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No. 01, it. r. Jt. .
Meets recularlv on the 1st Mondlar tisht
fet motuh. TursdsiVn of Superior Courts,
"h on tfie Fevals ot the Sts. Johrt. .
. J. L. RUCKKR. W. M.
.-'.'BLACKSMITH ollOr.
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ice. . -
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j ivi 1 1 m ur tvtrir i ta " tv nitnn r 11
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' v CTTP: Etl- Secretary,
j; I AitiAJl DCQGGIX, JCiSq.,
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IKkv. K Shotwill.
i i j j . t
pf ih- teore Wl Suttla. Esq, Secretary
ieb- 24k, 1873. 6:tf
Vritten for the Recoid.
Pica for a place iu a Lady's
"Please ma-am pleas take me in
your hand, ; : ; v (,
I am a little helpless thing
A few days old you understand
But I am friendship offering
Receive me as a friend receives
Fold me a moment to your breast
Then lay me in the Lilly leaves .
; Kiss me. and cradle me to rest"
Thus by the breeze rocked to repose
The weary butterfly, may close
Its waving wings and sweetly doze,
In the red petals of the rose.
v.. ' , :
Western District of North Car
olina, District Court, J iiu e
3rd., 1873. '
In re Jordan. V T . ,
Bankrupt. 1,1 Bankruptcy
In this'case it is certified by the
Register, that ill e following ques
tions arose in the course' of pro
ceedings, were stated and agreed
toby the counseLof the opposing
parties, and presented to this
Court for adjudication :
1st. Is bur present bankrupt
haw, unconstitutional because not
uniform ?
2nd. "Can the Bankrupt Law
have a retrospective effect with
out imparing th obligation of
contracts and h as Congress such
power?" j
3rd. "Is the petitioner entitled
to said lands (the homestead set
apart by assignee) as part of his
rightful ex-etnptions as against a
judgement rendered prior to the
ratification ot the Constitution
of North Carolina upon a contract
made before the present bank
rupt law was enacted V ,
4tb. "Should not the lands be
si old by the assignee and the
proceeds arising from1 said sale
be. distributed among the credi
tors whose debts were made be
fore the ratification of our pros-,
cut State Constitution ?"
A written opinion was filed by
II. G. Ewart,' Esq., Register in
Bankruptcy, upon the . various
questions cert l tied.
Graves & llvinan, Att vs. lor
Bankruptcy.! Pickens, Attorney
for creditors. ;
Dick, J. I concur in the able
and w ell prepared oninion of the
Register upon the several ques
tions which have been certified to
this court for adjudication.
Inre Beckerkord,! 4, B. BJ 59,
the U. S. Circuit court of Mis
sour; decided that, ! "The provi
6ions of Sec. 14 of the Bankrupt
Act adopting the exemptions in
favor ot the execution debtors
established by the laws of the se
veral Sxates does not dest-oy the
uniformity of the Bankrupt Act,
nor violate anv of the provisions
of the Federal Constitution."
The question decided was di
rectly presented for; adjudication,
and the opinion of Miller' & Kerk-
el. .I.J. 18 posuive huu iotciuiu
and seems to have been well con
sidered. I i . !
I feel safe in replyins: npon any
leal decision of Mr; Justice Mil-
Judge in any
couutry whose judicial opinions
are entitled to more considera
tion, or greater weight of author
ity. .. I , . - j ! .
The amendment or June ?5tn,
1S72, does not materially vary the
Question of uniiorinity decided in
er Beckcrkonl, as it only changes
the date when the State exempt
tions are adopted; and the Act
of March 3rd, 1873 declares the
true intent and meaning of the
Act of June 1 8th, 1872, and re
enacts it with some alterations
rendered necessary by tbe circuuW
stances of the times. y
The. general policy and purpose
of bankrupt laws is to riiake an
eoual distribution of the effects of
nn iiisolveiit debtoiamonsr all of
his creditors,1 and then discharge
an honest debtor from all prior
debts. rvjj' ' ' '
Before the adoption of the Fed
eral Constitution each State pos
sessed the general powers of sov
ereignty and could pas9 bankrupt
laws to operate uponlits own citi
zens, but could . iibt ' affect : the
rights, of 'ttie ' citizens of otter
States. As it was easy ; to ' fore
see that' there would be many
business transactions and .'much
commercial intercourse between
the citizens of the several States
which woiild necessarily produce
considerabl e individual indebted
ness, which" might result in exten
sive financial embarrassments ; it
was obvious to the framers of the
federal constitution that the
benefits of a wise, humaneand
general system of bankrutpcy,
which might, under certain exi
gencies, become necessary to pro
mote the happiness and commer
cial prosperity of the nation ;
could only be effectqally establish
ed, byxthe fejJeral government
adopted by the people of the
several States for general and
national purposes. -
To provide for any emergency
that might arise for a general
bankrupt law, the constitution
vested the necesary sovereign
power in Congress, with no other
limitation than the laws upon
such subject should be uniform
in their operation among the
several States. 1
The uniformity required is as
to the general policy and operation
of such laws ; as for instance, that
the common law right .which a
debtor has to prefer one creditor
ov r another shall be taken away
and his property be equally distri
buted among all of his creditors :
that bankrupts who make an hon
est surrender of their effects shall
be discharged from all prior debts
that all questions relating to
bankrupts, their estates and credi
tors shall be adjusted and admin
istered in the same courts and by
me Biiiucf inruw aim inuuea ul
proceeding.
