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the act requires to be filed within ten days after a petition in voluntary bankruptcy or an adjudication in involuntary bankruptcy.11 Otherwise they are usually waived.12 An amendment of the schedules may be allowed so as to cure a defect in the claim for exemptions, 18 and even, it has been held, to insert an exemption not previously claimed ; 14 but not after the discharge.16 The withdrawal of a claim to an exemption is a waiver thereof, which cannot subsequently be revoked,16 except under the most extraordinary circumstances.
personal property, but the amount of the concealment could not be ascertained, they were not allowed their personal property exemptions until all of the personal property had been accounted for, Re Ansley Bros., 153 Fed. 983. It has been held that the trustee may dispute the bankrupt's claim to an exemption, Re Bonvillain, 32 Fed. 370. Contra, Re Humphreys, 221 Fed. 997. The court refused to consider exceptions filed after the expiration of the twenty days, Re Krecun, C. C. A., 229 Fed. 711. It has been held that a bankrupt may claim his exemption out of property recovered by the trustee or returned to him as a preference, Re Osborn, 104 Fed. 780; Re Tollett, C. C. A., 106 Fed. 866; Re Falconer, C. C. A., 110 Fed. 111; Bashinski v. Talbott, C. C. A., 119 Fed. 337; Remington on Bankruptcy, $ 1095. Contra, Re White, 109 Fed. 635; Re Long, 116 Fed. 113; Re Evans, 116 Fed. 909; or because of its fraudulent conveyance by the bankrupt. Re Tollett, C. C. A., 54 L.R.A. 222, 106 Fed. 866; Re Thompson, 115 Fed. 924. Where the bankrupt sells goods between the time when the petition is filed and that when the property is taken into custody by an officer of the Court of Bankruptcy, the sum that he receives from such sale should be deducted from his statutory exemption. Re Ansley Bros., 153 Fed. 983; Re McUlta, 189 Fed. 250, holding that the burden of proof that he sold more than he admitted was upon the creditors. But see Re Denson, 195 Fed. 857. Where personal property which the bankrupts were entitled to claim as exempt was sold at the bankrupt’s request that cash
be allowed them, instead of the property, the bankrupts should be charged with their percentage of the difference between the proceeds of the property and its appraised value as against the amount of their exemptions, Re Ansley Bros., 153 Fed. 983. It has been held that exempt property may be charged with the actual expenses for the storage thereof. Lockwood v. Exchange Bank, 190 U. S. 294, 47 L. ed. 1061; Re Edwards, 156 Fed. 794; and also for the statutory fees, Re Grimes, 96 Fed. 529. But see Re Le Vay, 125 Fed. 990; pending the proceedings necessary for its separation from the assets of the estate. Re Bean, 100 Fed. 262; Re Castleberry, 143 Fed. 1021. But see Re Le Vay, 125 Fed. 990.
Where the bankrupt 's land is encumbered by mortgages, it has been held that the Court of Bankruptcy may sell it and allot the bankrupt his homestead exemption out of the proceeds. Re Paramore & Ricks, 156 Fed. 208. But in Re Brown, 228 Fed. 533; which must be paid to him and cannot be paid to the mortgagee, although the mortgage covers the homestead besides other property, Re Paramore & Ricks, 156 Fed. 211. But see Re Sloan, 135 Fed. 873; Re Renda, 149 Fed. 614. Where the property is sold by a receiver or trustees in bankruptcy after the bankrupt has seasonably claimed his exemptions, Re Sloan, 135 Fed. 873; Re Renda, 149 Fed. 614; Dunlap Hardware Co. v. Huddleston, C. C. A., 167 Fed. 433; Re Finklestein, 192 Fed. 738, before he has had due opportunity to claim or select the surety, Re Andrews & Simands, 193 Fed. 776; or where the trustee has wrongfully refused to set the exemptiors apart and to re. port thereupon, Re Finklestein, 192 Fed. 738; the bankrupt will be allowed them out of the proceeds, even when he has consented to the sale, Re Renda, 149 Fed. 614. An agreement to that effect between the bankrupt and trustee was approved. Re Hutchinson, 197 Fed. 1021. After the property had been set off as an exempted homestead, it was held that the court had no power to sell the same subject to the estate of the bankrupt. Sullivan v. Mussey, C. C. A., 184 Fed. 60, affirming Re Mussey, 179 Fed. 1007.
