this; lallegation, has paid into thE! registry of the court the sum of,· $470.70, being the amount of the alleged tender. The libelant now Waves for an order for the paJ'ment to him of this sum. The claimant resists the motion, and cites :M:ayor, etc., v. Patten, 1 Oranch,C. C. 294. The whole report of that case is as follows:
"Plea of tender, etc. Before trial of the issue, Mr. Swann, for the plaintiff, moved the court forleave to take out the money, and go on for the balance of ,his claim. 'Esp. N. P. 161. The court thOUght the plaintiff could not take the money out, and then proceed for more."
The case is certainly in point, but it does not appear to have been decided on argument, and is therefore not strictly an authoritYiand I can perceive no reason on which it is based. The tender implies a consent on the part of the claimant that the moneJ' in COUrt1 is the property of the libelant, and it therefore must be paid to him in any event, and there seems no reali'lon why the payment should not now be made., . If it be found that there was, in fact, a tender, and that the tender was for the full amount due, the claimAnt will recover costs, which, as in all other cases of suits on: claims ascertained to be unfounded, is taken to be full compensation. The principles laid down in '.Espinasse and the cases there cited seem to point to this conclusion, with which they are in no respect in conflict. There will be an order that the fund be paid to the libelant, after deducting the fee chargeable by the clerk.
THE JAMES ROY.
RYLAND v. THE JAMES ROY.
(District Court, S. D. New York. February 13, 1894.)
ATTACHADMIRALTY- PROPERTY IN POSSESSION OF ASSIGNEE OR RECEIVER MENT BY 'MARSHAL.
Property in the hands of an assignee for the benefit of creditors, unlike property in the possession of a receiver, Is not in custodia legis; and one who has a maritime lien against it is not obliged to obtain the consent of a state court before arresting the property in the admiralty.
In Admiralty. On motion to set aside arrest of vessel by the marshal under process. Denied. Oharles M. Stafford, for petitioner. Hyland & Zabriskie; for libelant. Root & Clark, for the marshal. BROWN, District Judge. The above libel was filed on the 2d of February, 1894, to reco'Ver damages to the libelant's scow, through the alleged negligence of the tug James Roy while having the scow in tow on the 23d day of November, 1893. Upon process in rem the marshal, on the 2d of February, arrested the tug and took her into his custody. The petition avers that the owner of the tug on the 16th day Qf 1893, made a general assignment for the benefit ,of his creditors,without preference; that the assignment was
THE JAMES ROY.
duly recorded, an approved bond given by the assignee, and an inventory filed-all in accordance with the New York statute of 1877, and the amendments thereto; and that possession of the tug was taken by the assignee, who held the same at the time she was taken from him by the marshal. The petitioner prays that ,the tug be discharged from arrest, on the ground that she was virtually in custodia legis, and therefore not liable to arrest by the marshal under process of this court. Taylor v. Carryl, 20 How. 596. Under the laws of this state, the county courts, and the supreme court, have concurrent summary jurisdiction upon petition to supervise the conduct of assignees, to enforce the provisions of voluntary assignments for creditors, and to settle and adjust the assignee's accounts. This liability of the assignee to regulation, direction, and control, does not in any sense make such a voluntary assignee, ipso facto, an officer of the court, like a receiver, a sheriff, or a marshal. The very fact that under the laws of New York there are two independent courts that may exercise this same supervisory power over assignees, is conclusive that the assignee's possession of the assigned property is not of itself the possession of either court; since the same property cannot be in the possession of both courts at the same time, and the possession of either would exclude the other. There is, in truth, no foundation for the contention that the assignee's possession is that of either court, until after some definite proceeding in the one court or the other has been taken to give the court possession of the property, as in other regular suits; and none such has been taken in this case. Under the state law the assignment is in no sense a judicial proceeding, or any part of any judicial proceeding in insolvency, like an assignment in bankruptcy. The state court of appeals, in construing the state act, has repeatedly held that it has made no difference in the essential nature of the assignee's possession; and that the assignee "is merely the representative of the debtor." In re Lewis, 81 N. Y. 421,424; In re Holbrook, 99 N. Y.539, 546, 2 N. E. 887; Roberts & Co. v. Vietor, 130 N. Y. 585, 598, 29 N. E. 1025. A receiver, on the other hand, is the representative of the court that appoints him; his hand and his possession are those of the court. The supreme court of this state has held that the county court, notwithstanding the general language of the act of 1877, has no authority to entertain summary jurisdiction of claims upon the property hostile to the assignee; but only of proceedings in aid of the trust; and that opposing claims must be enforced by regular action against the assignee. Potter v. Durfee, 44 Hun, 197; In re Witmer, 40 Hun, 64. The ordinary practice, moreover, to make such voluntary assignees parties defendant in foreclosure suits, without any application for leave to sue, is conclusive that the petitioner's contention has no recognition even in the state courts. In the federal courts this question has been repeatedly adjudicaiedadversely to the claim now made. t:rhe statutes of Michigan, v.59F.no.7-50
