# Mays v. Fritton

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United States Supreme Court
87 U.S. 414
Mays v. Fritton
ERROR to the Supreme Court of Pennsylvania; the case being thus:
In the year 1862, one Born executed a mortgage to Doll and others, on real estate which he then owned. Some years afterwards, that is to say, on the 16th of January, 1868, he gave to a Mrs. Fritton a bond for $4000, payable in one year, with warrant to confess judgment. On this warrant Mrs. Fritton caused a judgment to be entered on the day on which it was given.
On the 31st day of the same month, a petition was presented by a creditor of Born alleging that various acts of bankruptcy had been committed by him on the 1st, 3d, and 4th of the same month, and praying that he might be declared a bankrupt. On the 28th day of February, 1868, he was accordingly adjudged a bankrupt, and on the 18th of March one Mays was appointed assignee.
On the 6th of July, 1868, Doll, the mortgagee, already mentioned, foreclosed his mortgage in one of the county courts of Pennsylvania, and he having received from the sheriff the amount of it (no question as to the validity of his lien having existed), there remained a sum of $5192 above that amount, which the court referred to an auditor to distribute. Going before the auditor, Mrs. Fritton insisted that her judgment was a lien upon the proceeds of the property sold, and that she was entitled to the proceeds.
The assignees appeared by their counsel and claimed the entire fund, on the grounds:
'First. That it was the property of a bankrupt, and that, by reason of the bankruptcy, all his estate passed to the assignees.
'Second. That Mrs. Fritton's judgment was given in fraud of the Bankrupt law,' and was void for various other reasons set forth.
The Bankrupt Act enacts:
'SECTION 35. If any person, being insolvent or in contemplation of insolvency, and within four months before the filing a petition by or against him, with a view to give a preference, procures his property to be attached or seized on execution, or makes any payment, pledge, transfer, or who shall within six months make any sale, transfer, conveyance, or other disposition of his property to any person having reasonable cause to believe that such person is insolvent and such payment, &c., is made in fraud of the provisions of this act, the same shall be void, and the assignee may recover the property, &c., from the person so to be benefited.'
Mrs. Fritton denied the abovementioned allegations of fact made by the assignees, and on her affidavit that they were untrue, a jury was demanded and granted, in pursuance of the practice in such cases in Pennsylvania. The jury found that at the time of giving the bond and warrant Born was insolvent, but that Mrs. Fritton had not reasonable cause to believe that he was, and that the judgment was given to secure a prior debt, but was not given to enable Mrs. Fritton to obtain a preference over other creditors.
After the jury had thus passed upon the questions of fact, the counsel for the assignees again appeared before the auditor, claiming the fund and insisting that under the findings of the jury Born was insolvent when he executed the warrant of attorney to Mrs. Fritton; that it was given to secure a prior debt, and was a fraud upon the provisions of the Bankrupt Act.
The auditor awarded the fund to Mrs. Fritton, and the assignees took an appeal to the Supreme Court.
Upon the appeal to that court it was contended that there was error, among other things, 'in disregarding the various provisions of the United States Bankrupt law in regard to preferences given by bankrupts, and in giving Mrs. Fritton a preference over other creditors, contrary to the twenty-ninth section of the United States Bankrupt Act.'
In stating their position before the Supreme Court the assignees, in their argument, which was contained in the record, said:
'The inquiry is reduced to this: Who is entitled to the fund in court, Mrs. Fritton or Born's assignees?'
The Supreme Court affirmed the award below, which gave the fund to Mrs. Fritton, and the case was now brought here on error by the assignees.
Messrs. Durant and Horner, for the assignees, plaintiff in error:
1. The State court was without jurisdiction over Mrs. Fritton's claim. It erred in granting a feigned issue upon her affidavit, and in giving judgment in her favor. The whole subject belonged to the Federal courts to decide, and when it appeared that proceedings in bankruptcy had been taken and were still pending, the jurisdiction of the State court was at an end, and the matter should have been certified into the District Court of the United States for its determination. Whether the judgment creditor had a lien or not is a question which can only be solved in the Bankrupt court of the United States.
2. The judgment below was erroneous, because Mrs. Fritton's judgment was given to secure a prior debt. The case of Buchanan v. Smith, recently decided by this court, declares in effect that whatever enables a debtor to proceed more rapidly than if he was retarded by the necessary delay of an action, is a fraud upon the Bankrupt Act.
Messrs. A. V. Parsons and J. S. Parsons, contra:
1. Whether if the point now made by the opposing counsel as to jurisdiction had been made below, it would have been a good one, need not be in the least considered, since the record shows in the fullest manner that it was nowhere there made, and shows that everywhere, in fact, it was waived. A party cannot take, in this court, points not taken anywhere below. This is settled practice.
2. No doubt in Buchanan v. Smith many dicta are found which might militate against the present case. But it is manifest from what is said in the subsequent case of Wilson v. The City Bank, that Buchanan v. Smith did not express the views of this court, though it recorded its judgment upon the particular case. Indeed, since the case of Wilson v. The City Bank, it has not been regarded as of any authority.
Mr. Justice HUNT delivered the opinion of the court.

## Notes

* ↑ 16 Wallace, 277.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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