VAItLING V. BERRY.
want of materiality, and not sufficient to prevent the running of the statute of limitations. Taylor v. Reed, Supr. Ct. of Illinois, June, 1882; Kellogg v. Carrico, .47 Mo. 157; Mansur y. Willard, 57 Mo. 347; Medsker v. Swaney, 45 Mo. 278; Carter v. Abshire, 48 Mo. 300; Martin v. Smith, 1 Dill. 96; Langdon v.Doud, 10 Allen, 433; Bigelow, Estoppel, 481-483. The result is that, without considering the various questions touching the merits of the controversy, the decree of the district court must be affirmed, and it is so ordered.
and Wife, and
Pircuit Court, D. IO'lJJa. 1.
BAliKRUPTCy-REV. ST. § 5045-HqMESTEAD EXEMPTION.
By the passage of the act. of March 3, 1873, embodied in section 5045 of the Revised Statutes, it was the intention of congress to prescribe by its own direct legislative authority, irrespective of state laws, the conditions upon which the homestead exemptions should exist, making the provisions of the state laws "existing" in 1871 the measure or criterion as to the amount allowed.
2. DEBT WAS CONTRACTED.
'Under section 5045, Rev. St., the bankrupt's homestead exemption is valid against all debts, whether reduced to judgment or not, without. regard to the time when contracted, and regardless of state co.nstitutions, laws, and decisions. 3.
A bankrupt, revenue, or naturalization law, which, by its terms, is made applicable alike to all the states, without distinction or discrimination, is not unconstitutional merely because its operations may be wholly different in one state from another.
4. RULE AS TO OONSTRUCTION OF LAW.
Where the constitutionality of a law is a mnt.ter of doubt. Rnd the decillions upon the question are conflicting, to set aside Iiuch au act as unculll:lLltutiunal would be presumption in an inferior judge.
The plaintiff in this case is the assignee in bankruptcy of the firm of Parsons, Berry & Warren, of which the defendant William A. Berry was a member. Tho object of the bill is to assert the claim of a creditor of the said firm, D. W. Grimes, against the homestead of said Berry. It is conceded that the debt of the claimant Grimes was contracted prior in time to the purchase and acquisition of the homestead, and therefore that by the law of Iowa the homestead was not exempted from the payment of the debt. By the law of Iowa the claimant had a clear right to enforce his claim against the
by judgment and execution. The claimant may, .therefore, we think, through the present plaintiff, as assignee in bankruptcy, maintain this bill, unless he had been deprived of his right to subject the homestead to the 'payment of his claim by the amendment to the bankrupt law, passed March 3, 1873. That a.mendment provided that there should be exempted from the operation of the assignment in favor of the bankrupt such property "as is exempt from levy and sale upon execution, or other process or order of any court,by the la ws of the state in which the bankrupt has his domicile at the time of the commencement of the proceedings in hankruptcy, to an amount allowed by the constitution. and laws of each state, as existing in the year 1871, and such exemptions shall be valid against debts contracted before the adoption and passage of such state constitution and laws, as well' as those contracted after the same, and agaihst iiens by judgment ,01' decree of any state court;. any decision of any such court rendered since the adoption and passage of such constitution and laws to the contrary notwithstanding." '.. John C. Pow('r and p. Henry Smythe, for plaintiff. A: Antrobus, Thomas Hedge, and Anderson Bros. etDa,vis, for defen dan ts. LOVE, :po J. Fir,qt. The plaintiff's counsel contend that "the bankrupt law,did not intend to exempt anything which the legislature of the state had not exempted or sought to exempt by its law," and counsel say: "We deduee, therefore, that if the bankrupt law only intends to exempt such property as the state law did/or meant to make the thestate Jaw the m13asure of exemption, then the. property here is not exempt forthereason that it is not by the state statute.". Secondly. Counsel insist that "if the bankrupt law did not intend togo further and creatt\ .a by the bankrupt law itself, and which J:lo,t give; it is void, being .there being no uniformity in it." With respect to the first of these propositions, which involves the of the amendment of March, 1873, (Rev. St. § 5045,) I mnst confess that niy own judgmont was, when the case was argned' before me in the' court, with the' plaintiff's counsel; bttt-T have beenledby'a morethoroughdorisiderationof the' question tocharigeniyopihion 1.1pOn that point. 'rhe question is, was it ille purpose of congress, in giving the'bankrupt 8 'homestead exemptions, simply to recognize the state'lawBas furnishing ·the i:ule with respect to both the amount exempted and thecorraitions of exemption, or was it intended by-congress' to"pre-
DARLING V. BERRY.
