular shares which he then had.\\nVarious arguments depending on the general scope and effect of the will, were used for the purpose of *showing, that the testator in giving the precise number of shares which he possessed, must have had those shares in contemplation and none other, and consequently must have meant specific gifts of them. ' ' \\u00a1 ip|. jS; however, clear, the testator, if he had meant to give only the shares which he had, might have designated them as his; that the mere circumstance of the testator having, at the date of the will, a particular property of equal amount to the bequests of the like property which he has given, without designating it as the same, is not a ground upon which the court can conclude that the legacies are specific.\\\" Davis v. Cain, 1 Ired. Eq. R. 45; and Tifft v. Porter, 4 Seld. R. 516, are cases of the same sort. See, also, 2 Wh. & Tud. E. Ca. 241.\\nIn Kirby v. Potter, 4 Ves. R. 748, where the question was, whether the legacy was a specific legacy, of stock, or a legac3r of money payable out of stock, Eord Alvanley held the rule to be, that no legacy should be held to be specific unless demonstrably so intended, and he said, that \\\"whenever there is a legacy of a given sum, there must be positive proof that it does not mean sterling money, in order to make it specific.\\\" In a subsequent case (Deane v. Test, 9 Ves. R. 152), Eord Eldon thoughtEord Alvanle3' had spoken too strongly in saying that nothing less than \\\"positive proof\\\" of intention would be sufficient to overrule the prima facie construction of the words. Eord Eldon held, that where the words import a gift of money, as of a sum of money out of certain stock, the prima facie intention is to give a money legac3r; a settled rule of construction to which it was wholesome to adhere, \\\"until driven out by strong, solid and rational interpretation, put upon plain inference drawn from the rest of the will. ' ' He said further, that minute criticism would not vary the prima facie rule of construction. See, also, 1 Roper on Eeg. 219, 220, 227, 234, 235, 240. In Walton v. *Walton, 7 John. Ch. R. 259, Chancellor Kent la3's down the rule in these words: \\\"The courts are so desirous of construing the bequest to be general, that if there be the least opening to imagine, that the testator meant to give a sum of money, and referred to a particular fund only as that out of which he meant it to be paid, it shall be construed pecuniary, so that the legacy may not be defeated by the destruction of the seciirity. \\\"\\nIn construing a will, the enquiry is, not what the testator- meant to express, but what the words used by him do express; and, as was said by Sir William Grant in Attorney General v. Grote, 3 Mer. R. 316, \\\"to authorize a departure from the words of a will, it is not enough to doubt whether they were used in the sense which they properly bear. The court ought to be quite satisfied that they were used in a different sense, and ought to be able distinctly to say, what the .sense is in which the3r were meant to be used.\\\" And, as was said by Eord Eldon in the same case (2 Rus. & Myl. R. 699), \\\"individual belief ought not to govern the case; it must be judicial persuasion.\\\" As a general rule, the question whether a legacy is general or specific, is to be determined upon the face of the will. Innes v. Jolmson, 4 Ves. R. 568.- And though it has been held, that where a testator has described the subject of the bequest-in ambiguous terms, evidence of the state and value of the property may be received, in aid of the construction, to determine whether a legacy is general or specific; Boys v. Williams, 2 Rus. & Myl. R. 689; Attorney General v. Grote, Ib. 699; it is not admissible to alter the meaning of the words employed, when the meaning is plain, or to supply a reference to a particular subject or corpus, when none is imported by the language of the will. Parol evidence is always admissible to ascertain the thing actually described, but it is not admissible to show that the testator intended, by his will, to refer to a thing which the will does not describe. Pell v. Ball, 1 Speers' Eq. R. 48.\\n* Applying these rules to the clause under consideration, it seems to be clear, that the bequests contained in it cannot be regarded as specific. There is no mention of stock or bonds. The subjects of the several bequests are described as so many dollars; in the latter part of the clause they are referred to as \\\"the sums mentioned.\\\" In the beginning of the clause, the aggregate subject is spoken of as so many dollars, the amount being equal to the sum of all the several legacies. It is only by going out of the will that we find an argument in favor of holding the legacies to be specific; it is only by going out of the will that we find that it was stock and not money that came to the testatrix from the estate of her uncle Eitzhugh Carter. And even if we consider the evidence relied upon, it is by no means conclusive. The testatrix may have chosen to consider, that she had received ten thousand and fifty dollars in value from her uncle Eitzhugh Carter's estate, and to give that amount, in money, to those among whom she divided what came from that source. The fact that the identical bonds derived from Eitzhugh Carter's estate were kept by her in a separate wrapper, apart from her other bonds and stocks, indicates nothing decisive, if indeed it can be said to indicate anything at all to the purpose. The most that can be said of all this evidence is, that it affords a conjecture, that the testatrix intended by this clause to give stock and not money. But, as we have seen, no conjecture, however strong and plausible, will be sufficient to overrule the prima facie construction of the language.\\nThe Circuit court, therefore, erred in holding these legacies to be specific legacies of stock. They are money legacies, but whether general or demonstrative, it is not necessar3' to decide, as the estate is ample to satisfy them, so that the question whether a special fund is appropriated to their satisfaction is unimportant.\\n*V. By another clause of the will, the testatrix bequeathed \\\"my guaranteed bonds of the James River and Kanawha Company,\\\" to the unmarried daughters of Carter Braxton and Dr. Corbin Braxton. At the date of the will, she owned certain bonds of the James River and Ka nawha Company, the payment of which was guaranteed by the State of Virginia, which amounted, in the aggregate, to $7,600. In the 3'ear 1860, an act was passed by the legislature of Virginia which provided, among other things, that such of the holders of guaranteed bonds of the James River and Kanawha Company, as should surrender them, should receive, in lieu thereof, bonds of corresponding amount of the State of Virginia. Sess. Acts 1859-60, p. , sec. 4. In pursuance of this act, Mrs. Cabell surrendered the bonds of the James River and Kanawha Company held by her, and received in lieu of them, a corresponding amount of bonds of the State, which she held at the time of her death. It is contended, on the part of the legatees in this clause, that, by the conversion of the bonds, the legacies were adeemed, and that they are entitled to receive money to the nominal amount of the bonds, under a subsequent clause of the will; and so the Circuit court held. The clause referred to is in these words: \\\"I have specified in several instances, exactly what different stocks is to be given to different persons, but in case changes may be made in the location of my stock, I wish it distinctly understood, that out of my general property, those same persons are to receive the sums of money specified as given to them. \\\" It is contended, on behalf of those who take the residuum, that there was no ademption, and that the legatees of the guaranteed bonds are entitled to the State bonds into which they were converted, and have, therefore, no claim to receive monej\\\", under the provision referred to. i 1\\nThe general rule in regard to specific legacies is, that ^the claim of the legatee will be defeated, if the thing specifically bequeathed to him is not in existence at the time of the testator's death; in that case, the legacy is said to be adeemed. And it seems to be the better opinion, and is now the established rule in England, that ademption depends on a rule of law, and not upon the intention of the testator. 1 Roper on Leg. 329, et seq. ; 2 White & Tudor Lead. Cases, notes to Ashburner v. Macguire.\\nThe word ademption, as applied to specific legacies of stock, or of money, or of securities for mone3T, must be considered as synonomous with extinction or annihilation. Where stock specifically bequeathed has been sold by the testator, or where a debt specifically bequeathed has been received by the testator, the subject of the bequest is extinguished or annihilated; nothing exists upon which the will can operate, and the legacy is adeemed and gone. But \\\"where the thing specifically given has been changed in name and form only, and is in existence, substantially the same, though in a different shape, at the time of the testator's death, it will not be considered as adeemed by such nominal change. \\\" This is the language of the English annotators upon Ashburner v. Macguire, 2 Wh. & Tud. 249. It may be illustrated by the following cases. . . . : ' . : s : L :\\nIn Dingwell v. Askew, 1 Cox Eq. R. 427, stock standing in the name of trustees for the testatrix, was specifically bequeathed, and the testatrix subsequently took a transfer of the stock from the trustees into her own name. This was held not to be an ademption of the bequest. In Roper it is said, that this case is an authority, that the transfer of a fund specifically bequeathed, into the names of new trustees, will not affect a specific bequest. And the author supposes the case of trustees authorized b3T deed or will to change securities, with the concurrence of A., the person who was empowered to dispose, and had disposed, by will, *of the fund then in stock, and they, with his consent, sold the stock specifically bequeathed, and invested the proceeds upon a mortgage; and rie expresses the opinion, that, in such a case, there would 'be no ademption. In Blackwell v. Child, Ambl. R. 260, Child, the testator, who was a partner, under articles providing for a renewal of the partnership, bequeathed specifically his share, described as nine-twelfths of the profits of the partnership. After the date of the will, the articles of partnership expired, and the partners, about a year later, entered into new articles, in which the shares were divided into twenty-four parts, fourteen of which belonged to Child. It was held by Lord Hardwicke, that though the interest of the testator was varied, there was no ademption. In Ashburner v. Macguire, 2 Bro. C. C. 108, the testator bequeathed specifically to A., for life, the interest of a bond due him, and, after the death of A., bequeathed the principal of the bond to her children. After the date of the will, the debtor became bankrupt, and the testator proved his debt under the commission, and received a dividend upon it. It was held by Lord Thurlow, that the legacy was not adeemed, except to the extent of the dividend received out of the bankrupt's estate by the testator, and he decreed that the bond should be delivered to the legatees. In Oakes v. Oakes, 15 Eng. L. & Eq. R. 193; S. C. 9 Hare R. 666, the testator was possessed, at the date of his will, of certain shares of the Great Western Railway Company, which he bequeathed specifically. Subsequently these shares were, by a resolution of the company, under authority of an Act of Parliament, converted into consolidated stock. It was held by Vice Chancellor Turner, that there was no ademption. He said: \\\"The testator had this property at the time he made his will, and it has since been changed, in name and form only. The question is, whether a testator has, at the time of his death, the *same thing existing, it ma3' be in a different shape, yet substantially the same thing.\\\" He added, that he thought the case was stronger in favor of the construction he adopted, because it was not shown that the testator, in any respect concurred in the conversion of the shares into stock. It will be observed, however, that this circumstance was not the ground of the decision. In Walton v. Walton, 7 John. Ch. R. 259, there was a specific bequest of thirty shares of the stock of the Bank of the United States. After the date of the will, the charter of the bank expired, and its assets were conveyed to trustees, who divided them among the stockholders, from time to time, as they were received.\\nThe testator received dividends on his shares, but never disposed of them. It was held by Chancellor Kent, that, though the fund was varied and differently- arranged, and was diminished in value by operation of law, it was not destroyed, nor its identity lost, and that there was, therefore, no ademption. In Ford v. Ford, 3 Foster R. 312, the testator, by a codicil, bequeathed to his wife all notes of hand payable to him at the date of the codicil, which was held to be a specific bequest. At the date of the codicil, the testator held four promissory notes signed by Samuel S. Hill and' his brother. Subsequently, during the life of the testator, these notes were taken up, the brother of Samuel S. Hill was released at his own request, and four other notes, signed by Samuel S. Hill alone and secured by- mortgage, were given in their stead. The court, after a discussion of numerous authorities, said: \\\"Where the identity of the debt is not lost, where it still preserves its form substantially, as at the date of the will, where there has been no payment of it, hut only a change of the security for it, there seems to be no reason for considering it adeemed. \\\" * \\\"in the present case, the debt existing at the date of the codicil has not been paid by the substitution of the new notes and the mortgage *for the original notes. Its identity has not been lost, and nothing has been accepted in satisfaction of it. There was merely a change of the security and of the evidence of the debt from joint and several notes, to notes secured by mortgage. \\\" It was accordingly held that there was no ademption. In Anthony v. Smith, Busbee Eq. R. 188, a testator bequeathed to his debtor the bond which constituted the debt. After the date of the will, the testator, for the convenience of other creditors of the debtor who desired a new deed of trust to be executed, took from him a new bond, adding to the principal the interest that had accrued. The Court held, that there was no ademption. It said: \\\"Did the subsequent transactions between the parties destroy the debt, or so change it that it could not be known to be the same? If it had been collected by the testator, there is no doubt that the debt would be lost; but, instead of being collected, it was only renewed, and renewed only because other creditors of the plaintiff desired a new deed of trust to be executed. It was the same debt, principal and interest, secured by a new note. The new security does not annihilate, but preserves the substance of the thing given, to wit, the debt. Such certainly appears to be the opinion of Eord Hardwicke when he said, in the case of Blackwell v. Child, \\\"I think it is a specific legacy of quantity, bequeathed out of a certain body, and if the body be subsisting at the death of the testator, the debt shall be paid out of it. It was said to be like' the novation of a debt, which does not destroy the legacy of the debt.\\\" In Gardner & als. v. Printup, 2 Barb. S. C. R. 83, the testator made a bequest which was held to be specific, of the proceeds of a bond and mortgage which he held against Briggs and Schenck. The bond was for $8,000, payable in six annual instalments, with interest. Proceedings having been commenced to collect the debt, the mortgagors sold part of the land embraced in the mortgage to one *Yost, for $5,000, of which $1,700 was paid to the testator, and the balance of $3,300 was secured by the bond of Yost and another party, executed directly to the testator, and endorsed as a payment on the mortgage. As between the testator, and the mortgagors, this bond was understood tobe an absolute payment of the amount of it; but the lien of the mortgage upon the part of the land bought by Yost, was not released, being retained to secure the payment of the bond. The court held, that the money due upon Yost's bond passed to the specific leg'atee as part of the legacy.\\nIn Stout v. Hart, 2 Halsted (Law) R. 418, the testator made a specific bequest of a bond of Peter Phillips and John Phillips, the latter being a surety. After the date of the will, at the request of John Phillips and for his accommodation, and to enable him to secure and indemnify- himself as surety, the testator accepted from him a new bond, executed by John Titus as principal, and said John Phillips as surety, and gave up the old bond.\\nSubsequently, Peter Phillips, administrator and John Phillips, by an arrangement between them, ascertained the respective shares of the debt which Peter Phillips and John Phillips ought to pay. The administrators executed their bond to the testator for the share of Peter Phillips, and John Phillips and John Titus executed their bond for the share of John Phillips.\\nThe court held, that the legacy was not adeemed. This decision was, however, made in the year 1801, and the court expressed the opinion, that ademption was wholly a question of intention, which it understood to be the settled doctrine of the English courts at that time. See, also, Doughty v. Stillwell, 1 Bradf. R. 300.\\nThe substantial subject of the bequests in this clause, is the bonds, as evidences of debt, and not as pieces of paper. The substance of the transaction by- which the James River and Kanawha bonds *were converted into State bonds, was merely this, that one of the original parties, whose name was of no value, was released, and the separate obligation of the only solvent party- accepted, in lieu of the oligation of both. The debt due upon the guaranteed bonds has never been paid, and so the real subject of the bequest has never been extinguished. The State bonds are only a substituted security for the same debt, and the principle is the same as if the James River and Kanawha bonds had been renewed, without the guaranty of the State, and either with or without other security. The subject is now known by another name, but it is not necessary that the subject shall continue the same in name, provided it continues the same in substance.\\nThe result is, that the subject of the bequests in this case has, in the language quoted from White & Titdor, and by them adopted from Vice Chancellor Turner, been \\\"changed in name and form only, and is in existence substantially the same, though in different shape,\\\" and that there has, therefore, been no ademption, and the legatees of the guaranteed bonds, therefore, take the State bonds which were substituted for them. The clause of the will above quoted applies to the case of such \\\"a change in the location of stock\\\" as to amount to an ademption, so that, but for that clause, the legatee would get nothing.\\nVI. At April term 1863, the Circuit court of Kelson gave authority to the executor to invest the funds in his hands, in registered bonds of the Confederate States, or of the State of Virginia. In pursuance of this authority, the validity of which has not been controverted, he invested $47,600 in Confederate bonds, and, of course, the amount has been lost. The Circuit court held, that this loss is chargeable to the estate, so as to throw half the loss on the Skipwiths. The Skipwiths complain of this, and say, that this investment *was not made for them; that they were ready to receive, and did receive, what was offered to them; and that it was not their fault, that the next of kin, who were entitled to the other half of the residuum, were not forthcoming, or did not or could obtain their share.\\nThere is no foundation for this complaint. It was not the fault of the next of kin, that they did not receive any part of the Confederate money in the hands of the executor. It was never offered to them. What remained in the hands of the executor belonged to the estate, and its loss vras the loss of the estate.\\nVII. Skipwith received, at different times, from the executor, in Confederate money, the sum of $73,910, on account of the half of the residuum to which ' he was entitled, as trustee for his children. The Circuit court held, that in the division now to be made, this sum must be charged at its actual value in the present currency, estimated at $17,239 76. The next of kin insist, that it should be charged at its full nominal amount, and, in support of this position, they allege that Skipwith is to blame for their receiving nothing, and seem to intimate that there was something like collusion between him and the executor.\\nIf this claim should be allowed, the result would be, that the next of kin, in the division of good money now to be made, would receive $73,910 before Skipwith would receive anything, though what Skipwith has heretofore received was only equivalent to $17,239 76 in good money. In other words, the next of kin would get $73,910 of good money, as the equivalent of Skipwith's $73,910 of Confederate money, or $73,910 as the equivalent of $17,239 76; thus giving them, in round numbers, $56,000 more than he gets, though he is entitled to just the same as they are. This would be gross injustice. There is no evidence of any collusion between Skipwith and the executor. Skipwith '^received, and had a right to receive, what he could get in Confederate money, but it was no fault of his that the next of kin got nothing. They got nothing, because the names of most of them and the proportions in which they were entitled, were unknown. And there is no evidence that any of those who were known, made an effort to get a part of the Confederate money.\\nAs to the suggestion that Skipwith may have invested the Confederate money to advantage, and realized from it more than its value in the present currency, there is nothing in the record to show that he probably did so. There was no such suggestion made, and no enquiry on the subject was asked in the Circuit court. The suggestion comes too late.\\nVIII. By the second clause of her will, the testatrix bequeathed to Smyth Lee, one-half the \\\"Virginia stock\\\" she might own at the time of her death. The Circuit court held, that this was a general or fluctuating legacy, and that it must be taken in subordination to the legacies in the first clause, which were held to be specific legacies of State stock.\\nIt has already been held that the legacies in the first clause are money legacies and not specific legacies of stock; so that the particular ground of this decision fails. The bequest to Smyth Lee, however, is not of one-half of each State bond of which the testatrix might be possessed at her death, but of the half of the aggregate of all the bonds of which she might be then possessed. It would seem to follow, therefore, that in ascertaining what is the amount or quantity of this half we must embrace all in the computation, though part may be specifically bequeathed. But that is unimportant, for there is no specific bequest of State bonds in the will. The State bonds which were taken in place of the guaranteed bonds, pass to the specific legatees of those latter bonds. But these State bonds are thus regarded as being still, in effect, guaranteed *bonds. They ought not, therefore, to be counted as State bonds in computing what Smyth Lee is entitled to.\\nIt is further insisted, on behalf of Smyth Lee, that the Circuit court erred in holding that $34,000 of State stock, which it is said had been loaned to, or deposited with, the Howardsville Bank by the testatrix, should not be embraced in computing the amount or quantity of such stock held by her at her death. This, of course, depends upon the question, whether that stock belonged to the testatrix at her death. The evidence is, that Mr. Hartsook, who was the agent of the testatrix, and cashier of the Howardsville Bank, made use of her money, with her consent, in purchasing State stock, which was transferred by the sellers to the bank, and deposited by it with the treasurer of the State to secure its circulation. This was done under an agreement with the testatrix, that the bank should pay the taxes on the stock, and pay to her the whole of the interest upon it, and that when she should require it, the bank should redeem the stock and deliver it to her, or deliver her an equal amount of-like stock.\\nIt appears from this evidence that there was no loan or deposit of stock by the testatrix. The stock was bought with her money, but it was not bought in her name, nor for her, and never belonged to her. She had, according to the terms of the contract, a right to demand from the bank an amount of stock equal to what was bought with her money,'and if the bank failed to comply with this demand, she had her remedy in damages. But it was nothing more than a loan of money, with a special agreement as to the manner in which the loan should be repaid. It is clear, therefore, that the Circuit court was right in refusing to give to Smyth Bee any part of this claim against the Howardsville Bank.\\nThe decrees appealed from must therefore be reversed, and the cause remanded.\\n*The decree is as follows:\\nThe court is of opinion, for reasons stated in writing and filed with the record,\\n1. That the legacies bequeathed to Mrs. Hill Carter of Shir\\u00edey, and others, in the first clause in the will of Mary W. Cabell, dec'd, are legacies of money, and not specific legacies of State bonds or stock, as held by the said Circuit court, and the said District court; but whether the said legacies are general or demonstrative, it is not necessary to decide, inasmuch as the estate is ample to satisfy the said legacies; so that it is not important to enquire whether a particular fund is appropriated to their satisfaction.\\n2. That under the bequest in the second clause of said will, Smyth Bee is entitled to an amount or quantity of bonds of the State of Virginia, out of those left by the testatrix, equal to the half of the whole amount of such bonds belonging to the testatrix at the time of her death; and that in ascertaining the whole amount of said bonds, to one-half of which amount the said Smyth Bee is entitled, all the bonds of the State of Virginia belonging to the testatrix at the time of her death, are to be taken into the estimate, except the $7,600 of State bonds received by the testatrix in the place and stead of the guaranteed bonds of the James River and Kanawha Canal Company, and that those bonds-should not be so embraced.\\n3. That the bequests of guaranteed bonds of the James River and Kanawha Canal Company. to the unmarried daughters of Carter Braxton and Corbin Braxton are specific legacies; and that the same were not adeemed by the surrender by the testatrix to the State of Virginia of the said James River and Kanawha Canal Company's bonds and the acceptance by her, in lieu thereof, of bonds of equal amount of the State of Virginia, and that the said legatees are therefore, entitled to the said State bonds in the place and stead of said *canal bonds; and that they are not entitled to receive the nominal amount of such bonds in money, as held by the said Circuit court and by the said District court.\\nThe court is, therefore, of opinion, that the said decrees of the said Circuit court and the said decree of the said District court are erroneous in the several particulars hereinbefore set forth, and that there is no other error therein.\\nTherefore it is adjudged, ordered and decreed, that the said decree of the said District court, and the said decree of the said Circuit court rendered May 8, 1868, be and the same are hereby reversed and annulled, so far as the same are hereinbefore declared to be erroneous, and that they be affirmed in all other respects. And this court proceeding to render such decree as the said District court ought to have rendered, it is further ordered that the said decrees of the said Circuit court from which the appeal was taken to the said District court, be reversed and annulled, so far as the same are inconsistent with the principles of this decree ; and that the same be in all other respects, affirmed. And the cause is remanded to the said Circuit court to be further proceeded in, in conformity to this decree.\\nAnd the court doth further adjudge and order that the appellants in each of these appeals pay to the appellees their costs by them expended in the defence of said appeals respectively; which is ordered to be certified to the said Circuit court.\\nOn motion of the counsel of C. C. Bee and others, next of kin of M. W. Cabell, dec'd, it is ordered that nothing in this decree shall prevent the said next of kin or any other party interested from asserting by proper proceedings any claim they may be advised to assert against D. J. Hartsook executor of M. W. Cabell, *dec'd, on account of his transactions as such executor.\\nDecree reversed in part, and affirmed in part.\"}"
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+"{\"id\": \"4438675\", \"name\": \"Harris' Adm'r v. Chesapeake & O. Ry. Co.\", \"name_abbreviation\": \"Harris' Adm'r v. Chesapeake & O. Ry. Co.\", \"decision_date\": \"1895-10-03\", \"docket_number\": \"\", \"first_page\": \"248\", \"last_page\": \"251\", \"citations\": \"2 Va. Dec. 248\", \"volume\": \"2\", \"reporter\": \"Virginia Decisions\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:52:56.980464+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harris\\u2019 Adm\\u2019r v. Chesapeake & O. Ry. Co.\", \"head_matter\": \"Harris\\u2019 Adm\\u2019r v. Chesapeake & O. Ry. Co.\\n(Supreme Court of Appeals of Virginia,\\nOct. 3, 1895.)\\n[23 S. E. Rep. 219.]\\nInjury to Brakeman \\u2014 Negligence of Master \\u2014 Case at Bar.\\nA rear brakeman was killed by the defective loading of a lumber car in the front of the train, while attempting to cross over it. He had no duties calling him to that part of. the train, the cars in front of the lumber car being supplied with air brakes: held, that no negligence was shown in the position the car occupied in the train, though such cars were generally placed in the rear.\\nSame \\u2014 Same\\u2014Same.\\nWhere the evidence showed that a brakeman\\u2019s duty did not call him to scale a car loaded with lumber, that the brake on this car was set at the only end required before the train left a station, and that it was to remain set until the next station was reached, a judgment in favor of the railroad company, in an action for the brakeman\\u2019s death, caused while attempting unnecessarily to board such car, on account of the negligent manner of loading it, will not be disturbed.\\nError to circuit court, Nelson county; J. D. Horsley, Judge.\\nAction by John A. Harris\\u2019 administrator against tbe Chesapeake & Ohio Eailway Company. Judgment for defendant, and plaintiff brings error.\\nAffirmed.\\nGaskie <& Coleman and H. St. G. Tucker, for plaintiff in error.\\nWm. J. Robertson and O. M. Blackford, for defendant in error.\", \"word_count\": \"1395\", \"char_count\": \"7378\", \"text\": \"Riely, J.,\\ndelivered the opinion of the court.\\nJohn A. Harris, the plaintiff's intestate,'was killed between 9 and 10 o'clock on the morning of November 5, 1892, by falling from a freight train of the defendant company.' At the time of the accident he was performing the duties of a brakeman. The train beside the engine, was composed of 19 cars, of which some were box cars, others lumber cars, and another a coal car. There were' two brakeman on duty on the train. Harris was the front brakeman. The train was going east, and, as it moved off from Afton depot, he got upon the third or fourth car from the rear of the train, and went forward until he reached the coal car, which was the fifth from the engine. From the coal car he attempted to get upon the lumber car, which was immediately in front of it, and in doing so fell between them, and was run over and killed. This was just after the train had left the station, and before it had attained a greater rate of speed than from four to five miles an hour. The lumber car was a gondola, with a body about three feet high. The lumber was piled four or five feet higher than the top of the body. The bed of the coal car was about four feet high. In loading the lumber, several planks were so placed as to project over the end of the gondola from one to one and a half feet, and about six or eight inches apart, forming steps, by which the brakeman could get. up and down on this car. About a foot' from the end of the car, on each side, standards were fixed, and upon their tops, across from one to the other, a bar was fastened, to prevent the lumber from spreading. One of these projecting planks was nearly on a level with the coal car. Harris stepped from the coal car onto this plank, and as he did so, he was observed to throw up his hands, as if to catch hold of some thing, missed it, and fell. The end of the plank was after-wards ascertained to be freshly broken.\\nIt was earnestly contended in argument in behalf of the plaintiff that his death was directly due to the negligence of the defendant company.\\nThe first ground on which this contention was based was that the lumber car was improperly and negligently located in the train. It is claimed that a lumber car is more dangerous to mount and pass over than other or ordinary cars, and for that reason should be placed in the middle of the. train, where it would not have to be passed over at all by the brakemen, or, if at all, very seldom ; that, if placed in the middle of the train, the front brakeman could work back to it, and the rear brakeman work up to it, and thus the danger incurred in having to go up and down, and pass over it, would be avoided. Conceding that the lumber car should have been located in the train where it would cause the least risk to the brakeman, the contrary is not shown. The three cars next to the engine were provided with air brakes, and with these cars Harris, as brakeman, had nothing to do, as the hand brake and air brake cannot be used together on the same car. The lumber car, upon which he attempted to get, was, by its location in the train, the front one of the cars with which he was concerned, and from which he would work back to the middle of the train, in the performance of his duties. It was equipped with a double brake, rendering it necessary to lock and unlock only the brake at the end of the lumber car which was next to the coal car. It thus appears that the lumber car was as carefully and properly located in the train, in reference to the safety of the brakeman in the discharge of his duties, as if it had been placed in the middle of the train, or at any other point.\\nIt was next contended that the defendant company was guilty of negligence in not providing proper and safe means for the brakeman to get up and down and pass over the lumber car. It is true that it is the duty of the master to provide the servant with reasonably safe and suitable instrumentalities and appliances for the discharge of the duties he has engaged to perform. If it was necessary to decide, in this case, whether planks of white pine, of an inch in thickness, projecting over the end of a car loaded with lumber, so as to form a kind of steps, was a compliance with this duty, it would be a matter of grave doubt; but, in the view we take of this case, it is unnecessary to pass upon that question.\\nConceding, for the sake of argument, that such means were insufficient, my trouble in the case has been that the evidence does not disclose that Harris had any duty to perform that required him to use these improvised steps. There were no brakes on the three cars in front of the lumber car for him to manage, or which required any attention from him, for they were equipped with air brakes. Afton station, near where the accident happened, is at the beginning of a heavy grade down the mountain. The brake to the lumber car had been set before the train left the station, and was at the end of the car which was next to the coal car. It was to remain set until the train reached the bottom of the grade. It was unnecessary, so far as the evidence discloses, for him to get upon the lumber car for any reason. It was unnecessary to do so for the purpose of unloosing the brake, when it should become proper to turn it loose. Indeed, it could not have been done from the top of the lumber car, as the lumber was piled up several feet above the top of the brake. It could only have been unloosed by going upon the platform of the lumber car, which was readily accessible from the platform of the coal car, and approaching it in that direction ; and, besides, it was shown that this was the regular and proper way of getting at the brake to work it. There was, therefore, no necessity or occasion for him to climb upon or pass over the lumber car. He lost his life through his own fault, in going unnecessarily where no duty called him.\\nWe find no error in the judgment of the circuit court, and the same must be affirmed.\"}"
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+"{\"id\": \"4440763\", \"name\": \"Carey & al. v. Coffee-Stemming Mach. Co. & al.\", \"name_abbreviation\": \"Carey v. Coffee-Stemming Mach. Co.\", \"decision_date\": \"1894-12-22\", \"docket_number\": \"\", \"first_page\": \"863\", \"last_page\": \"867\", \"citations\": \"1 Va. Dec. 863\", \"volume\": \"1\", \"reporter\": \"Virginia Decisions\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:04:09.354605+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Carey & al. v. Coffee-Stemming Mach. Co. & al.\", \"head_matter\": \"Carey & al. v. Coffee-Stemming Mach. Co. & al.\\n(Supreme Court of Appeals of Virginia,\\nDec. 22, 1894.)\\n[20 S. E. Rep. 778.]\\nSuit against Corporation \\u2014 Stockholders as Plaintiffs \\u2014 Sufficiency of Bill.\\nA bill against a corporation and its directors alleged fraud in obtaining the stock subscriptions of the plaintiffs and failure to comply with the corporate charter, stated that plaintiffs\\u2019 stock had been issued to them and fully paid for, and asked a return of money so paid: held, that the bill was not demurrable on the ground that plaintiffs sued as stockholders and not as stockholders at the same time.\\nSame \\u2014 Same\\u2014Same\\u2014Multifariousness.\\nA bill by a number of stockholders against a corporation, alleging fraud in obtaining subscriptions, etc., is not multifarious because each complainant sets forth a different claim.\\nSame \\u2014 Same\\u2014Equity Jurisdiction \\u2014 Fraud.\\nEquity has jurisdiction where the relief asked for involves accounts, commissioners, questions of fraud, and cancellation of subscription to stock of a corporation.\\nAppeal from circuit court, Bedford county; Dupuy, Judge.\\nBill by John B. Carey and others against the Coffee-Stemming Machine Company and others to cancel subscriptions to the capital stock of defendant corporation because of fraud, etc. A demurrer to the bill was sustained, and plaintiffs appeal.\\nEeversed.\\nGoggin & Rucker, for appellants.\\nM. P. Burks, for appellees.\", \"word_count\": \"1276\", \"char_count\": \"7665\", \"text\": \"Fauntleroy, J.,\\ndelivered the opinion of the court.\\nThe petition of John B. Carey, H. M. Turner, II. T. Patterson, T. S. Bolling, Ida P. Bolling, executrix of W. H. Bolling, deceased, and Minnie C. Nichols represents that they were aggrieved by a decree of the circuit court of Bedford county, pronounced on the 21st day of June, 1892, in a cause pending in said court wherein they are complainants, and the Coffee-Stemming Machine Company and others, the directors of said company, are defendants. The bill of complainants sets forth the incorporation of the defendant company ; the purposes of its creation ; the subscription to the stock of the said company by the petitioners, and the payment of their said subscription money, the misrepresentations by the said company, its officers and agents, as to the capacity, efficiency, and success of the machine proposed to be manufactured ; the failure of said company to fulfil its charter conditions in respect to the minimum capital prescribed by their said charter; and the misapplication of the funds arising from said subscriptions-to other purposes than those contemplated and authorized by the said charter, \\u2014 all of which said acts and delinquencies the bill charges as violative of and in fraud of the rights of complainants, and as breaches of trust, confidence, and good faith. The bill further charges that the defendant company is insolvent, and prays for all necessary and proper-accounts, and, if the assets of the said defendant company should prove insufficient to reimburse or return to complainants each the sum of money, with interest thereon, by them respectively subscribed and paid in, as alleged, then and in that event that the said individual directors defendants be decreed to pay the same, or any deficiency shown by said accounts in the assets of the said defendant company. The said defendants, at the May term of the said circuit court, filed their joint demurrer and answer to the said bill; and upon the hearing the said demurrer was sustained, and the bill of complainants was dismissed.\\nThe merits of the case are not involved in this appeal. All investigation or proof of the case made and charged in the bill was cut off by the demurrer, which admits the truth of the facts charged, but avers that, though true, they are not such as entitle the complainants to the relief they ask in equity. The bill is demurred to generally. No ground for demurrer is specified ; but the circuit court sustained the demurrer, and dismissed the bill, with costs. In the brief of appellees it is set out that grounds of demurrer are misjoinder, multifariousness, and want of jurisdiction in equity.\\nIt is argued that the complainants sued as shareholders and as nonshareholders. Their bill shows, in the beginning, that they are shareholders, and can be nothing else. They became such by the act of the company in accepting their money for their respective subscriptions, and in issuing to them certificates of stock when the subscriptions were fully paid up. It appears by the record that the appellants paid up their respective subscriptions in full, to the aggregate amount of 75 shares, \\u2014 14,625,\\u2014for which they received certificates of shares of capital stock, and became stockholders in said corporate company. Their bill sets o'ut these facts, showing that they are stockholders, and they sue in that character ; the only character they could assume, under the facts set forth in their bill and admitted by the demurrer. The relief they ask for is what shareholders only can ask for, and what they are entitled to have upon proof of the charges. Their statement of facts shows conclusively that they are shareholders, and as such seek redress for wrongs. This ground for demurrer was wrongfully sustained.\\nMultifariousness is charged because demurrants claim that each complainant sets forth a claim independent of the others. This ground of demurrer is untenable. In every corporate company'the shareholders' claims are distinct in the individual, but common in the remedy, and in the party from whom redress is sought. In the bill there is a community, a unity running through all the interests and putting them on one string. The interest of each is that of all. They have a common wrong, by a common wrongdoer, and a common remedy. Their claims are not diverse, resting on different grounds, nor to be righted by diverse remedies. If the facts stated in the bill are multifarious, and justify the dismissal of the bill, then there can be no relief in equity by two or more stockholders against directors for misconduct, nor against the company, even though they be subscribers to the common stock of the same company, and hold their evidence of ownership from a common seal, and though their subscription moneys have passed into a common treasury, and constitute one fund ; and they have a common interest in the questions to be determined in the suit, constituting them members of one class, having a common interest centering in the point at issue. See Lord Cottenham in Campbell v. Mackay, 1 Mylne & C. 603; Blanton v. Fertilizing Co., 77 Va. 335; Alexander v. Alexander, 85 Va. 353, 7 S. E. 335; Lock Co. v. Hockaday (Va.) 16 S. E. 877; 1 Pom. \\u00a7 269; Judge Staples in Segar v. Parrish, 20 Gratt. 672; Almond v. Wilson, 75 Va. 613.\\nWant of jurisdiction in equity is argued to sustain the demurrer and the dismissal of the bill. Common law does not afford a plain, complete, and adequate remedy in this case presented by the bill, nor is such a cause and issue to be tried by a jury. It involves accounts, commissioners' reports, and questions of law and equity. Fraud is charged; and the bill presents such a case as is specially and peculiarly within the jurisdiction of a court of equity. Much law and numerous authorities are cited; but the face of the pleadings shows that the demurrer should have been overruled, and the cause proceeded in to a decision on its merits.\\nThe circuit court of Bedford county erred in sustaining the demurrer, and in dismissing the bill, with costs ; and the decree appealed from is erroneous, and the same is reversed and annulled ; and the case will be remanded for trial on the merits of the case made in complainants' bill.\\nLacy, J., absent.\"}"
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+"{\"id\": \"4443568\", \"name\": \"Burnley's Administrator v. Duke and Others\", \"name_abbreviation\": \"Burnley's Administrator v. Duke\", \"decision_date\": \"1822-03-30\", \"docket_number\": \"\", \"first_page\": \"48\", \"last_page\": \"50\", \"citations\": \"1 Rand. 108\", \"volume\": \"22\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T19:27:16.216333+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"*Burnley\\u2019s Administrator v. Duke and Others.\", \"head_matter\": \"*Burnley\\u2019s Administrator v. Duke and Others.\\nMarch, 1822.\\nLetters of Administration \\u2014 Revocation! \\u2014Appointment of Foreign Administrator. \\u2014 Where a testator leaves two wills, one in Virginia, and the other in England, the English will being the last in date; and his executor takes out letters of administration on the posterior will, in England; this does not ipso facto repeal letters of administration which have been granted in Virginia, on the first will; but the English executor must first qualify by giving bond and security as the law directs.\\nSame \\u2014 Granting\\u2014Authority for. \\u2014 Quaere whether the recording in Virginia, of the exemplification of a will and the probat thereof, in the prerogative court of the Archbishop of Canterbury, without further proof, would authorise the granting of letters testamentary in Virginia?\\nExecutorship \\u2014 Renunciation. \\u2014 What acts will amount to a virtual renunciation of an executor-ship.\\nCase Affirmed. \\u2014 The principle of Granberry v. Granberry, (1 Washington,) affirmed.\\nThis suit was originally brought in the high court of chancery, and afterwards transferred to the Fredericksburg district, upon the division of the court.\\nJohn Burnley, who had been a resident of Virginia, afterwards moved to Great Britain, 'and died at sea on his return to Virginia. He left two wills, one dated in 1771, and the other in 1778. The last will was proved in the prerogative court of the Archbishop of Canterbury, and HardinBurnley qualified as executor, in England. This will was admitted to record in the year 1785, in the county court of Hanover, upon the production of a transcript of the will with the probat thereof, duly certified according to the laws of Great Britain. Before this, however, a will of John Burnley, dated in 1771, had been recorded in Hanover county in 1779, and administration granted in 1782, to Zachariah Burnley, who took upon himself the administration of- the estate of John Burnley, in. Virginia.\\nBy the will of 1778 (and indeed by both wills) the testator directed his executors to put 6001. Virginia currency to interest, and the interest arising to be annually *paid to his sister Elizabeth Duke, and after her decease, the principal to be equally divided between the said Elizabeth\\u2019s then surviving children. This suit was brought by Elizabeth Duke and her children, to recover of Zachariah Burnley, the amount of their legacies. They alledge in their bill, that Z. Burnley has got the whole estate of John Burnley in Virginia, into his possession, and that it amounts to much more than enough to satisfy all specific legacies, after paying debts; that he has wasted the estate without putting out 6001. to interest according to the directions of the will, and has not only refused to pay the said interest for many years, but has also refused to place the principal in such a situation, as would secure the payment of it to the children of Elizabeth Duke, at a future day: that the complainants, seeing the danger of -their legacy being lost, agreed among themselves to make partition of it as soon as it could be got, without waiting the death of the said Elizabeth, who is willing to renounce all claim to the annual interest in future, and to receive from her children a compensation, in lieu thereof; of all which they have long ago informed Z. Burnley: they, therefore, pray that he may be compelled to pay to the complainants the legacy with all the interest thereon which may be due, and that he may be required to render an account of his administration.\\nZ. Burnley says in his answer, that he has paid some of the instalments of interest, and believes that in 1789, he acknowledged by letter, that three years interest were due to E. Duke; but since the date of this letter, sundry evidences of debts due from his testator have come to his knowledge, which have made it doubtful whether there will be sufficient assets to pay debts; that this doubt has produced a suspension in the payment of the interest upon the legacy; that the agreement mentioned in the. bill, between the complainants, is not binding on him, as he is no party to it; and submits it to the court, whether the complainants, by their agreement, have a right to take *the principal legacy out of his hands, in the lifetime of E. Duke; and he expresses his willingness to account.\\nBy an amended bill, the complainants alledge, as new matter: 1st. That Z. Burnley sold a tract of land, part of the estate of John Burnley, deceased, at private sale, to Hardin Burnley, who relinquished his bargain, and then it was sold to B. Temple for 2,0001.; which, they alledge, was much less than could have been got for it at public auction. They, therefore, pray that the said Z. Burnley may be compelled to account for the value of the said land at such price as it would have sold for at public auction. [N. B. The deed to Temple is executed by Z. Burnley and Hardin Burnley; the latter of whom signs it, not in the character of executor, but as heir to John Burnley deceased.] 2. That the said Hardin Burnley, (the English executor) had possessed himself of all the estate of J. Burnley in England, and of several bonds, judgments, and other evidences of debts due to the said J. Burnley, in this country, and that he ought not to have received any part of the assets in this country, until he had settled the account of his executorship in England; so as to shew the amount of assets in his hands which might have been applied to the discharge of his claims against the said estate. They state, that the estate of the said J. Burnley in England was fully sufficient to satisfy any demand which the said Hardin Burnley might have against the said J. Burnley: that a certain Edmund Littlepage, of this state, has effects in his hands belonging to the said Hardin Burnley, fully sufficient to satisfy the legacies, bequeathed by the will of the said John Burnley. They therefore make Hardin Burnley and Edmund Littlepage, parties to this suit; and pray, that the former may render an account of his executorship in England, and the latter may disclose what effects he may have of the said Hardin Burnley im his hands, &c. ^\\nHardin Burnley being a non-resident,, an order of publication was made against him.\\n*Z. Burnley answers, that it is-true that he sold the King-William. lands as stated in the amended bill, but verily believes that they were sold for their full value in ready money; that he is ignorant of the state of J. Burnley\\u2019s affairs in England, but is rather inclined to believe that he was rather a debtor than a creditor in that country; that conceiving that Hardin Burnley acted under an authority superior to his own, he permitted the said Hardin to receive the price of the land from the said Temple, &c.\\nZ. Burnley afterwards died, and the suit was revived against Alexander Shepherd, his administrator de bonis non.\\nUpon reference of the accounts to a commissioner, he reported a balance due from the estate of Z. Burnley, greatly exceeding the amount of legacies due to the complainants, under the will of J. Burnley, deceased.\\nThe commissioner also reported a considerable balance against Alexander Shepherd, as administrator de bonis non of Z. Burnley, deceased.\\nExceptions were filed to these reports by the defendant Shepherd, some of which were sanctioned by the court of chancery and others rejected; whereupon the accounts were again referred, and the commissioner again reported a balance against the defendant, sufficient to satisfy the claims of the complainants.\\nTo this new statement, the defendant Shepherd again filed. exceptions; and the court of chancery, upon a hearing, decreed that Alexander Shepherd, administrator &c. do pay to the plaintiffs Elizabeth Duke, Burnley Duke, William Smith and Ann his wife, Reuben Smith and Elizabeth his wife, Richard Keeling Tyler and Mary his wife, and Patsey Duke, four hundred and eighty-three pounds, four shillings, with interest at the rate of five per cent, per annum, on four hundred and fourteen pounds, five shillings and eleven pence, part thereof, from the 31st day of December, 1817, until payment; to the plaintiffs *Keziah Redd, Cleviers Duke, James Duke and Amy Pettus, the sum of five hundred and sixty-nine pounds, eight shillings and one penny, with the like interest on four hundred and eighty-eight pounds, eleven shillings, part thereof, from the 31st day of December, 1817, until pajrment; and to the plaintiffs James R. Pannel and others, five hundred and sixty-one pounds, four shillings and seven pence, with like interest on four hundred and eighty-one pounds, sixteen shillings and eight pence, from the 31st day of December, 1817, until payment; which payments, are to be made to the said parties respectively, upon their respectively entering into bond with good security to the defendant Shepherd, in the penalty of double the sum respectively decreed to them, with condition to refund in due and rateable proportions to the said defendant for the payment of any debts which may hereafter appear to be due from the said John Burnley deceased, and the costs of recovering the same; and that the said defendant Shepherd, pay to the plaintiffs the costs by them expended, &c.\\nFrom this decree, the defendant, Alexander Shepherd, appealed to this court.\\nStanard, for the appellant.\\nHay and Call, for the appellees.\\nEor sequel of principal case, see Burnley v. Duke, 2 Rob. 102; Morris v. Duke, 2 Pat. & H. 462.\\nLetters of Administration \\u2014 Revocation.\\u2014See mono-graphic note on \\u201cExecutors and Administrators\\u201d appended to Rosser v. Depriest, 5 Gratt. 6.\\nExecutorship \\u2014 Renqnciation\\u2014How Made. \\u2014 Arenunciation of an executorship may be effectually made by declarations in pais, or may be presumed from circumstances. Thornton v. Winston, 4 Leigh 157, citing principal case. To the same effect, the principal case is cited in Thompsons v. Meek, 7 Leigh 432. See further, on this subject, foot-note to Geddy v. Butler, 3 Munf. 345.\\nThe principal case is also cited in Handly v. Snodgrass, 9 Leigh 490; Anderson v. Piercy, 20 W. Va. 324.\\nA11 the persons whose names follow, were made parties by consent. They claim by clauses in the will, similar to the bequest to Elizabeth Duke ancl her children. \\u2014 Note in Original Edition,\", \"word_count\": \"2114\", \"char_count\": \"12445\", \"text\": \"JUDGE BROOKE,\\nMarch 30th. delivered the opinion of the court:\\nThe court, not deciding whether the recording in the court of Hanover county of the exemplification of the will of John Burnley of 1778, and the pro bat thereof by Hardin Burnley in the prerogative court of the Archbishop *of Canterbury, without further proof, would have authorised the granting of letters testamentary, to Hardin Burnley, is of opinion that it did not repeal the letters of administration granted to Zach. Burnley upon the previous will of John Burnley of 1771; and that Zach.. Burnley was not authorised thereby to _ transfer the assets of John Burnley in his hands, to Hardin Burnley; he having failed to qualify by giving bond and security as the law directs; and that the said Z. Burnley was chargeable with all the assets of John Burnley which came to his hands, _ or might have come to his hands, by using due diligence; the more especially, _ as in this case Hardin Burnley, by omitting^ to qualify as aforesaid, and also by uniting in the deed for the land directed to be sold by both wills, with Z. Burnley the administrator upon the first will, as heir \\u2022at law to the testator, and not as surviving executor, virtually renounced that character, and was only entitled as creditor and legatee to receive any portion of the estate of John Burnley; and the court is further of opinion, that applying these principles to the accounts and reports in the record, without deciding on the exceptions of the parties thereto, it does not appear that the estate of Z. Burnley 'in the hands of the appellant has been charged to a greater amount that was proper; and although the court does not approve of the mode of settling the account of the appellant, being of opinion that the principle laid down in the case of Granberry v. Granberry, is applicable to it, yet the appellant, in the opinion of the court, has no just ground to complain of it, inasmuch as he is credited with 120k with interest to the amount of 211. _12s. without producing any vouchers; which is more than equivalent to any error against him. The decree is therefore affirmed.\\nJudge Roane was absent from indisposition.\\n1 Washington, 246.\"}"
