Year: 1874

"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.