scribe by its own direct legislative authority, irrespective of state laws, the conditions upon which the homestead exemptions should exist, making the of the state laws. "exIsting" in 1871 the measure or criterion as to the "amount allowed?" As a matter of course, congress could not have intended to prescribe directly and by its own authority the conditions of the homestead, and at the same time, by the same act of legislation, accept the conditions provided by the various state laws. We must inevitably accept one hypothesis or the other, and not both, in the construction of the act. The true purpose of congress may be demonstrated by considering the causes and events which led to the amendment of 1873. It is undeniable-indeed, it is admitted on all the condition of things in Virginia, growing out of her legislation, constitutional and otherwise, regulating homestead exemptions, led to the:lameudment of 18·;73. By article 11 of the constitution of that state, adopted in 1869, iti was provided that every householder or head of a family should be entitled, in addition to the articles then exempt from levy or ,distress for ren t, to hold exempt from levy and sale under. execution, etc., issued on any demand for any debt theretofore or thereafter contracted, his real and personal propedy, etc., to the value of $2,000, to be selected by him. An act of the general assembly of 'virginia, apprllved June 27, 1870, gave effect to this provision·hy prescribing in what. m mner and upon what conditions such householder could set apart and hold such exemptions. Under the bankrupt law, as originally enacted, there was exempted from the assignment of property require(} to be made to the assignee, among othersuch"property as was exemptfl'om levy and·sale under exelJution by the laws of the state, etc., to an amount not exceeding that allowed by the state exemption lawin the yea;r 1864. By an amendatory ·act ,passed on the eighth of J I1'1D, 1872,this provision was changed so as to give the bankrJpt the iJenefit.of ex, e111ption laws,jn forcein 1871. In 1872.the court of appeals oiVirginia nnanimollsly deoided (22 Grat. 266) that theiprovision qf:the constitntion just: referred to, and.the statut,e giving effect to the same,: so far as they .applied to contracts: entereddnt6 Or. debts contracted.. before their adoption, were, a, violation, of. the.: constitution of; th.e 1]ni:o(l States, and therefore void. After this decision, on the third of March;.1873, congress p8<ssed anothelt:uut, which is substantially the; same as .section 5045 .of the Revision. The amendment of 1878
isas;f911ows:. ..... _ _.
"Be it enacted, etc., that it was the true intent and meaning of the act approved June 8, 1872, entitled, etc., that the exemption allowed the bankrupt by said amendatory act should, and it is hereby enacted that they shall, be the amount allowed by the constitution and laws of each state, respectively, as existing in the year 1871, aud that such exemption be valid against debts contracted before the adoption and passage of said state constitution and laws, as well as those contracted after the same, and against liens by judgment or decree of any state court; any decision of aIlY'such court rendered since the adoption and passage of such constitution and laws to the contrary notwithstanding."