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+"{\"id\": \"4447666\", \"name\": \"Phalen v. The Commonwealth\", \"name_abbreviation\": \"Phalen v. Commonwealth\", \"decision_date\": \"1842-06\", \"docket_number\": \"\", \"first_page\": \"437\", \"last_page\": \"442\", \"citations\": \"1 Rob. 713\", \"volume\": \"40\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T21:56:12.771460+00:00\", \"provenance\": \"CAP\", \"judges\": \"CHRISTIAN, J., dissented.\", \"parties\": \"*Phalen v. The Commonwealth.\", \"head_matter\": \"*Phalen v. The Commonwealth.\\nJune, 1842.\\nLotteries\\u2014Privilege of Conducting-'Constitutional Law \\u2014Obligation of Contracts.\\u2014On the 30th of January 1829. a statute is passed appointing commissioners to superintend the raising by way of lottery the sum of 30,000 dollars, to be paid to the president and directors of a turnpike company for the improvement and repair of their road, and authorizing the commissioners to contract with some proper person lor managing and conducting the lottery. The turnpike company, relying on the benefit of the statute, contract debts for the erection and completion of their road, expecting and intending to raise money for the payment thereof by a lottery; such debts being contracted prior to the 25th of February 1834, on which day a statute is passed enacting that it shall not be lawful to draw any lottery within the commonwealth, or to sell any ticket in a lottery to be drawn therein, after the 1st of January 1837. but providing that nothing in the statute contained shall interfere with contracts already made for the drawing of lotteries to extend beyond the 1st of January 1837, or with contracts to be thereafter made, under existing laws, for the drawing of lotteries not to extend beyond the 1st of January 1840. On the 11th of March 1834, a statute is passed appointing two persons commissioners, in place of two of the commissioners appointed by the act of January 1829 (who had resigned), to carry into effect the last mentioned act. No contract for the drawing of the lottery is made by the commissioners until the 19th of December 1839, when they make a contract for that purpose with J. P. who, after the 1st of January 1840, sells a ticket in the lottery, which is proposed to be drawn within the commonwealth. On present? ment against J. P. for selling the ticket, IlBim, 1. The act of February 1834 did not impair the obligation of any contract, expressly or impliedly made by the commonwealth with the turnpike company, nor contravene any right of private property vested in the company. 2. The act of March 1834 appointing new commissioners, had not the effect of exempting the lottery authorized by the act of January 1829, from the operation of the act of February 1834.\\nA presentment was made in the circuit superior court for the county of Henrico and city of Richmond, at October term 1840, against James Phalen, charging that he, since the 1st of January 1837, to wit, on the 1st of June 1840, at the city aforesaid, unlawfully did sell and *cause to be sold one certain lottery ticket in a certain lottery to be drawn in this commonwealth, to wit, in a lottery called Alexandria and Fauquier turnpike lottery, and then and there advertised to be drawn at----, the said lottery not being a lottery authorized to be drawn by any contract made with this commonwealth prior to the 25th day of February 1834, or by any contract made since in pursuance of any law of this commonwealth passed prior to the said 25th of February 1834, the drawing of which lottery was not to extend by virtue of said last mentioned contract beyond the 1st day of January 1840; contrary to the act of assembly in such case made. The defendant pleaded not guilty, and the jury impaneled for the trial returned special verdict, in which the following facts were found.\\nIn November 1828, the president and directors of the Fauquier and Alexandria turnpike road presented a petition to the legislature, calling their attention to the importance of that road to the public, and to the fact that the state had an interest in it; stating that the directors and a few of the stockholders, upon their own responsibility, had raised money by which the road was then in excellent condition, except about three miles, which required much repair; and for that object, and the repayment of the money borrowed, praying the passage of a law authorizing a lottery to raise the sum of 30,000 dollars.\\nIn consequence of this petition, a law was passed on the 30th of January 1829, (Acts of 1828-9, ch. 101, p. 99,) by the first section whereof it was enacted \\u201cthat Hugh Smith, Jacob Morgan, John Boyd, William Dean and Jacob Douglass be and they are hereby appointed commissioners, whose duty it shall be to superintend the raising, by way of lottery or lotteries, the sum of thirty thousand dollars, for the purpose of improving the Fauquier and Alexandria turnpike road.\\u201d The 2d section enacted \\u201cthat the said commissioners, or a majority *of them, shall be and they are hereby authorized to contract and agree with some fit and proper person or persons for managing and conducting the said lottery or lotteries.\\u201d And the 4th section enacted \\u201cthat the sum hereby authorized to be raised bj- the said lottery or lotteries, so soon as the whole or any part thereof shall be received by the said commissioners, shall be paid over to the president and directors of the said Fauquier and Alexandria turnpike road company, and by them appropriated in the improvement and repair of the said road.\\u201d\\nBy an act 'passed the 25th of February 1834, (Acts of 1833-4, ch. 69, p. 81,) it was enacted, \\u201cThat it shall not be lawful for any person or persons to draw or cause to be drawn any lottery or lotteries, or any scheme or schemes in any lottery, within this commonwealth, after the first day of January eighteen hundred and thirty-seven, or to sell or cause to be sold any lottery ticket, or part of any lottery ticket, in any lottery to be drawn therein. And if any person or persons shall, after that day, set up or draw, or cause to be set up or drawn, at any place within the limits of this commonwealth, any lottery whatsoever, every person concerned directly or indirectly as a manager or conductor of such lottery shall be liable to a fine, at the discretion of a jury, of not less than one hundred dollars nor more than one thousand dollars for each offence; and every person who shall be concerned directly or indirectly in setting up or drawing any lottery in any other character than as a manager or conductor thereof, shall be liable to a fine of not less than twenty dollars nor more than one hundred dollars for each offence, at the discretion of a jury. And if any person shall, after the period aforesaid, sell any lottery ticket or any part or share thereof, either in person or by proxy, or shall act as agent, attorney or proxy in making sale of any lottery ticket, or any part or share thereof, in any such lottery, he shall forfeit and *pay for every such offence the sum of twenty dollars. And the several penalties in this act provided shall be recovered by action of debt, presentment, indictment or information in any court of record having jurisdiction of the offence, one half to the informer or person who may sue for the same, and the other half to the commonwealth. Provided, that nothing herein contained shall be construed to extend to or interfere with contracts already made for the drawing of any lottery or lotteries, the drawing whereof, by the provisions of such contract, shall extend to a period beyond the said first day of January eighteen hundred and thirty-seven: And provided also, that nothing herein contained shall be construed to extend to or interfere with any contract which may hereafter be made under and by virtue of any existing law authorizing the same, for the drawing of any lottery the drawirg whereof shall not extend beyond the first day of January eighteen hundred and forty.\\u201d\\nBy an act passed the 11th of March 1834, (Acts of 1833-4, ch. 137, p. 171,) it was enacted (\\u00a71), \\u201cthat William B. Hodgson and Bernard Hooe be and they are hereby appointed commissioners, instead of Hugh Smith and John Boyd, resigned, to carry into effect the act passed on the thirtieth day of January eighteen hundred and twenty-nine, \\u2018to authorize the raising by way of lottery a sum of money for improving the Fauquier and Alexandria turnpike road.\\u2019 \\u201d And ($ 2), \\u201cThat whenever any vacancy or vacancies shall hereafter occur in the commissioners appointed for the purpose aforesaid, by death, resignation, or refusal to act, the same shall be filled by the executive of this commonwealth.\\u201d The Fauquier and Alexandria turnpike company, relying upon the benefit and advantages of the act of January 1829, did, prior to the 25th of February 1834, enter into contracts and incur debts for the erection and completion of their road, expecting and intending to *raise by a lottery, for the payment thereof, the money authorized by the said act of 1829. And the commissioners of the said company did, under the acts of 1829 and March 1834, for the purposes specified in the act of 1829, enter into a contract with the said James Phalen and a certain Francis Morris on the 19th of December 1839, whereby, after reciting the provisions of the said act of 1829, it was witnessed that the said commissioners, parties of the first part, in consideration of the sums of money thereinafter agreed to be paid to them by the said Phalen and Morris, parties of the second part, did appoint the said parties of the second part the sole and exclusive managers and conductors of the lotteries aforesaid, and did covenant and agree that such apfjointment should not be revoked by them or any of them, and that the sole and exclusive right of drawing the said lottery or lotteries, so far as the parties of the first part were by the law aforesaid authorized to contract for the same, should be and remain vested in the parties of the second part, until the payments thereinafter stipulated to be made by them should amount to the sum of 30,000 dollars authorized to be made by the said act; to be used and exercised by the parties of the second part, by drawing so many lotteries as they might think proper, under such scheme or schemes as they might devise. And the parties of the second part agreed to take on themselves the management of the lottery and lotteries aforesaid, and to pay to the parties of the first part, as the consideration of the said contract or agency, the sum of 1500 dollars per annum, to be computed from the 2d of December 1839, and in that proportion for any part of a year. It was further agreed, That if, during the then session of the general assembly, an act should be procured exempting the lottery and lotteries authorized by the act of 1829 from the operation of the act of February 25, 1834, the parties of the second part would pay to the ^parties of the first part an additional compensation at the rale of 1000 dollars per annum, the payment of the said additional sum to date from the passage of such act. That whereas the constitutionality of the act of February 25, 1834 had been doubted, the parties of the second part, in case po act should be passed during the then session of the general assembly, exempting the lotteries authorized by the act of 1829 from the operation of the act of 1834, would, at their own proper expense, use all ways and means which might be expedient and necessary, to have settled and determined the constitutionality of the last mentioned act, and would, by appeal, or in such other way as should be legal and necessary, obtain on that point the sentence, judgment or decree of the highest legal tribunals of the state of Virginia and of the United Slates, to which the question could be taken. That if, before a final decision of the said question should be obtained, and after the end of the then session of the general assembly, an act of that assembly should be procured suspending the operation of the act of February 1834 in regard to the lottery and lotteries aforesaid, the parties of the second part would, in lieu of the payments before provided, pay to the parties of the first part, during the period of such suspension, the sum of 2000 dollars per annum, and at that rate for any portion of a year, to date from the passage of such act; till which time, the payments before agreed on were to he made. That the payments aforesaid, and all rights and powers of the parties of the second part to continue to act under the contract, or to draw any lottery or lotteries under the same, should cease as soon as, from the payments to be made under the foregoing provisions, the parties of the first part should have received the said sum of 30,000 dollars. That if, by any legal proceedings, the parties of the second part should be prevented from drawing the lottery or lotteries aforesaid, then the payments before \\u2019^stipulated to be made by them should cease and determine during the time they should be so prevented, and their liability to make any such payments should only recommence on the decision of the highest judicial tribunal to which the question could be taken, that the act of February 1834 is unconstitutional, or on the removal of such legal impediments.\\nThe defendant James Phalen was, at the time of the presentment against him, one of the managers of the said lottery authorized by the aforesaid acts of January 1829 and March 1834; and under the said acts, and by virtue of the said contract, acting for the said James Phalen and Francis Morris, he sold the ticket in the presentment mentioned, at the city of Richmond and within the jurisdiction of this court. The said lottery was to be drawn in the commonwealth of Virginia.\\nIf, upon the foregoing state of facts, the law should be for the commonwealth, then the jury found the defendant guilty; but if the law should be for the defendant, then they found him not guilty.\\nThe matters of law arising upon the special verdict being argued, the circuit court held that the law was for the commonwealth, and rendered judgment that the defendant forfeit and pay to the commonwealth 20 dollars, and that he pay the costs of the prosecution. A writ of error to the judgment was awarded by this court, upon a petition of the defendant alleging that the same was erroneous for the reasons follow ing: 1. Because the act of February 1834 does not profess to repeal, and does not repeal, the act of January 1829 which conferred the right to draw the lottery, and therefore the petitioner had lawful authority to sell the lottery ticket in the presentment mentioned. 2. Because the *act of March 1834 is to be regarded as reenacting the law of January 1829, and being posterior in date to the law of February 1834, if there beany inconsistency between the two laws, the posterior must prevail. 3. Because the right to draw the lottery, conferred by the act of January 1829, was a valuable franchise and vested right, which it was not competent to the legislature to revoke; therefore if the act of February 1834 is to be regarded as revoking the right, it is unconstitutional and void, and whether it be so regarded or not, the petitioner ought to have been acquitted.\\nThe cause was argued here by Eyons, Stanard and Robinson for the plaintiff in error, and Scott and Brooke for the cojnmonwealth.\\nFor monographic note on Lotteries, see end of case.\\nSee monographic note on \\u201cConstitutional Law\\u201d appended to Com. v. Adcock, 8 Gratt. 661.\\nThe petition to the legislature, the several acts of assembly, and the contract for drawing the lottery, mentioned in this report, were fully set forth in hasc yerba in the special verdict.\\u2014Note in Original lOdition.\", \"word_count\": \"4676\", \"char_count\": \"27253\", \"text\": \"SUMMERS, J.,\\ndelivered the opinion of the majority of the court.\\u2014This cause has been fully and ably discussed, and under other circumstances the judges would have adverted more.fully to the reasonings and illustrations which have been submitted to them, and to the authorities to which their consideration has been directed. The time necessarily occupied in a careful examination of the leading principles relied on, has, however, left them but a limited space for embodying their decision, with some of the prominent considerations by which they have been governed; and they therefore content themselves with shortly announcing the conclusions at which they have arrived after a very careful examination of the whole case.\\nThe Fauquier and Alexandria turnpike company, even with the aid of the government subscription to their capital, found their road incomplete, and their resources inadequate to the repayment of money borrowed and expended in the construction of the work; and in the winter of 1828-9 applied to the general assembly for permission to raise 30,000 dollars by a lottery. *'This application resulted in the act of the 30th January 1829, authorizing certain commissioners therein named to contract with fit and proper persons for managing and conducting the lottery or lotteries, and for raising thereby the sum of mone3r before mentioned, to 'be applied to the improvement and repair of the road.\\nThe expediency and moral propriety of raising money for public purposes by means of lotteries, at all times questionable, seems to have attracted legislative consideration in 1834, and to have resulted in a change of the course of our public policy in relation to lotteries, giving rise to the act of the 25th of February 1834. By this act, the drawing of lotteries and the selling of lottery tickets within the state, after the 1st of January 1837, are prohibited under heavy penalties; with a proviso in favour of lotteries for the drawing of which contracts had been previously made, leaving all such lotteries and the drawings thereof to be governed by the preexisting laws; and a second proviso, declaring that nothing contained in the act should be construed to extend to or interfere with any contract subsequently made for the drawing of any previously authorized lottery, if the drawing thereof should not extend beyond the first of January 1840. The lottery authorized on behalf of the Fauquier and Alexandria turnpike company, falling within the terms of the latter proviso, might, according to the provisions of the act, be contracted for and drawn in one or more lotteries or classes, until the sum of 30,000 dollars was raised by the commissioners for the improvement and repair of the road; provided these operations did not extend beyond the 1st of January 1840.\\nFrom the resignation of two of the commissioners, no measures were taken for the execution of the act of the 30th January 1829, until the 11th of Rfarch 1834, fourteen days after the passage of the prohibitory act; when the same legislature, by an act of that date, appointed *commissioners in place of those who had resigned, and authorized the executive to fill any vacancies that might subsequently occur.\\nIt is earnestly and ingeniously contended that the provisions of the act of March 1834 are repugnant to those contained in the act of the 25th of the previous month, in this, that the appointment of the new commissioners, and the power given to the executive to fill subsequent vacancies in their number, are equivalent to the x'eenactment of the act of 1829 with the new provisions incorporated therein; which, forming a grant of the lotted right without limitation of time as to the exercise of it, are repugnant to and operate a repeal of the provisions in the act of February 1834, limiting the exercise of the right to the first of January 1840.\\nThe constructive repeal of statutes is in all cases to be avoided, where the legislative intendment may be otherwise satisfied, and the supposed repugnancy reconciled by a construction giving effect to both. These two statutes, enacted by the same lawgivers within two weeks of each other, present a case which strikingly imposes this duty upon the court. We think the duty performed by regarding the last statute as reviving, under the limitation as to time prescribed by the former, the original statute of 1829; thus giving to the turnpike company the full benefit of their lottery privilege for nearly six years, and forbidding its exercise beyond that period. This restriction of the right in point of time is, we think, no more than an application of the ordinary legislative power of limiting the exercise of even vested and ascertained rights, where the public weal or the safety of society may require it. If this construction reconciling the provisions of those acts were doubtful, we should find a strong motive for its adoption, in the necessity of recognizing in the legislature the power to correct improvident and sometimes injurious enactments, where they' may not have ripened into contracts, 'x'or resulted in the investment of rights which cannot be invaded without perfidy or bad faith.\\nThe contemporaneous and subsequent acts regulating the licensing of the venders of lottery tickets, and imposing taxes upon them, cannot, as contended, operate a repeal of the act of February 1834, as the sale of tickets in lotteries the drawing of which had been contracted for before that date, and of tickets in foreign lotteries, was and yet is authorized by law, and the sale of other descriptions of lottery tickets only became unlawful after the 1st of January 1840 ; leaving to the keepers of lottery offices a field of operation to which the license and tax laws applied. And the increased rates of taxation on such licenses, instead of furnishing any implication of the legislative intent to abandon the policy of the restraining act of February 1834, evince an increased solicitude to repress this immoral and sometimes ruinous pursuit of gain, by the requisition of heavier contributions to the treasury from the lottery offices.\\nThe judgment of the circuit court is, however, impugned on a graver ground. It is contended that the act of the 30th of January 1829 conferred on the turnpike company a franchise under which expenditures of money were made, and formed an implied contract between the government and the company, that the latter should enjoy, unimpaired, all the rights and advantages enuring to them under the act, until they should realize under its provisions the sum of 30,000 dollars: that the act of B'ebrua'ry 1834, limiting and restraining the exercise of the rights of the company to the 1st of January 1840, impairs the obligation of this contract, and is therefore void: and that the franchise with which the company was thus invested, entered into and became a part of the property of the corporation, of which, under the constitution of Virginia, they could not be deprived without just compensation. This argument submits *to this court the solemn duty of comparing the provisions of the act of February 1834 with the paramount law, and of pronouncing whether those provisions are void or valid. This important judicial function, which results from the structure of our government, is, happily for the country, not often called into action; but when demanded by the occasion, it will be exercised with firmness, and the question considered with the care and deliberation called for by its importance.\\nIn deciding this case, it becomes necessary to consider the nature and quality of the franchise, if it be one, which is granted to the turnpike company by the act of January 1829.\\nA franchise may consist in personal privilege or exemption, or in rights or privileges connected with personal or real estate; and in the latter aspect it is a species of incorporeal hereditament. The one under consideration may be properly characterized as a liberty or license to effect a particular purpose by prescribed means; which may or may not, at particular periods of its existence, and by reason of the rights and immunities which have sprung from its exercise, give rise to an implied contract or obligation for preserving it, and guarding it from injurious modifications, or become an element of private property, beyond the reach of the power of government, without due compensation. In looking into the inception and qualities of this privilege or license, it is found that the company' had borrowed money for the construction and repair of the road, which circumstance formed, among others, an inducement to apply for a lottery; yet the act directs that the funds to be raised thereby shall be appropriated to the improvement and repair of the road. It is stated in the verdict, that the company, relying on the benefit and advantages of the act of January 1829, did, prior to the 25th of February 1834, enter into contracts and incur *'debts for the erection and completion of their road, expecting and intending to taise money for the payment thereof by the lottery : but whether these are inconsiderable amounts referred to for the purpose of giving colour, or amounts of sufficient magnitude necessarily to couple the lottery privilege with their security and payment, does not appear. Be this as it may, however, about five years elapsed without any successful attempt to render the lottery effective; and then the only measure was the act appointing two new commissioners, by which the company was again placed in a situation to render its privilege available. B'ive years more rolled on, when, within eleven days of the time at which the act of February 1834 went into operation, the contract of the 19th of December 1839, between the commissioners and Phalen and Morris, was entered into. Throughout this whole period, the franchise, liberty', license or privilege remained, as on the day of its enactment, a naked authority to contract for and draw a lottery, and, in the opinion of the court, at no time took the form of a contract, either express or implied, or that of private property, over which the legislative power was restrained. As to the power of the general assembly to limit, change or abolish a lottery privilege whenever the preservation and inculcation of sound morals may require it, we do not' find it necessary to express , any opinion ; being satisfied, without reference to the general power, committed to that body, of guarding the public weal, that the act of the 25th February 1834 was not in contravention of any legal right, vested in the turnpike company', and coming within the constitutional provisions on which the argument of the case has placed this question.\\nSeparating the question from the general powers claimed on behalf of the commonwealth to reside in the legislative depart ment of the government, to our minds it is manifest that this dormant right to draw *the lottery, which was revived by the act of March 1834, must be taken as subordinate to and limited by the act of the 25th of the previous month; that those statutes must be taken as in pari materia, and receive the same construction as if embodied in one act; that there is nothing repugnant in the provisions of the one to those of the other, when the first is taken as limiting the time within which the right under the second is to be exercised ; and that the well ascertained principles governing the construction of statutes not only authorize but require the interpretation which we have given to these contemporary acts.\\nThere are provisions in the contract of the 19th December 1839, fully contemplating the questions now discussed, and indicating the submission of them to this courtas an experiment in reference to the before mentioned statutes; but we have examined those questions without regard to the motives which may have brought this cause here, or which may carry it further; leaving our decision to be reviewed, if that power exists elsewhere.\\nCHRISTIAN, J., dissented.\\nJudgment affirmed with costs.\"}"
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+"{\"id\": \"461064\", \"name\": \"J. H. Stinson, John H. Lester, Green Charles, H. G. Charles, John H. Dotson and Alice Waldron v. Board of Supervisors of Buchanan County and E. E. Smith, Treasurer of Buchanan County\", \"name_abbreviation\": \"Stinson v. Board of Supervisors\", \"decision_date\": \"1929-09-19\", \"docket_number\": \"\", \"first_page\": \"362\", \"last_page\": \"382\", \"citations\": \"153 Va. 362\", \"volume\": \"153\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:53:39.183664+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. H. Stinson, John H. Lester, Green Charles, H. G. Charles, John H. Dotson and Alice Waldron v. Board of Supervisors of Buchanan County and E. E. Smith, Treasurer of Buchanan County.\", \"head_matter\": \"Staunton.\\nJ. H. Stinson, John H. Lester, Green Charles, H. G. Charles, John H. Dotson and Alice Waldron v. Board of Supervisors of Buchanan County and E. E. Smith, Treasurer of Buchanan County.\\nSeptember 19, 1929.\\nAbsent, West, J.\\nThe opinion states the ease.\\nA. A. Sheen and Chase & McCoy, for the appellants.\\nWilliams & Combs, H. Claude Pobst and Barnes Gillespie, for the appellees.\", \"word_count\": \"5103\", \"char_count\": \"29370\", \"text\": \"Prentis, C. J.,\\ndelivered the opinion of the court.\\nThe appellants are sureties on the last of three bonds executed by A. C. Stacy, who was treasurer of Buchanan county, and they are here appealing from a decree which determines his liability and their own as his sureties.\\nStacy was elected treasurer of Buchanan county November 6, 1923, but failed to qualify and execute his bond before January 1, 1924, and the court, by order of February 4, 1924, declared the office vacant, but upon the same date, upon motion of Stacy, appointed him treasurer, and he then qualified and executed a'bond in tbe penalty of $75,000.00, with the Maryland Casualty Company as surety. Thereafter, July 30, 1924, Stacy was allowed to give another bond in the penalty of $100,000.00, with these appellants and one S. R. Hurley as his sureties, in lieu of the bond which he had previously given with the Maryland Casualty Company as surety.\\nThese appellants allege in their answer to the original bill, that after this $100,000.00 bond was given (four months thereafter in fact), Stacy made his regular annual settlement with the board of supervisors, by which settlement it was shown that he had fully and correctly accounted for all funds which came into his hands between January 1, 1924, the date his term of office began, and July 30, 1924, the date of the new bond, and that as a result of this settlement the board of supervisors, at its regular meeting, December 3, 1924, by a formal order, released the Maryland Casualty Company as surety upon the first bond in force prior to the execution of the $100,000.00 bond. They file this order as a part of their bill, and it recites that the treasurer had fully and correctly accounted for all funds which came into his hands from January 1, \\u20221924, until July 30, 1924. Thereafter,. November 9, 1925, fifteen months after the $100,000.00 bond was given, in which appellants, together with Hurley, are sureties, Stacy made his regular annual settlement with the board of supervisors, showing the amounts to the credit of the various funds under the control of the board of supervisors, and they file a copy of this settlement with their answer to the bill.\\nAbout one year later, pursuant to Code, section 2777 (as amended by Acts 1926, chapter 14), the Circuit Court of Buchanan county entered an order requiring the commissioner of accounts to examine and report as to the sufficiency of the $100,000.00 bond of Stacy, and on August 4, 1926, the commissioner reported that this bond was insufficient in penalty; whereupon the court entered an order requiring the treasurer to execute a new bond, as the law directs, in the penalty of $250,000.00.\\n\\u2022 In accordance with this order, Stacy, together with appellants as sureties, on August 10, 1926, executed the last bond, in the penalty of $250,000.00. Within a month after this bond had been executed, the State Accountant, at the request of the board of supervisors, made an audit of the accounts of the treasurer, and found that at that time he was in default in the sum of $89,596.40.\\nIn June, 1927, the board of superyisors of Buchanan county filed its bill against A. C. Stacy, treasurer, and against S. R. Hurley, one of the sureties on the $100,000.00 bond, and the appellants, alleging the deficiency shown by the report of the State Accountant as of September 6, 1926, prayed for a full accounting and for a recovery against the defendants of the amount found to be due.\\nWith the exception of S. R. Hurley, the sureties on the two bonds are identical, and it is shown that at the time, of the institution of this suit Hurley was insolvent.\\nAll of the defendants filed their answers to the bill August 1, 1927, denying all liability, and joined in the prayer for an accounting, and thereafter, December 1, 1927, Hurley filed an amended answer in which he alleges that there is no liability on him as surety on the $100,000.00 bond, and that the existing liability rests solely upon the sureties on the latest bond of $250,-000.00.\\nThere was a decree of reference to M. P. Farrier, as special commissioner, with directions to make a full and complete settlement of accounts between the complainants, the board of supervisors, and the defendants; to report the status of the same, together with any other matter deemed pertinent by himself, or requested by any other party.\\nFarrier, special commissioner, after due notice, opened bis proceeding August 29, 1927, upon which date the appellants, together with all the other parties, were present by counsel, and thereupon this stipulation was agreed to by all the parties to the proceeding:\\n\\\"It was then mutually agreed that the audit of the accounts of A. C. Stacy, treasurer, made by the State Accountant as of September 6, 1926, should be treated and considered as prima facie correct, but with the right reserved to any, party in interest to point out and have corrected any specific errors therein, as well as in any prior settlement of Mr. Stacy's accounts.\\\"\\nThis agreement appears to be perfectly clear in its import. It means that it was then agreed that Stacy, as treasurer, was in default as of September 6, 1926, for the period covered by the audit of the State Accountant, in the total sum of $89,596.40, subject to the right o* any interested party to show any error therein.\\nThe commissioner reported that he kept the account open until he filed his report November 18, 1927\\u2014 that is, for a period of more than two months \\u2014 and that all the parties were given opportunity to produce evidence of any errors in any of the previous settlements.\\nThe commissioner's report was confirmed, without objection or exception, by decree entered December 1, 1927, and it was adjudged that the balance due Buchanan county by A. C. Stacy, treasurer, as of August 29, 1927, was $116,290.82, and reserved all other questions involved for future decision.\\nAt the time this decree was entered, December 1, 1927, E. E. Smith had, at the previous November election, been elected treasurer of Buchanan county to succeed Stacy. It is said in the brief for the appellees that the reason for the reservation was that the time was so short between the date of the confirmation of this report and the date when Smith would take over the office, January 1, 1928, and thereupon take over the moneys, records and duties of the office, that the court, after making this adjudication, left further proceedings in the case open until Smith should become treasurer, and that this was the most practical and expeditious method of dealing with the subject.\\nAfter January 1, 1928, there was a further accounting between Stacy and the board of supervisors as to collections and disbursements made by him after August 29, 1927, the date of the adjustment made by Farrier, special commissioner, and before January 1, \\u20221928, when his term expired, and this accounting left Stacy in arrears and in default for an additional sum, which added to the amount named in the decree showed that he was then in default in the sum of $136,493.75.\\nThen Smith, in March, 1928, filed his petition in the case, to which the treasurer, Stacy, Hurley and the appellants were made defendants, which recited all of these previous proceedings, alleged that he (Smith) had been elected, had qualified and assumed the duties of the office of treasurer of Buchanan county, January 1, 1928, and that Stacy, the former treasurer, was in default in the gross sum just named, and prayed to recover that amount of Stacy and the defendants. Expressed differently, the petition was a formal .demand for settlement of the amount clearly due by Stacy. Then the appellants filed their joint answer to Smith's petitiou, in which they reiterated the principal defenses which had already been made in their answer to the original bill. They specifically denied the legality of the $250,000.00 bond, but did not deny any of the other 'allegations of the petition. They then for the first time, April 27, 1928, nearly twelve months after the bill had been filed, m\\u00e1de the defense which they are now here relying upon \\u2014 that is, in substance, they claim that Stacy was in default for a large sum, to-wit, $55,315.87, prior to July 30, 1924, when the $100,000.00 bond was executed; and they asked for another order of reference in order to ascertain the precise amount due by Stacy for his breaches of duty and defalcation, if any there were, which occurred prior to July 30, 1924; that is, upon the very day of the final decree they asked to reopen every issue in the cause which had been theretofore decided, as well as to begin an inquiry into the issue first tendered then in the answer to the Smith petition.\\nThe appellees moved to strike out the answer, claiming that the matters referred to had been adjudicated by the decree of December 1, 1927, and that this answer was equivalent to an exception to the original report of the commissioner, which, as has been stated, had been previously confirmed without exception.\\nThe decree shows on its face that the court \\\"asked counsel for defendants if they questioned the correctness of the final settlements exhibited with the petition of E. E. Smith, treasurer, and they stated that they had no errors therein tc point out, but that they desired further time to check said settlements to ascertain if there were any errors therein, but no sufficient reason was given therefor, and such request is denied. And thereupon the court asked counsel for defendants if they desired to answer said petition further, and they stated that they relied upon the answers as filed and stricken out. Thereupon, on motion of complainants the said petition is taken for confessed. (Code 1919, section 6123.)\\\" Whereupon the court entered the decree complained of against the treasurer and the appellants, the sureties upon the $250,000.00 bond, for the sum of $136,493.75, with interest thereon from January 1, 1928, until paid, for the use of the county and district school funds, as set out in the report of M. P. Farrier, special commissioner, filed November 18, 1927. It is of this decree that the appellants, the sureties, are here complaining.\\n1. The first assignment of error is thus stated: \\\"The court erred in holding that the writing dated August 10, 1926, was a valid and legal bond and binding on petitioners, because said writing was made in violation of law and was contrary to public policy, as expressed by the statute.\\\"\\nIt is contended that this $250,000.00 bond, upon which they are sureties, is void, \\\"because said writing is in contravention of and contrary to statute, and in violation of public policy as enacted and declared by Code, section 2698.\\\"\\nIn answer to this assignment, it is contended for appellees.\\n(a) That this bond was not in fact given under Code, section 2698, as amended by Acts 1926, chapter 537 (which section at the date of the execution of the bond directed that the county treasurer should give as surety on his bond some guaranty or security company doing business in the State of Virginia and deemed sufficient by the court, judge or clerk before whom he qualifies), but that it was given under section 2777, as amended, Acts 1926, page 26, chapter 14.\\nIn Code, section 2777, as amended by Acts 1926, chapter 14, under which the appellees claim this bond was executed, this language appears: \\\"Each circuit and corporation court shall enter an order at some spring and fall term in each year, requiring the commissioner of accounts to examine the official bond of - the treasurer of such county or cifcy, except where the surety upon- the said bond is such a surety company and' report' to the said circuit court at its next term thereafter, whether the said bond is sufficient in all respects, . If the bond be reported insufficient, the court shall make an order requiring the treasurer, within thirty days to execute a new bond, ' which bond may be given before said court, or the judge thereof in vacation.\\\"\\nIt is shown then that the last bond was given under this section (which inferentially recognizes the validity of some bonds without corporate surety), the com missioner of accounts, acting thereunder, having first reported that the $100,000.00 bond, with personal sureties, was insufficient in penalty. Thereupon, the court ordered, \\\"pursuant to section 2777 of the Code of Virginia, that A. C. Stacy, treasurer, shall execute a new bond, conditioned as the lav/ directs, in the penalty of $250,000.00.\\\" Then the order under which this last bond was executed reads: \\\"Thereupon the said A. C. Stacy appeared in open court, pursuant to the above order, together with J. H. Stinson, Green Charles, Mrs; Alice Waldron, Harvey Charles, J. H. Dotson and John Lester, as sureties, who were examined on oath and approved by the court, entered into, executed and acknowledged a bond in the penalty of $250,000.00, payable and conditioned as the law directs.\\\"\\nThe contention is then made that section 2693 does not apply to this particular bond, as claimed for appellant sureties, because that section only applies to bonds given at the time the treasurer qualifies, and requires a guaranty or security company doing business in Virginia as surety on such a bond. The emphasis is placed upon the language of section 2698, that such a surety is required of the treasurer \\\"at the time he qualifies.\\\" It is argued therefrom that inasmuch as this bond was not given at the time Stacy qualified, section 2777, instead of section 2698, applies and that therefore a guaranty or security company was not necessary as surety on this bond. As we hereafter undertake to show, this is immaterial in this case.\\n(b) The second contention of appellants is that to accept personal sureties upon a treasurer's bond is in violation of the public policy as declared by the statute, and hence that the bond is void.\\nIn reply to this contention, the appellees cite a number of authorities which seem to be conclusive. Unquestionably the general rule is that statutory bonds \\u2022of public officers are not invalid merely because the terms of the statute have not been strictly complied with, unless the statute expressly declares that the failure to comply with it in any particular shall render the bond invalid.\\nIn Gibson v. Beckham, 16 Gratt. (57 Va.) 334, this is \\u2022stated: \\\"Bonds of sheriffs, clerks and other officers, of administrators, etc., are taken in the absence of those who may be most affected by the acts of such functionaries, and should be sustained unless clearly made invalid by law. Nor do I perceive how the surety, as .has been argued, can occupy any higher ground than bis principal. It is his intervention which has enabled the principal to act; and he should be bound to the extent of his obligation for him.\\\" Chapman v. Commonwealth, 25 Gratt. (66 Va.) 737; Jackson v. Hopkins, 92 Va. 601. 24 S. E. 234; United States v. Linn, 15 Pet. 315, 10 L. Ed. 751; Mechem on Public Officers, section 369.\\nThe opinion in Love v. McCoy, 81 W. Va. 478, 94 S. E. 954, 955, L. R. A. 1918C, 833, states conclusive reasons for holding such bonds valid, unless the statute expressly declares them to be void. There a \\u2022county sheriff had executed a bond for the faithful performance of his public duties, but the statute under which the bond was required was afterwards declared unconstitutional. In holding the bond valid, the court \\u2022states: \\\"While the failure of an act to stand the test of constitutionality does frequently render invalid a bond given pursuant to its requirements and relieve the obligors from the liability it would impose if the \\u2022statute were not void, yet if there be some consideration underlying it independendent of the statute, or there accrues to them some benefit, advantage or profit by its execution, they win be required to respond to the undertaking expressed in the instrument. It is not the policy of the law to permit escape from the legal consequences of the execution of such an instrument, if some one or more of the persons who bind themselves to perform its conditions receive and enjoy its fruits or the protection it affords, or derives some material or financial benefit from it. They will not in either such event, when summoned to account for such a breach of the conditions, be permitted to plead the voidness necessitating the execution of the undertaking.\\\"\\nThe statute (section 2698) relied upon for the appellants does not expressly make the bond void in case of failure to observe it, and so the bond is valid. It has been frequently held in such cases that even if such obligations are voidable as statutory bonds, they are nevertheless valid and enforceable as common law obligations. This has been said so often that the courts should not treat it as a debatable question. It is only because it is so earnestly argued that we repeat some of the many expressions on this subject.\\nThe general rule, which is amply supported by reason and authority, is: If the bond required of a. surety cannot be upheld as a statutory bond, it is at least good as a common law voluntary obligation.\\nIn a note to Estate of Ramsey v. People (197 Ill. 572, 64 N. E. 549), 90 Am. St. Rep. 200, this comprehensive statement is made: \\\"The rule is well settled that a bond given for the faithful performance of official duties, or in pursuance of some requirement of law, may be valid and binding upon the parties as a voluntary or common law obligation, when not made with the formalities or executed in the mode provided by the statute under which it purports to have been given, and hence is not enforceable as a statutory bond, provided it is not in violation of law. This rule rests on the principle, that, notwithstanding the instrument may not conform with the special requirements of a statute or regulation in compliance with which the parties executed it, nevertheless it is a contract voluntarily entered into upon a sufficient consideration, for a purpose not contrary to law, and therefore is obligatory on the parties to it in like manner as any other contract or agreement at the common law; and on the further principle that the sureties, having by their act in executing the instrument enabled their principal to obtain the office, are estopped to deny their liability for his official acts: Wilson v. Cantrell, 19 Ala. 642; Carter v. Fidelity, etc., Co. [134 Ala. 369] 32 So. 632 [92 Am. St. Rep. 41]; Pritchett v. People, [1 Gilman] 6 Ill. 525; Todd v. Cowell, 14 Ill. 72; Coons v. People, 76 Ill. 383; Scarborough v. Parker, 53 Me. 252; Archer v. State, 74 Md. 443, 28 Am. St. Rep. 261, 22 Atl. 8; Bank of Brighton v. Smith, 5 Allen [Mass.] 413; State v. O'Gorman, 75 Mo. 370; State v. McAlpin, 26 N. C. 140; State v. Perkins, 32 N. C. 333; Lowe v. Guthrie, 4 Okl. 287, 44 Pac. 198; Goodrum v. Carroll, 2 Humph. (Tenn.) 490, 37 Am. Dec. 564; Weston v. Sprague, 54 Vt. 395; United States v. Linn, 15 Pet. 290 [10 L. Ed. 742].\\\" Mechem on Public Officers, sections 271-2.\\nOur own court has frequently recognized this rule. Gibson v. Beckham, 16 Gratt. (57 Va.) 334; Chapman v. Commonwealth, 25 Gratt. (66 Va.) 721; Jackson v. Hopkins, 92 Va. 604, 24 S. E. 234.\\nWhether the argument of appellants, to the effect that the bond should have been executed strictly in accordance with the statute, Code, section 2698 (as amended by Acts 1926, chapter 537), is true, or whether Code, section 2777 (as amended by Acts 1926, chapter 14), should be construed to permit the giving of personal rather than corporate surety on this bond, is entirely immaterial in this ease. .In any event, it is perfectly valid as an obligation to secure the faithful performance of the treasurer's official duties. Kuhl v. Chamberlain, 140 Ia. 546, 118 N. W. 776, 21 L. R. A. (N. S.) 766, note.\\n2. The second assignment of error is that the court erred in striking out the answer of petitioners to the petition of E. E. Smith, and in refusing to treat-said answer as an amended and supplemental answer to the original bill.\\nThe sufficient reply to this assignment is that this answer was not tendered, and the additional defense-thereby interposed was not made until after the case had been pending for nearly a year (Code 1919, section 6122); and was not made until after the liability of the principal and his sureties had, under the issues theretofore raised by the pleadings, been already determined by the decree confirming the commissioner's-report.\\nThe new and additional defense is based upon the-fact that after Commissioner Farrier's report had been confirmed without exception, Mr. Farrier, who is an able attorney and an accomplished accountant, was-employed by the appellants to make what is -called a supplemental report as commissioner. To designate it-a supplemental report is a misnomer. It is a mere statement, or opinion, of Mr. Farrier, based upon information received by him., in some m.ost important particulars, from Mr. Stacy, and should have no further effect in this case than that of an opinion based upon statements made to him. The purpose of this- supplemental investigation by Mr. Farrier was to endeavor to show that some of the liability of Stacy should be imposed upon the Maryland Casualty Company, the surety upon the original bond first executed by the treasurer.\\nThe Maryland Casualty Company is not a party to this litigation, and if it be possible for a surety ever to establish conclusively that his obligation as surety has ceased, and that his principal has made a settlement, this record shows that there is no further obligation on the surety under the first bond. The only matter which could be admitted to attack such a formal settlement as that whieh is shown by the record to have been made by Stacy with the board of supervisors under that first bond, would be actual fraud or palpable mistake, and there is no suggestion of this in the record.\\nIt is suggested that a part of Stacy's liability should be imposed upon the sureties on the second or $100,000.00 bond. For the purposes of this case, it is enough to say that with the exception of Hurley, the sureties on the two bonds are identical, and that Hurley, without contradiction, is shown to be insolvent. This therefore becomes immaterial, even had the settlements made under the second bond and also after the latest bond was executed proved to be either false or-fraudulent.\\nThe sufficient answer to the contention of appellants that they had the right, when the- case was ready for a final decree, to reopen the pleadings and interpose new defenses, together with all the former defenses, is that they had previously had their day in court with an opportunity to be heard, fully and completely, and that no good cause was shown for reopening the pleadings at that stage of the litigation. National Mut. Building, etc., Asso. v. Ashworth, 91 Va. 709, 22 S. E. 521; Bowe v. Scott, 113 Va. 502, 75 S. E. 123; Crawn v. Commonwealth, 84 Va. 282, 4 S. E. 721, 10 Am. St. Rep. 839, note 843; U. S. Fid. & G. Co. v. Jordan, 107 Va. 347, 58 S. E. 567.\\n3. The third assignment of error states a valid, rule of law, which, however, is inapplicable under the facts shown by the record \\u2014 -that is, that the sureties on the latest bond are only liable for defaults which occurred after its execution.\\nIn this connection, this clear statement from 22 R.' C. L. page 516, section 203, is helpful: \\\"The principle that where an officer holds for more than one term and furnishes different sets of sureties-for each term, the sureties on the bond given for the-term when the defalcation occurs are alone responsible, is of special importance when there is no clear evidence as to whether a particular defalcation occurred during' one or other of the successive terms of such officer. The rule has been laid down that where the officer fails to account for and pay over to his successor the funds chargeable to him as shown by his books and final, account, the sureties on the last bond are primafacie liable therefor, and, to relieve themselves, they must show that the defalcation in fact occurred during a prior term. (Bruce v. United States, 17 How. 437, 15 L. Ed. 129; Milford v. Morris, 91 Ia. 198, 59 N. W. 274, 51 Am. St. Rep. 338; Pine County v. Willard, 39 Minn. 125, 39 N. W. 71, 12 Am. St. Rep. 622, 1 L. R. A. 118 and note; Board of Education v. Robinson, 81 Minn. 305, 84 N. W. 105, 83 Am. St. Rep. 374. Note: 23 L. R. A. (N. S.) 133.) Another way of stating this principle is to say that the presumption is that money which is shown to have come into the officer's hands and should have been there continues in his possession, and that. the burden of proof is on the surety to show that the funds presumably in the hands of his principal have been misappropriated before he became liable on the bond. (McMullen v. Winfield Bld'g, etc., Ass'n, 64 Kan. 298, 67 Pac. 892, 91 Am. St. Rep. 236, 56 L. R. A. 924.) Where this rule has been applied it has been .held that the fact of a conversion of funds during the first term is not conclusive as showing that such conversion was identical with a deficiency at the end of the second term in the absence of evidence of a continued conversion during the second term. (Pine County v. Willard, 39 Minn. 125, 39 N. W. 71, 12 Am. St. Rep. 622, 1 L. R. A. 118.) On the same principle a \\u2022shortage shown to exist at a certain time will, in the absence of proof to the contrary, be presumed to have arisen on account of defalcations occurring during the term of office covering such period, and not to include \\u2022shortages occurring in previous terms. (Dickinson v. White, 25 N. D. 523, 133 [143] N. W. 754, 49 L. R. A. (N. S.) 362.)\\\"\\nThe presumption here is that the defalcation \\u2022occurred during the three years and five months from July 30, 1924, to January 1, 1928, the period for which these appellants are liable as sureties, and there is no evidence to the contrary.\\nPerhaps it is too much, in the present development \\u2022of human character, to expect a defaulting treasurer and his sureties to recognize any ethical duty to face \\u2022their obligation. Those who strive to evade their legal \\u2022obligations are many, while those who swear to their own hurt and change not are few. Our laws generally mark the limit of our morals, and that which the law permits our consciences generally allow. We cannot refrain from saying that in this' most extreme ease of the flagrant and persistent defalcation of an official entrusted with the public funds, advantage has been taken of every opportunity to delay any settlement whatever, either partial or complete. Meanwhile the county of Buchanan has been deprived of the funds contributed by the taxpayers as necessary for the conduct of the public business. The treasurer's term ended January 1, 1928, the bill was filed while he was still in office; and was answered August 1, 1927; Commissioner Farrier's report was filed in November, confirmed in December without objection, but five months later, in April, 1928, the attempt was made to reopen all of the issues in the case, basing the defense on lack of sufficient information to put the appellants on inquiry as to facts which were notorious in the community and well known to all who read Virginia newspapers. Thereafter, the statute allowing six months in which to apply for an appeal was taken advantage of, and the petition for appeal was not presented until four days before the expiration of the time allowed. That as to some of these delays they were within their legal rights may be true, but that they have too long delayed the payment of a just obligation is manifest.\\nWe are confident that no injustice can possibly be done to these sureties by affirming this decree, for even had they been able to show that any portion of the recovery against them as sureties of the treasurer should have been deducted because of their belated claim that a portion of the defalcation may have occurred before the bonds on which they were sureties were executed, it is perfectly apparent that there is nevertheless quite a large liability which clearly arises under the two bonds on which they are the sureties; so that if under the processes of law they should now be permitted still further to delay a settlement, the penalties recoverable under Code 1919, sections 2787 and 2789, should certainly be imposed upon them. This would result in a recovery certainly as great and probably greater than that imposed by the decree of which they complain.\\nThere is a cross-assignment of error to the effect that we should in this case impose the extreme penalty authorized by statute \\u2014 that is, ten per centum a month from January 1, 1928, to the date of the decree. Powers v. Hamilton, 117 Va. 810, 86 S. E. 98; Clevinger v. County School Board, 139 Va. 449, 124 S. E. 440. It may be that this case is one in which this penalty should be imposed, but upon consideration of the whole case we are of opinion to leave the decree as it is, and to affirm it without modification.\\nAffirmed.\"}"
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+"{\"id\": \"461100\", \"name\": \"McClure Grocery Company, Inc. v. E. F. Watson\", \"name_abbreviation\": \"McClure Grocery Co. v. Watson\", \"decision_date\": \"1929-09-19\", \"docket_number\": \"\", \"first_page\": \"221\", \"last_page\": \"227\", \"citations\": \"153 Va. 221\", \"volume\": \"153\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:53:39.183664+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"McClure Grocery Company, Inc. v. E. F. Watson.\", \"head_matter\": \"Staunton.\\nMcClure Grocery Company, Inc. v. E. F. Watson.\\nSeptember 19, 1929.\\nAbsent, West, J.\\nTbe opinion states tbe case.\\nS. H. & Geo. C. Sutherland and G. Mark French, for tbe plaintiff in error.\\nA. A. Skeen and John M. Skeen, for tbe defendant in error.\", \"word_count\": \"1628\", \"char_count\": \"9276\", \"text\": \"Campbell, J.,\\ndelivered tbe opinion of tbe court.\\nOn tbe 3rd day of November, 1926, E. F. Watson and S. Sternberg docketed tbeir notice of motion for judgment in detinue against McClure Grocery Company, Incorporated, under tbe provisions of section 6064 of tbe Code. In tbe notice tbe property claimed by plaintiffs is described as 'One saw-mill, a tram road, including tbe steel rails, a locomotive, four log cars, one log loader and skidder, one boister engine and all tbe tools and equipments used in connection with tbe above described property, all of wbicb property was a short time ago located on Roaring Fork of McClure creek and being tbe same property that was heretofore owned by Sutton & Burleson in manufacturing lumber from a lumber operation operated by said Sutton & Burleson on Roaring Fork of McClure creek as above described, of tbe value of $12,500.00, this being tbe value of said property above set forth.\\\"\\nIt appears from tbe record that L. A. Sutton and J. M. Burleson, who were engaged in manufacturing lumber in Dickenson county, became involved finan cially and in the year 1921 executed a deed of trust upon the property set forth in the notice, to Thomas R. Byrd, to secure the holders of certain negotiable notes mentioned therein. For a valuable consideration, Watson, a citizen of North Carolina, became the owner of the notes secured by the deed of trust, and default having been made in the payment thereof at maturity, a sale under the terms of the trust deed was had and Watson became the purchaser of the property.\\nIn the meantime, numerous judgments were obtained against Sutton and Burleson by local business concerns, among which was the grocery company. Upon the judgment obtained by the grocery company execution was issued, the property in litigation was levied upon, a sale was had and the company became the purchaser. Immediately thereafter this notice in the nature of an action of detinue was brought. Prior, however, to the execution sale, Watson had entered into a contract of sale of the property with S. Sternberg, also a citizen of North Carolina. One of the provisions of the contract between Watson and Sternberg was that the property should be free- from any liens or encumbrances. When Sternberg ascertained that the title to the property was involved he rescinded the sale. In view of the attempted sale to Sternberg, and with his consent, Watson, upon advice of counsel, united Sternberg as a party plaintiff in the action against the grocery company.\\nThe main defense interposed by the defendant was that Watson was not a bona fide purchaser of the notes secured by the Byrd deed of trust; that he was the agent and attorney of Sutton and Burleson; and that the purported sale under the deed of trust was an effort to fraudulently convert the property for the benefit of Sutton and Burleson. Watson's reply to the charge of fraud was that as a creditor of Sutton and Burleson he had purchased the deed of trust notes in good faith and did so in order to protect his claim against Sutton and Burleson.\\nA trial by jury was had which resulted in the following verdict: \\\"We the jury find for the plaintiff the property described in the within notice and find it to be of value of $4,000.00.\\\" Over the objection of the defendant the court entered judgment carrying into effect the verdict of the jury. That judgment was before this court upon a writ of error granted the defendant and the case is reported in 148 Va. 603, 139 S. E. 288.\\nIn reversing the action of the trial court in entering judgment upon the verdict of the jury, Judge Burks held that the verdict of the jury was erroneous for two reasons: (1) That the jury only found in favor of one plaintiff when the finding should have been in favor of both plaintiffs; (2) that the jury in its verdict failed to fix separately the value of each article of property awarded the plaintiff.\\nBefore the ea,se came on to be again tried, Watson served upon the defendant this notice:\\n\\\"Upon the calling of this ease for trial the plaintiff will move the court to abate or dismiss as to plaintiff Sternberg and to permit same to be prosecuted in the name of E. F. Watson as the sole plaintiff, and will ask permission of the court to file the following additional bill of particulars and have same treated as a part of the original notice of motion for judgment:\\n\\\"The plaintiff claims title to, and the right to recover of the defendant, steel rails which were used in the construction of the tram road set forth in the notice of motion, being about 158tons, of the value of $3,000.00; a saw mill set forth in said notice of the value of $400.00; a log roller set forth in said notice of the. value of $200.00; a climax locomotive set forth in said notice of the value of $300.00; one hoisting engine set forth in said notice of the value of $100.00; making a total valuation of said property of $4,000.00.\\\"\\nUpon the calling of the case for trial, the court permitted the notice to be amended by strking out the name of Sternberg, and allowed the bill of particulars to be filed. This action was taken without objection on the part of the defendant. The defendant did, however, file the following grounds of demurrer:\\n\\\"The notice of motion does not apprise the defendant as to whether judgment will be asked for the specific property or its value.\\n\\\"The description of the property is not sufficient and the value of each article is not set forth in the notice.\\\"\\nUpon demand of the plaintiff, defendant filed its grounds of defense. The main grounds of defense are that plaintiff acquired the property sued for after the institution of the action; that the sale under the deed of trust was had with intent to defraud the creditors of Sutton and Burleson; and that Watson was not the owner of the property, having conveyed same to Sternberg.\\nThe second trial resulted in a verdict in favor of Watson and judgment was entered thereon. It is to that judgment this writ of error was awarded.\\nTen assignments of error are urged upon us. Many of them are purely technical and do not, in our view of the case, affect in the slightest degree the merits of the controversy.\\nDuring the progress of the case it developed in the examination of George E. Davis, a witness for the defendant, that Davis, as agent for Sutton and Burleson, had sold a certain boundary of timber to one Fain; that this timber was covered by the Byrd deed of trust and sold thereunder. . While testifying, Davis, also at the request of defendant, produced a number of letters which he had received from Sutton and Burleson and Fain relative to the sale of the timber. Upon examination of this correspondence, counsel for defendant moved the court to grant a continuance of the case to secure the attendance of Fain and Burleson as witnesses. This motion the court overruled. This action of the court is assigned as error.\\nThe contention of the defendant is that the Davis correspondence revealed that Fain and Burleson were material witnesses. Their materiality is not disclosed by the record, as no avowal was made indicating the purport of their evidence if they were present. That Fain had purchased, cut and shipped the timber bought from Sutton and Burleson seems to have been within the knowledge of every one in the community. If a material witness, why he was not summoned is not disclosed by the record. From our examination of the correspondence we are unable to perceive the materiality of the evidence of Fain and Burleson. There is no merit in this, assignment of error.\\nThe several other errors complained of relate to the action of the court in striking out all the evidence for the defendant, in giving one instruction for the plaintiff, in 'refusing eleven instructions offered by the defendant, and in overruling the motion to set aside the verdict and enter judgment for the defendant.\\nIt is unnecessary to discuss these assignments in detail as there can be, in our opinion, but one result following this litigation. Stripped of all technicalities, the only basis upon which the defendant can prevail is its success in showing that the sale to Watson was a fraud. Though given two chances to prove that the sale under the deed of trust was made to hinder, delay and defraud defendant and other creditors of Sutton and Burleson, it has signally failed in both of its efforts.\\nThe evidence is voluminous, and (in the view of two juries) conclusive that Watson was a bona fide holder of the debt asserted against Sutton and Burleson. It is not only a rule of decision, but with us a statutory rule (Code of 1919, section 6331), that \\\"when it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits, and substantial justice has been reached,\\\" this court should not disturb the judgment of the trial eourt based upon the verdict of a jury.\\nUpon the whole case, we are of opinion that substantial justice has been attained, and the judgment should be affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"463399\", \"name\": \"Saunders v. Link & Others\", \"name_abbreviation\": \"Saunders v. Link\", \"decision_date\": \"1912-11-21\", \"docket_number\": \"\", \"first_page\": \"285\", \"last_page\": \"294\", \"citations\": \"114 Va. 285\", \"volume\": \"114\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T21:45:59.509187+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Saunders v. Link & Others.\", \"head_matter\": \"Richmond\\nSaunders v. Link & Others.\\nNovember 21, 1912.\\n1. Wills \\u2014 Probate Before Clerk \\u2014 Bill to Impeach \\u2014 Ex Parte Probate in Court. \\u2014 An order of a clerk of a circuit court admitting a will to probate ex parte, from which no appeal is taken in the manner prescribed by section 2639-a of the Code (1904), is final and \\u25a0 conclusive, and cannot be collaterally attacked. No bill to impeach the will lies, under section 2544 of the Code (1904). The latter section applies only to ex parte probates in court, under that section. A clear distinction is drawn in the statutes between an ex parte probate before a clerk, which is provided for by section 2639-a, supra, and a probate before a court which is provided for by section 2544, supra.\\n2. Wills \\u2014 Probate Before Clerk \\u2014 Collateral Attack \\u2014 Appeal\\u2014Inconveniences. \\u2014 A clerk of a circuit court may admit a will to probate or reject it, and, in either event his sentence is a judgment in rem, whose validity can be drawn in question only by appeal in the manner and within the time prescribed by section 2639-a of the Code (1904). On such appeal, the court takes jurisdiction and hears and determines \\u201cthe matter as though it had been presented to said court in the first instance.\\u201d All appropriate remedies provided by law with respect to the probate of wills by courts may then be called into activity, and all rights and reservations which pertain to such case are preserved. Whatever inconveniences may arise from this mode of procedure are proper subjects of consideration for the legislature ; the language of the statute being plain, the courts must give effect to it.\\n3. Wills \\u2014 Probate\\u2014Judgment in Rem \\u2014 Collateral Attack. \\u2014 The, sentence of a court of probate having jurisdiction of the subject is a judgment in rem, and, until reversed, binds not only the immediate parties to the proceeding, but all other persons (though infants at the time) and all courts.\\n4. Judgments \\u2014 Collateral Attack \\u2014 Presumption.\\u2014The judgment of a court of general jurisdiction, acting within the scope of its powers, is presumed to be right, and such judgment is not subject to collateral impeachment unless a want of jurisdiction appears from the face of the proceedings.\\nAppeal from a decree of the Circuit Court of Giles county. Decree for the complainant. One of the defendants appeals.\\nReversed.\\nThe opinion states the case.\\nW. B. Bnidow, for the appellant.\\nWilliams & Farrier and Jackson & Henson, for the appellees.\", \"word_count\": \"3260\", \"char_count\": \"18920\", \"text\": \"Whittle, J.,\\ndelivered the opinion of the court.\\nWilliam A. Huffman died in the year 1908, survived by a widow, and leaving as his heirs at law adult children and infant grandchildren. Prior to his marriage, Huffman made a will giving his entire estate to Mary F. Saunders, whom he subsequently married, and appointed her his executrix. On April 14, 1908, the will was admitted to probate by the clerk of the Circuit Court of Giles county in his office, and the widow qualified as executrix.\\nIn September, 1909, Maggie Link, one of the adult children, brought a suit in equity in the circuit court of said county against the widow and heirs, in which she set out the foregoing facts, and insisted that the subsequent marriage of the testator absolutely revoked the will under Virginia Code 1904, sec. 2517, and prayed that it might be treated as a nullity, and that it be adjudged that Huffman died intestate. The bill furthermore prayed that a deed to the land in controversy from the widow to C. A. Saunders be set aside; that dower be assigned to the widow; and that the residue of the land be partitoned among the heirs and for general relief.\\nC. A. Saunders demurred to the bill. The controlling ground of demurrer is that the will having been admitted to probate by tbe clerk, and no appeal having been taken from tbe order as provided by statute, tbe sentence was final and conclusive and was not amenable to collateral attack, and that consequently tbe circuit court was without jurisdiction to maintain tbe suit.\\nTbe court overruled tbe demurrer and directed an issue to be tried to ascertain whether any, and if any bow much, of tbe paper in question was tbe will of tbe decedent. Afterwards, by a vacation decree, tbe court set aside so much of tbe former decree as directed an issue devisavit vel non, and adjudged that tbe marriage of tbe testator operated an absolute revocation of tbe will, that tbe order of tbe clerk admitting tbe same to probate did not give tbe will any validity whatever, and granted tbe relief prayed for in tbe bill. From that decree this appeal was allowed.\\nTbe Virginia Constitution (1902), art. 6, sec. 101, ordains that \\\"Tbe General Assembly shall have power to confer upon tbe clerks of tbe several circuit courts jurisdiction, to be exercised in tbe manner and under tbe regulations to be prescribed by law, in tbe matter of admission of wills to probate, and of tbe appointment and quaification of guardians, personal representatives, curators, appraisers and committees of tbe estates of persons who have been adjudged insane or convicted of felony, and in tbe matter of tbe substitution of trustees.\\\"\\nTbe legislature, in accordance with tbe above provision, by act approved May 15, 1903, conferred upon clerks of circuit courts, among other powers, jurisdiction to admit wills to probate. Acts 1902-3-4, p. 386. This act was so amended by an act approved March 12, 1904, as to extend this jurisdiction to clerks of corporation courts, except that in the city of Richmond tbe jurisdiction was vested in tbe clerk of the chancery court. Acts 1904, p. 205. Tbe amended act was declared unconstitutional by this court in so far as it attempted to confer probate jurisdiction on the clerk of the Chancery Court of the city of Richmond, such clerk not being either within the terms or intendment of section 101 of the Constitution. That phase of the case involved the constitutionality of the act only with respect to the clerk of the chancery court, and the decision was confined to the precise question in issue. McCurdy v. Smith, 107 Va. 757, 60 S. E. 78.\\nThe court, at page 761 of the official report, gives the following reason for the constitutional provision: \\\"This jurisdiction, outside the cities, was formerly lodged in the county courts, which held monthly terms in each county of the State; but inasmuch as those courts were to be abolished, and the circuit courts only convened once in three or four months, provision had to be made for the convenient and speedy dispatch of those important functions.\\\"\\nThe amended act referred to was carried into section 2689-a, Virginia Code 1904. In addition to this specific act, passed expressly to give effect to section 101, certain sections of the Code with respect to the probate of wills were so amended as to conform to changed conditions. Thus, section 2533 declares that the circuit and corporation courts, \\\"and the clerks of the said circuit and corporation courts, shall have jurisdiction'of the probate of wills according to the following rules.\\\" Then follows the bestowal of territorial jurisdiction upon these tribunals, and the section concludes with the above mentioned proviso as to the city of Richmond.\\nSection 2538 prescribes that \\\"A person offering or intending to offer to a circuit court, or to the clerk thereof, or to a corporation court, a will for probate, may obtain from the clerk of such court process directed to the proper officer of any county or corporation, requiring him to summon any person interested in such probate to appear at the next term of such court, or before such clerk, on a day named in such summons, to show caus\\u00e9 why the said will should not be admitted to record.\\\"\\nAnd section 2539 empowers \\\"A circuit or corporation court to which a will is offered for probate, or into which the quetsion of probate is removed by appeal or otherwise,\\\" to cause all persons interested in the probate to be summoned to appear on a certain day.\\nHaving thus drawn the distinction between a \\\"court\\\" and a \\\"clerk\\\" in the two preceding sections, section 2544, which remains unchanged, declares that \\\"a court may, however, without summoning any party, proceed to probate and tidmit the will to record, or reject the same. After a sentence or order under this section, a person interested, who was not a party to the proceeding, may, within two years, proceed by bill in equity to impeach or establish the will, on which bill a trial by a jury shall be ordered to ascertain whether any, and if any how much, of what was so ordered for probate be the will of the decedent. If no such bill be filed within that time the sentence or order shall be forever binding.\\\" Section 2545 contains a saving in favor of infants and non-residents.\\nBe it observed that the right to impeach or establish a will applies expressly to an ex parte probate proceeding by \\\"a court - under this section \\\" and operates in favor of \\\"a person interested, who was not a party to the proceeding.\\\" If this section had been intended to include a \\\"clerk,\\\" or to apply to an ex parte probate by a clerk, that officer would have been mentioned eo nomine, as in section 2538. But a still more conclusive reason against such contention is furnished by the fact that the legislature had, as 'remarked, by independent enactment (Virginia Code 1904, sec. 2639-a) conferred upon clerks special jurisdiction of the ex parte probate of wills, with appropriate procedure and regulations for its exercise, as ordained by article 6, section 101 of the Constitution. This enactment is the counterpart of section 2544. The latter section, as we have seen, confers ex parte probate jurisdiction upon courts and prescribes remedies and procedure for its exercise, while section 2639-a confers similar jurisdiction upon clerks, and also provides remedies and procedure in such case.\\nSection 2639-a is as follows: \\\"The clerk of any circuit or corporation court may appoint appraisers of estates of decedents, admit wills to probate, appoint and qualify executors, administrators, curators of decedents and committees, and require and take from them the necessary bonds in the same manner and with like effect as the court could do if in session. Such powers and duties may be exercised and discharged as well during the sessions of the court as at other times; provided, that in the city of Bichmond the clerk of the chancery court of said city shall have such powers and perform such duties.\\n\\\"Such clerk shall keep an order book, in which shall be entered all orders made by him respecting the subjects aforesaid. Any person interested may, within one year after the entering of such an order, appeal therefrom as a matter of right, upon giving bond as provided by law, to the court whose clerk has made the order. Upon application being made for such appeal, the said clerk shall enter forthwith in his order book an order allowing such appeal, and docket the same as a preferred cause for trial at the next term of the court. The said court, at any term, shall hear and determine the matter as though it had been presented to the said court in the first instance, and shall cause a copy of the order on the order book of the court embracing its final action to be copied by the clerk into his order book. At any time after such appeal is allowed the said court, or the judge thereof in vacation, may make any such order for the protection of the parties interested or for the protection or preservation of any property involved as might have been made had the matter been-originally presented to the court, or as may seem needful.\\\"\\nThe order of the clerk is a judicial act it is true, yet it is wholly distinct from the exercise of jurisdiction in like cases by the court, and its exercise is regulated by essentially different methods of procedure. He (the clerk) may admit a will to probate or reject it and, in either event, his sentence is a judgment in rem, whose validity can be drawn in question only by appeal in the manner and within the time prescribed by section 2639-a. On such appeal the court takes jurisdiction and hears and determines \\\"the matter as though it had been presented to said court in the first instance.\\\" And all appropriate remedies provided by law with respect to the probate of wills by courts may then be called into activity, and all rights and reservations which pertain to such case are preserved.\\nIt must be allowed that the argument ab inconvenienti (applicable to this construction) is not without force. Thus, the limitation to an appeal when the will is probated before the clerk in his office is one year, and the appellant is required to give bond. Again, there is no saving as to infants and non-residents, or other persons in interest not parties to the proceeding, who, without fault on their part, may be deprived of their rights after the lapse of one year by orders in a proceeding of which they had no knowledge. Whereas, when a will is probated ex parte in court under section 2544, after sentence, a person interested who was not a party to the proceeding has two years within which to file a bill in equity to impeach or establish the will, with the right to a trial by jury. Besides, to such proceeding there is a saving in favor of infants and non-residents under section 2545. The former may file a bill in equity to impeach or establish the will within one year after coming of age; and the latter, unless there was an actual appearance or personal summons, may file such bill within two years from the date of such sentence or order.\\nThese considerations might with propriety be called to the attention of the legislature for the purpose of having a revision of the enactment; but where the language of the statute is plain and within the competency of the legislature it is the province of the courts not to rewrite it, but to give it effect as they find it. In this instance, by art. 6, sec. 101, of the Constitution, this special jurisdiction is to be conferred \\\"upon the clerks of the several circuit courts, to be exercised in the manner and under the regulations to be prescribed\\\" by the legislature. In other words, the legislature is empowered by express words to prescribe the procedure by which the jurisdiction previously granted is to be exercised; and this it has done in language too plain to be mistaken. Besides, much of the hardship to which our attention has been directed is inseparably incident to all proceedings in rem.\\nUnless it can be maintained that the sentence or order of a clerk, in the exercise of the special jurisdiction with which he is clothed in the matter of the probate of wills by virtue of section 3639-a, is so identical with the jurisdiction exercised by a court under section 2544 as to read into the former section the remedies prescribed by the latter, the bill in this case cannot be maintained.\\nWe do not think the word \\\"court,\\\" as employed in section 2544, was intended to include \\\"clerk,\\\" and to invest that subordinate officer with the important powers conferred upon \\\"a court\\\" by that section. Such construction is opposed to the language of the section and, as before remarked, is inconsistent with the special jurisdiction, in pari materia, conferred upon clerks by section 2639-a, and would lead to serious embarrassment and confusion, devolving upon these officers duties which they are not furnished with the necessary machinery to discharge. It would, indeed, be an overstrained construction to hold that the legislature intended by section 2639-a (a statute com p\\u00edete in itself both as to right and remedy) by implication merely, to interfere with the long established jurisdiction of courts under section 2544. As observed, by express language of section 2544, an order by a court, on the law side thereof and under that section, admitting a will to probate or rejecting the same, is a prerequisite to the right to file a bill in equity to impeach or establish such will.\\nIn this State the doctrine has long been settled that the sentence of a court of probate having jurisdiction of the subject is a judgment in rem, and \\\"until reversed binds not only the immediate parties to the proceeding, but all other persons (though infants at the time) and all courts.\\\" See note to section 2533 and authorities cited, and Vaughan v. Doe, e. d. Green, 1 Leigh (28 Va.) 287; Wills v. Spraggins, 3 Gratt. (44 Va.) 555; Parker's Ex'ors v. Brown's Ex'ors, 6 Gratt. (47 Va.) 554; Robinson v. Allen, 11 Gratt. (52 Va.) 784; Ballow v. Hudson, 13 Gratt. (54 Va.) 672; Norvell v. Lessueur, 33 Gratt. (74 Va.) 224.\\nWe do not know what evidence may have been adduced before the clerk in the probate proceeding and, therefore, cannot declare its sentence a nullity. Non constat that the will which was revoked by the testator's marriage under section 2517 was not revived in accordance with section 2519. And the gravamen of the demurrer to the bill is that it seeks to attack collaterally the order in the probate proceeding.\\nThe rule is that the judgment of a court of general jurisdiction, acting within the scope of its powers, is presumed to be right, and such judgment is not subject to collateral impeachment unless a want of jurisdiction appears from the face of the proceedings. 1 Freeman on Judgments, sec. 120-a.\\n\\\"Orders and decrees of a probate court, in any case in which jurisdiction has attached, are not open to contradiction or re-examination in any collateral proceeding.\\\" 23 Cyc. 1061. And it is said that in nearly all the States probate courts rank with courts of general jurisdiction; \\\"so that it is not necessary to show the facts necessary to sustain them against collateral attack, but on the contrary their jurisdiction and authority will be presumed.\\\" Idem, p. 1083.\\nBallow v. Hudson, supra, relied on to sustain the jurisdiction of the circuit court, is an authority against that contention. The opinions in Robinson v. Allen and Ballow v. Hudson, supra, were both written by Judge Samuels and are entirely in harmony. In the latter case, the will was propounded for probate in the county court of Cumberland, and rejected on the ground that the alleged testator was incompetent to make a will. The same paper was afterwards propounded for probate to the circuit court, which, with knowledge of the fact that it had been rejected in the county court, nevertheless admitted it to probate. The sentence of the county court was held conclusive against the will, and the sentence of the circuit court a nullity. ' An intestacy having thus been established, a court of equity, in the exercise of its general jurisdiction, had full authority to administer the estate. The case is authority for the proposition that the sentence of a court of probate having jurisdiction of the subject is conclusive and not liable to collateral attack.\\nFor these reasons the decree of the circuit court must be reversed, the demurrer sustained, and the bill dismissed.\\nReversed.\"}"
