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tended to all rightful subjects of legislation, it extended to this of totally changing the jurisdic tion of these courts. We are not prepared to say that, in deciding what law is meant in this phrase, "as limited by law," we are wholly to exclude laws made by the Legislature of the Territory. There may be cases when that Leg islature conferring new rights, or new remedies, or establishing anomalous rules of proceedings within their legislative power, may direct in what court they shall be had. Nor are we called on to deny that the functions and powers of the probate courts may be more specifically defined by territorial statutes within the limit of the general idea of the nature of probate courts, or that certain duties not strictly of that character may be imposed on them by that legislation. But we hold that the Acts of the Legislature are not the only law to which we must look for the powers of any of these territorial courts. The general history of our jurisprudence and the Organic Act itself are also to be considered, 384*] *and any Act of the Territorial Legisla

ture inconsistent with the latter must be held void. We are of opinion that the one which we have been considering is inconsistent with the general scope and spirit of that Act in defining the courts of the Territory, and in the distribution of judicial power amongst them, inconsistent with the nature and purpose of a probate court as authorized by that Act, and inconsistent with the clause which confers upon the Supreme Court and district courts general jurisdiction in chancery as well as at common law. The fact that the judges of these latter courts are appointed by the federal power. paid by that power that other officers of these courts are appointed and paid in like manner-strongly repels the idea that Congress, in conferring on these courts all the powers of courts of general jurisdiction, both civil and criminal, intended to leave to the Territorial Legislature the power to practically evade or obstruct the exercise of those powers by conferring precisely the same jurisdiction on courts created and appointed by the Territory.

The Act of the Territorial Legislature conferring general jurisdiction in chancery and at law on the probate courts is, therefore, void.

This view is supported by the decisions of courts of Kansas on a similar statute (Locknane v. Martin, 1 McCah., 60; Dewey v. Dyer, 1 McCah., 77; Mayberry v. Kelly, 1 Kan., 116), by decisions in Idaho (People v. Du Rell, 1 Idaho, 30; Moore v. Konbly, 1 Idaho, 55), and the decision of the Supreme Court whose judgment we are here called on to reverse.

Judgment affirmed.

Mr. Chief Justice Waite not having heard the argument took no part in the decision of this case.

385*] *HENRY C. ROGERS, Thomas S. Rogers, C. Arnold Weaver, and Thomas W. Gardner, Appts..

v.

THE SCHOONER S. B. WHEELER, William 8. Hilles, Jacob S. Welden, et al., Claimants. (See S. C., 20 Wall., 385-386.)

Findings of fact of court below, when conclusive.

1. Where questions of fact only are presented

by an appeal, and there is no dispute as to the law, against the appellants, the burden is on the appeland the two courts below have already found ant to show the error. Every presumption is in favor of the decrees below, and this court ought aot to reverse unless the error is clear.

ookout at the bow of a vessel when the collision 2. Whether the circumstance, that there was no occurred, was a contributing fault, was a question of fact, which having been twice found against the the findings, the judgment is affirmed. appellants, and this court being satisfied with all

[No. 53.]

Argued Nov. 4, 5, 1874. Decided Nov. 16, 1874.

A

PPEAL from the Circuit Court of the United States for the District of Massachusetts. The libel in this case was filed in the District Court of the United States for the District of Massachusetts by the appellants, to recover for the loss of the schooner Charles F. Beebe, by a collision with The S. B. Wheeler. A decree having been entered dismissing the libel and affirmed, upon appeal, by the circuit court, the libelants took a further appeal to this court. The case is sufficiently stated by the court. Messrs. John C. Dodge and H. W. Paine, for appellants.

Messrs. G. A. Somerby and L. S. Dabney, for appellees.

Mr. Chief Justice Waite delivered the opinion of the court:

Questions of fact only are presented by this appeal. There is no dispute as to the law. Two courts have already found against the appellants. It has been over and over again ruled by this court that under such circumstances the burden is on the appellant to show the error. Every presumption is in favor of the decrees below. We ought not to reverse unless the

error is clear. Such is not the case here.

It is, indeed, urged that the claimants, by their own proof, established the fact that there was no lookout at the bow of The Wheeler when the collision occurred. This is so; but whether that was a contributing fault, was a question of fact, and that has been twice found against the appellants.

We are entirely satisfied with all the findings. The judgment of the Circuit Court is affirmed.