Here we find that the law of Virginia giving retrospective homestead exemptions was declared null and void because it impaired the obligation of contracts. Such exemptions, therefore, did not exist in Virginia when the amendment of 1873 was paesed. Congress, it is admitted,aimed: by the amendment to do what Virginia had not been able to accomplish, namely, to give the bankrupt the benefit of the retrospective homestead exemptions which had been annulled in Virginia. This congress was fullyem.powered to accomplish. Congress could, by its own direct legislation, pass a law impairing the obligation of contracts, but congress could not make a state law, which violated the constitution, valid. Did congl'ess intend to recognize and adopt, as furnishing a rule to its courts in the administration of the bankrupt law, state legislation which was utterly void by reason of its violation of the i federal constitution? Could congress breathe the breath of life into a dead state law-dead by reason of its repugnance to the constitution? So far from its being the purpose of congress to adopt or respect the law of Virginia touching homestead exemptions, it was manifestly intended by the amendment to overrule and disregard the state law ; for, by the law of Virginia as it stood after the decision in 22 Grattan, the creditor had a clear right to satisfaction out of the debtor's property, without regard to his claim of homestead, and the creditor might have secured a lien upon the property claimed as a homestea.d by the judgment or decree of the Virginia courts. Congress, therefore, could not effect its purpose by giving a retrospective homestead in Virginia under the bankrupt law without utterly disregarding the Virginia law, and overriding any liens which might be established by the judgments of its courts; and if there is any meaning in words this is precisely what congress aimed in express terms to do. lt being thus manifest that no valid law existed in Virginia creating a retrospective homestead, congress could not establish such an exemption by adopting or recognil'ling what did not Congress,
thel'efore, could accomplish its admitted purpose in Virginia only by direct legislation giving the bankrupt a homestead against debts which had been adjudged to be valid claims upon the under the law of that state. Now, is this consistent with the view that congress intended to adopt state laws "in existence," whether in force or not, whether repealed or not repealed, whether consti· tutional or otherwise, as a measure of the amount of property to be exempted. The original bankrupt act of 1867 limited the amount of exemption by the state laws in force in 1864, though possibly reo pealed or not in force in 1867, or when the proceeding in bankruptcy should be commenced. I have hitherto considered the question with reference to the inten· tion of congress to prescribe a homestead in Virginia without reference to the laws of that stat..); or, rather, in contravention of its existing law. I have so considered the question because there can be and is no serious doubt that congress intended, with reference to the condition of things in Virginia, at least, to provide for a homestead by its own direct legislative power to pass Ii. general and uniform bankrupt law. But although congress, in adopting the legislation in question, had in view the exigency existing in:· Virginia, yet it could not pass a l:ipeciallaw to meet the state of things relating to the home· stead in that state, without applying its provisions to the other states; since such a law applicable to the condition of things in Virginia alone, and not to the other states, would clearly have been unconstitutional. It would not have been a uniform bankrupt law. Congress could not, without a flagrant violation of the federal constitution, have so framed a law as to give the bankrupt in Virginia a homestead exemption in dis:!"egard of the state law, and in contravention of liens by judgment and decree, without making the same provisions applicable to other states. It would have been simply absurd for congress to have attempted to make such a provision for bankrupts in Virginia by its own direct legislation, and to have provided, as to the other states, that their own laws should prescribe the conditions as to debts upon which the bankrupt should be entitled to the homestead. Hence congress was compelled, in order to provide a homestead against antecedent debts in Virginia, where no such homestead law was in force, to framo a law with general provisions, applicable alike to Virginia and all other states where homestead laws existed. This could 'Only be accomplished by a law of congress prescribing directly the conditions of exemption against prior creditors for all the states alike, without reference to state statutes, except in so far as they migh t be
taken as a criterion or measure of the amount of property to be' exempted. . From these general views, which seem to my mind conclusive, let us turn to the particular language of the amendment. It is provided that "such exemptions shall be valid against debts contracted before the adoption and passage of such state constitutions and laws, as well as those contracted after the same, and a::;ainst liens by judgment or decree of any state court; any decision ,of any such court rendered since the adoption'and passage of such constitutions and laws to the contrary notwithstanding." 'These words must have some construction; they cannot be rejected as surplusage; they are not ambiguous. What db they mean ? What can they mean, except that the bankrupt's homestead exemption shall be valid against all debts, without regard to the time when contracted, and regardless of state constitutions, laws, and decisions? The exemption ,shall be valid against debts contracted before and, after the passage of laws, etc., "in existence" in 1871,and,againstthe judgments and decrees of any state comb. Time before and after an event includes all time, and therefore the words used in the amendment imply that the exemption shall be valid tl,gainst debts at whatever time contracted. They can mean nothing else., To extort any other meaning from them by interpretation would be tiO violate the fundamental maxim of construction. "The first maxim of interpretation," says Vattel, "is that it is not allowable to interpret what has no need of interpretation;" and he proceeds to point out the fatal and mischievous sequences of violating this rule in the interpretation of deeds and treaties. The words "debts contracted" before and after the passage of a law, etc., must, ex vi termini, mean all debts, and not some particular debts to the exclusion ot others. If we reject this interpretation how shall we discriminate between debts which are and debts which are not included in the provision? What rule of classification shall we arlopt? Congress manifestly did not intend to make any such discrimination, for congress in express terms made the exemption valid against t.he very highest class of debts, namely, such as were made li<!ns against the homestead by the solemn judgments anel decrees of state courts. It had been the policy of all bankrupt laws to respect and preserve the liens of creditors under state laws and decisions; 'lnd the doctrine that the adjudications of the state courts upon state constitutions and laws should be accepted and enforced in all federal tribunals, had, long before the legislation we are now consider.
