The western Democrat. [volume] (Charlotte, N.C.) 1852-1870, 1861-11-12

surity himself 3. If a man would borrow money
to pay his taxes, State or Confederate, heavy as
they are, he is unable to do So because the lender
will not trust the slow delays of the stay law for
its return, and the debtor cannot confess
a judgment or make deed ir trust, without sub
jecing himself to be sold out to pay all his liza
ihties of every sort No, he cannot give
such lien on any of his property to pay the tax,
though his work horse or his mich COW may be
sold, and must be sold by the tax gathercr-to pay
it. 4. If debtor before the passage of this law
shall have made deed in trust to secure a debt,
and the property conveyed shall not, in the de-
probation consequent the times, be sufficient to
pay the debt, and there is not property enough
besides the estate conveyed in trust to pay all his
other creditors yet enough to put them pro rata
with the debt already secured, and he desires TO
do so, yet he cannot. For, if he makes trust or
contesses Judgment, all the property conveyed
or bound is devoted by the stay law to pay all his
debts, including, of course the debt secured before
the passage of the act. So that this debt stands
unaiterabty favored and while it takes all convey
ed IN the first trust, shares equally in the second
Considering what law abiding people we have
been, one would have supposed that the stay law
would have been content with the delay consequent
on aboshing the civil jurisdiction of FIVE out Of
SIX courts, reducing the time Of holding the courts
from six weeks to one and giving but one court a
year for the trial and hearing Of all cases at law
and In equity; and then also, forbidding debtor
or pur chaser to give any lien property to raise
a dollar or to secure the purchase money, unless
he would provide also for debts wherein he WAS
only obliged surety Bat not so; the officer of
the law is insidiously approached and the stream
of justice is polluted at both ends. The stay law
found long standing statute, century DID, which
imposed penalty any sheriff who should will
fully fail to execute "process" delivered to him in
Inv wit ha
actment of its extraordinary delay Of four five
or SIX years, repeals the old law, to every fine
incurred since the passage of the stay law of May
and also to every fine thereafter incurred by rca-
son OF emitting to execute process. Now the term,
'process" includes both the beginning writ, which
brings defendant iuto court and commences the
suit, and the concluding writ of execution which
brings the money into court So that the sheriff
is quietly approached and assured that if he ne
elects to execute either or both he will be in no
danger, except what may befa his conscience in
the violation of his official oath 1t is probable,
(and some have charitably supposed so) that the
act was intended to pardon only the penalties
which had been incurred, or might be incurred
by sherifs who may have acted under the suppos-
ed validity Of the stay law Of May, But the
language is too explicit to admit Of such coastrtlc-
ton; and The source Of the charitable iftar3r o.
IS to be found only in the euoIm Us outrage offer
contrary construction which follows clearly from
the words Of the statute The sheriff is now for
he first time in century relieved Of all ieqiStntiUa
penalty if he wilfully ne-i4crs out Of friendship
to a friend enmity to a foe to serve writ to
bring the defendant to court. So that after one
sues, there Is no certainty MS writ will ever be
served; especially if the debtor is the off GERS
kinsman, or friend, or an influential man. No
sutor, therefore, reasonably calculate at what
ttaY tho 10 Sro1t tIu l,4,
in court And even when the judgment, after years
of delay, may at last be rendered, and the final
process Of execution shall come to hand the officer
IS informed that he incurs penalty if he shall
refuse to make the money
Or if he makes it and returns satisfaction, and
withholds the money-or ifhe neglects to make the
money, aud suit is brought against him and his
sureties, the delayed and sickened plaintiff (or
most likely his executor or administrator must |
tread over again the may round of another suit |
conducted under the machinery of the Stay la.c |
And this suit in all probability is destined to end
is career in like manner. During all these many
years, the suitor is taxed to support judiciary
established peaceably to protect and effectually
to defend his civil rights
But if it was not the intent of this law to repud-
ate all past and future contracts by the force OF
legal chase around never-ending circle and there
be left really any law to compel the sheriff to an
upright discharge OF his duties, it most difficult
thing to advise the officer how proceed SO as to
secure himself, and at the same time give the |
Indulgence intended for the debtor. Thus the law
requires the sheriff also the constable, to levy
executions, issuing on judgments rendered before
the passage OF the law, on property sufficient to /
discharge the debt and return the levy to the I
succeeding court, and then that a reRd e1lJOnuS /
shall issue returnable twelve months thereafter !
10 proper understanding of the operation Of
this section, 1t Is necessary to bear in mind the |
nature and effect of fegy. A levy On land is a
very different things from that personal estate.
" hen land is lelveG on, the law does require .
the officer to enter, take possession and turn out
the proprietor, but simply to endorse his levy
surerfouous to require more than this, because !
the land cannot be put out of the way. But very
different is the case Of levy on personally. The
aw requires of the sheriff to seize and take into
MS possession and hold adversely against the pos
session or occupation of the owner and all others
Ill personal estate, which admits of such exclusive
possession Thus the sheriff is required TO take
nto his possession when eived Oh, slaves, horses, F.
;attle hogs sheep, corn wheat tobacco, house hold
'1rniture, and every tangible and moveabe thing
md authorizes the officer take the articles away
or safe keeping till the day of sale. This is allow
ID to be done because the officer is liable for the
aiue of the property levied from she hour of levy;
md if removed Of his reach by his allowing to
lay with the owner he is responsible for its value to
he creditor And if he neggently allows stranger
take it away against the of the owner the
xecutiou is discharged TO the debtor himself the
xtent of its value. Hence when such property is once
evied there is need for any other recuion TO is