Shenandoah herald. [volume] (Woodstock, Va.) 1865-1974, 1874-06-11

such waiver.
If this provision Of the act is con
stitutional the waiver can be enforced
Every statute Is presumed to be con
stitutional. 1t cannot be declared by
courts to be otherwise, unless it is made
clearly so to appear. If the case is
doubtful the expressed will of the
Legislature should be sustained.
Keeping these familiar principles in
mind, we proceed to consider the con-
stitutionaity of the act in Question.
The Constitution grants the exemp-
ton as privilege to the househ colder
1t declares that he shall Be entitled to
hold property to be selected by him.
No specific property is set apart, but he
can select such as he desires to have,
and wheu selected it is to be set apart.
If he fails to select, the process of the
law can be executed, and the sale made.
The right of selection must be exercis-
ed before the sale If the householder
fails i'll this, his right of exemption in
the property sold is gone.
The privilege, SO far as. It is given
by the Constitution, is personal to the
householder. The language is, ''to be
selected By hip9.:' If. he neglects to act
no one is authorized by the Constitution
to act in his place.
The case is entirely different from
what it would have been if it had
been de clar d that ce tam
specific property should not be sold
under execution, sc. In that case the
Constitution or u law containing similar
provisions would execute itself, and as
it would be a part of the public policy
OF the. Government to exempt that
particular property absolutely from
forced sale, its provisions could not be
waived. 1t would be beyond the legal
power of an officer to levy upon and
sell such property.
Here, however, the policy is not to
exempt absolutely, but the householder
has right to claim an exemption
Whet her he will make his claim or not
is optional with him. If he does not
claim, he cannot have; and it is difficult
TO see why, if he may waive at the
time Of the sale by refusing to select,
he may not before If he can waive at
all, it seems to us it follows necessarily
| that for good consideration he may
make contract to waive such as the
! courts will enforce.
But it is further provided that moth
ing in the article Of the Constitution
| referred to should be constructed t.
interfere with the sale of the property
or any portion of it by virtue Of any
mortgage, deed Of trust, pledge, or
other security thereon. Thus it is
made expressly to appear that it was
not the intention Of the trainers of tbs
Constitution to prevent the house
holder from contracting for he sale OF
or incumberance of the property. lie
was not required to hold it absolutely
for himself and family. It was to
remain entirely under his personal
| control, TO be dealt with in such
manner as, he saw fit Ills right to
sell and cucumber is as distinctly
given as his right to select IT he sells
or encumbeFs before he selects, his
/ power of selection, as against such sale
or circumference, gone No particular
form Of circumference is specifed--that
is left to the discretion of the Lepis-
lature. Now, waiver Of the right to
select is, i'll effect, an circumference on
the property which might be selected
Trne, i'll the absence of a statutory
provision to that effrct, one cannot or,
dinarily mortgage or otherwise encum.
Der his futureoto>be~acquired property
but it is no doubt within the power OF
the Legislature to authorize him to do
so. If it does, his encumbrance upon
such property is binding, the same as
upon any other.
The Legislature of Virginia has in
this case attempted IN effect to author~
ize a householder to cucumber in a
particular manner his pre- emption in
terest in his property, as well that
which he has;c II red that h;ch he M Y
acquire. 1t seems to rs that in so doing
it has not in any manner impaired the
benefits which it was the object of the
Constitution to confer The object
was 70 give the householder full power
and control over his property; to
permit him to use it in such manner as
in his Judgment would best promote
the interest Of himself and his family,
and if he had not by some voluntary act
of his own deprived himself OF the
right, to. allow him to select and hold
a certain specified caaon7at, not 0escrip
ton, Of property free from the process
of the law to enforce the payment of
his debts. The amount thus exempted
was large in many INSTANCES no doubt
more than the value OF all the property
the debtor owned. Unless he could in
some form make this property available
for the purposes of security Re ard his
fimlly might not pnfrequently be
reduced to want. A mortgage, or
pledge. or deed Of trust, might not
always furnish the security required. =
Take the facts of this very case as an
example. The bankrupt appears to
have been a merchant, and purchased
his goods on credit. One of the classes
Of property which he wishes set off to
to him consists of his stock Of goods
remaining on hand. So far as appears
from the papers submitted to us, his
whole aforementioned property will not
be sufficient to give him. the full amount
which the Constitution would permit
him to bold. The note of these cred
itors was given for goods purchased on
credit to keep up his stock. Unless,
therefore, he could in some manner
give security upon his exempted pro
perty, it is fair to presume he could not
have obtained his credit. A mortgage
upon properly held for sale would be