The Ironsides. a negotiation is entered into between counsel, and difficulty and misunderstandings arise in consequence of that, I do not allow the party to be prejudiced. If you say that there never was anything of the kind at all; that there never was an agreement or understanding that the declaration should be given to them, and plea furnished by them,-that is another matter. If you say this is made out of whole cloth, that is another matter. Judgment set aside. THE IRONSIDES. DISTRICT COURT.-NORTHERN DISTRICT OF ILLINOIS.-MAY, 1869. IN ADMIRALTY. 1. POSSESSION OF PROPERTY ON FILING OF VOLUNTARY PETITION.— On a voluntary petition, the court has power to take possession of the bankrupt's property pending the publication of notice and election of an assignee. 2. A maritime lien is not divested by the filing a petition in bankruptcy; the assignee takes the property subject to it. 3. MARSHAL AS MESSENGER.-Where the marshal has taken possession as messenger, but without any order of court, his possession is not that of the court in bankruptcy. 4. CONFLICT OF JURISDICTION.-A party having a maritime lien may, even after the filing of a petition in bankruptcy by the owner, seize the vessel under a libel in another district, and the latter court has jurisdiction to hear and determine the lien. 5. In such case the assignee has the right to appear and be heard, and The Ironsides. the court in bankruptcy should accept the determination of the court in admiralty as to the validity and amount of the lien. 6. ASCERTAINMENT OF LIENS.-The words in section one of the Bankrupt Act, extending jurisdiction "to the ascertainment and liquidation of the liens and other specific claims" upon the bankrupt's property, apply only to cases where these liens or claims have not been previously determined by other competent tribunals. This was a libel by Dyer & Paine, of Chicago, for supplies furnished at that place, while the vessel was owned by a person in Cleveland. The owner being, after the date of the furnishing of the supplies, adjudged a bankrupt by the District Court for the Northern District of Ohio, the messenger of that court took possession of the vessel at Chicago for the purpose of taking her to Cleveland; and while she was thus in his possession this libel was filed and the vessel seized. The messenger disputed the right of the admiralty court to proceed, and claimed that the vessel was in the custody of the law, and that the bankrupt court alone had exclusive jurisdiction to settle all maritime liens. Robert Rae, on behalf of libellant, contended that the bankrupt court was but a municipal court, having no extra-territorial jurisdiction and its decrees being only effectual within the territory of the United States; that the admiralty court was a court recognized by and belonging to the law of nations, and that the world were parties to her proceedings in rem; that both courts existed under the Constitution of the United States, and claimed exclusive jurisdiction; that the act of Congress in reference to bankruptcy was not passed with an intention to oust the admiralty courts of jurisdiction, and it could not be done by implication, the bankrupt court being one of inferior and local jurisdiction, and the admiralty one of superior and universal jurisdiction; that the admiralty court is alone adapted to try maritime matters, especially in cases of collision and suits between foreigners and its own citizens, and can best ascertain what is and what is not a The Ironsides. maritime lien, and its decrees are respected throughout the family of nations, etc. Willey & Cary, of Cleveland, for the Messenger. DRUMMOND, J.-A case has been submitted to the court upon, substantially, an agreed statement of facts, upon which it is claimed, on the part of the defense, that the court has no jurisdiction of the case. It was a libel filed by Dyer & Payne, as coal and wood merchants of Chicago, for furnishing to the propeller, in that city, on the 13th day of May, 1868, a quantity of coal on the credit of the vessel, the facts being that neither the owner nor master of the propeller had money or credit to purchase the same. At the time, the propeller was owned by Dwight Scott, a citizen of Ohio. On the 30th of May, 1868, he filed his petition in bankruptcy in the District Court of the United States for the Northern District of Ohio, and on the first of June of that year was duly adjudged a bankrupt by that court. At the time of the seizure under the monition issued in this case, on the 5th of June, 1868, the propeller was in the possession and under the control of the marshal of the Northern District of Ohio, as messenger under the proceedings in bankruptcy, it being claimed that he was entitled to the possession of the propeller under the rules and regulations in bankruptcy in that court and by virtue of the bankrupt law. When the seizure was made by the marshal of this court a stipulation for release was given, protest being made at the time of the seizure. When the seizure was made by the marshal, and the answer and claims were filed, no assignee had been appointed by the District Court of the United States for the Northern District of Ohio. There is nothing stated in the case from which it can be seen that the marshal of the Northern District of Ohio took possession under any warrant or process The Ironsides. from the court in bankruptcy, but the inference is, from the foregoing statement, that he took possession, as already intimated, because he claimed that he had a right of possession under the bankruptcy law, by virtue of the petition filed on the 30th day of May, 1868. The first question to be determined under this state of facts is: What was the position of the marshal of the Northern District of Ohio with reference to the propeller? Was he in any other or different position from that of the owner of the propeller in case proceedings in bankruptcy had not been instituted? In other words, was the propeller in the custody of the law and not liable to seizure or proceedings against her on the part of the admiralty court? It will be seen from the statement which has been made that no objection is taken on the ground that it is not a case of a proper maritime lien against the propeller, but the objection only arises from the proceedings in bankruptcy in the court in Ohio. It has been decided by the Supreme Court of the United States' that where a vessel is in the custody of an officer under a process from a state court it is not liable to seizure by the marshal upon a libel filed, even in the case of a regular maritime lien; that the vessel is in the custody of the law and cannot be seized by the marshal and is not subject to the jurisdiction of the admiralty court in such a case, and this rule would apply if it is plain that the messenger under proceedings in bankruptcy held the vessel in such a way as to make him the custodian of the court, or held the vessel under the process of the court. From what has been already said I think it will be apparent that this was not the actual position of affairs. It is important under the bankrupt law to determine what is the condition of the property of the bankrupt, in the case of a voluntary proceeding in bankruptcy, between the time of filing 'Taylor vs. Carryl, 20 Howard, 583. nee. The Ironsides. the petition and the date of the appointment of the assigIt is rather a singular omission in the bankrupt law that no distinct provision seems to have been made in the case of voluntary bankrupts for the control and disposition of the property between the date of filing the petition and that of the appointment of the assignee, and the rules established by the Supreme Court do not appear to have made any distinct provision for such a case. The 11th section of the bankrupt law states what is to be done where a voluntary petition is filed. It declares that the judge, or, "if there be no opposing party," the register, shall "issue a warrant, * * * directed to the marshal of said district," and it proceeds to declare what authority is given to the marshal as messenger, authorizing him forthwith as messenger, to publish notices in such newspapers ( as the warrant specifies 1), to serve written or printed notice, by mail or personally, on all creditors upon the schedule filed with the debtor's petition, or whose names may be given to him in addition by the debtor, and to give such personal or other notice to any persons concerned as the warrant specifies, which notice shall state: that a warrant in bankruptcy has been issued against the estate of the debtor," &c. The warrant provided by the rules, which is form number 6, makes no provision whatever, and gives no authority to the marshal, as messenger, to take possession of the goods of the bankrupt, and the 13th rule established by the Supreme Court in bankruptin the first part of it, seems to contemplate only the case of the appointment of the marshal as messenger in an involuntary proceeding in bankruptcy. The only warrant in bankruptcy that is referred to in the rules in the case of voluntary proceedings is form 6. I reccollect a case where an application was made to this court for the appointment of a person cy, "As the marshal shall select, not exceeding two" (Amendment of Jun 22, 1874). [Reporter. |