one last above stated. And to the like effect are The Lottawana, 21 Wall. 558, 22 L. Ed. 654, The J. E. Rumbell, 148 U. S. 1, 13 Sup. Ct. 498, 37 L. Ed. 345, and The Glide, 167 U. S. 606, 17 Sup. Ct. 930, 42 L. Ed. 296. "But the District Courts," it was said in The Lottawana, “having jurisdiction of the contract as a maritime one may enforce liens given for its security, even where created by the state laws." The court below seems to have put its decision upon the ground that the Squire was a completed vessel ready to proceed in its business of navigation on being supplied with certain incidentals which were not a substantive part of the ship. We are not disposed to controvert that conclusion. But the condition of the Squire puts her upon debatable ground, and we prefer to rest our own decision upon the presence of the local statute. The libel is wide enough to enable the court to grant relief upon either ground.

A question is made as to whether towing was done upon the credit of the owner, or is a proper charge against the vessel. If the owner had been a resident of the state, so that it might or should be presumed that the tug company looked to him for payment, it would be open to the appellant to insist that the vessel could not be properly charged. And the decisions on that subject have settled the law to that effect. The testimony is not quite positive on that point. It was not made a ground of defense by the answer, nor does it appear to have been raised upon the trial. Mr. C. O. Spencer was "managing owner" of the Mack Steamship Company and had his office and place of business at Cleveland, Ohio, and the correspondence in this business was conducted by him from that place. It is not shown where the other owners reside. If there was any ground in fact for claiming the benefit of this objection, we should have expected some allegation or proof to sustain it. The objection rests upon an exception to the general rule. We think it should be held that the owners were resident in Ohio. It seems necessary to settle this question and to find ground for settling it in this way; for, if the owner has not a foreign residence, there could be no presumption that a credit for the services was given to the vessel, and the giving credit to the vessel is a condition to the lien which the libelant seeks to enforce, as was held by this court in the case of The Samuel Marshall, 54 Fed. 396, 4 C. C. A. 385. We notice that the Court of Appeals for the First Circuit in the case of The Iris, 100 Fed. 104, at page 112, 40 C. C. A. 301, speaks of the statement made in the opinion of this court in the case of The Samuel Marshall to the effect "that a local lien can be enforced in admiralty only when credit is given the vessel, and that in this respect there is the same limitation as with reference to supplies furnished a ship in a foreign port" as a dictum. And the Court of Appeals for the Third Circuit assigns to it a similar character. With great respect to those able courts, we think this is a misapprehension. It was, in fact, made a decisive point in the case. Judge Taft, who wrote the opinion, had said that the charterer stood in the place of the owner, that the charterer resided at the same place with the libelant, and that the supplies had been furnished at that port. If the local statute had the effect to give a lien without regard to the presence or absence of the owner and

these were the only facts to be considered, the decree must have been for the libelant. The whole drift and purpose of that part of the opinion was to demonstrate that, notwithstanding the general language of the local statute, the effect which should be given to it in the court of admiralty was the creation of a lien which should be reconcilable with the principles of the maritime law; in other words, that the court would not surrender a general rule of the admiralty law which it is bound to administer, and substitute for it a local statute. But it would enforce a lien given by such statute in cases where it is not inconsistent with the maritime law, and only to that extent, in short, it would subordinate the statute to its own imperative rules. It is true there was another ground stated on which the court might have rested its decision. But it thought fit to rest it also upon the former ground. If the first declaration was a dictum, by the same token the second was also, and the case is void of authority. But we have not so considered it. In the case of Davidson v. Baldwin, 79 Fed. 95, 24 C. C. A. 453, Judge Lurton, who delivered the opinion of the court, cited that case as authority for the doctrine which it was supposed to have established for the court. The rule in respect to the giving credit whether to the vessel or its owner rests upon a presumption arising upon the evidence. And it has long been axiomatic that the known presence of the owner at the place where supplies are furnished or other assistance given to the vessel, whether at home or abroad, would give rise to a presumption that a personal credit was given to him, and this presumption would prevail in the absence of proof to the contrary. A lien upon the vessel would be given only where there was either a necessity or an agreement for it. If the local statute be construed to be without restriction as to the credit intended, it would give to a creditor at the home port of the owner an advantage superior to that of one who furnishes supplies or other assistance at a foreign port, a result the very opposite to the general policy of the maritime law. statute which should give a lien absolutely and without regard to this rule, which rests upon a fundamental principle of the maritime law and is born of the necessities of commerce, would be in effect to make a new law for the admiralty. If this can be done in respect to one thing, it may be done in many, and in the end the admiralty jurisprudence might be honeycombed, if not displaced, by a mass of heterogeneous local statutes. Local statutes provide different rules in respect to the rank of liens, a matter of serious importance. A court of admiralty would abandon its own jurisdiction, if it should enforce them when they were in conflict with the rules of maritime law. And, if this be so, it must be because of the predominant authority of the admiralty court throughout the domain of the maritime law, which will not hearken to the ordinances of state legislation. In general these local statutes consist of these three features: The creation of a lien, the prescription of the procedure, and the order of the distribution of the proceeds. Beyond question, the admiralty court will not adopt the procedure, nor will it proceed in the distribution in the order prescribed by the statute, unless, as rarely happens, that order is the same as that prescribed by the maritime law. For the same reason and by the same

