ware in that behalf. He further insists that the petitioners are barred from attempting to ascertain and establish this lien, and have the same decreed by this court, because he is barred by the act of congress, (section 5057,) which is in these words, viz.: "No suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee. And this provision shall not in any case revive a right of action barred at the time when an assignee is appointed."

On the first ground relied on by the respondent, the court thinks that if the petitioner has an equitable ground for relief he will not be estopped by reason of not having proven his claim prior to the time of filing his petition, as he has already proven it under the order of this court, and had a right to do so up to the time of the distribution of the assets by the assignee. It is alleged by the respondent that no maritime lien ever was created. That is a fact to be determined on proof, if the court should think it can properly be gone into hereafter. The court is unwilling to say that if there was a maritime lien created it has been lost by the laches of the petitioners, or by the lapse of time since the labor and materials were furnished, so far as the statutes of Delaware are concerned.

Is the petitioner barred by the statute of the United States (section 5057, Rev. St.) from proceeding to ascertain and establish this lien? What do the petitioners ask the court to do in this case? They are asking to have ascertained, established, and decreed a lien on the funds in the hands of the assignee, which, when said lien is ascertained, should be paid over to them as secured creditors to the exclusion of the other and general creditors. Surely this is an adverse claim by a creditor against an assignee touching property or rights of property of the bankrupt transferable and vested in the assignee. As far as the statute of limitations is concerned the important question is, is this proceeding by the lien cred

itors, the petitioners, substantially a suit? We have no doubt it is. Petitions by assignees to compel lien creditors to disclose the character of pretended liens, and to ascertain liens, in Stickney v. Wilt, 23 Wall. 150, and in Milner v. Meek, 5 U. S. 252, are considered and so adjudged to be substantially suits in equity.

Admitting it to be true, as claimed by the petitioners' counsel, that a creditor can proceed by petition and voluntarily submit himself to the jurisdiction of the court, while an assignee cannot proceed in that manner, it does not follow that the proceeding may not be substantially a suit; for, as has been said, if a proceeding by petition by an assignee be a suit, there is no reason why a like proceeding by a creditor to determine the same issue is not also a suit. The issue being the same between the same parties, if one is a suit in equity the other must also be one. But this lien is a maritime lien, against which no statute of limitations runs, and it is argued that it was not meant to abridge the operation of an admiralty lien by this limitation of actions; that it was not intended to make a new subject-matter, but to simply apply the limitation to the ordinary forms of action known in the commonlaw courts. This may be ingenious, but it does not appear to be founded in reason. The congress of the United States certainly had power to limit the prosecution of claims in admiralty as well as any other, and there is no reason why disputed contests over liens should be permitted to postpone the settlement of the bankrupt estate on account of any peculiar sacredness of a maritime claim. They are not excepted by the act, and we do not see why they should be.

I think there can be no doubt that the ascertainment or establishment of a lien, which, when paid, will absorb most if not all the property covered by it, is the determination and settlement of the most vital question touching property transferable to the hands of the assignee, and that the statute of limitations applies to a proceeding to enforce such a claim as a suit. The fact that the subject-matter of the controversy is a lien, does not prevent the proceeding being considered a suit. The supreme court, in Stickney v. Wilt, 23 Wall. 150,

and Milner v. Meek, 95 U. S. 252, have treated and considered proceeding by petition on behalf of the assignee, to dispute with lien creditors of the bankrupt the validity of their liens, as suits in equity. And this disposes of all that is necessary to be said on that point. Supposing that petitioners were bound to proceed by suit against the assignee, are they barred by the statute of limitations before quoted? This lien arose on the furnishing of the repairs and supplies, if it was created at all, and could have been enforced by suit immediately afterwards-before the bankruptcy, if they were furnished before that period-and at any time subsequently. Certainly the vessels could have been proceeded against by suits in rem as well as the funds arising from their sale. As the goods were furnished, (the last charge being on October 15, 1875,) it will appear that more than four years had elapsed before suit was brought to ascertain and establish the lien growing out of the petitioners' claim, the petition having been filed on November 19, 1879. The petitioners' counsel insists that the statute of limitations cannot commence to run against the assignee until the receipt by him of the money from the sale of the boats, which was December 12, 1877. This is manifestly an error, as by operation of law all the property of the bankrupts was vested in him by deed of assignment, referring back and operative from the date of the bankruptcy, which was March 13, 1876. Moreover, this suit is not merely to take money out of court; it is also for the ascertainment and enforcement of a lien, and it was fully competent for the petitioners to have ascertained and established all liens on the property of the bankrupts as fully and effectually after the appointment of the assignee as before. We cannot, therefore, accept this view of the case as affected by the statute of limitations.

