39 W. Va. 479 | W. Va. | 1894
Eleven writs of fieri facias were issued from the Circuit Court of Harrison county in favor of the State against Mrs. Thomas Gill upon judgments against her for fines imposed for misdemeanors; and she made a motion to quash the same and levies of them, which being overruled, she has brought the case here.
Her ground for quashing the writs of fieri facias is, that upon their face they require the fines and costs to be levied
It is contended that this provision applies, not to fines imposed for criminal or penal offences, but to debts or some mere money liability; that it is found in a chapter of the Coble, whose very title imports such debt or money liability, not money penalty imposed for crime, the title of the chapter being “ Of the Recovery of Claims Due the State; ” aud that the chapter provides motions and actions as means of recovery of the claims here meant, “ processes ” not meaning the recovery of lines by indictment; and that the words in section 5, “ indebted or liable to the state,” must be given the same meaning as in section 3, which provides, that “ the action or motion atlaw maybe against any person indebted or liable in any way whatever to the state.”
These considerations have force, but they are not conclusive and are outweighed by others. In the first place, section 5, c. 35, is to be liberally construed, because it is purely a remedial enactment giving process of execution to enforce judgments for money in favor of the public, and as its purpose is to realize public dues it should not be given a narrow technical application. Its broad language is, that a writ of fieri facias “ upon a judgment or decree against any person indebted or liable to the state ” shall run against real as well as personal estate. Its use of the words, “person indebted or liable to the state,” would include, not only a simple debt, but also any money liability existing by judgment, no matter on what the judgment is based. When the prosecution for a public, offence has ended in a
The position taken above — that a judgment for a fine is a debt — is not only supported by cases just cited, but our case of State v. Burkeholder, 30 W. Va. 593 (5 S. E. Rep. 439) supports it, as it bolds the state under its claim to á fine to be a creditor, and tbe demand such a debt as will authorize the state to appeal to a court of equity to avoid a deed to the prejudice of the state as to its fine. Award of execution is not an integral part of a judgment, as it need not contain it, and such execution as the law points out may issue upon it; and the well-considered eases, cited above,, of Rex v. Woolf and Kane v. People hold that by common-law on a judgment for a fine a writ of capias ad satisfaci-endum to take the body, or of levari facias to take the goods and the issues of the whole land of the defendant, could be issued just the same as on a-judgment for a debt; and it seems to me that our legislation does not intend to deprive the state of the right given by the common-law to go against the land and so delay its steps in collection of money due the public treasury by compelling it to resort to chancery to enforce its recovery.
A large fine is just as much a debt and just as essential to the treasury’s needs as a debt against a defaulting sheriff'. Why withhold from the state an efficient remedial process in the one case and grant it in the other? Such a judgment for a fine being a fixed debt and liability, it falls under the wide letter of section 5, and, as I have shown, it falls within what must be considered ils spirit and remedial purpose. From the mere circumstance that section 2 of chapter 35 provides, that claims due the state may be recovered by motion or action, and that section 3 says that it may be against “ any person indebted or liable” to the state, we are not bound to conclude, that, as the words
The argument is made by,counsel, that, if we allow executions for fines to operate upon lands, then, as some fines are recoverable before justices, land may be sold under executions issued by justices. This is not so; for section 5 of chapter 36 enacts, that proceedings before justices for fines shall conform to sections 219 to 230 inclusive of chapter
The law allows a state’s execution to be levied on land only in default of the defendant’s having personalty. If he has not personalty, must he be allowed to avoid payment of fine, though he has laud? It may be said every execution for a petty amount might be enforced against land. So might a chancery suit be brought for a petty amount to sell land, since, I suppose, no one would deny, that a judgment for a fine is a lien on laud under section 5, c. 139, and the state has like remedy to enforce it as individuals. State v. Burkeholder, supra; Com. v. Ford, 29 Gratt. 683.
In the opinion in State v. Burkeholder, Judge Johnson pointedly expresses the opinion, that under section 5, c. 35 an execution for a fine runs against land, and under it land can be sold. • This is said to be an obiter dictum. It was germane to the discussiou of the subject before the court, if not in point, and, I think, expresses the correct construction of the statute. So we conclude that a state’s fieri fa-cias for a fiue ought to run against goods and chattels and land, and therefore the fact, that those involved in this case did so, is no ground for quashing them.
Another ground relied upon for quashing the levies made under these executions is, that they arc upon real estate, which is the separate property of a married woman : and it is contended, that an execution can not he levied on the separate estate of a married woman.