NOYES L. AVERY, Assignee, etc., of Alexander Blake, a Bankrupt, Plff. in Err.,

v.

CATHERINE HACKLEY, Exrx., and C. H. Hackley, Exr., of Joseph H. Hackley, Deceased, Charles H. Hackley, et al.

(See S. C., 20 Wall., 407-413.) Lien on property, not lost by taking void bill of sale.

A person having a lien upon property, does not lose it by taking a bill of sale of the same property; the bill of sale being voidable, and having been avoided under the Bankrupt Act, and there being no evidence of intent to abandon the lien.

[No. 29.]

Submitted Oct. 21, 1874. Decided Nov. 16, 1874.

NOTE.-Liens, how waived; when taking other security waives lien-see note, 21 L. ed. U. S. 859.

IN

IN ERROR to the Circuit Court of the United | If so, the defendants have lost their liens beStates for the Western District of Michigan. cause they cannot stand on the new contract of Suit was brought in the court below by the May 25th, for the reason that it is void as to plaintiff in error, as bankrupt's assignee, to re- creditors. On the contrary, if the old security cover the value of certain logs. Judgment hav- was not abandoned, although the defendants ing been entered in favor of the defendants, the attempted to strengthen their hold on the logs plaintiff sued out this writ of error. by an additional security voidable at the election of creditors, and which they did avoid, the right of lien justly acquired is not lost to the defendants, and they are at liberty to assert it in this action.

The case is further stated by the court. Messrs. J. W. Champlain, W. F. Mattingly and Geo. Gray, for plaintiff in error

Messrs. E. A. Storrs, Eggleston and Kleinhaus, for defendants in error.

410*] *Mr. Justice Davis delivered the opinion of the court:

This is an action of trover, to recover the value of a large quantity of saw-logs alleged to have been fraudulently transferred by Alexander Blake, the bankrupt, to these defendants. The case was tried by the court without the intervention of a jury, and from the findings of fact it is very clear that the various contracts between the parties were merged in the contract bearing date January 25, 1868. Hackley & Sons were partners, owners of a saw-mill, and engaged in the manufacture of lumber at Muskegon, in the western district of Michigan, while the business of Blake, among other things, was, to furnish logs to be manufactured into lumber. There had been several logging contracts between the parties, which were in course of completion when the agreement in writing of January 25, 1868, was concluded. By this agreement, Blake engaged to deliver at the booms of the Muskegon Booming Company, to the defendants, to be sawed on shares, eighteen million feet of pine saw-logs. In consideration of this undertaking, the defendants agreed to advance to Blake, $4 per thousand feet, board measure, to be paid from time to time, as the work progressed, and to be applied exclusively to this purpose. To secure the advances with a stipulated rate of interest, the property in the logs was conveyed to the defendants, and the right of possession vested in them, who covenanted when the lumber was manufactured to send it forward to market and sell it to the best advantage, the net proceeds, to be equally divided between the parties. If this contract was never surrendered or abandoned, it is manifest that the defendants acquired an interest in and a lien upon the logs furnished by Blake, to the extent of the advances made by them. There could be, therefore, on the theory that the contract of the 25th of January was subsisting, no ground for the maintenance of this action. It is said, however, that the defendants lost their rights under this contract by what occurred subsequently to its execution. It seems that during the season of 1868, the price of lumber largely declined in the Chicago market, and that Blake, on the 25th of May of that year, informed the defendants that he was unable to pay his debts, and proposed to make an assignment; but they objected to this, and requested him to make a bill of sale of his property to them, to which he assented. The bill of sale was accordingly executed, with a view to give the defendants a preference; and as this was contrary to the provisions of the Bankrupt Law, the single question for discussion is, was the contract of January 25th abandoned by the parties thereto, and merged in the bill of sale?

It is undeniable that before the execution of the contract of May 25th the logs in controversy were in the possession of the defendants, who had advanced on them to Blake a very large sum of money. Without these advances the logs could not have been cut, banked and put in the river; and, unless the defendants have plainly lost their right to retain the logs, common justice requires that they should be repaid. The honesty of the transaction is undisputed. Nor is there anything to show that the defendants were aware of the insolvent condition of Blake until after the logs had been delivered and the money advanced. They were proceeding in good faith to carry out their part of the contract when they were met by information of biake's inability to go on with his business. The bill of sale, as it is called, which they took embraced not only the logs in controversy, but other personal property and real estate.