Liens upon exempt property, which would be invalidated by the bankruptcy if the property were not exempt, are abrogated by the proceedings.17 Where creditors hold a waiver of the bankrupt's exemption they must enforce it in the State court; 18 but, there should be a reasonable postponement of the discharge of the bankrupt, in order that the creditors may have an opportunity to take such proceedings in the State courts as are necessary to make their rights effective,19 and they may be allowed to withdraw their claims for that purpose.20
11 Re Woodward, 95 Fed. 955; Re Haskin, 109 Fed. 789; Re Wunder, 133 Fed. 821; Re Donahey, 176 Fed. 458. 30 St. at L. 544, 87. A claim of "three hundred dollars cash from the proceeds, as provided by the exemption law of Pennsylvania, or stock to the value of three hundred dollars, to be set aside by the appraisers, as provided by law, was held to be sufficient in form where the assets consisted of merchandise. Re Kelly, 199 Fed. 984.
12 Re W. S. Jennings & Co., 166 Fed. 639; Re Harrington, 200 Fed. 1010; Re Gerber, C. C. A., 186 Fed. 693. Where the bankrupt failed
to file his claim for exemptions within that time and before the sale of his assets, the State law requiring exemptions to be claimed before such a sale; it was held that he waived them, although he appeared and objected to the order for the sale upon the ground that his exemptions had not been allowed to him. Re Wunder, 133 Fed. 821; Re Exum, 209 Fed. 716; Re Webb, 219 Fed. 349.
13 Re Maxson, 170 Fed. 356, a homestead exemption; Re Irwin, 177 Fed. 284; Re Crum, 221 Fed. 729.
14 Re Bean, 100 Fed. 262; Re Maxson, 170 Fed. 356.
16 Re Irwin, 174 Fed. 642, reversing 177 Fed. 284, where after the allowance of exemptions which did not equal the full statutory amount, assets were subsequently discovered. A waiver by the bankrupt as regards certain creditors, of his right to exemptions, does not put the property originally exempt within the jurisdiction of the Court of Bankruptcy. Re Anderson, 110 Fed. 141.
16 Re Baughman, 183 Fed. 668.
17 Chi., B. & Q. R. R. v. Hall, 229 U. S. 511; Re Arnold, 94 Fed. 1001; Re Boffinger, 108 Fed. 374; Re McCartney, 109 Fed. 621; Re Tune, 115
$ 651. Exemption of bankrupt from arrest. “A bankrupt shall be exempt from arrest upon civil process except in the following cases: (1) When issued from a court of bankruptcy for contempt or disobedience of its lawful orders; (2) when issued from a State court having jurisdiction, and served within such State, upon a debt or claim for which his discharge in bankruptcy would not be a release, and in such case he shall be exempt from such arrest when in attendance upon a Court of Bankruptcy or engaged in the performance of a duty imposed by this act." i "If, at the time of preferring his petition, the debtor shall be imprisoned, the court, upon application, may
Fed. 906; Re Beals, 116 Fed. 530 ;
18 It has been held that a Court of Bankruptcy has no authority to hold in custody the exempt property of a bankrupt to await the determination of an action in tort against him in a State court, Re Hartsell & Son, 140 Fed. 30; Re Remmerde, 206 Fed. 822; Re Cheatham, 210 Fed. 370; Re Brown, 228 Fed. 533; Re Dittmar, C. C. A., 249 Fed. 606. But see Re Goldberg, 254 Fed. 441.
19 Lockwood v. Exchange Bank, 190 U. S. 294, 47 L. ed. 1061; Re W. C. Allen & Co., 134 Fed. 620; Re Castleberry, 143 Fed. 1018. The proof, as an unsecured claim, of a bankrupt 's note containing a waiver of homestead exemption, was held not to be a waiver of the creditor's right to subject the homestead to the payment of the balance of his debt after crediting his dividends in
bankruptcy. Re Loden, 184 Fed. 965.
20 Re Strickland, 167 Fed. 867. Where the bankrupts converted $100, which was derived from the sale of goods between the time of the filing of the petition for adjudi. cation and the time when property was taken into custody by the deputy marshal, such sum was deducted from the bankrupt's exemptions, Re Ansley Bros., 153 Fed. 983.