j These general purposes to bank
ru ptcy are certain ly provided" for
in the present Bankrupt Act, and
are every where administered
with uniformity in the federal
courts ; ami this is the extent- of
the uniformity required by the
constitution to mfike such laws
operate equally, justly, effectually
and beneficially in! every part of
the nation. ,4
The bankrupt Act iu some
minor particulars must necessari
Iv operate differently in the dif
ferent States. II bus, the bank
rupt laws regards as valid the
legal and equitable liens existing
by law in the several States ; and
as the nature, force and effect of
such liens are dependdit upon
local laws they will, in some re
spects, be different; in different
States, v ...
Two English doctrine ot the
equitable lien of a vender or pur
chaser of real estate is recogniz
ed in some of our States, and not
in others; and where it exists it
is enforced in the courts of bank
ruptoy. A bankru pt court ad
justs the fights of creditors, and
administers the effects of a bank
rupt, subject to the charges ;
whether by way of lien or exemp
tion ; which are createi bv the
laws of the States- in which such
court is held or the property to
bo disposed of is situated. This
rule was adopted to make the
bankrupt law as unifotm as possi
ble among the btates, by recog
nizing local laws and thus pre
serving the harmony and spirit of
comity which should always ex
ist between the federal and State
srovernmeiits. This rule does not
violate but carries into effect that
provisioned the constitution which
requires all national bankrupt
. i - .. . .i
laws to oe uuuorm in tueir opera
tion among the several States.
The principles involved in the
second question j certified by the
liegister, are Coo obvious, and too
well settled by numeroun adjudi
cations, to need any further dis
cussion. Congress certainly has
the plenary and paramount power,
save the restriction above consid
ered, to pass bankrupt laws which
will not oulv impair the obliga
tion of contracts, but entirely dis
charge the debtor, from such obli
gation, no matter when or where
contracted Congress also has the
power in establishing a uniform
sy stem of bankfoptcy to do away
with the effects of liens created
by the judgements of any court.
If a judgement can be discharged
by a bankrupt ' law, there is no
reason why a' lien which is an
incident to - a judgement cannot
also be discharged. A lien by,
judgement "does not create any
vested, right in the property subject
to such lien, which; the constitu
tion protects- form legislative cn
croachmenti It is hfither a right
in, nor to such property, but sim
ply a charge imposed thereon by
statute. It is a part of the reme
dy which the local law gives a
creditor in the collection of his
debts, and a particular remedy is
uot a vested right." Asa general
rule every State ha? complete
control over the remedies which
it shall afford to parties in its
courts. Ilorton vMcCall, 66 K.
C, 159; Ladd v. Adams, ibid, 164;
Cool ey Con; Lim. 358 361.
The extent, force and effect of
a lien created by a State statute
must depend upon the interpretaT
tion given such statute by the
highest court of the State. We
have seen in the cases above cited
that in this State a Judgement
lien is not a vested right. As a
remedy it may be modified by the
legislature, and any change that
does not virtually destroy the
remedy, does not impair the obli
gation of existing contracts.
- The homestead laws of this
State do, not abolish judgement
liens, but merely postpone the
time of their enforcement. This
modification of a legal remedy
may well be j regarded as reason
able by a court of justice which
takes into consideration the ano-
inir when the modification was
made, nud that it was prompted
by a wise and humane policy
Which must necessarily result in
the general public good.
