34 Pa. Super. 153 | Pa. | 1907
Opinion by
The defendant’s application in the court below was, first, to open the judgment and let him into a defense ; second, to set aside the execution and the levy made thereunder. The opinion of the learned judge below contains a full and accurate recital of the facts essential to a determination of the first branch of the defendant’s application, and we fully concur in his conclusion and in the reasons given by him therefor. We also have reached the same conclusion with regard to the second branch of the application, but differ slightly, although, perhaps, not materially, in the method by which it is reached. What we shall have to say will relate to the question of the liability of the property to execution.
The judgment was entered on January 5, 1906, upon a promissory note dated October 26, 1904, containing a warrant to confess judgment and a waiver of the benefit of any exemption law; on January 10, 1906, the defendant filed his petition in the United States district court and was adjudged a bankrupt; on February 7, 1906, the trustee in bankruptcy set apart to him certain property under his claim to have the benefit of what is commonly called the $300 exemption law of Pennsylvania; on February 8, 1906, an alias fi. fa. was issued upon the judgment, by virtue of which the personal property* thus set apart to the defendant was levied upon. It does not appear that the defendant has been discharged in bankruptcy.
Under the bankruptcy act of 1867 it was held that property generally exempted by the state laws from the claims of creditors was not part of the assets of the bankrupt and did not pass to the assignee, but that such property must be pursued by those having special claims against it in the proper state tribunals. Speaking of that act, Justice Bradley said: “In other words, it is made as clear as anything can be that such exempted property constitutes no part of the assets in bankruptcy. The agreement of the bankrupt in any particular case to waive the right to the exemption makes no difference. He
The- order is affirmed and the appeal dismissed at the costs of the appellant. '