It is fair to infer from the facts found in the case that the bill of sale was not intended to clothe the defendants with any greater rights in the logs than they possessed without it, for it is very clear that the parties acted on the idea that the lumber, when manufactured and sold, would fall short of re-imbursing the defendants for their advances, interest and expenses. To save them from anticipated loss was, doubtless, the motive for including the remaining property of Blake, and not any expectation that previously acquired legal rights would be enlarged. The giving this preference has not operated to lessen the estate of Blake, as the creditors *got everything but the logs, and these, [*411 as it turns out, Blake had no interest in.

If there were any reasonable doubt about the intention of the defendants not to abandon the contract of January 25th, it is set at rest by the consideration that when the bill of sale was executed and delivered there was no agreement to cancel it, nor was it, in fact, canceled, but was held and retained by the defendants, Naturally, if they had intended to rest their right to the logs exclusively on the bill of sale, they would have surrendered the former security. It is, therefore, not a case where an old security is abandoned and given up, and a new one taken as a substitute for that which previously existed. If, then, the contract of 25th January was not merged in the contract of 25th May, the latter one cannot operate as an extinguishment of the former, the fairness of which has not been denied. This would not be the case if both contracts were valid, unless by express agreement, and it would be singular if such an effect could be produced, where one of them could be avoided by creditors as against the policy of the law. The creditors having elected to avoid the fraudulent conveyance, take the property as though it had never been made, and subject to all lawful liens upon it. The assignee. stand

ing in the place of the bankrupt, acquired no to the extent of this one, contracted in good greater rights than he possessed, and the de-faith in the prosecution of a legitimate busifendants neither gained nor lost any rights be- ness, unless the evidence on the subject left no cause of the bill of sale. other alternative.

These general views are sustained by authority which seems decisive of the point at issue. In re Kahley, 4 Bk. Reg., 124; Ladd v. Wiggin, 35 N. H., 428; Towle v. Hoit, 14 N. H., 63; Stedman v. Vickery, 42 Me., 136; Hoyt v. Dimon, 5 Day, 483; Britt v. Aylett, 6 Eng. (Ark.), 475; Mead v. Combs, 4 C. E. Green (N. J.), 112; Ripley v. Severance, 6 Pick., 474; Sawyer v. Turpin, 5 Bk. Reg., 339; Eastman v. Porter, 14 Wis., 39; Stokoe v. Cowan, 29 Beav., 637; Meshke v. Van Doren, 16 Wis., 319; White v. Gainer, 2 Bing., 23.

White v. Gainer, 2 Bing., 23., was trover by the assignee of a bankrupt. The defendant, a 412 | maker of cloth, who had a lien on some cloth in his possession, purchased it of the bailor, together with several other pieces, after he became bankrupt, and when the cloth was demanded of him by the assignees of the bankrupt, refused to give it up, saying: "I may as well give up every transaction of my life."

It was contended at the trial that the lien was merged in the purchase, and that, at all events, it was waived, because not set up when the cloth was demanded. The judge directed the jury that the demand should have been accompanied with the tender of the amount due for the workmanship on the cloths, but reserved the point as to the merger of the lien.

It is said that after the execution of the bill of sale the lumber was not sold on joint account and, therefore, the lien was waived. The answer to this is, that the contract by which the lien was secured did not require the lumber to be sold on joint account. If the defendants sent the lumber to market, sold it to best advantage and divided the proceeds, the contract on their part was complied with. They had entire control over it, and the manner of sale is immaterial and cannot affect the rights of the parties.

The leading purpose of the Bankrupt Law is to secure an equal distribution of the bankrupt's property among his creditors. This purpose was accomplished in this case when the bill of sale was set aside, but the assignee seeks to go further and increase the estate more than $70,000 by relieving the bankrupt from the performance of a pre-existing valid contract. This he cannot do, unless on the clearest proofs that the defendants intended to abandon this contract and rely wholly on the bill of sale. As these proofs are wanting, the judgment is affirmed.

WARREN C. GILLETTE, Plff. in Err.,

บ.

MASSENA BULLARD.

(See S. C., 20 Wall., 571-575.) Sufficiency of answer-answer to action on appeal bond.