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+"{\"id\": \"470448\", \"name\": \"Rufus Parrigen v. C. B. Long, Doing Business as McClure Lumber Company\", \"name_abbreviation\": \"Parrigen v. Long\", \"decision_date\": \"1926-09-23\", \"docket_number\": \"\", \"first_page\": \"637\", \"last_page\": \"643\", \"citations\": \"145 Va. 637\", \"volume\": \"145\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:45:23.441449+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rufus Parrigen v. C. B. Long, Doing Business as McClure Lumber Company.\", \"head_matter\": \"Staunton.\\nRufus Parrigen v. C. B. Long, Doing Business as McClure Lumber Company.\\nSeptember 23, 1926.\\nThe opinion states the case.\\nO. Mark French and W. B. Phipps, for the plaintiff in error.\\nChase & McCoy, for the defendant in error.\", \"word_count\": \"1201\", \"char_count\": \"7017\", \"text\": \"Prentis, P.,\\ndelivered the opinion of the court.\\nOn March 21, 1925, the plaintiff, Parrigen, moved the Circuit Court of Dickenson .county for judgment on an award of the Industrial Commission of Virginia in his favor from which no appeal had been taken, The defendant, Long, who was named in the motion but not in the award, demurred to the motion, filed a plea of nil debet and five special pleas, one of which alleged that while the injury to the plaintiff occurred in Dickenson county, the hearing before the Industrial Commission had been held in Russell county. The plaintiff moved to strike out the demurrer and all of the pleas and to enter judgment for the plaintiff upon the award, but the court overruled all of the motions and dismissed the proceeding, solely upon the ground that the hearing had been held in Russell county, and held that, therefore, the award was void.\\nThe jurisdiction of courts to enter judgments based upon the awards of the Industrial Commission'is found in the workmen's compensation act, section 62, which reads: \\\"Any party in interest may file in the circuit court or corporation court of the county or city in which the injury occurred, or if it be in the city of Richmond, then in the circuit or law and equity cqurt of said city, a certified copy of a memorandum of agreement approved by the Commission, or of an order or decision of the Commission, or of an award of the Commission unappealed from, or an award of the Commission affirmed upon appeal. Whereupon said court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect, and all proceedings thereto shall thereafter be the same, as though said judgment had been rendered in a suit duly heard and determined by said court.\\\"\\nThis section of the statute imposes a mandatory duty upon the courts. It was so construed in the case of Richmond Cedar Works v. Harper, 129 Va. 481, 106 S. E. 516, where this is said: \\\"It is observed that the Commission has no power to enforce its own judgments . Section 62 was clearly enacted for the purpose of providing a means not only of enforcing an award which had been affirmed on such appeal, but also all other final awards of the Commission from which there had been no appeal, as well as all agreements between the parties approved by the Commission. When this section is invoked, however, the rights of the claimants have already been established. The proceeding then resembles a motion under our statute for execution upon a forthcoming or delivery bond. There is neither necessity nor reason for the procedure under section 62, unless the defend ants fail to pay the amounts awarded the claimants. At that time, all of the rights of the parties having been previously litigated and determined, the court is required to render judgment in accordance either with (a) the agreement of the parties, which has been approved by the Commission; (b) an award of the Commission which has not been appealed from, or (c) an award of the Commission which has been previously affirmed upon appeal. At this stage of the proceeding, the court is vested with no discretion; the statute is mandatory and the refusal to render such judgment as that sectiQn requires could be compelled by mandamus. It seems hardly necessary to say that action which can certainly be compelled by mandamus cannot be appealed from. The order of the court under section 62 in rendering judgment so that execution may be had, is the exercise of a ministerial function, and the mere method provided by the General Assembly for enforcing the collection by legal process of the amount already legally ascertained to be due\\u2014that is, by execution of fieri facias, or any other appropriate process for enforcing a judgment.\\\"\\nWe are perfectly clear in our view that while the court had no authority or power to enter up any judgment against G. B. Long, who was not named in the award, it was by force of the statute required to enter judgment against McClure Lumber Company, in accordance with the award of the Commission.\\nIn Kareske's Case, 250 Mass. 220, 145 N. E. 301, construing a different statute having the same general purpose, similar views are expressed.\\nWhile the court correctly decided that it had no power to enter up judgment in this proceeding against G. B. Long, it erred in dismissing the motion. The reason assigned for dismissing the motion is based upon section 58 of the workmen's compensation law. That section directs the hearing to be held in the county or city where the injury occurred, unless otherwise agreed to by the parties and authorized by the Commission. The trial court held that the failure to hear the case in Dickenson county avoided the proceeding and finding of the Commission. We cannot agree with this conclusion. It ignores the frequently discussed difference between venue and jurisdiction. The Commission has jurisdiction over the entire State. Its judgments are not necessarily void because there is a mistake made in the venue. Objections to venue must be made at an early stage of the proceeding, and may be waived expressly or by implication. In this case it appears from the record that the hearing, while commenced \\u2022 in Russell, was concluded in Dickenson county. The award of the Commission appears to be perfectly regular on its face.\\nThis distinction between venue and jurisdiction has been discussed in Shelton v. Sydnor, 126 Va. 625, 102 S. E. 83, and treated at length in the recent case of Southern Sand and Gravel Co. v. Massaponax S. & G. Co., 145 Va. 317, 133 S. E. 812, decided June 17, 1926.\\nThe trial court should have assumed upon such a motion that the Commission had properly decided all questions of venue and service of process before the award was made.\\nThe order of the trial court will, therefore, be affirmed as to G. B. Long, because the Commission has made no award against him, but the case will be remanded with directions to enter judgment, in accordance with section 62, against McClure Lumber Company. This record does not sufficiently present the question as to whether the McClure Lumber Company is a legal entity, individual, partnership, or corporation, and such questions cannot be decided upon a motion for judgment upon the award under the workmen's compensation act. If the award against McClure Lumber Company be void for any reason not appearing upon its face, this question can and must be raised when the claimant undertakes to enforce the judgment. If any attempt is made to enforce a claim against any person or property not legally liable therefor, the judgment upon this award cannot prejudice the parties interested or prevent the contesting of such a liability in the future if and when the question arises.\\nAffirmed and remanded.\"}"
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+"{\"id\": \"472419\", \"name\": \"Superior Steel Corporation v. Commonwealth\", \"name_abbreviation\": \"Superior Steel Corp. v. Commonwealth\", \"decision_date\": \"1927-01-20\", \"docket_number\": \"\", \"first_page\": \"202\", \"last_page\": \"207\", \"citations\": \"147 Va. 202\", \"volume\": \"147\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:04:25.790452+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Superior Steel Corporation v. Commonwealth.\", \"head_matter\": \"Richmond.\\nSuperior Steel Corporation v. Commonwealth.\\nJanuary 20, 1927.\\nThe opinion states the case.\\nWilliams & Mullen, Guy B. Hazelgrove and Ralph S. C after all, for the appellant.\\nJohn R. Saunders, Attorney General, and Leon M. Bazile and Lewis H. Machen Assistant Attorneys General, for the Commonwealth.\", \"word_count\": \"1141\", \"char_count\": \"6920\", \"text\": \"West, J.,\\ndelivered the opinion of the court.\\nThis is an appeal from an order of the State Corporation Commission, entered under section 3735 of the Code, refusing to refund $550 of the State franchise tax assessed against Superior Steel Corporation for the year 1925.\\nThe original charter of Superior Steel Corporation authorized it to issue capital stock to the extent of $17,000,000 par value, of which $5,500,000 should be preferred stock in two classes, and $11,500,000 common stock. The charter also provides that all preferred stock shah be redeemable, and that when redeemed it \\\"shall be forthwith cancelled and shall not be reissued, and no first preferred and no second preferred stock shall be issued in lieu thereof or in exchange therefor.\\\"\\nOn February 15, 1924, the corporation redeemed and cancelled all of its preferred stock, and reported the fact to the Commission in a stock statement and a bond statement, which it filed with the Commission. There had been no amendment of the charter of the corporation under section 3780 of the Code, increasing or decreasing its authorized capital stock.\\nOn January 1, 1925, the Commission made an assessment against the corporation on $17,000,000, the maximum authorized capital stock, as shown in the charter, instead of on its then authorized capital stock of $11,500,000, thus making the tax $550 greater than it would have been if assessed on $11,500,000. The corporation paid this amount under protest and now asks that the same be refunded.\\nThe decision in this case hinges upon a proper construction of section 43 of the tax bill (Laws 1926, chapter 547), which, so far as material here, reads as follows:\\n\\\"Every corporation organized in this State shall- pay an annual State franchise tax to be assessed by the State Corporation Commission.\\n\\\"The amount of such franchise tax shall be as follows: Where the maximum capital stock is in excess of one million dollars, and not greater than fifty million dollars, an additional sum of ten dollars for each, hundred thousand dollars or fraction thereof in excess of one million dollars;\\n\\\"The State Corporation Commission shall ascertain the amount of the authorized maximum capital stock of each such corporation as of the 1st day of January in each year, and shall assess against each such corporation the State franchise tax herein imposed. .\\\"\\nThe State Corporation Commission contends that in assessing the State franchise tax it should base the same upon the maximum authorized capital stock ascertained from the charter of the corporation or some amendment thereto. The appellant corporation contends that the commission should ascertain the maximum authorized stock \\\"by examining the stock statement and bond statement on its files or by making further investigation.\\\"\\nIn construing section 43 of the tax bill, we must seek the legislative intent as disclosed by the language used, giving to the words of the- statute their ordinary meaning, as no contrary intent appears.\\nAccording to Mr. Webster, one is \\\"authorized\\\" when he possesses the authority to act, and he has \\\"authority\\\" when he has the \\\"legal or rightful power\\\" to act. The statute requires the Commission to ascertain the amount of the authorized maximum capital stock of such corporation, as of the 1st day of January in each year.\\\" This language can only mean the maximum capital stock which the company has the authority, or legal power, to issue. It is conceded that the preferred stock was all redeemed and can-celled, and that the corporation has no power to reissue it in any form. This necessarily leaves the corporation with an authorized maximum capital stock of only $11,500,000. Besides, the franchise tax is conceded to be a privilege tax. The amount of stock actually-issued and outstanding is of no concern in arriving at the basis of the tax. The only question is what is the maximum capital stock which the corporation has the power, under the law, to issue.\\nIt is clear that the legislature never intended by section 43 of the tax bill to levy a privilege tax on a corporation for the privilege of doing something which, if done, would be a violation of its charter and the law. It follows, as the night follows the day, that the tax assessed on the capital stock of the corporation in excess of $11,500,000 was without authority of law, and that the taxes paid on such excess should be refunded to the corporation.\\nThis case has been very ably and exhaustively argued in the briefs and by counsel orally at the bar of this court. The view we. have taken and the conclusion we have reached makes it unprofitable to consider the many questions discussed in the briefs filed on behalf of the parties. We will mention one argument.\\nThe Commonwealth makes the point that the interpretation which the Commission places on section 43 of the tax law in this ease is the administrative interpretation which it has always placed upon this statute, and should, therefore, prevail here. Courts, in construing statutes, where the statute is obscure or its meaning doubtful, will give great weight to and sometimes follow the interpretation which those whose duty it has been to administer it have placed upon it. But the doctrine of administrative interpretation will not be allowed to change the plain meaning of the statute.\\nIn Houghton v. Payne, 194 U. S. 88, 24 S. Ct. 590, 48 L. Ed. 888, the majority opinion states the law thus:\\n\\\"Contemporaneous construction is a rule of interpretation, but is not an absolute one. It does not preclude an inquiry by the courts as to the original correctness of such construction. A custom of the department, however long continued by successive officers, must yield to the positive language of the statute.\\\"\\nWhen the Commission examined the charter of the corporation to ascertain its maximum authorized capital, they saw, or ought to have seen, that the charter contained a self-executing provision by which the authorized capital stock could be decreased without instituting a proceeding for that purpose under section 3780 of the Code. Being thus put upon notice, it is the duty of the Commission in such cases to make such further investigation as may be necessary to enable them to ascertain with reasonable certainty the authorized maximum capital stock which the corporation has the authority to issue, at the time of the assessment.\\nFor the foregoing reasons, the order will be reversed and the Commission will be directed to enter an order refunding to the plaintiff in error the sum of $550 illegally assessed against it.\\nReversed.\"}"
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+"{\"id\": \"4737462\", \"name\": \"Norfolk and Western Railway Company v. Spates\", \"name_abbreviation\": \"Norfolk & Western Railway Co. v. Spates\", \"decision_date\": \"1917-11-15\", \"docket_number\": \"\", \"first_page\": \"69\", \"last_page\": \"90\", \"citations\": \"122 Va. 69\", \"volume\": \"122\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T20:26:24.595965+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Norfolk and Western Railway Company v. Spates.\", \"head_matter\": \"Richmond.\\nNorfolk and Western Railway Company v. Spates.\\nNovember 15, 1917.\\n1. Fires\\u2014Railroads\\u2014Evidence as to Other Fires.\\u2014In an action against a railroad for damages by fire, since the Featherston act, Acts of Assembly, 1908, p. 388, it is not error to admit evidence for the plaintiff that other engines of the railroad company at other times in the past had thrown out sparks and cinders and in some cases had set out fires at and near the locality of the buildings of the plaintiff, for damages for the burning of which the action was brought. Prior to the Featherston act, the ultimate question of fact in issue in railroad fire damage cases was whether the fire was negligently set out by the railroad company. Since the Featherston act the issue in such cases does not include negligence as an essential ingredient. Such ingredient consists only of the existence of the fact of the setting out of the fire by the railroad company by sparks or coals (cinders) dropped or thrown from some one or more of its engines, and that, under such act, is the ultimate fact in issue; and all evidence, whether circumstantial or direct, which tends to prove that issue, is admissible.'\\n2. Fires\\u2014Railroads\\u2014Evidence as to Other Fires\\u2014Weight of Evidence.\\u2014Evidence that on other occasions the engines of defendant company had thrown out sparks and cinders and in some cases had set out fires at and near the locality of the fire\\\" about which action was brought, was not conclusive evidence in itself, but admissible to be weighed and considered by the jury in connection with all the other evidence in the case.\\n3. Fires\\u2014Railroads\\u2014Evidence of Other Firesi\\u2014Remarks of Court on the Evidence\\u2014Appeal and Error\\u2014Harmless Error.\\u2014It was not error in the trial court in its ruling as to the admissibility of evidence of sparks and cinders being thrown out and fires started at other times, to remark that: \\u201cI think it admissible but not on the ground of showing that the engines were defective, but showing that at that point the railroad company had thrown out fire on other occasions and therefore that it is possible for it to have thrown out fire at this time.\\u201d The objection of tho defendant to the ruling was the use of the word \\u201cpossible\\u201d instead of the word \\u201cliable,\\u201d as the court used in later rulings on the same question, but it was considered that in this connection the word \\u201cpossible\\u201d was more favorable to the defendant than the word \\u201cliable.\\u201d Moreover, in view of the admittedly correct instruction given by the trial court on this point, it does not affirmatively appear from the record that the jury was misled by this ruling or would or could, in accordance with the evidence, have rendered a different verdict from what they did, and hence the error in such ruling, if there was one; was harmless.\\n4. Fires\\u2014Railroads\\u2014Instructions.\\u2014In an action against a railroad for damages by fire, the following instruction, \\u201cThe court further instructs the jury that the burden of proof is upon the plaintiff to show by clear and affirmative testimony that the defendant set out the fire, the court telling the jury that it is not sufficient for the plaintiff to show that it was possible for the defendant to have started the fire but it must appear from the evidence that there was no other probable cause for the fire,\\u201d is not \\u2022 contradictory in terms, or calculated to mislead the jury into believing therefrom that it was instructed that the railroad company was liable, unless it appeared from the evidence that there was no other probable cause for the fire, when taken in connection with another instruction, \\u201cthat before the plaintiff can recover in this case the evidence must be such as to show more than a mere probability that the property was destroyed by sparks of fire or cinders set out by an engine of defendant company.\\u201d\\n5. Instructions\\u2014Multiplicity of Instructions.-\\u2014The practice of diminishing instead of multiplying instructions unnecessarily is rather to be commended than condemned.\\n6. Instructions \\u2014 Right to Instructions \\u2014 Instructions Already Given.\\u2014The principle that when an instruction prepared by counsel for either party states a correct principle of.law, then the party offering it is entitled to have it given in the language employed in it, is subject to the well-settled qualification that when the jury have been fully and sufficiently instructed on a given point or points in a case, it- is not error to refuse other instructions, though correct, on the same point or points.\\n7. Fires\\u2014Railroads\\u2014Instructions.\\u2014It is not error to refuse an instruction (although the proposition of law enunciated is correct) that the jury cannot \\u201cpresume from the happening of the fire that it was caused by the defendant company\\u2019s engine or engines,\\u201d where it did not appear that the jury were asked to apply such a presumption, but, on the contrary, other instructions clearly instructed them as to the law which-nega tived any such presumption. Moreover the instant case was not one in which the plaintiff was left by the evidence to rely upon such a presumption. She had other evidence in her behalf on the point. Hence the giving of such an instruction in such a case would have been confusing and misleading to the jury.\\n8. Fires\\u2014Railroads\\u2014Instructions\\u2014Evidence to Support.\\u2014Where the evidence showed that the fire could only have arisen from causes for which defendant railroad was responsible and liable in damages under the Featlierston act, it was not error to refuse an instruction that if the jury believed that the fire might have resulted from one of two causes, for one of which defendant was responsible, but not for the other, the plaintiff could not recover, nor could the plaintiff recover if it was just as probable that the fire was caused by the one as by the other cause.\\n9. Fires\\u2014Liability of Railroad\\u2014Featherston Act.\\u2014A railroad is liable under the Featherston act for a fire originating in any of the following ways: (a) From coals, or cinders, dropped from an engine and thrown by the wheels on trash and dry vegetable matter on the right of way of the railroad company, from which the fire burned over the ground and communicated and set fire to plaintiff\\u2019s property, (b) From sparks thrown from an engine on trash and vegetable matter on the right of way of defendant railroad, from which the fire burned over the ground and communicated and set fire to plaintiff\\u2019s property, (c) From sparks thrown from an engine, beyond defendant railroad\\u2019s right of way on to plaintiff\\u2019s property.\\nError to a judgment of the Circuit Court of Clarke county, in an action of trespass on the case. Judgment for plain - \\u25a0 tiff. Defendant assigns error.\\nAffirmed.\\nSTATEMENT OF THE CASE AND THE FACTS.\\nThis is an action by the defendant in error, plaintiff in the court below (hereinafter referred to as plaintiff), against the plaintiff in error (hereinafter referred to as railroad company), to recover damages for the burning of a store, warehouse, corn house and mill of the plaintiff by fire alleged to have been occasioned by sparks and coals dropped or thrown from an engine or engines of the railroad company.\\nThere was a trial by jury which resulted in a verdict and judgment for the plaintiff and the case is brought here upon errors assigned by the railroad company because of the refusal of the trial court to set aside the verdict and grant it a new trial; of admission of improper testimony; improper ruling thereon; the giving of improper instructions and refusal to give proper instructions, as contended by the railroad company.\\n' The suit was brought under the Acts of Assembly, 1908, p. 888, known as \\u201cThe Featherston act,\\u201d which (omitting the formal parts thereof), provides as follows: \\u201cThat whenever any person shall sustain damages from fire occasioned by sparks or coals dropped or thrown from the engine or train of any railroad company, such company shall be liable for the damage so sustained, whether said fire shall have originated on said company\\u2019s right of way or not, and whether or not such engine is equipped with proper spark-arresting appliances and regardless of the condition in which such appliances may be.\\u201d\\nTHE EVIDENCE AND FACTS.\\nThe ultimate question of fact in issue in the case was whether the fire in question was occasioned or set out by sparks or coals (cinders) thrown or dropped from the engine or engines of the railroad company.\\nThere was no eye witness of the setting out of the fire. The evidence relied on by the plaintiff to prove that the \\\"fire was set out bv such sparks or coals (cinders) \\u2019was wholly circumstantial.\\nAs tending to nrove the ultimate fact aforesaid the plaintiff introduced circumstantial evidence to the effect that on a great number of recent occasions, extending up to about the time of the fire and on one occasion shortly thereafter, sparks and cinders were thrown out at and very near the point or locality where said buildings were located, by engines of the railroad company. Most of this evidence .was with respect to engines of trains going north (the same direction in which the engines of the identified freight train hereinafter mentioned were going), and some of such evidence was with respect to engines of trains going south or in the opposite direction. The first evidence so introduced was the testimony of the husband of the plaintiff. Such testimony and the ruling of the trial court thereon which is made the basis of one of said assignments of error, will best appear from the following quotations from the record:\\n\\u201cQ. Well, now, state to the court and jury whether or not you have frequently seen sparks and cinders thrown out at that point by the engines of the railway company?\\n\\u201cDefendant\\u2019s objection. Counsel for defendant object to' the question as wholly irrelevant, immaterial and incompetent.\\n\\u201cBy the Court: I think it admissible, but not on the ground that the engines were defective, but to show that at that point the railroad company has thrown out fire on other occasions and therefore that it is possible for it to have thrown out fire at this time. Defendant excepted.\\n\\u201cA. Well, yes, sir, I have frequently seen them set fire out there. On one occasion\\u2014if you will let me have the diagram I will show you: On one occasion, I think about two years ago\\u2014\\n\\u201cMr. Smith: You were not asked that question.\\n\\u201cWitness: I want to show where I had seen fire.\\n\\u201cMr. Smith: You were asked if you had frequently seen sparks and cinders thrown out by engines.\\n\\u201cA. Yes, sir. I have frequently seen them thrown out and I wanted to show that one particular time.\\n\\u201cBy Mr. Whiting: Q. All right. State if you have ever-known fire to occur at that point from sparks and cinders thrown out by engines- going along the track of the Norfolk and Western Railway?\\n\\u201cDefendant\\u2019s objection: Defendant by counsel object to-the question for the reason heretofore assigned, and for the further reason that no time is fixed and it is impossible for the defendant to meet the evidence along this line. Defendant says the evidence should be confined to the particular engine or engines on that morning, that there is no averment in the declaration of the habit of throwing out fire, but that the averment in the declaration is as to this freight train, and that the defendant has not been called upon to answer other fires that might have been set out on other occasions.\\n\\u201cBy the Court: The objection will be overruled. It is not admitted on the grounds that these engines throw out sparks improperly, but that at that particular place they were liable to throw out sparks. That is the point upon which this evidence is admitted, that . because of the grade or other conditions at this particular point these engines or a.ny engines are liable to throw out sparks when passing that place. Defendant excepts.\\n\\u201cA. (By witness). Yes, sir, I have. A number of times) and I wouldn\\u2019t confine myself to the very number of times, but I would say in the last four years I have put out fire there forty times at different points along the road adjacent to this point.\\n\\u201cDefendant\\u2019s motion to strike out answer. Thereupon defendant moves the court to strike out the answer of the witness as incompetent, immaterial and irrelevant; and, without interposing a specific objection to each and every question propounded along this line, asks that it be understood that the defendant is objecting to every question and excepting to every answer along this line..\\n\\u201cBy the Court: All right, the motion will be overruled.\\n' \\u201cQ. (By Mr. Whiting): Had you finished your answer?\\n\\u201cA. On one or two occasions I have gotten water and put out ties when I closed the store at nine o\\u2019clock at night, when four or five would be burning at one time.. So far as fire from sparks and cinders are concerned, I changed the construction of the corn roof on account of fire. When first built the corn house had a flat roof, running down to the mill\\u2014\\n\\u201cDefendant\\u2019s Objection: Counsel for defendant objected to the answer being given by the witness because not responsive to any question.\\n\\u201cBy the Court: No, I believe that is not responsive to the question.\\n\\u201cQ. (By Mr. Whiting) : Mr. Spates, just state what, if anything, you know of sparks and cinders having been thrown out by the engines of defendant company\\u2019s trains running along its track on to the roof of your building?\\n\\u201cDefendant\\u2019s Objection: Coimsel for defendant repeat their objection heretofore made. Objection overruled. Defendant excepts.\\n\\u201cA. Oh, yes, sir, invariably they throw sparks there when coming north. When they come up over the hill, after they pass through the dip in the track, they hit the top or end of the dip just above my store, and always open up the throttle and throw sparks. Frequently I have been in the store or in the warehouse particularly, and sparks will rain on the tin roof. They always open the throttle coming north and it throws sparks and cinders, too, in every direction.\\n\\u201cQ. What do you know about finding cinders on the top of the roof. Defendant objects. Objection overruled. Defendant excepts.\\n\\u25a0 \\u201cA. Well. I have shoveled a bushel off there, and changed the roof on that account. Sparks and cinders accumulated on there and they might eventually set fire to something. \\u25a0\\n\\u201cQ. State if you have ever known fire to be started by the railroad company on the west side of your building from sparks thrown over the top of the building? Defendant objects. Objection overruled. Defendant excepts.\\n\\u201cA. Yes, sir, I have known them to throw sparks over the building\\u2014\\n\\u201cBy the Court: I understand that you not only saw the sparks, but saw them thrown out there in the day?\\n\\u201cWitness: Yes, sir, I have on several occasions. I have stood on the siding and seen sparks rain out, and have walked around on. the other side of the building and saw there was fire. The train was pulling north and had backed a car off the siding. Coming off the siding they had to use a great deal of steam power to get up that grade. In backing that car out of the siding they hit the grade and .the engine threw sparks a distance of half-way between there and the stable.\\u201d\\nIn the progress of the trial the broad question of fact aforesaid, was narrowed, by the facts admittedly established by and as the evidence' for the plaintiff was introduced, to the ascertainment of whether the fire was set out by sparks or cinders (singular or plural in number) thrown or dropped from one or both of two identified engines drawing a certain freight train going north which passed the buildings aforesaid a few minutes before the fire originated.\\nThe railway company introduced, in its defense of the action, direct testimony of the enginemen and conductor of said freight train to the effect that these engines threw no sparks on the occasion in question when they passed by or anywhere near the said buildings; that all steam was shut off from these engines at such time, so that they were then merely drifting; that when drifting it was impossible for the engines to throw out sparks; so that if this direct evidence as to the engines having no steam on them at such time was true, it was impossible for the fire to have been set out by sparks from them or either of them.\\nHowever, the testimony for the defendant let fall the facts that while the rules and orders of the railroad company required its employees operating said freight train and all other trains of the railroad company to run slowly by the said point or locality, owing to the changes in grade and curves in the railway track thereabout, and with the throttles of the engines of trains going north closed and the engines drifting by, it was admitted by some of the witnesses for the defendant that such rules and orders had not been invariably obeyed; that the latter had indeed been frequently violated by the employees of the railroad company operating its trains, and they admitted, in effect, that they themselves were guilty of violating such rules and orders at the time of the fire in question, to the extent of running said freight train at a greater rate of speed than that allowed at that locality by such rules and orders, although they insisted that they had the steam shut off from the engines as aforesaid.\\nHere was a conflict between the circumstantial evidence for the plaintiff and the direct evidence for the railroad company on the question of fact of whether the engines pulling said freight train had the steam shut off or not,, and whether consequently they did or did not throw out sparks at said locality at the time of the setting out of the fire in question. It was a question of fact for the jury whether they did or did not believe the direct testimony for the railroad company on this point:\\nThe evidence for both the railroad company and the plaintiff agreed that all of the engines of the railroad company threw sparks at said locality, when the steam was not shut off from them, whether going north or south along the railway track.\\nThe evidence as to the coals (or cinders), both for the plaintiff and railroad company, agreed that they might have been dropped from the ash pans of the engines of said freight train, on the main line of the railway opposite said buildings on the occasion in question. That there was no inflammable matter on the main line of railway track itself at this point; that there was a side-track between said main line of railway track and the said buildings, with the usual space between such tracks, both of which and the space between them was free of inflammable matter; but from the side-track to the com house, which first took fire, there was a distance of sixteen feet, on which was lying some dry weeds and other vegetable matter cut by the railroad company a few days before the fire and also some \\\"trash.\\u201d The right of way of the railroad company extended to within about one foot of said corn house, or fifteen of said sixteen feet, on which said dry vegetable matter and trash lay. The evidence is conflicting as to the amount of such vegetable matter and trash, and as to whether the fire first caught near the side-track and burned over to the corn house, or caught first in, under or near the corn house and after, or while setting fire to the corn house, burned back to the side-track; but (omitting a good deal of immaterial evidence as'to places on the ground here and there between the buildings and the side-track and at the north end of the buildings not burned over), the evidence was to the effect that from the railway siding at a point somewhat north of tbe corn house thence along the said right of way to the corner of the corn house, where the fire therein first started, the ground was all burned over. And there was evidence as to the strength and amount of the flames seen burning on the ground by the side of the corn house, as compared with those seen burning on the ground past the com house to the south, and the ends of the ties of the side-track, all seen burning soon after the fire started in the com house, from which the jury was warranted in concluding that the fire was set out on the right of way of the railroad company by sparks or cinders (singular or plural), and extended to the corn house.\\nThe evidence was that there was little or no wind, but that the flames slightly inclined from the direction of the railway track towards the buildings as they were seen burning in places across the said right of way, while the fire at the buildings was in progress.\\nThe evidence is conflicting as to whether coals or cinders (singular or plural) would likely have been thrown from the main line railway track to the dry vegetable matter on the right of way of the railroad company aforesaid and the evidence leaves it uncertain whether sparks or cinders singular or plural) fell on such vegetable matter. The husband of the plaintiff testified, as a witness for the latter, on this subject as follows:\\n\\u201cThere are two ways it (the railroad company) could have set fire to the buildings. One is it may have dropped a cinder from the ash pan, and the wheels knocked it down from the track, and it rolled into the trash, which very frequently happens. It has frequently happened and one time It dropped down there and a train had to stop and put it out. And it could have set fire from a spark thrown out of the smoke stack. Either way it could have happened.\\u201d\\n\\u2022 Beyond this, however, the evidence leaves it uncertain whether the fire started on the right of way of the railroad company or not. It might, consistently with the evidence, have started from a spark or sparks thrown from one or both of the engines of said freight train, falling in or next to or under the corner of the com house, beyond the right of way of the' railroad company, or from a cinder or cinders dropped and knocked by the wheels of the engine or engines and rolled into the trash on the right of way as above Indicated.\\nSUMMARY OF FACTS.\\nUnder the rule applicable in this court in such case, the material facts which we must consider may have been found by the jury, and hence must be considered as found by us, may be summarized as follows:\\nThe fire which burned the buildings aforesaid, originated from the engine or engines of the railroad company, from\\n(a) Coals (or cinders) dropped from one or both of the engines of said freight train, thrown by the wheels on the trash and dry vegetable matter on the right of \\u2018way of the railroad company aforesaid, from which the fire burned over the ground and communicated and set fire to the corn house, etc.; or\\n(b) Sparks thrown from one or both of the last named engines on such trash and vegetable matter on the said right of way, from which the fire burned over the ground and communicated and set fire to the com house, etc., or\\n(c) Sparks thrown from one or both of the last named engines, beyond the right of way aforesaid, within or next to or underneath (through a door in the planking underneath and near the corner of) the corn house, etc.\\nIf the fire originated in any of these three ways it fell within the provisions of the Featherston act, and the railroad company was liable for the damages sustained by the plaintiff by reason thereof.\\nRoy B. Smith, and Marshall McCormick, for the plaintiff in error.\\nWard & Larrick and F. B. Whiting, for the defendant in error.\", \"word_count\": \"7450\", \"char_count\": \"42193\", \"text\": \"Sims, J.,\\nafter making the foregoing statement delivered the following opinion of the court:\\nWe will consider and pass upon the questions raised by the several assignments of error in their order as stated below:\\n1. Was it error to admit evidence for the plaintiff that other engines of the railroad company at other times in the past had thrown out sparks and cinders and in some cases had set out fires at and near the locality of the buildings of the plaintiff, for damages for the burning of- which this action was brought?\\nBefore the Featherston act the law required a plaintiff, in order to recover damages against a railroad company caused by fire, to prove two things, namely, (1) That the railroad company in fact set out the fire; and (2) that the setting out of the fire was due to negligence of the railroad company.\\nIn that state of the law, by a number of decisions of this court, it became settled, prior to the Featherston act, that, although the proof might show that a fire was set out by a railroad company, there could be no recovery therefor if the evidence failed to show the existence of negligence on the part of the railway company; and it was held as a general rule that the evidence failed to show the existence of such negligence, if it appeared therefrom (a) that the engine from which the fire originated was in good repair, in charge of a competent and experienced engineman, or locomotive engineer, that it was equipped with the best mechanical appliances in known and practical use for preventing the escape of sparks; and was not run in a negligent manner so as to unnecessarily throw out sparks and coals or cinders; and (where the fire originated on the right of way of the railroad company) (b) that the defendant exercised reasonable care to keep such right of way clear of combustible matter liable to ignition by sparks or coals discharged from passing engines and to communicate fire to the property of others. White v. N. Y. P. & N. R. Co., 99 Va. 357; 38 S. E. 180; N. & W. Railway Co. v. Briggs, 103 Va. 105; 48 S. E. 521; Atlantic, etc., R. Co. v. Watkins, 104 Va. 154, 51 S. E. 172; Phillips v. Railway Co., 109 Va. 437, 63 S. E. 998. The rule as to the effect of evidence showing that the engine was in good repair, would of course, prior to the Featherston act, have applied to the dropping of coals or cinders and would have negatived the existence of negligence in that regard and hence of liability for damages' for fire caused thereby.\\nTherefore, -prior to the Featherston act, the ultimate question of fact in issue in railroad fire damage cases was whether the fire was negligently set out by the railroad company. Upon that issue it was necessarily held that \\\"after the plaintiff has identified with certainty the engine alleged to have communicated the fire complained of, it is not admissible to introduce evidence of other fires communicated along the company's right of way without first showing -that the other fires were set out from the engine in question.\\\" This was because, in the then state of the lav/, negligence being an essential ingredient to be found to exist in a case before any liability of the railroad company could arise, when the injury complained of was shown to have been caused, or could only have been caused by a known and identified engine, the evidence had necessarily to be confined to the condition, management and practical operation of that engine, in order to ascertain whether the railroad company was guilty of negligence with respect thereto. N. & W. Railway Co. v. Briggs, supra. Evidence which might have been relevant as tending to prove that the fire was in fact set out by the -railway company, consisting of evidence of the frequency of fifes set out by the engines of such company indiscriminately, clearly could not be relevant to the issue in such state of the law, which was whether there was negligence in the condition or management of the identified engine. The other engines of the railroad company may have set out. fires, whether because defective in condition or negligently operated, or not, and the identified engine may have set out the fire in question, but if the latter was not defective in condition or negligently operated there was no liability upon the defendant in such state of the law. That is to say, the rule in N. & W. R. Co. v. Briggs, supra, above referred to, was established when and because in the then state of the law negligence was an essential ingredient and, indeed, was the gist of the action in railroad fire damage cases, and not merely the fact of the setting out of the fire. Since the Featherston act the issue in such cases does not include negligence as an essential ingredient. Such ingredient consists only of the existence of the fact of the setting out of the fire by the railroad company by sparks or coals (cinders) dropped or thrown from some one or more of its engines, and that, under such act, is the ultimate fact in issue; and all evidence whether circumstantial or direct, which tends to prove that issue, is admissible, and the aforesaid rule in the case of N. & W. Ry. Co. v. Briggs, supra, is no longer applicable.\\nThe first assignment of error raising the question we have under consideration, is based on the aforesaid, rule in the case of N. & W. Ry. Co. v. Briggs, supra. That rule not being applicable since the Featherston act, our conclusion necessarily is that such assignment of error is not well taken.\\nThe ultimate issue cf fact under the Featherston act being the single question whether the fire was set out or originated from sparks or coals (cinders), singular or plural, thrown or dropped from an engine or engines of the railroad company, manifestly, as above noted, any evidence tending to prove such fact is admissible. Evidence to the effect that the engines of the railroad company indiscriminately, without exception (which would of course prima facie include the identified engines aforesaid), throw spares at the locality in question, clearly was evidence tending to sustain said issue in behalf of the plaintiff and hence was admissible. It was not conclusive evidence in itself, but admissible to be weighed and considered by the jury in cont ection with all the other evidence in the case.\\n2. Was it error in the court, in its first ruling as to the a imissibility of evidence of sparks and cinders being thrown out and fires started, to have said: \\\"I think it admissible but not on the ground of showing that the engines were defective, but showing that at that point the railroad company had thrown out fire on other occasions and therefore\\\" that it is possible for it to have thrown out fire at this time?\\nThe objection to this ruling of the appellant is to the use of the word possible therein. It is urged that this being the first ruling of the court on the admissibility of such evidence, although the court did in later rulings on the same subject substitute the word \\\"liable\\\" for \\\"possible,\\\" the first ruling was calculated, and, as appellant contends, did leave the impression on the minds of the jury, that if the evidence showed a bare possibility that the two engines in question threw the sparks, the jury might consider the evidence as sufficient to warrant their finding in favor of the plaintiff, whereas the true rule is that the evidence must be sufficient to show such fact by a clear preponderance before the jury had the right to consider it in favor of the plaintiff.\\nIt is admitted that the trial court correctly instructed the jury on the point under consideration, by one of the instructions given after the evidence was all in, but it is insisted that this could and did not remove the erroneous impression aforesaid.\\nIn the view we take of it, the objection to this ruling of the court was not well taken. It seems to us that the use of the word possible was not unfavorable to the appellant. What the court said in the ruling in question had not the remotest reference to the matter of what it was necessary for the plaintiff to prove in order to recover. The court ruled the evidence admissible on the issue as to whether the railroad company in fact set out the fire, as consisting of evidence of circumstances tending to prove that fact, to the extent of showing that such fact was possible. The court did not say or indicate to the jury that if the plaintiff stopped there she could recover. It was a step in her proof, and certainly a necessary step to establish that it was at least possible for the fire to have been set out by the railroad company, before she could ask that her other evidence be considered on the issue before the court. The use of the word possible by the learned trial judge was indeed but an extremely careful and guarded manner of statement, lest he should create an impression adverse to the appellant; and was less likely to have prejudiced the railroad company, than the use of the word \\\"liable\\\" employed later on in connection with the same ruling as to the admission of similar evidence, to which no objection is urged. The use of the word \\\"liable\\\" went farther than \\\"possible\\\" in the statement of what might be the effect or weight of the evidence ruled upon, and manifestly the use of the word \\\"possible\\\" in the first instance by the learned trial judge, was as above indicated, out of abundant precaution lest he create an impression on the minds of the jury that they might consider such evidence as going beyond the step of showing that the throwing out of fire by the engines at the point in question was possible.'\\nHowever, and further, it seems clear to us, in view of the admittedly correct instruction given by the trial court on this point, that it does not affirmatively appear from the record that the jury was misled by this ruling or would or could, in accordance with the evidence, have rendered a different verdict from what they did, and hence the error in such ruling, if there was one, was harmless. Standard Paint Co. v. Vietor, 120 Va. 595, 91 S. E. 752.\\nOmitting reference, to the instructions which involve the question first above considered and passed upon, the questions raised by the assignment of error based upon the action of the trial court in giving and refusing instructions will now.be considered.\\n3. Was instruction No. 3, given at the instance of the plaintiff, contradictory in terms, or calculated to mislead the jury into believing therefrom that it was instructed that the railroad company was liable, unless it appeared from the evidence that there was no other p-robable cause for the fire?\\nInstruction No. 3 referred to is as follows:\\n\\\"3. (Given.) The court further instructs the jury that the burden of proof is upon the plaintiff to show by clear and affirmative testimony that the defendant set out the fire, the court telling the jury that it is not sufficient for the plaintiff to show that it was possible for the defendant to have started the fire but it must appear from the evidence that there was no other probable cause for the fire.\\\"\\nWhen read in connection with instruction No. 4, which was given by the trial court, it is clear that instruction No. 3 is not amenable to the objections urged against.it which are indicated in the question under consideration. Instruction No. 4 is as follows:\\n\\\"4. (Given.) The court instructs the jury that before the plaintiff can recover in this case the evidence must be such as to show more than a mere probability'that the property was destroyed by sparks of fire or cinders set out by an engine of defendant company, and it is not necessary to prove it'beyond- a reasonable doubt. If it is shown affirma\\u00bb tiv-ely by a clear preponderance of the evidence that the fire was caused by sparks or coals or cinders emitted from an engine of defendant, the proof is sufficient.\\\"\\nHence this question must be answered in the negative.\\n4. Was it error in the trial court to refuse instruction A. offered by the railroad company?\\nInstruction A. referred to is as follows: \\\"A. (Refused, except as modified in instruction given). \\\"The court in* structs the jury that the burden of proving that the fire complained of in the plaintiff's declaration was caused by the engine or engines of defendant company is on the plaintiff and must be proven by a preponderance of all the testimony to the satisfaction of the jury. It is not sufficient for the plaintiff to show a probability that the fire was so0 caused, nor can the jury presume from the happening of the fire that it was caused by the defendant company's engine or engines. In other words, the court means to tell the jury that it is incumbent upon the plaintiff to show how and why the fire occurred, and the plaintiff cannot leave the jury to the determination of the question by conjecture, guess or random judgment or upon mere supposition.\\\"\\nThe provisions of this instruction were substantially ana fully covered by instructions Nos. 1, 3 and 4 given by the trial court. Instructions Nos. 3 and 4 are above quoted. Instruction No. 1 was as follows:\\n\\\"1.(Given.) The court instructs the jury if they believe from the evidence that the plaintiff in this case sustained damage from a fire occasioned by sparks, cinders or coals emitted or thrown from an engine of defendant, as alleged in the declaration, and that the defendant was a railroad company at the time of the said fire, then the plaintiff is entitled to recover of the defendant the damage so sustained at the date of the fire; and the plaintiff would be entitled to recover such damage without any reference to any insurance collected by the plaintiff.\\\"\\nCounsel for the railroad company say in this connection:\\n\\\"We invoke the principle again that when an instruction prepared by counsel for either party states a correct principle of law, then the party offering it is entitled to have it given in the language employed in it.\\\" This principle is subject to the well-settled qualification that when the jury have been fully and sufficiently instructed on a given point or points in a case, it is not error to refuse other instructions, though correct; on the same point or points. Luck, etc., Co. v. Russell County, 115 Va. 335, 79 S. E. 393; Bowman v. First Nat'l Bank, 115 Va. 463, 80 S. E. 95; Ney v. Wrenn, 117 Va. 85, 99, 84 S. E. 1; Eastern Motor Co. v. Apperson-Lee Co., 117 V\\u00e1. 495, 85 S. E. 479; Smith v. Stanley, 114 Va. 117, 130, 75 S. E. 742; Cutchin v. Roanoke, 113 Va. 452, 74 S. E. 403. As. stated by this court in Wygal v. Wilder, 117 Va. 896, 901, 86 S. E. 97: \\\"The practice of diminishing instead of multiplying instructions unnecessarily is rather to be commended than condemned.\\\"\\nIn regard to the following named provision in said instruction A., to-wit, \\\"Nor can the jury presume from the happening of the fire that it was caused by the defendant company's engine or engines,\\\" it should be said that this unquestionably enunciated a correct proposition of law. It could have had no helpful effect, however, if such an instruction had been expressly given in the instant case. It does not appear that the jury were asked in such case to apply such a presumption. On the contrary instructions Nos. 1, 3 and 4 clearly instructed them as to the law which negatived any such presumption. Moreover the instant case was not one in which the plaintiff was left by the evidence to rely upon such a presumption. She had other evidence in her behalf on the point. Hence the giving of such an instruction in such a case would have been confusing and misleading to the jury.\\nTherefore there.was no error in the refusal of the trial court to give such instruction.\\n5. Was it error in the trial court to refuse instruction B. offered by the railroad company?\\nInstruction B. referred to is as follows: \\\"B. (Refused as embraced in instruction given.) The court further instructs the jury that if it believes from the evidence that the fire complained of may have resulted from one of two causes, for one of which defendant is responsible, but not for the other, the plaintiff cannot recover, nor can the plaintiff recover if it is just as probable that the fire was \\u2022caused by the one as by the other cause.\\\"\\nThere was no evidence in the case to support this instruction. There were only two causes (cinder or spark) for, and two ways of the setting out of, the fire, as it in fact occurred\\u2014 (by origin on the right of way of the railway company or beyond it) as disclosed by the evidence (as above set forth in the summary of facts). For any and all of these the railroad company was responsible and liable in damages under the Featherston act, if the fire occurred in any or all of such ways. The rule invoked by the instruction, while well settled, has, therefore, no application to the instant case.\\nThe Instruction under consideration was evidently offered under the assumption that the evidence tended to show that there was still another cause for the fire, namely, that it was caused by the carelessness of boys playing cards in the buildings. There is no such fact testified to or shown in evidence, however, in the case. The only reference to any such matter is in the testimony of the husband of the plaintiff. He says that when he saw the fire \\\"I started down to Investigate thinking some boys might be playing cards.\\\" But what he saw on his arrival at the fire and the other evidence in the case entirely excluded any such hypothesis being supported by or being consistent with the evidence.\\nHence this instruction was also properly refused.\\n6. Was it error in the trial court to refuse instruction C. offered by the railroad company?\\nInstruction C. referred to is as follows: \\\"C. (Refused as covered so far \\u00e1s proper by instructions given.) The court further instructs the jury that if the plaintiff fails to establish by affirmative proof sufficient to satisfy reasonable and well-balanced minds any one fact necessary to prove that the fire was set out by the defendant company, they shall find for the defendant.\\\"\\nThe provisions of this instruction were substantially and fully covered by other instructions given by the trial court. What is said above on this subject in connection with instruction A., refused by the trial court, is deemed equally applicable, mutatis mutandis, to the instruction now under consideration.\\nHence there was no error in the refusal of this instruction.\\nWe come now to the question raised by the only remaining assignment of error which we have not passed upon, namely:\\n7. Was there error in the refusal of the trial court to set aside the verdict of the jury and grant a new trial?\\nThe above statement of evidence deemed to be material, and the above summary of facts, sufficiently answer this question in the negative, and a discussion thereof, it is believed, would needlessly prolong this opinion.\\nFor the foregoing reasons we find no error in the judgment complained of and it will be affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"4769844\", \"name\": \"Bottom v. Moore, Auditor\", \"name_abbreviation\": \"Bottom v. Moore\", \"decision_date\": \"1916-06-27\", \"docket_number\": \"\", \"first_page\": \"372\", \"last_page\": \"373\", \"citations\": \"119 Va. 372\", \"volume\": \"119\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:05:02.890777+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bottom v. Moore, Auditor.\", \"head_matter\": \"Wytheville.\\nBottom v. Moore, Auditor.\\nJune 27, 1916.\\n1. Public Officees\\u2014Increase of Salaries During Term\\u2014Constitutional Law.\\u2014Section 83 of the Constitution of this State forbidding the increase of the pay of State officers during their term of office, applies only to such officers as are mentioned in Article V of the Constitution as comprising the executive department* of the State government, and does not apply to officers whose positions are created and may be changed or abolished by the General Assembly.\\nOriginal application for a mandamus.\\nAwarded.\\nJames E. Cannon, for the petitioner.\\nJohn Garland Pollard, Attorney-General, for the respondent.\", \"word_count\": \"373\", \"char_count\": \"2260\", \"text\": \"By The Court.\\nThis day came again the parties, by counsel, and the court having maturely considered the petition of the plaintiff, the demurrer of the respondent, and the arguments of counsel, is of opinion, that section 83 of the Constitution of the State of Virginia, relied upon by the respondent in the first ground of his demurrer, applies only to such public officers as are specifically mentioned in Article V. of the Constitution as comprising the executive department of the State government and does not apply to officers whose positions, like that of the plaintiff, are created by and may be changed or abolished by the General Assembly; and the court is further of opinion that the respondent's second ground of demurrer, based upon an alleged violation of the Constitutional inhibition against special and private legislation is not only practically waived in the brief of the respondent's counsel but is also without merit.\\nIt is, therefore, adjudged and ordered that a peremptory writ of mandamus do forthwith issue, directed to the said C. Lee Moore, Auditor of Public Accounts, commanding and requiring him to at once issue to the said Davis Bottom warrants for his salary as Superintendent of Public Printing for the month of March, 1916, and thereafter at the rate fixed by the .act of March 24, 1916; but no costs shall be taxed against the said respondent.\\nAnd it is further ordered that service of a copy of this order upon the respondent shall have the same force and effect as if a formal peremptory writ of mandamusfwas duly issued and served according to law.\\nMandamus Awarded.\"}"
