Carroll v. Thomas C. Else & Co.

Irving, J., delivered the opinion of the Court. On the third day of February, 1890, the appellant executed a deed of trust of all his property for the benefit of his creditors. The trustee sold the property and reported his sale to the Court as amounting, in the aggregate, to five hundred and ninety-five dollars and seventy-one cents. The auditor, after allowing costs and expenses, awarded one hundred dollars to the grantor, Saulsbury Carroll, as exemption money, and distributed the residue among his creditors pro rata, which only paid the creditors 27.56 per cent, on the dollar of their claims.

The appellees, being creditors, excepted to the audit, because of the allowance of the one hundred dollars to Carroll for exemption. Upon that exception the ..Court passed thefollowing final order, viz., “ Ordered, this twenty-eighth day of July, A. D. 1891, that audit No. 1 filed in this cause he and the same is hereby rejected, and that this audit he ratified, and the trustee he, and he is hereby, directed to pay accordingly, except the sum of one hundred dollars, distributed to the grantor as exemption, which sum of one hundred dollars the trustee is hereby directed to distribute amongst the creditors whose claims are herein allowed, pro rata.” ³⁰³ This order is on the second audit; the rejected audit, No. 1, is not in this record. The only question raised bjr this appeal is whether Carroll was entitled to any allowance for exemption. The appellee contends that, having assigned all his property without reservation of his right to exemption, he was entitled to no allowance on that account.

This was the view of the learned Judge of the Circuit Court, and-we think that view right. In the case of Muhr’s Sons vs.