Beach v. O'Riley et al.

• Decision Date: 09 November 1878
• Citation: 14 W.Va. 55
• Parties: Beach v. O'Riley et al.
• Court: West Virginia Supreme Court

14 W.Va. 55

Beach

v.O'Riley et al.

Supreme Court of Appeals of West Virginia.

Decided November 9, 1878,

1. The question, whether certain words in a paper have been can-celled, is a question of fact, and not of law; and in a jury case-it is to be decided by the jury, and not by the court; and evidence of experts ought to be permitted to go to the jury in such case.

2. If the case, in which such question arises, is one, in which there is no jury, the court should permit the evidence of experts to be heard before deciding such question; but if it is entirely clear on the face of the paper, that certain words have been stricken out and cancelled, then as the evidence of experts could not possibly change the action of tins court, the refusal of the court in such a case to permit such experts to be examined is an error not prejudicial to the party; and the action of the court ought not to be reversed.

3. A distress warrant is a writ within the meaning of the Constitu-tion in requiring all writs to run in the name of the State of West Virginia.

4. A writ, the caption of which is "The State of West Virginia to A. B., constable," &c, or "The State of West Va. to A. B., constable," would be a writ running in the name of the State of West Virginia, as required by the Constitution.

5. But a writ, the caption of which is " State of West Virginia, Kanawha county, ss.: to A. B., constable, &c," and which in the body of the writ does not command " in the name of the State of West Virginia," is not a writ running in the name of the State of West Virginia, as required by the Constitution, such a caption to a writ indicating merely the place, where it is issued, and not the authority, by which it is issued.

Supersedeas to a judgment of the circuit court of Kanawha county, rendered on the 15th day of December, 1875, on a writ of error and supersedeas from ajudgment. of the county court of said county in a case, in which A. H. Beach was plaintiff and P. O'Riley and others were defendants, awarded on petition of said Beach.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the judgment complained of.

Green, President, furnishes the following statement of the case:

This is a supersedeas to a judgment of the circuit court of Kanawha, affirming a judgment of the county court of Kanawha, which quashed a warrant of distress, issued by a justice of said county upon the complaint of Andrew H. Beach against his tenant, Philip O'Riley, for rent, and also the forthcoming bond taken on the levy of this warrant. The bond, which was in the usual form, had been returned by the constable, who made the levy, to the clerk's office of that county, and had been forfeited, and a notice regularly given, that the obligee in the bond, Beach, would move the county court of Kanawha on January 8, 1875, for a judgment and award of execution for $1,505.00, the amount of the forfeited forthcoming bond. The notice having been properly docketed was continued from time to time till May 4, 1875, when the county court took the following action as shown by the entry on their record:

"This day came the parties, by their attorneys and thereupon the defendants craved oyer of the distress warrant and forthcoming bond in this cause; and the same being produced and read, they moved to quash said warrant and bond, and each of them, for errors apparent upon the face of them, which motion being argued and submitted to the conrt is sustained; and said warrant and bond are both quashed; it is therefore considered by the court, that the defendant recover from the plaintiff his costs, about their defense in this behalf expended, including $15.00 as allowed by law."

At the trial of the cause the record shows, that the following bill of exceptions was taken:

"Be it remembered, That upon the trial of this cause before the court, upon the motion to quash the distress warrant and bond taken thereon, plaintiff Beach offered to examine 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 writ, and could be seen and read therein, to which examination of experts for that purpose defendants objected, which objection being argued and considered by the court is sustained; and the court being of opinion upon inspection of said writ, that said words were not therein, plaintiff was not allowed to examine experts for the purpose aforesaid, to which ruling of the court, refusing experts to be examined for the purpose aforesaid, plaintiff excepts, and prays, that this his bill o f exceptions may be sealed, signed and saved to him; and the same is done accordingly."

The following is the warrant of distress referred to in this bill of exceptions:

"State op West Virginia, Kanawha Co., ss:

"To A. Cave, Const., of said County:

"Whereas Andrew H. Beach hath this day made oath before me, J. T. Brodt, a justice of the peace for the county aforesaid, that he verily believes, that Philip O'Riley, his tenant, is justly indebted to him, the said A. II. Beach, in the sum of $750.00, for rent reserved and due upon contract, for a certain messuage and tenement known as the Kanawha House (now the St. Nicholas) situate on Kanawha street, city of Charleston, Kanawha county, W. Va., being for the rent from the 9th day of May, 1874, to the 9th day of November, 1874, and being the same premises now occupied by said O'Riley. These are therefore to-- repuire you forthwith to distrain so much of the goods and chattels of the said Philip O'Riley, in and upon said messuage and tenement, or which have been moved therefrom not more than thirty days, as shall be sufficient to satisfy the rents due and in arrears as aforesaid, and the costs of this distress; and for so doing this shall be your authority. Given under my hand this 19th day of October, 1874.

"J. T. Brodt, J. P.

"Kanawha Co., W. Va."

The above blank, which has been left in the printing of this warrant, was, as shown by the original warrant brought before us by a certiorari, written over in words, which are still legible. These words were: "Command you, in the name of the State of West Virginia." These words were then evidently stricken out, one line in ink being drawn through the words"command you," and two lines in ink through the words "in the name of the State of West Virginia," the words "command you" having also a pencil mark on them, indicating apparently, that they were to be stricken out, and the words "in the name of the State of West Virginia," which form a line in the original writ, have in pencil before and after them a mark as of parenthesis, indicating apparently, that these words were to be stricken out also.

From this judgment of the county court, quashing this warrant and bond based upon it, a writ of error and supersedeas was taken to the circuit court of Kanawha county by Beach; and on December 15, 1875, the judgment of the county court was affirmed; and to this judgment of affirmance a supersedeas has been awarded on the petition of Beach.

W. B. Sicann, for plaintiff in error.

Smith & Knight, for defendants in error.

Green, President, delivered the opinion of the Court:

The first question presented by this record is: Did the 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, who is to decide what the words of the written instrument are? Greenieaf 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. Wins. 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 of waiting." 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 low7er parts of the "3" towards the center; and an issue was directed to determine this controversy.

The principle recognized in these English chancery cases has been acted on in some American common law suits. Thus in Jachson v. Ransom, 18 Johns. 107, in an action of ejectment the matter in dispute was, whether a certain deed conveyed lot one hundred and seventy- four, 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...