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+"{\"id\": \"4811267\", \"name\": \"Carpenter v. Gray\", \"name_abbreviation\": \"Carpenter v. Gray\", \"decision_date\": \"1912-06-13\", \"docket_number\": \"\", \"first_page\": \"518\", \"last_page\": \"526\", \"citations\": \"113 Va. 518\", \"volume\": \"113\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T21:08:39.112064+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Carpenter v. Gray.\", \"head_matter\": \"Wytheville.\\nCarpenter v. Gray.\\nJune 13, 1912.\\nAbsent, Keith, P.\\n1. Assumpsit\\u2014Affidavit of Plaintiff\\u2014Code, Section 8286\\u2014Substantial Compliance.\\u2014Section 3286 of the Code, allowing the plaintiff in assumpsit, or his agent, to make affidavit as to the correctness of his claim, and debarring the defendant from any plea unless sworn to, was enacted to prevent the filing of sham pleas merely for delay; and a substantial compliance with its provisions is all that is required. The strict rule applied in construing affidavits in attachment cases in equity, where the jurisdiction of the court is involved, is not to be applied to the affidavit allowed by said section; but, even if it were, it sufficiently appears in the case at bar that the affidavit was made by the plaintiff in the action.\\n2. Assumpsit\\u2014Code, Section 8286\\u2014Defendant's Affidavit\\u2014Waiver\\u2014Estoppel.\\u2014A plaintiff, in an action of assumpsit, may waive, or be estopped from asserting, his right to have judgment entered in his favor for the amount claimed by him in the affidavit filed with his declaration under section 3286 of the Code, although the defendant has failed to comply with the provisions of that section which entitle him to make defense to the claim asserted, and such waiver may be express or implied. Under the facts of the case at bar, however, the plaintiff has neither waived, nor is he estopped from asserting, his right to have judgment entered in his favor.\\n3. Assumpsit\\u2014Code, Section 8286\\u2014Defendant's Affidavit\\u2014Waiver\\u2014Continuance\\u2014Errors of Clerk.\\u2014In opposing a motion for a continuance made by a defendant in assumpsit, who has not complied with the provisions of section 3286 of the Code, it is not necessary for the plaintiff\\u2019s counsel to call defendant\\u2019s attention to the fact (which a casual observation of the plaintiff\\u2019s pleading would have disclosed) that there was an account and affidavit filed with the declaration. Neither is it his duty to ask the court to correct the errors of the clerk, either in taking the rules or in placing the case on the wrong docket. The plaintiff is not responsible for such errors of the clerk, and cannot be prejudiced by them.\\n4. Equitable Estoppel\\u2014Equal Knowledge of Parlies.\\u2014Where the facts relied on as working an equitable estoppel are known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel.\\n5. Office Judgments\\u2014Erroneously Set Aside\\u2014Continuance\\u2014Waiver.\\u2014 Consenting to or obtaining a continuance of the case after the court, against the objection of the plaintiff, has set aside an office judgment in his favor, and permitting the defendant to plead, cannot be regarded as a waiver of the plaintiff\\u2019s right to ask the court to re-hear and set aside the order vacating the office judgment, or to insist upon his rights as they existed before the office judgment was set aside.\\nError to a judgment of the Circuit Court of Brunswick county in an action of assumpsit. Judgment for the plaintiff. Defendant assigns error.\\nAffirmed.\\nThe opinion states the case.\\nMarvin Smithey, Richard B. Davis, and Richard Evelyn Byrd, for the plaintiff in error.\\nGeorge Mason and Turnbull & Turnbull, for the defendant in error.\", \"word_count\": \"3433\", \"char_count\": \"19416\", \"text\": \"Buchanan, J.,\\ndelivered the opinion of the court.\\nJ. E. Gray instituted his action of assumpsit against W. R. Carpenter, and such proceedings were had in the cause as resulted in a judgment in favor of the plaintiff for the amount claimed by him in his affidavit filed with his declaration in the cause. To that judgment this writ of error was awarded.\\nThe grounds of error assigned may be considered under two heads\\u2014first, the sufficiency of the affidavit filed under the provisions of section 3286 of the Code to entitle the plaintiff to the judgment rendered in his favor; and, second, whether, if the affidavit were sufficient, the plaintiff had, by his conduct, waived, or was estopped from relying upon, the provisions of that section.\\nThe facts material to the decision of these questions are, briefly stated, as follows: The plaintiff, in May, 1910, instituted his action, process was issued, and executed upon the defendant, returnable to the first June rules following, when the plaintiff filed his declaration, account, and affidavit. The rules taken in the case at that time were, \\\"Process Ret. Ex'd. Declaration Filed & C. 0.\\\" At the next rule day the rules were, \\\"C. O. C. & W. E.\\\" At the June term of the court the ease was placed upon the writ of inquiry docket, and, upon motion of the defendant, without filing any plea, the cause was continued, over the obj ections of the plaintiff. On the hearing of the motion to continue, no reference was made to the affidavit, or that the cause should be put upon the office judgment docket. After the adjournment of that term, at the instance of the plaintiff's counsel, the clerk entered an office judgment for the sum sued for, but with interest from January 1, 1910, instead of March 1, 1910, as claimed in the affidavit. At the next term the plaintiff moved the court, under the provisions of section 3451 of the Code, to correct the judgment as to the time from which it should bear interest. Thereupon the defendant moved the court, under section 3293 of the Code, to set aside the said office judgment, upon the ground that the affidavit was not sufficient, under the provisions of section 3286 of the Code, to authorize the entry of an office judgment.\\nUpon the hearing of these motions, which were considered together, the court being of opinion that the affidavit was not such as was required by section 3286, so as to avoid the necessity of a writ of inquiry, overruled the plaintiff's motion to amend, and set aside the judgment, and, upon the motion of the defendant, gave him leave to file three pleas in bar of the plaintiff's action, accompanied by an affidavit, as required by section 3286 of the Code. To all of which the plaintiff objected and excepted.\\nNothing seems to have been done in the cause after the September term until the April term, except to continue the cause. At the last-named term, upon motion of the plaintiff, the action of the court at its September term was re-heard, the clerk of the court was allowed to amend the rules in the cause so as to show that said affidavit was filed with the plaintiff's declaration, and a nunc pro tunc judgment was entered in favor of the plaintiff for the amount claimed in the said affidavit.\\nThe affidavit filed with the plaintiff's declaration was in the following words: \\\"I, Edwin C. Smith, a notary public in and for the county aforesaid, in the State of Virginia, do hereby certify that J. E. Gray this day personally appeared before me, and, after being duly sworn, made oath before me, in my county aforesaid, that the foregoing account against W. R,. Carpenter is just, true, and correct, and due to the best of the affiant's belief; and that, to the best of affiant's belief, the amount of his claim against the said W. R,. Carpenter is $2,800, and that the said amount is justly due, with interest thereon from the 1st day of March, 1910.\\\"\\nThis affidavit, it is claimed by the defendant, is not sufficient to entitle the plaintiff to the benefit of the provisions of section 3286 of the Code. That section, so far as material to the question under consideration, is as follows:\\n\\\"In 'an action of assumpsit on a contract, express or implied, for the payment of money (except where the process to answer the action has been served by publication), if the plaintiff file, with his declaration, an affidavit, made by himself or his agent, .stating therein, to the best of the affiant's belief, the amount of the plaintiff's claim, that such amount is justly due, and the time from which the plaintiff claims interest, no plea in bar shall be received in the case, either at rules or in court, unless the defendant file with his plea the affidavit of himself or his agent that the plaintiff is not entitled, as the affiant verily believes, to recover anything from the defendant on such claim, or stating a :sum certain less than that set forth in the affidavit filed by the plaintiff, which, as the affiant verily believes, is all that the plaintiff is \\u2022entitled to recover from the defendant on such claim. If such plea and affidavit be not filed by the defendant, there shall be no inquiry of damages, but judgment shall be for the plaintiff for the amount claimed in the affidavit filed with his declaration.\\\"\\nThe objections made to the affidavit are (1) that it does not .aver that the affiant was the plaintiff in the action, or his agent; (2) that it is not clear and unambiguous and does not conform to the plain terms of the statute; and (3) that it fails to state the time from which the plaintiff claims interest.\\nIt is insisted that the same strict rule of construction should .govern in construing the statute in question as has been applied in construing affidavits in attachment cases in equity, where the \\u2022courts acquire jurisdiction alone by force of the affidavit. Taylor v. Sutherlin-Meade Co., 107 Va. 787, 797, 60 S. E. 132; Damron & Kelly v. Citizens Nat'l Bank, 112 Va. 544, 72 S. E. 153, 154.\\nA substantial compliance with the provisions of section 3286 is all that is required. It was passed to remedy the well known evil of filing sham pleas for purposes of delay (Grigg, &c. v. Dalsheimer, &c., 88 Va. 508, 510, 13 S. E. 993; Spencer v. Field, 97 Va. 38, 41, 33 S. E. 380), and imposes no hardship upon the defendant. A substantial compliance with its provisions is all that is or should be required. See Jackson v. Dotson, 110 Va. 46, 65 S. E. 484, and cases cited.\\nBut, tested even by the strict rule of construction which has. been applied in attachment cases, the affidavit is clearly sufficient. It does not, it is true, in express terms, state that the affiant is the plaintiff in the action, but it uses language which plainly shows that he is the plaintiff, and that is sufficient. See Clinch River Min. Co. v. Harrison, 91 Va. 122, 21 S. E. 660. The plaintiff was J. E. Gray, the affiant was J. E. Gray, and the affidavit states that J. E. Gray made oath \\\"that the foregoing account against W. R. Carpenter is just, true, and correct, and due to the best of affiant's belief, and that, to the best of affiant's belief, the amount of his claim against the said W. R. Carpenter is $2,800, and that the said amount is justly due, with interest from the 1st day of March, 1910.\\\" The language quoted leaves no room for doubt that the affiant was the plaintiff; that the amount claimed was $2,800; that it was justly due, and that it bore interest from March 1, 1910. The fact that the account filed with the declaration claimed interest from January 1, 1910, does not affect the validity of the affidavit, since the date fixed by the latter was in favor of the defendant, and will control in entering up judgment if no defense be made.\\nThe other error assigned, in substance, is that, even if the affidavit be held sufficient, the plaintiff, by his conduct, has waived, or is estopped from relying upon, the benefit of the provisions of' section 3286.\\nIt is well settled that a plaintiff in an action of assumpsit may waive, or be estopped form asserting, his right to have judgment entered in his favor for the amount claimed by him in the affidavit filed with his declaration, as provided by section 3286, although the defendant has failed to comply with the provisions of that section which entitle him to make defense to the claim asserted. See Lewis v. Hicks, 96 Va. 91, 30 S. E. 466; Spencer v. Field, &c., 97 Va. 38, 33 S. E. 480; Price v. Marks, 103 Va. 18, 48 S. E. 499; Jackson v. Dotson, supra; Pollard & Haw v. Am. Stone Co., 111 Va. 147, 68 S. E. 266; Gring v. Lake Drummond Co., &c., 110 Va. 754, 67 S. E. 360. Such waiver may be made, as was said in Lewis v. Hicks, supra, either expressly or by implication by the plaintiff, or he may be estopped to take advantage of the defendant's failure to comply with the statute. In that case, the action of the plaintiff in taking issue upon a plea not accompanied by the affidavit required, instead of objecting to the plea, was held to work a waiver or an estoppel.\\nIn Jackson v. Dotson, supra, the plaintiff was held to have waived his rights to a judgment, as provided by that section, when he not only made no objection to the defendant's plea when tendered without a sufficient affidavit, but assented to, or accepted, without objection, a continuance of the case until the next term, with leave to the defendant to file within fifteen days the grounds of his defense.\\nPollard & Haw v. American Stone Co., supra, is to the same effect, where counsel for the plaintiffs in an action on the office judgment docket, knowing that the case would be contested, requested that a later day in the term be set for its trial, and the court, with the consent of counsel for the defendant, set the case for trial on a day subsequent to the fifteenth dajr of the term, on which last mentioned day the office judgment would ordinarily become final. In each of these cases the plaintiff expressly or impliedly assented or consented to proceedings in his case which showed that he was not insisting upon the defendant's complying with the terms of the statute in making his defense. In the case under consideration the proceedings in the cause relied on to establish the waiver or estoppel claimed are that there is no endorsement on the back of the declaration showing that the account and affidavit had been filed; that the rule docket does not show that they had been filed, and contained a statement when the common order was confirmed that there was to be a writ of inquiry; that the case was placed upon the issue docket of the court; that the plaintiff, in opposing the defendant's motion to continue the case, made no claim that an affidavit had been filed with the declaration, or that the case should be placed upon the office judgment docket. It is further claimed by the defendant that the account and affidavit filed with the declaration were' so attached to it that the defendant's counsel, in examining the declaration, would not be likely to see them; and that during the June term of the court one of the plaintiff's counsel had a conversation with the deputy clerk, which showed that the plaintiff's counsel were concealing the fact that the account and affidavit had been filed with the declaration.\\nWithout discussing in' detail the evidence that the plaintiff's counsel were attempting to conceal the fact that the account and affidavit were filed with the declaration, it is sufficient to say that they were so attached to it (the declaration ending on one' page and the account and affidavit being on the succeeding sheet) that both the clerk and the deputy clerk saw them when the declaration was filed and the rules taken upon it; and as to the conversation between the deputy clerk and the plaintiff's counsel, it appears from the deputy's testimony that it was a mere casual conversation, to which he paid no particular attention, and the attorney testified that not a word was said about this case in the conversation referred to by the deputy clerk. Under these circumstances, neither the manner in which the account and affidavit were attached to the declaration when filed nor the conversation of the plaintiff's counsel with the deputy clerk can have any weight in determining the question of waiver or estoppel.\\nDo the proceedings at rules and in court establish the waiver or estoppel relied on? As we have seen, the declaration, with the account and affidavit, were properly filed at rules by the plaintiff. He did nothing more in the case until the defendant made his motion to continue the cause at the June term. This motion he opposed, but the court overruled his objection and continued the cause. Up to that time it is clear that he had done no act upon which could be predicated a waiver or estoppel, unless it be, as the defendant insists, that in opposing the motion and insisting upon a trial of the cause he did not inform the defendant that an account and affidavit had been filed, and ask that the case should be placed upon the office judgment docket. It manifestly was not incumbent upon the plaintiff to inform the defendant that there was an account and affidavit filed\\u2014a fact which a casual, much less a careful, examination of the plaintiff's pleading (the original of which is before the court) would have shown, and which the plaintiff had the right to assume the defendant knew, and which, in the exercise of ordinary care, he ought to and would have known. Neither was it the duty of the plaintiff, in opposing the motion to continue, to ask the court to correct the errors of the clerk, either in taking the rules in the case or in placing it upon the wrong docket. These were errors of the clerk, for which the plaintiff was in no wise responsible, and which could not deprive him. of his rights under section 3286. Price v. Marks, 103 Va. 18,, 21, 48 S. E. 499.\\nIn the case cited it was held that, if, through error, the case be placed on the writ of inquiry docket, and unsworn pleas be filed,, and the case continued to another term, and the plaintiff then moves to strike out the pleas because not sworn to, and the trial court overrules the motion and compels a trial on the pleas, which results in a verdict and judgment for the defendant, the verdict and judgment should be set aside, the pleas stricken out, and judgment entered for the plaintiff.\\nUnder the facts disclosed by the record, it cannot be said that the plaintiff intended to waive his right to a judgment under the provisions of section 3286 of the Code. Neither do the facts make out a case of equitable estoppel. Without discussing generally the requisites necessary to constitute such an estoppel, it is sufficient to say that there is one essential element lacking in this case\\u2014viz., that the party claiming to have been influenced by the conduct of the other to his injury was himself not only destitute of knowledge of the facts, but was destitute of any convenient and available means of acquiring such knowledge; and that where the facts are known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel. See 2 Am. & Eng. Ency. L. (2d ed.) 434, cited with approval in C. & O. Ry. Co. v. Walker, 100 Va. 69, 92-3, 40 S. E. 633, 914.\\nAfter the circuit court had, at its September term, 1910, set aside the judgment entered in the cause by the clerk during the preceding vacation, and permitted the defendant to plead, the plaintiff agreed to a continuance at one term of the court, and asked for a continuance at another. These acts of the plaintiff, it is also insisted, were waivers of his right to have judgment under section 3286.\\nConsenting to or obtaining a continuance of the case, after the circuit court had set aside his office judgment and permitted the defendant to plead, cannot be regarded as a waiver of his right to ask that court to rehear and set aside the orders made by it at the September term, or to insist upon his rights as they existed when the cause was continued over his objection at the June term. Gring v. Lake Drummond, &c. Co., supra.\\nUpon the whole case, we are of opinion that there is no error in the judgment complained of to the prejudice of the defendant, and that it must be affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"4843149\", \"name\": \"John T. Watkins v. James K. Hall\", \"name_abbreviation\": \"Watkins v. Hall\", \"decision_date\": \"1934-01-11\", \"docket_number\": \"\", \"first_page\": \"924\", \"last_page\": \"933\", \"citations\": \"161 Va. 924\", \"volume\": \"161\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"John T. Watkins v. James K. Hall.\", \"head_matter\": \"Richmond\\nJohn T. Watkins v. James K. Hall.\\nJanuary 11, 1934.\\nPresent, All the Justices.\\nThe opinion states the case.\\nCharles Pickett and Eppa Hunton, IV, for the plaintiff in error.\\nGardner L. Boothe and McGuire, Riely & Eggleston, for the defendant in error.\", \"word_count\": \"2685\", \"char_count\": \"15478\", \"text\": \"Holt, J.,\\ndelivered the opinion of the court.\\nThis is a habeas corpus proceeding in which John T. Watkins, a citizen of California, seeks relief froni detention, charged to be unlawful, in the Westbrook'Sanitarium, a private institution devoted to the treatment of nervous and insane patients, conducted by Dr. James K. Hall.\\nApplication was originally made to the Circuit Court of Henrico county, which denied the relief prayed for. Mr. Watkins is a veteran of the Spanish-American War and of the World War, and has been retired from the United States Coast and Geodetic Survey with th\\u00e9 rank of commander. His retirement pay, pension and disability payments approximate $400 a month. He has other property. The cost of his maintenance at Westbrook is $50 a week.\\nOn December 12, 1931, in the Corporation Court of the city of Alexandria, on petition of his sisters, Elizabeth Rosson and Emma Watkins Evans, he was adjudged to be a drug addict and was committed to Westbrook Sanitarium. In accordance with that order he was taken there. His nephew, John W. Rosson, was appointed committee for his estate. On April 2,1932, another inquisition was had at which he was adjudged insane by a commission composed of William Newsome, Jr., a justice of the peace for Henrico county, and Drs. Howard R. Masters and Beverley R. Tucker, and was committed to Westbrook Sanitarium, in which he already was. On July 16, 1932, he was again adjudged insane by a commission composed of H. W. Bates, Jr., a justice of the peace for Henrico county, and Drs. R. K. Foxwell and Joseph R. Jordan,-and was again committed to that sanitarium. On January 16, 1933, he was again adjudged insane by a commission composed of Hugh W. Davis, a justice of the peace for Henrico county, and Drs. Beverley R. Tucker and How;ard R. Masters, and was again committed to that institution. In it he has been continuously confined since December, 1931.\\nThe writ in this case issued on April 1, 1933, and on April 18, 1933, this order was entered by the Circuit Court of Henrico county:\\n\\\"This 18th day of April, 1933, John T. Watkins was brought into court by James K. Hall, of Westbrook Sanitorinm in the county of Henrico, Va., in obedience to the writ of habeas corpus ab-subjiciendum awarded on the 1st day of April, 1933, and directed to the said James K. Hall, and thereupon this cause came on to be heard on the petition of John T. Watkins and the answer thereto of James K. Hall, both being duly sworn to, and on the testimony of the petitioner, on his own behalf and Edmund P. Ellis, and R. D. Chase on behalf of the petitioner, and on the testimony of John W. Rosson, Jr., Dr. James K. Hall and Dr. Beverley R. Tucker, on behalf of the respondent, all taken orally in open court, on exhibits Nos. 1, 2, 3 and 4 file with the testimony of John W. Rosson, Jr., and the record of the proceedings of an inquisition conducted by Hugh W. Davis, justice of the peace of the county of Henrico, and Dr. Beverley R. Tucker and Dr. Howard R. Masters, on the 16th day of January, 1933, in which the petitioner was adjudged insane, and on the order of committment issued by Hugh W. Davis, justice of the peace, on the 16th day of January, 1933, directed that the petitioner be committed to Dr. O. B. Darden or Dr. J. K. Hall, the superintendent of Westbrook Sanitorium at Brook Hill, Va.;\\n\\\"And it was also shown to the court that on the 2nd day of December, 1931, that the petitioner was adjudged a drug addict by commission composed of George S. French, a justice of the peace of Alexandria, Va., and Dr. Hugh McGuire and Dr. Llewellyn Powell, and committed to Westbrook Sanitorium for treatment; that on April 2, 1932, he was adjudged insane by a commission composed of William Newsome, Jr., justice of the peace of the county of Henrico, and Drs. Beverley R. Tucker and Howard R. Masters, and committed to Westbrook Sanitorium, and that July 16,1932, the petitioner was adjudged insane by a commission composed of H. W. Bates, Jr., justice of the peace of the county of Henrico, and Dr. R. K. Foxwell and Joseph R. Jordan, and committed to West-brook Sanitorium; and that the petitioner in consequence of the aforesaid committment has been kept at West-brook Sanitorium continuously since December 2, 1931.\\n\\\"Upon consideration whereof, and upon argument of counsel, the court being of the opinion that the petitioner is a person of unsound mind, and that he is not illegally imprisoned, confined, detained, and restrained of his liberty without lawful authority, as in said writ recited. It is ordered that the writ of habeas corpus ab-subjiciendum, awarded as aforesaid, be quashed and that the petitioner be remanded to the care of James K. Hall, of Westbrook Sanitorium in the county of Henrico, Va., to which action of the court the petitioner by counsel excepts.\\\"\\nNotwithstanding this order, the judge did think, as shown by bill of exception No. 2, that Code, section 1020, forbade the detention of an insane person in a private institution for more than four months. This is that bill duly signed:\\n\\\"Re it remembered that at the conclusion of the evidence in this case, the court stated in the presence of counsel that in its opinion section 1020 of the Code of Virginia prohibited the detention of an insane person in a private institution for a period of more than four months, but that from the evidence of the physicians it was of the opinion that the petitioner was insane and that therefore the petitioner should not be released, but that the legality of his detention should be settled by the Supreme Court of Appeals of Virginia, and for this reason the petitioner should not he discharged from custody, to which action of the court counsel for the petitioner excepted, and tendered this his bill of exception No. 2, which he prays may be signed, sealed and made a part of the record in this case, and the same is accordingly done this 16th day of June, 1933.\\\"\\nSo much of said Code, section 1020, as is pertinent reads:\\n\\\"If the justices find that the patient is an insane, epileptic oi' inebriate person and oxxght to be confined, they xnay, upon request of the patient's friends, commit said patient to a private sanitarium, there to be confined until removed by his or her friends or discharged by the physician iix charge of such institutioxx; but in no event shall such patient be kept in any such institution for a period exceeding four months.\\\" (Italics supplied!.)\\nThis statute first appears in the Acts of 1904, ch. 240, p. 349, and is perfectly unambiguous on its face. So ixixxch is coxxceded. But it is said that from it these unreasonable results follow:\\n\\\"If fixe constx'xxction of the statute here sought be souxxd, then it will result that an insaxie man, able to pay for private care under skillful physicians who thoroughly understand his case, but who require more than four months to effect a cure, may, on his own motion, be removed froxxx a private sanitax'iuxn contrary to the best judgment of those most deeply interested ixx his welfare and committed to the cxxstody of 'friends,' or placed in a public institution where all beneficial results of the care theretofore givexx hinx may be lost. All this, no matter what his condition may be\\u2014whether his insanity be of a mild nature or such as to x'ender him a dangeroxxs xnaniac,\\\" and that into it should be read some provision to the effect that at the expiration of each four-moxxth period there might be a new comxnitment by some legally constituted tribunal.\\nIt is elexnentary that we look to the intentioxi of the legislature ixx coxxstruing its xxxandates, and at times the letter of the statute is xxot followed.\\nIn Town of Falls Church v. Board of Sup'rs of Fairfax County, 151 Va. 672, 144 S. E. 870, 873, the court quoted with approval this statement froxxx Black on Interpretation of Laws, p. 48:\\n\\\" 'A statxxte should be constx'ued with reference to its spirit axxd reasoxx; and the courts have power to declare that a case which falls within the letter of the statute is not governed by the statute, because it is xxot within the spirit and reason of the law, and the plain intention of the legislature.' \\\" See, also, Buzzard v. Commonwealth, 134 Va. 641, 114 S. E. 664; Church of the Holy Trinity v. United States, 143 U. S. 457,12 S. Ct. 511, 36 L. Ed. 226 ; 25 R. C. L. 959.\\nThis general principle may be conceded, but the rule invoked is subject to another equally well established.\\nIn Floyd, Tr. v. Harding, 28 Gratt. (69 Va.) 405, Staples, J., said:\\n\\\"While in the construction of statutes the constant endeavor of the courts is to ascertain and. give effect to the intention of the legislature, that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity. Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed. The authorities in support of this principle are almost innumerable. It is unnecessary to cite them, as they may be found in Dwarris on Statutes, 181-4, 209 ; 2, 204-5, 208.\\\" London Bros. v. National Exchange Bk., 121 Va. 460, 93 S. E. 699; Commonwealth v. Rose, 160 Va. 177, 168 S. E. 356; Caminetti v. United States, 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168.\\nDoes literal application of the language used lead to absurd results? We think not.\\nIt is the deliberate declaration of a sound public policy. State hospitals for the care of the insane can have but one purpose and that is to cure and discharge the patient at the earliest possible moment. In no conceivable circumstances can they be benefited by the prolonged detention of these unfortunate citizens. When we come to private institutions the situation changes. Primarily they are established for profit and usually a full complement of inmates is necessary to effect their purpose. The element of private profit is necessarily present and is lessened when the patient goes. It should by no possibility contribute to his detention. The State, within the limits of its power, has undertaken to protect those who cannot protect themselves, and will delegate this right to no private interest. It is not by chance that the statute is framed to prevent what would be, in effect, a permanent commitment to a private institution. This general purpose and policy is not affected by the fact that there are institutions like that in judgment under the control of high-minded gentlemen. Unfortunately it is still true that \\\"when self the wavering balance shakes, it's rarely right adjusted.\\\"\\nThe statute is in a high degree mandatory. \\\"In no event\\\" can the commitment be for more than four months. When a patient is insane and has been committed, and where there is no suggestion of his recovery, a recommitment and particularly recommitments from time to time to circumvent this four months' limitation are but idle gestures, deliberately designed to accomplish what the statute has told us shall not be done.\\nIf the patient Is an inebriate or addicted to the use of drugs, he cannot be detained for more than four months without his written consent entered of record. Code, section 1071.\\nAmple statutory provision is made for the disposition of insane people where permanent detention in a public hospital is deemed undesirable.\\n\\\"Except in the case of a person charged with crime and subject to be tried therefor, or convicted of crime and subject to be punished therefor, the superintendent of any hospital or colony, or the circuit court of any county or corporation court of a city, may deliver any insane or epileptic person, confined in such hospital or colony or the jail of such county or city, to any friend who will give bond, with surety, to be approved by the court or superintendent of any hospital or colony, with the condition to restrain, maintain and take proper care of such person without expense to the Commonwealth of Virginia, or any subdivision thereof; and where an insane person, except as aforesaid, is deemed by the superintendent of a hos pital both harmless and incurable, the superintendent may deliver him without such bond to any friend who is willing, and in the opinion of the superintendent able and a suitable person, to take care of him without cost to the Commonwealth; .\\\" Code, section 1040.\\nPatients may likewise be released on furlough. \\\"The superintendent of any hospital or colony may furlough any patient therein and place him under the care of his committee, relative, friend or other responsible or proper person, or without such care, for a period to be determined by said superintendent.\\\" Code, section 1041. That section goes on to provide that bonds may be required, conditioned for the patient's proper care and that they be returned to the hospital upon the demand of the superintendent.\\nWhenever a patient is released under bond as provided for in said section 1040, he who gives it may place his ward in a private institution or make such other arrangements as seem wise for his care and custody, but under it he is responsible for any abuse of the trust imposed upon him. In such a case a private institution takes under a private arrangement with the bondsman and not under a public commitment. The State, however, retains the power to supervise and to see that the trust imposed be not abused. If immediate permanent private commitments could be had, supervision by the State, which might be at times necessary to prevent abuses, would be impossible.\\nSpecial provision is made for the disposition of non-resident insane. Commitments are had, as in the case of residents, after which \\\"the superintendent in one case and the court to whose jail he may have been committed in the other, shall, as soon as practicable, cause him to be returned to his friends, if known, or the proper authorities of the State or country from which he came, if ascertained, and such return be by the said superintendent or court deemed expedient or practicable; .\\\" Code! section 1030.\\nIt will be observed that as to them no bond is required.\\nWhat shall be done with the petitioner? The West-brook Sanitarium has no right to his custody, but he is insane and has been legally adjudged to be insane. His interest and public interest both require that he be not liberated. That plan should be followed which should have been followed long ago, certainly which should have been followed within four months after he was adjudged insane. Had that been done he would have been sent to the Western State Hospital at Staunton. He should now be sent there at his expense and dealt with as provided for in said section 1030 of the Code. He is to be \\\"returned to his friends.\\\"\\nWe have purposely refrained from discussing the relative claims and charges of those who are candidates for his custody. The legality of his detention alone is in issue here. The superintendent of the Western State Hospital should, and we know that'he will, weigh these claims with discriminating care, and will be governed by the interest of his ward alone.\\nThe judgment appealed from is reversed, and it is so ordered.\\nReversed.\"}"
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+"{\"id\": \"4866245\", \"name\": \"George E. Mann v. W. C. Crenshaw and Company, Incorporated\", \"name_abbreviation\": \"Mann v. W. C. Crenshaw & Co.\", \"decision_date\": \"1932-03-24\", \"docket_number\": \"\", \"first_page\": \"193\", \"last_page\": \"226\", \"citations\": \"158 Va. 193\", \"volume\": \"158\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T19:11:36.409472+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"George E. Mann v. W. C. Crenshaw and Company, Incorporated.\", \"head_matter\": \"Richmond\\nGeorge E. Mann v. W. C. Crenshaw and Company, Incorporated.\\nMarch 24, 1932.\\nPresent, Campbell, C. J., and Holt, Epes, Hudgins and Browning, JJ.\\nThe opinion states the case.\\nJ. H. Rives, Jr., and William T. Muse, for the plaintiff in error.\\nThomas A. Williams and L. C. O\\u2019Connor, for the defendant in error.\", \"word_count\": \"9682\", \"char_count\": \"55699\", \"text\": \"Epes, J.,\\ndelivered the opinion of the court.\\nThis controversy grows out of the shipment in February, 1927, by George E. Mann, trading as George E. Mann and Company,, of ten carloads of lettuce, each containing 320 crates, from Imperial Valley, California, to W. C. Crenshaw & Company, Incorporated, a commission merchant, Richmond, Virginia, to be sold upon consignment.\\nGeorge E. Mann will be hereafter referred to as Mann, and W. C. Crenshaw & Company, Incorporated, as Crenshaw.\\nIn June, 1930, Mann instituted, by notice of motion for judgment, his action in the Law and Equity Court of the city of Richmond, Part Two, against Crenshaw seeking to recover $2,358.00 which he claims to be due to him from the defendant on account of the ten cars of lettuce. Mann contends that Crenshaw guaranteed to him on each car a minimum net return of $1.15 per crate plus $25.00 per car for top icing and lining car with paper; making an aggregate of $393.00 per car; that Crenshaw has paid him the minimum guaranteed return on four cars, aggregating $1,572.00, but has refused to pay him the minimum guaranteed return, or any sum, on six of the cars, aggregating $2,358.00; and that Crenshaw now owes him this sum.\\nCrenshaw pleaded the general issue and a special plea of set-off. No grounds of defense were called for or filed.\\nThe special plea filed by Crenshaw alleges:\\n\\\"At and before the tim.es of the shipment of the lettuce in question the plaintiff entered into an agreement with the defendant to ship said cars of lettuce to it, the defendant, upon consignment, the said lettuce to be of such quality and condition as to 'top all market/ the said consignment being upon condition that for such quality lettuce the defendant was to pay a guaranteed advance of one dollar and fifteen cents ($1.15) per crate and to make returns to the plaintiff after the sale of the lettuce for any difference that the lettuce would be sold for, less the commissions and expenses of said defendant in the handling of said lettuce.\\n\\\"The said plaintiff failed to comply with the agreement in that the lettuce instead of being of a quality and condition 'to top all markets' was of an inferior quality, bad condition, rotten and decayed and because thereof the defendant, instead of realizing the top market price for said lettuce, was compelled to, and did, sell the lettuce for less than the prevailing market price for lettuce of the kind and condition represented by the plaintiff.\\\"\\nThe advances made by Crenshaw to Mann by the payment of four drafts drawn by Mann exceeded by $737.71 the net proceeds of all ten cars; and, therefore, Mann is indebted to Crenshaw for $737.71, for which judgment is prayed.\\nOn the witness stand, however, Mr. W. C. Crenshaw testified that the correct amount claimed by Crenshaw to be due to it from Mann was $699.65.\\nMann made a general replication to the special plea.\\nThe verdict of the jury was: \\\"We the jury on issue joined find for the defendant damages in the sum of $699.65;\\\" upon which verdict the court entered judgment. To this judgment a writ of error has been allowed to Mann.\\nAll communication between Mann and Crenshaw relating to the shipment and handling of these cars was by telegrams, except one letter dated January 7, 1927; and the agreement between the parties relative to the consignment of these, cars is to be found in these telegrams.\\nThe negotiations between the parties were opened by Crenshaw who, on December 30, 1926, telegraphed Mann: \\\"Our iceberg market two seventy-five three dollars would like handle your account here again this season. To which Mann replied by letter dated January 7, 1927:\\n\\\"Gentlemen:\\n\\\"Relative to your day letter of the 30th ult. regarding out lettuce in your market, we are not making any consignment deals on this commodity.\\n\\\"If you should desire to purchase believe you should be able to secure a premium on our lettuce as we are very careful in the grading and packing and make an effort to have our lettuce bring a premium on the eastern markets, which will enable our customers to earn a good profit on their purchases from us.\\\"\\nBetween January 7th and 28th Crenshaw sent a number of telegrams to Mann quoting prices on fancy iceberg lettuce, and soliciting a, shipment on consignment, to none of which Mann replied.\\nBeginning with January 28th the following telegrams passed between the parties in the order below given:\\nCrenshaw to Mann, January 28, 1927: \\\"Fancy iceberg sold here today three fifty prospects good advise.\\\"\\nMann to Crenshaw, January 31, 1927: \\\"Appreciate your wire market information however we selling fob only quote liberty lettuce dollar thirty-five California acceptance know you can do well with our brand in your market in having constant supply our lettuce we shipping daily eastern connections their requirements. All report satisfaction plus. We bill cars open understanding drafts paid presentation should think this deal appeal yourselves.\\\"\\nCrenshaw to Mann, February 1, 1927, 12:36 P. M.: \\\"Answering order get started will pay your draft guaranteed advance dollar ten crate benefit market on car or two one today one tomorrow heavy fours as possible this deal ought appeal to you answer.\\\"\\nMann to Crenshaw, February 1, 1927: \\\"Appreciate your wire willing place consignment couple cars our liberty brand basis dollar fifteen guarantee plus top ice paper charges twenty-five dollars having no trouble getting dollar forty today as our lettuce being packed to top all markets if you can give us real service quick returns and willing make reasonable guarantees can give you good supply throughout deal answer quick as can give you car loading late tonight.\\\"\\n(Note: The evidence shows that \\\"fours\\\" means crates packed with lettuce of such size that four dozen heads fill standard crate, and \\\"fives\\\" means crates packed with lettuce of such size that five dozen heads fill standard crate.)\\nCrenshaw to Mann, February 1, 1927, 3:10 P. M.: \\\"Answering all right will guarantee dollar fifteen promise you real service quick returns advise.\\\"\\nCars 29334 and 36277 were shipped pursuant to above telegrams on February 1st and 4th, respectively. Both parties agree that in response to telegraphic communications between them the other eight cars were shipped by Mann to Crenshaw upon the \\\"same basis\\\" as the first two; but some of the telegraphic communications relative to the shipment of these eight cars are pertinent to the question, what was that basis?\\nCars 24898 and 19029 were shipped in response to telegrams from Crenshaw to Mann dated February 2nd, and cars 29975 and 27294 in response to telegrams from Crenshaw dated February 7th; but these telegrams throw no light upon the terms of the agreement between the parties.\\nOn February 9th Mann telegraphed Crenshaw relative to car to be shipped that day (No. 27294): \\\"Market advancing here today's price our liberty today dollar half account handling for growers we don't want take too much risk ourselves same time keep you supplied desire today's car be guaranteed advance dollar quarter plus top icing papering advise quick.\\\"\\nBut that night Mann telegraphed Crenshaw advising that car 27294 had been shipped, and saying: \\\"It is satisfactory dollar fifteen this car as were able handle growers this basis.\\\" To these messages Crenshaw replied February 10th: \\\"Answering dollar fifteen enough guarantee we think.\\\"\\nOn the night of February 10th, Mann telegraphed Crenshaw: \\\"Able ship couple more cars dollar fifteen guarantee Friday and Saturday.\\\"\\nTo which Crenshaw replied on February 11th: \\\"Answering let car come Friday one Saturday.\\\"\\nIn advising of the shipment of cars Mann gave the number of \\\"fours\\\" and the number of \\\"fives\\\" in the car; and in several telegrams Crenshaw had asked for more \\\"fours.\\\" On February 11th Mann telegraphed Crenshaw: \\\"Shipped today Pacific 2208 sizes 70 fours 250 fives expect larger sizes next week however please understand our pack of fives are put up with the thought they must be right in every respect and it is on our pack that we are able secure premium in eastern markets.\\\"\\nOn February 14th Crenshaw telegraphed Mann that it was willing to take two more cars if he could ship cars running 100 crates or less \\\"fives,\\\" adding, \\\"fives don't go well with this trade here.\\\"\\nTo which Mann replied the same day: \\\"Answering sizes now running generally to fives where tight pack made regular size crates used expect have some lettuce running around 130 fours balance fives Wednesday and Thursday altho soon fours will practically disappear for couple weeks heavy rains this afternoon delay much movement couple days please advise promptly.\\\"\\nIn reply to this telegram Crenshaw telegraphed Mann on February 16th to ship one car on 16th and to ship another on the 17th; but asked him to \\\"try load heavier fours.\\\" In response to these telegrams Mann shipped car 538 on the 16th and car 33283 on the 17th, which was the last car shipped.\\nThe dates of shipment and arrival at Richmond (or Greensboro for cars 29334 and 538), lapse of time between shipment and arrival, and dates of sale were as follows:\\nCar No. Shipped Arrived Days to Rich'd. Inspected Sold\\n29334 Feb. Feb. 13 12 Feb. 13 Feb. 13\\n36277 Feb. Feb. 16 12 Feb. 16 Feb. 17\\n24898 Feb. Feb. 18 13 Feb. 18 See below\\n19029 Feb. Feb. 18 13 Feb. 18 Feb. 18\\n29975 Feb. Feb. 22 14 Feb. 23 See below\\n27294 Feb. 9 Feb. 23 14 Feb. 23 About Meh. 1\\n2208 Feb. 11 Feb. 24 13 Feb. 25 See below\\n15789 Feb. 12 Feb. 27 15 Feb. 28 About Meh. 7\\n538 Feb. 16 Meh. 1 15 Meh. 1 Meh. 1\\n33283 Feb. 17 Feb. 26 9 Feb. 28 See below\\nCars 29334 and 538 were sold while en route to Anderson and Company of Greensboro, North Carolina, and stopped there.\\nThe date of sale of car 24898 is not given; but though this car arrived at Richmond on February 18th, it was not released to the railroad until March 10th.\\nCars 29975 and 27294 lay in Richmond from February 23rd to February 26th, and were then diverted by Crenshaw to Baltimore to Zimmerman to be sold on consignment. They arrived at Baltimore on March 1st. Car 29975 was refused by Zimmerman on account of the quality and condition of the lettuce, was sold by the railroad company for freight, and failed to bring enough to pay freight charges by $271.72.\\nCar 27294 was sold by Zimmerman on or about March 1st at $2.00 per crate, which he testifies was the best price he could get, though at that time he was getting on the average of $3.00 per crate for iceberg lettuce.\\nThe date of the sale of car 2208 is not given. But while this car arrived at Richmond on February 24th, it was not released to the railroad company until March 8th; and when sold $35.00 demurrage charges had accrued against Crenshaw, which were paid by him and charged to Mann.\\nCars 15789 and 33283 lay in Richmond until March 1st. On that date these two cars were diverted by Crenshaw to Baltimore. Car 33283 was diverted direct to Baltimore. Car 15789 was diverted first to Washington and then to Baltimore. Both lay in Baltimore until March 5th, when Crenshaw diverted car 15789 to Philadelphia and car 33283 to Jersey City, both being consigned to A. S. Cohen and Company for sale on consignment.\\nCar 33283 arrived at Jersey City on March 6th, was refused by Cohen on account of the condition of the lettuce, was sold by the railroad company for freight, and failed to bring freight charges by $373.57.\\nCar 15789 was sold by Cohen and Company between March 7th and 12th in Philadelphia at a gross price of $494.50 (sixty-two crates at $2.00, thirty at $1.75, 180 at $1.50 and forty-eight at $1.00).\\nThe uncontradicted evidence introduced by Crenshaw shows that there are four grades of lettuce known to and generally recognized by the trade, which are in descending order \\\"U. S. Fancy,\\\" \\\"U. S. No. 1,\\\" \\\"U. S. No. 2,\\\" and \\\"Unclassified.\\\" The specifications for the three U. S. grades are those prescribed by the United States Department of Agriculture. All lettuce not conforming to the specifications of one or the other of these grades is denominated \\\"Unclassified.\\\"\\nWhile the witnesses introduced by Mann do not in specific terms classify the lettuce shipped by Mann to Crenshaw, their evidence is to the effect that the grade of lettuce shipped by Mann to Crenshaw in each of the ten cars fell within the specifications of \\\"U. S. No. 1.\\\"\\nOn the other hand, Crenshaw introduced as witnesses the persons who saw and inspected the eight cars which arrived at Richmond. All these witnesses testify that the lettuce in none of these eight cars was up to the requirements of grade \\\"U. S. No. 2;\\\" and that- the lettuce hr all eight.cars was what is known to the trade as unclassified. Pearman testified that \\\"IT. S. Fancy\\\" is seldom quoted, and that the grade generally quoted is \\\"U. S. No. 1;\\\" but adds: \\\"U. S. Fancy is the kind of grade that brings the premium, tops the market, something a little better than U. S. No. 1.\\\"\\nThe witnesses introduced by Crenshaw who saw and inspected cars 29334 and 538 which were shipped and sold at Greensboro, North Carolina, testify as follows with reference to these two cars: Car 29334 was in good, sound, merchantable condition, except that it showed a little sunburn. It had no decay and no injury from freezing. It was about on the average for cars of iceberg lettuce with the exception of the sunburn. Though the refrigeration in car 538 was good, about twenty-five per cent of the lettuce in this car had started to decay. About one-third of the car had to be repacked, and about thirty crates thrown away as a total loss. The effect of the testimony as to car 538.is that when it arrived at Greensboro it could not be graded otherwise than as unclassified.\\nCrenshaw sold the two cars stopped en route at Greensboro before he had any knowledge of. the grade of the contents of the cars: They were sold at $2.75 per. crate, while Crenshaw had been quoting to Mann prices on Richmond market for fancy iceberg lettuce at from $3.00 to $3.50. No reduction was claimed by Anderson and Company on purchase of the first car. After inspection of the second car Crenshaw made an allowance, to Anderson and Company of twenty-five cents per crate, because of the inferior quality and bad condition of the lettuce.\\nThe witnesses introduced by Mann testified that they saw and inspected all these cars before they were shipped; that they were all properly iced for shipment to eastern markets, with ice in the crates; that a layer of chunk ice about four and a half inches thick (6,000 pounds) was put on top of the crates after they were packed in the car; and that the cars were paper lined and all plugs, hatches and ventilators properly closed.\\nMann testifies that lettuce shipped in cars so iced \\\"should remain in good marketable condition eleven to twelve days.\\\"\\nOn the other hand, witnesses Pearman and Crenshaw testify that a car of lettuce of good grade, iced as testified to by Mann, should keep in good condition about three weeks; and upon arrival in Richmond from California would still have, Crenshaw says, 4,500 pounds of ice over the top. Pearman says it would arrive with 2,000 pounds of ice over the top. They both testify that a lettuce will not keep in a car with only 500, 600, or even 1,200 pounds of ice over the top.\\nThe inspection reports on cars 29334 and 538 have been above indicated. So far as refrigeration was concerned both cars arrived with good refrigeration.\\nThe eight cars which arrived at Richmond were inspected by N. J. Furlong, inspector of the Moorehead Inspection Bureau. His reports, introduced in evidence by Crenshaw, show that the temperature of the lettuce in six of these cars was at top of car forty-two degrees and at bottom of car forty degrees; that in car 15789 top was forty degrees, bottom thirty-eight degrees; and that in car 29975 top was forty-four degrees and bottom forty-two degrees.\\nThe pertinent parts of Inspector Furlong's reports on the \\\"contents and condition\\\" of these cars are as follows:\\nInspection report (Furlong) car 36277, February 16th: \\\"Iceberg head lettuce packed in iced oil paper lined crates.\\\" Estimate 750 pounds chunk ice over top of load. Lettuce shows eighty-five per cent well headed to head, ten per cent partly firm and five per cent loose and light; thirty-five per cent tip burn affecting outer leaves only. Stumps rusted. Free from bursted beads. An occasional head affected by soft, slimy rot. No freeze injury.\\\"\\nInspection report (Furlong) car 24898, February 18th: \\\"Iceberg lettuce packed in iced oiled paper lined crates. Lettuce shows as follows: Seventy to seventy-five per cent hard to firm., twenty-five per cent fairly firm, five per cent loose and wasty; thirty to thirty-five per cent tip burn affecting outer leaves only; three to five per cent bursted heads. Stumps rusted; two per cent soft, slimy rot. No freeze injury.\\\" No comment on top icing of car is made.\\nInspection report (Furlong) car 19029, February 18th: \\\"Iceberg head lettuce packed in iced oiled paper lined crates. Approximately 750 pounds chunk ice over top of load, quality and condition generally good, showing seventy per cent firm., thirty per cent fairly firm, thirty to thirty-five per cent tip burned affecting outer waste leaves only. Good, crisp, clean stock. Stumps rusted. Free from all forms of soft rot. No freeze injury.\\\"\\nInspection report (Furlong) car 29975, February 23rd: \\\"320 crates iceberg head lettuce, Geo. E. Mann, brand Liberty, packed in standard iced oil paper lined crates. Lettuce shows sixty-five to seventy per cent firm, balance fairly firm to loose and poorly headed; twenty to twenty-five per cent tip burn affecting outer waste leaves only. Waste leaves show good green color with five per cent yellowing. No decay. No freeze injury. No ice over top of load.\\\"\\nThis car which arrived with no ice overhead, but with no decay, was permitted to he on the tracks in Richmond until February 26th, and then reshipped to Baltimore to Zimmerman, where it arrived on March 1st. No charge is made by Crenshaw against Mann for re-icing it. Crenshaw's witness Pearman says that if it was re-iced, it was at Crenshaw's cost, as the railroad does not re-ice such cars. Zimmerman, who was put on the stand by Crenshaw, testifies that he saw the car on or about March 1st; that it was \\\"well headed with outer leaves showing considerable decay and slime,\\\" and that the \\\"condition I saw was from age.\\\" Zimmerman refused the car on account of its condition and it was sold by the railroad for freight charges, which it failed to bring by $271.72.\\nCar 27294 was inspected February 23rd by Inspector Furlong and Inspector Lee. The pertinent parts of their reports are as follows:\\nInspection report (Furlong) car 27294: \\\"320 crates iceberg head lettuce, packed in iced oil paper lined crates. California head lettuce Liberty brand eighty-five per cent firm to hard, fifteen per cent fairly firm to loose, twenty to twenty-five per cent tip burn affecting outer leaves only. Stumps fresh, no decay. No freeze injury. 500 pounds chunk ice over top load.\\\"\\nInspection report (Lee) car 27294: \\\"About 500 pounds of ice over top of the load. California lettuce packed in standard, paper lined crates. Ice in center of crates. Iceberg lettuce. Quality and grade good to fair, small to medium sized, mostly firm, about fifteen per cent fairly firm, well headed, mostly clean and bright; twenty-five to thirty per cent show two to three outer leaves affected with tip burn. No decay noted.\\\"\\nThis car lay in Richmond until February 26th, when it was reshipped by Crenshaw to Zimmerman in Baltimore, Mr. Crenshaw in his testimony says, \\\"because we couldn't find sale for it in Richmond.\\\" This car arrived with only 500 pounds of top ice, while Crenshaw testifies it should have arrived with much more top ice. No charge is made by Crenshaw for re-icing the car.\\nInspection report (Furlong) car 2206, February 25th: \\\"320 crates of California head lettuce packed in standard iced oil paper lined crates. Liberty brand. Quality and condition good; eighty-five per cent firm, ten per cent fairly firm, five per cent fight and loose; twenty-five to thirty-five per cent slight tip burn affecting outer waste leaves only. Balance bright and clean. Stumps rusted. No decay, no freeze injury. 200 pounds chunk ice on top load.\\\"\\nThis car (2206), which arrived February 25th with only 200 pounds top ice, remained on the tracks unsold until $35.00 demurrage had accrued against it and was then sold; but there is no charge made by Crenshaw against Mann for re-icing it, nor does it appear from the evidence that any steps were taken by Crenshaw to protect the lettuce from deterioration while awaiting sale.\\nInspection report (Furlong) car 15789, February 28th: \\\"Liberty brand iceberg head lettuce packed in standard oil paper fined, iced crates. 600 pounds chunk ice over top of load. Lettuce shows fair as to quality and condition running eighty per cent firm, ten per cent fairly firm, ten per cent fight and loose; thirty-five to forty per cent of heads showing outer waste leaves slightly tip burned, stumps rusted, indicating age, no decay, no freeze injury.\\\"\\nThis car, which arrived at Richmond February 28th, was opened and inspected, and then reshipped to Baltimore and then to Philadelphia, where it arrived March 7th. No charge is made by Crenshaw for re-icing the car. When the car arrived in Philadelphia it was inspected by Inspector Binney, the pertinent parts of whose report, introduced by Crenshaw, reads:\\n\\\"Bottom of right door has no insulation on it\\u2014does not fit tight. Lightly iced over top of load. Top layer crates lightly iced in packs, other layers no ice. Temp. Commodity: Top forty-nine degrees, bottom forty-five degrees, outdoors forty-seven degrees. quality, description, etc: medium weight, five per cent fight weight spongy. Generally dull, mellow, overripe condition. Considerable outer loose leaves, fair trim. Outer leaves badly rusted, eight to twelve bursted heads per pack in four dozens. Poor quality. Grade: U. S. Unclassified. Decay: Door facings badly slimy three to five wrappers deep; top layer slimy one to two wrappers; balance lading two to three wrappers; leaves burnt black; twelve to twenty-five decay. Originally frozen over door facings, now thawed out and into slime decay; weak shipment, requires prompt disposition; twelve broken and mashed recoopered, four crates worthless and decayed thrown back in car.\\\"\\nWeiner, who looked at this car and car 33283 while they were in Baltimore, says of both cars: \\\"The lettuce was muddy, had dirt on them; they showed tip burn, decayed foliage, and also the heads were not well headed.\\\"\\nThis car (15789) was sold by A. S. Cohen and Company at various prices per crate (sixty-two at $2.00, thirty at $1.75, 180 at $1.50, and forty-eight at $1.00), the gross return being $494.50. They paid freight to Baltimore $495.16, additional freight $32.63, inspection and sampling and delivery charges $8.00, charged commission $34.61, and on March 12th billed Crenshaw for the loss on the car $76.10.\\nInspection report (Furlong) car 33283: \\\"Iceberg head lettuce in crates. No ice over load or in pack. Lettuce shows seventy-five per cent firm, twenty per cent fairly firm, five per cent loose and poorly headed; forty per cent of heads show outer leaves affected by slight tip burn; free from soft rot; four crates in doorway show from four to eight heads per crate with outer leaves decaying due to rubbing against door of car.\\\"\\nThis car was reshipped by Crenshaw on March 1st to Washington then to Baltimore, and then, on March 5th, to Jersey City, where it arrived March 6th. It was refused by Cohen and Company, to whom it had been consigned by Crenshaw, on account of the quality and condition of the lettuce. No charge is made by Crenshaw for re-icing the car.\\nSpeaking with reference to this car and car 15789, Weiner, the agent of Cohen and Company, who saw these cars first in Baltimore and then this car in Jersey City, says: \\\"The quality of the lettuce was poor. It showed tip burn, decay. It was full of sand, and the sand ate the lettuce right up. Some of the lettuce had split.\\\"\\nCohen and Company refused the car and it was sold by the railroad company for freight charges California to Richmond, Richmond to Washington, Washington to Baltimore, and Baltimore to Jersey City. The gross sale price failed to pay freight charges by $373.54. The record does not show gross amount received by the railroad or total amount of freight charges; but freight charges California to Richmond were $444.60.\\nThe only testimony which tends in the remotest degree to show that Crenshaw re-iced any of the cars received by him or took any steps to preserve the lettuce pending disposition thereof is this testimony on cross-examination of Crenshaw's employee, Pearman, who was introduced by Crenshaw:\\n\\\"Q. Now take that car 29975, that car was a car you diverted after it remained on the tracks here for four days. Now when you diverted those cars did you re-ice?\\n\\\"A. These particular cars I don't remember whether they were re-iced or not; but it was our practice to re-ice it when we diverted them and I am pretty sure they were re-iced, the way we attended to it when we diverted these cars.\\n\\\"Q. If you re-iced you would have made a re-icing charge, wouldn't you?\\n\\\"A. No, sir.\\n\\\"Q. You wouldn't?\\n\\\"A. No, sir. Who would we make it against? We couldn't sell them on this market on account of the condition and sent them to other markets to be handled to the best possible advantage. They wouldn't have paid any drafts.\\n\\\"Q. If you were receiving them on consignment why wouldn't you charge that back to the consignor?\\n\\\"A. I don't know that it wasn't done. I haven't got those records. Mr. Crenshaw can tell you whether they were charged back or not. I know the railroad doesn't attend to re-icing the top of lettuce. You have to do that yourself and the ice companies charge you.\\nA recapitulation of the sales, receipts, freight deductions (including demurrage), and deductions for commissions, drayage and other charges, and net proceeds, or loss, on these ten cars is as follows:\\nCar No. Price Per Crate Gross Return Freight Paid Commission Drayage & Charges Net Return Loss\\n29334 $2.75 $880.00 $445.60 $61.60 $ 372.80\\n36277 2.25 720.00 444.60 50.40 225.00\\n24898 2.25 720.00 444.60 65.40 210.00\\n19029 2.25 720.00 444.60 65.40 210.00\\n29975 Sold by railroad i n Baltim ore for freig ht $271.72\\n27294 2.00 640.00 496.16 44.80 99.04\\n2208 2.25 720.00 479.60 65.40 175.00\\n15789 494.50 527.99 42.61 76.10\\n538 2.50 800.00 445.60 32.00 322.40\\n33283 Sold by railroad i n Jersey City for fre ight 393.57\\nTotals $1,614.24 $741.39\\nTotal net returns from all ten cars 872.85\\n$1,614.24\\nCrenshaw paid the four drafts for $393.00 each drawn by Mann against cars 29334, 36277, 538 and 19029, making a total of $1,572.00. Mr. Crenshaw testifies that these drafts on cars arriving at Richmond were not paid until after Crenshaw had examined the car.\\nDeducting the net return above shown for all ten cars ($872.85) from the total amount of Mann's drafts paid by Crenshaw ($1,572.00) leaves a balance of $699.15, by which amount Crenshaw claims he has overpaid Mann. The jury's verdict was for $699.65. The unexplained difference of fifty cents seems to be due to an error in addition or subtraction.