183 F. 668 | M.D. Penn. | 1910
At the time the petition in bankruptcy was filed, the goods of the bankrupt were under levy by the sheriff on an execution, in which the $300 state exemption was waived;
The claim of the bankrupt, as made ia his schedules, was invalid: no particular property having been designated or set out. In re Pfeiffer (D. C.) 19 Am. Bankr. Rep. 230, 155 Fed. 892. And, while this was amendable (In re Duffy [D. C.] 9 Am. Bankr. Rep. 358, 118 Fed. 926; Burke v. Guarantee Tide & Trust Co., 14 Am. Bankr. Rep. 31, 134 Fed. 562, 67 C. C. A. 486). it was insufficient as it stood, and without amendment was not in shape to be allowed. But, instead of amending the claim, the bankrupt abandoned it, after which it was the same as if it had never been made. The execution creditor could not prevent this. Lie had no right by virtue of his waiver to proceed against the goods of the bankrupt which he had seized, even though they amounted to less than the law allowed; but only against the specific property, within that amount, which the bankrupt selected and had set off to him; and, this designation never having been made, and all that was done by the bankrupt in that direction having been recalled, the execution creditor was left without anything on which his writ could take effect. Nor was the bankrupt, because of his waiver, prohibited from doing as he did. Lie was not required to make claim to his exemption for the benefit of this particular creditor, and, if he had said nothing about it in his schedules, there would have been no remedy. Nor was he bound to proceed with the claim after making it; the result doing him no good, although designed by the law for his benefit. It may be that, by the withdrawal of the claim, he was able to defeat the waiver. But, however it may stand under the state law, there is no particular reason in bankruptcy why a waiver should he favored. The $300 exemption is allowed to the unfortunate debtor for the benefit of himself and his dependent family. Vnd if he is authorized to waive the right to it, in favor of one creditor over others, he certainly is authorized to make no claim to it after bankruptcy, so that all may fare alike.
The exceptions are overruled, and the account of the trustee is confirmed.