$ 651. 130 St. af L. 544, 549, 8 9. General Order XII. “The order referring a case to a referee shall name a day upon which the bankrupt shall attend before the referee; and from that day the bankrupt shall be subject to the orders of the court in all matters relating to his bankruptcy, and may receive from the referee a protection against arrest, to continue until the final adjudication on his appli. cation for a discharge, unless suspended or vacated by order of the
order him to be produced upon habeas corpus, by the jailor or any officer in whose custody he may be, before the referee, for the purpose of testifying in any matter relating to his bankruptcy; and, if committed after the filing of his petition upon process in any civil action founded upon a claim provable in bankruptcy, the court may, upon like application, discharge him from such imprisonment. If the petitioner, during the pendency of the proceedings in bankruptcy, be arrested or imprisoned upon process in any civil action, the district court, upon his application, may issue a writ of habeas corpus to bring him before the court to ascertain whether such process has been issued for the collection of any claim provable in bankruptcy, and if so provable he shall be discharged; if not, he shall be remanded to the custody in which he may lawfully be. Before granting the order for discharge the court shall cause notice to be served upon the creditor or his attorney, so as to give him an opportunity of appearing and being heard before the granting of the order.'' 2
court. A copy of the order shall forthwith be sent by mail to the referee, or be delivered to him person.. ally by the clerk or other officer of the court.”
2 General Order XXX. It has been held that the bankrupt cannot be arrested, even upon a debt which is not affected by the bankruptcy, during the entire period from the adjudication until his discharge, or, if he is not discharged, until the time limited for his discharge has expired, Re Lewensohn, 99 Fed. 73. But see Re Baker, 96 Fed. 954. Cf. Barrett v. Prince, C. C. A., 143 Fed. 302. He may be discharged when he was arrested before his bankruptcy. People ex rel. Taranto v. Erlanger, 132 Fed. 883; Turgeon v. Emery, 182 Fed. 1016; Re Komar, 234 Fed. 378; Ex parte Margiasso, 242 Fed. 990; Re Madigan, 254 Fed. 221. Contra, Re Claiborne, 109 Fed. 74; People ex rel.
Fed. Prac. Vol. III-83
Taranto v. Erlanger, 132 Fed. 883;
8 652. Declaration and payment of dividends. “(a) Dividends of an equal per centum shall be declared and paid on all allowed claims, except such as have priority or are secured. (b) The first dividend shall be declared within thirty days after the adjudication, if the money of the estate in excess of the amount necessary to pay the debts which have priority and such claims as have not been, but probably will be, allowed, equals five per centum or more of such allowed claims. Dividends subsequent to the first shall be declared upon like terms as the first and as often as the amount shall equal ten per centum or more and upon closing the estate. Dividends may be declared oftener and in smaller proportions if the judge shall so order: Provided, that the first dividend shall not include more than 50 per centum of the money of the estate in excess of the amount necessary to pay the debts which have priority and such claims as probably will be allowed: and provided further, that the final dividend shall not be declared within three months after the first dividend shall be declared. rights of creditors who have received dividends, or in whose favor final dividends have been declared, shall not be affected by the proof and allowance of claims subsequent to the date of such payment or declarations of dividends; but the creditors
those proceedings are founded. Re Fritz, 152 Fed. 562. But see Re Houston, 94 Fed. 119. An injunction was granted against an application during the pendency of the bankruptcy proceedings to punish the bankrupt for contempt of a judgment of a State court. Re Adler, C. C. A., 144 Fed. 659. The Bankruptcy Act does not prevent the arrest and imprisonment of a judg. ment debtor upon proof of the fraudulent removal or concealment of his property, under the Pennsylvania Act of July 12, 1842, p. 339, in either the State courts or the circuit court of the United States. Ex parte Crawford, C. C. A., 154 Fed. 769. Motion for leave to file petition for writ of habeas corpus denied, 206 U. S. 561, 51 L. ed. 1189.
The discharge from arrest may be conditioned upon the filing of a bond not to depart from the jurisdiction. Re Lewensohn, 99 Fed. 73; Re Dresser, 124 Fed. 915. An injunction against the prosecution of a suit against a surety upon the bankrupt's bail bond was denied when the latter's personal liability was not threatened. Re Franklin, 106 Fed. 666.
$ 652. 1 Dividends cannot be attached in the hands of the trustee in bankruptcy before their payment, although the State law permits this in the case of a trustee appointed by a State court. Re Hollander, 181 Fed. 1019; Re Argonaut Shoe Co., C. C. A., 187 Fed. 784. See supra, &$ 56, 470.