\\nThe three cars which were sold for less than freight charges and the car for which the smallest net return was gotten (car 27294) were all cars which Crenshaw reshipped to markets further north at increased freight charges and without re-icing them, though the testimony of the witnesses introduced by Crenshaw shows that they had no ice over the top or were not properly iced for further shipment. Pearman's testimony is wholly insufficient to show that these cars were re-iced; and the failure of Crenshaw to make any charge' for re-icing and the condition of the cars when they arrived at destinations to which they were reshipped warrant and require the inference that they were not re-iced.\\nThe place to which each of the four cars was reshipped, the number of days elapsing between date of inspection at Richmond and date of sale, the increased freight charges by reason of reshipment, and the net return or net loss are as follows:\\nCab Reshipped to Days prom Inspection to Sale Increased Freight Charge Net Return Net Loss\\n29975 Baltimore 7 or more $51.50 $271.72\\n27294 Baltimore 7 or more 51.50 $99.04\\n15789 Philadelphia 8 or more 83.39 76.10\\n33282 Jersey City 7 or more 83.39 a tleast 393.57\\nTotals $269.78 $99.04 $741.59\\nThough Mann had, on February 13th, 16th and 17th, telegraphed Crenshaw asking that he be advised of the prices being gotten for cars sold, Crenshaw had made no reply; nor had Crenshaw paid several of the drafts drawn by Mann against cars shipped. On February 18th Mann telegraphed Crenshaw asking him to pay the drafts drawn against cars 24898, 19029 and 2208, which his bank advised him had not been paid. To this telegram Mann received no reply. On February 20th Mann sent this night letter to Crenshaw: \\\"Please answer our Friday's night letter reference payment drafts referred therein also prices securing our lettuce understood at time make arrangements with you intended keep us fully posted on sales and prompt returns. Awaiting reply stating gross sales on various cars sold.\\\"\\nTo this telegram Crenshaw replied on February 21st, 12:15 P. M.: \\\"First car in sold two seventy-five we paying all drafts fast as cars arrive' stop receipts quite liberal however look for market clean up quickly.\\\"\\nAt the time this message of February 21st was sent four cars had been received and inspected, three of them had been sold, the price at which the second two were sold being fifty cents per crate less than the first car sold. Yet Crenshaw only advised Mann of the price received for the first car. No reason is to be found in the record for so misleading a telegram. It is to be further noted that he makes no complaint in this message of either the grade or condition of the lettuce shipped in these four cars, nor of the icing of the cars. The evidence further shows that no report was made by Crenshaw to Mann until after March 25th of either the gross or net returns of any of the other nine cars, though. Mann on February 26th, March 2nd and March 3rd asked for this information in his telegrams of those dates.\\nOn February 22nd Mann telegraphed Crenshaw asking whether he could handle other cars on the \\\"same basis\\\" for him. To this message Crenshaw replied on the 23rd: \\\"Glad handle for you; no advances on fives.\\\"\\nOn February 26th, Crenshaw wired Mann: \\\"What about car lettuce out today.\\\"\\nTo which Mann replied offering to ship two cars \\\"good quality mostly fives same basis previous cars,\\\" and asking for telegraphic report on cars sold. To this message Mann received no reply.\\nFollowing this the following telegraphic communications, which is all the communication had between them from February 28th to March 25th, passed between the parties: Mann to Crenshaw, February 28th, 7:22 A. M.: \\\"We want work with you on our lettuce and very anxious conditions improve permitting you make some guarantee advances on few cars as previously as we handling for growers and not much margin for us at prices we rolled you lettuce we will show some losses if'your market fails to show us liberal surplus on each car.\\\"\\nCrenshaw to Mann, February 28th, 3:21, P. M.: \\\"Our market two quarter to half prospects cleaning up and something out today should do well advise please.\\\"\\nAt this time seven of the ten cars had been received and inspected by Crenshaw; and the reasonable inference is that Crenshaw was quoting prices on Richmond market of grade of lettuce he had been receiving from Mann. Yet only two days before Crenshaw had reshipped cars 27294 and 29975 to Baltimore, the inspection reports of which on arrival in Richmond seem to show were of about the same grade as the other cars which had been received prior to that time. No mention is made of the fact that any cars received up to that time were below grade or in bad condition.\\nCrenshaw to Mann, March 2nd: \\\"What's wrong your lettuce last four cars arrived bad order tip burn and decay also no ice don't look like ice ever been put in crates suicide ship quality like this.\\\"\\nThis telegram, sent four days after the last of the ten cars had arrived and at least six days after the first car therein referred to had arrived, was the first intimation given Mann by Crenshaw that any of the lettuce received by him was not of satisfactory grade or was not arriving in good condition. It further refers only to the last four cars shipped.\\nCrenshaw to Mann, March 2nd, 7:22 A. M.: \\\"Get us off car lettuce today sure one tomorrow stop you not putting enough ice in crates also on top try remedy this.\\\"\\nMann to Crenshaw, night letter, March 2nd: \\\"Answering growers holding lettuce for market increase you causing us little trouble in not reporting sales on each car as sold as places us in wrong with growers as they want to know what's doing also bank advises drafts out too long unpaid please advise last draft you paid so can satisfy bank as they expecting immediate payment.\\\"\\nMann to Crenshaw, night letter, March 4th: \\\"Answering your wire second our lettuce has given satisfaction every market receiving same and as to ice we know how to pack lettuce and know what ice required stop we want our drafts paid promptly in accordance with arrangement and want know what each car has grossed that you have sold please wire immediately.\\\"\\nMann to Crenshaw, March 24th: \\\"Our bank advise you have refused payment and returned drafts following cars Pacific 24898 Pacific 29975 Pacific 27294 Pacific 2208 Pacific 15789 and Pacific 11975 period these drafts were drawn in accordance with arrangement with you and unless we receive immediate wire you are forwarding your check for $2,358.00 we will bring suit immediately you can consider this wire demand for payment and don't expect us spare any time in protecting our interests.\\\"\\nCrenshaw to Mann, March 25th: \\\"Answering we did not guarantee payments your drafts on rotten lettuce as previously reported to you some this stock came through in nine ten days arriving without any ice in car or crate could not have been much put in cars stop also all your wires reported fancy stock as good as any shipped can prove this worse stock any brand rec'd this market this year couple cars entirely worthless sales mailed.\\\"\\nThis is the first intimation given by Crenshaw to Mann that the grade or condition of any of the cars shipped (other than the last four) was not satisfactory or that the first six cars had arrived not in good condition.\\nIt is further to be noted that at no t\\u00fane did Crenshaw advise Mann that he was having trouble in disposing of this lettuce in Richmond, or was finding it necessary or expedient to reship to other markets and incur additional freight charges, or ask any advice from Mann as to the disposition of cars received; and that even after he had found that he had reshipped some of them to Baltim.ore, he was still urging Mann to ship other cars to Richmond.\\nCars 36277, 24898 and 2208 were sold by Crenshaw to Timberlake and Currie, a corporation. The evidence shows that Mr. W. C. Crenshaw who handled the sale of these cars for W. C. Crenshaw and Company, Inc., is a stockholder and director in both of these corporations. But there is no evidence which shows that these cars were sold below the market for the grade of lettuce they contained, or that they could have been sold to better advantage to any other person or corporation.\\nMann, in testifying in chief in his own behalf, testified that the words, \\\"pay your draft guaranteed advance dollar ten crate benefit market,\\\" as used in the telegram from Crenshaw to Mann dated February 1, 1927, and other telegrams passing between them, have a special significance in the ordinary course of business dealings between persons or firms engaged in this line of business; and mean that the commission merchant guarantees to the shipper a mini mum net return on each car of lettuce shipped, agrees to pay the draft of the shipper drawn for the amount of the minimum guarantee upon presentation after the car against which it is drawn has been shipped, and also, if the net proceeds of the car exceed the minimum guarantee, to pay the shipper the difference.\\nCrenshaw introduced witnesses Pearman and W. C. Crenshaw, who, over the objection of Mann, were permitted to testify that these words (guaranteed advance) as used in these telegrams had a well defined and definite meaning in the lettuce trade throughout the United States; and what that meaning is. The effect of their testimony is this: These words- do not mean that the commission merchant guarantees the shipper a minimum net return on each car of lettuce shipped. They mean that the commission merchant guarantees that he will make an advance to the shipper of the named amount on each car by paying shipper's draft drawn for that amount by the shipper when a car has been shipped. The payment of the draft is only an advance on account; and if the car against which the draft was drawn does not bring a sum which, after paying freight, commissions and cost of handling and sale, is equal to or larger than the amount of the draft paid, the shipper is obligated to repay to the commission merchant the difference.\\nThe first assignment of error is that the court erred in admitting the testimony of Pearman and Crenshaw as to the meaning of the words, \\\"guaranteed advance.\\\"\\nThe second assignment of error is that the court erred in not giving instruction No. 1 offered by Mann. This instruction, in effect, told the jury that the telegrams introduced in- evidence contained the contract between the parties; and that the agreement between the parties was that Mann agreed to ship these ten cars of lettuce to Crenshaw to be sold upon consignment, and that Crenshaw agreed to sell them for Mann and guaranteed that Mann should receive a net minimum return on each car of $1.15 per crate plus $25.00 for top icing and papering car.\\nThe court did not err in either of these respects. Mann had testified that these words as used in the telegrams have \\\"a special significance in the ordinary course of business\\\" of persons engaged in this trade; that is, have a technical meaning in this trade, and had testified as to what that meaning was. Crenshaw's witnesses agreed with Mann that these words have a well defined technical meaning in this trade throughout the United States; but they disagreed with him as to what was that meaning. Crenshaw was entitled to have them testify as to what was the technical meaning of these words; and'the question, what was the meaning of the words as used in this trade, was a question for submission to the jury. Elliott on Contracts, sections 1707, 1723; Richlands Co. v. Hiltebeitel, 92 Va. 91, 22 S. E. 806; Rastetter v. Reynolds, 160 Ind. 133, 66 N. E. 612; Walker v. Gateway Milling Co., 121 Va. 217, 92 S. E. 826.\\nThe contention of Mann that the testimony of Pearman \\u2022and W. C. Crenshaw on this point is inherently improbable and unworthy of belief, has no apparent basis other than that it conflicts with the testimony of Mann himself;\\nThe third assignment of error is that the court erred in refusing instruction No. 7 asked for by Mann. The instruction was properly refused. It states abstract principles of law without in any way applying them to the facts in the case; and could only have tended to confuse the jury. Hawkins, etc. v. Edwards, 117 Va. 311, 84 S. E. 634. Further, the evidence on .the point to which it is directed is not such as to warrant the giving of such an instruction in this case.\\nThe fourth assignment of error is that the court refused to give instruction No. 2 offered by Mann.' This instruction in effect told the jury that the representation of Mann that \\\"our lettuce being packed to top all markets\\\" refers to grade of the lettuce when loaded in California; and that if it should find that the lettuce when loaded in California came up to the requirements of grade \\\"U. S. No. 1,\\\" then in determining the other questions at issue between the parties they should consider the lettuce as being of the grade contemplated by the parties.\\nThe court did not err in refusing this instruction. This was clearly a shipment, on consignment to be sold at Richmond, Virginia, not a sale of lettuce to Crenshaw f.o.b. cars California. The shipper was responsible for the condition of the lettuce upon arrival at Richmond, and the grade was to be determined as of place and time of delivery there, not as of time of loading in California. Further than this the representation of Mann was that he was shipping lettuce \\\"packed to top all markets,\\\" not that he was shipping lettuce of grade \\\"TJ. S. No. 1.\\\"\\nThe fifth, sixth and seventh assignments of error are that the court erred in refusing to give instructions No. 3, No. 4 and No. 5 offered by Mann. These instructions were properly refused, because, among other reasons, they assume as matters of law that the agreement between the parties was that Crenshaw guaranteed to Mann a minimum net return on each car shipped; and that the telegraphic communication between the parties related to the shipment of lettuce of grade \\\"TJ. S. No. 1.\\\"\\nThe eighth assignment of error is that the court refused to give instruction No. 6 asked for by Mann. The court did not err in refusing this instruction, because, among other reasons, it imposes upon Crenshaw the duty \\\"to handle and dispose of the lettuce at the best possible advantage.\\\" Crenshaw's duty was to use ordinary care to get for the lettuce shipped to it the best price obtainable. This was true whether there was a guarantee of a net minimum return or not.\\nThe court having refused to give any of the instructions asked for by Mann, and any asked for by Crenshaw, if any were asked for by it, gave the jury the following instruction:\\n\\\"The court instructs the jury they are to determine from all the evidence what was the contract between the parties.\\n\\\"The contract is to be found in the writings which passed between the parties and their conduct in dealing with the subject matter of the contract.\\n\\\"Wherever in their dealings with each other words or expressions were used which were peculiar to that class of business and not otherwise clear and free from ambiguity, the jury may give heed to all credible evidence before them as to just what such word or expression meant according to the usage or custom of trade in that particular class of business.\\n\\\"If the lettuce did not come up to representation there was no obligation upon W. C. Crenshaw and Company, Inc., to do more than use ordinary care to dispose of it to the best advantage for George E. Mann and Company. If in doing so Crenshaw incurred proper expenses in excess of what the lettuce brought, Crenshaw would be entitled to recover such excess he has paid out or become bound for.\\n\\\"If the lettuce did measure up to representations and you further believe from the evidence that it was to be sold for the benefit of George E. Mann and Company without any absolute guaranty of price, then the duty upon Crenshaw was to exercise ordinary care to get the best price obtainable for the benefit of George E. Mann and Company, and after deducting proper costs and charges, to remit the balance to George E. Mann and Company. If in doing so Crenshaw expended properly more than the lettuce brought, Crenshaw is entitled to recover of George E. Mann and Company such excess.\\n\\\"On the other hand, if you believe from the evidence the lettuce measured up to representations and the agreement between the parties was an absolute guaranty of a certain price regardless of the market, then you should bring in a verdict for George T. Mann and Company, a verdict for the net amount due him on the basis of such absolute price so guaranteed.\\\"\\nThe first ground of objection made to the court's instruction is that it does not tell the jury that the telegrams in evidence proved a contract by Crenshaw and Mann in which Crenshaw guaranteed to Mann a minimum net return on these ten cars. The second objection is that it told the jury that if the lettuce did not come up to Mann's representations, Crenshaw owed only the duty to use ordinary care in disposing of it. For reasons above stated, these objections are not well taken.\\n. [5] The next ground of objection is that it \\\"excluded from the jury the question whether or not the defendant waived the grade requirements\\\" of the agreement between the parties. This objection appears to be predicated upon a misconception of the evidence. The first car to arrive in Richmond was car 36277, on February 16th, and Crenshaw was notified of its arrival at 11:05 A. M. on that day. At that time Crenshaw had ordered the shipment of nine of the ten cars. Eight had been shipped prior to that date, and the ninth was shipped on that day. At 3:55 P. M. on that day Crenshaw sent its telegram authorizing the shipment of the tenth car, which was shipped on the 17th. While car 36277 was inspected by Inspector Furlong sometime after 11:05 A. M. on the 16th, the evidence does not show the hour of the inspection or that Crenshaw had received the inspector's report or knew the grade or condition of the lettuce in this car at the time its message was sent at 3:15 P. M.; and there is no evidence tending to show that Crenshaw at this time had any knowledge that the lettuce in car 29334, which had been stopped and sold in Greensboro, did not come up to the grade which Mann represented he was shipping, even though it be a fact that it did not. Though the course of action pursued by Crenshaw may be of evidential value as to what grade of lettuce Crenshaw understood Mann was to ship, the evidence is insufficient to establish a waiver of grade requirements by Crenshaw.\\nThe next objection to the instruction is that it \\\"excluded from the jury the question whether the defendant discharged the duty resting upon it as agent to deal with the plaintiff, its principal, in the interest of good faith.\\\" The instruction does not \\\"exclude\\\" the consideration of this question by the jury; and the objection is not well made further than it is comprehended in the next objection.\\nThe last objection made to the instruction is that it \\\"totally ignored plaintiff's theory of the case, and submitted the case to the jury upon a partial view of the evidence.\\\" It does not totally ignore plaintiff's theory of the case; but it does submit the case upon a partial view of the evidence.\\nThe material questions relating to five.of the cars shipped are materially different from those of the other five. The instruction as given treats the issues of the case as though the issues were the same as to all the cars shipped; certainly it fails to take any cognizance of the fact that as to some of the cars they are materially different from those relating to other cars.\\nThe undisputed evidence introduced by Crenshaw was that Crenshaw sold car No. 29334 to Anderson and Company, Greensboro, North Carolina, while it was en route, at $2.75; and that this price was paid for the car without objection by Anderson and Company when it arrived. Therefore, Crenshaw could have suffered no damage on account of the shipment of inferior lettuce in this car, if indeed it was of an inferior grade; and, if the contract between the parties was for a guaranteed minimum return per car, Mann was entitled to receive the guaranteed minimum on this car, even though the lettuce in the other nine cars was of a grade inferior to that contemplated by the agreement between the parties.\\nThe agreement between the parties was for the consignment of these ten cars to Crenshaw at Richmond, and there was no suggestion in their correspondence that Crenshaw was selling in any other market. Without authority express or implied from Mann, Crenshaw assumed the authority to reship two of these cars to Baltimore, one to Philadelphia, and one to Jersey City, for sale at these points by other commission merchants. In so doing Crenshaw incurred additional freight charges aggregating $269.78 and very materially delayed the possible time of sale of a very perishable product. They were all reshipped before Mann was advised by Crenshaw that any of the cars had arrived in bad condition, or that there was any claim by Crenshaw that any of the cars did not come up to the grade contemplated by the agreement between the parties, and without consulting Mann with reference to the disposition of them, though this could have been done and a reply received within a few hours.\\n\\u2022 The evidence introduced by Crenshaw shows that when these four cars were received, they were not properly iced to preserve the lettuce, and therefore required quick sale of the lettuce unless proper steps were taken to re-ice or otherwise preserve the lettuce; and that this fact was known to Crenshaw. The evidence further shows, or at least warrants the inference, that these cars were reshipped without re-icing them; and that when these cars arrived at the destinations to which they were reshipped, the lettuce in each of them was in materially worse condition than when it was received by Crenshaw from seven to eight days before.\\nThe instruction given by the court ignores these very material phases of the evidence in this case. The court having undertaken to give its own instruction covering the whole case, should have, either in this or some other instruction, instructed the jury on these phases of the evidence. An instruction which undertakes to cover the whole case, but omits an essential view of the case is erroneous. Sun Life Assur. Co. v. Bailey, 101 Va. 443, 44 S. E. 692; Pocahontas, etc., Co. v. Hairston, 117 Va. 118, 83 S. E. 1041; Atlantic Coast Line R. Co. v. Newton, 118 Va. 222, 87, S. E. 618; Atlantic Coast Line R. Co. v. Caple, 110 Va. 514, 66 S. E. 855; Hatton v. Mountford, 105 Va. 96, 52 S. E. 847.\\n\\\"In the absence of special instructions or a usage to the contrary, it is presumed that the goods are to be sold at the place to which they are shipped and where the factor has his place of business or maintains an agency, and it is his duty to sell them at that place or market; and since the principal selects the market he assumes the risk of the factor being unable by the exercise of ordinary care, skill, and diligence to make a sale there. If the factor, in such a case, reships the goods he will be hable for the loss incurred from selling at a less price than he could have obtained in the market where he had authority to sell.\\\" 25 C. J. (Factors) section 48; see, also, 11 R. C. L. (Factors) page 768, section 22; Weidner v. Olibit, 108 App. Div. 122, 96 N. Y. S. 37, judgment affirmed 188 N. Y. 611, 81 N. E. 1178; Glantz v. Freedman, 100 Cal. App. 611, 280 Pac. 704.\\n\\\"It is the duty of the factor to inform the principal of all facts or circumstances relating to the consignment, which may make it necessary for the principal to take measures for the protection of his interests, and the factor will be liable to his principal for any loss that may result from his failure to discharge such duty.\\\" 25 C. J. (Factors) section 43.\\n\\\"It is the factor's duty to care for and protect the goods which have been consigned to him, with a reasonable degree of prudence and diligence, that is, such care as a reasonably prudent man would take of his own property in a similar situation. Where the factor fails .to exercise reasonable prudence and diligence in caring for the goods, he is liable for any loss or injury that results therefrom.\\\" 25 C. J. (Factors) section 44.\\nThe last assignment of error is that the court erred in not setting aside the verdict because it was contrary to the law and the evidence. This assignment of error is well made. Crenshaw has failed to establish its right to recover any sum from Mann.\\nOrdinarily, where the principal relies upon the negligence of the factor, or other breach of duty by the factor, as a ground of recovery, the burden is on the principle to establish the negligence or breach of duty and that he has been damaged thereby. It will not be presumed, in the absence of proof, either that the factor was negligent or breached his duty, or that the principal has suffered damage thereby. 25 C. J. (Factors) section 121. But this is not so in the instant case.\\nUnder its plea of set-off, the factor is here seeking to recover from his principal sums which he claims to have expended for his principal over and above the sum received from the sale of the produce consigned to him. The evidence introduced by the factor shows that the factor has breached his duty to his principal by reshipping four cars of the lettuce consigned to him at Richmond to other markets to be sold by other factors, without consulting the principal; that in so doing he incurred large additional freight charges; that these cars did not arrive at the places to which they were reshipped by the factor until seven to eight days after they were received by the factor; that when these cars arrived at the destinations to which they were reshipped, the lettuce in each ear was in materially worse condition than when received by the factor; and that the prices received for the shipped cars were very materially less than that received for cars of like quantity of lettuce of very similar grade which were sold by the factor in Richmond about the same time these cars were received by him. The evidence further shows, or warrants the inference, that the factor reshipped these cars of lettuce, which is highly perishable, without re-icing them, though he knew that the cars were not properly iced to protect the lettuce from deterioration.\\nIn such a case the burden rests upon the factor to prove that the principal has not suffered any damage by reason of his breach of duty and negligence, or that after allowing the principal for all the damage suffered by him by reason of such breach of duty and negligence, the principal is still indebted to the factor. This burden Crenshaw has not borne.\\nThe judgment of the court must be reversed for the reasons above stated; and upon a consideration of the whole record we think that the ends of justice will be best served by remanding the case for a new trial on all issues.\\nIt is impossible to tell from the verdict of the jury whether the verdict was predicated upon a finding that there was no guarantee of a minimum net return per car, or that none of the cars of lettuce shipped was up to grade, or upon a finding that both of these things were true. If there was a guarantee of a minimum net return on each car, Crenshaw was not under the evidence entitled to recover anything on account of car 29334 sold in Greensboro, even if the lettuce shipped was not up to grade. Although the lettuce shipped may not have been up to the grade contemplated and there may have been no guarantee of a minimum return, there is evidence sufficient, under proper instructions as to the duties of Crenshaw relative to the four cars reshipped by it, to support a verdict for the recovery of damages by Mann against Crenshaw on the four cars reshipped.\\nReversed and remanded for a new trail upon all issues.\"}"
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+"{\"id\": \"5726392\", \"name\": \"Island Creek Coal Co. et al. v. Jerry Hager et al.\", \"name_abbreviation\": \"Island Creek Coal Co. v. Hager\", \"decision_date\": \"1987-09-21\", \"docket_number\": \"Case No. (Chancery) 182-87\", \"first_page\": \"247\", \"last_page\": \"248\", \"citations\": \"9 Va. Cir. 247\", \"volume\": \"9\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Buchanan County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T17:51:57.067125+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Island Creek Coal Co. et al. v. Jerry Hager et al.\", \"head_matter\": \"CIRCUIT COURT OF BUCHANAN COUNTY\\nIsland Creek Coal Co. et al. v. Jerry Hager et al.\\nSeptember 21, 1987\\nCase No. (Chancery) 182-87\", \"word_count\": \"397\", \"char_count\": \"2494\", \"text\": \"By JUDGE NICHOLAS E. PERSIN\\nUpon a review of the evidence, argument, and supporting authority, the Court has concluded the following.\\n(1) Jurisdiction lies with the Circuit Court of Buchanan County to consider the prayer for injunctive relief and Motion to Quash of the Complainants against the Defendants.\\n(2) The Industrial Commission of Virginia had legal authority to adopt Rule 13 under Virginia Code Section 65.1-18.\\n(3) The Industrial Commission of Virginia had the power to suspend payments of benefits under Rule 13, when read in conjunction with Virginia Code Sections 65.1-18 and 65.1-99, without violating the Defendants' Fourteenth Amendment right to due process under the Constitution of the United States.\\nThe Defendant, Hager, invoked the jurisdiction of the Court by requesting the issuance of the writ of execution. The propriety of the issuance of the writ was properly challenged by the Complainants' Motion to Quash.\\nThe enactment of Rule 13, pursuant to Virginia Code Section 65.1-18, is not inconsistent with the provisions of Title 65.1 (the Virginia Worker's Compensation Act). Al though Section 65.1-99 does not expressly authorize the preliminary suspension of benefits pending a post suspension hearing on the merits, the application of Rule 13 presents no inconsistency to the provisions of the Act.\\nThe complex issue of the Fourteenth Amendment, and the Defendants' due process rights, have been protected by the amendments to Rule 13. The Defendant, Hager, had notice and an opportunity to be heard prior to suspension of the award. At the hearing stage he is entitled to complete relief should the Complainants fail to meet the required burden of proof. Rule 13 clearly provides for due process rights guaranteed by the Fourteenth Amendment to the Constitution. (See Silas v. Smith, 361 F. Supp. 1187 (E.D. Pa. 1973); Dillard v. Va. Industrial Commission, 416 U.S. 783 (1974); Mathews v. Eldridge, 424 U.S. 319 (1976).\\nIn some cases the temporary suspension of benefits prior to receiving a full evidentiary hearing may create hardship, however, when the Court considers the application of Rule 13 to the Virginia Worker's Compensation Act, and its purpose, this procedure is permissible.\\nCounsel for the Complainants is directed to prepare a decree granting the prayer for injunction and the Motion to Quash the writ of execution.\"}"
\ No newline at end of file
diff --git a/va/5728234.json b/va/5728234.json
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+"{\"id\": \"5728234\", \"name\": \"Columbia Memorial Park, Inc. v. County Board of Arlington et al.\", \"name_abbreviation\": \"Columbia Memorial Park, Inc. v. County Board\", \"decision_date\": \"1984-02-06\", \"docket_number\": \"Case No. (Law) 23882\", \"first_page\": \"548\", \"last_page\": \"549\", \"citations\": \"9 Va. Cir. 548\", \"volume\": \"9\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Arlington County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T17:51:57.067125+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Columbia Memorial Park, Inc. v. County Board of Arlington et al.\", \"head_matter\": \"CIRCUIT COURT OF ARLINGTON COUNTY\\nColumbia Memorial Park, Inc. v. County Board of Arlington et al.\\nFebruary 6, 1984\\nCase No. (Law) 23882\", \"word_count\": \"469\", \"char_count\": \"2857\", \"text\": \"By JUDGE CHARLES H. DUFF\\n[The following is] my conclusion on the preliminary issue of the Petitioner's alleged exemption from real estate taxes under Article X, Section 6(A)(3), of the Constitution of Virginia. . . . The able briefs which have been filed by both sides have been carefully examined as have the authorities cited therein. It is my opinion that, at least for the years involved in this litigation (1979-1982), the Petitioner, Columbia Memorial Park, Inc., was not entitled to the Constitutional exemption.\\nThe evidence leaves little room for doubt regarding the intent of the original transfer to the Petitioner in 1977 of the assets and liabilities of the Alexandria Park Association, Inc. However, the crucial evidence which I feel deprives the Petitioner of its exemption is the fact of the substantial non-interest bearing loans which it has made over these years to Mr. Thomas. These loans, totaling in excess of $190,000.00, clearly deprived the Petitioner of funds which otherwise could have been used for cemetery purposes. The fact that the borrower was owner of eighty, percent of the preferred stock also must be taken into consideration in evaluating this aspect of the issue.\\nWhether a cemetery is operated for profit or not depends in a large measure on how the money derived from sales is used. The cases are clear that the mere fact of a profit, standing alone, does not equate with \\\"operated for profit.\\\" The key is what does the cemetery do with the money. If it is used for cemetery purposes, then no violation of the Constitutional conditions occur. If, however, it is used for the benefit of private parties, particularly stockholders, then \\\"profit\\\" or \\\"gain\\\" has been realized and the exemption is jeopardized. In San Gabriel Cemetery Assn. v. Los Angeles County, 122 P.2d 330 (1942), the word profit was construed to mean \\\"net earnings the benefit of which accrue directly or indirectly to the stockholders or members of the Association.\\\" Clearly, in my judgment, the Petitioner's earnings accrued, at least indirectly, to the benefit of Mr. Thomas for the years in question.\\nHaving reached this conclusion, there is no need to express an opinion on the other bases contained in the Defendant's brief allegedly supporting loss of the exemption. In passing, however, it is appropriate to observe that the evidence appears to support the Petitioner's assertion that the financing of cemetery sales occupies a different position, with different problems, from the sale of more conventional assets.\\nNor do I express any opinion as to the availability of the exemption to the Petition in futuro. Such is not necessary to this litigation, which is confined to the years 1979 through 1982.\"}"
\ No newline at end of file
diff --git a/va/5728350.json b/va/5728350.json
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index 0000000000000000000000000000000000000000..6bcd93754374b799874cc90d2462c6af6103f529
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+"{\"id\": \"5728350\", \"name\": \"Commonwealth of Virginia v. Chesapeake and Ohio RR. Co.\", \"name_abbreviation\": \"Commonwealth v. Chesapeake & Ohio RR.\", \"decision_date\": \"1890-09\", \"docket_number\": \"\", \"first_page\": \"471\", \"last_page\": \"473\", \"citations\": \"53 Va. Cir. 471\", \"volume\": \"53\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Lynchburg Corporation Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:48:37.529260+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth of Virginia v. Chesapeake and Ohio RR. Co.\", \"head_matter\": \"CORPORATION COURT OF THE CITY OF LYNCHBURG\\nCommonwealth of Virginia v. Chesapeake and Ohio RR. Co.\\nSeptember 1890\", \"word_count\": \"1059\", \"char_count\": \"6215\", \"text\": \"By Judge J, Singleton Diggs\\nThese prosecutions against the Railroad Company for running trains on Sunday are submitted to the Court on an agreed statement of facts. The facts being that the Company did run its trains on Sunday, as charged, but that they were engaged in carrying merchandise from other states into and through the territory of Virginia.\\nThe question involved is, whether the Act of the Assembly [Va. Code \\u00a7 3801 (1887)] forbidding the running of freight trains on Sunday is within the power of the state legislature so far as it applies to trains carrying freight from one state into or through the State of Virginia.\\nThe Constitution of the United States, Article I, Section VIE, confers upon Congress the power \\\"to regulate commerce with foreign nations, and among the several states and among the Indian tribes.\\\"\\nThat the carrying of freight, miscellaneous merchandise, and all the subjects of trade and barter, by rail, from one state into another, and carrying them in the way of trade, that is to say, from the ownership in one state to a different ownership in another state, is \\\"commerce among the several states,\\\" would hardly admit of question. But this, as in fact every other point involved, has been determined by the Supreme Court of the United States, and to cite the decisions of the tribunal having supreme authority in construing and expounding the Constitution, is sufficient. In the State Freight Tax Cases, 82 U.S. (15 Wall.) 232 (1872), that Court held that \\\"the transportation of freight, or of the subject of commerce, is a constituent part of commerce itself, and that a tax upon freight transported from state to state is a regulation of commerce among the states.\\\" If a small tax upon freight in transit is a regulation of commerce, a fortiori it is a regulation to stop it and prevent its transit altogether for a limited time.\\nMr. Justice Strong, in delivering the opinion in this case, said that the power sought to be conferred upon Congress by the Constitution was a power to prevent embarrassing restrictions upon the trade between the states, or between citizens of different states, by any state. No more \\\"embarrassing restrictions\\\" upon the commerce could be devised than absolute stoppage of all railroad transportation on the Sabbath; for this state might adopt the first day of the week as its legal Sabbath day, and the adjoining state adopt the last day of the week, and so on, calling a halt as to all such transportation, and destroying interstate commerce. In the case cited, the question involved was the constitutionality of a statute imposing a tax on all freight carried through the state, and the Court further said, that \\\"so far as effects commodities transported through the state, or from points without the state to points within it, or from points within the state to points without it, the act is regulation of commerce,\\\" and so the act was held to be not within the power of the state legislature, and void.\\nIt was contended in the earlier cases that although the Constitution conferred this power on Congress, yet in so far as Congress had not legislated on the subject, the states miglit do so. And, although this point seems to have been answered by the opinion delivered in the State Freight Tax Cases, it was again strongly urged in Welton v. Missouri, 91 U.S. 275 (1875).\\nThe Court held that the non-exercise by Congress of its power to regulate commerce among the several states, is equivalent to a declaration by that body that such commerce shall be free from any restrictions. See also Henderson v. Mayor of New York City, 92 U.S. 259 (1875), where it is expressly decided that Congress has exclusive power to regulate commerce among the states, and Hall v. DeCuir, 95 U.S. 485, 488 (1877), where the Court says that \\\"state legislation which seeks to impose a direct burden upon interstate commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Congress.\\\"\\nIt might be argued that the power to prevent desecration of the Sabbath was within the police power of the state, to secure domestic tranquility and order. If there be any such power reserved to the states its limits have never been defined, or attempted to be defined. I am not aware of any such special power conferred, but am of opinion that all power not expressly or by necessary implication granted away from and by the state remains within them. And we have seen that power over this subject, exclusive of any interference by the states, has been granted by the states to Congress, with no exceptions as to police regulations. Moreover, this point has been passed upon by the Supreme Court. In Railroad Co. v. Husen, 95 U.S. 465, 473 (1877), the Court held as follows.\\n1. The statute of Missouri which prohibits driving or conveying any Texas, Mexican, or Indian cattle into the state, between March the 1st and December the 1st in each year is in conflict with the clause of the Constitution which ordains that Congress shall have power to regulate commerce among the several states.\\n2. The police power of the state cannot be exercised over the interstate transportation of subjects of commerce.\\nThe latest outgiving of the Supreme Court upon the subject will be found in the celebrated \\\"original-package\\\" decision, Leisy v. Hardin, 135 U.S. 100 (1889). In delivering the opinion of the Court, Chief Justice Fuller says: \\\"Where the subject is national in its character, and admits and requires uniformity of regulation, affecting alike all the states, such as transportation between the states, including the importation of the goods from one state into another, Congress can alone act upon it and provide the needed regulations. The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free.\\\" Id. at 119.\\nConsidering that all the points involved in these cases have been adjudicated by the highest tribunal of the country, I am of the opinion that the question here is closed to debate, and as to these indictments a nolle prosequi will be entered.\"}"
\ No newline at end of file
diff --git a/va/5878649.json b/va/5878649.json
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index 0000000000000000000000000000000000000000..8105bb7a22ff9bff96c59f736c71341393006a5c
--- /dev/null
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+"{\"id\": \"5878649\", \"name\": \"Kathryn Courtney Faison v. Mary Lynne Hughson and Virginia S. Hughson\", \"name_abbreviation\": \"Faison v. Hughson\", \"decision_date\": \"2010-01-22\", \"docket_number\": \"Case No. CL08002623-00\", \"first_page\": \"96\", \"last_page\": \"105\", \"citations\": \"80 Va. Cir. 96\", \"volume\": \"80\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Roanoke Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:33:33.404128+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kathryn Courtney Faison v. Mary Lynne Hughson and Virginia S. Hughson\", \"head_matter\": \"CIRCUIT COURT OF THE CITY OF ROANOKE\\nKathryn Courtney Faison v. Mary Lynne Hughson and Virginia S. Hughson\\nJanuary 22, 2010\\nCase No. CL08002623-00\", \"word_count\": \"3574\", \"char_count\": \"21002\", \"text\": \"By Judge Charles N. Dorsey\\nThis case is before the Court on the defendants' Demurrer, Plea in Bar, and Motion to Dismiss the Amended Complaint. For the reasons stated, the defendants' Demurrer and Plea in Bar as to the statute of frauds are overruled, and the defendants' Plea in Bar as to the statute of limitations and the defendants' Motion to Dismiss upon that ground will be taken under advisement.\\nFacts\\nIn October 1991, it is alleged that Judy Parker Woody loaned $25,000 to Virginia Hughson and Mary Lynne Conner (now Mary Lynne Hughson), the defendants in this case. Am. Compl. Ex. 1. Over ten years later, on May 13, 2002, the defendants signed and had notarized a document (referred to by the plaintiff, and here solely for consistency, as \\\"the Repayment Contract\\\") that is titled \\\"Personal Loan Information,\\\" and states: \\\"Date of Loan: October 1991 in the amount of $25,000.00 payable $300.00 per month. Estimated year of Maturity 2012.\\\" Am. Compl. \\u00b6 7, Ex. 1. The Repayment Contract also shows that the loan was from Woody to the defendants. Am. Compl. Ex. 1. There is no mention of any interest due on the loan or of any other terms. However, at $300 per month from the date of signing, the $25,000 loan, without interest, would be repaid in seven years or around June 2009 \\u2014 earlier than the 2012 estimated year of maturity. The Repayment Contract states that Woody's residence was in North Carolina and that the defendants' residence was in Roanoke, Virginia, (Am. Compl. Ex. 1.5) where Virginia S. Hughson currently resides and where Mary Lynne Hughson currently owns real estate. Am. Compl. \\u00b6 2-3. Woody did not sign the Repayment Contract. Am. Compl. Ex. 1.\\nAlmost one year after the defendants signed the Repayment Contract, Woody died testate on April 13, 2003, while domiciled in Orange County, North Carolina, and her husband qualified as the executor of her estate shortly thereafter on April 25, 2003. Am. Compl. \\u00b6 8. Although not specifically mentioned in Woody's will, which is dated December 19, 2002 (seven months after the signing of the Repayment Contract), and which specifically devises a $68,000 promissory note to both Woody's daughter and husband (Am. Compl. Ex. 2), Woody's husband, the executor, \\\"was aware of the Repayment Contract and of . Woody's intent to give the Repayment Contract to her daughter, Courtney Faison,\\\" (Am. Compl. \\u00b6 9) who is the plaintiff in this case and is a citizen and resident of North Carolina. Am. Compl. \\u00b6 1. The Repayment Contract document was thus given to the plaintiff as part of the residue of Woody's estate, (Am. Compl. \\u00b6 8, 15) and was distributed to the plaintiff no later than April 5, 2005, when the estate was closed, though the Repayment Contract had not been listed in the final inventory that was filed for the estate. Am. Compl. \\u00b6 10-12, 15. The plaintiff then lost the original Repayment Contract document over a year later in 2007, but had made a copy of the document. Am. Compl. \\u00b6 11.\\nAround May 2003, the month immediately following Woody's death, while the estate was still open, the defendants began making payments to the plaintiff according to the terms of the Repayment Contract until January 2004. Am. Compl. \\u00b6 16. Sometime thereafter, the plaintiff contacted the defendants through an attorney, and on July 1, 2004, defendant Virginia Hughson \\\"acknowledged the debt,\\\" and the defendants then sent four $100 payments to the plaintiff. The payments were from an account belonging to defendant Virginia Hughson, but some of the checks were signed by defendant Mary Hughson. The fourth and last of the $100 payments received by the plaintiff was dated December 6, 2004. Am. Compl. \\u00b6 17. After that payment, the defendants refused to pay the plaintiff according to the Repayment Contract, despite request. Am. Compl. \\u00b6 18.\\nAbout five months after the defendants' last payment, a final account of the estate was submitted to the Superior Court for Orange County, North Carolina, around April 5 or 6, 2005, and the estate was closed and Woody's husband was discharged as executor. Am. Compl. \\u00b6 10-11, Ex. 3. Since the Repayment Contract had never been listed as an asset of the estate on the final inventory that had been submitted, Woody's husband reopened the estate on March 4, 2009, in order to list the Repayment Contract as an asset and to note its distribution to the plaintiff. Am. Compl. \\u00b6 12, Ex. 4. On that same day, Woody's husband, acting as executor, also \\\"assigned\\\" a copy of the Repayment Contract to the plaintiff (according to the wording of the Amended Complaint; but the executor's wording on the Repayment Contract document itself claims to \\\"endorse this Promissory Note to [the plaintiff]\\\"). Am. Compl. \\u00b6 12, Ex. 5. Also on that same day, the estate was closed and Woody's husband was again discharged as the executor. Am. Compl. \\u00b6 12, Ex. 4.\\nThe plaintiff now seeks damages for a breach of contract in the amount of $22,200 \\\"as a direct and proximate result of the defendants' failure to make payments pursuant to the terms of the Repayment Contract,\\\" plus pre-judgment and post-judgment interest and costs. Am. Compl. \\u00b6 22.\\nThe plaintiff filed her Complaint on December 19, 2008, which has now been amended after this Court sustained a Demurrer to the Complaint, granting leave to amend, and took the defendants' Plea in Bar, Motion to Dismiss, and Motion to Strike Affidavit under advisement in its April 1, 2009, Order. The defendants have now filed a Demurrer, Plea in Bar, and Motion to Dismiss to the Amended Complaint, and a hearing was held on these matters on June 10, 2009.\\nAnalysis\\n\\\"A demurrer admits the truth of all properly pleaded material facts. 'All reasonable factual inferences fairly and justly drawn from the facts alleged must be considered in aid of the pleading. However, a demurrer does not admit the correctness of the pleader's conclusions of law'.\\\" Dodge v. Trustees of Randolph-Macon Woman's College, 276 Va. 1, 5, 661 S.E.2d 801, 803 (2008) (quoting Fox v. Custis, 236 Va. 69, 71, 372 S.E.2d 373, 374 (1988)). Further, \\\"a court considering a demurrer may ignore a party's factual allegations contradicted by the terms of authentic, unambiguous documents that properly are a part of the pleadings.\\\" Ward's Equip. v. New Holland N. Am., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997). Here, since the Repayment Contract document and other documents are made exhibits to the Amended Complaint, those documents are made a part of the pleadings by Rule l:4(i). Va. Sup. Ct. R. l:4(i) (\\\"The mention in a pleading of an accompanying exhibit shall, of itself and without more, make such exhibit a part of the pleading.\\\").\\nA. Note or Contract\\nTerming a document a \\\"contract\\\" or a \\\"note\\\" is a conclusion of law. In their Demurrer, the defendants argue that the Repayment Contract is not a negotiable instrument or a promissory note. Dem. to Am. Compl. \\u00b6 8-9. Indeed, although the executor of Woody's estate treated the Repayment Contract as a note when he sought to \\\"endorse this Promissory Note to [the plaintiff],\\\" (Am. Compl. Ex. 5) the plaintiff states in her brief that \\\"(the plaintiff's] Amended Complaint does not even allege that the Repayment Contract is a negotiable instrument.\\\" Pl.'s Mem. in Opp'n to Defs.' Dem. and Plea 6.\\nA \\\"negotiable instrument\\\" is \\\"an unconditional promise or order to pay a fixed amount of money.\\\" Va. Code \\u00a7 8.3A-104(a). A \\\"promise\\\" is \\\"a written undertaking to pay money signed by the person undertaking to pay. An acknowledgment of an obligation by the obligor is not a promise unless the obligor also undertakes to pay the obligation.' ' Va. Code \\u00a7 8.3A-103(a)(9) (emphasis added). It cannot be said from the words of the Repayment Contract that it is \\\"a written undertaking to pay\\\" back the loan. The Repayment Contract merely states; \\\"Date of Loan: October 1991 in the amount of $25,000.00 payable $300.00 per month. Estimated year of Maturity 2012.\\\" Am. Compl. Ex. 1. Thus, the Repayment Contract only gives information about the loan and repayment, which is what the title of the document, \\\"Personal Loan Information,\\\" implies is its purpose. The defendants acknowledged this information and obligation by signing and notarizing the document. The statutory definition of \\\"promise\\\" makes clear that such an acknowledgment without an undertaking to pay the obligation is not a promise. Therefore, the Repayment Contract cannot be a negotiable instrument.\\nNeither can the Repayment Contract be a contract since there is no agreement being made. Again, the document merely acknowledges information about a loan that was made more than ten years before its signing.\\nB. Statute of Frauds\\nNevertheless, the plaintiff has sufficiently alleged facts to infer that there was at least an oral agreement by the defendants to pay back the amount loaned to them and that the right to repayment of the loan was assigned to the plaintiff, as shown by the defendants' immediately making payments to her after Woody's death and again making payments to her after having been contacted by an attorney on her behalf. The Repayment Contract document then is a memorandum of that oral agreement.\\nBecause there is nothing alleged that qualifies as a written contract for the loan, the defendants argue that the plaintiff's action is barred by the statute of frauds under Va. Code \\u00a7 11-2(9), which states:\\nUnless a promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, is in writing and signed by the party to be charged or his agent, no action shall be brought... [u]pon any agreement or promise to lend money or extend credit in an aggregate amount of $25,000 or more. The consideration need not be set forth or expressed in the writing, and it may be proved (where a consideration is necessary) by other evidence.\\nHowever, the defendants' argument fails, because although there is no written contract and the Repayment Contract does not constitute one, the Repayment Contract is a memorandum in writing and signed by both of the defendants. \\\"The memorandum required by Va. Code \\u00a7 11-2 need not constitute or embody the contract; it need only state the essential terms of the agreement.\\\" Troyer v. Troyer, 231 Va. 90, 94, 341 S.E.2d 182, 185 (1986).\\nA memorandum, in order to make enforceable a contract within the Statute [of Frauds], may be any document or writing, formal or informal, signed by the party to be charged . which states with reasonable certainty,\\n(a) each party to the contract either by his own name, or by such a description as will serve to identify him, or by the name or description of his agent, and\\n(b) the land, goods, or other subject-matter to which the contract relates, and\\n(c) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made.\\nHorner v. Holt, 187 Va. 715, 724, 47 S.E.2d 365, 369 (1948) (quoting Restatement of Contracts, vol. 1, \\u00a7 207).\\nHere, the Repayment Contract states with reasonable certainty the essential terms of the agreement, the lender and the borrowers, the principal amount of the loan made, and how and when the loan is to be repaid. Further:\\n[generally speaking, the purpose with which a memorandum is prepared is immaterial, and it will suffice although it was not intended to evidence the contract or to comply with the statute [of frauds]. . However, by the clear weight of authority, the signature must be made or adopted with the declared or apparent intent of authenticating the writing relied upon as a memorandum, and not by way of mere recital or identification.\\nId. at 725, 47 S.E.2d at 370 (quoting 49 Am. Jur., Statute of Frauds, \\\"Signature,\\\" \\u00a7 381).\\nIt is clear from the content of the Repayment Contract document that the defendants intended to authenticate the document when they signed it and had it notarized. Therefore, the plaintiffs action is not barred by the statute of frauds.\\nC. Statute of Limitations\\nThe defendants further argue that, since this action is based on an oral contract, it is barred by the statute of limitations under Va. Code \\u00a7 8.01-246, (Dem. to Am. Compl. \\u00b6 11-12, Defs.' Mem. in Supp of Dem. 4) which bars suits on oral contracts three years after the cause of action accrues. This Plea in Bar by the defendants will be taken under advisement until the terms of the oral contract are established in order to find out at what time(s) the contract was breached. Although the plaintiff claims that the defendants breached the agreement by failing to send payments beginning in January 2005, (Am. Compl. \\u00b6 21) the other facts alleged indicate that the defendants first breached the agreement a year earlier in January 2004 when they first stopped making the $300 monthly payments. Am. Compl. \\u00b6 16. However, it appears from the allegations and from the Repayment Contract document that the defendants were to repay the loan in installments. If that is so, then a new cause of action would have accrued for each installment not paid or not paid in full, and the plaintiff would be able to sustain an action against the defendants for any installment payment not paid or not paid in full from three years before the date of filing her Complaint, which would be from December 19, 2005. Therefore, it cannot be said at this time that the plaintiff's entire action is barred by the statute of limitations.\\nD. Standing; Jurisdiction\\nThe defendants also argue that this is an action to recover personal property for Woody's estate, (Dem. to Am. Compl. \\u00b6 3-5) and thus: (1) the plaintiff, not being the personal representative of Woody, has no standing to bring this action; (2) the personal representative of Woody, who would be a necessary party to such a suit, is not before the court, and the plaintiff has not pleaded facts to allege that this Court has any jurisdiction over the personal representative; and (3) this Court has no jurisdiction over this matter to recover personal property for the benefit of Woody's estate because Woody's will was probated in Orange County, North Carolina. Dem. to Am. Compl. \\u00b6 5.\\nThese arguments fail because this is not an action to recover personal property for Woody's estate. This is an action by an alleged assignee to enforce her right to recover the repayment of a loan, and, thus, the plaintiff, being the assignee, has standing to bring this suit under Va. Code \\u00a7 8.01-13. \\\"The assignee or beneficial owner of any bond, note, writing, or other chose in action, not negotiable may maintain thereon in his own name any action which the original obligee, payee, or contracting party might have brought. . . .\\\" The personal representative of Woody's estate is not a necessary party because the right to repayment has been assigned to the plaintiff and, therefore, the estate no longer has any interest in it. And lastly, the Court does not need jurisdiction over Woody's will in order to hear this action to enforce a contract on behalf of the plaintiff against the defendants.\\nThe defendants further argue that the plaintiff is not a holder in due course of the Repayment Contract and, therefore, cannot enforce the Repayment Contract since it was not properly indorsed to her by Woody's executor. Dem. to Am. Compl. \\u00b6 6-10. But this argument only applies if the Repayment Contract were a promissory note, which it is not. The defendants also argue that the estate could not have been reopened in March 2009 to convey the Repayment Contract to the plaintiff. Dem. to Am. Compl. \\u00b6 9; Defs.' Mem. in Supp. of Dem. 3. But since the Repayment Contract document is not the contract itself and since the right to repayment of the loan is alleged to have been assigned to the plaintiff when the estate was first opened, this also is not an issue. The plaintiff has sufficiently alleged that the right to repayment of the loan was assigned to her, noting that the defendants had made several payments to her according to the terms of the agreement immediately after Woody's death and then made more payments to her after having been contacted by her attorney about the debt.\\nThe defendants then argue that the Repayment Contract is not enforceable because it is not definite and certain as to its terms and requirements. Dem. to Am. Compl. \\u00b6 11. But again, the Repayment Contract is not the contract itself, but is a memorandum of the contract, and, as discussed above, is sufficiently definite as such. \\\"[T]he memorandum relied on need not itself constitute a contract. It is the underlying oral contract of which the memorandum is an accurate statement which is enforced.\\\" Fanney v. Virginia Inv. & Mortg. Corp., 200 Va. 642, 651, 107 S.E.2d 414, 420 (1959). Further, for a contract to be enforceable, \\\"reasonable certainty is all that is required\\\" as long as the agreement is \\\"sufficiently definite to enable a court to give it an exact meaning, and . obligate[s] the contracting parties to matters definitely ascertained or ascertainable.\\\" Smith v. Farrell, 199 Va. 121, 128, 98 S.E.2d 3, 7 (1957) (quoting 4 M.J., Contracts, \\u00a7 27). That standard is met here from the facts alleged.\\nThe law does not favor declaring contracts void for indefiniteness and uncertainty, and leans against a construction which has that tendency. While courts cannot make contracts for the parties, neither will they permit parties to be released from the obligations which they have assumed if this can be ascertained with reasonable certainty from language used, in the light of all the surrounding circumstances. This is especially true where there has been partial performance.\\nReid v. Boyle, 259 Va. 356, 367, 527 S.E.2d 137, 143 (2000) (quoting High Knob, Inc. v. Allen, 205 Va. 503, 507-08, 138 S.E.2d 49, 53 (1964)). And here, there has been partial performance.\\nThe defendants also assert that the Repayment Contract is not enforceable because \\\"[a]n agreement by one to do what he is already legally bound to do is not a good consideration for a promise made to him. The general rule is that a new promise without other consideration than the performance of an existing contract in accordance with its terms is a naked promise without legal consideration therefore and unenforceable.\\\" Defs.' Mem. in Supp. of Dem. 4 {quoting 4A M.J., Contracts, \\u00a7 34 (footnotes omitted)) (emphasis added). Again though, the Repayment Contract document is not the contract itself, but only a memorandum of the original agreement, and thus there was no new promise made to the defendants for which the defendants' already existing obligation to repay the loan was given as consideration. And even if that were the case, it would be the defendants who could not sustain an action for breach of the new promise due to want of consideration on their part; the plaintiff, on the other hand, would still be able bring an action against the defendants for the breach of their already existing obligation. See Seward v. New York Life Ins. Co., 154 Va. 154, 167-69, 152 S.E. 346, 350 (1930); 4A M.J., Contracts, \\u00a7 34 and n. 19 (citing Seward, 154 Va. 154, 152 S.E. 346). Therefore, this argument fails as well.\\nConclusion\\nFor the reasons stated, the Court overrules the defendants' Demurrer and Plea in Bar as to the statute of frauds, and takes under advisement the defendants' Plea in Bar as to the statute of limitations and Motion to Dismiss on that ground until the terms of the oral contract and the date(s) of breach are established.\\nThere is no allegation that there was a written acknowledgement that would fall under Code \\u00a7 8.01-229(G).\\nDem. to Am. Compl. \\u00b6 12; Defs.' Mem. in Supp. of Dem. 4.\\nBizmark, Inc. v. Indus. Gas & Supply Co., 358 F. Supp. 2d 518, 521 (W.D. Va. 2005) (\\\"It is settled that, upon the failure to make an installment payment, a cause of action for that installment accrues immediately and the statute of limitations begins to run.\\\" (citing Williams v. Matthews, 103 Va. 180, 48 S.E. 861, 862 (1904); Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Calif., 522 U.S. 192, 208, 118 S. Ct. 542, 139 L. Ed. 2d 553 (1997))); MFS Int'l, Inc. v. Int'l Telecom, Ltd., 50 F. Supp. 2d 517, 524-26 (E.D. Va. 1999) (In a contract where one has an obligation to make installment payments, \\\"a separate cause of action arises on the date each payment is missed and the statute of limitations thus runs against each installment from the time that it becomes due.\\\" (citing MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1100-01 (3d Cir. 1995))), Am Inn, L.P. v. SunTrust Banks, Inc., 28 Fed. Appx. 316, 319-21 and n. 3 (4th Cir. 2002) (per curiam) (holding that an installment contract is a divisible contract, and thus \\\"for claims based on an installment contract, a cause of action accrues, and the statute of limitations begins to run, when each installment becomes due\\\").\\nDem. to Am. Compl. \\u00b6 1-3.\\nDem. to Am. Compl. \\u00b6 4.\"}"
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diff --git a/va/6038495.json b/va/6038495.json
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+"{\"id\": \"6038495\", \"name\": \"Swiney vs Dandridge\", \"name_abbreviation\": \"Swiney v. Dandridge\", \"decision_date\": \"1732\", \"docket_number\": \"\", \"first_page\": \"R109\", \"last_page\": \"R109\", \"citations\": \"1 Va. Col. Dec. 216\", \"volume\": \"1\", \"reporter\": \"Virginia Colonial Decisions\", \"court\": \"General Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:44:21.370223+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Swiney vs Dandridge.\", \"head_matter\": \"Swiney vs Dandridge.\\nIn Cha\\u00f1e. Fr Deft.\", \"word_count\": \"188\", \"char_count\": \"978\", \"text\": \"The Case.\\nWilson Roccow was possessed of a considerable Estate made his Will dated 26. of August 1713. wherein he gives to his Wife all his Personal Estate after payment of some Legacies inter alia. He gives to his God-Son Pasco Curie one hundred pounds at the age of 21. Years and to be brought up in England 2. Years at his Charge\\nThe Wife married the Deft. Pasco Curie died before his age of 21. and the Pit. as his Adm'r demands the Legacy But I think upon the Reasons and Authorities in the Case of Nicholas & Burwell the Bill ought to be Dismissed, But there is a farther Reason from the different penning of the two Wills. The words of the Will connected are, After the payment of some Legacies he gives all to his Wife Then gives this Legacy at a time which never happened which I think clearly shews that the Wife was to have all that the Legatees did not live to receive\\nAnd the Bill was Dism't by a great Majority of the Court\"}"
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diff --git a/va/6038616.json b/va/6038616.json
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+"{\"id\": \"6038616\", \"name\": \"Marston vs Parrish\", \"name_abbreviation\": \"Marston v. Parrish\", \"decision_date\": \"1730-04\", \"docket_number\": \"\", \"first_page\": \"R35\", \"last_page\": \"R36\", \"citations\": \"1 Va. Col. Dec. 145\", \"volume\": \"1\", \"reporter\": \"Virginia Colonial Decisions\", \"court\": \"General Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:44:21.370223+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Marston vs Parrish.\", \"head_matter\": \"April 1730\\nMarston vs Parrish.\\nDetinue Fr Deft.\\nS. C. in MSS. Virg. Rep. in Congr. Libry. and printed in Jeff. Rep. [Note by W. G.]\", \"word_count\": \"744\", \"char_count\": \"3897\", \"text\": \"John Williams was possessed of two Negro Boys Arther and Bill and two Negro Women Dinah and Nanny and made his last Will 22d. April 1713. Willed his Negroes and all other Goods and Chattels to be valued and Appraised and equally divided between his Wife and 3 Children,'and that his Wife shou'd keep his Childrens Estates till they came of age and died soon after making his Will, After his death the Negro Woman Nanny had two Children, Obey and James, and the Negro Woman Dinah had a Child named Essex\\nAnthany the Widow married John Marston who supposing his Wife to be with Child, by his Will dated the first day of December 1719 Devised these Negroes viz. Arther, Will, Nancey, Essex, Obey and James to the Child his Wife was enseint of, and gave all the residue of his Estate Real and Personal to his Wife and her Heirs for ever, paying his Debts and the Orphans Estates in his Hands and died soon afterwards, but his Wife did not prove -with Child and the Widow is married to her 3d. Husband Parrish the Deft, and none of Williams Children are of age\\nAnd the Pit. as Heir at Law to Marston the 2d. Husband hath brought an Action of Detinue for Arthur, Will, Essex, Obey and James which are properly William's Estate and for Nancey which was Marstons proper Estate\\nThe Pit. as to the Negroes that were William's cannot maintain an Action of Detinue. For by the Will of Wm's they were to be equally divided between his Wife and Children, and until her part is assertained by a Partition it is uncertain which of them is hers\\nTherefore supposing her part vested in Marston her Second Husband, And that it descended to the Pit. as Heir at Law, the Pit. must know which of the Negroes are his to support this Action For in Detinue the Things demanded must be certain as in Debt\\nBut there is a stronger Objection, and that is to the Pits. Right to the Thing demanded upon the Will of his Brother\\nThe Devise to the Child in ventre Sa mere never vested because no child was born, but was for that reason void And what ever was intended to have been given to this Child if it had been born, by Law vested in the Wife to whom the residue of the Estate was given\\nA residuary Legatee is in Law Haredis and universal Successor to the Testator, and must have every Thing that is not given away by the Will. Here was only an Intention to give, but no Gift for want of a Person to take\\nTho' in the Case of Sprigy and Sprigy. 2. Vern 394 it was [146] Admitted that in the Devise.of the residue of a Personal Estate if a Legatee was dead at the time of making the Will the residuary Legatee shall not have the Benefit of that Legacy and that it shou'd not fall into the residue, because nothing was intended to pass by that Devise but the residue, after that and other Legacies paid.\\nYet the principal Case there was of a Legacy to Thos. Sprigy if he came from beyond Sea. And the Lord keeper was of Opinion that the Devise being Contingent, and Conditioned preced't which never happened was as if never given and the residuary Legatees shou'd have the benefit of that Legacy\\nSo here in a Case of a Devise in ventre sa mere is a Contingent Devise, for in reality the Woman was not with Child, and the Intent of the Testor appears plainly to be that the Wife shou'd have all his Estate if there was no Child, taking Notice of no body but his Wife and the Child he supposed she went with And there is a great deal of reason and Iustice she shou'd have it, for all the Negroes except one came by her, And she is Chargeable with all his Debts and the Estates of Orphans out of the residuary Estate\\nThe Court were of Opinion that the Pit. had no Right to recover the five Negroes that were Williams's, And, that the Pit. shou'd recover the Negro that was Marstons as his Heir at Law\"}"
