The Montgomery advertiser., 1902-05-20

ders the sale of the rem, which by opera- ton of law has passed into the exciusive jurisdiction of the court of bankruptcy the latter court is not required by con- alterations of comity to ask the justice to make . proper order on the constable to surrender the property, before making its own order directing the marshal to ssise the property.
 Case,
 On review of questions certified by the referee, James Harlan aud c. M. hlosn. each of whom were holdera of notes waiv. ing exemptions. commenced suits against Tune by attachment on February IS. 1902. to collect their debts. suits being return able on the End day of February. 1902. Tune fiied a voluntary petition on the l7th day of February, 1902. and the next day was duly adjudicated bankrupt In his schedule, Harlan and Sloan were list ed as creditors. Tune In his petition claimed the raft of logs and some house hold and kitchen furniture. in all worth about four hundred dollars. as exempt. On the same day the bankrupt petitioned for the appointment of . receiver to take possession of the logs. averring that the logs were rafted and ready to bs shipped and liable to be stolen or taken away and greatly appreciated in value: that in or der to conserve the property. 1t was nec- essary that a receiver be appointed to hold the property until trustee was ap- pointed. A receiver was appointed and qualified immediately. The petition fur ther shows that on the day set for hear ing the bankrupt appeared before the justice, and when the eases were called for trial and before any judgment was Rendered. properly pleaded adjudication. a duly certified copy of which was made part of the plea. The justice declined to allow the plea, but stated that he would delay few days to inform him. self further. On the next day. as peti- tion ayers the justice rendered judgment against the defendant and ordered the raft of logs to be sold for the satisfaction of the judgment It appears from the record. that although the justice refused to hold up Judgment of condemnation, that the judgment contained . stay of executionfor thirty days. The petition ayers the receiver demanded the property from the constable. but the latter being indemnified by the plaintiff, refused the demand and insisted on selling the logs. and the justice ordered him to retain pos- session and sell the same fo rthe satisfac- ton of the judgment With or without reference to the adjudication passed three days after the suit was commenced, the evidence abundantly shows that Tune was insolvent at the time of the levy and for many months prior thereto. The pe- tition prayed, in substance, an Injunction against the creditors and the justice from taking further proceedings. and that all of them 6e enjoined from interfering with the receiver and that the creditors and constable be required to deliver the raft of logs to the receiver. and that he De put in possession by prop CT process. This petition was sworn to but the persons mentioned in it were not made parties. and 1t does not appear to have been served upon them or that they had any notice of II other than was com veyed by the order afterwards made by the referee Murphy. On the 18th day Of February. 1902. the referee made an order tice and creditors from taking posses sion of or retaining under their control any property the bankrupt owned on the 18th day of February. 1902, and particu- ,,Soi ,arly the raft of iogs and ordered them m the rsceiver.H It contained a sweepins injunction against the creditors from prosecuting the. attachment suit in the on issued against the bankrupt or any of his property. and from making any sale of the property or removing tho same or from receiving any money, the the bankrupt. and the justice was order ed to vacate the judgment made by him, end all orders made since the lsth oi February. 1902. II was further orered that the marshal put the receiver in posses On the 18th day of March. 1902. Harlan and Sloan proved their claims against the bankrupt. On the same day, without making any answer to the petition. or controYerting its allegations in any way, they appeared, and without any protest as to the Jurisdiction moved to dissolve returned to the constable. on the ground that the attachment, was lien upon the raft at and before the filing of the bankrupt's petition. and the right to enforce the at,scsmsnt s,s was propsSTy, ,,sr tr was no ground for the appointment of a receiver. In support of this motion Har- Ian and Sloan proved that for more than much as $500 worth of property-that the attachments suits were brought because Tune was about to move the raft of logs out of the State. that at the time of had. not been instituted. that so far as creditors knew or believed Tune had not contemplated bankruptcy at the time the attachment was sued out and levied. It the testimony taken on the hearing that the raft of logs was finally delivered to tho receiver under the order. but 1t ap- pears that 1t was from other parts of the to have 1t returned to the constable. On the hearing: the referee refused to va- cate or modify the order and the credi- tors excepted.
 Kirk. Carmichael & Rather.
 For Creditors.
 6. s. Pleasants, Contra.
 Opinion.
 Jones District Judge.
 Tn re Moore. l12 Fed. p. 2so. 1t was held that the waiver of exemption au- not of itself confer any title. Interest or equity in the property of the debtor. and did not constitute a Hen o- pledge in any sense That case diners from this. in that there the exempt property was view of the argument of counsel and the effect claimed for the levy on the exempt property in this case. some further dis- cussion of the case seems proper.
 The whole office and effect of a waiver of cxemntions Is to build up an estoppel which Is quickened into being only by a Judgment on the debt and the issue of execution In the statutory mode. An estoppei to claim property does not give the person in whose favor the estoppel runs a lien on that property. The judg- ment and execution alone give the waiver any operation; and the combined effect of the debt, waiver, judgment and execu'' ton, so far as they give any virtue to the waiver Is merely to bring the estop- pei into play. If any lien arises in this case 1t is because of a levy. if that levy can be lawfully followed by a Judgment of condemnation. Any legal obstacle in terposed between the levy and the right of Judgment so as to defeat condemna- hA In the hack.