DARLING V. llERRY.
ing, been embedded in the very foundations: of federallaw. Yet here we find congress providing that the bankrupt's homestead exemption shonldprevail 'against state laws, and state decisions and liens established by the solemn judgments and decrees of state courts. By what possible terms could the will of congress have been made lL.ore conclusively manifest that the bankrupt's homestead should by exclusive authority of congress, against all debts in spite of state laws, decisions, and judgments? We know positively that such was the intention of congress with respect to delJts secllre:l by the. laws, judgments, and judicial decisions of the state of Virginia, and how can we suppose that congress did not intend that debts in other states should be subject to the same conditions as against the homestead? Did congress intend to make one law for Virginia and another and different law for the other states? The claimant's debt is a mere float. It has never been reduced to judgment. It is no lien upon the bankrupt's homestead.. It is a valid claim under the law of Iowa against the homestead; nothing more. This debt is clearly, at whatever time contracted, whether before or after the passage of state laws, within the express terms of the act of congress postponing debts to the homestead exemptions. What reason ii! there to take the plaintiff's claim out of the act? Is it because it was valid under the hi.w of Iowa against the homestead? So were the debts in Virginia, which, it is admitted, the amendment intended to set aside in favor of the homestead. Nay, it would appear that some of the Virginia creditors had, established their claims as liens against the homestead by the judgments and decrees of the courts of their state; and these liens against the homestead as well as other judgment liens, it was the manifest purpose of the amendment of 1873 to subvert. Would it not, then, be most unreasonable to suppose that it was the purpose of the amendment of 1873 to subvert and set aside the judgment liens of other creditors against the homestead, and save such mere floating claims as that of the plaintiff? Suppose the claimant had reduced his demand to judgment, and had thus made it a lien upon the homestead: he would then have brought himself within the very words of the amendment, that the exemption should be valid" against lien!) by judgment or decree of any state court." In that case, wauld not the amendment have set aside his lien in favor of the homestead; and is he now better off because his claim remains in its original shape, of a floating claim against the homestead
I can see no difference between the case of the creditors under the Virginia law which congress intended to set aside in favor of the homestead, and the claimant's case under the law of Iowa. The claimant had a right by the law of Iowa to satisfaction out of the bankrupt's property without respect to the homestead. He might have enforced his claim by judgment and secured a lien. The same is true with respect to the rights of the creditors in Virginia under' the law of the state. It cannot be doubted that congress intended to postpone the Virginia creditors to the right of homestead, and to establish the same even as against liens by judgment and decree. Why should a different intention be imputed to congress in rega,rd to an Iowa creditor? Why should not .the same result to which the Virginia creditors were exposed occur to an Iowr.. creditor, if the bankrupt act is a uniform law? The section (5045) which we are considering provides that there shall be e:1cmpted"Such other property, etc., as is exempted from levy and sale upon execution or other process, or order of any court, by the laws of the state in which the bankrupt has his domicile at the time of the commencement of the proceedings in bankruptcy, to an amonntallowed by the constitution and laws of each state as existing in the year 1871."
· . J
The word "existing" is here evidently used for a purpose. There was no law giving a retrospective homestead exemption "in fGrce" in Virginia in 1871. The law which b,a,d been passed being unconstitutional, and so declared by the 'highest court of the state, was a dead letter; it was not in force, but in one sense it existed in 1871. It had no potential "existence," but it "existed" in form. So there may have been in other states exemption laws which "existed" either potentially or in form in 1871, but which, perhaps, were not in force when the amendment of 1873 was passed. I think it must have been the purpose of congress to adopt these state laws "existing" in 1871, whether potentially or in form, whether repeated or not, whether in force or not in force, so far as they furnished a measure of the amount of homestead exemption. If there was in any state no law at all existing in 1871, "either potentially or in form," it is clear that the legislation of the section of the bankrupt law in question could not be applied to bankrupt estates in such states. I can see no other construction of section 5045 by which the provision last above quoted can be made to harmonize with the terms of the section immediately following, upon which the present case turns.