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diff --git a/va/622320.json b/va/622320.json
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+"{\"id\": \"622320\", \"name\": \"Gerald G. Wilkins v. Peninsula Motor Cars, Inc.\", \"name_abbreviation\": \"Wilkins v. Peninsula Motor Cars, Inc.\", \"decision_date\": \"2003-10-31\", \"docket_number\": \"Record No. 022983\", \"first_page\": \"558\", \"last_page\": \"563\", \"citations\": \"266 Va. 558\", \"volume\": \"266\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:51:54.548814+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Gerald G. Wilkins v. Peninsula Motor Cars, Inc.\", \"head_matter\": \"Gerald G. Wilkins v. Peninsula Motor Cars, Inc.\\nRecord No. 022983\\nOctober 31, 2003\\nPresent: All the Justices\\nJohn Cole Gayle, Jr. (The Consumer Law Group, on briefs), for appellant.\\nAnthony E. Grimaldi (Martell, Donnelly, Grimaldi & Gallagher, on brief), for appellee.\", \"word_count\": \"1540\", \"char_count\": \"9622\", \"text\": \"JUSTICE LEMONS\\ndelivered the opinion of the Court.\\nIn his suit against Peninsula Motor Cars, Inc. (\\\"Peninsula\\\"), a jury awarded Gerald G. Wilkins (\\\"Wilkins\\\") enhanced damages of $12,000, a sum conceded by Peninsula to represent the trebling of $4,000 in actual damages under the Virginia Consumer Protection Act, Code \\u00a7 59.1-196 to -207 (\\\"VCPA\\\"). By agreement of the parties, the issue of attorney's fees and costs pursuant to Code \\u00a7 59.1-204(B) was reserved for determination by the trial court and was later fixed at $34,183. Also, in his claim for common law fraud, the jury awarded Wilkins $1,862.86 in actual damages and $100,000 in punitive damages. In this appeal, we consider whether the trial court erred in requiring Wilkins to elect between his remedies.\\nI. Facts and Proceedings Below\\nOn March 30, 1999, Gerald Wilkins purchased a 1998 BMW 5401 from Peninsula. An employee of Peninsula represented to Wilkins that the car was new despite the fact that the car's odometer had recorded 972 miles. In fact, the car had been previously titled and was considered a used car.\\nWilkins discovered Peninsula's misrepresentations when he received the title to the car in the mail. Wilkins brought an action against Peninsula for fraud, violation of the VCPA, and violation of the federal Odometer Act. After the close of evidence, the trial court struck the Odometer Act claim.\\nAfter the jury returned the verdict and in response to a motion by Peninsula, the trial court required Wilkins to elect between the two verdicts. The trial court explained that Wilkins had \\\"advanced two alternative theories of recovery based on a single transaction or occurrence\\\" and ruled that allowing Wilkins to receive both verdicts would permit a double recovery for his loss.\\nWilkins conceded that receiving both $100,000 punitive damages for the fraud claim and the additional $8,000 above actual damages for his claim under the VCPA would constitute a double recovery. He also conceded that receiving both $1,862.86 under the fraud claim and $4,000 of the $12,000 enhanced damages under the VCPA claim would constitute double recovery of actual damages. However, Wilkins maintained that no election between the two verdicts should be required and that he should receive $4,000 in compensatory damages, $100,000 in punitive damages, and the attorney's fees associated with his VCPA claim. The trial court held that by \\\"awarding damages under the VCPA and the plaintiff's fraud cause of action, the jury essentially compensated the plaintiff and punished the defendant twice.\\\" Wilkins appeals the adverse judgment of the trial court requiring his election between verdicts based upon separate causes of action.\\nII. Analysis\\nThe issue before us involves a question of law. We review de novo the trial court's determination that Wilkins was required to elect between his verdicts. Eure v. Norfolk Shipbldg. & Drydock Corp., 263 Va. 624, 631, 561 S.E.2d 663, 667 (2002).\\nThe genus of election of remedies has many species. This case is not about claims that are irreconcilable, such as a claim for rescission of the contract accompanied by a claim for specific per formance. Nor does this issue involve questions of election between remedies at law or in equity. The only election of remedies issue presented in this case is whether the bar against double recovery justifies the trial court's requirement that Wilkins elect between verdicts. We had previously stated that the trial court must assure that a verdict, while fully and fairly compensating a plaintiff for loss, does not include duplicative damages. Tazewell Oil Co. v. United Virginia Bank, 243 Va. 94, 113, 413 S.E.2d 611, 621-22 (1992). While the precise circumstances presented by this case have not been addressed in Virginia, the principles resolving the matter are not unfamiliar.\\nIn determining whether multiple damage awards constitute impermissible double recovery, the trial court must consider the nature of the claims involved, the duties imposed and the injury sustained. Advanced Marine Enterprises v. PRC Inc., 256 Va. 106, 124, 501 S.E.2d 148, 159 (1998). In Advanced Marine, the trial court had entered judgment of treble damages on a claim pursuant to Code \\u00a7 18.2-499 and -500 for conspiracy to injure plaintiff in its reputation, trade, business or profession. Additionally, the trial court had entered judgment for punitive damages on three separate counts involving \\\"breach of fiduciary duty, intentional interference with contractual relations, and intentional interference with prospective business and contractual relations.\\\" Id. Concluding on appeal that the awards were not duplicative, we stated:\\nThe awards of punitive and treble damages were based on separate claims involving different duties and injuries. . To prevail in its business conspiracy claim, PRC was required to prove that the defendants combined, associated, agreed, or acted in concert together for the purpose of willfully and maliciously injuring PRC in its business \\\"by any means whatever.\\\" Code \\u00a7 18.2-499. In contrast the [other claims] do not require such proof and relate solely to the employment relationship between PRC and the PRC Managers and employees. Thus, the chancellor did not err in awarding PRC both punitive and treble damages.\\nId. at 124-25, 501 S.E.2d at 159.\\nHowever, when the claims, duties, and injuries are the same, duplicative recovery is barred. In Moore v. Virginia Int'l Terminals, 254 Va. 46, 49, 486 S.E.2d 528, 529 (1997), we affirmed the right of an injured worker to seek compensation under either or both the fed eral Longshore Act and the state workers' compensation statutes, but \\\"[t]he claimant, however, is entitled to only a single recovery for his injuries.\\\"\\nUnlike the circumstances presented in Advanced Marine, the causes of action brought by Wilkins have the potential for duplication of damages. However, Wilkins concedes that he is only entitled to one award of compensatory damages, one award of exemplary damages, and one award of attorney's fees. He does not seek a judgment for the actual damages awarded in the VCPA claim in addition to the actual damages awarded in the fraud claim. He maintains that the trebled portion of the verdict under the VCPA is in the nature of exemplary or punitive damages and does not seek recovery of that portion of the award in addition to the punitive damage award. Wilkins argues that judgment should be entered in his favor for $4,000 actual damages (from the VCPA claim), $100,000 punitive damages (from the fraud claim), and $34,183 in attorney's fees and costs (ancillary to the VCPA claim). Acknowledging that the trial court was required to assure that there was not duplicative recovery, he argues that the trial court erred in requiring him to elect between his verdicts based upon the different causes of action. We agree with Wilkins.\\nThis case does not present irreconcilable causes of action which would require Wilkins to elect between them. Rather, this case involves causes of action with different elements of proof and potentially duplicative damage awards. In these circumstances, Wilkins is entitled to full and fair compensation but not duplicative compensation. The trial court erred in requiring Wilkins to choose between causes of action, when all that was required was supervision of the damage awards to avoid double recovery.\\nAdditionally, Peninsula argues that an award of attorney's fees and costs under the VCPA is duplicative of punitive damages. The plain language of the statute defeats this argument. Code \\u00a7 59.1-204(B) clearly states, \\\"Notwithstanding any other provision of law to the contrary, in addition to any damages awarded, such person also may be awarded reasonable attorney's fees and court costs.\\\" Peninsula suggests that such language was intended to apply only to damages awarded under the VCPA and does not apply to circumstances where damages are awarded for an independent cause of action. First, damages were awarded under the VCPA in this case. Second, if the General Assembly had intended such a restrictive view of a remedial statute, such an effect could have been evinced by plain language. See, e.g., City of Richmond v. Richmond Metro. Auth., 210 Va. 645, 648, 172 S.E.2d 831, 833 (1970); Greenberg v. Commonwealth, 255 Va. 594, 600, 499 S.E.2d 266, 270 (1998); Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990).\\nAdditionally, the purpose of the attorney's fees and costs provision is different from the purpose of punitive damages. Punitive damages are designed to punish offensive or unlawful conduct and deter it in the future. Flippo v. CSC Assocs., 262 Va. 48, 58, 547 S.E.2d 216, 222 (2001). The fee shifting provisions of the VCPA are designed to encourage private enforcement of the provisions of the statute.\\nAccordingly, we will reverse the judgment of the trial court and remand with directions to enter judgment for Wilkins in the amount of $138,183 plus an award of reasonable attorney's fees and costs for successfully prosecuting this appeal.\\nReversed and remanded.\\nConsequently, we are not presented with the issue whether the enhanced damages under the statutory conspiracy claim are duplicative of the punitive damages in the fraud claim. See United Laboratories, Inc. v. Kuykendall, 437 S.E.2d 374 (N.C. 1993).\"}"
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diff --git a/va/6714221.json b/va/6714221.json
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index 0000000000000000000000000000000000000000..2f0f3e140f8d3b121aed4e2579b667c0545f6031
--- /dev/null
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+"{\"id\": \"6714221\", \"name\": \"Long v. Colston\", \"name_abbreviation\": \"Long v. Colston\", \"decision_date\": \"1820-06\", \"docket_number\": \"\", \"first_page\": \"823\", \"last_page\": \"825\", \"citations\": \"1 Gilmer 98\", \"volume\": \"21\", \"reporter\": \"Virginia Reports\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:38:23.202360+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Long v. Colston.\", \"head_matter\": \"Long v. Colston.\\nJune, 1820.\\nCovenants \\u2014 To Make Deed--Performance \\u2014 Case at Bar. \\u2014-Ij. covenanted with C. \\u201cto make over 'by deed of bargain and sale, certain lands in England, and thatlj.\\u2019s wife should annex such covenants and warranties as would ultimately assure the premises to 0.:\\\" in consideration of which, C. covenanted to convey other lands in the U- \\u00f1. to L. The execution of a deed of bargain and sale by L. and wife, with her privy examination and relinquishment of dower in Virginia, is such a performance by L\\u00a1.. as entitles him to an action against C., for refusing to convey the lands in the II. S.\\nC. having bound himself to pay $20,000 in money and lands, for the lands in England, will be entitled to relief for any deficiency in their value, short of that sum.\\nThis is a declaration in covenant, containing two counts. The 1st sets forth, that Long and Colston on the 8th July 1797, entered into a covenant which recited, that Chilcott Symmes of G. Britain, on the 24th June 1742, devised certain lands, &c., to Richard Chichester in fee; that Richard Chichester devised them to his son John; that John Chichester died under age, leaving a daughter, (Mary) his only child, who married Burgess Ball: and died, leaving two children, a son named Burgess, and a daughter called Elizabeth. Burgess Ball the younger, heir to Mary Ball, \\u2019died in 1790, under age, and without issue; whereby the lands in Dorset and Devonshire in England, (which were the subject of the contract between Long and Colston) became vested in Elizabeth B. Ball, at the death of her father, who was tenant by the courtesy. Elizabeth B. Ball married Armistead 'Long the plaintiff. The lands had been sold, and the proceeds vested in English funds, by act of Parliament. The covenant witnessed, that Long and wife, should on or before the 31st July 1797, make over, by deed of bargain and sale to Col-ston, all the lands, tenements, &c. aforesaid in Devonshire, Dorset and the town of Exeter, or the proceeds thereof, vested in the English funds; and that Long and wife should annex all such covenants and warranties, as would ultimately assure the premises to the said Colston. Colston in consideration of this covenant on the part of Long, bound himself to pay the sum of 820,000 upon the execution of the conveyance aforesaid, payable in 85000 cash, and $15,000 in Kentucky lands, and other lands in the north western territory, to be selected from a schedule at the price of S2 per acre: for which Colston Was to make all necessary conveyances. The declaration then averred, that Long and wife executed and delivered to Colston, on the 8th July 1797, an indenture of bargain and sale, by which deed, and the privy examination of the wife in Culpeper, she released her dower; and both Long and wife made over by deed of bargain and sale, &c., the lands in - Dorset, Devonshire and Exeter, or the proceeds in the English funds to Colston and his heirs, according to the true intent of the covenant: and that the wife did annex all such covenants and warranties as would ultimately assure the premises, &c. The declaration farther averred, that after the execution of this indenture, Long had selected from the schedule of lands, a certain number of acres (of which the defendant had notice,) and demanded a conveyance of them from Colston; which Colston refused to make, and so had broken his covenant.\\nThe 2d count contained the same recital, with an averment, that Long did execute to Colston, the-deed of bargain and sale, transfer and assignment, with the covenants and warranties mentioned, (omitting the privy examination) according to the true intent and meaning *of the covenant; and demanded the conveyance of the western lands by Colston, which he had refused, and so had broken his covenant, to the plaintiff\\u2019s damage, &c.\\nThe defendant craved oyer of the covenant and deed; and to the first count of the declaration filed eleven several special-pleas, which in substance were: That the defendant had performed his covenants, and protesting that the plaintiff had not performed his, and that all the interest of Elizabeth Long in the lands, &c., did not pass by the deed of bargain and sale, averred, that at the time of executing the original conveyance, part of the property mentioned in the covenant was real estate lying in England, vested in Mrs. Long a feme covert, which could be conveyed, only by a fine levied by Mrs. Long; or by a privy examination before the Lord Chancellor, or some other Judge. That part of the land which was the subject of the contract, had by act of Parliament been sold for the payment of legacies, &c., and the surplus, had by the same act, been ordered to be reinvested in lands. Which money thus ordered to be converted into land, was also assignable only by special methods, appointed by the laws of England. That a privy examination in England was necessary to pass Mrs. Eong\\u2019s title. That being a married woman at the time of executing the covenant, she was by the law of England incapable of making a contract, and the covenant and warranty were as to her and her heirs void; therefore Eong had not performed his covenant, which was precedent to the defendants. And lastly, that the defendant executed his bond (with Henry Eee as surety) to the . defendant, which he had accepted; to which bond there is a condition annexed, stipulating, that for the entire value of the said lands in sterling money, the defendant should pay to the plaintiff, only one pound current money, for each pound sterling; and the defendant averred, that the value of the lands, &c. in sterling money, was less than 21001. current money of Virginia. *And farther the defendant averred, that before the demand by the plaintiff, he had paid him 15001. current money; and conveyed to him 1000 acres of land contained in the schedule, at $2 per acre, amounting to 6001. on account of the said contract; which exceeded the value of the lands covenanted to be conveyed by Eong, and so had performed his covenant.\\nThere were eleven special pleas to the second count, which (except the 10th) were the same in substance with those to the first count.\\nThe 10th plea to the second count, averred in addition to that filed to the first count, that the value of the lands, &c. in England, had been ascertained by decrees in Chancery, and was less than 21001. which had been paid to Eong; and therefore the defendant had performed his covenant.\\nThe plaintiff protesting, that he had performed his covenant, and that all Mrs. Eong\\u2019s right passed by the deed; replied to the 1st plea, that the defendant had not performed his covenant, and concluded to the country. To all the other pleas the plaintiff demurred, and craved oyer of the bond mentioned in the tenth plea.\\nThe defendant joined in the issue of fact tendered to the first plea, and joined in the demurrers.\\nTo the pleas to the second count, the plaintiff after protesting that he had performed his covenants, and that the estate of himself and wife in the English lands, &c., did pass by the indenture and privy examination; that he had done every thing required of him by the covenant, to entitle him to recover; that there was no final decree of the Chancery of England, ascertaining the value of the English estate in sterling money, according to the covenant; and concluded to the country. To the general replications, that the plaintiff Had performed his covenants, and that the defendant had not, the defendant joined the issue tendered.\\n*To the several applications of the plaintiff, that the propertj' in England did pass to Colston by the conveyance mentioned in the second count; that there had been no final decree in the English Chancery ascertaining the sterling value of the English estate; according to the true meaning of the covenant, the defendant demurred.\\nThe questions of law arising on the demurrers to the first count, were adjudged for the plaintiff: and those on the demurrers to the plaintiff\\u2019s replications to the defendant\\u2019s pleas to the second count, were adjudged for the defendant, the court being of opinion the second count was bad.\\nThe defendant then moved the court, to admit him to plead other pleas; the motion ,was continued to the next term; when the court allowed the defendant to plead, that Eong and wife did not on the 8th July 1797 or at any time before 31st July 1797, make over by deed of bargain and sale, transfer and assignment, all the lands and tenements aforesaid,- or the proceeds thereof, vested in the funds of England; and that they did not by deed as aforesaid, bargain and sell, transfer and assign, all their right and interest in the premises, to the defendant and his heirs, against the claims of them the said Eong and wife, and their heirs, with such covenants and warranties annexed, as would ultimately assure the premises to the defendant, &c., but failed so to do, contrary to the tenor of the covenant, &c.\\nThe plaintiff replied, that he and his wife did on the 8th July 1797 execute a deed of bargain and sale: and that on the 17th July 1797, Elizabeth Long, by her privy examination, &c., in Culpeper, relinquished her dower in the premises; which deed and privy examinations, as set forth in the declaration, were a deed of transfer and assignment, within the meaning of the covenant, and a performance by the plaintiff; he concluded to the country, and the defendant joined.\\n*The Jury found. a verdict for the defendant, who had judgment. But the plaintiff filed two bills of exceptions in the progress of the cause.\\nThe first - stated, that the plaintiff gave in evidence the original covenant in the declaration mentioned; the copy of the indenture of the bargain and sale by Eong and wife; the certificate of the acknowledgment in court of the execution of the said indenture by the plaintiff; and of the privy examination of Mrs. Long to the deed; together with her acknowledgment of its execution in court; and the deliver by both of them, prior to the 31st July 1797. The plaintiff also gave in evidence the bond by Colston and his surety, Eee; a power of attorney from himself and wife to the defendant; with a certificate of her privy examination to it, executed before 31st July 1797. All of which writings, were spread upon the record. And then the plaintiff moved the court to instruct the jury, that according to the true construction of the covenant, the execution and delivery of the deed of bargain and sale, with the warranty, and privy examination, and the acceptance of the deed, by the defendant, was a performance of the condition on the part of the' plaintiff, which entitled him to recover; oil proving a selection of the lands in the schedule, and a refusal on the part of the defendant to convey. The court refused the instruction, and the plaintiff excepted.\\nThe second bill of exceptions stated, that the defendant having offered certain depositions, to prove that the wife of Burgess Ball the elder, died in 1775 during the life of her husband, leaving two children, Burgess Ball jun. and Elizabeth the plaintiff\\u2019s wite; that Burgess Ball the son died in 1793, and his father died in 1801. That Elizabeth the plaintiff\\u2019s wife, died in 1806. Whereupon the plaintiff moved the court, to instruct the Jury, that the deed of bargain and sale, with the privy examination, passed to the defendant such an estate in the premises, or in some part of them, as entitled the plaintiff *to his action, upon proving a demand of a conveyance of the western lands, and a refusal by the defendant to convey which were admitted. The court refused this instruction also, and the plaintiff excepted.\\nThe plaintiff appealed from the judgment of the General court, where this cause -was tried by consent of parties.\\nIt was argued in the court of appeals by Tazewell and Wickham for the appellee; and by Jones (of Washington) and Stanard for the appellant.\\nThe Reporter regrets extremely, that no reporter was appointed at the time of the argument, and consequently he cannot give to the profession even a sketch of the profound and comprehensive views taken of the cause by either counsel.\\nTbe principal case was cited in Tunstall v. Pollard, 11 Leigh 28.\", \"word_count\": \"2498\", \"char_count\": \"14278\", \"text\": \"By the court.\\nThe court is of opinion, that upon the true construction of the covenant upon which this suit is brought, the appellant was entitled, on the facts set forth in the bill of exceptions, to this action against the appellee; and that his recovery in this action cannot, in any manner be affected by a regard to what may be the value of the estates in England, the appellee being bound immediately on the execution of the deed, as contemplated in the covenant, to pay the $5000 in cash, and $15,000 in lands at the price of $2 per acre, as stipulated in the covenant, whatever may be the real value of the estates in England. As to the objection on the part of the appellee, that this action did not lie until the title to the English estate was conveyed by means of fine and recovery, according to what is alleged to be requisite by the laws of England to pass the estates aforesaid: that objection is equally repro-bated by the terms of the covenant itself; by the cotemporaneous exposition of the parties in relation thereto; and by the delay of the appellee for so great a length of time, to take the objection aforesaid.\\n*But while the court is of opinion that the recovery of the appellant in this action, is not to be delayed for the final adjustment of the estates in England, and that the amount of the recovery in this action, cannot be at all affected by what may be the value of the said estates, yet the court for the satisfaction of the parties, expresses its opinion to be, that if it shall appear on the final adjustment of the said estates, that the value thereof is less than $20,000, the appellee will be entitled to relief for such deficiency ; the court being of opinion that the $20,000 aforesaid was only intended as an advance, subject to. the final adjustment of the value of the said estates, and not as a gross sum intended to be given therefor.\\nThe judgment of the General court is therefore to be reversed, and the cause to be remanded for a new trial, on which the instructions formerly refused, are to be given if required. _\\nBbooke absent.\"}"
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+"{\"id\": \"6715030\", \"name\": \"Between The executors of DUNCAN ROSE, plaintiffs, and CARTER NICHOLAS, defendent\", \"name_abbreviation\": \"Rose v. Nicholas\", \"decision_date\": \"1794-05\", \"docket_number\": \"\", \"first_page\": \"260\", \"last_page\": \"262\", \"citations\": \"2 Va. Ch. Dec. 268\", \"volume\": \"2\", \"reporter\": \"Decisions of the Cases in Virginia, by the High Court of Chancery (Wythe)\", \"court\": \"High Court of Chancery of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:34:00.488559+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Between The executors of DUNCAN ROSE, plaintiffs, and CARTER NICHOLAS, defendent.\", \"head_matter\": \"Between The executors of DUNCAN ROSE, plaintiffs, and CARTER NICHOLAS, defendent.\\nMay, 1794.\\nContract (or Purchase o\\u00ed Land \\u2014 Specific Execution \\u2014 Decree. \\u2014 Decree for specific execution of a contract for the sale and purchase of land: the plaintiff insisted that it should also have been for the sale of the land, if the purchase money should not he paid in a reasonable time: and a decree for the deficiency, if any, against the body or estate of the defendent. Held : that an agreement is 'in equity specifically performed -when the parties are put into the state in which they would have been, if the agreement had been punctually performed, and the court Will not decree the land to be sold; but that the defendent do pay the purchase money, the dates for paying his promised bonds having passed.\\nBY written agreement, the plaintiffs had bound themselves to convey a parcel of land, when it should be surveyed, to the defendent, and he had bound himself to give his bonds for payment of the purchase money to the sellers at several days of payment.\\nA conveyance of the land, after it had been surveyed, was offered by the plaintiffs to be made to the defendent, upon his performing what by the agreement he was bound to perform, which he refused.\\nWhereupon the plaintiffs brought a bill for a specific execution of the agreement, adding the usual prayer for further relief; and the defendent brought a cross bill to set aside the agreement.\\nThe defendents bill was dismissed.\\nAnd the decree pronounced for the plaintiffs, the Sth day of may, 1794, was, that, upon their executing a conveyance of the land, and delivering it to the defend-ent, or, if he will not accept \\u2018^the conveyance, lodging it, for his use, with the clerk of this court, he the defend-ent do pay to the plaintiffs the purchase money, the days of payment which ought to have been limited in the conditions of the bonds, being now passed, with interest thereon from those days respectively.\\nThe plaintiffs counsil insisted, that the decree ought moreover to have authorised a sale of the land, thereby to raise the money, if it should not be paid in a reasonable time, and if the product of the sale should not be equal to the debt, to have au-thorised an execution of the decree for the deficiency against the body or estate of the defendent. But\\nContract \\u2014 Specific Execution. \\u2014 On this sub\\u00ed ect, see monographic note on \\\"Specific Performance\\u201d appended to Hanna v. Wilson, 3 Gratt. 243; foot-note to Parrill v. McKinley, 9 Gratt. 1.\\nSee Appendix, Wythe 447.\", \"word_count\": \"1882\", \"char_count\": \"10667\", \"text\": \"By the court,\\nA party injured by breach of an agreement, at his election, may have either of two remedies; he may bring an action at common law, and recover damages for the injury, or he may bring a bill in equity, and compel the other party to perform the agreement specificaly.\\nAn agreement is understood to be performed specificaly, when the parties are put into the state in which they would have been, if the agreement had been punctually performed. If this be not the true criterion by which decrees in such cases ought to be examined, let the fallacy of it be shewn.\\nI* it be the true criterion, we will suppose the agreement to have been punctually performed, that is, that soon after the signature of it one party had procured the survey to be made and had conveyed the land, and the other party had sealed and delivered his bonds for payment of the purchase money, in such a case,\\nIf the plaintiff had brought a bill praying a decree for sale of the lands in order by the product of sale to raise the purchase money, the question would be, ought the court of equity to decree, or rather hath the court of equity power to decree the sale?\\nTo authorise the decree some decisions by the english court of chancery, in cases said to be similar to this, were produced by counsil for the plaintiffs; and others, to the same purpose; were said by him to be \\u00abextant, but the similitude of those produced is not admitted, and, if it were admitted, and the number of them were greater, the example will not be followed by this court, until the judge thereof shall be convinced, otherwise than by precedents only, that he hath power to make such a decree in the ease supposed; and if he hath not the power in the case supposed, he hath it not, as is believed in the principal case.\\n*The ground for interposition by the court of equity in decreeing execution of agreements seemeth to be this: for injury by breach of an agreement the court of common law can only award a compensation in damages, which cannot be certainly known to be commensurate exactly to the injury, because the things compared are heterogeneous, so that by no standard, common to both, their equality or difference can be discerned, the action at common law therefore is not an adaequate remedy.\\nBut the court of equity can decree performance of the agreement, which performance expunges the injury itself. The bill in equity therefore is an adaequate remedy.\\nThe terms adaequate remedy are relative, an adaequate remedy must be accommodated to the wrong which is to be redressed by it. the manifest analogy between an adaequate remedy and its correlative wrong, limits the progress of the former by the extent of the latter, the remedy, which doth more than redress the wrong, is not adaequate,\\u2014 so far as it goeth beyond the wrong, is not a remedy, unless its metaphorical sense, in which it is here used, vary from its proper sense, any more than the remedy in medicine, whose virtue and efficacy are adapted peculiarly to some certain disease, and are adequate to it, can be called a remedy for a different disease.\\nNow what is the wrong of which the plaintiffs complain, and for which they seek redress? the question is answered in these words in their own bill: 'but now so it is that the said Carter Nicholas hath altogether refused to comply with his agreement aforesaid, and will neither attend to have the boundaries of the land laid off, nor accept a deed for the same, or pass or seal and deliver his bonds for the purchase money, which is contrary to equity.'\\nIf the court decree the land to be sold for payment of the purchase money, it would decree something to be done, not which the parties agreed, but which the parties did not agree should be done, and, under pretext of exercising a power to administer a remedy for redress of a wrong in non performance of an agreement, would extend that agreement to a subject manifestly not in contemplation of the parties, creating another wrong for the sake of administering a remedy to redress it.\\nIf indeed the defendent, after the days of payment elapsed, had brought a bill for execution of the agreement, the court would have allowed the present plaintiffs to retain the legal title oppignerated in equity for the purchase money, until it should be paid or secured, where the party, against whom a bill for execution of an agreement is brought, shews that a strict execution *would be inequitable, and prays that a decree may not be made but upon such terms as are equitable, the court which is not bound to make any decree of it seem not equitable, may impose those terms upon the plaintiff, or, if he will not submit to them, may dismiss his bill, leav ing him to his remedy by action at common law; but where the party bringing a bill for execution of an agreement, alledging that the execution will not sufficiently relieve him, prays a decree for something more which the agreement doth not comprehend, the court of equity cannot, as is conceived, justify such an amplification of the plaintiffs remedy, the court can only decree an execution in both cases, the difference between them is that in one the court witholds the remedy, which it hath power to grant, but is not obliged to grant, until the defendent will consent to do something which will make the decree an equitable adjustment; in the other it doth not withold the remedy.\\nThe plaintiffs counsil objected, that the decree reserves liberty to the defendent, at any time indefinitely, to demand a conveyance, upon payment of the consideration money and interest, which is unreasonable, but the plaintiffs might have prevented it, by consenting to a rescission of the agreement, according to the prayer of the de-fendent's bill, instead of pressing for a dismission of the bill, \\u2014 may prevent it now, by consenting to this addition to the decree, 'that the defendent be barred of his title to the land, and restore the possession thereof to the plaintiffs, unless he pay to them the debt, interest and costs before a time to be limited,' the consequence of which would be a discharge of the debt, if the plaintiffs will n\\u00f3t consent to this, the decree must remain.\\nIf the defendent had brought a bill for execution of the agreement, and the cause had come on to be heard, before the day of payment had elapsed, perhaps the court would have decreed the conveyance upon his sealing and delivering his bonds for payment of the purchase money, unless his credit appeared to be more dubious than it was at the time of the agreement; because this court cannot discover that it hath power to alter ag'reements by supplying defects in the securities thereby stipulated by the parties themselves, if the court would not have decreed the conveyance upon those terms, the consequence is not that the decree must have subjected the land to sale for payment of the purchase money, the court either might have refused to make any decree, so that the party must have resorted to his remedy at common law, or might have decreed the conveyance upon the terms of paying or securing the purchase money, whereby the debt would be so far a lien upon the land, that before *one was paid, or secured, the title to the other would not be conveyed. but this would have been a different decree from that now desired, for subjecting the land to sale for payment of the purchase money, or so much as will be thereby raised, charging the purchaser with a deficiency. \\u2014 a decree which not only is not justifiable by the agreement but, which, in one event seeming not improbable, would give the sellers a double satisfaction for the same thing; for-if the land be sold, and the sale produce not the whole purchase money, for example not more than half, which the defendent supposed equal to the full value of it, the plaintiffs, for the same land, besides that product, will recover from the defendent, if he be able to pay it, the other half of the purchase money- \\u2014 a decree asked, without grace, as is conceived, from a court, of whose attributes one is a power and disposition to alleviate, instead of aggravating the burdens which legal rigor sometimes imposes.\"}"
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+"{\"id\": \"6715154\", \"name\": \"West v. West's Executors\", \"name_abbreviation\": \"West v. West's Executors\", \"decision_date\": \"1825-03-24\", \"docket_number\": \"\", \"first_page\": \"595\", \"last_page\": \"602\", \"citations\": \"3 Rand. 373\", \"volume\": \"24\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"West v. West\\u2019s Executors.\", \"head_matter\": \"West v. West\\u2019s Executors.\\nMarch, 1825.\\n..Husband and Wife \\u2014 Separate Estate \\u2014 What Consii-tutes \\u2014 Case at Bar \\u2014 A man makes his will, by which he gives one-\\u00f1tth p \\\\rt of his estate to his executors, for the benefit of a married daughter (who lived separate from her husband) at the discretion of his executors. He also desires his executors to bring suit against the husband of his said daughter, for 2001. which, when recovered, he desired his executors to dispose of the same, to his said daughter, to be disposed of at her discretion. Held, that this devise gave the daughter a separate estate in the property devised.\\nSame \\u2014 Same\\u2014Jus Disponendi. \\u2014 Such a devise gives the daughter a power to bequeath the personal property, but not the real; the rule being, that as to personalty, the jus disponendi is incident to a separate estate; but as to real property, a married woman cannotdevise it, unless a power to do so is reserved by articles before marriage, or by the instrument creating the estate.\\nSame -Same \\u2014 'Willi.\\u2014Quaere, whether such a paper by a feme covert is properly a will, or only a testamentary disposition iu nature of a will?\\nSame \\u2014 Same\\u2014Probate ot \\u2014 Whatever be its denomination, it ought to be admitted, to probate in the proper Court, and letters of administration granted to the persons named in the paper as executors.\\nThis was an appeal from the Superior Court of Bedford county.\\nThe case was argued by Leigh, for the appellant, and Johnson, for the appellees;\\nbut as it is so fully discussed by the Judges, it will be unnecessary to do more than refer to the opinions which follow.\\n*March 24.\\nHusband and Wife \\u2014 Equitable Separate Estate. \\u2014 Bee discussion of this subject in monographic note on \\u201cHusband and Wife\\u2019\\u2019 appended to Oleland v. Watson, 10 Gratt. 159.\\nfSame \\u2014 Same\\u2014Creation of \\u2014 Words Necessary, \\u2014 No particular phraseology is necessary to the creation of a separate estate in a feme cooert, even where it is created by deed. Much less is it necessary when the estate is created by will. Jn this respect, as in all others growing out of wills, the intention o\\u00ed the testator is to govern. Raymond v. Jones, 33 Gratt. 321, quoting with approval from the principal case. Whenever a gift is made to the wife during cover-ture, even by a stranger, if it appear, by any circumstance, that the intention ox the donor was that she should have it to her separate use, equity will give effect to this intention, and hold the husband her trustee. Lewis v. Adams, 6 Leigh 335, citing the principal case as authority. See principal case also cited on this subject in Nixon v. Rose, 12 Gratt. 429; Haymond v. Jones, 33 Gratt. 326: Chapman v. Price, 83 Va. 896, 11 S. E. Rep. 879; Coatney v. Hopkins, 14 W. Va. 359; Olay y. St. Albans, 43 W. Va. 542, 27 S. E. Rep. 368.\\nSame \\u2014 Same\\u2014Jus Disponendi. \\u2014 it is established in England, by a long course of uniform decisions, that a married woman is, as to property settled to her separate use, a feme sole-, and, as a consequence of this principle, and an incident to the right of enjoyment, that she has a right to dispose of all her separate personal property, and the profits of her separate real estate, in the same manner as if she were a feme sole, unless her power of alienation be restrained or restricted by the instrument creating the separate estate. And the same principle has been sanctioned in Virginia in tbe case of West v. West, 3 Rand. 373. Vizonneau v. Pegram, 2 Leigh 185.\\nIt is the established doctrine in Virginia that a married woman, as to property settled to her separate use, is to be regarded as a feme sole, and has the right to dispose of all her separate personal estate, and the rents and profits of her separate real estate in the same manner as if she were a feme sole. unless her power of alienation be restrained by the instrument creating the estate. Burnett v. Hawpe, 25 Gratt. 486, citing principal case as its authority. To same effect, the principal case is cited in Williamson v. Beckman, 8 Leigh 27; Lee v. Bank of United States, 9 Leigh 207.208; Justis v. English. 30 Gratt. 571; Patton v. Merchants\\u2019 Bank, 12 W. Va. 608; Rad-ford v. Carwile, 13 W. Va. 647, 650. 669; Dulin v. McCaw, 39 W. Va. 724. 20 S. E. Rep 683 And in Virginia, the right to restrain or interdict the power of the wife to dispose of her separate estate has been expressly recognized and affirmed in several cases. Nixon v. Rose. 12 Gratt. 431, citing principal case. To the same effect, the principal case is cited in Radford v. Carwile, 13 W. Va. 652.\\nAnd the wife cannot devise her separate real estate, unless a power to do so is expressly conferred by the instrument creating it. To this effect, the principal case is cited in Lee v. Bank of United States, 9 Leigh 207, 208; Radford v. Carwile, 13 W. Va. 647: Dillard v. Dillard. 2 Va. Dec. 31.\\nAgain, while the rents and profits of her real estate are personal property, and she can dispose of them in any manner she desires yet if she invests them in real property, they become henceforth separate real estate, subject only to such a,/\\u00abs dis-ponendi as belongs to such an estate. McChesney v. Brown, 25 Gratt. 404,405, citing principal case as sustaining tbe position. To tbe same effect, tbe principal ca.se is cited in Radford v. Carwile, 13 W. Va. 669. Tbe principal case is also cited in Price v. National Bank. 92 Va. 4\\u00ab3, 23 S. E. Rep. 887.\\nSee further, on this subject, foot-note to Vizonneau v. Pegram, 2 Leigh 183; foot-note'to Lee v. Bank of United States, 9 Leigh 200; foot-note to Williamson v. Beckman, 8 Leigh 20; monographic note on \\u201cHusband and Wife\\u201d appended to Oleland v. Watson, 10 Gratt. 159, where the Virginia and West Virginia cases on this subject are collected.\\nWills \\u2014 Probai--Conclusiveness oi \\u2014 In Ballow v. Hudson, IB Gratt. 678, it is said: \\u201cThis court has decided, very frequently, that it a court of competent jurisdiction shall admit a will to probat as a will of lands, which appears upon its face, or upon the record of the probat, not to have been duly executed as a will of lands, still the sentence is binding upon all concerned in interest, and upon all courts as long as the sentence remains in force. That such is the law is regarded as well settled. See Bagwell v. Elliott, 2 Rand. 190. Judge GkeioN\\u2019s opinion; West v. West, 3 Rand. 373, 386; Nalle v. Fenwick. 4 Rand. 585; Vaughan v. Green, 1 Leigh 287; Street v. Street, 11 Leigh 498; Parker v. Brown, 6 Gratt. 554; Robin-sons v. Allen, 11 Gratt. 785.\\u201d\\nIt is well settled that the sentence of a court of probate, of competent jurisdiction, admitting a will or writing in the nature of a will, to probate, is conclusive evidence of the due making thereof, and that it cannot be denied in any collateral proceeding touching the will; that its validity can only be tested by resorting to the means provided by law for that specific purpose. Robinsons v. Allen, 11 Gratt. 787. citing principal case as authority. To the same point, the principal case is cited in Vaughan v. Green, 1 Leigh 293: Nalle v. Fenwick. 4 Rand. 589.\\nSee further, monographic note on \\u201cWills\\u201d appended to Hughes v. Hughes, 3 Munf. 209.\", \"word_count\": \"8776\", \"char_count\": \"48187\", \"text\": \"The Judges delivered their opinions.\\nJUDGE CARR:\\nIn April 1803, Margaret West, and the appellant, being man and wife, a separation, by mutual consent, took place between them; as appears by a letter from the appellant to John Hook, the father of his wife. This letter gave the father considerable offence, if we may judge from some marginal notes, proved to be in his handwriting. The separation between West and his wife, was permanent. It is said they lived about fifty miles apart.\\nOn the 29th of May, 1808, John Hook, made his will, having five children, he gives to each a fifth part of his estate, deducting the different sums he had advanced to them respectively, (which he names in the will.) To the other four children, the devises are made -directly; vesting in the devisee, the clear legal title. The devise to his daughter Margaret, is in the following words; \\\"And the remaining one-fifth, I give to my executors, for the benefit of my daughter Margaret West, at the discretion of my executors, subject to a deduction of 2001. paid Thomas West, which said 2001. I desire my executors may institute a suit for; and provided the same may be recovered. my executors are requested to , dispose of the same, to my daughter Margaret West, to be disposed of at her discretion.\\\"\\nAfter the death of the father, a division of the estate took place, and Margaret's share of the personalty was put into her possession, and remained with her constantly afterwards. She also purchased a tract of her father's land, which was charged to her in the division; but no conveyance was ever made.\\nOn the 1st of January, 1822, Margaret West made her will in the usual form, which, in the July after, was offered for probate to the County Court of Bed-ford. That *Court admitted it to probate, and the husband, who contested its admission, appealed. The Superior Court affirmed the judgment; and the husband again appealed.\\nTwo grounds of opposition Jo the will were taken: 1st, as to the ability of the testator, in fact, to make a will: 2d, as to her competency in law. The first point was properly abandoned; for it is clear, from the evidence, that she was of sound and disposing mind.\\nThe second is a more difficult question. I will enquire, 1st, could Mrs. West make a will of personals? 2d, as to real estate?\\nIt is certainly a general rule, that a feme covert cannot make a will; but to this rule there- are some exceptions. She may make a will of every thing she is entitled to in autre droit, as where she is executrix; but nothing will pass, but by a pure right of representation to -the former owner. For, if the property is reduced into possession, from that moment it becomes the property of the husband, and cannot pass by the will. She may also make a will of her choses in action not reduced into possession, and chattels real; but if the husband does not assent to the proof of the will, it will be void, and cannot be proved. If he does assent, either by matter ex post facto the death of the wife, or by previous contract, that entitles the executor of the wife to claim those things which would have been the husband's, as administrator. Per Lord Thurlow, in Hodsden v. Loyd, 2 Br. C. C. 534. So, where there is an agreement between husband and wife, before marriage, that the wife shall have to her separate use, either the whole, or particular parts, of her personal estate, she may dispose of it by an act in her life, or by will; and she may do it by either, though nothing be said of the manner of disposing of it. Peacock v. Monk, 2 Ves. 190. So, by a devise, a married woman may acquire a separate interest, without the intervention of trustees; and the legal estate devolving on the husband, he will be decreed a trustee for the wife. Bennett v. Davis, 2 P. W. 316. So, a, legacy to a feme, *covert, \\\"her receipt to be a sufficient discharge to the executors,\\\" gives it to her sole and separate use, and makes the husband a trustee for her; and a present to-the wife by the husband's father, or even by a stranger, during the coverture, has been considered a gift to her separate use. Graham v. Lord Londonderry, 3 Atk. 393. In Hearle v. Greenbank, 1 Ves. 301, Lord Hardwicke says, \\\"In case of personal estate given to a feme covert, it is a rule of the Court, that she may dispose of it.\\\" In Fettiplace v. Gorges, 3 Br. C. C. 8, the Lord Chancellor says, \\\"All the cases shew, that the personal property, when it can be enjoyed separately, must be so, with all its incidents, and the jus disponendi is one of them.\\\" In Rich v. Cockell, 9 Ves. 369, it is said, that \\\"the disposition by will is incident to a trust for the separate use of a feme covert; and the husband, having taken a transfer of the property, is held a trustee for the wife.\\\" Cases' without number, might be cited, to shew that this is the settled law on the subject.\\nLet us enquire now, whether the devise to Mrs. West operated to give her the sole and separate use of the property. And .here it is proper to recollect the state of things under which the will of her father was made. His daughter had been five years in a state of separation from her husband; and that separation attended by circumstances, which (whether justly or not) seem to have caused considerable irritation, against the husband, in the old man's mind.. Pie gives to his other four children, directly, four-fifths of his estate; \\\"and the remaining one-fifth, I give to my executors, for the benefit of my daughter, Margaret West, at the discretion of my executors.\\\" If the clause had even stopped here, it does not seem to me, that there could have been a rational doubt, that the intention was to exclude the marital rights. Plere is am express trust raised; the legal estate vested\\\" in executors, for the benefit of his daughter.. But the residue of the clause adds \\\"confirmation strong,\\\" to this construction.. He directs his executors *to sue-West for the 2001. which he had received, in part of his wife's fortune; and' that, if recovered, it shall go to his daughter. Now, while he was thus, with a spirit even vindictive, directing a prosecution-against the husband, for the small portion-which had gone into his hands; it is impossible to suppose, that he intended to-give that same husband the control and' enjoyment of the whole property he was about giving to his daughter. I have no-doubt, therefore, that this was the separate estate of Mrs. West; that as to it, the-marital rights never attached; and that her-jus disponendi was perfect, so far as related to the personalty, whether it consisted' of the specific chattels she received, or the fruits and produce of those chattels, made by her own care and attention; for she had the same power over the produce, as over-the principal; or as the Lord Keeper expresses it, in Gore v. Knight, 2 Vern. 535, \\\"the sprout is to savour of the root.\\\"\\nLet us now examine the legal ability of Mrs. West to devise her real estate. There can be no doubt that this was as much her separate estate, as the personal, and I presume, as free from the marital rights. For-the husband, I apprehend, cannot be tenant by the curtesy; having had, during the coverture, neither a legal nor an equitable sei-sin; one of which Lord Hardwicke considers, absolutely necessary to entitle him;-. Hearl v. Greenback, 1 Ves. 301; a case precisely like the present, so far as regards this point. I state this to shew, that the appellant can have no interest in this part ol the case. If the will be void as to the land, it must descend to her heirs; and from the best examination I have been able to give this subject, 1 am brought to the conclusion, that as to the land, it is void. 1 do not mean to say, that a feme covert cannot, in any case, or by any means, make a testamentary disposition of lands; but that in this case, the precautions necessary to enable her to exercise that power, have not been taken. If a woman, having land, shall, before marriage, by proper conveyance, or after marriage, by fine, convey her land to trustees in *trust for herself during coverture, for her separate use, and afterwards that it shall be m trust for such person as she shall, by any writing under her hand and seal, or in nature of a will, appoint, and in default of such appointment, to her heirs; and she afterwards makes such appointment; that will be a good declaration of a trust. Peacock v. Monk, ubi supra. Whoever take's under such declaration, takes by virtue of the execution of the power, and as if the limitation in that writing of appointment, had been contained in the deed creating the power. Southby v. Stonehouse, 2 Ves. 610. So the feme may dispose of her estate, by way of power over an use; as if she conveyed the estate to the use of herself for life, remainder to the use of any person, whom she, by any writing, &c. should appoint; and in default of such appointment, to her own right heirs. This power, thus reserved, she may execute. 2 Ves. 191. These, Cord Bardwicke, seems to think, are the only modes in which a woman can dispose of laud, during coverture. Where the legal estate remains in her, and there is only an agreement between herself and husband, that she may dispose of the laud by deed or will, Lord Hardwicke, Lord Thurlow, and the writers on the subject, consider that such disposition, though it may bind the husband, will be clearly void against the heir. Peacock v. Monk, Hearl v. Greenbank, Hodsden v. Loyd, ubi supra; 3 Madd. Ch. 375. So also, if land be devised to a feme covert, she has no power to dispose of it, though given to 'her sole and separate use, unless the devise contain a declaration, giving her an express power to appoint, by deed or will, the person who shall take, notwithstanding her coverture. See the cases cited above.\\nOur case comes within this rule; a devise merely to executors for Mrs. West's benefit, without any thing like a power of appointment to her. I consider the will, therefore, so far as it concerns the laud, void. I had doubted at first, whether it was necessary for us to meddle with the decision of the Court of probate, on this ground; as the *will was properly admitted as a will of personals, and probate not being necessary to give it validity as a will of lands, Bagwell v. Elliott, 2 Rand. 190, I had concluded, that neither could probate give to it an effect which did not intrinsically belong to it: therefore, that it was on the same ground as in England, where the Court of King's Bench refuse a prohibition to the Ecclesiastical Court, in case of a will of real and personal estate, the probate being proper as to the personalty, and as t\\u00ae the realty, adding no evidence either for or against the will, because a proceeding coram non judice. 2 East. 551; Salk. 552. But our statute directing generally that wills shall be proved, and after probate, that they shall only be contested by bill, and that not after seven years, it might, perhaps, if we suffer the probate to stand, have the effect of precluding some party hereafter, from contesting it; and as it is a void thing, so far as it relates to the land, I think it best that the probate, so far, be set aside.\\nJUDGE GREEN:\\nI think the necessary construction of John Hook's will, is, that he gave to his executors one-fifth of his estate, for the separate use of his daughter, Mrs. West, a married woman, subject to a deduction of 2001. paid to her husband. They. were to hold it for her benefit, at their discretion; a discretion which could not have been vested in them, for any purpose, but to prevent her improvident use of it, and. to preserve the property from the marital rights of her husband. To the exercise of this discretion, according to the intention of the testator, it was necessary that the legal title to the property, real and personal, should remain in the executors, at least as long as West and his wife both lived; so that this use would not be executed, even if any use raised by will, is executed by our statutes. Jf the executors had conveyed the legal title to the land and personal property in Mrs. West's share, to her, so that *at law, her husband's marital rights would have attached upon it, a Court of Equity would have held him a trustee for her, in respect to her right to the separate use of both descriptions of property.\\nAt all times, a feme covert executrix, had a power to make a testament, and appoint executors, who should be the executors of the first testator; and this without the consent of the husband. Scammell v. Wilkinson, 2 East. 552. This power to continue the representation of the testator, was implied in the appointment of every executor. But she could make a will to no other purpose, without the consent of her husband. Her will so made had no effect, but to continue the office of executor. She, as well as an executor, had no power to bequeath the goods of the testator. With his assent, she might make a testament of her dioses in action, or even of the personal property of the husband. But to give validity to a will so made, the husband must assent to the will, after her death. Upon these conditions, the will of a feme covert had, at law, all the effect of a will made by one sui juris. The reason why this effect was given to a testament of personals, made with the assent of the husband, was, that if the wife died intestate, the husband succeeded to all her personal rights, as administrator, and her will, if it had any effect, operated to his prejudice; and therefore, there was, in that case, no danger that he would coerce the will of his wife, by the exercise of that unbounded influence over her will, which the law attributes to every husband.\\nBut as to realty, the husband could not enable his wife whilst covert, by his assent, or by any other means, to pass the legal title to such property, by devise; and the reason seems to be, that as the property would not devolve on him upon her death, by operation of law, if he could in any way give a legal effect to her devise, there would be the strongest temptation to'control the will of his wife; and if he did not cause the property to be devised directly to him, he would generally cause it to be given to some *one, upon a secret trust for himself, or at all events, according to his will, and not hers. The husband could indeed get a title to his wife's property by fine, or fine and recovery; but in that case, she had the protection of the Courts of Justice, by privy examination, which she could not have in making a will. Accordingly, even before the statute of wills of Hen. 8, when lands were devisable by custom in particular places, it was decided, that a custom for a feme covert to devise lands, was void, \\\"because of the presumption that the law has, that it will be made by the constraint of the husband.\\\" This was decided in 3. Ed. 3, and that decision was held to be good law in Forse and Hembling's Case, 4 Co. 61, and to be applicable to cases arising after the statute of wills.\\nA woman might, however, before her marriage, or after marriage, with the concurrence of her husband, and by fine, settle her real property in such a way, as to dispose of it in her lifetime, or by will, by way of appointment; and so any other might give her a power of appointment, to be exercised in any way which he might prescribe. This power of appointment might exist, either as to the legal title or over an use. In such cases, the appointee of a feme covert took the estate, not under the appointment, but under the original settlement. There is no case, in which a feme covert has been held to be capable of passing real estate by will, unless where there was an express power of appointment given to her. A feme covert,'having a separate property, has the. same power over the produce of it, as she has over the capital; Gore v. Knight, 2 Vern. 535; and she may dispose of personal property, in which she has a separate use, by will, without .any express power of appointment. Yet if she invests the personal property, or its produce, in lands, she cannot devise such lands, unless by virtue of an express power. This was the case of Peacock v. Monk, 2 Ves. 190, (in 1750.) The case is imperfectly reported; but I gather from the observations of the Court, that by agreement between the husband and *wife, before marriage, she was to have the separate use of her property, with a power to dispose of it by will or otherwise. She purchased real property with the produce of her separate property, and devised it by will. It was determined that this property did not fall within the power; and if it did, that such an agreement, not being carried into effect by a proper conveyance, could not give her a power to devise real estate. At the end of this case, it is stated, that Willes, Chief Justice, had determined, upon consultation with the other Judges, that when land was settled to the separate use of a feme covert generally, without any power to devise iV her will of such land was void; and this last principle has never been departed from,, so far as I am informed. In Wright v. Englefield, Ambl. 468, and the same case-by the name of Wright v. Cadogan, 6 Bro. P. C. 156, (in 1766,) it was determined, in a case where a woman being entitled to a trust in real estate, and about to marry, it was agreed between her and her intended husband, that her property should remain to her separate use, and that she might dispose of it by will, that her disposition,, by will, of this trust, was valid; because-the agreement was a declaration of trust, and had the same effect as to the trust, as a conveyance would have had of the legal title, if that had been vested in her; the appointee taking under the declaration of trust, and not by the will: that this declaration of trust was all that it was in the power of the parties to do, and had the same-effect as the conveyance of the legal title would have had, if that had been vested in her. In Rippon v. Dowding, Ambl. 565, this doctrine was carried further, and applied to the case of an agreement by the husband, before marriage, that the wife might dispose by will of real estate, in-which she had a legal title; upon the idea that a Court of Equity might have compelled a specific execution of the agreement, by ordering a settlement according to the agreement. But this case was virtually over-ruled, by Hodsden v. Loyd, 2 Bro. C. C. 534, where it was said that such agreement could not ^enable a> feme covert to devise her land. That case, however, went off upon another point; that- the will being made before the marriage, was revoked by it. Before the case of Hodsden v. Loyd, and after the case of Rippon v. Dowding, the case of George v. -, Amb. 627, was determined. This was a case at law. A widow being seised in fee of copy-hold lands, surrendered to the use of her will; and afterwards, and previous to her marriage with a second husband, he agreed, by articles, that she might, during the coverture, devise her estate. She devised the copy-hold land during coverture; and her heir recovered in ejectment against her devisee; the Court unanimously declaring, that being a feme covert,, she could not make a will,, or declare the-uses of the surrender. Since this case, and before that of Hodsden v. Loyd, the case of Compton v. Collinson, has been determined in the Court of Common Pleas, (in 1790,) upon a case sent out of Chancery, for the opinion of that Court. A husband and wife agreed to live separate; and he covenanted with trustees, that he would 'join the wife in any fine and recovery, of any estate which might come to her, during: the coverture, to any uses she should ap point; and the trustees covenanted to indemnify him against her debts, trespasses, &c. After the separation, free-hold and copy-hold estates descended to the wife. She surrendered her copy-hold estate to the use of her will, and devised them to W. who was admitted. The Court certified that the deed of separation, surrender, will and admittance, gave a good title to the devisee; and this -was confirmed by the Chancellor. I conjecture that this case turned on the peculiar character of the copy-hold property, 1 Fonb. Eq. 113; the surrender being good without his joining in it, and that being necessary only to support his interest in her estate. Most of these cases, I have only seen in abridgments, and in references to them in other books, not having convenient access to the books in which they are reported at large. I have not thought it necessary to spend the time that would be requisite tc examine *the reports at large. Because, upon whatever principles these seemingly conflicting cases turned; and whether the one or the other class of those cases, have been decided upon the most correct principles; they do not affect the decision of the question in this case. For, in all of them, there was an express power by agreement, before the marriage, given to the. wife to dispose of the property by will, except in the case of Compton v. Collinson, which probably turned upon the peculiar character of the property, in respect to the mode of conveying it. None of these cases contradict the proposition laid down in Peacock v. Monk, and the case there referred to, that a wife cannot dispose, by her will, of lands settled to her separate use, or in which she has a separate use, unless a power be given to her for that purpose, by some means or other. In the case at bar, no power was given to the wife, to dispose of the land in any form, in her life-time, or by will. On the contrary, the power to the executors to apply the properly for the benefit of Mrs. West, at their discretion, was totally inconsistent with the existence of a power in her, to dispose of it in any way, during her life, without their consent. Indeed, I can see no reason, if a married woman can devise land, of which she is entitled to the separate use during her life, and in which she has an inheritance, merely because she has such separate use, why she should not also, for the same reason, have the same power to devise any land, to which she is entitled For, all land is her separate property, and her devise of it, cannot prejudice her husband, in cases where he is not entitled as tenant by the curtesy; and in cases ill which he is so entitled, the devisee might take subject to his right, as the devisee of the husband takes subject to the wife's dower. If another, or the wife before marriage, whilst sui juris, or after marriage, under the protection of the Courts, and alter privy examination, chooses to create such a power, it must be carried into effect, because cuius est dare, ejus est disponere. But such a power ought not to be presumed, from the mere fact of *her having a separate use given to her. I think the cases have gone far enough, in breaking down tlie guards originally provided by the law, to protect the imbecility of femes coverts. Nor ought the circumstances of husband and wife living-separate, to make any difference in this respect. A father may have strong motives to give to his married daughter lands for her separate use, even when she and her husband live together upon the best terms; and to lay down a general rule in such cases, that she might dispose of property so given, by her will, would be to subject the wife to the coercion of her husband, and to enable him to make the property his own. The rule must be general, whether it is established in one way or the other. It would be of the most mischievous consequence, for the Court to undertake to determine that the will was valid or void, according to the degree of coercion or influence exercised by the husband, in each particular case.