Allen v. Clark

• Decision Date: 05 November 1903
• Docket Number: 468.
• Parties: ALLEN, U.S. Marshall, v. CLARK.
• Court: U.S. Court of Appeals — Fourth Circuit

126 F. 738

ALLEN, U.S. Marshall, v. CLARK.

No. 468.

United States Court of Appeals, Fourth Circuit.

November 5, 1903

John C Blair, Asst. U.S. Atty., for appellant.

Allen I. Harless, for appellee.

Before GOFF, Circuit Judge, and BRAWLEY and BOYD, District Judges.

GOFF Circuit Judge.

Had the question suggested during the consideration of this case by this court, viz., 'Did the taking of the oath under section 1042 of the Revised Statutes of the United States release the appellee from the payment of the fine, as well as from the imprisonment imposed?' been disposed of by an affirmative answer, the result would have been an affirmance of the decree appealed from, but for reasons other than those assigned by the court below. That question having been answered in the negative, it remains to be determined if there was error in said decree by which the injunction restraining the sale of appellee's land was perpetuated.

The opinion of the court below, hereafter referred to sufficiently states the facts, hence we find it unnecessary to repeat them. We add simply that, after the demurrer was overruled, the defendant below, appellant here, tendered his answer, to which a general replication was filed. The case was then argued and submitted, after which the court below finding that the answer raised only the matters presented by the demurrer, passed the decree complained of.

It is alleged that there is error in said decree, for the following reasons: First. 'Because the United States has the right to subject the real estate of the appellee to the payment of the fine and costs due by him to the said United States, and the homestead laws of the state of Virginia do not apply to a fine imposed for a violation of the criminal laws of the United States. Second. 'Because the District Court of the United States for the Western District of Virginia had altered the form of its process of execution so as to extend to real as well as personal property, and the marshal had the right to levy and sell any property, real or personal, in this case, that was subject to like process from the courts of Virginia. ' Third. 'Because the United States has the right to subject to levy and sale any property made liable for a similar debt by the state of Virginia, and that state has made the homestead liable for a fine due from a citizen to it. ' Fourth. 'Because at common law an execution for a debt due the crown could be levied upon real estate, and the United States has the same right as existed in favor of the crown at common law for the enforcement of its fines.'

We have given the points so ably presented by counsel for appellant, as also the authorities cited by him, that careful consideration and examination that the importance of the issues here presented demand, and we find ourselves impelled to the conclusion reached by the court below.

The Hon. Henry C. McDowell, United States District Judge for the Western District of Virginia, who heard the case below, filed an opinion (114 F. 374), in which the questions herein involved are clearly presented and forcefully discussed, and finding, as we do, no merit in the assignment of errors relating to the homestead law, we adopt his views-- in which we fully concur-- as the judgment of this court, and quote them as follows:

'At a former term J. B. Clark was tried on an indictment charging him with retailing liquor without license (Rev. St. 3242 (U.S. Comp. St. 2901, p. 2094)), found guilty, and sentenced to 30 days' imprisonment and to pay a fine of $100 and costs. He served out his term of imprisonment, and, after having served 30 days on account of the nonpayment of the fine, he made the oath under Rev. St. 1042 (U.S. Comp. St. 1901, p. 724), and was released. Thereafter fieri facias was issued directing the marshal to make the fine of $100 and $96.40 costs out of the goods, chattels, and real estate of the convict. Under this execution the marshal levied on certain real estate belonging to Clark, and advertised it for sale. After the levy, but before sale, Clark filed a homestead deed, whereby he set apart as a homestead the real estate levied on, as well as certain personal property. He then applied for an injunction restraining the marshal from selling the land. On August 25, 1900, a temporary injunction was granted. The petition praying for the injunction alleges that Clark is a householder and head of a family, and that his entire estate is less in value than the amount exempt under the Virginia homestead laws. The case is before the court on a demurrer to the petition.

'The only question presented by counsel is whether or not the homestead exemption can be claimed as against a judgment for a fine in favor of the government. The homestead laws of this state are unlike those generally in force, in that they apply only to contract debts. Article 11 of the state Constitution reads: 'Every householder or head of a family shall be entitled * * * to hold exempt from levy, seizure, garnisheeing, or sale under any execution, order or other process, issued on any demand for any debt heretofore or hereafter contracted, his real and personal property, or either, * * * to the value of not exceeding two thousand dollars, to be selected by him.' Then follow certain exceptions, not now of importance. The statute (section 3630, Code 1887) reads: '* * * On any demand for any debt or liability on contract, * * * ' The right to select property and set it apart as a homestead after judgment, but before a sale, by filing a homestead deed, is not questioned. In Whiteacre v. Rector, 29 Grat. 714, 26 Am.Rep. 420, the Court of Appeals of Virginia decided that the homestead exemption cannot be claimed against a fine due the commonwealth, imposed for a violation of the criminal laws. So far as I am advised, this decision, rendered in 1878, has never been overruled, or even questioned, by the Court of Appeals. I am compelled to treat it as the proper construction of the state law. In Frazier V. Baker (1881) 5 Va.Law J. 565, the Court of Appeals held that the homestead exemption could not be claimed against a judgment for a tort. In Burton V. Mill (1884) 78 Va. 468, the same court made the same ruling as to a judgment for damages for breach of promise to marry, holding such damages to be not a debt contracted, but a quasi tort. It is true that the late Judge Hughes, United States District Judge, Eastern District of Virginia, in Radway's Case (1877) 3 Hughes, 609, Fed. Cas. No. 11,523, held to the contrary. But the rulings of the state Court of Appeals (the court of last resort) are, I conceive, of higher authority on the construction of the state law.

'By Rev. St. 1042, a poor convict who has

...