The Montgomery advertiser., 1901-10-24
JUDGE JONES'S OPINION
A DECISION WAS HANDED DOWN
 YESTERDAY.
In the Bankrupt Case of E. A. Moore, Referee Stratton Was overruled. Pertains to Claims of
 Exemptions.


 lis first opinion as Judge of the United States District Court for the Middle and Nort,ltln District of Alabama yesterday in tankrupt case. The case Is of far reaching importance inhsmuch as Judge Jones holds that waiver note. unless 1t has been reduced fer judgment, etc., his exemnticn.
 Moore, who was adjudicated a bankrupt on his own petition October 1, 1901. He returned no property except wearing ap- parel valued at $40 and claim for sai- ary of $95 which the trustee collected. The bankrupt claimed the property as exempt
 Marcus and Kctzky proved notes against the bankrupt of recent date te waiver: T hereby waive all rights. which I may have under the Constitution and laws of this or any other State to claim or hold any pel sonal property exempt tion.'' Referee Stratton on motion or the creditors mentioned ordered the trustee to pay over this money to the holders of the waive notes; aon. Ihe . sann- nn- pealed to. He rendered a decision Tn which he overruled the decision of Ref cree stratton, who followed . former The The opinion in fuli is as foliows: United States District Court for Middle
 District of Alabama.-In re Moore.
 1, In Alabama, waiver of personality included in a promissory note. which is allowed as a claim against the bankrupt but has never been put in Judgment, can not defeat the bankrupt's right Of exemp- ton. In re, Garden l. N. B. N. 1ss over ruled.
 Case.
 Al hnS r. rupt on his own petition on October 1st 1sel. He returned no property except wearing apparel valued at $40.o0, and claim for wages to the amount of $500 which the trustee collected. The bankrupt claimed this property as exempt. Marcus & Ketcky proved notes against the bank rupt of recent date, amounting to $102S9. which contained this waiver: II hereby waive all right. which I may have under the Constitution and laws of this or any other State, to claim or hold any per- sonal property exempt to me from levy and sale under execution" The referee. on motion of Marcus & Ketzky, ordered the trustee to pay over this money to the holders of the waive notes. The bank rupt excepted. The referees ruling IS now before me for revision.
 Opinion.
 Jones, D. J.
 The ruling of referee (Stratton) was in- duced by the decision in Re Garden. in the Southern Division of the Northern District of Alabama, February 10. 1899. l N. B. N, page 1S9. As my conclusion necessitates the everything of that de- cision. it seems proper to consider the question at some length.
 Section l of Article x of the Constitu- ton of Alabama, provides, "The per- sonal property of any resident Of this State to the value of $1,000.00O. to be se- lected by such resident, shall be exempt from sale on execution or other process of any court. issued for the collection of any debt, contracted since the 18th day of July 1888, or, after the ratification or this Constitution" Section of the same Article declares that the right of ex- emption heretofore secured" may be waived by an instrument in writing" The Code of Alabama enacts that the waiver as to personality may be made by sepa- rate instrument in writing, or may be in cluded in any bond. promissory note or other written contract. The Code pre- scribes specifically the, mode and manner of enforcing this waiver. The fact of waiver and its extent must be averred in the complaint, petition or bill, and the fact of waiver and its extent must be de- clared in the judgment or decree, and en- dorsed on the execution or other process
 
 issued thereon.
 As the waiver is of a constitutional right, and may destroy exemptions which 1t Is the policy of the bankrupt law to preserve and enforce-the statutes regard ing the waiver and It's enforcement must be strictly construed. The statutes re- ferred to carefully point out and pre- scribe the remedy for the enforcement of this waiver, and the mode thus prescrib- ed Is necessarily exclusive. No court has power to substitute other methods of it's own. Janney " Buell., 55 Ala, 408.
 In the present case. the waiver note has never been sued on, nor has the fact and the extent of the waiver ever been ascer- tained by judgment of any court. Upon what principle. then. can the waiver in corporated in the note, but never yet as- certained or declared by judgment of a court. be allowed to defeat the bankrupt S exemptions? The State exemption laws, as construed by the highest court of that State. determine when and to what ex- tent the bankrupt may avail himself o< exemptions. Citation and analysis of de- cisions in other jurisdictions would serve no useful purpose. The case in hand must turn wholly upon the Alabama statutes and their exposition by its Su- preme Court.
 It can not be said that the waiver, not ascertained by any judgment, constitutes any lien upon the bankrupt's property, or confers any estate in 1t. The waiver docs not interfere with the debtors title or right of disposition, or affect the right of possession in any way. The State Su- preme Court has repeatedly held that the mere waiver. not followed by judg- ment in the mode prescribed by the stat ute, does not of itself confer any title, estate. interest or equity in the property of the debtor. It is in no sense a lien. or pledge So strict have been the rulings of the Supreme Court of Alabama, that 1t has been held if a waive note Is sued on, and the judgment is silent as to the waiver. 1t will amount to an abandon ment of it: and on the other hand, that the ascertainment of the waiver incor- porated in the Judgment entry, is of no avail unless averred in the complaint. It has also been held that the waiver can not be availed of in a garnishment suit brought upon the Judgment. if that Judg- ment does not ascertain and declare the waiver. If the debtor dies before the waiver is reduced to judgment, in the manner required by the statute. it can