James Rather and Wife vs. The State, 1 Port. 132

By Mr. Justice Saffold : This case has been brought up on- points reserved in the Circuit Court. The proceedings are founded on a notice given by the Attorney General to the defendants, to answer a motion made against them, for judgment at the rate of five dollars a day, (during the continuance of the nuisance) for failing to remove a fence which Harriett Rather, the wife of '. James Rather, had Greeted across the public road.

On the day mentioned in the notice, a mo! ion was made by-the At- • torney General for judgment in favor of the state, for the amount forfeited, according to the provisions of the statute, in such case pro /ided, against both the defendants, which motion was ordered to be continued from day to day until disposed of. - Afterwards, during the same term, the motion, being under consideration, exceptions were taker. — first, by motion of counsel, as amicus curiae, and afterwards by plea in-abatement, by the defendants in person, on.the ground that the motion was not made at the time stated in the notice, nor-ia favor of the proper plaintiff — both of whicn were considered by the court, and overruled — the pica having been decided on demurrer.

Issue was then taken between the state and the defendants, which beingiried by the jury, a verdict was rendered on a plea of not guiiiy; finding the defendant, Harriet Ra ther, guilty of erecting a fence across the load, and failing to re-move it, for the term of one hundred and seventy-foiir days, and finding the other defendant, James Rather, not guilty; whereupon, the said James Rather was discharged, and judgment entered against Harriet Rather — that- she should forfeit and nay to the state, fob the use of the county, eitrht hundred and x J .

" ^ * seventy dollars, being at the rate of five dollars per oay, during the continuance of the nuisance. The record further shows, that the defendants made proof that the road in question was a new one, or at least an alteration of an old one, running through tire field and possession of the defendants— that it was first opened on the thirty-first day of March, and the obstruction made afterwards — that the court,' on motion, refused to instruct the jury, that if they believed the road obstructed was a new one, and not opened until after the first ■day of March, they should acquit the defendants.

Error is attributed to the Circuit Court. First. In overruling the motion to quash, and in sustaining the demurrer to the {dea in abatement. Second. In refusing the instructions requested. Third. In rendering judgment against the wife separately. As respects the first assignment, it is to be observed, that the defendants had the full benefit of notice to resist the motion.

That the motion having been in fact made on the day of the term appointed by the notice, and then continued by order of the court from day to day until k was hoard and disposed of, there could be no room for surprise, and no insufficiency of notice. The supposed variance between the no! ice and motion, rospeciing the party in whose name the judgment was sought, is understood to consist in not malting the overseer or Attorney General the plaintiff in the motion, instead of the state. To sustain this exception, reference is made to the case of Bettis vs. Nicholson.

In that case • prosecution was commenced before a justice of the peace, by civil process, for a failure by the defendant to work on a public road. In that case, it is true, this court recognised the right of the overseer to sue in his own name foi;the use of the county.

The statute expressly requires the overseer, for that offence, to prosecute by warrant from a justice of the peace — directs the fine when collected, to be paid over to him, to be appropriated to hiring hands to work on the road, and exempts him from any 'liability for costs, in case the de-" faulter shall be exonerated from the fine ; from which it re-suits that the overseer is the proper party in a suit for that of-fence.

But in the case referred to, there was no decision relative to the proper party, further, than that such suit could not be sustained in the name of the county, it having no capacity to sue ; and that after the warrant had been issued in the name of the county, the proceedings could not be sustained in the name of the overseer ; that it was a change of parties in the progress of the suit. It could not have been contemplated by the statute, that all fines and forfeitures under the road law, should be collected in the name of the overseer of the road, or any in the name of the Solicitor or Attorney General.

Motions, as well as indictments, are authorised against the overseer in like manner with those against other offenders ; and for neglect of his own duty he may be prosecuted in the Circuit Court, on notice and motion by the solicitor. The clerk of the court, and other officers, for neglect 0f their duties, are liable to the same form of proceeding; and in all cases where fines and forfeitures may be recovered, on notice and motion' by the solicitor in the Circuit Court, for the use of the county, it is conceived to be proper to proceed in the name of the state, for the use of such county.