\\nI think, therefore, that Mrs. West's will was void as to the real property, which the executors took in trust for her, under her father's will, or which she may have purchased with the separate personal property given to them, in trust for her.\\nAs to the personal property which Mrs. West acquired under her father's will, and the increase and produce of it, remaining in personalty, at the time of her death, she had a clear right to dispose of it by will. 2 Vern. 328, (1695;) Herbert v. Herbert, Prec. in Ch. 44, (1692;) and in Hearl v. Greenbank, 1 Ves. 298, a feme covert, having a separate personal property, without any express power to dispose of it by will, was held to have such a power, as a consequence of her jus disponendi; which is said in Fettiplace v. Gorges, 3 Bro. Ch. Cas. 8, to he necessarily incident to the separate property. This doctrine has never since been questioned.\\nIt is immaterial to consider, whether the paper making such a disposition, be strictly a will, or a testamentary paper in _ the nature of a will; though I think it is not ^strictly a will. Ln either view, it must, before it can have any effect, be proved in a Court of Probate. Rich v. Cockrell, 9 Ves. 375.\\nThe will, however, ought not to have been admitted to probate generally; for that might have the effect of giving it validity as a will of lands. Although a probate is not necessary, with us, to give effect to a will of land, yet, when admitted to probate as a will of lands, it cannot afterwards be questioned in any way, but that prescribed by the act of Assembly. Bagwell v. Elliott, 2 Rand. 190. In like manuer, such a general probate would give it effect as a will of any choses in action, or any other property which the testatrix had, not to her separate use. For, after probate, the effect of the will, to the extent that probate is granted, cannot be controlled or questioned in any collateral way, or in any other Court. When the Ecclesiastical Court was about to grant a more extensive probate than was proper, the only remedy in England, was to apply to the Court of King's Bench for a pro hibition; which would have been useless, if the effect of the will, as to the subjects upon which it operated, could have been questioned after a general probate. Accordingly, prohibitions were not allowed to prevent the probate of wills of land, since such a probate, in England, would be merely void. Thus, in Scammel v. Wilkinson, 2 East. 552, a husband, having by his will authorised his wife to dispose of all his property by her will, to be made in his life-time, and she having in his lifetime made her will, disposing, not only of his property, but hers also; an application was made to the Court of Probate, for a general probate; the Court of King's Bench prohibited a probate, except as to the property which she was authorised by her husband's will to dispose of, and so far as her will appointed executors, who might be executors of her brother, whose executrix she was. She had dioses in action, and the object of this prohibition was to prevent such a probate as would pass those dioses in action; as to which, she could not *make a will, her husband's assent not extending to them. In consequence of this, her next of kin, and not her legatee, were entitled to these dioses in action; she having survived her husband. Stevens v. Bagwell, 15 Ves. 140. In discussing this case in Chancery, it was insisted that the husband, besides authorising his wife to dispose of his property by her will, made in his life-time, had actually subscribed his name as a witness to her will; from which it was inferred that he had assented to all the dispositions of her will, as well in respect to her property, as to his; and that so the will was valid as to the whole of its dispositions, and her legatee of her dioses in action entitled. But Lord Eldon held that to be a question exclusively for the Court of Probate: *that he was bound by their judgment; and as the probate did not embrace the dioses in action of the feme covert, her next of kin were entitled to it, and not her legatee, she having died intestate as to that subject; and decreed accordingly.\\nThe judgment in this case ought, therefore, to be reversed, and the will admitted to probate as a testament of all the personal property bequeathed to, and in trust for, Mrs. West, by her father; and the increase and produce of such personal property, and the produce of the real property, except so far as such personal property, and the increase'and produce thereof, may have been invested in real estate by her.\\nJUDGE COALTER:\\nI have some doubts whether the clause of the will of John Hook, whereby he gives the remaining one-fifth of his estate to his executors for the benefit of his daughter, Margaret West, at the discretion of his executors, subject to a deduction of 2001. paid Thomas West, (which said 2001. he desires his executors to institute a suit for, and provided the same may be recovered, his executors are requested to dispose of the same to his said daughter, Margaret *West, to be disposed of at her discretion,) may not be so construed, as to apply the latter words, \\\"to be disposed of at her discretion,\\\" as well to the fifth part of his estate, as to the 2001. in case it should be recovered. I cannot well perceive, any reason why that sum should be at her discretion, and not the other part of the estate. Suppose the clause had not directed a suit, but had stopped at that part of it, which directs a deduction of the 2001. (as he had directed advances to his other children to be deducted,) and had concluded \\\"to be disposed of at her discretion;\\\" there could be no doubt that it would apply to the fifth part given her, although that is given to the executors for her benefit, at their discretion. This cannot mean that they were at liberty to keep it to themselves, if, in their discretion, they did not think proper to give it to her; but this discretion was resorted to, in order to preserve it for her separate use, which, under all the circumstances, was clearly his intention. If he had used words more plain and explicit as to her separate use, and had not directed a suit for the 2001. then no doubt could have existed that the executors would have been mere trustees for her separate use, with a power in her to dispose of the estate. But the 2001. are to be deducted at all events, and efforts are to be made to recover it back from the husband for the use of the wife; and thus the clause is involved in more obscurity, as to the application of the words giving a power to dispose of the property.\\nIf the clause could bear the interpretation I have supposed, it might add to the other reasons which have satisfied me, that a separate estate was intended; and this might also have an important effect on another .question, which, it is thought, we ought to decide in this case, ro wit, whether she had power to devise the lands?\\nI have no doubt, first, that a separate estate was given to her by the will of her father; and, secondly, that the testamentary paper in question, whether it is to be considered *a will to all intents and purposes, or only a disposition in nature of a will, passes the personal estate.\\nAs to the real estate, I doubted whether, as the devisee who gets the greatest portion, and is interested in maintaining her power to devise, is not before us, we ought to decide that question now; but.the other Judges seeming to think, that if the will is admitted to probate without restriction, it may more seriously affect and conclude the rights of the other devisees, than it can the rights of that one, if the probate is admitted merely as a will of personals, I have no objection to consider the question.\\nCould the clause under consideration, admit of a construction, that a power to dispose of this separate estate was given by the will of John Hook, then I incline to think that all the cases which I have had access to, go to shew that she might devise the lands. But they all, and especially the late cases, 'prove, that as to the personalty, the jus disponendi is incident to the right of property, whether the right to dispose of it is reserved, or not. But as to the real estate, they take a distinction which seems to place it, where no power o\\u00ed disposition is reserved by contract before marriage, or given by the instrument which creates the separate estate, (and which is this case, if the above construction is rejected) on the same footing with the real estate of the wife which she held before marriage, and over which she has reserved no such power, by marriage articles; with this difference perhaps, that as to the latter, she may, after marriage, by fine in England, or privy examination here, unite with her husband in a conveyance in trust or to uses, and reserve a power to dispose, &c.; whereas she might not be able even to do this, where an estate is given to her and her heirs, after marriage, to her separate use, without giving her a power of disposition. It seems to me that even this is left doubtful, in the case of Peacock v. Monk; but that case seems to me, at present, fully to settle the point, that where there is only a right to a separate estate in lauds, without a power to dispose of *them, the jus disponendi does not follow the right of property, in such case.\\nA husband may consent that his wife shall bequeath her dioses in action, &c.; and if there is probate of such a will, it is good. But he cannot thus assent to her devise of her real estate which she had before marriage. In such case, the estate must be changed by a proper conveyance in trust, or to uses, before she can get the power of disposing of it. And where is the difference here? Suppose this real estate had been devised to her by her father, absolutely, and not to her separate use. She could not have devised it, though it thus became her estate. It must descend. But another point may arise, which may have a serious bearing on this question. Is the estate and title in the executors as trustees? They have made no conveyance, although certain lands were allotted to her. Now, many of the cases seem to countenance the power to devise, and declare the uses when the legal estate is in trustees. I am not disposed, however, to extend the doctrine in this country, beyond adjudged cases, and therefore, as at present advised, am inclined to think that she could not devise.\\nThe testamentary paper must, therefore, be admitted to probate only as a will of personals, as the safest course at present to be taken.\\nAs to this, it appears to me strange, that it should not be considered as a will to all intents; but the authorities seem doubtful on this point; and as the executor might not be considered such in a Court of Common Law, and be embarrassed in the execution of his trust in such cases; and as a grant of administration to him will have as good, and perhaps a better effect, than letters testamentary (though how a Court of Law could say that letters testamentary were improperly granted by the Court of probate, I cannot just now perceive) it may perhaps be best, now to establish the practice, and to say, that in such cases, the proper course will be to grant administration with the testamentary paper annexed, to the person who is named *as executor, if he will take it; if not, to those to whom the property is bequeathed, or some of them.\\nJUDGE CABELL:\\nThe first question in this case, is, whether the devise in the will of John Hook, of one-fifth part of his estate, to his executors, for the benefit of his daughter, Mrs. West, made it an estate for her separate use?\\nNo particular phraseology is made necessary to the creation of a separate estate in a feme covert, even where it is created by deed; much less is it necessary, where the estate is created by will. In this respect, as in all others growing out of wills, the intention of the testator is to govern, unless it be opposed to some inflexible rule of law. Can any man read this will, and believe that it was not the settled purpose of the testator to prevent Mr. West from having any interest in, or control over, the property devised for the benefit of his daughter? In addition to the property being devised to trustees for her benefit, she then living apart from her husband, he even directs the husband to be sued for 2001. he had given him in his life-time, and that his executors shall hold it, subject to the disposition of his daughter. His determination that all the property devised for the benefit of Mrs. West, should be her separate estate, is as clearly shewn by these circumstances, as if he had used the strongest terms commonly used for that purpose.\\nThe next question is, whether Mrs. West, had the power to dispose of this estate, by will, or by writing in the nature of a will; there being no power to that effect, expressly given by the will of her father?\\nAs to separate personal property, the authorities are numerous (they have been already cited by the Judges who preceded me;) and the doctrine has been long unquestioned, that a feme covert may dispose thereof by will, even where there has been no agreement before marriage, and where no such power has been expressly given, by the instrument '\\\"creating the estate. And it is now considered, that this right of disposing of it, is a necessary incident to personal property. Fettiplace v. Gorges, 3 Bro. C. C. 8; and it is the same as to the increase and produce of separate estates, whether real or personal, so long as such increase or produce remains in personalty. Gore v. Knight, 2 Vern. 535.\\nAs to the real estate; it would be a work of supererogation, if it were practicable, to attempt to reconcile the apparently conflicting decisions in the English books, as to the power of the wife over real estate, where there has been an agreement before marriage, that she should have the right to dispose thereof. That is not this case; for here, there was no agreement on the subject, before marriage, and the will of Mr. ITook, is silent on the subject. I think the decisions have gone full far, in allowing to the wife, in cases like the present, to dispose of even personal property, by will; for the right to dispose by will, can not be said to be at all necessary to the enjoyment of property; at least it is not more necessary to the enjoyment of personal, than of real property. I am not disposed to extend the decisions farther than they have gone already; and I believe there is no instance in the books, where, in a case like the present, the will of the wife, as to real estate, has been supported. I can perceive no reason for giving her such power, as to her separate estate, which would not equally apply to any other real estate whatever, held by her. Considering the influence which the husband commonly has over the wife, to .allow such a power to the wife, would be, in most cases, to subject the property to the will of the husband.\\nThese remarks do not apply to cases, where a right to dispose of real estate by will, is expressly given to the wife, by the instrument creating the trust estate; for the power that creates the estate, may prescribe, at pleasure, the rights to be enjoyed with it.\\nMrs. West, therefore, had not, in my opinion, any power to dispose of her real estate by her will; and it *ought not to have been admitted to 'probate, as a will of lands. The judgment is to be reversed, and the following is to be entered as the judgment of the Court:\\nThe Court is of opinion, that the paper writing in the record, exhibited as the will of Margaret West, deceased, ought not to have been admitted to a general and unlimited probate; and that, therefore, the judgment of the Superior Court, affirming that of the County Court, is erroneous. Therefore, it is considered, that the said judgment of the Superior Court be reversed and annulled, and that the appellant recover against the appellee his costs by him ill the prosecution of his appeal aforesaid here expended. And the Court proceeding to give such judgment as the said Superior Court ought to have given, it is farther considered, that the said judgment 'of the County Court be reversed, and that the appellant recover against the appellees his costs 'by him expended in the prosecution of his appeal aforesaid, to the said Superior Court: and that the said paper writing be admitted to probate as a valid testamentary disposition of so much of the personal property, bequeathed by the will of John Hook, to and in trust for the benefit of the said Margaret West, and of the increase and produce thereof, and of the real property devised by John Hook, in trust for her benefit, as has not been invested in real property by or with the assent of the said Margaret West; and that letters of administration, with the said testamentary paper annexed, of so much of the property as is above declared to be well disposed of, should be granted to the persons therein named as executors, or to such one of them as may apply therefor; and in case neither of them should so apply, then to some person or persons beneficially interested in the dispositions made by the said testamentary paper; or if none such should apply, then to such person or persons as the Court may think proper; and that the appellees recover against the appellant, their costs by them in the County Court expended.\\nThe President, absent.\"}"
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+"{\"id\": \"6717386\", \"name\": \"City of Richmond v. A. Y. Stokes & Co.\", \"name_abbreviation\": \"City of Richmond v. Stokes\", \"decision_date\": \"1879-03\", \"docket_number\": \"\", \"first_page\": \"543\", \"last_page\": \"547\", \"citations\": \"31 Gratt. 713\", \"volume\": \"72\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T21:27:41.137721+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"*City of Richmond v. A. Y. Stokes & Co.\", \"head_matter\": \"*City of Richmond v. A. Y. Stokes & Co.\\nMarch Term, 1879,\\nRichmond.\\n1. Municipal Corporations \\u2014 Dedication of Streets. \\u2014 In this case there may be a valid acceptance of an easement in a town without any distinct act of recognition by the corporate authorities of such town. The mere user, however, by the public of the locus in quo will not of itself constitute an acceptance, without regard to the character of the use and the circumstances and length of time under which it is claimed and enjoyed. But where property in a town is set apart for public use, and is enjoyed as such, and public and private rights acquired with reference to it and to its enjoyment, the law presumes such an acceptance on the part of the public as will operate an estoppel in pais, and preclude the owner from revoking the dedication.\\nSee Talbott y* Railroad Co., 31 Gratt. 685 and note.\\nSame \\u2014 Same\\u2014Paresamption.\\u2014A street of the city having been used according to a certain line from 1817 to 1847, and having been graded and paved by the city authorities, without any objection or claim by the owners of the soil on which a pari of the street was laid, and public and private rights having been acquired with reference to it and iti enjoyment, its dedication to the public will be presumed, and the owner of the soil cannot revoke it\\nThis was an action of trespass quare clau-sum fregit in the circuit court of the city of Richmond, brought in July, 1876, by A. Y. Stokes and two other partners, under the name and style of A. Y. Stokes & Co., against the City of Richmond. The subject of the action was a parcel of ground extending from Cary street to Basin street forty feet, and twenty-one feet wide, which was covered by a part of Twelfth street, as then used. ' This piece of ground had been a subject of controversy for years between the parties under whom the plaintiffs claimed and the City of Richmond; the claimants insisting *that Twelfth street properly laid down did not cover it, and the city resisting the claim. In 1858 or 1859 Warwick & Barksdale, under whom the plaintiffs derived title, recovered the ground in an action of ejectment, and enclosed it; but the enclosure was removed, upon an agreement with the council of the city that this was not to affect the rights of either party. The question in the cause was whether the public had acquired an easement over the ground.\\nOn the trial, after the evidence had been introduced, both the plaintiffs and the defendant asked for a number of instructions, which the court refused to give, and gave the following :\\n\\u201cThe jury are instructed that they cannot, from the evidence in this cause, find that Warwick & Barksdale, or any parties claiming under them, have dedicated the premises in question to the public, or that by any omissions or laches they have lost the rights they had as against the city at the date of their first communication to the city council, in September, 1847.\\n\\u201cBut the jury are farther instructed that if prior thereto the City of Richmond had, with the knowledge and consent of the then owners of the property, assumed control of the premises in question, claiming the same as a part of Twelfth street, and had with such knowledge and consent continuously and notoriously occupied the same as a part of the public highway up to the time of the assertion of the claim of Warwick & Barksdale before the common council September 13th, 1847, and that such use had continued so long that private rights and public convenience would have been materially affected by an interruption of the enjoyment of such part of the highway, thev should find for the defendant\\n\\u201cTo which action of the court in rejecting the instructions asked by the defendant, and in giving said instructions of the court, the defendant excepted, and prayed *that this bill of exceptions might be signed, sealed, and made a part of this record; which is accordingly done.\\u201d\\nThis bill contained all the evidence.\\nThe jury found a verdict for the plaintiffs, and assessed their damages at five hundred dollars; and the City of Richmond moved the court to set aside the verdict on the ground that it was contrary to the evidence; but the court overruled the motion, and entered a judgment in accordance with the verdict; and the city again excepted. And the court certified that all the facts proved on the trial appear in the first bill of exceptions, which was made a part of this, there being no conflict in the evidence. And thereupon the City of Richmond applied to a judge of this court for a writ of error and' supersedeas; which was awarded. The facts are stated by Judge Anderson in his opinion.\\nKeiley, for the appellant.\\nKean & Davis and Ould & Carrington, for the appellees.\", \"word_count\": \"4604\", \"char_count\": \"25773\", \"text\": \"Anderson, J.,\\ndelivered the opinion of the court.\\nThe dedication of a street or public highway may be made either with or without writing, by any act of the owner, such as throwing open the land to the public travel, or an acquiescence in the use of his land as a highway. Angel\\u00ed on Highways, \\u00a7 142. Where streets and alleys have been opened by the owner of the soil, and used by the public, with his assent, as a public thoroughfare for years, a dedication of the easement may be presumed, and the continued and uninterrupted use, with the knowledge and acquiescence of the owner, will justify the presumption of a dedication to the public, provided the use has continued so long that private ^rights and the public convenience might be materially affected by an interruption of the enjoyment. But any acts of ownership by the owner of the soil would repel the presumption. Allen, J., in Skeen v. Lynch, &c., 1 Rob. R. 202. But there must be not only a dedication, but acceptance by the public.\\nIn England it is held that the presumption of the dedication by the owner from his acquiescence in the use of the land as a highway by the public is sufficient. But in this state it was held by the general court in Kelly's case, 8 Gratt. 632, that this doctrine, as applied in England, is inapplicable to county roads in this country, and that in this state there must be not only a dedication presumable from the user, but an acceptance by the county court, evidenced by some act of record. But Judge Leigh, who delivered the opinion of the court, excepted expressly streets and alleys in towns from the operation of this principle. As to them the acts of corporation officers may have the same effect as the acts of the county courts.\\nIn Harris' case, 20 Gratt. 833, the doctrines on this subject were considered, and Judge Staples, in whose opinion all the judges concurred, states the doctrine as held by this court with as much clearness and precision as can well be done. He says: \\\"It is well settled there must be not only a dedication by the owner, but an acceptance by the public. Whether some act on the part of the authorities charged with the control or repair of the highway is necessary to constitute an acceptance, or whether it may be effected by a mere user of the property, is a question upon which the authorities are not agreed.\\\" After a brief notice of Kelly's case, he says: \\\"It may be safely assumed that in this state there may be a valid acceptance of an easement in a town without any distinct, act of recognition by the corporate authorities of such town. The mere user, however, by the public of the locus in quo will not of itself constitute an acceptance, *without regard to the character of the use and the circumstances, and length of time under which it was claimed and enjoyed.\\\" And he concludes that \\\"when property in a town is set apart for public use and is enjoyed as such, and public and private rights are acquired with reference to it and to its enjoyment, the law presumes such an acceptance on the part of the public as will operate an estoppel in pais, and preclude the owner from revoking the dedication. Numerous other cases than those which he had cited, he says, maintain the principle that the owner is estopped to assert there has been no formal acceptance, where the public, relying upon the manifest interest of the party to dedicate the property, have entered into the occupation of it, in such a manner as renders it improper and unjust to reclaim it.\\\" And cites State v. Trash, 6 Verm. R. 355; Badeau v. Mead & al., 14 Barb. R. 328; and City of Cincinnati v. White, lessee, 6 Peters' U. S. R. 431.\\nThis is an action of trespass quare clau-sum fregit, brought by A. Y. Stokes & Co., defendants in error here, against the City of Richmond, and involves the right of the city to a section of Twelfth street which-.is embraced by parallel lines twenty-one feet east of the western line of Twelfth street, and forty feet south of the southern line of Cary street. There is also another suit depending, in which the Gallego Mills were plaintiffs below and are defendants here, which involves the right of the city to another section of said Twelfth street, lying between the intersect^ dus of Twelfth street with Basin street, and a street thirty feet wide south of the basin in parallel lines with Cary street and a line parallel with the western line of Twelfth street, and twenty-five feet east of it. Precisely the same questions are involved in both suits.\\nTwelfth street is thirty-two feet six inches in width,, crosses Main and Cary streets at right angles, and now extends in a direct line and uniform width in a southward *direction, crossing Cary street to Canal street, and embracing both of the sections now in dispute.\\nThe following are established as facts in the cause: That seventy years ago, or more, one Bullock erected buildings on the east line of Twelfth street as now used, which buildings extended southwardly from Cary street to an alley about half way between Cary and Canal streets. This alley is a little south of the entrance of the street south of the basin before referred to into Twelfth street. These buildings were substantial brick stores, three stories high, and there was a narrow sidewalk some five feet wide in front of them, but which extended no further south than the said alley.\\nThe property adjoining Bullock's buildings on the south, extending on the eastern line of Twelfth street to Canal street, was owned by Randolph Harrison, and upon it was a warehouse erected for tobacco, formerly owned by William I. Morris; and the property opposite Harrison's, on the west side of Twelfth street, was used as a coal-yard, on which Peter Chevallie built his mill in 1833, where the Gal-lego mills now stand. Twelfth street was not open further south than the aforesaid alley. Between Harrison's lot and Chevallie's mill no street had been opened, but there was a ravine between them, and Harrison's property was approached by Thirteenth street. But at least as far back as 1817 Twelfth street was open in front of the Bullock buildings, which extended to the said alley, as it was then used, and has been ever since, except for the short time it was obstructed (in 1858 or 1859) by the grantors of the plaintiffs below erecting a fence on a part of it. It is true that the whole space west of the aforesaid sidewalk of Twelfth street was an open space as far as the basin \\u2014 a distance of about one hundred yards \\u2014 and was used by the James River company, the then owner of the soil, for receiving and delivering goods; but it is a fair inference *from the evidence that the street, the eastern limit of which was indicated by the Bullock storehouses and the sidewalk, was also used by them and their customers in conveying goods to or from the basin, and by the public in general who had dealings with them or the occupants of the Bullock storehouses, as far back as the year 1817j and since the opening of the southern section of Twelfth street in 1834 it must have been the great thoroughfare of transit and transportation to and from the Chevallie or Gallego mills and the Harrison tobacco warehouse, and for the freights of the James River and Kanawha canal brought to or carried from the city of Richmond, and which were conveyed to or from Twelfth street along Basin street to or from the boats in the basin.\\nIn 1833 the subiect of opening the southern section of Twelfth street, which had become an important thoroughfare, and connecting it with Canal street engaged the earnest atten-tention of the city fathers. A difficulty met them at the threshold. Twelfth street as then used had been used since 1817, and probably for many years before. As Bullock had erected costly brick buildings along its eastern margin, it must have been the eastern line of the street then, and for years before, as it cannot be presumed that he would have erected such buildings in the middle of a, public street. And in fact there is no evidence in this record that there ever had been a street in use there upon any other location; but it appeared from the report of their surveyor that as Twelfth street was designated in the original plan of the town, its eastern limit. along the southern line of Cary street was twenty-one feet east of its location as then used; so that Bullock's buildings occupied twenty-one feet of the street as designated in the plan of the town, and Harrison's warehouse considerably more. If the report of the ^surveyor was correct, the city could not open and extend Twelfth street through to Canal street upon its present line without acquiring the right from the owner of the . soil on which it would be located. All difficulty was removed, and the way made clear by the proposition of Mr. Harrison to purchase from Chevallie the land upon which the extension of Twelfth street would be located, and to convey it to the city to be used for this purpose, if the city would release to him any claim it might have to the land, or right of way over it, upon which his buildings were erected. This proposition was accepted by the city, and Twelfth street was opened and graded and extended through to Canal street, on the line of its location and used in front of the Bullock buildings, and the whole, street, from its intersection with Cary to its intersection with Canal street, was graded and paved its whole width of thirty-two feet and six inches. This was done openly, with the knowledge and in the presence of the owner of the soil, and so far as appears without objection or question as to the right of the city to do what she did. We think it is fair to presume that the city counsel would not have accepted the proposition of Mr. Harrison, and incurred the expense of filling the ravine, and opening and grading the street between his . buildings and Chevallie's mill, and of grading and paving the whole street from Cary to Canal, if any question had been raised by the owner of the soil to its right to the street in front of the : Bullock buildings until such question was definitely settled, or if its counsel had any doubt as to its right. And it being done in the presence and with the knowledge of the canal company, or its agents, who stood by and allowed the city to lay out and incur the expense of grading and paving this street, as and for a public street, without objection, it is estopped thereby ^afterwards to set up a claim to it; and its grantees can have no better right.\\nThey claim under a deed of conveyance from John A. Lancaster and S. S. Baxter, as trustees of the James River and Kanawha company, bearing date the 2d of June, 1845, which describes the first lot conveyed, which embraces the section which is involved in this suit, as bounded on one side by Cary street, on another side by Twelfth street, and on a third side by a street thirty feet wide, called Basin street, running along the northern margin of the basin, and extended eastwards until it meets Twelfth street, and describes the other lot which is involved in the other suit, depending in this court upon a writ of error, hereinbefore referred to, as bounded on one side by Basin street, on another side by Twelfth street, and on a third side by a street thirty feet in width, to be laid out between the ground then sold, as now designated, and the buildings belonging to the grantees, Warwick & Barksdale, called the Gallego mills, sometimes called Cheval-lie's mills.\\nThis deed was made to the parties who were the owners of the Gcllego or Chevallie mills, which bordered on Twelfth stree't as it was laid off, graded and paved by the city to the exact width of Twelfth street eleven years before, of which they must be presumed to have had cognizance, and the part of which street lying west of the Bullock buildings, to sections of which they set up claim under said deed, had \\u2022 been used by the said city as a continuation of Twelfth street south of Cary at least for twenty-eight years prior to the date of said conveyance to them with the acquiescence of their grantors. They purchased, therefore, with the knowledge that the city claimed thirty-two feet six inches west of the Bullock buildings, as shown by the paving of that width, as *a continuation of Twelfth street south of Cary; and by enquiry they might have known that it had been used as Twelfth street south of Cary for more than twenty-eight years prior to the date of said deed of conveyance to them, and that there was not, and most probably never had been, any other Twelfth street in use south of Cary street, and, consequently, that in purchasing they purchased subject to the city's easement; and such, indeed, is the import of the deed read in the light of the surrounding circumstances, of which they must have been cognizant; that if it was designed to convey any part of the street, the conveyance was intended to be subject to the easement; and, without looking to the map, the deed upon its face does not import \\u00e1 conveyance of any part of the street, the location of which was then well defined and understood by all the parties; and the map referred to seems to have been carelessly and imperfectly prepared, for, among other errors, it lays down Twelfth street as having a width of thirty-six feet six inches, when its width is only thirty-two feet six inches \\u2014 adding about one-eight to its actual width. Angel\\u00ed, \\u00a7 142, supra, says that the platting of land by the owner, and selling lots bounded by streets designated by the plat, thereby indicates a clear intention to dedicate, or an acquiescence in the use of his land as a highway. The deed to Warwick & Barks-dale not only describes the lots sold to them as bounded on one side by Twelfth street, but also on another side by an existing street, called Basin street, which it describes as thirty feet wide and running along the northern margin of the basin, and extending eastwardly until it meets Twelfth street. Now, this street is described as an existing street, and as then extending eastwardly until it meets Twelfth street. This language could apply only to Twelfth street as it then existed and was in use. It could not apply to any other Twelfth street, for there was no other, and never had been, except *that which was designated on paper, it is said, in Byrd's original plan of the town, and never had been an actual street, never had. been opened, and could not have been meant in this conveyance, as Basin street did not .extend eastwardly to meet it, but only to meet Twelfth street as it was then used and paved and well defined; and beyond it eastwardly there was no street, but a block of the Bullock buildings.\\nAnd so as to the boundaries of the other lot conveyed. It was bounded on one side by Basin street, on another by Twelfth street, and on a third side by another street thirty feet, which it was agreed by the parties was to be opened, and the location of which was described, and which must necessarily connect with Twelfth street. This was a recognition of the existing Twelfth street. The parties to this deed could hardly be understood to have covenanted to open a new street, the necessary outlet to which would be by Twelfth street, upon the haphazard that another Twelfth street would be opened by the removal of the Bullock buildings, and which, if it were done, could not then be extended through Harrison's lot to Canal street, as the city, eleven years before, had solemnly released to him any claim it might have to a right of way through his lot. If we turn to the map, we think it plainly shows, by the shaded or black lines, the actual eastern terminus of each of the streets on the margin of the basin 'to be the western line of Twelfth street as then established and in use. It is true that the boundaries of the lots sold are indicated by dotted lines running into Twelfth street, which may indicate that the fee in the soil is embraced in the conveyance, though subject to the easement. How else can the change from a solid to a dotted line be accounted for?\\nIn Denning v. Roon, 6 Wend. R. 651, cited by Angell on Highways, \\u00a7 143, it was held that if a street has been used and built up along a particular line, and the adjoining ^owners have acquiesced in the line so built upon, and treated it as the true line of the street for forty or fifty years, they will not be permitted to deny the effect of their acts as a dedication, and to contract the lines of the street, on the ground that by so doing they make them conform to the original survey and lay-out of the street But the fact of an acquiescence of the owner in the free use and enjoyment of the way as a public road for the period of twenty years would undoubtedly be sufficient evidence in any case, though there were no further proof of an intention to dedicate. Angel\\u00ed, \\u00a7 143, citing Kent's Com. 451, and decisions of New Jersey, New York, North Carolina, Wisconsin and Kentucky. But time, though it is often a very material ingredient, is not indispensable in the act of dedication.\\nWhere a street in the city of New York was widened from forty to sixty feet and used by the public for nineteen years, with the acquiescence of the owner, who paid an assessment for paving it to its full width, it was held that the circumstances were abundantly sufficient to warrant the presumption of dedication. Angell, \\u00a7 143, citing Smith v. The State, 3 Zabriskie's R. 130; Maxwell v. Bast River Bank, 3 Bosworth's R. 124. But the principle enunciated by this court in the cases cited supra as to the influence of time upon the question of dedication, we think, is clear and definite, to-wit: that the use of the property by the public, with the assent of the owner, will justify the presumption of dedication if the use has continued so long that private rights and the public convenience might be materially affected by ail interruption of the enjoyment. This is upon the principle of equitable estoppel. How does this principle apply to the case in hand?\\nThat the public convenience would be materially affected by an interruption of the enjoyment, clearly appears *from what has been said. And now as to private rights:\\nAs we have seen, the Bullock buildings were erected as far back as 1817 \\u2014 more than sixty years ago. They were doubtless erected upon what at that time was the eastern line of Twelfth street as it was then used, and in all probability had ever theretofore been used since it had been a street. The buildings were destroyed by the great fire in 1865, and have been rebuilt since upon the old line. It is easy to see how injuriously private rights would now be affected by permitting the obstruction. of the street in front of those buildings and yielding to the demands of the present owners of the soil to reclaim it. From this view of the case it is plain that upon the repeatedly recognized and established principles of this court, the dedication of this section of Twelfth street by the owners of the soil ought to be presumed, there having been an acquiescence in its long-continued and uninterrupted user, and no adverse claim ever asserted by the owners of the soil until the year 1847. Since that time the right of the city to the easement has been disputed and contested by the owners. But the city, through its council has from time to time directed enquiries, has persistently continued in the possession and enjoyment of the easement, except the temporary interruption by the then owners of the soil in 1858 or 1859, which was promptly resisted by the city. The city has never yielded her right to it as an easement, but after various investigations, through her constituted authorities, came to the conclusion that the city had a right to it as an easement, which was formally announced and the claim of the owners denied. Consequently, no presumption of dedication can arise from the continued user of the ground as a street subsequent to the assertion of the claim by the owners in 1847. But the court is of opinion that the right of the city to the easement, by the long and continued and uninterrupted user, with the *assent and acquiescence of the owners of the soil prior to that time, justifies the presumption of a dedication, and that the owners were thus estopped to reclaim it.\\nIt would protract this opinion too much to pass on the instructions seriatim which were tendered by the defendant and overruled by the court, and the instructions given by the court, and we deem it unnecessary. It will suffice to say that the instructions tendered by the plaintiffs and defendant, or as given by the court, so far as they are in conflict with the principles declared in this opinion, are erroneous, and so far as they are in conformity with them, they are right. But we think the verdict is in conflict with the instructions as given by the court. We are of opinion, therefore, to reverse the judgment of the circuit court, and to remand the cause for a new trial to be had therein in conformity with the principles declared in this opinion.\\nJUDGMENT REVERSED.\"}"
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+"{\"id\": \"6732209\", \"name\": \"Francis Lindsay v. The Commonwealth\", \"name_abbreviation\": \"Lindsay v. Commonwealth\", \"decision_date\": \"1823-06\", \"docket_number\": \"\", \"first_page\": \"264\", \"last_page\": \"265\", \"citations\": \"2 Va. Cas. 345\", \"volume\": \"4\", \"reporter\": \"Virginia Reports\", \"court\": \"General Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:19:35.652378+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Francis Lindsay v. The Commonwealth.\", \"head_matter\": \"Francis Lindsay v. The Commonwealth.\\nCriminal Law \\u2014 Nolle Prosequi \\u2014 Effect. \\u2014A Nolle Pros-equi entered by the Attorney for the Commonwealth, and a consequent discharge from custody, is not an acquittal, or discharge from further prosecution, and therefore does not support the plea of auterfoits acquit.\\nThis was a petition for a Writ of Error to a judgment of the Superior Court of Law for Pittsylvania county, whereby the petitioner was sentenced to the Penitentiary for seven years, for stealing a gelding, of a sorrel colour, the property of Charles Kesee. To the Indictment filed against him, he pleaded auterfoits acquit, and also not guilty. In his first plea, he set forth that he was on the 14th February, 1823, charged on oath before a Justice of the Peace with having stolen a certain sorrel horse, the property of ^Charles Kesee: that he was arrested by the warrant of the Justice, who committed him to jail, and issued his warrant to summon the Justice to meet on the 21st February, for the examination of the fact with which he stood charged : that the Court was held, the said Francis set to the bar, in custody of the jailor, charged with the felony aforesaid, and thereupon the said Court was of opinion, that the said Francis Lindsay ought not to be remanded to the Superior Court, &c. and discharged him from further prosecution out of custody, which he is ready to verify and prove by the record thereof. The plea then avers the identity of the person and felony, as set forth in the Indictment, and record of the Examining' Court, and concludes, \\u201c wherefore, since the said Francis Lindsay hath been heretofore discharged of the felony aforesaid, he prays the judgment of the Court here, if he the said Francis Lindsay should be again charged with the same felony, of which he hath once already at another time been discharged./\\u2019 The Attorney for the Commonwealth replied, admitting the identity of the person, that there is no such record as in the said plea is alleged. The Court, upon inspection of the record of the proceedings of the Examining Court, decided that there was no such record, to which the prisoner excepted. The record of the Examining Court contained the following documents: 1. The warrant of commitment, which recites that the prisoner was charged with having stolen a certain sorrel horse, the property of Charles Kesee. 2. The warrant summoning the Justices, which recites that Francis Lindsay was this day committed to jail, and it appearing to the Justice that the felonious offence with which he stands charged, ought to be examined into, &c. 3. The proceedings of the Court, as follows : \\u201c At a Court held, &c. for the examination of Francis Lindsay, charged with felony. Present, &c. The said Francis Lindsay was led to the bar, in custody of the Jailor of this county, and thereupon the Attorney for the Commonwealth, with the assent of the Court, saith he will not prosecute further in behalf of the Commonwealth, against the prisoner. Whereupon the prisoner is discharged from custody.\\u201d\\nThe issue on the plea of not guilty, was tried, and the prisoner convicted. The petitioner insisted before this Court, that there was error in not supporting his plea of auter-foits acquit.\\n\\u2019-The Act of Assembly is in the following words : \\u201cIf any person charged with any crime or offence against the Commonwealth, shall be acquitted or discharged from further prosecution, by the Court of the County or Corporation in which the offence is, or may by Law be examinable, he or she shall not thereafter be examined, questioned, or tried for the same crime or offence, but may plead such acquittal or discharge in bar of any other or further examination or trial for the same crime or offence.\\u201d\\nCriminal Law \\u2014 Nolle Prosequi \\u2014 E\\u00ed\\u00edect.\\u2014Por the proposition that a nollevrosequi entered by the attorney for the commonwealth will not support a plea of autrefois acquit, the principal case is cited and approved in Wortham v. Com., 5 Rand. 676; Com. v. Adcock, 8 Gratt. 671; Archer v. Com., 10 Gratt. 639; McCann v. Com., 14 Gratt. 581. See monographic note on \\u201cAutrefois, Acquit and Convict\\u201d appended to Page v. Com., 26 Gratt. 943.\", \"word_count\": \"755\", \"char_count\": \"4439\", \"text\": \"Per Curiam.\\nA Nolle Prosequi entered by the Attorney for the Commonwealth, and a consequent discharge from custody by the Court, is not an acquittal or discharge from further prosecution. The plea was therefore not supported, and there is no error. Writ of Error refused.\"}"
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+"{\"id\": \"6733018\", \"name\": \"Brown v. Toell's Administrator\", \"name_abbreviation\": \"Brown v. Toell's\", \"decision_date\": \"1827-08-21\", \"docket_number\": \"\", \"first_page\": \"491\", \"last_page\": \"492\", \"citations\": \"5 Rand. 543\", \"volume\": \"26\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:28:09.693703+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"*Brown v. Toell\\u2019s Administrator.\", \"head_matter\": \"*Brown v. Toell\\u2019s Administrator.\\nAugust, 1827.\\nEquitable Relief \\u2014 Usurious Judgment \\u2014 Bill \\u2014Where relief is sought in equity, against a judgment at law, on the ground of usury, the bill must put that matter directly in issue.\\nNotos-'Agreement to Pay Usurious Interest \\u2014 Effect.\\u2014 An agreement, subsequent to the execution of a note, to pay more than legal interest, in consideration of delay of payment, will not affect the note, although it may entitle the debtor to relief for all beyond legal interest.\\nJudgment \\u2014 Relief of Bail. \\u2014 Bail cannot be relieved inequity against a judgment at law by default, without assigning some good cause why he did not defend himself at law.\\nThis was an appeal from the Lynchburg \\u00abChancery Court.\\nThe following opinion gives a full view \\u25a0of the case, which was submitted without argument.\\nChanc?ry Practice \\u2014 Allegations and Proofs Must Agree, \\u2014 3:i a court of equity as well as\\u00edn a court \\u25a0of law, the allegations and proof must agree. A recovery will not be allowed upon a case, although proved, which differs essentially from that alleged in the bill. Wren v. Moncure. 95 Va. 375, 28 S. E. Rep 588, citing the principal case as authority. To the same effect the principal case is cited in Smith v. Nicholas, 8 Beigh 364.\\nUsury. \\u2014 See monographic note on \\\"Usury\\u201d appended to Coffman v. Miller, 26 Gratt. 698. The prin cipa.1 case is cited on the subject of usury in Moseley v. Brown. 76 Va. 426, and on the subject of equitable relief from a usurious judgment, in Snyder y. Middle States, etc.. Construction Co., 52 W. Va. \\u00ab55, 44 S. E. lien. 252.\\nJudgment \\u2014 Relief of Bail \\u2014 To the point that bail cannot be relieved in equity against a judgment, without assigning some good cause why he did not defend himself at law, the principal case was cited with approval in Mann v. Drewry, 5 Leigh 304.\", \"word_count\": \"1243\", \"char_count\": \"6999\", \"text\": \"August 21.\\nJUDGE CABELL.\\nBenjamin Perkins executed to Peter Toell his negotiable note for,$500, on which Humphreys, administrator of Toell, brought suit in the Superior Court of Law for the \\u00abcounty of Campbell, and Brown became common bail. No defence being made, judgment was rendered against Perkins and Brown for the amount of the note, with interest. Brown filed his bill in the Court of Chancery for the Lynchburg District, in which he stated, that shortly after the institution of the suit, he removed to the county of Nelson, \\\"and taking it for granted that Perkins would attend to the said suit, and on the trial thereof, procure evidence of all the credits to which he was entitled, he gave himself no farther trouble about the matter;\\\" but that Perkins, although entitled to large credits, failed, from the extreme derangement of his affairs, and other circumstances, (not specified,) to prove the credits; in consequence whereof, judgment was rendered, as aforesaid, for the whole amount of the principal \\u00abof the said note, with interest thereon. He alleges as a fact, (which he says he will be able to prove,) that Toell was indebted to Perkins for various dealings, in a cum equal, or nearly equal, to the amount of the note; for none of which had Perkins been paid: that Toell acknowledged, *in his life-time, that there was a very small balance, if any, due on the said note; and moreover, that since the death of Toell, Perkins had paid to his widow, with the knowledge of his administrator, $100; which payment was intended to be on account of certain extra interest upon the said note, agreed by the said Perkins to be paid to the said Toell. He prayed an injunction, which was granted.\\nHumphreys answered, denying all knowledge of the credits claimed, of the payment to Mrs. Toell, and of any agreement to pay usurious interest.\\nBrown filed an amended bill, and without making any new charge, made Perkins a party, calling on him to say, among other things, what excess of interest was demanded and received by the said Toell, of him the said Perkins.\\nThe only evidence that could, in any aspect of the case, be relied on as a material, is that of Nicholas Harrison, who testifies, that Toell told him, a short time before his death, that the note in question had been given for money lent at an interest of 214, per cent, a month : that the interest had been paid in goods; and that he was then dealing with Perkins, and would endeavour immediately to collect his whole debt; and that about $200 were then due.\\nThe questions are, whether any relief is to be granted, either on account of the alleged usury, or of the credits claimed for Perkins?\\n1. As to the usury.\\nIt is competent to a party to an usurious contract, to go into equity for relief as to the interest, even after a judgment at law, and without assigning any reason for having failed to defend himself at law. But, this can be done only on a bill properly framed for the purpose.\\nIf the bill in this case had impeached the transaction as usurious in its origin, and had sought relief on that ground, the testimony of Harrison might have been relied on in support of a claim to be exempted from paying any interest whatever. But, there is no such allegation in the bill; and, therefore, the testimony of Harrison as to the usury, *relating to a matter not in issue, is irrelevant, and ought to be disregarded.\\nThe only part of the bill that relates to the question of usury, is that which states that since the death of Toell, Perkins had paid his widow, with the knowledge of the administrator, the sum of $100 for extra interest on the note, agreed by Perkins to be paid to Toell. But, this is not stated to have been originally agreed, when the note was executed. It may have been a subsequent agreement, in consideration of delay of payment, after the note became due; in which case, it would not have affected the note, and the legal interest upon it, although, if supported by testimony, it might have entitled him to relief for all beyond legal interest. But, the allegation, as made in the bill, is denied in the answer; and is not supported by Harrison's testimony, nor any other in the cause.\\nThe appellant was, therefore, rightly dismissed from Court, so far as relates to the question of usury.\\n2. We will next examine his pretensions, on the ground of the credits to which, it is alleged, Perkins was entitled.\\nIt may be admitted that, as to these credits, Harrison's testimony is relevant, and even satisfactory. But the appellant will, nevertheless, be entitled to no redress. The bail had a right to make any defence at law, which the principal himself might have made. He might have defended himself on the ground of these credits. There is no allegation of a defect of testimony ; for, even in his bill, he declares his ability to prove them. He ought to have defended himself at law: and as he assigns no good reason, why he did not do so, the door of the Court of Equity ought not to have been opened to him.\\nThe decree of the Chancellor should be affirmed.\\nJUDGES CARR and GREEN concurred, and the judgment was affirmed.\\nThe President and Judge Coalter absent.\"}"
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+"{\"id\": \"6733053\", \"name\": \"Chesapeake & Ohio R. R. Co. v. Paine & Co.\", \"name_abbreviation\": \"Chesapeake & Ohio R. R. v. Paine & Co.\", \"decision_date\": \"1877-11\", \"docket_number\": \"\", \"first_page\": \"509\", \"last_page\": \"512\", \"citations\": \"29 Gratt. 502\", \"volume\": \"70\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:48:01.615562+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"*Chesapeake & Ohio R. R. Co. v. Paine & Co.\", \"head_matter\": \"*Chesapeake & Ohio R. R. Co. v. Paine & Co.\\nNovember Term, 1877,\\nRichmond.\\n1. Shares of Stock: \\u2014 Garnish eeing- Corporation. \\u2014 The shares of a stockholder in a joint stock company, incorporated by and conducting its operations, in whole or in part, in the state are such estate as is liable to be attached in a proceeding instituted for that purpose, by one of the creditors of such stockholder; and such estate may properly be considered, for the purpose of such proceeding, as in the possession of the corporation in which the shares are held, and such corporation may properly be summoned as garnishee in tile case,\\na. Same \\u2014 Same\\u2014Jurisdiction of Courts.\\u2014 On such a proceeding a court of law has jurisdiction as well as a court of equily.\\n3. Same \\u2014 Same\\u2014Claim by Third Party.\\u2014 Where, along with the answer of the corporation in such proceeding, an affidavit is filed, alleging that some third person claims that said stock, and that the corporation claims no interest therein, nor colludes with such claimant, but is ready to dispose of the slock as the court shall direct, tile court should require such third person to appear and state the nature of his claim, and maintain or relinquish the same.\\n4. Same \\u2014 Same\\u2014Judgment against Corporation. \\u2014 Tf, in such a proceeding, the stock should appear to be liable to the Hen of the attachment, it ought to be sold for the satisfaction of the same under an order of the court made for that purpose in the attachment proceeding; but it is error for the court to render a judgment against the garnisheed corporation for the value of the stock, unless it appears that the lien of the attaching creditor on the stock was lost by the act of the corporation.\\nOn the 28lh May, 1872, Paine & Co., sued out from the clerk\\u2019s office of the circuit court of the city of Richmond a summons, commanding the defendants therein *named, viz: Trice & Hunter, to appear and answer a plea of trespass on the case in assumpsit.\\nOn the same day, upon affidavit that the defendant Trice was a non-resident of the state of Virginia, and that the affiant believed that the said defendant had estate or debts due him in the city of Richmond, an attachment was issued in said cause of Paine & Co. v. Trice & Hunter, and was executed the same day by delivering to the vice-president and cashier of the Chesapeake and Ohio Railroad Company copies thereof, and summoning them to appear as garnishees and answer said attachment.\\nOn the 20th November, 1872, judgment was rendered in favor of Paine & Co., against Trice & Hunter for the sum of $520.38, with interest thereon from 20th February, 1872.\\nOn the 16th December, 1873, the railroad company filed their answer to the attachment under the corporate seal of said company, alleging that at the time of the service of said attachment the said company was not indebted to the said Trice, nor had in its possession or control any goods, chattels, money, securities, or other effects belonging to said Trice.\\nThereupon Paine & Co., by counsel, objected to the receiving of said answer on the ground that said garnishee had not fully answered, and the court sustained said objection and required said railroad company, garnishee as aforesaid,, to answer further.\\nWhereupon the said Chesapeake and Ohio Railroad Company answered further, that on said 28th May, 1872, the said Trice was a stockholder in said company, and on that day had fifteen shares of stock standing on the books of the company in his name; but that it was advised and so insisted that the said shares created no indebtedness from said company to said Trice, nor were they goods, chattels, *money, securities or other effects, belonging to said Trice, in the possession or control of said company; and in addition to said answer, filed the affidavit of the vice-president of said company that one John H. Oley, a resident 'of the town of Huntington, in the state of West Virginia, had a claim to the said fifteen shares of stock; that the said company had and claimed to have no interest whatever in said shares, and that it did not collude in any manner with said claimant, but was ready to dispose of the said fifteen shares of stock as the court might direct.\\nThereupon the railroad company moved the court to require said Oley to appear and state the nature of his claim to said stock, and maintain or relinquish it, and in the meantime to stay proceedings against the said company. Which motion the court overruled; to which decision of the court the company excepted.\\nThereupon a jury was waived, and the facts agreed, whereby it appeared that said fifteen shares of stock remained registered on the books of the company, in the name of said \\u25a0Trice, until the 20th January, 1873, when they were transferred to the name of said J. H. Oley, in the manner prescribed by the fifty-seventh chapter of the Code of 1860, (see Code of 1873, ch. 57, \\u00a7 29-30) ; that said transfer was accomplished. under a power of attorney to transfer said stock, given by Trice to Oley 'in. January, 1873; that the market value of said shares of stock on the 21st January, 1873, was $35 per share; that Trice was indebted to said Oley, and said transfer was. made in part payment of said indebtedness; and that Oley had no knowledge at the time of transfer of the attachments, both he and Trice being residents of West Virginia; that the president of the railroad company resides in the city of New York, at which place is. the principal office of the company out of Virginia, and that *the stock-ledger on which the transfer of the shares of stock was registered was kept in the New York office.\\nOn consideration whereof, and of the answer of said company, the court being of opinion that at the time the attachment was served on the railroad company there was a liability on said company for the fifteen shares of the stock of said company then standing on the books of said company in the name of said Trice, and that at the time of the transfer of the said stock to the said Oley, it was of the value of $525, rendered judgment against said company for said sum of $525, with interest thereon from the 15th day of December, 1873. To this judgment the Chesapeake and Ohio Railroad Company obtained a writ of error and supersedeas from one of the judges of this court.\\nWm. J. Robertson and H. T. Wickham, for the appellant.\\nCannon & Courtney for the appellees.\\nShares of Stock \\u2014 Ilucii\\u00a1slieeing Corporation. \\u2014 -In Railroad Co. v. Griffith, 76 Va. 913, the principal case is cited for the proposition that the shares of a stock holder in a railroad company are liable to attachment; and by virtue thereof the attaching creditor requires a claim superior to that of a subsequent bona fide purchase of those shares for value and without notice. See Ashley v. Quintard, 10 Am. & Eng. Corp. Cas., N. S., 137, and note.\", \"word_count\": \"2870\", \"char_count\": \"16041\", \"text\": \"Moncure, P.,\\ndelivered the opinion of the court.\\n1. The court is of opinion, that a person's whole estate, real, personal and mixed, subject to such exemptions as are made by law, is liable for the payment of his debts, and may be subjected thereto by judgment and execution, and such ancillary proceedings at law or in equity as may be necessary or proper to enforce such execution. When the debtor is a non-resident of the state, but has estate within the commonwealth, such estate may be subjected by attachment to the payment of the debt.\\nSuch attachment may be levied on the estate itself, if it be tangible and in the debtor's possession, or in the actual possession of no person. But if it be in the possession of another person than the debtor, such other *person must be summoned as garnishee. Such attachment becomes a lien on the debtor's interest in the state from the time of the attachment thereon, or of the service of the summons on the garnishee, respectively, as aforesaid.\\n2. The court is further of opinion, that shares of a .stockholder in a joint stock company, incorporated by and conducting its operations in whole or in part in the state\\u2014 such stockholder being himself a non-resident of the state \\u2014 are such estate as is liable to be attached in a proceeding instituted for that purpose by one of his creditors in a proper court of the state; and such estate may properly be considered for the purpose of such proceeding as in possession of the corporation in which the shares are held, and such corporation may properly be summoned as garnishee in the case.\\nWhether shares of a stockholder in a joint stock company be chattels or choses in action, has been a vexed question. The better opinion seems to be that they partake of the nature of choses in action. Angel & Ames on Corporations, \\u00a7 560 et seq. and notes. Barksdale & als. v. Finney & als., 14 Gratt. 338, 357. But whether they be the one or the other, they certainly constitute a part of the owner's estate, and as such are liable to the payment of his debts, and to a proceeding by attachment against him. The statute declares that they shall be deemed personal estate. Code, p. 550, \\u00a7 21.\\nSeveral cases were cited by the counsel of the plaintiff in error in the argument of this case, to show that stock in a corporation is not subject to a proceeding by attachment against the owner \\u2014 viz: Haley &c. v. Reid, 16 Georgia, 437; Ross &c. v. Ross, 25 Id. 297; Foster v. Potter, 37 Mo. 525. See also the Planters and Merchants Bank of Mobile v. Leavens, 4 Alab. R., New Series, 753.\\n*But these cases depend entirely upon the statute law of the states in which they were decided. Of course it depends upon the statute, wherever the subject is governed and regulated by statute, whether stock in a corporation shall be liable to an attachment against the owner, and if so, in what manner and to what extent. Titcomb v. The Union Marine and Fire Ins. Co., 8 Mass. R. 326.\\nIn this state, the statute law subjects to the proceeding by attachment against a non-resident debtor, all his estate within the commonwealth which could be subjected to the payment of his debt if he resided therein. Before the revision of our statute law in 1849, the only remedy against a foreign debtor, owning or having an interest in property within the state, to subject such property or interest to the payment of the debt, was in equity, by a proceeding known by the name of a \\\"foreign attachment.\\\"\\nBut in the revision of our Code in 1849, a radical change was made, at least in the form of proceeding in our attachment law. No change was made, for none was needed, in regard to the liability of a debtor's whole estate, including his stock, if he had any, in a corporation within a state; for that was liable to the remedy by foreign attachment as that remedy aforetime was. But by the change then made, it was provided that, to subject the property within the state of a debtor residing out of it to_the payment of the debt, the proceeding by attachment should be at law, if the debt be recoverable by action at law; biA should be in equity, if the debt be recoverable in equity. See the report of the revisors, ch. 151, pp. 753-763, and notes.\\nVery soon after that revision was made, the former equitable remedy by foreign attachment was restored _ in regard to legal demands, but concurrently with the legal ^remedy given in such cases at the revision. Though our attachment law in other respects have ever since remained, and yet remains, substantially the same, or nearly the same, as it was recommended by \\\"the revisors in their report, and adopted by the legislature in the revision aforesaid. As it now stands, it may be found in the Code of 1873, pp. 1008, 1016, ch. 148.\\nBy reference to that chapter, it will be seen that the legislature has therein used the most comprehensive terms in describing the estate made liable to attachment; thus plainly showing its intention to embrace all estate of the debtor within the jurisdiction of the court, including his shares, if any, of such stock in a corporation. In the first section the word used is \\\"estate,\\\" without limitation or restriction, and the same word, or other words sufficiently comprehensive to embrace shares of stock in a corporation, are used in most of the sections of the same chapter; thus plainly showing that such shares are within the letter, as they certainly are within the spirit, of the law. In addition to \\u00a7 1, see \\u00a7 7, 9, 11, 12, 13, 15, 17, 18, 19, 23, 24, 25, 27, and 28 of the chapter.\\nThat a corporation may be summoned and proceeded against a garnishee, in such cases, was expressly decided by this court in Baltimore & Ohio R. R. Co. v. Gallahue's adm'rs, 12 Gratt. 655. That the corporation in which the shares are held in this case was properly summoned and proceeded against as a garnishee, seems to be very clear. The corporation is a trustee of the corporate property for the benefit of the corporators, who are the stockholders. They receive the profits of it in the form of dividends while the corporation continues to exist, and when it ends, the surplus which then remains of said property and profits is subject to be divided among them. The corporation alone, while it exists, is in possession of the corporate property. Jf these shares of stock in such ^corporations are liable to attachment, as we have seen they are, how can they be attached but by summoning the corporation as garnishee?\\nWe have examined the case of Rollo, assignee, v. Andes Ins. Co., 23 Gratt. 509, but as there is nothing which is at all in conflict with this opinion, it is unnecessary to make any comment thereon.\\n3. The court is further of opinion, that although a court of equity might, and no doubt would, have had jurisdiction in this case, yet the court of law in which it was brought also had jurisdiction in it, and ample provision is made by law for obtaining relief in an action at law in such a case. Indeed, the same provision is made by law in regard to the mode and measure of relief in an attachment case, whether it be an action at law or a suit in equity.\\n4. The court is further of opinion, that the circuit court did not err in requiring of the garnishee a further and fuller answer than the one first given. But no exception was taken to the action of the court in that respect, and therefore no error can be assigned thereon.\\n5. But the court is further of opinion that the circuit court erred in not making an order requiring J. H. Oley to appear at such time as the court should have appointed, and state the nature of his claim to the stock in controversy and maintain or relinquish it. The transfer to him of the shares of the said stock on the books of the corporation was made on the 20th day of January, 1873, which was long after the 20th day of May, 1872, when the attachment was issued and served on the Chesapeake and Ohio Railroad Company, and thus became a lien on and from that day, on the interest of the defendant, A. J. Trice, in said stock, which then stood and remained in his name on the books of the said corporation; so that it would appear that the right of the said attachment \\\"^creditors is prior and paramount to that of the said Oley. But the latter might possibly be able to show, if he had an opportunity; that he had some prior equitable right to the stock.\\n6. And the court is further of opinion, that the circuit court erred in rendering a judgment against the garnishee for the value of said stock, at least unless it had appeared that the lien of the attaching creditor on the said stock was lost by the act of the said corporation; which does not appear from the record. If the stock be liable to the lien of the attachment, it ought to be sold for the satisfaction of the same, under an' order of court made for that purpose in the attachment proceeding.\\n7. The court is further of opinion, that there is no other error than as aforesaid in the judgment and proceedings aforesaid. But for the errors aforesaid, the said judgment is reversed, and the cause remanded to the said circuit court for further proceedings to be had therein to a final judgment in conformity to the foregoing opinion.\\nJudgment reversed.\"}"
