Beach v. O'Riley
14 W. Va. 55
W. Va.
1878
Check Treatment
GreeN, PRESIDENT,

delivered the opinion of the Court:

The first question presented by this record is : Did *59tbe court err in refusing to permit, the examination of J. T. Brodt and E. T. Moore, as experts to prove, that the' words “in the name of the State of West Virginia” were in the warrant of distress, and could be seen and read therein ?

Where there is obscurity in the hand writing, and it is doubtful, what the words of a written instrument produced in evidence before the jury are, the question arises, Syllabus 1. who is to decide what the words of the written instru.ment are? Greenleaf in his work on Evidence vol. 1 part II, p. 316 of 12th edition § 280 says, such a question is to be decided by the court alone; and he is sustained in this position by a nisi prius decision of Lord Denman, who refused to have such a question submitted to the jury. See Remon v. Hayward, 2 Ad. & E. 666. But this decision is in principle inconsistent with other English decisions, where the decision of such a question is regarded as a matter of fact and not of law.

Thus in Masters v. Masters, 1. P. Wms. 425, it was decided, that “where the will was writen blindly, and hardly legible, and as to the money legacies written in figures, it should be referred to the Master to examine and see what these legacies were, and he to be assisted by such as were skilled in the art o.f writing.” And a similar decision was rendered in Goblet v. Beechy, 3 Sim. 24.

In Norman v. Morrell, 4 Ves. 769, the question in controversy was, whether a legacy as contained in a will was £800 or £300. The figure was originally “3”; but it was contended, that it had been altered to “8” by drawing the pen over it again and extending the upper and lower parts of the “3” towards the center; and an issue was directed to determine this controversy.

The principle recognized in these English chancery case's has been acted on in some American common 'law suits. Thus in Jackson v. Ransom, 18 Johns. 107, in an action of ejectment the matter in dispute was, whether ascertain deed conveyed jlot one 'hundred and seventy-*60&ur, or lot eighty-four, the figures being badly made. 'The determination of the question was left to the jury.

In Armstrong v. Burrows, 6 Watts 266, in the trial of a common law suit the parties differed about the date of a receipt, which had been rendered illegible, the one contending it was Ldated in 1823, and the other, that the date Avas 1824. The court beloAV assumed the exclusive right ot determining, what the figures were, and refused to put it to the jury; but the Supreme Court reversed this action. Gibson, Chief Justice, in delivering the opinion of the court says: “ A writing is read, before it is expounded; and the ascertainment of the words is finished, before the exposition begins. If the reading of the Judge Avere not a matter of fact, Avitnesses would not be heard in contradiction of it; and though he is supposed to have peculiar skill in the meaning and construction, of language, neither his business nor learning is supposed to give him a superior knoAvledgc of figures or letters. His right to interpret a paper written in Coptic characters Avould be the same, that it is to interpret* an English Avriting; yet the Avords Avould be approached only through a translation. The jury Avere therefore not only legally competent to read the disputed Avord, but bound to ascertain what it was meant to represent.”

In the case of Sheldon’s ex’or, &c. v. Benham, 4 Hill 129, the court seems to have taken the same vieAV. The question, what are really the Avords in a Avritten instrument, when they are doubtful either on account of the obscure manner in which they are written, or because of an uncertainty on the face of the writing, Avhether any of them have been stricken out, or altered, by the maker, is a question of fact; and if such question arises in a cause being tried by a jury, this question of fact should be submitted to the jury, and the evidence of experts on the question, what are the words in the Avriting, ought to be received ; and if the court refused to permit such evidence to go to the jury, this court ought to reverse such action of the court beloAV.

*61In this case however the question, what were the words of the warrant, though a question of fact, was necessarily to be decided by the court, it arising in a case, in which there was no jury- — -still if the warrant on its face rendered it doubtful, whether the words “in the name of the State of West Virginia” were still a part of the warrant, or had been stricken out by the justice, before he Syllabus 2, issued the warrant, the court ought to have permitted experts to have been examined, to give their opinion as to whether these words were in fact erased, or not, On the other hand, if on the face of the warrant it was perfectly plain, that these words had been stricken out, the defendants could not complain, that the court had refused to permit experts to be examined. For in such a (¡ase, though the experts had given ever so decided an opinion, that these words had been in fact not stricken out, the court ought to have disregarded such expression of opinion, and decided on inspection, that these words were stricken out. When the face of the warrant furnishes no ground for raising any question as to what are its words, there would be no use in examining experts, there being in such case really no disputed fact, on which their opinion is needed to enlighten the court.

In the case before us the original warrant has been examined by us; and on its face it is obvious beyond all controversy, that the words “ in the name of the State of West Virginia” are stricken out. Two lines are drawn through all these words in ink. They are not ruled, or perfectly straight, lines, but lines drawn by a pen unguided. The suggestion made, that they might have been on the paper before these -words were written, is therefore groundless; and it is further apparent on inspection, that they have been drawn over these words, after they had been written. It is true, that, these .words can be readily seen, though these lines have been drawn over them • but the fact,'that words are still legible, can in no manner as a legal proposition affect the question of their cancellation, when it is obvious, that lines have been drawn over them for the purpose of cancelling them.

