Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1868-10-23
IMPORTANT TO BANKRUPTS.
Opinion OF Judge Brooks I'm the Matter Of
Assigning to- Bankrupts u Homestead.

At CHAMBERS, AT ELIZABETH CITY, N. c., Sep
tember 4th, 18G9.-In the matter of A. d. Bank
rupt.
BY the certificate of VIM. a. Guthrie, Register,
of the Oath July, 18GS this question is presented
Can real estate be set apart by the Assignee to
the Bankrupt, IN case OF deficiency in other pro-
perty or effects, to answer the exemptions provi-
ded for by law?
have examined with care the authorities cited
by the Counsel representing the creditors who
except to the report of the Assignee. And have
also read with interest the argument filed by the
Attorney for the Bankrupt. The question has
often arisen and given rise to animated discus
sion in my presence, but is now for the first time
presented under the provisions OF the Law for de-
cision. l am we'll satisfied that fair and proper
construction of that language used in that part OF
the Bankruptcy act which relates to eX-
emptions, as we'll as the true spirit and
objects of the Law, will not justify or
authorize the action Of the Assignee In the case.
The terms "other articles aud necessarles," as
used in the act, cannot be construed as to en-
brace land, without doing violence to every mean
| ing heretofore allowed those terms. 1t is quite
clear, think, that If among the property OF the
Bankrupt none or not enough OF the article spe-
officially mentioned in the act to be exempted be
| found, then the Assignee may report as exempt
cd other d" article and LeCessaries " to make up
| the amount required, or the deficiency las the
may be,) IN the opinion OF the Assignee -
The whole not to exceed under any clrcuulstancc
| the value of Five Hundred Dollars. the suggcs
| ton of the Counsel for the BankrupL would nave
| much weight II 1t matter OF discretion. Bu
| the Court can sooner award an article Or klnt
! OF property, not properly embraced Within th'
terms used according to Z. fair instruction, thai
it could exceed the sum prescribed The exemp
| tiOns provided tor by the bankruptcy act origin
| ated from the same spirit that prompted the en-
| actment of our Legislative provisions IL favor
! Widows of Intestatee, awarding them pToYislons
| for their temporary support and as thAG law re
etricts the commissioners III the kind or species
| OF property he shall exempt. Nowlt often occurs
| that this all important purpose Of the LaW would
| be defr ated, Ii under 10 circumstances none!
| could be exempted to q Bankrupt. Yet, from -ht
| language of the Law, II motley could not be con
struQd to be article or necessary, II wOuld Et
! quite clear, think, that money could not be al
| lowed. But it is clear that money may be allowed
for it not nnfTequently occurs that money IS quite
| as necessary to the temporary subsistence OF 8
| Bankrupt, and his family any article that car
! be mentioned. As the widow of lntestate rpOL
the granting Of administration Is presumed TO be
entirely destitute OF such articles and provisions
| as are necessary for her support, so the Bank.
! ruptcy ACT presunes that every man who has
| been adjudged q bankrupt has sworn truly and
| has surrendered all his property and estate
Then if this be correct he is alike destitute. Nov
| suppose the Bankrupt has been d merchant, s
| banker, and has surrendered large estate IL
''Choses in Action and money, but not having
| been housckeeper (but from choice, from mo-
| tive OF economy or otherwise), he and his family
| consisting of wife and children, have been In
| mates OF d boarding ho0se-he does not own a
bed, q chair, or any article OF provisions, con
| sequently there is nothing OF the kind III hii
| schedule-surey it could not be successfully con
tended that some money would not be necessary
| for the temporary subsistence Of such family
Under these circumstances money may DO cX
| empted.
The Assignee must advertise ,he real estate
| mentioned IN his report exempted, and sell thu
! same to the highest bidder, ana apply the pro
| ceeds as the law directs.
Let this be certified.
| c. W. BRooxs,