The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1875-06-04
LOCAL MATTERS.

provided by sections /, B, 16, and II
of chapter 1873 of the Code of Virginia
is good against the. lien of an execution
on personal property, and a court of bank.
ruptcy will grant the homestead exemption
10 goods on which the execution lien attach.
ed before the adjudication of the bankrupt;
certainly where there was no levy or SALE"
| The Judge states the case and bis opinion
of the law ss follows:
"At the November term (1874) of the Cir
cult Court of the city of Petersburg T. l..
johnson sued out an execution against the
goods and cbattels Of one Nelson and of
Lemuel PEBBLES (this bankrupt) jointly,
which went into the sergeant's bands on the
9Th Of December, 1874.
son the 21st of December, 1874, PEBBLES
filed bis petition in bankruptcy, and was
thereupon duly adjudicated a bankrupt. At
terwards-to wit: on the 30th + Dece nber,
1874 the execution was levied by the SER
geant upon certain personally of PEBBLES,
specified in the return of the sergeant made
at the March rules of 1875; which person
atty would otherwise be exemptable in lieu
of homestead exemption to the said Pee
bles.
"The only question arising in this case is
whether the bankrupt's claim of exemption
in lieu of homestead is good against an exc
cution lien where the levy was not made un-
til after the adjudication in bankruptcy. AS
the levy after that time was yoid-see re
Davis Us. Anderson, B. H., 145 Bumps
Bankruptcy, Ed, p. 153-(the estate of the
bankrupt having passed into the custody OF
the Federal court bound by lien but free
from all interference by the officers of other
courts,) the more direct question is, Whether
tln "a in nJ,,ct
the lien OF an execution? This question
must be decided upon the laws Of Virginia,
for the homestead is given by the national
bankruptcy law only in cases where it is
given by the law of each State.
The Constitution of Virginia provides
that "eYery householder or head of family
shall be entitled to hold, exempt from levy,
seizure, garnisheeipg, or sale under any exc
cution, order, &c., real or personal property
not exceeding $1,000 in value" to be selected
by himself. IL authorizes the Legislature to
provide how this benefit may be obtained
and enjoyed by any law which shall not
defeat or impair the benefit of the proyi.
sion. In pursuance Of this authority the
Legislature has provided, with some minute
ness, the manner in which this benefit
shall be claimed and secured in re-
spect to the householder's real estate, but
has not made such explicit special provi-
sion as to personally, doubtless from the
impracticability of doing so. But it has pro-
vided in respect to personally, in sections 16
and IL Of chapter 1873 of the Code, how the
householder may, alter execution sued out
and levied, and even after sale, secure from
sale or after sale any personally which he
may select aud designate as an exemption to
the amount allowed by law. Section Of
the same chapter Of the Code provides in
effect that though this personally may be
subject to the liens of mortgages, deeds OF
trust, or executions, the 'cIaim of the home
stead" shall be good against such "last-
named lien." 1t seems TO me, therefore, to
be trifllng with the subject to contend, in
view apd in despite of the express language
of section l of article xi. Of the State Consti-
tuition, and sections l, 5. 1G, and II Of chap
ter 1873 Of the Code, that the lien OF an exc
cution, whether levied or not-certainIy
when not legally leyied-is good against the
homestead.
Courts have no more right than private
citizens 10 disregard the statute law of the
land, and the arbitrary individual Judgment
Of judge can be no more rightly exercised
against q plainly.Wrtten and constitutional
law than that Of a private citizen.
The goods mentioned in the pleadipgs in
this case must be set part to the bankrupt
notwithstanding the execution lien held by
Il. L. Johnson.