*62The counsel for appellant insists, that as these words so stricken out are included in a parenthesis made in pencil mark,, the experts ought to have been permitted to testify, that words so enclosed in a parenthesis are to be regarded as a part of the text. But these experts were not, as the record shows, offered as witnesses to prove any such thing, but only that “ these words were in the writ, and could be seen and read therein.” This idea seems to have occurred to counsel, since the ease reached this Court. But I can hardly conceive, that these experts could have been produced to prove, that the ordinary mark of a parenthesis could with printers or any one else be considered as meaning, that words stricken out were to be regarded as still in a paper. But if even the usual printer’s mode of so indicating that, by writing in the margin the word “stet,” had been used, it would only mean, that in copying the paper, or setting it in type, it should be altered so as to include the words stricken out. And it could not possibly have been regarded, oven if “ stet” had been on the margin, as making this legally a warrant having these words stricken out in it.

It is not difficult to conceive, why the words stricken out were included in a pencil parenthesis. When the justice, I presume, read over the warrant, he perceived, that as he had written it, it was ungrammatical; and he enclosed in brackets, or marked with a pencil, the portions necessary to be stricken out in order that it might read grammatically; and he then with a pen struck out the parts so marked. He would have made it read grammatically by striking out the words “require you,” or the words he actually did strike out. He chose to strike out what he did; and on the face of the paper there is nothing to indicate, that he wished afterwards to restore these words much less, that he actually did so.

But it is said, that the words in the caption of the warrant “State of West Virginia, Kanawha county, ss.: To A. Cave const., of said county,” is a sufficient compliance *63with the constitutional provision, that writs shall l’un in the name of the State of West Virginia. See Art II §8 Con. of 1872. Had the heading of the warrant been “State of West Virginia to A. Cave, const., of Kanawha county,” would have sufficed, for it would evidently then have been an order by “the State of West Virginia to the constable, which is all, that the Constitution requires to Syllabus 4. appear in a writ. See Trimble, et al v. Patton, trustee, 5 W. Va. 432. Nor would the contraction “State of W. Va,” have vitiated, I think, the warrant, for though in Lemons v. The State, 4 W. Va. 757, it was decided, that an indictment concluding “against the peace and dignity of the State of W. Virginia” was fatally defective, this decision was based by the court on the ground, that a literal compliance with the Constitution in that case was required, as the very language to be used in concluding an indictment is given in quotation marks in the Constitution. The language to be used in issuing writs is not so given, and all that should, I think, be required in this case, is a substantial compliance with the provision requiring it to be in the name of the State of West Virginia. This decision in Lemons v. The State, 4 W. Va. 757, is no longer law, the words of our constitution, on which it is based, having been changed. See The State v. Allen, 8 W. Va. 684.

I have thus far assumed, that a distress warrant is a Syllabus lb writ within the meaning of our constitution, which requires “writs to run in the name of the State of West Virginia,” art. II, §8 Con. 1872. It is true, that in the cause of M. Gutman & Co. v. The Virginia Iron Co., and McClellan & Knox v. Same, 5 W. Va. 23, and King v. Board, 7 W. Va. 703, it was held, that an order of attachment, being an authority and not an original process, was not a writ within the meaning of this provision of the constitution ; and it is also true, that Mayo in his “Guide,” in the forms given by him of warrants or summons in civil actions before justices, does not make them run in the name of the commonwealth, though he does in *64distress warrants and criminal processes (see Mayo’s 'Guide, p. 673, 568 & 78.) The Constitution of Virginia in this respect is similar to that of our State; and the form ófcivil'warrants, it seems to nlo, should also run in the name of the State. It was expressly held, that a summons of unlawful detainer was a writ within the meaning of our Constitution, in Gorman v. Steed, 1 W. Va. 1; and a warrant of distress, being a.11 original process, must be held to be a writ, which must run in the name of the State of West Virginia.

Syllabus 5. Does this distress warrant in the ease before us so run? Was it issued in the name of the State of West Virginia, or simply in the name of the justice who issued it ? Who is it that “required the constable forthwith to distrain the goods and chattels? Is it the State of West Virginia, as the Constitution requires, or is it the justice? It seems to me clear, that it is the justice. The heading “State of West Virginia, Kanawha county, ss.” is the justice’s, noting of the place, where ho issued the warrant, and was used merely to show, that being in his county lie had a right to issue the, warrant. Had the words “Kanawha county ss:” been omitted, as wo have seen, the warrant would have run in the name of the State, for it would then have been addressed by the State to the, constable, commanding him to distrain ; but with the, words “Kanawha county ss.” inserted it cannot be so construed. The heading, as used in this warrant, is the precise heading, which is prescribed in the certificate of the acknowledgment of a deed by a married woman in our Code. See Code of West Virginia ch. 121 §4 p. 570, and is the same as is generally used in all certificates by justices of affidavits, &c. In these cases this heading unquestionably simply indicates, whore the certificate was made ; and I can give no other meaning to the heading of this warrant of distress. It being a writ and not running in the name of the State of West Virginia, as required by our Constitution, it was properly quashed *65by the county coui’t; and the forthcoming bond based upon it was therefore also properly quashed.

For these reasons the circuit court properly affirmed this judgment of the county court. This judgment of affirmance must therefore be affirmed by this Court; and the appellees must recover of the appellant their costs expended in this Court, and $30.00 damages.

Ti-ie Other Judges Concurred.

Judgment Afeirmed.