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Counsel for Parties.
could only be ascertained and determined in the manner provided by law, and not in the first instance by a jury empanneled to try the questiça of title. The court, in deference to the opinion of the Supreme Court in this case, admitted the testimony. Morrison v. Watson, 95 No. Car. 479.
"The counsel for the plaintiff requested the court to charge the jury 1st. That there was no evidence that the defendants were worth in June, 1879, $1000 and the judgment, interest and costs, amounting to $83; 2d. That upon the whole evidence the plaintiff was entitled to recover. The court declined to so instruct the jury, and the plaintiff excepted.
"The court then instructed the jury that they could consider the whole evidence, and, after ascertaining the value of the land per acre in June, 1879, they should make a calculation as to its total value. The court then explained to the jury the issues, and the way in which the testimony should be considered with respect to them; and instructed them that they could consider the return on the execution in passing upon the question whether the defendant had other property than the land covered by the sheriff's deed; and that to recover in this action the plaintiff must show by a preponderance of the testimony that the defendant's land was worth in June, 1879, less than $1000, and the amount of the judgment, interest, and costs, amounting to $83, and that the defendant had no other property which could have been sold to pay the judgment. Miller v. Miller, 89 No. Car. 402.
"The jury found the first and second issues in the negative. Motion for a new trial for reception of the evidence objected to, and for refusing the instruction asked, and for error in the instruction given. Motion denied. Judgment in accordance with the verdict. Appeal by plaintiff." The Supreme Court
of the State, on November 12, 1888, affirmed the judgment. 101 No. Car. 332. The plaintiff, on September 4, 1890, sued out this writ of error.
Mr. Frederic D. McKenney, (with whom was Mr. S. F. Phillips on the brief,) for plaintiff in error.
Mr. W. W. Flemming for defendant in error.
Opinion of the Court.
MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.
The ground on which it was argued in this court that the judgment of the Supreme Court of North Carolina should be reversed was that, the debt, in execution of the judgment upon which the land was sold to the plaintiff, having been contracted before the constitution and laws of the State exempted a homestead from execution, the obligation of the contract was impaired by the statute of North Carolina, by which, as construed by the Supreme Court of the State, such a creditor is obliged to levy his execution, first, by sale of so much of the debtor's land as is not within the homestead exemption, and afterwards, if necessary, by separate sale of the rest of the land.
But the difficulty is that it does not appear that any objection to the constitutionality of the statute was taken by the plaintiff in the courts of the State. On the contrary, he appears to have assumed that the statute was constitutional and valid; and that, if the land, at the time of the sale on execution in June, 1879, was not worth the sum of $1083, made up of $1000 for the homestead, and $83 for the amount of the judgment, he could not recover.
At the trial, after proving his title under the sale on execution, he himself introduced, against the objection and exception of the defendant, evidence that the lands were worth less than that sum. The only instructions which the plaintiff asked, and to the refusal of which he excepted, were the specific one" that there was no evidence that the defendants" (apparently meaning the defendant's lands) "were worth" that sum, and the general one "that upon the whole evidence the plaintiff was entitled to recover." The instructions given. were not excepted to, and it does not appear for what supposed error in them a new trial was moved for and refused. The plaintiff, therefore, up to the time of judgment in the trial court, does not appear to have insisted that the levy under which he claimed was valid if the estate was worth more than the sum aforesaid, as the jury found that it was.
Opinion of the Court.
Nor does it appear that he brought any constitutional question before the Supreme Court of the State. No reasons of his appeal to that court are stated in the record; and the official report of its opinion shows that no counsel for the plaintiff argued the case before that court. 101 No. Car. 332, 335. Under these circumstances, the fact that in that opinion the construction and validity of the statute were treated as settled by the ruling in the earlier case of McCanless v. Flinchum, 98 No. Car. 358, and were restated by way of explanation of the defence at the trial of the present case, falls short of showing that there was any real contest at any stage of this case upon the point.