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+"{\"id\": \"6811840\", \"name\": \"L. Wilson York v. City of Danville\", \"name_abbreviation\": \"York v. City of Danville\", \"decision_date\": \"1967-01-16\", \"docket_number\": \"Record No. 6253\", \"first_page\": \"665\", \"last_page\": \"672\", \"citations\": \"207 Va. 665\", \"volume\": \"207\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T01:57:09.702648+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present, All the Justices.\", \"parties\": \"L. Wilson York v. City of Danville.\", \"head_matter\": \"Richmond\\nL. Wilson York v. City of Danville.\\nJanuary 16, 1967.\\nRecord No. 6253.\\nPresent, All the Justices.\\nS. W. Tucker and /. L. Williams (Jack Greenberg; James M. Nabrit, III; Melvyn Zarr; Ruth L. Harvey, on brief), for the plaintiff in error.\\nJames A. H. Ferguson, City Attorney and John W. Carter, for the defendant in error.\", \"word_count\": \"2872\", \"char_count\": \"16748\", \"text\": \"Eggleston, C. J.,\\ndelivered the opinion of the court.\\nOn July 28, 1963, L. Wilson York and sixty-one others were arrested in the City of Danville on separate warrants charging each with parading without a permit in violation of a city ordinance. Convicted in the Municipal Court, they appealed to the Corporation Court where, by consent, the cases were consolidated, jury trials were waived, and the defendants were tried by the court. The court convicted each of the defendants for violation of the ordinance and meted out to them various sentences ranging from a $25 to a $50 fine and twenty days' imprisonment, with part of the imprisonment of each being suspended.\\nEach defendant has appealed and their cases are before us on a consolidated record. In their assignments of error they contend that (1) the evidence is insufficient to support a finding that they were guilty of parading without a permit in violation of the provisions of the ordinance, and (2) the ordinance is an unconstitutional prior restraint upon their rights of freedom of speech and assembly guaranteed to them under Section 12 of the Constitution of Virginia and the First and Fourteenth Amendments to the Constitution of the United States.\\nThese cases arise out of racial disturbances in the City of Danville which commenced about May 31, 1963, and continued through the months of June, July and August of that year. During this period the defendants and others sought by demonstrations and marches in public places and along the streets of the city to bring to the attention of the city officials and the public their grievances for the alleged discrimination against members of the Negro race in the conduct of the official and business affairs of the city.\\nOn July 10, while these demonstrations were continuing, the city council adopted the ordinance which is the basis of these prosecutions. It \\\"amended and reordained\\\" Section 16-20 of the City Code of 1962 \\\"regulating permits for parades and processions.\\\" The pertinent portions of the ordinance are printed in the margin.\\nPrior to Sunday, July 28, 1963, the chief of police had received information through the press and over the radio that a \\\"demonstration\\\" would take place on that day. About 3:30 P. M. on July 28 he learned that a parade was being held on Main Street in the downtown business section of the city. He went there and found two groups of people, aggregating about 75 or 80, walking down the sidewalk on each side of the street. He said that they were \\\"marching in two's and sometimes would be three abreast or four,\\\" and \\\"singing and clapping their hands;\\\" that they \\\"did not seem to be acting as individuals, but acted in concert,\\\" and that their activity was \\\"a demonstration or march rather than just a casual walk.\\\" Other officers identified York and the other defendants as taking part in the march or demonstration which continued for a distance of about five blocks. Since the required permit had not been obtained, the defendants were arrested and charged with the violation of the above-mentioned ordinance.\\nWe have no difficulty in reaching the conclusion that the lower court correctly held that the activities of the defendants constituted a breach of the provisions of the ordinance. Section \\\"C\\\" of the ordinance provides that, \\\"No person shall engage in, participate in, aid, form or start any parade, unless a parade permit shall have been obtained from the Chief of Police (or other appropriate official or body).\\\" Section \\\"B(3)\\\" defines a \\\"parade\\\" as \\\"any parade, march, ceremony, show, exhibition, pageant, or procession of any kind, or any similar display, in or upon any street, park or other public place in the City.\\\" Clearly the defendants were engaged or participating in a \\\"parade, march,\\\" or \\\"procession\\\" \\\"in or upon\\\" the \\\"street\\\" or \\\"other public place in the City\\\" within the terms of the ordinance. Admittedly, the required permit had not been obtained.\\nWhether the ordinance is an unconstitutional prior restraint upon the defendants' rights of freedom of speech and assembly guaranteed to them under Section 12 of the Constitution of Virginia and the First and Fourteenth Amendments to the Constitution of the United States presents a more serious and difficult question. While the rights of freedom of speech and assembly are fundamental, they are not absolute and must be exercised in subordination to the general comfort and convenience and in consonance with peace, good order and the rights of others. Hague v. Committee For Industrial Organization, 307 U. S. 496, 515-516, 59 S. Ct. 954, 964, 83 L. ed. 1423; Baines v. City of Danville, 4 Cir., 337 F. 2d 579, 586; McWhorter v. Commonwealth, 191 Va. 857, 864-865, 63 S. E. 2d 20, 23; City of Darlington v. Stanley, 239 S. C. 139, 122 S. E. 2d 207, 209; 16 Am. Jur. 2d, Constitutional Law, \\u00a7 345, p. 665 ff.; 16 C. J. S., Constitutional Law, \\u00a7 213(5), p. 1102.\\nConsequently,, the right to engage in a parade or demonstration as an exercise of the rights of freedom of speech and assembly is subject to reasonable and nondiscriminatory regulation. Cox v. State of New Hampshire, 312 U. S. 569, 61 S. Ct. 762, 85 L. ed. 1049, 133 A. L. R. 1396; City of Darlington v. Stanley, supra; 25 Am. Jur., Highways, \\u00a7 190, pp. 489, 490; 64 C. J. S., Municipal Corporations, \\u00a7 1769, p. 216.\\nThe problem was thus analyzed by Chief Justice Hughes in Cox v. State of New Hampshire, supra:\\n\\\"Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions. As regulation of the use of the streets for parades and processions is a traditional exercise of control by local government,, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.\\\" 312 U. S. at 574, 61 S. Ct. at 765.\\nIt was further pointed out in the Cox case that the obvious advantage of requiring application for a permit is to afford opportunity for proper policing, to secure the convenient use of the streets by other travelers, and to minimize the risk of disorder. 312 U. S. at 576, 61 S. Ct. at 765, 766.\\nBut it is well settled that to be valid such an ordinance must be reasonable in its requirements and not oppressive in its operation. 25 Am. Jur., Highways, \\u00a7 190, p. 490. Stated conversely, an ordinance which imposes arbitrary, oppressive and unwarranted requirements cannot be sustained. We think that the provision in the ordinance here under consideration, requiring the application for a permit to be filed with the chief of police \\\"not less than thirty days nor more than sixty days before the date on which it is proposed to conduct the parade,\\\" is of the latter character.\\nThere is nothing in the wording of the ordinance or in the record of the trial below to explain or justify why so protracted a \\\"Filing Period\\\" is required. There is no evidence that such a period will be necessary in order to prepare for the proper policing of the city streets or the regulation of traffic in anticipation of such a parade or demonstration. We have been cited to no case, nor have we been able to find any, which sustains such a limitation on an application for a like permit. The ordinances sustained in Cox v. State of New Hampshire, supra, and City of Darlington v. Stanley, supra, merely required permits without limitation on the time within which application must be made therefor.\\nOrdinances of this character sometimes require twenty-four hours' notice of an application for a permit to hold a parade. This is illustrated in Commonwealth v. Hessler, 141 Pa. Super. 421, 15 A. 2d 486, relied on by the city. Such a period may be required in order that the police may prepare for the regulation of traffic and the preservation of good order along the proposed route of the parade. But it is a matter of common knowledge that no such protracted period as thirty days will be required for that purpose.\\nThe practical effect, if not the purpose, of the thirty-day requirement in the Danville ordinance was to prevent the defendants from publicly proclaiming their grievances during this period. It inhibited demonstrations which might be peaceful and orderly as well as those which might be riotous and disorderly.\\nWe conclude that the provision in the ordinance requiring that application for a parade permit be filed with the chief of police \\\"not less than thirty days nor more than sixty days before the date on which it is proposed to conduct the parade\\\" is an arbitrary and unreasonable prior restraint upon the rights of freedom of speech and assembly guaranteed to the defendants under the provisions of the Constitution of Virginia and the Constitution of the United States.\\nWe agree with the position of the defendants that the provision in paragraph \\\"D(3)\\\" of the ordinance for the consideration of \\\"Late Applications\\\" does not insure or preserve the constitutionality of the ordinance. Under the terms of this paragraph, the chief of police \\\"where good cause is shown\\\" shall have the authority to consider any application which is filed less than thirty days before the date such parade is proposed to be conducted. Here the determination by the chief of police that \\\"good cause is shown\\\" is unlimited and undefined. While paragraph \\\"E\\\" provides the \\\"Standards for Issuance\\\" of a permit by the chief of police, before applying such standards he must first determine that good cause has been shown for considering a late application. Vesting such unlimited discretion in an administrative official has been universally condemned. Kunz v. People of State of New York, 340 U. S. 290, 294, 295, 71 S. Ct. 312, 315, 95 L. ed. 280; Cox v. State of Louisiana, 379 U. S. 536, 557, 85 S. Ct. 453, 465, 466, 13 L. ed. 2d 471; Thompson v. Smith, 155 Va. 367, 378, 379, 154 S. E. 579, 71 A. L. R. 604; City of Florence v. George, 241 S. C. 77, 127 S. E. 2d 210, 211.\\nIt is argued that since the defendants did not apply for a permit under the ordinance they are not in a position to challenge its constitutionality. A like contention has been firmly rejected in the decisions of the Supreme Court of the United States. In Staub v. City of Baxley, 355 U. S. 313, 319, 78 S. Ct. 277, 281, 2 L. ed. 2d 302, it is said: \\\"The decisions of this Court have uniformly held that the failure to apply for a license under an ordinance which on its face violates the Constitution does not preclude review in this Court of a judgment of conviction under such an ordinance.\\\" See also, Smith v. Cahoon, 283 U. S. 553, 562, 51 S. Ct. 582, 585, 75 L. ed. 1264; Lovell v. City of Griffin, 303 U. S. 444, 452, 58 S. Ct. 666, 669, 82 L. ed. 949; City of Florence v. George, supra, 127 S. E. 2d at 213.\\nFor these reasons we hold that the provision in the ordinance requiring that application for a parade permit be filed with the chief of police \\\"not less than thirty days nor more than sixty days before the date on which it is proposed to conduct the parade,\\\" is unconstitutional and void. Consequently, the judgment in each case is reversed and the prosecution dismissed.\\nReversed and dismissed.\\n(1) \\\"Section 16-20. Regulations for Parades and Other Similar Uses of Public Places.\\na\\n\\\"B. Definitions.\\n*\\n\\\"(3) 'Parade' is any parade, march, ceremony, show, exhibition, pageant, or procession of any kind, or any similar display, in or upon any street, park or other public place in the City.\\n\\\"(4) 'Parade Permit' is a permit as required by this Ordinance.\\n\\\"C. Permit Required. No person shall engage in, participate in, aid, form or start any parade, unless a parade permit shall have been obtained from the Chief of Police (or other appropriate official or body).\\n\\\"(1) Exceptions. [Not here material]\\n\\\"D. Application. A person seeking issuance of a parade permit shall file an application with the Chief of Police on forms provided by such officer.\\n\\\"(1) Filing Period. An application for a parade permit shall be filed with the Chief of Police not less than thirty days nor more than sixty days before the date on which it is proposed to conduct the parade.\\n\\\"(2) Contents. The application for a parade permit shall set forth the following information:\\n\\\"(d) The date when the parade is to be conducted;\\n\\\"(e) The route to be traveled, ;\\n\\\"(f) The approximate number of persons who will constitute such parade;\\n\\\"(g) The hours when such parade will start and terminate.\\n\\\"(3) Late Applications. The Chief of Police, where good cause is shown therefor shall have the authority to consider any application hereunder which is filed less than thirty days before the date such parade is proposed to be conducted.\\n*\\n\\\"E. Standards for Issuance. The Chief of Police shall issue a permit as provided for hereunder when, from a consideration of the application and from such other information as may otherwise be obtained, he finds that:\\n\\\"(1) The conduct of the parade will not substantially interrupt the safe and orderly movement of other traffic contiguous to its route;\\n\\\"(2) The conduct of the parade will not require the diversion of so great a number of police officers of the City to properly police the line of movement and the areas contiguous thereto as to prevent normal police protection to the City;\\n\\\"(3) The conduct of such parade will not require the diversion of so great a number of ambulances as to prevent normal ambulance service to portions of the City ;\\n\\\"(4) The concentration of persons, animals and vehicles at assembly points of the parade will not unduly interfere with proper fire and police protection of, or ambulance service to, areas contiguous to such assembly areas;\\n\\\"(5) The conduct of such parade will not interfere with the movement of firefighting equipment enroute to a fire;\\n\\\"(6) The conduct of the parade is not reasonably likely to cause injury to persons or property, to provoke disorderly conduct or create a disturbance;\\n\\\"(7) The parade is scheduled to move from its point of origin to its point of termination expeditiously and without unreasonable delays enroute;\\n\\\"(8) The parade is not to be held for the sole purpose of advertising any product, goods or event, and is not designed to be held purely for private profit.\\n\\\"F. Notice of Rejection. The Chief of Police shall act upon the application for a parade permit within three days after the filing thereof. If the Chief of Police disapproves the application, he shall mail to the applicant within five days after the date upon which the application was field, a notice of his action, stating the reasons for his denial of the permit.\\n\\\"G. Appeal Procedure. Any person aggrieved shall have the right to appeal the denial of a parade permit to the City Council. The appeal shall be taken within ten days after notice. The City Council shall act upon the appeal within ten days after its receipt.\\n\\n\\\"J. Contents of Permit. [Not here material]\\n# # #\\n\\\"N. Penalties. Any person, firm or corporation violating any of the provisions of this Ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished as provided in Section 1-6 of the Danville City Code of 1962. Each day such violation is committed, or permitted to continue, shall constitute a separate offense and shall be punishable as such hereunder.\\\"\"}"
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+"{\"id\": \"9165\", \"name\": \"Davis v. Davis\", \"name_abbreviation\": \"Davis v. Davis\", \"decision_date\": \"1911-11-16\", \"docket_number\": \"\", \"first_page\": \"904\", \"last_page\": \"921\", \"citations\": \"112 Va. 904\", \"volume\": \"112\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:39:01.273213+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Davis v. Davis.\", \"head_matter\": \"Richmond.\\nDavis v. Davis.\\nNovember 16, 1911.\\n1. Criminal Law \\u2014 Discharge from Prosecution \\u2014 New Indictment\\u2014 Different Acts of Embezzlement \\u2014 Evidence.\\u2014Although a prisoner may have been improperly held for trial more than four months on several indictments for embezzlement, if these have been dismissed, and a new indictment has been found against him charging many other acts of embezzlement during the period covered by the former indictments, he is not entitled to be discharged from prosecution under the new indictment if there be one or more counts therein which state offenses not embraced in the indictments which were dismissed, although provable by evidence admissible under those indictments.\\n2. Criminal L.aw \\u2014 Embezzlement\\u2014Dismissal of Indictment \\u2014 Neio Indictment \\u2014 Discharge from Prosecution \\u2014 Election by Prosecutor. \\u2014 If an indictment charging many acts of embezzlement be fouitd against a prisoner, for some of which he is entitled to be discharged from prosecution on account of failure to try him within the time prescribed by law upon former indictments for those acts, which indictments have been since dismissed, he is not entitled to be discharged from prosecution under the new indictment, but it will be proper for the trial court, when the prisoner is set to the bar for trial, to require the attorney for the Commonwealth, before going into trial, to state upon what counts he relies as setting forth offenses not embraced in the indictments which have been dismissed, to the end that the court, with the aid of counsel, may determine upon which counts the accused may now be properly tried, and thus elimi< nate much that would tend to confuse the material issues and greatly protract the trial.\\nUpon a writ of habeas corpus, and a petition to be discharged from prosecution.\\nPetition denied.\\nThe petition is in the following words and figures:\\nYour petitioner, Charles Hall Davis, respectfully shows unto this honorable court that he is unlawfully restrained of his liberty by Arthur Kyle Davis, his bail, by reason of a certain indictment for felony found against your petitioner and Carter R. Bishop, jointly, at the June term of the Hustings Court of the city of Petersburg, and known as indictment No. 10 of said term (which indictment is hereinafter more fully described), your petitioner having been delivered to bail unto the said Arthur Kyle Davis, his bail, who has now arrested and taken custody of your petitioner, which restraint is unlawful, because for more than four terms of said court, in fact, for six terms thereof, to-wit: the February, March, April, May, June and July terms, 1911, of said court (all of which were terms of said court regularly held at which your petitioner could have been tried), your petitioner has been continuously held in said court for trial, and is still so held, upon indictments found against him in said court, charging the offense or offenses alleged in the said indictment No. 10; no one of which indictments has been tried, although your petitioner has repeatedly and earnestly insisted upon a trial. The failure to try your petitioner upon the said indictments has not been caused by his insanity, or by the witnesses for the Commonwealth being enticed or kept away or prevented from attending by sickness or inevitable accident, or by continuance granted on the motion of the accused (except after his right to be forever discharged had accrued, and then only for the purpose of applying for this writ as hereinafter shown), or by reason of his escaping from jail or failing to appear according to his recognizance, or by reason of the inability of the jury to agree in their verdict, or because there was no court held at any of said six regular terms of said court after the January term, 1911, or because at any of the said terms of said court it was injudicious, in the opinion of-the court, to have jurors and witnesses summoned for that term, for some reason specially spread upon the records of the court; nor has there been any appeal in the said case during the said time, nor any proceedings for appeal; nor has the failure to try this defendant been caused by an injunction from a Federal court, obtained at the instance of your petitioner; nor by any act or motion, voluntary or involuntary, on the part of this petitioner; nor by any act or cause in pari ratione with those enumerated above, or with those enumerated in section 4047 of the Code, of Virginia.\\nTo the end that the cause of his detention and restraint, and the reason why he is entitled to be discharged therefrom, may more fully appear, your petitioner sets forth the following facts:\\n1. In October, 1909, your petitioner finding himself and the firm of Davis & Davis (composed of himself and Richard B. Davis) largely indebted to the Appomattox Trust Company, a bank doing business in the city of Petersburg, had a settlement and adjustment with said bank of all matters connected with himself and his said firm, after all of the transactions of your petitioner and his said firm with .said bank had been gone over fully and in detail with the officers, directors and attorney of said bank, which settlement and adjustment was declared by the said officers, directors and their attorney to be satisfactory. Although all the facts were then fully known and discussed, there was no suggestion or reason to suggest that your petitioner had been guilty of any criminal act in any of his transactions with said bank; in fact, any such idea was negatived by everything that occurred. This was after all of the transactions complained of in the various indictments took place.\\n2. In December, 1910, a conflagration occurred in Peters-burg, which destroyed the law offices of Davis & Davis, together with the greater part of the books and papers and practically all of the returned checks, notes, etc., of your petitioner and his said firm; and at the January term of the Hustings Court of the city of Petersburg following, criminal proceedings were instituted against your petitioner. At said January term, to-wit: on February 15, 1911, the grand jury, after a most exhaustive examination of the affairs of the Appomattox Trust Company, found six indictments against your petitioner, charging him with being accessory to Carter R. Bishop as principal in the.commission of embezzlement from the Appomattox Trust Company, the said several indictments charging the offenses to have been committed on the dates and in the amounts following, to-wit:\\nNo. Date. Amount.\\n1 ......October 2, 1908..........$ 566.35\\n2 ......October 5, 1908.......\\u25a0. . . 20,685.00\\n3 ......October 5, 1908.......... 26,190.00\\n4 ......July 21, 1909............ 84,184.67\\n5 ......August 11, 1909.......... 4,000.00\\n6 ......August 12, 1909.......... 140.51\\nCopies of the said six indictments are herewith filed, marked, respectively, exhibits \\u201cA,\\u201d \\u201cB,\\u201d \\u201cC,\\u201d \\u201cD,\\u201d \\u201cE\\u201d and \\u201cF,\\u201d and prayed to be read as parts of this petition.\\nAt the same time there were found against your petitioner two indictments charging him with being accessory to Carter R. Bishop as principal in omitting to make two certain entries in the books of the said bank on the 2d day of August, 1909.\\nImmediately upon the coming in of these indictments, your petitioner appeared voluntarily in court and gave bond for his appearance at the February term of the court, which commenced on the following day; and from that day to this your petitioner has been continuously in court ready and anxious to meet the charges so made against him.\\n3. At the February term, 1911, your petitioner appeared and renewed his bail, all of the cases against him being continued by the court of its own motion until the March term.\\n4. At the March term, 1911, of said court the Commonwealth\\u2019s attorney again referred the whole matter to the grand jury, which first returned two indictments against your petitioner and Carter R. Bishop, charging the making of false entries in the books of the bank, but they were almost immediately nolle prosequied; and later the grand jury returned the following nine indictments, charging larceny from the said Appomattox Trust Company against your petitioner and said Bishop, each containing three counts, one charging your petitioner as principal and said Bishop as accessory, another charging said Bishop as principal and your petitioner as accessory, and the third charging your petitioner and said Bishop as joint principals, the numbers and the dates and amounts alleged being as set forth below:\\nNo. Date. Amount. .\\n4 ......September 10, 1908. . . $ 523.33\\n5 ......September 16, 1908. 516.88\\n6 ......October 2, 1908 566.35\\n7 ......October 3, 1908 200.00\\n8 ......October 5, 1908......... 26,190.00\\n9 ......October 5, 1908......... 20,685.00\\n10 ......July 21, 1909........... 84,184.67\\n11 ......August 11, 1909......... 4,000.00\\n12 ......August 12, 1909......... 140.51\\nCopies of the said nine indictments are herewith filed, marked, respectively, exhibits \\u201cG,\\u201d \\u201cH,\\u201d \\u201cI,\\u201d \\u201cJ,\\u201d \\u201cK,\\u201d \\u201cL,\\u201d \\u201cM,\\u201d \\u201cN\\u201d and \\u201cO,\\u201d and prayed to be read as parts of this petition.\\nAt the same time there were found two indictments against your petitioner and said Bishop charging false entries and one charging an omission to make an entry, the said indictments being numbered 1, 2 and 3, respectively.\\nUpon the coming of these indictments, all of the indictments found at the January term of the court against your petitioner as above set forth were nolle prosequied.\\nYour petitioner was in court ready for trial on the pending indictments, but all of the cases were continued by the court until the next term.\\n5. At the April term of the court your petitioner again appeared and asked that the cases against him be tried, but the attorney for the Commonwealth stated that it was his purpose to try first one of the indictments as to Mr. Bishop, who had announced his desire for a separate trial. Accordingly, Mr. Bishop was tried on one of the false entry indictments at said term of the court, but during the trial the court held that the evidence of the Commonwealth did not prove that any offense had been committed and a verdict of \\u201cnot guilty\\u201d was promptly returned by the jury. At this same April term your petitioner made separate motions in writing to require the Commonwealth\\u2019s attorney to file bills of particulars as to each of the said larceny indictments, Nos. 4 to 12, inclusive, above referred to as having been found at the March term, 1911. A copy of the said motion as to indictment No. 10 of said March term, 1911, charging the larceny of $84,184.67, is herewith filed, marked \\u201cExhibit P,\\u201d and prayed to be read as a part of this petition. The others were similar mutatis mutandis.\\nSpecial attention is- called to the third paragraph of said request, which is as follows:\\n\\u201cIf it is intended to charge that said amount was withdrawn from said Appomattox Trust Company by means of checks or drafts, how many checks and drafts were presented and paid, and upon what dates, and what was the amount of each?\\u201d\\nThe attorney for the Commonwealth contested said motion and refused to file such bills of particulars unless required by the court. The court took the matter under advisement, and later stated to one of counsel for petitioner that he had decided to require the Commonwealth\\u2019s attorney to file bills of particulars giving some of the information requested in your petitioner\\u2019s motion, but that he had been advised that it was the purpose of the Commonwealth\\u2019s attorney to dismiss all of the pending indictments and submit the whole matter to a third grand jury. The court did not, therefore, rule on said motion. At said April term of the court all of the cases against your petitioners were continued until the next term of the court, which would convene on May 18, 1911, although your petitioner was ready and anxious at all times during said April term for a trial.\\n6. At the May term, 1911, of said court your petitioner again appeared and insisted most vigorously upon the Commonwealth\\u2019s being compelled to go to trial upon the pending indictments, and upon its furnishing the bills of particulars theretofore requested. The attorney for the Commonwealth again refused to file the bills of particulars, saying, in effect, that if he were compelled to do so he would make the same so broad as to enable him to prove anything that could be proved under said indictments, and refused to go to trial upon any of said indictments, although it was not even claimed that his witnesses were not available or that there was any legal reason for a continuance. The only reason given was that he intended to send the whole matter again to the grand jury and find one indictment containing a large number of counts. So insistent was your petitioner upon a trial that his counsel set forth in writing a history of the proceedings to that date, and of your petitioner\\u2019s efforts to secure a trial of the charges against him, and presented it to the court in the form of a petition. A copy of the said petition is herewith filed, marked \\u201cExhibit Q,\\u201d and prayed to be read as a part hereof. The court, however, refused to require the attorney for the Commonwealth to go to trial on the pending indictments, but permitted him to send the whole matter to this third grand jury. After a few hours\\u2019 consideration, however, it was discovered that one of the grand jurors was perhaps ineligible and the grand jury was discharged from further service. Thereupon, all of the cases against your petitioner were again continued by the court until the next (or June) term of the court, although he was ready and pressing for a trial.\\n7. At the June term of the court, which commenced on the 15th day of June, 1911, your petitioner again appeared and announced that he was ready for trial, but the attorney for the Commonwealth repeated that it was his purpose to again refer the whole matter to the grand jury, and this was done, making the fourth grand jury to take the same under consideration, without any indictment found by the preceding grand juries having been tried.\\nThe said grand jury during the said June term of the court returned eleven joint indictments against your petitioner and said Carter R. Bishop, Nos. 1 and 2 of which charged the making of entries in the books of the bank with the intent to conceal the true state of an account therein, and No. 8 of which charged an omission to make an entry in said books. Six of said indictments charged larceny from the Appomattox Trust Company, the numbers, dates and the amounts involved being as set forth below:\\nNo. Date. Amount.\\n3. . May 3, 1909 .$110.00\\n4. . May 8, 1909 . 357.49\\n5 ......July 2, 1909................$181.08\\n6 ......June 29, 1909.............. 155.28\\n7 ......April 26, 1909............. . . 250.00\\n9......April 26, 1909........'...... 100.00\\nCopies of the said six indictments are herewith filed, marked, respectively, exhibits \\u201cR,\\u201d \\u201cS,\\u201d \\u201cT,\\u201d \\u201cU,\\u201d \\u201cV\\u201d and \\u201cW,\\u201d and prayed to be read as parts of this petition.\\nIndictment No. 10 of said term is the one upon which the present proceedings are founded. It contained 525 counts, and appears to have been constructed in the following manner: Thirty-five different amounts, with a date as to each, were taken, and then fifteen different counts were drawn as to each amount and date, charging an offense under section 3716 of the Code, each count being a joint charge against your petitioner and said Carter R. Bishop; so that this remarkable document (unequaled, no doubt, as to its length and its complicated ramifications in all the annals of jurisprudence), while employing only thirty-five different amounts and dates, contained 1,050 different allegations. So uncertain was the attorney for the Commonwealth as to what offense, if any, had been committed, that he made thirty different allegations as to each of said thirty-five amounts and dates. And so vague and general are the charges, as made, that your petitioner now has no knowledge whatever as to the nature of the transaction intended to be referred to in many of said counts, the books and papers now in his possession showing nothing whatever in reference thereto, and the counts themselves being so drawn as to give your petitioner no information.\\nSubsequently, at the September term of the court, fifteen counts covering one of.said amounts and dates were nolle prosequied; later, at the same term, ten counts as to each of the remaining thirty-four amounts and dates were nolle prosequied, after your petitioner\\u2019s counsel had stated their objections to the indictment; making a total of 355 counts nolle prosequied, but leaving 170 counts, or five counts as to each of said thirty-four amounts and dates.\\nThese five counts all purport to charge embezzlement, the said counts appearing in the indictment as to each amount and date as follows: (a) charging your petitioner as principal and said Bishop as principal in the second degree; (b) charging your petitioner as principal and said Bishop as accessory before the fact; (c) charging said Bishop as principal and your petitioner as principal in the second degree; (d) charging said Bishop as principal and your petitioner as accessory before the fact; (e) charging your petitioner and said Bishop as joint principals.\\nThe following table shows the counts now remaining in said indictment No. 10, giving the respective amounts and dates alleged, and the number of each count under letter headings (a, b, c, d, e), which indicate as above the form of the charge in each count:\\nTable of Counts.\\nAmount 1909 a b c d e\\n$ 238.50 Mar. 1 1 2 71 72 421\\n3 4 73 74 424 200.00 13\\n5 6 75 76 427 188.32 23\\n7 8 77 78 430 359.20 Apl. 6\\n9 10 79 80 433 200.00 15\\n11 12 81 82 436 316.71 May 5\\n13 14 83 84 439 100.00 17\\n15 16 85 86 442 107.50 9\\n17 18 87 88 445 100.00 June 14\\n19 20 89 90 448 100.00 21\\n21 22 91 92 451 344.89 28\\n23 24 93 94 454 271.66 30\\n25 26 95 96 457 156.08 July 7\\n$ 250.00 July 9 27 28 97 98 460\\n100.00 12 29 30 99 100 463\\n50,000.00 27 31 32 101 102 466\\n250.00 Aug. 4 33 34 103 104 469\\n123.82 12 37 38 107 108 475\\n50.00 13 39 40 109 110 478\\n300.00 Mar. 8 41 42 111 112 481\\n. 277.16 27 43 44 113 114 484\\n200.00 Apr. 19 45 46 115 116 487\\n796.52 30 47 48 117 118 490\\n181.50 May 11 49 50 119 120 493\\n221.76 25 51 52 121 122 496\\n1,060.00 June 2 53 54 123 124 499\\n300.00 8 55 56 125 126 502\\n150.00 17 57 58 127 128 505\\n300.00 July 2 59 60 129 130 508\\n105.00 17 61 62 131 132 311\\n510.00 Aug. 4 63 64 133 134 514\\n353.22 10 65 66 135 136 517\\n300.00 13 67 68 137 138 520\\n60.00 17 69 70 139 140 523\\nCopies of counts numbers 1, 2, 71, 72 and 421 are herewith filed, marked, respectively, \\u201cX-a,\\u201d \\u201cX-b,\\u201d \\u201cX-c,\\u201d \\u201cX-d\\u201d and \\u201cX-e,\\u201d and prayed to be read as parts of this petition. The remaining counts under each letter are similar to the said five counts, respectively, except as to dates and amounts alleged.\\nIndictment No. 11 of the said June term charged your petitioner- with being accessory to the making of a false report to the State Corporation Commission.\\n8. Immediately upon the coming in of the above referred to eleven indictments at the said June term, 1911, the Commonwealth\\u2019s attorney asked leave to nolle prosequi all of the indictments against your petitioner which had been found at the March term of the court. Your petitioner objected, however, to the nolle prosequiing of said indictments, insisting that the same ought to be disposed of in some final form, or else there would be no end to the finding of indictments and dismissing them when your petitioner would insist upon a trial; and your petitioner thereupon filed formal motions for the dismissal of six of said indictments for failure to prosecute under section 4047 of the Code, which motions were sustained and indictments Nos. 6, 8, 9, 10, 11 and 12 of the said March term were accordingly dismissed for said cause, your petitioner having been held for trial for the offenses therein alleged since the January term of the court. The attorney for the Commonwealth was then allowed by the court to nolle prosequi indictments Nos. 1, 2, 3, 4, 5 and 7 of said term. This left pending only the indictments which were found at the said June term of the court, all of which were continued until the July term of the court, your petitioner expressly refusing to ask for or consent to a continuance; in fact, he vigorously insisted upon an immediate trial of some of the indictments against him.\\n9. At the July term of the court your petitioner indicated his purpose to file a plea of former discharge to said indictment No. 10, but he was not arraigned and such plea was not formally filed, although the matter was presented to the court in an informal way and discussed at some length, but no decision was reached. The said indictment was then continued to the September term of the court (there being no August term), your petitioner again refusing to ask for or consent to a continuance. Your petitioner then insisted upon the trial of the indictment charging him with having been accessory to the making of a false report to the State Corporation Commission, but the Commonwealth\\u2019s attorney objected, and this indictment and all of the other then pend ing indictments were continued until the September term of the court.\\n10. At the September term of.the court your petitioner appeared and filed two pleas of former discharge. The attorney for the Commonwealth moved to reject said pleas, but his motion was overruled, and he thereupon filed replication to the same. Later, the court expressed the view that these pleas ought not to have been filed until after the demurrer and motion to quash had been considered. Thereupon, the attorney for the Commonwealth withdrew his replications and your petitioner withdrew his pleas. Your petitioner then moved to quash the said indictment and each count thereof, and demurred to the same and each count thereof, which motion to quash and demurrer were overruled after the attorney for the Commonwealth had nolle prosequied 355 counts, as above stated. Your petitioner also moved that he be discharged from further prosecution under said indictment No. 10 because of a failure to prosecute under section 4047 of the Code, but this motion the court overruled. At a later day of the term, however, in order to enable your petitioner to withdraw his said motion for discharge from further prosecution, the court reconsidered its decision in this regard and permitted your petitioner to withdraw his said motion, which was accordingly done.\\n11. After the court had overruled your petitioner\\u2019s motion for discharge from prosecution under said indictment No. 10, your petitioner, by counsel, moved the court to continue the said indictment No. 10 until the November term of the court, in order to allow your petitioner to apply to the Supreme Court of Appeals for a writ of habeas corpus, and the said case was accordingly continued, this being the first continuance of any kind asked for by your petitioner, and the same was requested, as appears by the record, for the express purpose of making this application. Your peti tioner had previously, during said September term, moved the said court to discharge him from further prosecution under pending indictments Nos. 1, 2 and 8, because of a failure to prosecute under section 4047 of the Code, and the Commonwealth\\u2019s attorney consenting thereto, the court sustained said motion and dismissed said three indictments. This left pending, in addition to said indictment No. 10, indictments Nos. 3, 4, 5, 6, 7, 9 and 11 of the June term, the first six of which charged larceny, as shown in paragraph 7 above, and the last charged your petitioner with being accessory to the making of a false report to the State Corporation Commission, as also shown in said paragraph 7 above.\\n12. The court having continued the trial of indictment No. 10, as above shown, your petitioner moved the court to proceed at once, or at any time the court might name, to try the remaining pending indictments, and the court having indicated its purpose to proceed with the trial of the larceny indictments, the Commonwealth\\u2019s attorney arose and over the most urgent protest of your petitioner\\u2019s counsel entered with the leave of the court a nolle prosequi as to indictments Nos. 3, 4, 5, 6, 7 and 9 of the June term, being all of the larceny indictments then pending. Your petitioner then urged the court to proceed with the trial of indictment No. 11, charging your petitioner with being accessory to the making of a false report to the State Corporation Commission as aforesaid, but the Commonwealth\\u2019s attorney said that he was not willing to try the said indictment at that time and that he preferred to first try indictment No. 10 for reasons which he refused to give. The court then asked your petitioner to consent to a continuance of this indictment No. 11 until the November term of the court, but your petitioner, by counsel, refused to give such consent, insisting that your petitioner had been for many months under indictment and that he did not want a con tinuance, but was anxious to have some case tried. The court thereupon said that it would not continue the said indictment No. 10 to the November term, so as to permit your petitioner to make this application for a writ of habeas corpus, unless your petitioner would also move for a con-continuance of said indictment No. 11 to the same time. Thereupon your petitioner\\u2019s counsel reluctantly, and stating that they were doing so under protest, moved also for a continuance of said indictment No. 11 to the November term, and the same was accordingly continued.\\n13. It will be observed from the foregoing that there have been found against your petitioner in all thirty-three indictments, and that although your petitioner has been not only ready and anxious for, but insisting upon, a trial, no one of the said indictments has been tried, but, on the contrary, nine of them have been dismissed by the court for failure to prosecute, and twenty-two have been nolle prosequiecl by the attorney for the Commonwealth when your petitioner became too urgent in his insistence upon a trial, the six indictments last nolle prosequied having been dismissed for no purpose other than to prevent your petitioner from being tried upon the same. A consecutive list of the said indictments, showing the disposition of the same, is herewith filed, marked \\u201cExhibit Y,\\u201d and prayed to be read as a part of this petition.\\n14. Your petitioner would not now be asking to be relieved from trial under said indictment No. 10 but for the fact that he does not believe it is possible to present to the jury in an intelligible manner the issues that might arise under an indictment so broad and sweeping in its charges, and under which evidence would be admissible of any and every transaction your petitioner may have had with said Appomattox Trust Company from its very organization down to the date of said indictment, for in an indictment of this kind neither the amount nor the date alleged is material, and an entirely different amount and date from that alleged might be proved under any count; in fact, so impressed have been your petitioner\\u2019s counsel with the fact that he could not obtain a fair trial under said indictment, upon the motion to quash said indictment they themselves made and filed an affidavit to that effect, a copy of which is herewith filed as a part of this petition, marked \\u201cExhibit Z.\\u201d\\n15. The said several grand juries were investigating your petitioner\\u2019s whole connection with said Appomattox Trust Company, and it is apparent that all of the grand juries were dealing generally with all of his transactions with said bank. In consequence of these general indictments your petitioner has been continuously held for trial since the January term, 1911; and an inspection of the embezzlement indictments of the January term, 1911, which were nolle prosequied at the March term, and of the larceny indictments of the March term, some of which were dismissed for failure to prosecute and others nolle prosequied at the June term, and of the said indictment No. 10 of the June term, will show that at no time since said January term, 1911, has there been a single moment at which your petitioner has not been \\u201cheld for trial\\u201d in said court upon an indictment under which, whatever objection he might have raised, he could have been tried for any offense alleged in said indictment No. 10. Surely, when an indictment is pending upon which at any time the Commonwealth has the right to call the defendant to the bar and try him for a particular offense, it cannot be contended that he is not held for trial for such offense. It was admitted at the bar of the court by the attorney for the Commonwealth that your petitioner could have been tried under the larceny indictments of the March term for any offense allowed in the said indictment No. 10. A certified transcript of the record as it appears on the order book of court, so far as the same affects Charles Hall Davis in connection with the indict ments mentioned in this petition, is herewith filed, marked \\u201cExhibit Record,\\u201d and prayed to be read as a part of this petition.\\nYour petitioner, therefore, respectfully submits that there have been four terms and more of the Hustings Court of the city of Petersburg, during which your petitioner has been held for trial, without a trial, for any and every offense alleged in said indictment; that the failure to try him has in no case been due to any of the acts or causes specified in said section 4047 of the Code of Virginia, or in peri ratione therewith; and that he is now entitled to be forever discharged from prosecution thereunder.\\nTherefore, your petitioner prays that a writ of habeas corpus acl subjiciendum may issue from this honorable court directed to the said Arthur Kyle Davis, your petitioner\\u2019s bail, of the city of Petersburg, Virginia, commanding him to have the body of this petitioner before this honorable court, at a time and place to be therein specified, together with the cause of his detention; and that your petitioner may be restored to his liberty.\\nGeorge S. Bernard, John L. Lee, James Mann and Charles T. Lassiter, for the petitioner.\\nSamuel W. Williams, Attorney-General, and Richard H. Mann, for the respondent.\", \"word_count\": \"5570\", \"char_count\": \"32372\", \"text\": \"By the Court:\\nThis day came again the parties in obedience to the writ of habeas corpus awarded herein, and the court having maturely considered the petition of the plaintiff, the return and answer of the said defendant to said writ, and arguments of counsel, is of opinion that while it may be true as claimed by the petitioner and conceded in argument by the attorney- general and attorney for the Commonwealth for the city of Petersburg that all of the evidence which will be admissible upon a trial of the indictment found at the June term, 1911, of the Hustings Court of the city of Petersburg could have been introduced under some one of the indictments which were dismissed, that it may also be true that there are offenses charged in that indictment not embraced in the indictments which were dismissed, and the court is further of opinion that if there be one or more counts in the indictment of the June term aforesaid which state offenses not embraced in the dismissed indictments, though provable by evidence which would have been, as above indicated, admissible under those indictments which were dismissed, the prisoner cannot be discharged, but must be remanded for trial; and being further of opinion that it will be proper practice for the Hustings Court of the city of Petersburg, when the prisoner is set to the bar for trial, to require the attorney for the Commonwealth, before going into trial, to state upon what counts he relies as setting forth offenses not embraced in the indictments which have been heretofore dismissed, to the end that the court, with the aid of counsel, may determine upon which counts the accused may now properly be tried, and thus eliminate much that would tend to confuse the material issues and greatly protract the trial, it is, therefore, considered that the petitioner is not illegally detained in custody and his petition to be discharged is denied, and the prisoner is remanded to the custody of his surety on his bail bond to be tried on the charges pending against him in the Hustings Court of the city of Petersburg.\\nPetition denied.\"}"
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+"{\"id\": \"99486\", \"name\": \"Harry Stephen Caprio v. Commonwealth of Virginia\", \"name_abbreviation\": \"Caprio v. Commonwealth\", \"decision_date\": \"1997-10-31\", \"docket_number\": \"Record No. 962090\", \"first_page\": \"507\", \"last_page\": \"513\", \"citations\": \"254 Va. 507\", \"volume\": \"254\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T17:42:08.932749+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harry Stephen Caprio v. Commonwealth of Virginia\", \"head_matter\": \"Harry Stephen Caprio v. Commonwealth of Virginia\\nRecord No. 962090\\nOctober 31, 1997\\nPresent: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and Kinser, JJ., and Poff, Senior Justice\\nJ. Wayne Sprinkle (Robert S. Ricks, on brief), for appellant.\\nDaniel J. Munroe, Assistant Attorney General (Richard Cullen, Attorney General; Marla Graff Decker, Assistant Attorney General, on brief), for appellee.\", \"word_count\": \"1779\", \"char_count\": \"10914\", \"text\": \"SENIOR JUSTICE POFF\\ndelivered the opinion of the Court.\\nThe dispositive issue framed in this appeal is whether the Court of Appeals of Virginia erred in upholding the trial court's ruling denying the appellant's motion for a continuance and allowing the Commonwealth to introduce the testimony of an expert concerning his extrapolation of blood profile frequency based upon his analysis of a series of DNA profiles and reports.\\nOn March 5, 1992, Harry Stephen Caprio was indicted for the murder and robbery of Elizabeth Marie Bickley committed August 5, 1991. In the first of two trials conducted by the Circuit Court of the City of Portsmouth, the judge struck the robbery charge and, when the jury reported that it was unable to reach a verdict on the murder charge, he declared a mistrial.\\nFollowing three and one-half days in the conduct of the second trial in October 1995, the foreman of the jury announced that the jury was \\\"deadlocked\\\". Upon further deliberation required by an Allen instruction, the jury returned a verdict convicting Caprio of second degree murder and fixing his penalty at 15 years in the penitentiary. By final judgment order dated January 10, 1996, and entered February 1, 1996, the court confirmed the verdict and imposed the penalty. The Court of Appeals upheld the several rulings of the trial court challenged by the appellant, and we awarded Caprio this appeal.\\nNeither Caprio's testimony at trial nor the investigating officer's handwritten transcript of Caprio's statements contained an inculpatory admission, and the record shows that the evidence underlying this conviction was wholly circumstantial. Consequently, we will summarize only those facts in evidence relevant to the issue we consider dispositive.\\nMs. Bickley's corpse was discovered about 11:00 p.m. on August 5, 1991, lying in the middle of a street intersection. After Caprio was identified as a suspect, but before he was arrested, he volunteered to submit blood samples for DNA analysis. Jeffrey D. Ban, Section Chief of the Serology DNA Unit at the Virginia Division of Forensic Science, supervised a series of DNA analyses of these samples, samples of the victim's blood, and samples of genetic materials found on a pair of shorts Caprio had worn on the day of the crime.\\nIn a \\\"certificate of analysis\\\" dated May 17, 1995, Ban stated that \\\"[t]he DNA profile obtained from Harry Caprio's shorts . is consistent with the DNA profile of Elizabeth M. Bickley . . . and different from that of Harry Caprio . . . .\\\" Based upon the five tests comprising that analysis, Ban concluded that \\\"[t]he probability of randomly selecting an unrelated individual with a matching DNA profile . is approximately . 1 in 210 in the Caucasian population 99 ,\\nThis certificate reaffirmed Ban's conclusion, based upon a single test that was reported in his certificate issued September 16, 1993, that \\\"the genetic material deposited on Harry Caprio's shorts cannot be eliminated as originating from Elizabeth Bickley.\\\" Both certificates and a report of enzyme testing by a forensic serologist were timely delivered to defense counsel.\\nOn the day before Ban testified at the second trial, he reviewed the results of the seven DNA tests underlying the two certificates and the serologist's report and advised the Commonwealth that he would use a chart during his testimony to illustrate the results of that review. The Commonwealth notified defense counsel and, invoking Code \\u00a7 19.2-270.5, counsel objected to introduction of that evidence and, in the alternative, moved for a continuance. The trial court overruled the objection and denied the motion, and Ban testified as follows:\\nTaking each of these into account, each of the seven, you have approximately one in a hundred twenty thousand individuals would have a profile that would be consistent with each of these seven different areas that I have tested for in the Caucasian.\\n[W]e would have to test . a hundred twenty thousand people before we'd find this profile again . . . [and] we might find that profile again, or we might not.\\nBasically, we've looked at seven different areas, several different tests that we have done; and in each of the tests we've demonstrated that the profile that we found in Harry Caprio's shorts is consistent with that of Elizabeth Bickley and different than that of Harry Caprio.\\nCode \\u00a7 19.2-270.5, the statute cited by defense counsel, provided at the time of trial in relevant part:\\nIn any criminal proceeding, DNA (deoxyribonucleic acid) testing shall be deemed to be a reliable scientific technique and the evidence of a DNA profile comparison may be admitted to prove or disprove the identity of any person. . . .\\nAt least twenty-one days prior to commencement of the proceeding in which the results of a DNA analysis will be offered as evidence, the party intending to offer the evidence shall notify the opposing party, in writing, of the intent to offer the analysis and shall provide or make available copies of the profiles and the report or statement to be introduced. In the event that such notice is not given, and the person proffers such evidence, then the court may in its discretion either allow the opposing party a continuance or, under appropriate circumstances, bar the person from presenting such evidence.\\n(Emphasis added.)\\nThe Commonwealth argues that \\\"the statute does not apply\\\" because \\\"the blood profile frequency calculation is not a profile, report, or statement\\\". We disagree.\\n\\\"When a statute is plain and unambiguous, a court may look only to the words of the statute to determine its meaning.\\\" Harrison & Bates, Inc. v. Featherstone Assoc., 253 Va. 364, 368, 484 S.E.2d 883, 885 (1997) (citing Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)); accord Doss v. Jamco, Inc., 254 Va. 362, 370, 492 S.E.2d 441, 446 (1997) (this day decided). We have repeatedly articulated the principles of statutory construction:\\n\\\"While in the construction of statutes the constant endeavor of the courts is to ascertain and give effect to the intention of the legislature, that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity. Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed.\\\"\\nBarr v. Town & Country Properties, 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)). See also, Abbott v. Willey, 253 Va. 88, 91, 479 S.E.2d 528, 530 (1997); Weinberg v. Given, 252 Va. 221, 225-26, 476 S.E.2d 502, 504 (1996); Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992); Grillo v. Montebello Condominium Owners Assoc., 243 Va. 475, 477, 416 S.E.2d 444, 445 (1992).\\nThe twenty-one day notice requirement of the statute at bar applies to \\\"the results of a DNA analysis\\\" to be \\\"offered as evidence\\\". Copies of \\\"the profiles and the report or statement to be introduced\\\" must be made available to the defense. Ban's 1 in 120,000 extrapolation, a statistical probability of a DNA match, was clearly a \\\"report\\\" or \\\"statement\\\" of \\\"the results of a DNA analysis\\\" conducted in the course of the seven different tests Ban reviewed. Adhering to the plain meaning rule, we hold that Ban's blood frequency extrapolation was a matter within the contemplation of the statute.\\nEven so, the Court of Appeals ruled that \\\"[t]he trial court did not abuse its discretion by denying appellant's request for a continuance and appellant's alternative request to bar the evidence\\\", and the Commonwealth contends that the statute should be construed to vest a trial court with such discretion. True, the statute provides that, in the event timely notice is not given, \\\"then the court may in its discretion either allow . a continuance or . . . bar . . . such evidence.\\\"\\nThat language expressly limits the court's discretion by the disjunctive \\\"or\\\" to a choice of \\\"either\\\" of two defined options. Stated differently, if, as here, a trial court determines that the evidence is admissible, the statute requires the court to grant a motion to interrupt and postpone the progress of the trial to afford the defense a period of time for consultation with other experts and preparation of an appropriate response to the new evidence. Article 1, \\u00a7 8, of the Constitution of Virginia guarantees an accused the right \\\"to call for evidence in his favor\\\", and \\\"although granting or denying a continuance is within the discretion of the trial court, it must exercise its discretion 'with due regard to the provisions of the Bill of Rights, which secure to one accused of crime a fair and impartial trial .'\\\" Gilchrist v. Commonwealth, 227 Va. 540, 546, 317 S.E.2d 784, 787 (1984) (citations omitted). Here, the trial court chose to reject both options.\\nBecause the trial court erred in not applying the plain meaning of the statute, and because we cannot say that the dramatic statistical difference between the blood profile frequency reported in the certificate of analysis timely delivered to the defense and that which was not timely disclosed by the Commonwealth was harmless, we will reverse the judgment of the Court of Appeals upholding the trial court's ruling. For the reasons stated by the Court of Appeals, we affirm its judgment upholding the other three rulings of the trial court at issue in this appeal, and we need not address Caprio's assignments of error related to those rulings.\\nWe will annul the conviction and remand the case to the Court of Appeals with direction to remand the case to the trial court for further proceedings consistent with this opinion.\\nAffirmed in part, reversed in part, and remanded.\"}"
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