Let us now proceed to consider the constitutional question. With due deference, I venture to suggest that the judges who have discussed the constitutionality of this amendment have applied to it an erroneous test of uniformity. They seem to me to treat the question as depending rather upon the operation or working of the law, than upon its application according to its own terms to the various states of the Union. In my opinion, when a bankrupt, revenue, or naturalization law is made by its terms applicable a.liketo all the states of the Union, without distinction or discrimination, it cannot be successfully questioned on the ground that it is not uniform, in the sense of the constitution, merely because its operation or working may be wholly different in one state from another. The oircumstances and condi·· tions existing in the ,states of this Union ar,e infinitely various. No law which human ingenuity could possibly frame, would be uniform in the sense of operating equally or alike in the various states, with their different conditiqns and diversified interests. The constitution provides that "all duties, imposts, and exercises shall be uniform throughout the United States." Now, suppose one 01" more states should succeed in suppresl'ling utterly the manufacture and sale' of ardent spirits and malt liquors, then a federal tax upon these commodities would be entirely inoperative in such sta.tes. . In such case millions might be collected under an exoise law in illinois, and not a cent in Iowa. '1'he operation of such a law would then be anything but uniform in the two states; but would any oourt for that reason declare a general law imposing a tax of the kind unconstitutional? Again, a tariff law might be anything but uniform in its operation upon different states. It might foster the industry of a manufaoturing state and oppress that of a strictly agricultural state. But could it on this account be said to be not a uniform law within the meaning of the constitution, and therefore void? Suppose, again, congress should in a bankrupt law, as it did in 1867, adopt the homestead exemptions presoribed by state laws in force at a specified time; and suppose there should in some states be no law giving homestead ex· emptions, while in others such exemptions should by law exist,-then the operation of the bankrupt law would not be uniform with respect to the homesteads; but would it be for that reason unconstitutional? All that the constitution intends is that congress shall not pass partial revenue and bankrupt laws. It shall not prescribe one law for this state or section, and a different law for that state or section. The law must be general and uniform in its provisions, but its working and operation may be very different in different states, owing to
their diverse'-conditions and circumstances. Congress can prescribe a uniform law, but it cannot create uniform conditions and circum· stances in the various states of the Union. Now, applying these principles, I am not able to see that the amendment Of 1873 is unconstitutional. The amendment does not by its terms apply to any state or section. It is prescribed for all the states alike. Congress by this amendment prescribed by direct legislation in contravention of state laws the conditions upon which the bltnkrupt should take his These conditions are applicable to all the states without distinction. 'r,he act of 1867 provided that the bankt'upt should be entitled to the homestead allowed by the state of his domicile, in force when the proceeclings in bank. ruptcy were commenced, "not exceeding that allowed by the state exemption laws in force in 1864." It is clear that under this act one law of the state might the conditions of the right of homestead ancl another regulate the amount of property to be allowed. But in the' atnendment of 1873 the conditions are J;lroscribed directly by the act of congress, and the amollnt to be regnlated by the state law. The bankrupt law of 1867 has been-declared constitutional by the highest judicial authority in this circuit below the supreme court, in re Beckerfurcl, 1 Dill. 45. Now this act did not directly prescribe a home&tead It adoptoo the state laws regulating homesteads; If in one 'state there was by law no homestead,the bankrupt, under the act of 1867; ,would .get none, and the creditors would be entitled to all his property; while in another state, with a homestead law in force, the bankrupt would get the exemption and the creditors take subject to it. ThIS surely would not be uniformity in the working ol'operation of the law; nevertheless, such a law would be held uniform in the constitutional sense of tlle word. This view enables us, I think, to see clearly the unsoundness of Chief Justice Waite's 31:gument in Re Eckert, 10 N. B. R. 5. The burden of the chief justice's argument seems to be that a law of congress which adopts the exemptions under the state laws as they enforced in the states is uniform because the creditors get just what they are entitled to in pro rata distribution. They are enti'tIed to all the property of the bankrupt not exempt from exocution by the state law, and this they get in the distribution under a bankrupt law which adopts the state law. This is just, and it is uniform. That it is just, there is no doubt; that it is uniform, may be questioned. It will not do to confound the justice and uniformity of the law in t.lonsidering this constitutional question.
