The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1873-03-26

Editor Of Dispatch:
Dear Sir,--Your construction of the bank
| rupt law is so anomalous to my mind, and so
| calculated to do harm, owing to the large
circulation of your paper, that l have been
| tempted TO submit the following view OF
what the law IS:
The bankrupt law as amended June 8,
| 1872, reads rs follows: "And such
other property not included in the foregoing
exceptions "a 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 domicil at the time of
the commencement of the proceedings IN
bankruptcy to an amount not exceeding that
allowed by State exemption laws in the year
1871"
Tie act of February IS, 1873, provides
that said exemptions "shall be the amount
allowed by the Constitution and laws OF each
State respectively as existing in the year
1871
It will be seer at once that the latter act
provides that the exemption ''shdH be the
amount" exempted in 1871, and the former
| act provides that the exemption shall not err
| ceed the amount exempted III that year.
| These two provisions are entirely consistent
| with each other, and they are therefore both
part and parcel of the bankrupt law, one
being simply explanatory of the other.
The word " amount" is the identical word
used in the bankrupt law as enacted in 1867,
and has exclusive reference to property.
| This word was used to fix the bankrupts
exemption at and limit it to the property
| or the amount Of property that was exempted
by State laws in 1864, and afterwards in
1871, the exemption in all cases being mea-
| h,t h, totn t,,vc Sn
clear that the last, or Hushes's, amendment
has effected no practical change in the law,
| as it simply declares the intent Of Il former
amendment, and enactS that the exemption
| shall be in accordance with that intent. Bar
ring the homestead decisions of the courts,
State and Federal, and taking as our guide
| the letter of the Constitution and laws In
pursuance of the same. it is evident that
| bankrupt would be entitled to the homestead
exemption; but it is no less evident that he
| would take this exemption subject TO all o!
| the exceptions incorporated in the law that
| created it; and if in assigning these eX-
| emptionS one of these exceptions should
he ignored the bankrupt would have eX-
emptGd to him property to all amount "eN-
| cetdlng that allowed by such State eNcmp-
ton laws in force in the year 1871, - and the
very letter of the bankrupt law itself would
be violated. But decisions OF courts INFER
vencd aud destroyed the Retrospective tea-
turc of the homestead exemption, and TO
retain this feature it was necessary to add the
concluding paragraph to the last amendment.
This paragraph does not alter the amount OF
the exemption. but it simply explains INC
validity of the same, declaring it TO be valid
against /" debt" and against liens by Jud.s-
ment or decree Of any State court" As 10
debts, it operates both rctrospeclNc'y ana
pro>rcctivcIy in express terms, Dut lis 10
| ''HCnS" it has no express retrospective lea
ture, and hence must DC construed proSlcc-
lively.
But against what liens is this exemption
valid? Against liens by Judgment or de-
cree" only. Not against DEGREES OF state
courts, but against the. specified "henS.|
Ordinarily, DEGREES constitute no lien, but
are sought to enforce "liens.o A decree
does not strengthen Il Judgment lien, ven
doris lien, trust lien, or any other lien, ana
it certainly does not impair these liens. But
DEGREES are frequently obtained against par
ties for specific amounts, and executions arc
directed to he issued on same. Such DEGREES
ascertain debts and have the force of Judg-
ments. They are docketed. and constitute
lien upon realty.
The words LIEN by judgment or decree"
have reference, then, manitestly to the liens
of judgments and of such DEGREES as have the
force of judgments, for no other deerces con-
stitutc liens.
1t seems to me that this is the Legitimate
construction of the statute in pursuance OF
that elementary rule in the construction OF
statutes, " that every section, provision, and
clause of statute shall be cXpoundcd by n
reference to every other''; for, as an able
jurlst expresses it, "the most general and
absolute terms Of one section may be quail
fled and limited by conditions contained in
another, so that all may stand together"
In conclusion, would add that the bank
rupt law nowhere gives to the Federal courts
the power to interfere with the attached
jurisdiction of a State court. Section OF
the act of 1893 expressly prohibits this inter-
ference, and that this section has not been
anywhere repealed, either in express terms
or by implication, is asserted by numerous
aud recent Federal decisions, to say nothing
of the rulings Of State tribunals.
If, then, the jurisdiction OF the State court
has attached prior to the filing of the petition
in bankruptcy, the liens will be administered
in that court and under the laws Of the State.