In order to give this court jurisdiction of a writ of error to review a judgment of the highest court of a State, on the ground that it decided against a title, right, privilege, or immunity claimed under the Constitution or a treaty or statute of the United States, such title, right, privilege, or immunity must have been "specially set up or claimed at the proper time and in the proper way. If it was not claimed in the trial court, and therefore, by the law and practice of the State, as declared by its highest court, could not be considered by that court; or if it was not claimed in any form before judgment in the highest court of the State; it cannot be asserted in this court. Rev. Stat. § 709; Spies v. Illinois, 123 U. S. 131, 181; Brooks v. Missouri, 124 U. S. 394; Chappell v. Bradshaw, 128 U. S. 132, 134; Brown v. Massachusetts, 144 U. S. 573; Schuyler National Bank v. Bollong, 150 U. S. 85; Miller v. Texas, 153 U. S. 535.
The judgment of the Supreme Court of North Carolina in this case appears by the record to have been rendered on November 14, 1888; and it is perhaps significant that this writ of error was not sued out until September 4, 1890, after that court in Long v. Walker, 105 No. Car. 90, had changed its opinion as to the validity and effect of the statute.
Writ of error dismissed for want of jurisdiction.
MR. JUSTICE WHITE, not having been a member of the court when this case was argued, took no part in its decision.
Opinion of the Court.
In re LOCKWOOD, Petitioner.
No number. Submitted April 24, 1894.- Decided May 26, 1894.
It is for the Supreme Court of the State of Virginia to construe the statute of that State which provides that "any person duly authorized and practising as counsel or attorney at law in any State or Territory of the United States, or in the District of Columbia, may practise as such in the courts of this State," and to determine whether the word "person," as therein used, is confined to males, and whether women are admitted to practise law in that Commonwealth.
THE case is stated in the opinion.
Mr. Joseph Christian for the petitioner.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
This is an application by Belva A. Lockwood for leave to file a petition for a mandamus requiring the Supreme Court of Appeals of Virginia to admit her to practise law in that court. Mrs. Lockwood has been for many years a member of the bar of this court and of the Supreme Court of the District of Columbia, and also, she avers, of the bars of several States of the Union. Her complaint is that she recently applied to the Supreme Court of Appeals of Virginia to be admitted to the practice of law in that court, and the court denied her application, notwithstanding it is provided by a statute of that State that "any person duly authorized and practising as counsel or attorney at law in any State or Territory of the United States, or in the District of Columbia, may practise as such in the courts of this State." Code Va. 1887, 3192; and she alleges that the only reason for the rejection. of her application was that she is a woman. It appears that no record was made of the refusal complained of, but she
Opinion of the Court.
presents a certificate of the clerk of that court to the effect that the application was made and rejected, though “no order was made at the time." Nothing is stated in the papers before us as to the residence of the petitioner, whether in the District of Columbia or in some other State than the State of Virginia. Our interposition seems to be invoked upon the ground that petitioner has been denied a privilege or immunity belonging to her as a citizen of the United States, and enjoyed by the women of Virginia, in contravention of the second section of Article IV of the Constitution and of the Fourteenth Amendment.
In Miner v. Happersett, 21 Wall. 162, this court held that the word "citizen" is often used to convey the idea of membership in a nation, and in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the Fourteenth Amendment of the Constitution as since; but that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the Fourteenth Amendment, and that amendment did not add to these privileges and immunities. Hence, that a provision in a state constitution which confined the right of voting to male citizens of the United States was no violation of the Federal Constitution.
In Bradwell v. The State, 16 Wall. 130, it was held that the right to practise law in the state courts was not a privilege or immunity of a citizen of the United States; that the right to control and regulate the granting of license to practise law in the courts of a State is one of those powers that was not transferred for its protection to the Federal government, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license.
Section 3192 of the Code of Virginia quoted in this application is one of twelve sections constituting chap. 154 of that Code, entitled, "Of Attorneys-at-Law Generally." Section 3193 reads: "Every such person shall produce, before each court in which he intends to practise, satisfactory evidence