DAaLING. V. BERRY..
It follows, from Chief Justice Waite's view, that if there was in a state no law giving any exemption, the creditors would take the whole of the bankrupt's property. If the amount exempted ·in one state was large, and another small, the sum distributed to the creditors would vary accordingly ; bnt still they would get ,all they could have reached by the state execution laws. This argument is plausible, and it might be il'refragable if the creditors only were to be considered in judging of the uniformity of It bankrupt law. ,But if the question of uniformity is to be solved by considering the operation of the law on clt1ssesof persons, why are the bankrupts in the several states to be ignored any more than the creditors? Are not the, bankrupts to be provided for as well as the creditors? If there is no law in one state giving the bankrupt any homestead exemption at all, while in another state the exemption is trifling in amount, and in still another large, is there. any uniformity in the operation of a bankrupt law adopting such state laws, as far as the bankrupt is concerned ? If two bankrupts lived in sight of each other across a state line, and one held property under the law worth five or ten dollars and the other nothing, it would be hard to convince them that a bankrupt law working out this result wa.s uniform. in its operation. Manifestly, if the bankrupts in the different states are to, be considered, the argument of uniformity advanced by the ohief justice must be fallacious. " But I think it is open to another fatal objection. H the view of ihe;;chief justice be correct, it follows that congress could not by direct provision, without reference to state laws, prescribe the conditions .alid the amount of homestead exemption. For congress would, if it had no reference to state laws, be compelled to 'prescribe the same conditions and the same amount of exemption for all the states. This is self-evident. Congress,could not provide the different conditions and amounts for the different states. What would be the i-esult? The chief justice's t11eory of uniformity would be overthrown. The creditors in a state with no law giving a homestead exemption would not get in distribution what they are entitled to under the state law. They would be compelled to suffer a deduction equal to the amount of exemption engrafted by congress upon the bankrupt's estate. And so, whether the homestead exemption under the state laws were great or trifling would make no difference whatever to the creditors; all would be compelled to suffer the same deduction under the law of congre8s;none would secure under the bankrupt law, ilipl'O 1'ata,
distribution, what they would be entitled to exempt from execution under their respective state laws. Moreover, all estates, great and small, would be subject to exactly the same amount of exemption. In some cases, the exemption under the congtessionallaw might take the whole estate; in others, it would amount to a mere'trifle in proportion to the whole value of the estate. Now, will anyone seriously contend that congress might not in a bankrupt law fix the conditions and amount of homestead exemption without reference to state laws? I think not; and yet congress could. not do this if the chief justice's theory be correct, that uniformity in a bankrupt law consists in the equal and pro rata distribution among creditors of all the bankrupt's property not exempt from execution under the state aws. In the following cases the constitutional question seems to have been decided adversely to Chief Justice Waite's opinion: Be Beckerford, 1 Dill. 45; Re Jordan, 8 N. B. R. 180; Re Kean, ld. 367; Re Smith, ld. 401; Re Everitt, 9 N. B. R. 90 j Re Jordan, 10 N. B. R. 427; Re Smith, 2 Woods, 458. Finally, it is undeniable that the constitutional question involved in the case is a very doubtful one. The utter conflict of opinion and clecision in the 80uthern district is the best possible evidence of the doubt and difficulty which surrounded it. On the one hand we have the judgments of Chief Justice Waite, Judge Bond, and Judge Bryant, holding the amendment of 1873 to be unconstitutional j on the other, decisions of numerous judges sustaining the law as constitutional. Now what is the duty of any court with respect to a.la.w of doubtful constitutionality? Chief Jus11ce Marshall, in the Dartmouth College Case, 4 Wheat. 625, speaking for the whole court, said:
"'fhis court can be insensible neither to the magnitude nor delicacy of the question. The validity of a legislative act is to be examined, and the opinion of the highest law tribunal of the state is to be revised, etc. On more than one occasion this court has expressed the cautio\1s circumspection with which it approaches the consideration of such questions, and has decided that in no doubtful case would it pronounce a legislaLlve act to be unconstitutiona1."
