Board of Commissioners of Excise v. Keller

Campbell, Justice. The husband, the defendant having been sued by the commissioners of excise, the question presented is, is he liable for the penalty ? Prior to the passage of the act of March, 1860, concerning the liabilities of bus-, band and wife, there could be no doubt that the husband would have been liable for the penalty. The case of Hasbrouck agt. Weaver, (10 John., 247,) is exactly in point. There the wife sold the whiskey in the absence of the husband. But the court said, approving a rule laid down in Hawkins: “ The husband is answerable for a forfeiture under a penal statute incurred by the wife.” Has the act of 1860, relieved the husband from this liability ? I think not. The wife may now carry on business in her own name and for her own benefit. But it must be a lawful business. When she undertakes to carry on an unlawful business, when she commits an offence against the laws of society, when she violates a statute penal in its character, and especially when she does that in her husband’s house and with his knowedge, he still remains liable to answer for her misdemeanor. The law, tender towards the wife, will presume, when the offence is commited in his presence and with his knowedge, that it was done by his coercion and will hold him answerable. There is nothing to rebut the presumption in this case. (See Barbour’s Criminal Law, 2d ed., p. 247, et. seq., and cases cited.) It is unnecessary to determine in this case whether the wife who should engage in this illegal traffic away from her husband’s house might not herself be indicted or prosecuted for the penalty. It is sufficient to decide that this device, if device it was intended for, to evade the enforcement of a most salutary statute cannot be allowed to succeed. There must be judgment for the plaintiff for fifty dollars and costs.