The Montgomery advertiser., 1901-10-24


 lateral and incident to the debt. and cer- tainly of no higher dignity than the prom ise to pay the debt.
 It is the settled law of Alabama, in the absence of any judgment ascertaining the waiver in the mode prescribed by statute, at or before the time the exemption is claimed that the right of exemption must prevail over any right arising from the waiver. If the court of bankruptcy al- lowed the naked waiver to prevail over the right of exemption. 1t would accord to such naked waiver a legal effect al- ways denied to 1t in the State court. This would be administering law of the courts own making, and not the enforce ment of the law of the State, which the bankrupt law makes the law of this court in the matter of exemptions.
 It has been argued that the waiver estopped the bankrupt from claiming the exemption, and that the court of bank ruptcy should summariiy enforce the es- toppel by turning over the exempt prop erty to the creditor who holds the waive notes. It might serve the necessities of the present case to say, that by the terms of the waiver, 1t amounts to no more than renunciation of the right ito claim or hold any personal property exempt from levy and sale under execution" The waiver does not renounce the right to 
 seeks to reach the property in any other way. or, under any other circumstances. Here, the effort is not to subject the property "by levy and sale under execu- tion;" but, without either, to frustrate the exercise of the right of exemption by summary order of the court turning over the property to the creditor. It is pre- ferred, however, not to rest the decision on this narrow ground. What element of te In cfVinR nf a waiver like the present. or. one which goes further. and Is directed to the case mentioned in Section 1 of~Article 10 of the Constitution of Alabama, expressly waving the right of exemption to per- sonal property from sale on execution or other process of any court issued for the collection of any debt?" The bank rupt has the right to stand on the law of the land. The law of the land Is that the waiver can not be enforced against him, save after judgment and execution in the mode provided by statute. When he claims exemptions against mere naked waiver, he neither denies the waiver, nor seeks to escape from the le- gal consequence which the law attached to the waiver when made. He Is merely demanding that the naked waiver shall not have effect beyond the limits which the law assigns it as long as 1t remains
 h tions. and to that extent opposes the waiver. his defense against 1t, is not that he did not make the waiver. nor that the waiver. if 1t had ripened inc Judgment in the statutory mode, ought not to pre- vail over the right ot exemption. His po- sition, admitting all this and the making of the waiver, is, that his right Of ex- emption can be defeated only by judg- ment and execution conforming in all re- rte fn ha Gfn fIf aYtQtRnGe at the time the exemption is claimed. The allowance of his contention, that mere waiver not reduced to judgment, can not prevail over the right of exemption, Will not defeat any just expectation raised by the taking of the note with the waiver; since the law of the land, of its own force incorporated, as term of the contract made by the waiver, that the right of ex- emption should not be defeated by such waiver, unless 1t was rein- forced by judgment and execution con- forming to the statute. The bankrupt has never agreed, by the making of the waiver, that 1t should be enforced against him or his property. save by due process of law; which, in this instance, requires that there be judgment and execution be- fore the waiver can be fastened upon the property. The law charges the creditor with notice, and, as we have seen. made 1t
 
 alone, would not suffice to defeat the right of exemption: and in so insisting, the debtor is not violating any term of the contract It can not be said, there- fore that claiming the exemptions, under the circumstances here disclosed. Is not allowable, because 1t would defeat the just expectation which the creditor had & right to indulge from the making of the waiver. Whether the court of bank cnnld in a in any case work out and enforce an estoppel, to prevent the bankrupt from claiming his exemptions. based on an obligation of a promise to be performed in the future, need not now be decided It suffices to say that this case does not present any of the clements which would permit the court to visit an cstoprel upon the bank rupt.
 There arc other objections which seem conclusively to forbid the denial of the bankrupt's exemptions. The proceedings are now ripe for an application for the bankrupt's discharge, and, in the absence of anything shown to the contrary, the court can not presume that he will mot be discharged. If the bankrupt is dis- charged, the obligation Of the debt evidenced by the notes and the collateral contract of the waiver, Intended to secure the debt, will both be gone. No obligation will rest on the debtor as to either promise The discharge when granted, will relate back to the filing of the petition, and defeat any proceeding commenced within four months prior thereto, to convert any of the mere per- sonal contract obligations of the bankrupt into a lien. The adjudication in bankrupt cy, ought not to place the bankrupt In any worse condition regarding his exemptions, than other residents of the State who have not been adjudicated o7nGrupts. The exemptions of a person who has not been adiudicated a bankrupt could. in no event, be defeated by the mere wuiver. If a court of bankruptcy by reason of its Jurisdiction over the person of the bank rupt, and its power over his exempt property df it has any other jurisdiction over it than to set 1t aside) car defeat the bankrupt's exemptions, under circUm- stances which would not destroy the right of exemption in any other resident of the State, the bankrupt by the ad- indication would be put in far worse plight regarding his exemptions than any other resident of the State. This would defeat one of the manifest purposes of the banbrupt act, which is to secure to the bankrupt the same exemptions which are allowed other residents Of the State
 and on the same terms.
 After adjudication, and pending final discharge, 1t Is the duty of the court, to, at least. preserve the status quo, and to refrain from orders. pending the admin istration of the estate, subjecting the bankrunt in effect to the enforcement of obligations. from which he would be ab solved bv the discharge It will not be contAndAd if this bankrupt had received a