The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-04-09


and has the absolute power Of disposition
over ii. The ,tranferr0f any portion OF Aer
| property tOtrustaes, for the benefit OF her
husband, upon an agreement Of separation,
Beems to have been considered in these cases
free from objection, and no question was
\ raised as 10 her power to make II. The de-
fence by the Trustees was rested, in the case
of More vs.. Ellis, on the ground that the
settlement was obtained by duress, and In
the other case on the ground that the COM
! plainant had molested his wife contrary to
his covenant, and had thereby forfeited his
annuity. -Theeass of IIntton- VS.. auttony.-S'
Penn. Rep, by Ban. 100, IL not in harmony
with the general current of the Authorities,
and is at variance with the former rulings
of this COurtin this cases already cited.
| In the case now under discussion, the per-
sOnal covenant of the wife made with her
husband and the trustee, that she ,eiI ana
doth thereby forever relinquish all claim to
the property of the husband, is relied on as
opposing bar to the assertion of her claim
| III operative at all, IL must be either as O
covenant with her husband, having tho ef-
feet of legal estoppel, or as a release TO her
| husband of her dover and distribntivc share
of his estate and in either aspect, IL cannot
have the effect contended for, and cannot
operate either as an estOppel or as q release
! We are therefore Of opinion THAT the deed
of separation did not preclude tho appellee
from asserting her claim TO the estate OF her
deceased husband. 2, The second error as
signed is that the allotment of the exempt
property was made under the act OF Noyem-
Der 2S, 1865, whereas there wor debts due by
the decedent, contracted before the passage
| of that act.
The act alluded TO (Pamphl, p. 1879 de.
clares "that the several exemption laws OF
this State, be, and the same are hereby 80
amended, that hereafter the following de-
scribed property, real and personal shall be
exempt from seizure and from sale, under
execution or attachment and then follows
astatement of the property SO exempt. The
| third section OF the act provides, that all
prorerty,real and personal, exempted by
the provisions of this act, upon tho death OF
the husband shall descend to the widow, as
the head of the family, during her widow
hood, for the use and benefit Of herself and
children, &C." The eighth section provides
| that the act shall take effect and be in force
from and after its passage, ,sv
The husband died in january, IS 6, after
this act took effect, and the statute applied
to the case, unless there is something in the
objections made in regard to its Influence
upon the rights of the creditors of the estate,
whose debts accrued before the passage Of
the act. And In this view it is insisted that
the act cannot, consistently with funda-
mental constitutional principles, receive a
construction that would impair the rights of
the creditors as they existed at the date Of
their contracts. ,,ftart
Laws exempting certain descriptions of
Improperly from liability to be taken in execu-
| tion for debt, are founded in wise and
benefcent public policy. The State has an
interest that no portion of its citizens shall
be reduced to a condition of destitution, so
as to be prevented from prosecuting useful
industrial employments for which they are
| fitted; and that families shall not be de-
prived, by extravaganza or misfortune, of
the shelterand comforts necessary to health
and activity. t aaf n
! Nor is such legislation usually regarded
even when retrospective in its character, as
obnoxious to constitutional objections.
There is clear distinction drawn between
rights and remedies, between the legal oblega-
tions of q contract, and the proceeding APP
pointed by law for, its enforcement. What
ever belongs to the obligation of the con-
tract, that is, to its validity, construction,
effect and discharge, is governed by the law
in existence at the time it was made, which
enters into, and forms a. part of it, and fol-
lows it wherever it may be sought to be en-
forced But the remedy is for the most
part, the act of the law making power, pro-
Wiling mode of redress for the wrong oeea-
stoned by the breach of the contract 1t does
not necessarily constitute part of the OBJ
ligationof the contract and except in cases of
peculiar character, it is subject to the right
of modification or repeal, which is the pre-
rogative Of the Legislature, Ralph Cobn,aa
ct. al. We, The Bank of Kentucky, Ms
We have not met with an authority in
which the constitutionality Of exemption
laws bas been directly raised or decided, but
they are put by judges of great distinction,
as instances of laws operating on the remedy
only, which the legislature may pass. Thus,
Chief Justice fancy, in Bronson VS.. Kinzie l,
Howard 3I5, says, Undoubtedly, State
may regulate at pleasure the modes of pro-
eeeding in its courts, in relation to past con-
tracts, as we'll as future. 1t may, for ex-
ample, shorten the period Of time within
which claims shall be barred by the statute
of limitations. 1t may, if it thinks proper,
direct that the necessary implements of
agriculture, or the tools of mechanic or
articles of necessity i'll household furniture,
shall, like wearing apparel, not be liable to
execution on Judgments. Regulations of
this description have always. been considet-
ed. in every civilized community, as properly
belonging to the remedy, to be exercised
or not by every sovereignty, according to its
own views Of policy and humanity. 1t must
reside in every State to enable it to secure
It's cit zane frtr, osla horra ss;,,e. it:
CATION; and to protect them in those pur-
suits which are'necessary to the existence
and well-being of every community" N vi.
Itweti4d be difficult to add anything to
the force Of this reasoning. TWAS not, it is
true, a point involved and decided in the
cause, butit was assumed as an illustration
of the case under discnssion.b The principle
upon which the remarks of the Chief Justice
were founded, has, however, been established
beyond controversy, both in the Supreme
Court of the United States aud in this Court.
Where imprisonment Of The body Of the
debtor was allowed as q part of the remedy
for the enforcement of contracts, it is settled
that legislation which discharges the person
fthe debtor from actual custody in .execu-
tion, and which releases his bail who have
become bound for the surrender of himself
into custody, is valid and effectual, and is
not in violation Of any constitutional priu-
ciple In thecase Of Sturges vs.. CtouinsheiM,
A, Wheaton, 200, Chief Justice Marshall says
1.-THE distinction between the obligation of
contract. aud the remedy given by the Leg !
islature to enforce that obligation, has been
taken at thelbar, and exists in the nature of |
things Without impairing the obligation
Of the contract, the remedy may certainly be |
modified as the wisdom of the nation shall |
direct. Confinement of the debtor may DO a |
punishment for not performing his contract, |
or may be allowed as a. means of in
1ucing him to perform it, But the State
may refuse to inf1ct this punishment, or may
this means, and leave the contract
IN full force imprisonment is no part of
5hb contract, and simply to release the pris-
,ner docs not impair its obligation.' - Il
Afterwards, this question came up directly
or decision, and the Court, in their opinion,
ay, "Can it be doubted but, the Legisla-
ures of the States, so far as relates to their
'wn process, have right to abolish impris-
'nment for debt altogether, and that such
aw mightextend to present as well as to fu-
ure imprisonment -Weare not aware that |
uch power in the States has ever been
uestioned This is a measure |
which must be regulated by the views of pol,
~ and expediency entertained by the State
legislatures, Such laws act merely upon =
he remedy, and that in part only, They d. i
OF take away the entire remedy, but only so !
N as imprisonment forms, a part of such $
smedy" Mason VS.. Halle IL, Wheat. $40. +
he Same question was before this Court in h
he case 81 Brown VS.. DiIiahnnty, 43 a. NJ n
10, in which, in replylto the position that n
10 rights of the plaintiffs became vested un- 7
er the law as it stood at the time of tho ex- q
.nton of kha hail houd and pou II NOT fJ,ara- | Z