In this prosecution the overseer had no interest or indispen-S^e aSency* The solicitor was authorised to proceed on his information, or on presentment by a grand jury ; or it may have been done on' information otherwise acquired. As in ,the case of most other informations or presentments, this prosecution is believed to have been properly instituted in the name of the state. That the notice did not designate the plaintiff, is not a material defect-the nature of the prosecution sufficiently implied it. Secondly.

In considering the propriety of the instructions to the jury, which the court refused to give, it must be conceded that the statute is explicit, that no new road shall be cut out between the first of March and the tenth of July, in any year, and that no new road shall be opened through an inclosure while there is a crop growing on the same.

But whether the question as to what constitutes a neW road, in contradistinction to variations, in an old road, is proper for the consideration of a jury, or for the court — or to what extent an overseer may alter the course of an old road in repairing it; and whether, if even a new road has been illegally opened at an improper season of the year, it is not afterwards entitled to legal protection, leaving the offender responsible for his tort; are points of some impon anee and difficulty.

In as much, however, as the argument in this case .was ex parte; and the next assignment is decisive of this case, we decline the expression of any opinion upon them. The last assignment presents for our consideration, the question, whether for an offence of this kind, a feme covert is subject to a conviction and judgment for the forfeiture, without being joined with her husband.

To establish error in the judgment, reference is made to Reeves' Domestic tions, where it is said, that “ for offences by the wife against the laws, where the punishment inflicted is nothing more than a fine, the husband is liable with the wife in all cases.” That it is otherwise where imprisonment or corporal punishment is to be inflicted.

He also says, “ if the wife be liable to the penalty of a s tute, the husband must bé a party to the action or information.’’ The principle is said to be general — that for fines and forfeitures incurred by the act of the wife, for which the husband is liable, either separately or conjointly with his wife ; he must be made a party to the judgment, and equally subject to arrest and imprisonment, to enforce the payment.

This doctrine is more particularly applicable to arrests under civil process ; but where the penalty consists of a pecuniary forfeiture merely, the principle is the same regardless of the form of the prosecution. The policy of the rule is to create a sufficient inducement for the husband to exert himself to discharge the debt, and exonerate both.' For the commission of various indictable offences, especially f°r crimes of the higher grade, by a feme covert, she may be punished without her husband, if he were not present or in any manner encouraging or assenting to them.

It is a legal presumption, that whatever the wife does in presence of her husband is done under his coertion — so as to subject him to the punishment — and (in respect to some offences) to exonerate her ; yet the husband may show the contrary — that the act was committed against his will, and thus discharge himself from liability to any infamous or corporal punishment, though the wife be subject to the same. There are crimes malum in se, for the commission of which by the wife, the presence and presumed coertion of the hus* band afford her no impunity — such as treason, mrrder, &c,.

This case must be governed by the law applicable to the j:ade of crimes and misdemeanors; and the nature inferior of the offence, and character of the punishment, more than the form of the prosecution, must determine the relative liability of the parties. In Kew-York it has been held, that the husband was liable in a qui tarn action for a forfeiture under their statute, incurred by the wife, by retailing liquors in his absence.

Besides the policy of the principle already alluded to, the additional reason exists for the liability of the husband, that being entitled to his wife’s portion, and all her earnings, he alone has the means of discharging the forfeiture. ■ As respects the form or character of this prosecution, it is considered sufficient to say, that it is in the nature only of an information to recover a fine or forfeiture for the .violation of a penal statute — that having been commenced, as it should be, against the husband as well as the wife ; she was not subject to a conviction, unless he had'been also convicted.

That on the acquittal of the husband, the wife was also entitled to her discharge — consequently there was error in the judgment, for which it must be reversed. 1 Stew. 349. Aik. D. 361, soc. 10. Aik.D. 362, 363, s.20, 25. Ak D "62 sec. 22. Aik D. 365, sec. 31. Aik. D. 362, sec. 21. 73,Dom. Rel. 69. Dom. Rel. 74- 1 Hawk P. C. 5 & Ba. Ab. tit Baron and Feme. 10 John. 256