Turner v. Irwin

Lumpkin, C. J. [1.] On the first of November, 1865, the Convention passed an Ordinance to prevent the levy and sale of property of debtors, except in certain specified cases, among which was this: “ Where the defendants are about to remove their property beyond the limits of any county in this State.” Irvin’s executions were levied 30th January, 1866, issuing on judgments dated 7th December, 1865 — the plaintiff making affidavit that the property had been removed, since the rendition of the judgments, from Terrell county, where it was produced, to Cook’s4 warehouse, in the city of Albany, and, as he had reason to apprehend, it would be removed from thence and sold. This affidavit of the plaintiff, it will be perceived, is not required to be taken by him before he is entitled to levy. He acts upon his own judgment and responsibility. If the property is not subject, the defendant can bring trespass, or the debtor can file his affidavit of illegality, and have the [257] issue tried — I mean, of course, under the stay hindrance of the Convention. The plaintiff, however, made his affidavit as preliminary to the levy, and the defendant, after the passage of the stay law, amended his affidavit, inserting additional facts ; still, he admits the removal of the cotton from Terrell county, where there were depots and places of deposit for cotton, to Albany. Upon the facts thus presented by the affidavit of the plaintiff’ and counter-affidavit of the defendant, the Court decided that the words of the stay Ordinance, to-wit, that the debtor “ was about to remove his property without the limits of the county,” were substantially complied with; and that is the only question excepted to, and which we are called upon to review, the other questions being expressly waived in the argument. We consider that the removal of the cotton, after the rendition of the judgments, under the facts and circumstances of this case, was such a removal, under the Ordinance, as eutitled the plaintiff to make the levy; and the defendant, conceding the facts, instead of going before a jury, upon an affidavit of illegality, left the law of the case to be decided by the Court. As the stay law was passed before the cotton was sold, the amended affidavit of the defendant was evidently intended to avail himself of its provisions, not, indeed, to insist on the constitutional competency of the Legislature to pass that law; (that question is clearly not in the record, nor was it passed upon by the Court below,) but to take himself out of the exception provided by that Act. There is one fact as to putting himself under the stay law : the defendant did not give or offer to give the bond required by that Act, in order to suspend the sale. He is not, therefore, entitled to its benefit. As to the constitutionality of the stay law, it is natural that the profession and the people should be anxious to know how the question will be decided by this Court. We again repeat, sufficient unto the day is the evil thereof. For my [258] self, I should look upon it as a misfortune to decide it either way; still, when it comes, if come it must, we hope to meet it as best we may, unflinchingly, I hope, in the discharge of duty, considering, however, that the delay in the meantime subserves the best interest of the country, both as regards the creditor and debtor classes. How many claims have been compromised since this subject was first agitated ? and this process is constantly going on. One propitious season would so far relieve our impoverished people as to allay much of the excitement that has hitherto agitated the country. More than four-fifths of a century have elapsed since the Constitution of the United States was adopted. In that time, there have been State decisions both for and against a stay law ; and yet, strange to say, no appeal has been taken to the Supreme Court of the United States. That question has never, as yet, been directly met and adjudicated by that tribunal. It would ill-become us to step out of the way to decide it under such circumstances. At best, it would be but the individual opinion of the members of the Court, and not the judgment of the Court itself. Judgment affirmed.