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Vol. I.]


[No. 8.

In this case the record shows that the judgment was actually entered on the 20th day of January. The entry as made was read in court on the morning of the 21st and the record signed by the judges, but it was ordered to be made on the 20th. The ten days, exclusive of Sundays, prescribed by the act of Congress for delay of execution, expired on Saturday, the 31st of January. On Monday, the 2d of February, a majority of the judges of the court directed the clerk to issue a writ of restitution to carry the judgment into effect. On the same day the chief justice of the court allowed a writ of error and signed the necessary citation. A copy of the writ of error was filed in the clerk's office and the writ and citation actually served upon the defendant in error before the clerk had completed the preparation of the writ of restitution. After he had completed its preparation he handed it to the attorney for the defendant in error, who had previously been served with the citation. No supersedeas bond was filed with the clerk on the 2d, and no notice was given that any had been approved. On the morning of the 3d of February the writ of restitution was served and Davis removed from his office. After this, and on the same day, a bond approved by the chief justice was left in the clerk's office by him. It nowhere appears from the record when this bond was approved. It bears date the 2d of February, but there is no certificate of the time when the approval was entered. It is certain, however, that it was not filed in the clerk's office until after service of the writ of restitution. The writ of error operated as a supersedeas only from such filing. That was too late to prevent the removal of Davis from his office in pursuance of the authority of the judgment; and we cannot now order him to be restored.

It is claimed, however, that as the record of the judgment was not signed by the judges of the court until the 21st, the ten days did not commence to run until that date, and we are referred to the case of Silsby v. Foote, 20 How. 290, as establishing such a rule. In that case the decision was actually rendered on the 28th of August, but the decree was special in its terms, and was not settled or signed by the judge until the 11th December. Before any entry could be made it was necessary that the judge should pass upon its form. It was, therefore, quite right to delay the appeal until the exact character of the decree could be known.

Here, however, the form of the judgment was settled upon the announcement of the decision, and it was entered accordingly.

But the writ of restitution was not served until after the expiration of ten days from the 21st, and it does not appear that it was actually delivered to the sheriff for service before that time. There is nothing to prevent the preparation by the clerk of an execution before the expiration of the ten days. It cannot be issued before, and it is not issued until it is placed beyond the control of the clerk himself. So long as it remains with him, or under his control, it is like any other paper in his office.

We think the motion must be denied, and in accordance with the request of the parties made at the argument, the case is dismissed.

Vol. L)


(No. 8.



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A statute which permits the head of a family to waive an exemption of homestead

is not an infraction of a constitutional provision by which such exemption is created. Where a party waived his right of homestead exemption in a negotiable promissory note, and was subsequently adjudged a bankrupt, it was held that the homestead was not exempt as against the holder of the note.

John Dunlop, Esq., for the creditors, appellants. A. R. Courtney, Esq., contra. The facts appear in the opinion. The opinion of the court was delivered by WAITE, C. J. On the 31st January, 1873, the bankrupt executed to Glazebrook & Thomas, at Richmond, Virginia, his note for the payment to them, or their order, of the sum of $234.50 at sixty days after date. It contained the following clause : "I hereby waive the benefit of the homestead exemption as to this debt."

Glazebrook & Thomas indorsed this note to Gibson & Crilly. Solomon was adjudged a bankrupt, on his own petition, upon the 1st of May, 1873. Gibson & Crilly made proof of their claim against the estate on the 24th May. An assignee was appointed, who on the 16th of February, 1874, set off to the bankrupt his homestead exemption under the laws of Virginia, without regard to the waiver expressed in the note of Gibson & Crilly. They thereupon filed their petition in the district court, the object of which was to set aside this action of the assignee, so far as it operated to prevent their subjecting the property set off to the payment of their debt in case the remainder of the bankrupt's estate should prove insufficient for that purpose. Their claim for this relief is predicated entirely upon the waiver of the exemption which is contained in their note. We are therefore called upon to consider the effect of this waiver.

By section 1, article XI. of the Constitution of Virginia it is provided that

every householder or head of a family shall be entitled to hold exempt from levy, &c., property to the value of not exceeding $2,000, to be selected by him ; by section 3, it is further provided that nothing in the article should be construed to interfere with the sale of property exempted, or any portion thereof, by virtue of any mortgage, deed of trust, pledge, or other security thereon; and by section 5, that the General Assembly should, at its first session under the Constitution, prescribe in what manner on what conditions the said householder or head of a family should thereafter set apart and hold for himself and family a homestead out of

Vol. I.)


(No. 8.

the property thereby exempted, and might, in its discretion, determine in what manner and on what conditions he might thereafter hold for the benefit of himself and family such personal property as he might have, and coming within the exemption thereby made, but that said section should not be construed as authorizing the General Assembly to defeat or impair the benefits intended to be conferred by the provisions of this article. By section 7 it was provided that the provisions of the article should be construed liberally, to the end that all the interests thereof might be fully and properly carried out.