A judgment at law against a married woman upon a contract made during coverture is void. White v. Manufacturing Co., 29 W. Va. 385 (1 S. E. Rep. 572). Butthesejudg-monts are for fines for public offences, not on contract. We are not considering the questiou of the married woman’s liability for the offences, as that was a matter to be raised before the judgment, but only whether her property
This opinion is based on the theory, that at common-law by marriage the husband became in short entitled to all his wife’s personalty and her earnings and the rents and profits of her realty during coverture, and was clothed with power to restrain and direct her conduct even by personal chastisement, and therefore it was reasonable he should be responsible for her wrongful conduct; but as since .'the' statutes touching her separate estate and earnings, he gets nothing of her estate by marriage and his right of chastisement is gone in these more civilized and polite times and he is not entitled to her earnings, the whole reason for the rule ceases, and so too ought the rule itself to cease under the maxim of law Ces-sante ralione cessat et ipsa lex” (the reason ceasing the
As the husband is liable for the wife’s torts committed before and during coverture, it might be inferred that she is not liable ; but that is not so. If her tort is committed in his presence and by his coercion, he alone, not she, is liable ; and where he is present, such coercion is presumed, until it appear that he objected, or she acted from her own impulse as the more active party, and then both are liable.
In Merrill v. City of St. Louis, 83 Mo. 244, it was held that “a general judgment against a husband and wife for a tort of the latter not committed in the husband’s pres
In Smith v. Taylor, 11 Ga. 22, the judge said, in a tort suit: “If there is a recovery, the judgment passes against both. If the wife has a separate estate, it may be taken 'in execution; and she may be, together with her husband, arrested on final process.” See 1 Bish. Mar. Wom. § 908; Musgrave v. Musgrave, 54 Ill. 186; opinion in Richmond v. Tibbles, 26 Ia. 475,
Freem. Ex’ns, 128, says: “Judgments against them (married women) are generally binding to all intents and purposes, and arc capable of being enforced in the same manner as judgments similar in other respects. ■ Hence, when a personal judgment for money is entered against a married woman, eitlu-r alone or in conjunction with other defendants, it is commonly conceded that execution may be issued, under which the sheriff may seize and sell her sepa rate'property.”
What reason can be given to show the non-liability of her separate estate for torts? Is it that it required a statute to enable her by implication to make a contract to bind her estate, and that it is bound only so far as statute allows, and there is none declaring it bound for torts? There was necessity for legislation to enable her to hold separate estate, an.I to contract, as her contracts are void at common-law; but when was the time that the common-law did not assert her liability to tort? It required no legislation to enable her to become liable for her tort, and being liable, and having property, it logically follows that it must answer that liability. There is no prohibition in any statute. (See note at the eud of this opinion.)
“It would be a contradiction in terms to say that all persons may be bound by judgments, and then to declare that some persons are exempt from having executions issued against them. The decisions in regard to the persons who may be parties to judgments are not perfectly harmonious ; but wherever, under the law as understood in any particular* state, a persou, or class of persons, may be made parties litigant,.and bound by judgments against them, it must follow, in the absence of statutes to the contrary, that the same persons may by executions be made to satisfy such judgments. In other words, when a judgment is valid against a defendant, an execution upon it, unless expressly forbidden by statute, must be equally valid. Execution may, therefore, issue against a lunatic and also against a married woman.”
Mr. Bishop, in 1 Cr. Proc. § 1304, says : “A fine is treated as a judgment-debt, and binds a married woman.”
In this state we assess separate fines against husband and wife for one act of selling liquor or assault and battery under a joint indictment. Com. v. Hamor, 8 Gratt. 698; Com v. Ray, 1 Va. Cas. 262. Who pays the wife’s fine? I find it stated in 1 Hawk. P. C. c. 1, § 13, and Tyler, Inf. & Cov. 359, that the husband is liable for a forfeiture under a penal statute for the offence of the wife. And iu Hasbrouck v. Weaver, 10 Johns. 247, in a quitam action a husband was
I conclude that these executions were leviable out of the separate personal or-real estate of the defendants. Therefore we affirm the judgment.
Note by Brannon, President. — Since the above opinion was filed, I have met with some law confirming the opinion expressed therein that the separate estate of a married woman is liable for her torts, which I think proper to add by note, i Bislv Mar. Worn, g 842, sajs: “Unless a wife is acting under what the law deems coercion from her husband, she can bind heiself by her civil torls the same as though she were discovert. On-the other hand, she has no such general power in respect to contracts* though that branch of the law which is administered in equity tribunals gives her a good deal of liberty in this respect. But it should be observed this liberty pertains merely to the thing contracled about, aud does not extend to her person. Thus, if a wife commits a civil tort, though when sued during coverture her husband must be joined, yet on his death the judgment abides as a debt running alike against her and her property. But if a wife enters into a contract, she can not be sued at law.” “Since she can commit crime, she would seem a fortiori to be responsible for her civil torts, there being a difference between her torts and her contracts.” Id. g 43 In volume 2, g 1G5, Bishop says: “She can commit a tort subjecting her personally to a suit jointly with her husband, and the reversionary property to be taken on the execution,” etc In 14 Am. & Eng. Ene. Law GGI, the point 1 stated above — that, being unlike as to contracts capable of incurring liability for torts, therefore her estate is liable — is confirmed by the statement that, if it be for a cause of action for which she may be liable,. the judgment is valid, as if unmarried, and, on page G47. that the judgment for her tort may be “satisfied out of all her property.”