Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1885-04-22
DbsAins ge9iste1
DICrUM OR DECISION
To ire Eiiior Of Ire Rroiste-.

-NN' V tN Nsf3W
That which is called, in the technology
Of the legal science, an obiter dictum is
generally easy of recognition and readily
diStinguishable from a formal point decided.
let there are cases where it is dificult to
determine whether the thing in question be
the one or the other. For example: In the
case OF Core vs.. Fsupel, - W. Va 235,
tan electment case), Judge Snyder, who
gave the decision tor the court, says
(p. 24S) The delivery is the date at which
1t the deed became operative and not the
date Of its recOrdation. He then pro.
ceeds to declare an instruction moved by
the plaintiff in the court below, which fixed
the recordation date as the true one, to be
erroneous.
That a decision on the question as to the
date Of q deed becoming operative and as
10 the eTroueOusneSS OF the instruction
asked was not called 70" in the case, be-
comes apparent when we state that the de.
PENDANT had the verdict and Judgment be.
low, and that 1t was the plaintiff who took
the case up on error. The erroneous in
strucuon forming part of q more eXten.
Sive one, which was in part allowel), was
moreover, refused by the court below, on
the motion OF the defendant. So that, the
correctness or erroneousnesS o! the instruc.
ton could not be and was not questioned oy
either Of the parties-not by the plaintiff,
because he had offered it; nor By the de,
srudant, because it was refused on his mo
Uou-and was therefore not a question
before the Supreme Court. Counsel would
not even be called on to argue the ques
ton.
In this view Of the matter, what was said
by Judge Snyder seems clearly to have been
mere dictum, and that such was the
view the Judge himself took appears fcom
the fact that in the syllabus OF the case no
reference whatever is made to the subject Of
the statement referred to.
And vet, at the risk of being accused Of
trying 10 make the Supreme Court out as
deciding something when it didn't know it
! take the liberty of doubling that what
Judge Snyder pronounced was dictum, and
OF expressing the opinion that it was genu,
inc decision, OF binding authority. | offer
q few reasons.
The ground Of error on which the case
was taken up land reversed) was an erro,
ueous instruction given TOR the defendant
appellee. OF course, then, the correctness
OF that instruction was a question fairly be
fore the court. Ofcourse, also. in passing
upon it, the Court would righttully not only
point out its errors If any, bat moreover
might aud ought to say in a case Of re
versal. as this wasl what would be right in
struc,ions in such a case. Aud this is the
very thing the Court did do; for, on toe
next age GAO following the one
on which Judge Snyders language
quoted is found, the same Judge
proceeds to give the proper instruction as
applied to the evidence in this action a
part Of which instruction is in these words:
And they the jury are, also, instructed
that the title OF the defendants derived from
d. was not adverse to that Of the plaintiff
until the deed from D. to S, offered in evi,
deuce, was delivered BY d. to said s., and
from that time it was adverse
That this is true, binding decision there
cannot be a doubt. And yet what is it, in
substance, but u repetition Of what in the
same case we have been suspecting of being
mere dictum2 A syllabus or abstract Of the
point decided in each would be the slne
excepting that the former states expressly
the converse proposition which is necessarily
implied in the latter.
In State vs.. Robinson, 20 ". Va, at pago
IA, the Supreme Court also decided IN in
,IruCrion, which was not aud could n~o,,nAve
been excepted to. to ~ erroneous Was
such decision dictum o. lav2 We think It
was law |; was certainly binding on the
lower court upon a ra+trial - it would be
binding upon that lower court and every
other one, in every Ike case; and thai
which is a binding rule %! decision upon tn.
courts is none else than law.
The usual test applied &, Distinguish die
tum from decision is, was i, necessary to
the decision OF the cas-? Tue true test. !
submit; is was i, proper in ;ae decision 0.
the case