The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1874-06-06

"nat IL would have been IL it had been
declared that certain specific property should
not be sold under execution, &c. In that
| case the Constitution or law containing
| similar provisions would execute itself, and
| rs it would be a part of the public policy
of the Government to exempt that particular
property absolutely from forced sale, its pro-
visions could not be waived. It 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 hasa right
to claim an exemption. Whether he will
make his claim or not is optional with him.
II ne 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 a. all, it
seems to, us'fs follows necessarily that for a
good consideration he may make contract
to waive such as the courts will enforce.
But it is further provided that nothing in
the article Of the Constitution referred to
should be construed to interfere with
the sale Of tue property or any
portion of it by virtue of any
mortgage, deed of trust, pledge, or other Sc
curity thereon. Thus it is made expressly
to appear that it was not the intention of the
trainers of the Constitution to prevent the
householder from contracting for the sale or
incumbrance of the property. He was not
required to hold it absolutely for himself and
family. 1t was to remain entirely under his
personal control, to be dealt with in such
manner rs he saw tit. His right to sell and
cucumber is as distinctly given as his right
to select. II he sells or encumbers before he
selects, bis power of selection, as against
such sale or encumbrance, is gone. No par
ticular form Of encumbrancC is Specified
that is left to the discretion Of the LegiSla-
ture. Now, waiver OF the right to select
is, in effect an encumbrance on the property
which might be selected. True, in the alb
sence OF Il statutory provision to that effect,
one cannot ordinarily mortgage or otherwise
cucumber his tulure-to- bc-acquired property,
but it is no doubt within the power of the
Legislature to authorize him to do so. Ii it
does, his circumference upon such property
is binding, the same as upon any other.
The Legislature of Virginia has in this
case attempted in effect to authorize a house
holder to cucumber in particular manner
his precmption interest in his property, as
well that which he has acquired as that
which he may acquire. 1t seems to us that
in so doing it has not III any manner impair
cd the benefits which it was the object of the
Constitution to confer. The object was to
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, ard if he had not by some volun-
tary act of his own deprived himself Of the
right, to allow him to select and hold GER
tain specified amount, not description, 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 he
and bis family might not unfrcquently 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 ap-
p,ars to have been merchant, and pur-
chased his goods on credit. One OF the
classes of property which he wishes set oil
to him consists of his stock of goods remain-
ing on hand. So far as appears from the pa
pers submitted to us, his whole unencum-
bered property will not be sufficient to give
him the full amount which the Constitution
would permit him TO hold. The note OF
these creditors was given for goods purchased
on credit to keep up his stock. Unless, there
fore, he could in some manner give security
upon his exempted property, it IS fair to pre-
sumo he could not have obtained his credlt.
A mortgage upon property held for sale
would he precarious security, il valid at all
| as against creditors, aud pledge would be
inconsistent with the retention OF the pos
session by the owner for the purpose OF sale.
| The only real security that could be given IN
such case would be by a waiver Of the right
OF exemption in favor Of that particular debt.
This the Legislature has authorized the
debtor to make, and we think i'll so DONG IL
| acted within the scope of its constitutional
powers. Whether such waiver could be
enforced without legislative authority for
| making it, we are not called upon now to
consider. 1t is sufficient for this case tllat
this authority has been given.
| The judgment of the District Court that
the provisions of the act allowing waiver
Of the exemption are unconstitutional Is re-
yersed, and the court is directed TO proceed
! to hear and determine the cause upon the
other issues made by the peadiDgs.
! This case was argued for tue bankrupt by
Major 4. i. Courtney, anG for the creditors
by Mr.. John Dunlop.
| The Thomas Case.
| In tic case Of Tie administrator OF General
George II. Thomas Us. The Exchange Bank
of Virginia, CT Norfolk, Judge Bond dellv-
cree: the opinion OF the court sustaining the
| demurrer of defendants. Leave was given
plaintiff 10 amend his bill, anG sixty days
was allowed for that purpose.
United States vs. T.. L. Brooks.
The Chiei-Justicc announced that the
! court had made UP its nina upon nearly all
the legal questions raised by counsel Tor de'
| fcncn in the casc Of Thc United States rS. 7.