On deciding the motion for a rule nisi to set aside the verdict, Best, Ch. J., said: "It has been urged that he (the defendant) bought the cloths after the bankruptcy. If that were so, he stands in the same situation as every other purchaser, under the same circumstances; the purchaser is liable to restore them to the assign-made by the complaint. If the facts in the comees, but the assignees must take them subject to such rights as had accrued previously to their claim, and the bankruptcy of the bailor will not deprive the defendant of the right to which he is entitled the right of lien. It might have been otherwise, if the defendant, when called on to surrender the goods, had relied on the purchase; but this was not the case, and the verdict must stand."

The rule laid down by Chief Justice Best is applicable here.

The assignee of Blake had no right to the property until he had tendered the advances

upon it, and there is no evidence that the defendants placed their refusal to deliver the property upon any particular ground. In the absence of this evidence, it is a reasonable presumption that the lien, if not asserted in terms, at least was not, when demand was made, waived. It is true the defendants claimed, after the execution of the bill of sale to the creditors of Blake and other persons, to be the absolute owners of the property conveyed to them, but so far as the 4131 logs were concerned, this claim was doubtless predicated on the belief that the price of lumber would not advance, and if it did not, according to the estimates which were made, Blake had no interest in them. If so, although the claim of absolute ownership might not be legally correct, it had a basis of fact to rest upon, and does not prove that the defendants intended to abandon their lien. Indeed, it would be a harsh rule to infer the abandonment of a lien

1. An answer to be good, must overcome the case plaint are admitted, it must state other facts, sufficient, if true, to defeat the action. bond alleged the taking of an appeal, but nowhere 2. Where the answer to an action on an appeal averred that it had been perfected, nor that, at the time of the commencement of the action, it was contains no sufficient still pending, the answer averment of defense to the action on the bond, it being averred in the complaint and not denied in the answer that the judgment was affirmed on the appeal.

[No. 49.]

Argued Nov. 2, 1874. Decided Nov. 16, 1874.
IN ERROR to the Supreme Court of the Ter-

ritory of Montana.

Suit was brought in a District Court of Montana, in Lewis and Clarke County, by the defendant in error, upon an appeal bond. Judgment, having been entered for the plaintiff and affirmed, upon appeal, by the Supreme Court of the Territory, the defendant sued out this writ of error.

The case is fully stated by the court.

Mr. Robert Leech, for plaintiff in error: The undertaking sued on in this case was simply security for the judgment, and the plaintiff had no right to maintain an action thereon, until the final affirmance of the judgment in the court of last resort. To enable him to maintain this action against the surety, it was neces sary that he have a right to enter and collect a judgment of affirmance in the case.

Poppenhusen v. Seeley, 41 Barb., 450; Robinson v. Plimpton, 25 N. Y., 484.

This right the plaintiff has never acquired, as | the giving of the bond on appeal, and by the shown by the pleadings. supersedeas."

It is true that the defendant, in his answer to the complaint, does not allege in express terms that the said cause is still pending in this court. But he avers that which is manifestly equivalent thereto, namely: that "No remittitur or mandate has ever been issued in the said action of Marden against Plaisted and Wheelock, from the said Supreme Court of the United States to the said Supreme Court of the said Territory; and that no remittitur or mandate from the said Supreme Court of the said Territory has ever been issued to the District Court named above in said action; and that the said judgment so rendered in the said Supreme Court of the said Territory, still remains in that court so stayed by the order thereof, by the giving of the said bond on appeal, and by the said supersedeas."

The only proper evidence, therefore, of the final affirmance of the said judgment, is the mandate of this court: And no such mandate has been "sent down to have the judgment entered as final in the lower court," as appears by the pleadings set out in the record.

Mr. W. F. Saunders, for the defendant in

error.

Mr. Chief Justice Waite delivered the opinion of the court:

After the filing of the answer, judgment was given against Gillette upon the pleadings.

The question we are now called upon to consider is, whether the answer states facts sufficient to constitute a defense to the action. By the Practice Act of Montana (sec. 78), it is provided that "In the construction of a pleading for the purpose of determining its effects, its allegations shall be liberally construed, with a view to substantial justice *between the [*574 parties." This is a modification of the common law rule, which construes all pleadings most strongly against the pleader; but even with the statute as our guide, we think the judgment below was correct. An answer, to be good, must overcome the case made by the complaint. If the facts well pleaded in the complaint are admitted, as in this case, it must state other facts sufficient if true to defeat the action in whole or in part or it will not avail as a defense.

