The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1873-11-27
From the Lynchburg Press.
Bankruptcy.

| In our last number we stated editorial!
that Judge Rives was proceeding to set asid
homesteads to bankruats without regarding
the opinion Of Judge Fond refusing such ex
emptions when there were liens upon thu
real estate, acquired prior to June n, 1870
the date of the passage of,the, act Of the Gen
eral Assembly carrying the Virginia home
stead into effect. We have learned from {
reliable source that We are misiniormcd, ane
that Judge Riyes will not disregard the opin
ion Of Judge Bond Of the Circuit court, al
though it is directly the contrary OF Judge
Kiyes decision rendered at Harrisonburg il
tbs propes case. After reading The opinion
of Judge Bond in the matter OF billiard pro.
nounced recently in Richmond, we have nc
doubtfthat Judge Riyes would haye refused
the homestead exemption, had that case come
before him. 1t appears that Billiards prop
erty was encountered by deeds. Of trust, (which
though held fraudulent as to the creditors
preferred, were yet binding upon the. bank
rupt, and precluded hin from obtaining ex-
emptions out o. the same under any clrcum-
stances whatever. o. 8
Itappears from Judge Bonds published
opinion. that he has gone beyond the ques-
ton involved in the cases at bar, none OF
which were fled since march 3, 1873, the
date Of the amended bankrupt act, and held
that no homestead exemption is to DO allow
ed bankrupt to the extent that his lands
are encountered by Judgment liens acquired
prior to June q, 1870, the date Of the pas
sage Of the homestead act Of the General As
sembly exactly the reverse Of what Judge
Rives held 10 the Propes case. It will be
observed that this question was not before
Judge Bond, and therefore his opinion upon
the point is an abiter dictans which, although
the judge Of az inferior court is not compell-
ed to follow and abide BY, should still be
considered and weighed with all due defer
ence and respect by subordinate tribunal
This dictum Of Judge Bonds having been
dropped in this way, no appeal can be taken
to the Supreme Court Of the United States,
because there is. 90 case with record con.
tanning the points in question, which can be
taken up to that court. The only course
that remains opensto make up case, the rec
ord of which shall contain the points in
question. take it before Judge Bond, get him
TO decide the matter more speedily, and if
decided adversely to the opinion Of Judge
Rives, and the Judges Of the District Courts
Of Missouri apd Tennessee, appeal at once
to the Supreme court of the United States,
where We have no doubt whatever the ques-
tion will be finally ADD quickly decided in
conformity With the opinion Of the Judges of
Missouri, Tenness, e, the Eastern District of
Virginia, the Attorney General Of the Uni
ted States, advising the President of the
coDstitutionalty Of the act bofo,e he signed
,t,) and Judge Rives In the meaatime our
bes bankrupt practitioners believe that
Judge Rves, although not legally bound by
the Glitter dictuna Of Judge Bond, will yet,
from feelings Of courtesy and respect, decline
to grant homesteads to bapkrupts Of the class
which Judge Bond consider not to be enti-
lied thereto aud decline also to allow their
nomesteads to be sold in obedience to the O.
pinion Of Judge Bond-in a word, that be
will do nothing to advance or prejudice the
interests Of bankrupts Of this .lass until the
question can be definitely settled in the man.
ner we have above Indicated. -
1t will he further perceived that Judge
Bond holds that no bankrupt who was ad-
Judged such before March g. 1873, will bs
entitled to the Virginia homestead, allowed
bankrupts By the act oft date, basing his
opinion on the idea that the rights Of bank
rupts to exemptions are determined by the
bankrupt law as in force and existing at the
dates at which they went into bankruptcy.
Judge Rives, on the contrary, held in the
cases Of Kean, White, and others, decided at
Dan7ille in September, 1873. that tho right
Of bankrupt, adjudged such prior to March
3. 1873, to a homestead exemption, defended
upon two contingencies aa
/ LIST. He must ret have obtained final dis
charge before applying for such enlarged ex-
emption. .sa .y, ~,
2. Upon the further contingency, Of s'the
existence ofan unappriaied fund out Of which
the claim to homestead can be satisfied with
out the infringement of rights vested 10 9TH
ers, by decree or otherwise" (Seethe opin.
ion.)
Therefore it will be seen that Judge Rives
holds that the right of a bankrupt adjudged
such prior to March 3, 1873, to d homestead
exemption depends not upon the date Of adj
Indication, but upon the two concurrent facts
| of his not having received a final discharge,
| and having an anappropriated fund under
| control of the court, out of which such ex-
emption can be granted.
This decision OF Judge ond Bupon this
point cannot be reviewed in the case of Dill
lard upon appeal to the Supreme Court, be-
cause billiard as aforesaid, having made fraud
ulent deeds cf trusts, aud being clearly enti-
tied to no exemptions, the Supreme Court
could not consider matters extraneous to the
record, and would decide that j Judge Bond's
refusal to grant homestead to said bank
rupt was proper and right, and could moi
touch upon his obiter dictans as to the right
to homestead depending upon the date o
adj Indication in bankruptcy. Hence it viii
be necessary also to make up special cas-.
involving this point, decided differently BY
Judges Rives and Bond, and carry that like
wise before Judge Bond and the Suprem,
Court in the same manner as before indica
ted. TIE interests Of both baukrupts auc
creditors demand alike that these vital aues
tions shall be speedily determined, AID VI
trust that steps will at once be taken by par
ties interested looking to that end.
! We republish in apother part Of our pape
to-day the opinion Of Judge Bond, and ap
pend hereto the amen dment act OF March
1872:
THE AMENDMENT TO THE BANKRUPT Law
The following is the amendment to tn
Try kruy,t Irm y>os,a<1 IL,