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In re SWORDS.

(District Court, N. D. Georgia.

December 19, 1901.)

No. 38.

Bankruptcy—Powers op Court—Enforcing Claims against Exempt Property.

A court of bankruptcy has no power to enforce claims against property of a bankrupt exempt as a homestead under the laws of Georgia, and set apart as such by the trustee, although based on notes in which the right of exemption is waived; but where the bankrupt has failed to obtain a discharge, and the time therefor has passed, such creditors will be permitted to -withdraw their claims for the purpose of pursuing their remedy in the state courts.

*662In Bankruptcy. On application for leave to withdraw claims'.

Foster & Butler and Napier & Cox, for petitioning creditors.

Rucker & Rucker, for bankrupt.

NEWMAN, District Judge.

In this case the court feels compelled, after full consideration, to adhere to its ruling made in Re Camp, 91 Fed. 745, and reiterated in Re Hill, 96 Fed. 185, which ruling was that there was no power in the bankrupt court to enforce notes containing a waiver of homestead exemption against a homestead set apart in bankruptcy. The fact that more than 18 months has elapsed since the petition in bankruptcy was filed, and that the bankrupt is thereby precluded from obtaining his discharge, has no effect on this question. The petition of the creditors in this case contains a prayer for leave to enforce their claims against the homestead exemption set apart by the trustee, and as an alternative prayer they ask leave to withdraw their claims from the court of bankruptcy, that they may proceed to enforce the same in the state court. There seems to be no reason why the petitioners should not be allowed to withdraw their claims. The bankrupt cannot now obtain a discharge, and the creditors should be allowed to avail themselves of any rights they may have in the premises.

An order will be entered allowing the petitioners to withdraw their claims from the bankrupt court.

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