So spoke the supreme court of the United States, by the mouth of its illustrious chief, concerning the constitutionality of a state statute, and this doctrine has been often reiterated by other courts and jurists. What, then, would it be becoming an inferior federal court to do touching an act of Congress, the constitutionality of which is, to
say the least, a subject of the gravest doubt? To disregard and set aside such an act as an infraction of the constitution would, I think, be in an inferior judge evidence of the most inexcusable presumption. There is no doubt that 'congress, in: this amendment, passed a sweeping retrospective law. Now, is there anything extraordinary in this, since all the bankrupt'laws are in their essence retrospective? The amendment. in question interferes with the relation.pf debtor and creditor, and works injustice to the latter. But the question with us is not the justice, but the uniformity, 'olthe law. . Ali bankrupt laws proceed upon considerations of policy and humanity, .rather tl,1an strict jl1stice. In this respect they are like statutes of limitations. Congress, seeing that the bankrupt was, with or without his consent, to be stripped of all his property for the benefit of his creditors, provided out of the wreck a shelter for his family. against all debts, . whether contracted before or after the passage of statehomeste.ad laws. Clearly there was no ground of equity upon which an exception could be made in favor of the creditor whose debt was contracted before the acquisition of the homestead in preference to the creditor wh-ose debt was contracted before the passage of the state homestead law. The first had no merit over the last. In. both cases the creditors had contracted with the bankrupts upon the faith of their entire property before any homestead existed. A state exemption law could not be retrospective becaUSE! it impaired the obligations of contracts. Therefore, a creditor whose debt was contracted before the passage althe state homestead law, equally with a creditor whose dated the purchase of the homestead, was entitled, by both equity and the state law, to satisfaction out of the homestead property. Both classes of creditors standing thus upon the same ground of equity and strict law, what reason is there to assume that congress intended to inelude one class and exclude the other in passing the retrospective amendment of 1873? Judgment for defendant. Judge McCRARY concurs.
original complainant, 8 plea W8!! put In setting up that it did not appear b:v the bill that the plaintiffs had ever been appointed administrators by a court of com-
PALMENBINGV. BUCHHOLZ. SAME 'U. BAUMAN. SAME V. HOHLWECK.
(Circuit Court, 8. D. New York. October 2, 1882.)
.A. patent for a dummy to display clothing In form, substantially like the wire dUrIunies i-n previous use, but made of papier maw, a material that had been previously used to mal!:e lay figures, representing various personages, many of whom were draped in suitable clothing, cannot be considered as valid because the device is destitute of patentable novcltv.
Frank V. Briesen, for complainant. Frost et Cae, for defendants.
WALLACE, C. J. These Eluits are founded upon letters patent No. 76,394, granted to W. E. Brock, and bearing date April 7, 1868, for an improvement in dummies for displaying clothing. Such devices are nsed by designers and sellers of wearing apparel to test and display the cut, style, and general appearance of the garments.ThEl specification describes the invention to consist of a shell of paper or papier macke, resembling in configuration the body of a human being, with legs and arms, if desired. A head-piece of wood or suitable material is secured in the neck or upper, end of the shell, into which is fitted a vertical supporting shaft, which extends centrally through the shell and is furnished at its lower end with an appropriate base. The shaft is provided with radial braces,which serve to retain the shell in proper position upon the shaft. It is designed to be an improvement upon the wire dummy in ordinary use for displaying clothing, and contains the same parts and arrangement of partR, except that the paper or papier mache shelf is substituted for the skeleton frame of the wire dummy. It is shown by the proofs that paper and papier macke had been used in constructing lay figures representing various celebrated personages, and was well known as a suitable material for that purpose previous to its use by the patentee. These lay figures were hollow, and the paper or papier mache was used to form the shell or exterior surface of the fig ares, but the faces and hands were usually made of wax. They were clothed with costumes appropriate to the personages represented. Inasmuch as the wire dummies did not contain the paper or papier machc shell, and the lay figures did not contain head-piece, shaft