That is not the case here. It is nowhere averred that at the time of the commencement of this action the appeal to this court was pending or that it had ever been perfected. In fact, such averments seem to have been studiously avoided. The appeal was allowed in January, 1869. Unless a transcript was filed in this court before the end of the following term that appeal This was an action upon an appeal bond, com- would be vacated. In the language of very many menced on the 30th Jan., 1872. The com- decisions it would become functus officio. Edplaint alleges that on the 15th of June, 1868, one monson v. Bloomshire, 7 Wall., 310, 19 L. ed., Marden recovered a judgment in the District 92. The supersedeas is but an appurtenance of Court of the Territory, against Plaisted and the appeal. The stay insisted upon in the anWheelock, which yet remained in full force, un-swer, although there seems to have been an atreversed and unsatisfied, except as thereinafter tempt to make it more, is only that which re572*1 *stated; that, on the 16th day of July, sulted from the supersedeas. That was at an 1868, Plaisted and Wheelock appealed from that end when the appeal became inoperative. The judgment to the Supreme Court of the Terri- failure, therefore, to aver that the appeal was tory, and on such appeal, Gillette executed the in force, was a failure to aver that the stay, as bond now sued upon, whereby he became bound granted, continued to have effect. for the payment of the judgment, and all damages and costs that might be awarded against the appellants, if it should be affirmed that, on the 31st day of Dec., 1868, said judgment was affirmed by the Supreme Court of the Territory, and costs adjudged against the appellants; that by virtue of executions issued, certain sums were made on the 22d of August, and the 26th of Sep., 1870, but that a large balance still remained unpaid, for the recovery of which the action was brought.

The answer filed on the 21st of February, A. D. 1872, did not deny any of the averments in the complaint, but alleged by way of detense, that on the day of January, 1869, Plaistea and Wheelock appealed from the judgment of the Supreme Court of the Territory to this court; that they thereupon executed and filed with the clerk of the Supreme Court of the Territory, a good and sufficient bond on appeal, and that court stayed all proceedings upon the judgment and granted a supersedeas in the action; that no remittitur or mandate had ever been issued from this court to the Supreme Court or the Territory or from the Supreme Court of the Territory to the district court, and that the judgment of the Supreme Court of the Territory still remains in that court, "so stayed by the order thereof, by 388

The complaint alleges that money was made upon executions in 1870. The date of the issue of the executions is not given, but if the collection was regular the judgment could not have been stayed when the money was made, and that was after the time within which the appeal, if it was to remain in force, must be perfected. Clearly, therefore, to make the defense perfect, it was incumbent upon the defendant to aver distinctly in his answer not only that the appeal had been taken, but that it had been perfected and was still pending when the action was commenced.

It is, however, stated that no mandate or remittitur had been issued from this court to the Supreme Court of the *Territory, or [*575 from the Supreme Court of the Territory to the district court when the action was commenced. None could issue from this court, for there was nothing here, so far as the pleadings show, to remand. None was necessary from the Supreme Court of the Territory to the district court, because the condition of the bond is to pay if the judgment should be affirmed. The affirmance, therefore, is the material fact which is to fix the liability. That is averred in the complaint and not denied in the answer.

The judgment is affirmed.

87 U. S.

414*] *SAMUEL V. MAYS and Charles W. | Traders' Bank v. Campbell, 14 Wall., 87, 20 L. Hornor, Assignees of August Born, a Bankrupt, Plffs. in Err.,

v.

FREDERIKA FRITTON.

(See S. C., 20 Wall., 414-420.)

ed. 832; Buchanan v. Smith, 16 Wall., 277, 21 L. ed. 280; Wager v. Hall, 16 Wall., 584, 21 L. ed. 504.

And the present case is directly covered by the principles enunciated in Wilson v. City

Decision, when conclusive-action by assignee in Bank (January, 1874) 21 L. ed. 723, see Legal

bankruptcy-verdict of jury.

1. Where a party submits the decision of his claim to a state court, he cannot, upon failure, come into this court and object that the court below had no authority to take the proceeding.

2. To authorize the assignee to recover money or property under section 35 of the Bankrupt Act, he must establish, not only the act of the bankrupt, of which he complains, but also that it was done with a view to give a preference over other creditors, and that the other party to the transaction had reasonable cause to believe that such person was Insolvent.

3. Where both of these necessary facts have been found against the assignee, this court must assume that the verdict of the jury is right.

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An inhibition of preferences was the rule of the Roman law from Julius Cæsar, who legislated the cessio bonorum in the interest of the debtor class, and still remains the law of the Continent. 4 Mommsen's Rome, 473, et seq.