which. are more· favorable· to tIre petitioner's contention than the statutes of New York, ha.Ye been held, on full consideration and discussion of the subject by the present Mr. Justice Brown, in the case of Lehman v. Rosengarten, 23 Fed. 642, to present no obstacle to suits in,replevin against the assignee in the federal courts. Various other· cases are there cited to the same effect. The present case is one of a maritime lien. The federal courts alone have jurisdiction to enforce such liens. "This jurisdiction," says Mr; Justice Brown, "cannot be ousted or impaired by any provisions of the state law requiring creditors to appear before a state eourt and present their claims. Suydam v. Broadnax, 14 Pet. 67; HydeY. Stone, 20 How. 170; Bank v. Jolly's Adm'rs, 18 How. 503; Payne.v. Hook, 7 Wall. 429; Chewett v. Moran, 17 Fed. 820, 822." While a receiver, appointed by a state court, or its sheriff, is ,in possession of the property subject to the lien, the marshal of this court will not interfere with that possession by an arrest of the property for the enforcement of the maritime lien, without the aBsent of the state¢otirt whose officer· is in possession; because such a course would lead to irreconcilable conflicts between different courts in the exercise of their lawful jurisdictions. Taylor v. Carryl, supra. But. the state court in such a case has no authority to adjudicate the maritime lien, or the maritime claim, without the creditor's assent.. It cannot compel the maritime creditor to come before it; nor can it sell the property freed from the maritime lien. As the sale of any property by the state court while the property is subject to an undefined, unadjudicated maritime lien, is highly disadvantageous and prejudicial to the interest of the assigned estate, leave to sue in a court competent' to make a binding adjudication as regards such liens is usually given; though sometimes leave is refused,apparentiy through misapprehension as to the lack of constitutional authority in the state cou.rtto sell and convey the property free' from the maritime lien, or to abridge the creditor's constitutional right to enforce his lien in the federal court. When such leave is refused, the creditor, if he wishes to rely on his lien, must wait until the state court has disposed of the property, and the ereditorcan then pursue his constitutional remedy in rem against the property; without regard to the proceedings in the state court. As respects the validity of an atTest of property, as between different courts,the question is one of priority of possession. In this ,case, the tug when seized was not in the custody of the state court, or of any officer of that court. AsI have before said, the assignee does not stand in the' situation of· a receiver. He takes the property from the assignor, cum onere; and he holds it as the representative of the debtor, and upon the private trust expressed in the assignment. Executors and adlninistrators are subject to equal, if not greater, supervision and direction by the probate court; bUt, so far as lam aware, it has never been supposed that a mario time lien could not be enforced against a veflsel after the owner's death, and While the vessel was in the possession of an administrator or executor.
It is ,further urged that in another cause an application to the supreme eourt by another libelant for leave to sue in this court was denied; and that the present libelant prepared a similar application, but withdrew it after that decision. The refusal to give leave in the case referred to was well enough; since, if the case was ODe of a maritime lien, the application to the state court was itself an impertinence. For neither the supreme court, nor the county court, has any jurisdiction of the subject-matter of such an application, the assignee not being a receiver or an officer of the court; and in such cases, the state courts have no jurisdiction to make orders permitting or enjoining suits to enforce maritime liens, which, under the constitution and the judiciary act, fall within the exclusive jurisdiction of the federal courts. Motion denied.
THE AMERICA. BEACH et al. v. THE AMERICA:. (District Court, S. D. New York. February 15, 1894.)
SHIPPING-NoNDELIVERY OF CARGO- BREAKAGE-PRODUCTION 011' REMAINS OF' PACKAGE-PERILS OF THE SEA-BILL OF LADtNG-ExCEPTIONS.
Though the ship does not produce the remains of casks alleged to have been broken by perils of the sea, the fact that the casks were actually received on board Is a matter of proof, and the absence of such remains Is not necessarily conclusive of bad faith on the part of the ship; and when the testimony Is explicit that the casks were well stored, and that the ship encountered heavy weather, resulting in the destruction of a number of casks, a decree will be given for the ship under the exceptions of 'a bill of lading against insufficiency- of package, breakage, leakage, and perils of the seas.
Libel for nondelivery of cargo. Goodrich, Deady & Goodrich, for libelants. John Chetwood, for respondent.
BROWN, District Judge. The above libel was filed to recover for the nondelivery of two drums of vinegar, which, according to the bill of lading, were shipped on board the America at London in April, 1893, marked "B & S," and deliverable to libelants at this port. The ship arrived in this port on the 27th of April. She met heavy weather, and some 30 casks of various descriptions, partly containing dyestuffs, were found, on opening the cargo, to be more or less smashed, and the contents gone. No vinegar was found, and no staves or heads were produced by the respondent bearing the mark "B & S," as stated in the bill of lading. Two bundles of staves and one head were presented by the respondents to the libelants as being their casks. One of the libelants testified that they had been long accustomed to import similar casks, and that the bundles of staves shown them were not of the usual size and had no smell of vinegar. Two of the defendant's witnesses testified that they had some smell of vinegar. It appeared also that