The supreme court, in Bailey v. Glover, 21 Wall. 342, say in reference to the statute of the Revised Code above quoted: "This is a statute of limitations. It is precisely like all other statutes of limitations, and applies to all judicial contests between the assignee and other persons touching the property or rights of property of the bankrupts, transferable or vested

in the assignee, where the interests are adverse, and have so existed for more than two years from the time when the cause of the action accrued for or against the assignee." In Gifford v. Helms, 98 U. S. 248, the same language is held. We do not see how we can avoid giving effect to the statute of limitations, (U. S. Rev. St. § 5057.)

That part of the prayer of the petitioners must be denied, but they can prove the claim as an unsecured one, subject, however, to any defence the assignee may make to the amount or validity and accuracy of the items. The petitioners must pay the costs.

UNITED STATES v. THIRTY-Two BARRELS OF DISTILLED

SPIRITS.*

(District Court, S. D. Ohio. November, 1880.)

1. INTERNAL REVENUE LAW-WHOLESALE LIQUOR DEALER-CHANGE OF PACKAGE- ADDITION OF WATER.-The mere addition of water to packages of distilled spirits, upon which the tax had been fully paid, the wine and proof gallons therein having been by age reduced below the original gauge, is not a change of package requiring a wholesale liquor dealer's stamp to be placed thereon.

In rem.

Action for forfeiture of distilled spirits. Trial to a jury. The evidence showed the addition of water to the spirits to have a been about a gallon per barrel.

Channing Richards, U. S. Dist. Att'y, for plaintiff.

Bateman & Harper, for defendant.

SWING, D. J., (charging jury.) The 30 barrels of distilled spirits sought to be forfeited in this case were seized by Collector Kennedy, of the fourth Ohio district, as forfeited to the United States for the following causes: First. "That said distilled spirits were in certain casks and packages containing more than five gallons, the said casks and packages not

*Reported by Messrs. Florien Giauque and J. C. Harper, of the Cincinnati bar.

having thereon each mark and stamp required by law," contrary to section 3289, U. S. Rev. St. Second. Some person then and there carrying on the business of a distiller and wholesale liquor dealer did "omit, neglect, and refuse to have gauged and inspected the said distilled spirits," said person having an interest therein as owner, etc., contrary to section 3458, U. S. Rev. St. (old section 96.)

Section 3323, U. S. Rev. St., requires that when there has been a change of packages there must be a re-inspection and gauging, and certain marks and brands placed thereon; and section 3321 requires a restamping. If packages which have been properly stamped and marked are withdrawn from the warehouse and taken to the wholesale dealer's establishment, and he desires to change them, or withdraw from one cask and put in a smaller one, or anything of that character, he is required to have a new and different stamp, in addition to that which had been previously put on, placed on such packages by the officers of the government, and to have them remarked and branded. It is alleged in this case that these barrels had not the stamps and brands required by law, and therefore that they were forfeited.

If these spirits were originally properly gauged and stamped and marked, upon being withdrawn from the distillery and placed in these packages, and were passed over to the wholesale liquor dealer's establishment-the claimant of this property being a distiller and also a wholesale liquor dealer-he had no right whatever to make any change in these packages by withdrawing from one package and placing in another, or by withdrawing from one package and adding to the quantity in another, or changing the quality of the proof of any package. And if this case comes fairly within the provisions of the statute which required him to procure additional stamps from the collector, he would be guilty of a violation of the statute. The only question of law which is presented to be determined by the court is this: Provided a package had been properly stamped under the provisions of the law, and marked with the true original proof and wine gallons,-whatever may be required to have been marked and stamped upon