Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1869-07-30

femption does not cover ali. hut only 50
much of the debtors property, AMI does
not exempt his future acquisitions 1t
does not clog the execution sale with unu-
sual terms, which was the ground
upon which McCracken and Haywood WAS
decided, but leaves 1t unembarraSsed.-
And if 1t should happen, as in our
case, that all the debtors property falls
under tho execution, it was not within the
purview of tho Constitution that it should,
but is only the "accidem of the debtor 8
property, and does not affect tho law. In
the case of McCraken rs. Haywood, the
Court ordered the property to be sold for
what it would bring as the onty remedy
left to the creditor. Our attention was
called also to an elaborate opinion OF
Judge Carpenter, of the Circuit Court of
South Carolina, Purcell as. Whaley, report
| ed III the newspapers, declaring the eX-
emption laws of South Carolina, which arc
substantially the same us ours, unconstitu
tional and void. The authorities relied on
by the learned Judge were among others
of less Importance, the aforesaid Bronson
Us. KinZie and McCraken rs. Haywood,
and we have seen thoy DO not sustain
| him.
Another case cited by him and directly
in point for him, is Dank as. Guackcnbush,
3 DEMO 591 decided first by the Supreme
Court nnd then by tn Q Court of Appeals of
Now York. But tho attention of the learn
ed Judge was not called to the fact, that
in that case, the Judges in the Court of
| Appeals were equally divided, and there
fore the decision in the Court below stood
nor to the important fact, that in q subse-
quent case in 1861, in the same Court,
Morse Us. Gould, ! Herman 2S1, tho case
Of Danl1 rs. Gauckenbuah Was received and
| IOUarrnIpI OtIn bn hof0ra Il
Carpenter did not involve the point whoth-
er tho Exemption laws impaired the obli-
cation of contracts, and therefore his Opin-
ion upon That question is only a dtctum.-
He states the principles involved in the
cases Us follows: "Tho Judgment was by
law q vested right, liCn Il contract. Had
the State the constitutional power to divcst
the plaintiff Of his rights, and vest them in
the defendant. Upon the principles in
volvcd in tho case, there is no diff
ference between liens by mortgage and by
Judgment, the former are specific. tho lat
ter general; but both are vested, legal
rights, NC.
1t will be seen, therefore, that the qucs-
tion involved was not that OF impairing the
obligation Of contracts, under the Consti-
tuition of the United States but Of dos
troying liens and invading vested rights
under the Constitution OF South Carolina.
There is nothing therefore III that decision
against any position, but tho dictan1 of the
learned judges for it is not pretended
that in our case there was any lion or vest
| cd right, we arc not therefore Interested to
inquire whether the learned Judges dccis-
ion, that ''licns and "vested rights -
cannot be abolished by State Convention
in framing their organic law.
Onr attention was called also to a docis-
ion OF Judge Orr, of the Circuit Conrt of
South Carolina reported in the newspa
pors, sustaining the South Carolina Ex-
| cmption Laws.
We arc not aware Of single decision
except as before stated, either in the Courts
of our sister States, or Of the United States
in which general exemption laws have
been held to be an infringement of tho
Constitution of the United States. There
being no decision against them, let us see
if there are any in their favor.
| The Legislature of New York, in 1S42,
passed an act eXemping from execution
| in addition to former exemptions-''neces-
sary household furniture, working tools
and team, not exceeding $3.50 in value. -
The creditor obtained o judgment upon u
debt existing before the act. and levied on
the debtors team, pair Of horses. And
tho question was whether the exemption
was good against pre-exlstlng debtg. The
opinion of the Court was elaborate and
able, that the exemption was good Morse
as. Gould, supra. Tho opinion is the more
important as it ro-revived and ovegruled
former case in tho Same Court, Dank
IS. Guackenbush, cited by Judge Car
penter.
It also re revived the cases of Bronson
os Kinzie and McCrackin vs. Haywood,
and indeed all the cases bearing on the
subject, and distinguished them from that,
as we havo from this. In late case in 8
Wisconsin, $50 Baumback rs. Bado. the
case of Morse Us. Gould, supra, is re-
revived and approved. And in Bronson
us, Kinzie. fancy G. J. says: A State
Legislature may, if it think proper. direct
that the necessary implements Of agricul
ture, or the tools of q mechanic, or articles
of necessity in household furniture, shall,
like wearing apparel, not be liable to exc
cution on judgments, and regulations of
this kind have always been considered in
every civilized community as properly be-
longing to the remedy, to be exercised or
not by every sovereignty, according to its
own views of policy, or humanity. 1t must
reside in every State, toenable it to secure
it's citizens from uni just and harrassing
| litigation, and to protect them in those
pursuits which are necessary to the ex-
istence and well being of every COM
munity."
| And in subsequent case Planters
Bank rs. Sharp, G. Howard 301, Mr.. JUS
tice, Woodberry in ordering the opinion of
I the Supreme Court of the United States
enumerated exemption laws, among the
examples of legislation which might be
Constitutionaly applied to existing con
tracts. And in Biglow Os. Pritchard II,
Pickering, the Supreme Court of Mnssachu-
sets decided that tho Legislature might
lawfully diminish the creditors remedy to
enforce judgment by exempting part of
the property of the debtor from attach,
ment on mesne process, Or levy of execu-
ton, for example, articles of furniture,
beds and bedding, &C., necessary for
debtor and his family. And in Morse us.
Gould, supra, it is said that general ex-
| emption laws are valid "thongh case
might happen possibly whore the exempt
property would constitute all that the
debtor possessed" And in late case,
Stephenson es. Osborne, IL, Miss. 119, re-
ported:in the April number of the American
Law Review p. 476. the Supreme Court
of Mississippi decided that the Mississippi
exemption law "was Constitutional as to
contracts eyistinfr at the time of its DnS-