Clark v. Allen

• Decision Date: 04 April 1902
• Citation: 114 F. 374
• Parties: CLARK v. ALLEN, Marshal.
• Court: U.S. Court of Appeals — Fourth Circuit

114 F. 374

CLARK v. ALLEN, Marshal.

United States District Court, W.D. Virginia.

April 4, 1902

A. I Harless, for complainant.

J. C Blair, Asst. U.S. Dist. Atty.

McDOWELL District Judge.

At a former term J. B. Clark was tried on an indictment charging him with retailing liquor without license (Rev. St. Sec 3242), 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. Sec. 1042, 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 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 II 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 laws. So far as I am advised, this decision, rendered in 1878, has never been overruled, or ever 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. Sec. 1042, a poor convict who has been imprisoned 30 days, solely because of the nonpayment of a fine, or fine and cost, may be released on making oath that he has no property (exceeding $20 in value) except such as is by the state law exempt from being taken on civil precept for debt. This language clearly includes the property exempt from sale for a judgment on a contract debt. The bearing of this section on the question will be considered later. At present the point of most interest is to learn where, if at all, congress has shown an intent to give to the federal government in the enforcement of fines imposed in Virginia the same rights that are exercised by the state of Virginia in enforcing fines imposed by the state courts for violations of the state criminal laws. By section 916, Rev. St., the party recovering a judgment in any common-law cause in any circuit or district court shall be entitled to similar remedies upon the same as are now provided in like causes by the laws of the state. It is settled that the language-- 'the party recovering a judgment'-- includes the government. Green v. U.S., 9 Wall. 655, 19 L.Ed. 806; Fink v. O'Niel, 106 U.S. 272, 1 Sup.Ct. 325, 27 L.Ed. 196. But this section in terms applies only in 'common-law causes.' If no similar statutes had been construed, we might be at liberty to treat the term 'common-law causes' as including all causes, civil and criminal, other than equity or admiralty causes. But section 721, Rev. St., providing that the laws of the several states shall be regarded as the rules of decision in trials at common law in the courts of the United States, has been construed as not applying to criminal trials. U.S. v. Reid, 12 How. 361, 13 L.Ed. 1023. Section 858, Rev.St., which, after providing certain rules as to the competency of witnesses, reads, 'In all other respects...