authority, it will disregard any quality of the lien which is not in harmony with its own maxims. A contract for the supply of necessaries in the home port of the owner is a contract of a maritime nature, and although it would be presumed, in the absence of evidence to the contrary, that credit was not intended to be given to the vessel, yet evidence of an express agreement would be sufficient to attach a lien. Inasmuch as the jurisdiction is taken solely because of the maritime nature of the subject, it is both logical and reasonable to say that the lien, which is an inherent right therein, should partake of the same qualities as the subject, upon the analogy that prevails in other like relations in other departments of the law, as in the case of a mortgage or other security given for the payment of a debt and which attends upon it, into whosesoever hands the debt may pass.

We think the maritime law subsists as an entirety as the subject of federal jurisprudence, and is to be administered by the federal courts without impairment by state legislation. If changes are to be made in it, it must be done by federal authority. These reasons would persuade us to follow the rule affirmed by this court in the case of The Samuel Marshall, even if we were not bound by the authority of that decision. The rule was not inaugurated, nor was it first announced, by the opinion in that case. On the contrary, it had already been stated and applied by Mr. Justice Matthews, with whom the circuit judge concurred, in the case of The Guiding Star, 18 Fed. 263, a case pending in this circuit, where the court upon a very lucid statement of the rule declined to rank the lien given by the local law, according to the position it would have under such law, and determined its rank by the rule of the maritime law, and reversed the decree of the lower court, which was at variance with it.

Liens created by state laws on ships and other water craft are not of themselves merely subjects of the maritime law. But because such a lien is a right or interest inherent in a principal subject of a maritime nature of which the admiralty takes jurisdiction, a jus in re, as Mr. Justice Curtis characterized it in the Young Mechanic, the court will recognize this advantage as an incident of the debt or claim it is administering, and will give to the owner of the claim the benefit of it. The court treats the claim as one improved by the lien. And upon another special ground where a surplus has arisen after a sale for the satisfaction of the claim, the court will administer it; this ex necessitate. It has the fund and must dispose of it. This is a part of and properly belongs to the duty the court is discharging.

The rule affirmed in The Guiding Star and in The Samuel Marshall has been recognized in the Second Circuit by Judge Brown in the case of The Advance (D. C.) 60 Fed. 766, and by the Court of Appeals in The Electron, 74 Fed. 689, 21 C. C. A. 12, and by Judge Hazel in The William P. Donnelly (D. C.) 156 Fed. 302. The ruling in The Electron was reaffirmed in The Golden Rod, 151 Fed. 9, 80 C. C. A. 246. In the Ninth Circuit it had already been applied by Judge Hoffman in The Columbus, 5 Sawy. 487, Fed. Cas. No. 3,044, and it was confirmed subsequently by the Circuit Court of Appeals in The Lighters, 57 Fed. 664, 6 C. C. A. 493, and by Judge Morrow in The Templar (D. C.)

59 Fed. 203, and The Alvira (D. C.) 63 Fed. 144. In the Fourth Circuit, Judge Brawley, in the case of The Sappho (D. C.) 89 Fed. 366, adhered to the same doctrine. In the Fifth Circuit, Judge Toulmin signified his concurrence in The Lena Mowbray (D. C.) 71 Fed. 720, and The City of Camden (D. C.) 147 Fed. 847. In the Seventh Circuit Judge Seaman agreed in The Westover (D. C.) 76 Fed. 381. To the contrary are in the First Circuit The Iris, 100 Fed. 104, 40 C. C. A. 301, by the Circuit Court of Appeals, and in the Third Circuit, The Vigilant, 151 Fed. 747, 81 C. C. A. 371, by the Circuit Court of Appeals. And in both the First and Third Circuits there have been decisions of the lower courts to the same effect. It is much to be regretted that there should be such a conflict of opinion, but our own duty seems clear.

In respect to the objection that the towage was not requested by the appellant, it is to be inferred that the court thought that in the light of the circumstances the correspondence should be construed as indicating that it was to be done for the benefit of the appellant and therefore presumably to be paid for by it. The vessel was to be delivered at the shipbuilding company's wharf; and the title had already passed. If it had remained there, it would have been at the owner's risk. We are inclined to concur in the construction of the agreement which the court put upon it.