In June, 1870, the General Assembly passed an act such as was 'required by section 5, and in its third section provided that in all cases where a debtor or contractor shall declare in the body of the bond, note, or other evidence of the debt or contract that he waives as to such debt or contract, the exemption from liability of the property which he may be entitled to hold under the provisions of said act, the property, whether previously set apart or not, should then be liable to be subjected for such debt or contract under legal process in like manner and to the same extent as other estate of the said debtor or contractor; provided, that when such debtor or contractor is possessed of other estate than that which he may be entitled to hold exempt in the county in which suit is brought against him, or the property set apart under the provisions of this act may be, then such other estate shall be subjected and exhausted before that which is exempt could be sold. The words employed in the note held by Gibson & Crilly are declared by the act to be sufficient to operate as such waiver.

If this provision of the act is constitutional, the waiver can be enforced.

Every statute is presumed to be constitutional. It cannot be declared by the courts to be otherwise, unless it is made clearly so to appear.

If the case is doubtful, the express will of the Legislature should be sustained.

Keeping these familiar principles in mind, we proceed to consider the constitutionality of the act in question.

The Constitution grants the exemption as a privilege to the householder. It 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 when 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 exercised before the sale. If the householder fails in 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 him.” 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 declared that certain specific property should not be sold under execution, &c. In that case, the Constitution, or a 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." 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 has a right to claim an exemption." Whether he will make his

Vol. 1.)


(No. 8.

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 a good consideration he may make a 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 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 framers 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. It was to remain entirely under his personal control, to be dealt with in such manner as he saw fit. His right to sell and incumber is as distinctly given as his right to select. If he sells or incumbers before he selects, his power of selection, as against such sale or incumbrance, is gone. No particular form of incumbrance is specified ; that is left to the discretion of the legislature. Now a waiver of the right to select is, in effect, an incumbrance on the property which might be seleeted. True, in the absence of a statutory provision to that effect, one cannot ordinarily mortgage or otherwise incumber his future-to-be-acquired property, but it is no doubt within the power of the legislature to authorize him to do so. If it does, his incumbrance 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 householder to incumber in a particular manner his preëmption interest in his property, as well that which he has acquired as that which he may acquire. It seems to us 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 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; 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 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 his family might not unfrequently 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 him consists of his stock of goods remaining on hand. So far as appears from the papers submitted to us, his whole unincumbered 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, therefore, he could in some manner give security upon his exempted property, it is fair to presume he could not have obtained his credit. Å mortgage upon property held for

Vol. I.)

HYDE v. Woods.

[No. 8.

sale would be precarious security, if valid at all as against creditors, and a pledge would be inconsistent with the retention of the possession by the owner for the purpose of sale. The only real security that could be given in such a 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 in so doing it acted within the scope of its constitutional powers.

Whether such a waiver could be enforced without legislative authority for making it, we are not called upon now to consider. It is sufficient for this case that this authority has been given.

The judgment of the district court, that the provisions of the act allowing a waiver of the exemption are unconstitutional, is reversed, and the court is directed to proceed to hear and determine the cause upon the other issues made by the pleadings.



[June, 1874.]



Where under the articles of association of a Board of Stock Brokers, a member

cannot transfer his seat to a party not elected and approved by the board ; and where, upon the insolvency of a member, his rights as such are forfeited, and the board is authorized to dispose of his seat, and apply the proceeds to the pay. ment of his indebtedness to other members of the board to the exclusion of all others, only the residue of the proceeds of the sale after paying all the liabilities

provided for in said articles of association, is assets of such insolvent member. Under such articles, F., a member, failed to meet his engagements in the board,

August 24, 1872, and being indebted in a large amount to sundry members, on that day assigned his seat in the board to W., with authority to sell and pay the proceeds to his various creditors in the board. With the assent of the board, W. sold the seat to T., who was elected by the board, for ten thousand dollars, and, with the approval of the board, paid the entire proceeds pro-ratably to F.'s creditors, who were co-members. October 1st, 1872, F. was adjudged a bankrupt on petition of a general creditor filed September 18th, 1872. After said sale and payment, an assignee having been appointed, he brought suit against W. to recover said sum of ten thousand dollars. Held, That the assignee was only entitled to the residue after payment of F's liabilities to the co-members provided for in the articles of association, and there being no surplus, he was not entitled to recover.

The facts are set forth in the opinion.

SAWYER, C. J. This is an action by the assignee in bankruptcy of Thomas W. Fenn, to recover the proceeds of the sale of the seat of Fenn in the "San Francisco Stock and Exchange Board,” which were received by defendants within four months before the filing of the petition in bankruptcy. The petition in bankruptcy against Fenn was filed by a creditor

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