delivered the opinion of the Court:
The finding of the .court was not sustained by the written statement of facts. This action is penal. The finding is for double the value of the property. In such cases, the proofs, to sustain the action, must be clear and satisfactory. It is not necessary to the decision of this case to hold that a married woman, living with her husband, can not, under any circumstances, be regarded as the head of the family. The only facts relied upon to sustain the proposition that the appellee in this case was, at the time in question, the head of a family, are, that the residence of the family was “on her own premises;” that “the property on the premises was her own sole and separate property,” and that “ she had children by her former husband residing with her.” These facts, alone, are surely not sufficient to show clearly that she was, at the time, “ the head of the family,” especially when it is said, in the same statement, that she was, at the time, residing “ with her husband.” Ordinarily, at least, where the wife lives with the husband, he must be regarded as the head of the family. If, in fact, he has not control of the family, and is not the head thereof, such fact must be shown by proof. The inference that he is the head must be rebutted by proof, and, in a penal action, that proof must clearly rebut such inference.
It may well be that this man and his wife were living upon her land, and that the personal property on the place was her property, and that her children constituted a part of the family, and yet the husband may have had the most complete control of the family and of all the business transacted upon the land. For aught that is here shown, he may have been a man of wealth, and may have been supporting his wife and her children in affluence.
Again, it is not shown by the statement that the constable had notice that any anomalous relations existed in this family, constituting the wife the head of the family. Presumptions must not be too freely indulged in penal actions.
The judgment of the circuit court is reversed, and the cause remanded for another trial.
Judgment reversed.
Soott, Cbaig and Walkeb, JJ:Under the present statute and the facts in this record, we must hold that the judgment of the court below should be affirmed.