
    Henry Jones, administrator, plaintiff in error, vs. Thomas T. Brandon, defendant in error.
    (Atlanta,
    January Term, 1873.)
    Homestead Act — Constitutionality of. * — Under the decision of the Supreme Court of the United States, in the case of Gunn v. Barry, the homestead clause of the Constitution of 1868 is in violation of the Constitution of the_ United States, in so far as it authorizes the homestead and exemption therein provided for to be set up against contracts made before the adoption of said Constitution of 1868.
    
      Homestead. Before Judge Gibson. Richmond Superior Court. 'October Term, 1872.
    This case was submitted to the jury upon the following state of facts, subject to direction from the Court:
    “That on the 5th of December, 1853, Cornelius A. Red was appointed administrator, with the will annexed, of Green B. Red, and executed a bond for $50,000 00, payable to the ^Ordinary of Richmond county, with Augustus H. Roe, Lewis Lovell, Frederick R. Shaw and Thomas T. Brandon, as securities.
    “That the securities, becoming alarmed, applied to be discharged from their liability, which was granted them — Frederick R. Shaw, May 4th, 1857, Augustus H. Roe, August 3d, 1857, Lewis Lovell, August 3d, 1857, and Thomas T. Brandon, July 5th, 1858.
    “On the 5th of July, 1858, Red was also discharged as administrator, upon failing to give additional security, and died July, ...., 1868, without accounting, as administrator, for property in hand.
    “Henry Jones was appointed administrator de bonis non of Green B. Red, with the will annexed, and instituted suit against the securities on the bond of C. A. Red, to recover $3,729 76, amount returned by C. A. Red, as in hand, in money, at the time of his last return, July 6th, 1857. Judgment was rendered against all the securities, June 13th, 1871, for $3,729 76, the amount in hand of C. A. Red, except Shaw, against whom judgment was rendered for $1,000 00.
    “On the 3d of July, 1871, garnishment process was taken out on this judgment, and a summons served on Alfred W. Shaw, a debtor of Thomas T. Brandon, on a note past maturity.
    “On the 4th of August, 1871, Brandon, filed his application for homestead, and claimed in addition to the real and personal property therein set forth, a note of Alfred W. Shaw, due to him, to reach which the garnishment proceedings had been taken out, and which was then in the hands of H. C. Foster, Esq., attorney for Brandon, for collection.
    “By agreement of counsel, the note was collected by Mr. Foster, and the money held subject to the order of Court, to await the decision on the homestead application and garnishment proceedings; this note, after deducting the counsel fees for collection, leaves on hand the sum of $634 00.
    “It was agreed between counsel that the homestead and *garnishment question should both be determined in the one issue.”
    After argument had, the Court ordered a verdict to be taken as follows:
    “We, the jury, find for the applicant so far as the realty is concerned, and set aside so much of the note or the proceeds thereof as will make the schedule of personalty aggregate $1,000 00 in gold, that is $460 00 in gold be added to personalty.
    (Signed) Toseph T- Davenport. Foreman.”
    
      To the ruling of the Court in directing the verdict aforesaid, plaintiff in error excepted.
    Frank H. Miller, for plaintiff in error.
    H. Clay Foster, by Barnes & Cumming; Samuel F. Webb, for defendant.
    
      
      Homestead Act — Constitutionality of. — In Stuckey v. Watkins, 112 Ga. 269, 37 S. E. Rep. 401, principal case cited as reversed by Gunn v. Barry, 15 Wall. 610.
    
   McCay, Judge.

However decided may be my personal protest against the decision of the Supreme Court of the United States in the case of Gunn vs. Barry, yet, as that Court, upon questions of this character, is an appellate tribunal, having power under the laws to review and reverse the judgments of this Court, I feel it to be my duty to conform my judgments in other cases turning on the same point to that decision. It is argued that this case differs from Gunn vs. Barry — that then there was a judgment — a vested right in Gunn before the Constitution of 1868 was adopted, whilst in this case the plaintiff has only his note.

It is true that the decision alluded to does say that the effect of the Constitution of 1868 is to divest a vested right in Gunn, but that must be taken as only collateral to the main point. The right of the Supreme Court to pass upon the question at all depends entirely upon the supposed antagonism between the homestead law and that clause of the Constitution of the United States which declares that no State shall pass any law impairing the obligation of contracts. If our homestead law *does not do that the Supreme Court has nothing to do with the question. A State may, as that Court has formally held, divest a vested right if it so please. The Constitution of the United States does not at all interfere with its right to do so, provided that right is not vested by contract. It follows, therefore, that if the decision of Gunn vs. Barry is right —and we must take it to be so — it is only because the homestead law of Georgia, so far as it relates to debts contracted before its passage, impairs the obligation of the contract between the parties. That contract was made at the date of the note, and does not depend on the judgment. There is, therefore, nothing in this case to distinguish it from the principle decided in Gunn vs. Barry, though it is true that the decision there covers other grounds.

I dissent myself from the opinion of the Court on all' the grounds it takes, but as I have said, its judgment' upon that ground, which it was authorized to pass on, is controlling, and I feel bound to conform to it in like cases.

Judgment reversed.  