The jurisprudence of Pennsylvania, on the contrary, encouraged and enforced preferences. Worman v. Wolfersberger, 19 Pa., 63; see, Breading v. Boggs, 20 Pa., 37; Covanhovan v. Hart, 21 Pa., 495; Uhler v. Maulfair, 23 Pa., 481; Siegel v. Chidsey, 28 Pa., 279; York Co. Bank v. Carter, 38 Pa., 446; Witmer's Appeal, 45 Pa., 462.

Attempting to give a preference by confessing a judgment, is as old as the Pandects of Justinian. Ulpian says: "Simili modo dicimus et si cui donatum est, non esse quaerendum an sciente eo cui donatum justum sit, sed hoc tantum an fraudentur creditores. Nec videtur injuria affici is qui ignoravit, cum lucrum extorqueatur non damnum_infligatur."

If the debtor has made a donation to some one, we do not inquire whether the donee had knowledge of the transaction, but simply whether creditors are defrauded. In such a case no wrong is done to the donee who knew not the fraud, because no loss is caused to him, and he is only deprived of the means of gaining.

L. 6, sec. 11, Quae in fraudem creditorum, 42, Book 8, Title of the Digest.

This was and is the law of Scotland. 2 Principles of Equity, 203; Home; 2 Bell, Com., 212, ed. 1826.

And England. Worseley v. Demmattos, 1 Burr., 477; Sir George Newland's case, 1 P. Wms 92; Orlebar v. Fletcher, 1 P. Wms., 737; in re London, etc., Biscuit Co., L. R., 12 Eq., 193, ad fin.

No other doctrine is reconcilable with the provisions of the United States Bankrupt Law

and the decisions of this court.

Toof v. Martin, 13 Wall., 40, 20 L. ed. 481;

NOTE--How and when questions must be raised and decided in a state court in order to make a case for a writ of error from the U. S. Supreme Court see note, 63 L. R. A. 33.

Intelligencer, January 23, 1874; Zahm v. Fry, Legal Intelligencer, June 19, 1874, U. S. Circuit Court for Pa.

But the State Courts of Pennsylvania were entirely without jurisdiction, over the matters involved in this controversy.

After the uncontested liens were paid, the residue should have been handed over to the assignees.

McLean, Assignee, v. Lafayette Banks, 3 McLean, 185.

Messrs. J. H. Parsons and A. V. Parsons, for defendant in error:

All the facts material to our case were found defendant in error. by a jury and by the auditor in favor of the

The second issue was, whether at the time of the giving of the warrant of attorney, the said Frederika Fritton had reasonable cause to be

lieve that the said August Born was insolvent. This fact was found by the jury and the auditor in her favor.

There is no fact in the cause proven by which the case can be brought within the provisions of the 35th Section of the Bankrupt Law.

Mr. Justice Hunt delivered the opinion of the court:

The contention in this case arose in regard to the distribution of the residuum in the case of a mortgage foreclosure in the state courts of Pennsylvania. In the year 1862, the bankrupt executed two mortgages, both of which were paid by the sheriff out of the proceeds of the sale, and the residuum, $7,247.65, was brought into court for distribution among those entitled. The proceedings were conducted before an auditor, where it was conceded that a certain other mortgage of $2,055, and certain expenses amounting to $438.50, must next be paid, leav ing in dispute the sum of $4,754.15. This sum was claimed by Mays and Hornor, assignees in bankruptcy of August Born, as the property of the bankrupt and to be paid to them. Fritton, claiming a lien by judgment upon the property sold, insisted that the judgment lien was a lien upon the proceeds of the property sold, and that she was entitled to the proceeds. The auditor awarded the money to Mrs Fritton, and upon an appeal to the Supreme Court of Pennsylvania, his judgment was affirmed.

Mrs.

The assignees insist upon the present argument that the state court was without jurisdiction over Mrs. Fritton's claim; that it erred in granting a feigned issue upon her affidavit, and in giving judgment in her favor. The argument is that the whole subject belongs to the United States Court to decide, and that when it appeared that proceedings in bankruptcy had been taken, and were still pending, the juris

diction of the state court was at an end, and the matter should have been certified into the United States District Court for its determination. Whether the judgment creditor had a lien or not is a question, it is said, which can only be solved in an United States Bankrupt Court.

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