The decree of the District Court will be affirmed, with costs.

(Circuit Court of Appeals, Sixth Circuit. January 24, 1910.)

No. 1,982.

1. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 184*)-NATURE OF ASSIGNMENT -CAPACITY OF ASSIGNEE.

Though the legal title to property covered by a deed of assignment passes to the assignee, he is regarded as the assignor's agent to distribute the proceeds of the property among the creditors.

[Ed. Note. For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 555-571; Dec. Dig. § 184.*]

2. BANKRUPTCY (§ 440*)-APPEAL-"CONTROVERSY ARISING IN BANKRUPTCY PROCEEDINGS."

Nothing can be regarded as a "controversy arising in bankruptcy proceedings," within Bankr. Act July 1, 1898, c. 541, § 24a, 30 Stat. 553 (U. S. Comp. St. 1901, p. 3431), providing for appeals in such proceedings, where the subject-matter and object of the proceedings are within the power of the trial court to make a summary order, especially where a plenary action is not sought; a complaint in regard to a summary order to turn over assets not being specially made appealable under such subdivision. [Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 440.*

Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]

3. BANKRUPTCY (§ 440*)-REVIEW-APPEAL-PETITION TO REVISE.

In determining the remedy as between review or appeal in bankruptcy proceedings, the court is governed by the object and character of the proceeding.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 915; Dec. Dig. § 440.*]

4. BANKRUPTCY (} 440*)—SURRENDER OF ASSETS-SUMMARY ORDER.

A decision denying a summary order, in bankruptcy, to compel the bankrupt's assignee for the benefit of creditors to turn over to the trustee assets alleged to belong to the bankrupt, is reviewable on a petition to revise in matter of law, authorized by Bankr. Act July 1, 1898, c. 541, § 24b, 30 Stat. 553 (U. S. Comp. St. 1901, p. 3432).

[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 440.*] 5. BANKRUPTCY (§ 9*)-STATE INSOLVENCY LAWS-SUSPENSION.

Rev. St. Ohio § 6343, as amended by Act April 26, 1898 (93 Ohio Laws, p. 290), and Act May 12, 1902 (95 Ohio Laws, p. 608), regulating the administration of property assigned for the benefit of creditors, is not an insolvent law, and was not, therefore, suspended by the federal bankruptcy act.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. §§ 7-9; Dec. Dig. § 9.*]

6. ASSIGNMENTS for BENEFIT OF CREDITORS (§ 22*)-NATURE AND EFFECT. A voluntary assignment for the benefit of creditors, consisting of a transfer of property of a debtor to an assignee in trust to distribute among the creditors, rests primarily, not on the state statute, but on the debtor's common-law power to dispose of his property.

[Ed. Note. For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 36-38; Dec. Dig. § 22.*]

7. BANKRUPTCY (§ 161*)-ACTS OF BANKRUPT-ASSIGNMENT FOR THE BENEFIT OF CREDITORS-TIME.

Where no steps were taken to have an assignor for the benefit of creditors declared a bankrupt until more than six months after his assignment had been filed in the probate court, and it appeared that the assignment was valid both at common law and under the state statutes, the bankrupt's trustee was not entitled to a summary order requiring the assignee to surrender the net assets belonging to the bankrupt in his hands, and this though the appraisement filed by the assignee in probate court indicated that the assignor was solvent, since the making of the assignment authorized the creditors to proceed in bankruptcy within four months, regardless of the debtor's solvency.

[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 161.*]

Petition to Review an Order of the District Court of the United States for the Northern District of Ohio.

In the matter of the bankruptcy of George B. Harvey. On petition to revise in matter of law an order refusing to grant a summary order requiring one Mason to turn over alleged assets of the bankrupt to George T. Farrell, trustee. Affirmed.

The petitioner asks this court to revise in matter of law the action of the court below in refusing to grant a summary order to turn over alleged assets of the bankrupt. On August 3, 1908, Harvey filed a voluntary petition in bankruptcy and was on that day adjudged a bankrupt. On the 18th of that month petitioner was appointed and qualified as trustee in bankruptcy for the benefit of the creditors of Harvey. More than six months prior thereto, namely, January 25th of that year, Harvey filed in the probate court of Columbiana county, Ohio, his deed of assignment for the benefit of his creditors, transferring all his property to one Mason. Mason accepted the appointment, gave bond, and otherwise qualified as assignee, and had, under orders made by the probate court prior to the commencement of his assignor's proceedings in bankruptcy, distributed a substantial portion of the assets among the creditors. The assignee received further moneys, and under like orders made distribution among the creditors after appointment of the trustee in bankruptcy.

On March 1, 1909, while the assignee was engaged in the administration of his assignor's estate, the trustee of the bankrupt filed a petition in the court