The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1873-04-12

SATURDAY .............APRlL u. 1870 1870
fudge Rives on the New BanHIup'
Law. So
The Petersburg appeal of yesterday CON
ta,us the following bighly-interesting ana ''l'
portsnt telegram from Lynchburs
"LYscHBrRo, Va, April ~.
nr,.,o case Of Daniel p. Jones. bank
u,,,, who claimed homestead exemption
,,,r,n, rho ame1datory bankrupt law, Judge
,.i,.o. rendered his decision to-day, the case
r.ninr off ON the question Of jurisdiction,
Under the peculiar circumstances OIL the case
hsnkrup, having been previously discharged
and after such discharge claimed the exemp-
ton.
s,ory bankrupt act to be constitutional. and
bankrupts are entitled 10 homestead exemp-
t;on provided by the different State Constl-
iutions, however variant they may be, and
held that the exemption in Virgins must be
allowed, Notwithstanding the decision OF the
State Supreme Court against Its constitu'
t;onatv.
/" lie saws the amendment to the bankrupt
law passed March 8, 1873, is an eXtraordi-
nary one in all respects. 1t purports, IN
mart, to be a declaratory act. ibis court was
aware that acts were occasionally passed oy
Parliament dccaratory of the common law
and uuwritten law; but an act declaratory OF
The meaning and purpose of former ACT
seems to be an anomaly. and in what It de-
clareS to be the law seems to have no marx
or special significance.
"But there is another feature of that act
which is important. 1t not only declares
what the amendment Of June, 1872, was H.
tended to be, but it euacts what 1t shall be.
1t must be held as giving to the bankrupts IN
Virginia the bona tide homestead provided
in the Constitution of 1858, and the law
made to secure it. What the homestead prlvl-
lege is, of course, depends on the law OF the
State as interpreted by the Supreme Court
of Appeals OF the State, but the act OF Con-
gresS, approved March 8, 1873, makes some
changes i'm the homestead law of Virginia. II
exempts it as against debts contracted before
as well as subsequently TO the adoption
Of the Constitution of 1868. This APP
pears very reasonable and proper. 1t also
eyernpts it against all liens Of judgments
in the State courts. Why it had not EN-
braced also liens from deeds of trust, mort
gage. &C., this court cannot understand, be-
cause it can see no superior sanctity in the
lien Ct q deed Of trust over that OF JudS-
ment of court of competent jurisdiction.
Buttbe court must take the law as it is written
and give to the bankrupt in proper cases his
homestead exemption against old as well as
new debts, and against all liens and judg.
mefts in the State courts. Some general
principles might be Indicated.
"1st. 1t must be regarded as prospective
in its operations and speaking from the date
of its approval.
"2d. The homestead exemption must be
administered as a State exemption and in
accordance with State law, except so tar as
the act of Congress may have changed the
State law.
I'D. 1t cannot be allowed where the bank.
rupt has been discharged, having no fund in
the bands of the court out of which the al.
lowance may be made. 49,
9th. 1t cannot be allowed where rights
have teen vested, which it would be neces'
sary to disturb. as for instance where mans
lands have been sold for the benefit of cred
itors there is no part of the land to be eX.
cmpted, because it has been sold and the
rights of the purchaser must be respected
nor can the purchase money he exempted,
because that has already been adjudged as be-
longing to the creditors"
We understand this to be in every re-
spcct-without any exception whateFer-an
opinion which declares that the new bank
rupt law is exactly what the Dispatch has so
often declared it to be. We carelessly in
Guided deeds of trust and mortgages in one
article, but we excluded them immediately
afterwards in these words:
We do not think, after more careful
examination of the law, and more reflection
llpon tue consequences of dlsregarding
them, that deeds of trust and mortgages
were intended to be included even in the
sweeping words of the new law, nor that
the Federal judges will be able to construe
il ns 10 include them in different sense from
that in which they We're subject to the pro-
visions Of the old law, albeit they may scru.
,inlze them more closely, aud find more Of
them to be tainted with fraud.
As 10 judgment liens, zoe see no posi-.
btltyof sauing them under the me,o ld,o.
Judge RlvEs says: at eXempts it (the
homesteaD against all liens Of judgments
in the State courts"
We said 10 Of:
We would like for Of" to tell us how he
could sell any mans property under a lien
by judgment or decree Of any State court y
if the party choose to apply to q Federal
Judge for an injunction. We offer IF" the
use of our columns to make the explanation
and promise not to say one disrespectful word
in reply. We dislike exceedingly to find
ourselves in the wrong but we wish to be
sci right as soon as possible. Let. us hear
from you.
Judge RIvEs has answered for Of"
We said to Mr. HUGHEs:
Finally, the bankrupt court will hardly
look to the title of the act, nor to the inten
ton of Congress except as that intention
may be inferred from the words of the law
to learn what the new bankrupt law means
That were to give to even such Judges a.
UNDERWOOD the right to infer too much
They might infer that Congress intended K
10 many things which it has never done, ant
to exempt much more or much less than
has exempted. Ita lea scraptG est" thu
the law is written "--is the rule which vii
govern the court.
Judge RIvts says:
"But the court must take the tG,o as II 4
qcritten, and give to the bankrupt in prope
eases his homestead exemption against oil
as areH as neao debts, and against oil liens O
iudqrnents en- the State courts"
Again, we said to Mr.. HUGHES:
The law was changed from what judge
Rives had decided 1t to be. II not, he will no
have to reverse his decision. We say, then
it was changed and an sohateoer respects /,
qeas changed the ne,o la,r repeats the old lar
This simple statement of the case oyerthrows
..,lx rs.