While the States are prohibited
by the Constitution from impair
ing the obligation ot contracts
either direcUy, or by virtually and deprived the creditor of all reme
abolishing existing remedies no fj- v. Kessler, it conceded
such inhibition isimpossed upon a?ollsor
,.. rru .Lu, chane:ethe legal remedy existing at
yougis x um.uvCI -H
conferred upon Congress to enact
uniform bankrupt laws, is neces-
sanly an express power to do
away entirely with contracts, as
such a result is the very object may change legal remedies provided
and essence of bankrupt laws, such change does not impair a sub
But it is insisted that wliile Con- stantial right . Such changes are
gress may have this paramount usually made to meet. some new con-
- . 1 ' A 1 1 4-1 a( 4VCrv(. Anil ia inflnanAul lnxr
power over contracts, it exceeaea
its authoritv in enacting that State
pvnn.tinim hill be 4t valid
e.emptioiib , snail ue vauu
against hens by judgoment or de-
' w v -7-- ----- 8UCn suDiectS, ougni xo ue regarueu.
is equivalent I to saying that the as the law of the land by the judicia
eontract may be impaired- bat the unless it is manifestly in viola
remedy must not . oe liiteriereu
with the principal may be ue-
stroj'cd, but the incident is protec-
ted against legislative action.
There is notlm.S in thVnatare
of liens whytheyshouldbethus
specially protected, as tney are
"ui 3v'u
strong reasons why they should
not be recognized and entorced though it impaired existing and sub
by bankrupt laws. , The enforce- stantial rights. The enlightened
ment ot liens is certainly contrary lesal principles that control this
to the nolicv of a ereneral svstem
of bankruptcy, the ob'ject of which
t ft-"l
js to aisinoiue ine estate ui an
insolvent debtor among all of his
creditors, upon the principle that
equably is equity. Liens upon
geueral principles, certamly de-
sene no special ravor ana proiec-
tion 111 bankrupt laws.
The Bankrupt Act, before the
amendment of March 3, 1873, in
express terms avoids liens valid
under otaie laws, auu creuiw uy tnuunai. ;
the levy of au attachment within i The question presented for my
four months- before the com- determination is how far does
mencement I of proceedi ngs in the case of Gunn and Barry effect
bankruptcy, 1 and this- action of the homestead rights of insolvent
Congress is generally - conceded debtors in a court of bankruptcy,
to be constitutional. v In that case it is decided thns:-r
Cotirfress has even interfered Congress cannot, bjr ' authoriza
with tested righis, for by the 35th tion or ratification, give the slight
section of tbe Bankrupt Act, as- est effectjto a State law or Con
signments and conveyances made stitution in coufiict with the Con
under certain circumstances are stitution of the United States,
avoided, although such assign- This instrument is above aud
mona and ftnvpvflnpp are valid bevond the power of Congress
at commonlaw and Under the
laws of the-state; ana tne parties
have acquired a completed 'title
and "possession of the property
conveyed. ;
I have a very decided opinion,
that Congress did not exceed the
limits ot the its Constitutional
powera in enactinc: the Act of
March 3,1873. 1 also think that
Congress, tinder its general pow-
era over the subject of bankrupt
cy, could avoid all liens, whether
existing by statute, by usage, by
express contract, or at common
law..; ; ' : . : .
The case of Guun v. Barry,
recently decided in the Supreme
Court of the United States, has
been called to my attention in the
argu raent,aud is worthy ofniy care
ful consideration, as it is an ex
positi on of the la w by the suprem e
judicial tribunal 'of the nation.
The opinion is read with great
interest,-both by lawyers and lay
men, in every section of the coun
try, and the decision may result
in serious consequences to many
of our people. The questions of
law involved have been frequent
ly discussed by able counsel, and
have been decided differently in
many of the Supreme Courts of
the States. The! "opinion Mr.
Justice s rvayne i s n ot elaborate,
and th e questions presented are
not las fully considered as I had
supposed they would have been,
on account of their importance
and general public interest, when
the homes of tens of thousand? of
our unfortunate citizens may de
pend upon the decisioni and when
the action of so many states con
ventions, legeslatures and su
preme courts niay be over-ruled.
I he abstract pnnciples decided in
Gunn v. Barry, are announce
law in Hill v. Kessler, in the Su
preme Court of this State, and the
apparently different decisions in the
two cases may be easily reconciled.
The decision in Gunn v. Barry would
have been made in Hill v. Kessler
under a similar state of facts. The
exemption law of Georgia gave a
homestead absolutely to tne aeotor,
a contract is made, such ac
wpuld be void, aain violation of!
the Constitution of the United States,
Tn both the cases which we are con-
gidering it is agreed that a State
UU U1 " J0 .J
reasons of pubUc policy. The legis-
latnpe;ia the prpper body to consid
er w un tions of puhKc
H and e leHgislature will, upon
tion of the Constitution. .
