New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-06-28

rights which the articles Of the Civil Code
declare to be exempt from seizure by the
the lessor, or by any other creditor, and
which are placed entirely out Of commerce.
But the clause in the act of 1874 exenpting
from seizure house and kitchen furniture to
the value of 5000, increases the exemptions
of portions OF the debtors property from be-
ing held for the payment of any debts what
ever. This clause modities alike article
2705 of the Civil Code and article 644 OF the
Code of the Practice. 1t might have been
made an amendment to the former article,
40 well as to the latter. BY attaching 1t to
the article of the Code of Practice, the ne.
cessity Of making it an amendment to the
article of the Civil Code is avoided. Had
the exemption clause in the act atores AID
been engrafted as an amendment on article
2705 Civil Code, increasing the exemptions
provided for by that article, it would have
been necessary to amend article ga OF the
Code of Practice to make it correspond
with the article of the Civil Code; that is to
say, if the article 2705 Civil Code contained
provision that house and kitchen furni-
ture to the value of 5000 should be exempt
from seizure, it would be necessary to add
to article GA Code of Practice an amend
ment preventing constable or sheriff from
Selling the amount of furniture aforesaid.
Under the construction OF the law, as
contended for by the learned counsel tor
the plaintiff, the lessor, under the articles OF
the Civil Code on this subject, has privi-
lege and pledge on the property OF the
lessee, and may seize the movable property
found on the premises, whether it be under
or over the value of $500, because. as he
says. the exemption clause of $500 N the act
of 1874 has reference only to ordinary debts
which are not secured by privilege and
pledge, as are those due to the lessor.
I have shown that the clause in the act
of 1874 exempting the property OF the
lessee to the amount OF 5000 from seizure,
applies as well to debts due to lessons TOR
rent as to debts due to any other class OF
creditors. But suppose it does not. and
there is still in existence the right Vt
pledge in favor of the lessor. how is that
right to be enforced 1t can not be en-
forced without seizure. The officers
charged with the seizure of property I'M
der legal process are sheriffs and c0nsta-
Dles. But no sheriff or constable can seize,
in any case, house or kitchen furniture to
the value OF $500, without suhjecting HIM
self to fine and Imprisonment. under a
section of act No. II of 1874. This act Is
the latest law on the subject, and it re-
peals all preexisting laws in conflict with
it. II is plain, then, that even If II be ad-
mitted that the abstract right of pledge
still exists, it can not be enforced But
there can. be no lessons right of pledge
without remedy or means OF enforcing 1t,
for without such remedy the right would
he mere imperfect obligation, depending
for its performance upon the will OF the
lessee from whom performance would be
expected. Of course l do not mean that
the lessor has no privilege or rightof pledge
on the property of the lessee at all; the
privilege and right of pledge still exist on
such property as may be left after the re
tention By the lessor of 5000 worth of fur
niture, together with the other numerous
articles OF personal property named in said
act Is being exempt from seizure.
The plaintiff contends that the pledge
was complete long anterior to the said act
of 1874 amending article 644 Code OF Prac-
tice; that the lease of Donnelly to Goodwin
was given in 1871 and, therefore, can not
be affected by an exemption law passed in
1874 after plaintiffs rights had matured;
and in support Of this proposition he cites
cided by the Supreme Court of Mississippi,
in which it was held that 1.-THE right to
seize and sell, by judicial process, debt
cr's property in satisfaction of judgment
against him, is a material part OF the rem
edy FOR the enforcement OF the contract on
Which the dgment is founded, and any
law of State which materially increases
the amount exempted by law from execu-
ton, over the amour. allowed when the
contract was made, impairs the remedy
materially, and is. therefore, prohibited by
the federal constitution
The decision in that case, even If in har-
mony with the current OF decisions on that
subject, and which do not admit. does not
apply to this case, because the plaintiff
alleges in his petition that he leased to
Goodwin the dwelling house in question
from the first of March, 1878, to October l,
1873, period OF seven months, at a
rent of forty dollars q moth, and that
Goodwin occupied the house thereafter
from the first of October, 1873, up to the
twentieth of March, 1874, when this suit
was filed, and that he is indebted to plain
tiff in the further sum OF $3.50, Tor six
months rent of said house, from the first of
October, 1873, up to and including the
month of March, 1874, at $50 per month,
making total of $3.50. T..
Act No 80, session acts of 1872, amending
article 644, Code of Practice, was in force
before and during the months tor which
this rent is claimed. That act contained
the provision exemptirg from seizure house
and kitchen furniture to the value OF 5000.
l anu at loss, therefore, to see how plain.
titf's pledge had been complete long an
terror to the passage of the $500 exemption
law, and why the right of pledge which ne
sets up can not be affected by that law.
True he refers to the exemption law Of s74
as that which can notlatfect his contract
with the defendant, but it must be remeln-
bered that the $500 exemption was a part
Of the act OF 1872, anterior to his contract,
rs we'll as it is now, in the act of 1874.
1t was urged also that the plaintiff has
no interest in the property professionally
seized, and, therefore, can have no stand
ing in court, as the owner of the property
IS not asking any relief at the hands of the
court. The plaintiff in his petition alleges
that the property contained in the house
asove referred to is the property of Good
win. The former not only made that allie
cation, but he made oath that it was true,
and he prosecuted his case to deinitive
Judgment. He is now estopped by his ju-
iicial admission, and his actions otherwise,
rom denying defendants ownership of the
in dispute. and his capacity to
'tand in judgment in this rule. Suppose,
however, the property does not belong to
he defendant, it must belong to some one
Else, and whoever may be it's. owner it is
hown to be under the value of $500, and,
therefore, not liable to seizure by the lessor
Ut any other creditor.
see no constitutional objection to this
aw of 1874 which contains the provision ex-
,eptlng, besides certain other portions OF
debtors property from execution, his
house furniture. and kitchen furniture to
he value of 5000.
1.-The State" says Chief Justice fancy,
may. if it thinks proper, direct that the
necessary implements Of agriculture, or the
ools OF the mechanic, or articles of neces-
ity in household furniture shall, like wear
ng apparel, not be liable to execution on
Judgment. Regulations of this description
nave always been considered in every civ
Hzed community as properly belonging to
he remedy to be exercised or not by every
overeignty according to its own views OF
,olicy and humanity. It must reside in
very State to enable it to secure its citi-
ems from unjust, and harassing litigation,
md to protect them in those pursuits which
70 necessary tn fine eyistenca and WE'LL