53 W. Va. 158 | W. Va. | 1903
This was an action of debt tried before a special judge, on a negotiable note in the circuit court of Mineral county, brought by M. C. Totten against Sandford Whip, resulting in a verdict and judgment for the defendant, from which he has sued out a writ of error.
The defendant pleaded nil debet and filed a plea No. 3 saying that “he did not make or sign the notes sued on,” which were verified by affidavit. The defendant also filed two special pleas, Nos. 2 and 4, to the effect that, a person unknown to Whip, pretending to be a dealer in land and a purchaser of farms, came to Whip’s house and falsely represented that he wished to buy Whip’s farm, and with intent to defraud so ingratiated himself into- the confidence of Whip that he agreed to sell his farm, and to close the bargain in two weeks; that said unknown person suggested that in ease (he should not be able to meet Whip within that time, it would be necessary that he should have Whip’s postoffice address, and requested him to make a memorandum of it, and presented to Whip what he supposed to be a common note or memorandum book, and on the faith that what he was about to write was only such post-office address, and without intention to make any such note as that sued upon, he, Whip, did sign a paper of the character represented, a mere memorandum of his postoffice address, and not as a note; and that said unknown person fraudulently covered up the note and concealed its contents so that he, Whip, did not and could not know that he was signing a note, and
Objection is made to plea 3 on the ground that it does not deny the fact that the signature to the note is the signature of Whip. This point is not tenable. The plea says that Whip did not “make or sign” the note. If he did not make or sign, it is not his note; for then he neither made it himself nor authorized another. Section 40, ch. 125, code, only requires that where a pleading alleges that a person “made” á writing, the affidavit shall deny the making. The affidavit is as broad and definite as the statute demands. This plea was not necessary, but is good in itself and operates also as an affidavit to accompany the plea of nil debet, which, at common law, puts the execution of the note in issue, and the effect of that plea remains such yet, with the qualification that said affidavit must be filed with plea.
The vital question in this case is, did Whip make the note? He denied doing so by pleas 1 and 3. On trial the plaintiff offered a witness as an expert, and proposed that he inspect Whip’s signature to the affidavits of the four pleas filed by him, and the signature of Whip to the note in' suit, and say whether the same person made them, and proposed to■ prove by him that in his opinion the same person made all the signatures; but the evidence was rejected. In West Virginia it is settled law x that the genuineness of an instrument cannot be proven or disproven by comparison with other writings; as a general rule comparison of handwritings is not allowed. State v. Koontz, 31 W. Va. 127. I never could see the soundness of this rule; but it was well settled common law in England until statute wiped it away, and generally, but not everywhere, prevailed in the United States. It came to this State from Virginia. We have always regarded this the Virginia rule; but if so, Hanriot v. Sherwood, 82 Va. 1, has overruled it. But concede such to be the law in West Virginia, yet, as the Supreme Court said in Moore v. United States, 91 U. S. 270, “the gen
It is assigned as error that pleas 2 and 4 were admitted. No evidence was given in support of them, and no ground of reversal exists on that score, though the pleas are bad. Amos v. Stockert, 47 W. Va. 109. But as the case goes back to the circuit court it is proper to pass on these pleas. If in fact Whip signed the note, he cannot get rid of it on the plea of fraud, misrepresentation, false pretence in its procurement or want of consideration against the plaintiff, if a lone fide holder for value without notice of such fraud, .etc. For this Bank v. Johns, 22 W. Va. 520, is full authority. The pleas are also defective in not charging such notice to Totten before his purchase. Roberts v. Tavenner, 48 W. Va. 632. Plea 4 is bad for same reason, and also for putting in the duplicate defence that Totten- was not a holder for value. That could be pleaded separately.
Two instructions were given on defendant’s motion of which the plaintiff complains. One is that before a verdict for the plaintiff could be found, it must be proven “that the defendant’s intestate, S. J. Whip, signed the note sued on as his
Counsel for plaintiff asks us to hold that as the special judge took only the oath specified in section 11, chapter 113, Code 1899, and did not take the oath found in sec. 5, art. 4 of the Constitution, the judgment is therefore bad and bases this assignment on State v. Bennett, 47 W. Va. 731, holding that a special judge must take the constitutional oath. I dissented
It is generally held that an oath though required by law, is not indispensable, but is a mere incident and does not confer the office, and is not the office itself, though the person be punishable for acting without taking it. Mechem Pub. Off. secs. 255, 262; Thropp Pub. Off. sec. 629. It is there said that the officer regularly elected, not taking the oath, .ranks above a da facto officer, and is one da jure by defeasable title — a lawful officer until, turned out. Therefore, the Court now disapproves of the expression of opinion in State v. Burnett that the acts of a special judge are coram non judice for want of oath. A judgment would be neither void nor voidable for that cause. State v. Carter, 49 W. Va. 709 is utterly inconsistent-with that feature of the Burnett case in holding that a judgment by one acting by authority or color of office is valid though not lawfully elected or appointed or disqualified to hold the office. In that case sec. 15, chapter 7 of the Code was cited providing that all judgments given and acts done by any person by authority or color of office before his removal therefrom * * * shall be valid though it afterwards be decided or adjudged that he was not lawfully elected or. appointed or was disqualified, or that the same had been forfeited or vacated.” Franklin v. Vandervort, 50 W. Va. 412, is to same effect. So this is no cause for reversal.
For reasons given above the- judgment is reversed, the- verdict set aside, a new trial is granted, special pleas 2 and 4 are stricken from the record,' and the cause remanded for further proceedings.
Reversed.