Imprisonment for debt was a reme
dy in this State for the enforcement
of contracts. The legislature thought
J&fT
, - , ..' Kl. 7nj
emed vwas abolished. The consti-
tuuonauty 01 inis legisiauye . acuuu
wouid be sustained in any court, al-
question will certainly 'sustain the
homestead laws of this State, upon
I iYia enrmvnA rf hnmanitv and a wise
& rr . t , .
Pc P0' .An? nS1'
Tlr
bntol theltime of their
enforcement
j do Ilot regard the cas3 of Hill
v. Kessler as overruled by Gunn
y. Barry, but I will not consider
the question further,5 as it belongs
more appropriately! to another
and the Statesr and is alike obli-
i gaiury uwic wm.
I admit the soundness of the
lesral principle so clearly and for-V
cibly expressed. A States statute ,
that is in! violation of the Consti-"
tution of the United States is ab
solutely void, and no power in
government can give it vitality or.
authori ze its operation as a Slate
But there are some subjects up
on which a State cannot rightful
ly legislate, and -yet Congress
many do so uuder the Qpnstitu-
tion. A State cannot coin money,
emit bills of credit, make any
thing but gold and silver coin a
tender in payment of debts, &c,
but C ongress can pass laws upon
such subjects, and in legislating
may adopted and enact the Very -principles
and terms of an uncon- ,
stitutionai State law. If this
Stated had adopted the present
bankrupt law it would have been
unconstitufonal; as it impairs ther
obligation of contracts and af--,
fects the rights of the citizens of
other States. Congress, however,
could adopt the very language
and principles of such State lav
and enact it as a national law, and '
such acl ion would be constitu
tional as it would constitute a
system of bankruptcy uniform
among the States. '
The Act of March 3rd, 1873, does
not profess, by. "authorization of .
ratification," to make valid State ex
emption laws which: are unconstitu
tional, but adopts the principles of
such laws and to a certain extent
makes them a part of the general1
Bankrupt law. The Act says in ex
press terms ''that tha 'exemptions al
lowed the bankrupt shall be the
amount allowed by the Constitution
and laws of each State resnectivelv
... . 4 . - . " .
observed that the Act of March 3rd,'
1873, makes a material charge in re- ;
enacting the Act of June 8thr 1872,
by substituting the words as existing'
in place of the words in force. It is
manifest from the terms of the Act of
March 3rd,. 1873 that this object of
Congress was to do away with a
difficulty that arose under the Act of
June 8th, 1872, by some State court
declaring that exemptions to debtors
in State conbtitutions and laws were
not in forde as to antecedent debts,
as such part of such laws were in
conmct witn tne consuiuuon ox mo
United States. Congress therefore
expressly declared ,that such State
exemptions should be valid against 4
antecedent debts; and ex industria
substituted the words as existing in
placeof the words in force, and in
tended that the exemptions allowed, ,
under the bankrupt law should be
the amount designated in the : Con
stitution and laws of the States re -
spectirely inl existence in the year
1871, even if such laws as btate taxes, ,
should be declared to be un consti tu '
tional by the Courts. As the power
of Congress over the subject of
bankruptcies is plenary and para
mount and as its intent is so clearly .
manifested by its action, we are of
the opinion that the Act of March
3rd, 1873 is constitutional and must
be adniinistered in the bankrupt
courts according to its true intent
and meaning unmistakably express ,
ed in its language. f i
-' The exceptions to the report of the r
assignee are disallowed, and said re
port is in all things confirmed.
ROBERT P. DICK, -IT.
& Diet. Judge.
A toper got so much on his stom
ache the other day that said ; organ -
repelled the load. As he leaned
against a lamp post vomiting, a little
dog happened to stop by him, where
upon he indulged in this soliloquy i
"Well, now, here's a conundrum. I
know where I ate that lobster, I re
collect where I got that rum, but
I'm hanged if I can recall wehre I ate
that mUeyallerdog." ,
There is so much of weeping and
then forgetting, that use may be
made of what Miss Mulock says i:
"When God takes our dead from us,
he means for us not to grieve for-
ever, only to remember.
' ' : ' . i i i . ..
A critic out- West, noted for his
euphuistic j way of . putting , things,
speaks of an "Indiana poet who was
recently sent to the penitentiary for
three years for plagiarizing a horse."
Bismarck has just completed his
fifty eighth year, and shows the wear
and anxiety to which ,h . has been -subjected
since I860.