that the goods shall arrive at the port of delivery notwithstanding the perils insured against; and that, if they fail thus to arrive, and the owner is thereby unable to earn his freight, the underwriter will make it good. It does not undertake that the goods shall be delivered in a sound or merchantable state, or that the vessel in which they are shipped shall be safe against the dangers of the sea, but that it shall be in the power of the insured to earn his freight; that is, that the perils insured against shall not prevent the ship from earning full freight for the assured in that voyage. If the ship and cargo remain, notwithstanding the disasters, in a condition to continue the voyage, it is in his power to earn freight, and he is bound to proceed; but if damage happens to either, and the voyage is broken up, so that no freight can be earned, the owner is entitled to recover, as for a total or partial loss, according as he may or may not have earned freight pro rata itineris. If the damage happens to the vessel, and that can be repaired at the port of distress in a reasonable time, and at a reasonable expense, it is the duty of the owner to make the repairs, and to continue the voyage and earn his freight; and, on the other hand, if the damage happens to the goods, and the ship be in a capacity to proceed, or, if disabled, another can be procured upon reasonable terms, the owner of the ship will still be entitled to perform the voyage and recover his freight, unless the goods have been totally destroyed. In every case, before he can recover of the underwriter, he must 605*] show that he was prevented by one of the perils insured against from completing the voyage, and, for that reason, had failed to entitle himself to freight from the shippers. The first point certified to us assumes that the ship was capable of carrying on the cargo to the port of delivery notwithstanding the injuries received; and the only question is, whether the cargo was so much damaged, and in such a condition, as to have dispensed with that duty. In the case of memorandum articles, the exception of particular average excludes a constructive total loss; and, of course, the principle which allows an abandonment where the loss exceeds half the value does not apply. There must be an actual total loss of the goods. The object of the clause is to protect the underwriter from any partial loss on articles of a perishable nature, which are liable to inherent decay and damage, independently of the damage occasioned by the perils insured against; and where it would be difficult, if not impossible, to distinguish between them. In case of a total loss, consequent upon the happening of one of the perils, the whole damage is presumed to have arisen from that cause, and thus all dispute is avoided as to the origin or nature of the loss. What constitutes a total loss of a memorandum article has been the subject of frequent discussion, both in the courts of England and this country, and in the former of some diversity of opinion; but, in most of the cases, the decisions have been uniform, and the principle governing the question regarded as settled; and that is, so long as the goods have not lost their original character, but remain in specie, and in that condition are capable of being shipped to the destined port, there cannot be a total loss of the article, whatever may be the extent of the damage, so as to subject the underwriter. The loss is but partial. The cases are numerous on the subject, and will be found collected in Park on Marine Ins. ch. 6, subd. 13, p. 247; 2 Phillips on Ins. ch. 18, p. 483; and 3 Kent's Com. 295, 296. It would be useless to refer more particularly to them. The only doubt that has been expressed in respect to the soundness of this rule is, whether a destruction in value for all the purposes of the adventure, so that the objects of the voyage were no longer worth pursuing, should not be regarded as a total loss within the memorandum clause, as well as a destruction in specie. But although this has been suggested in several cases in England as a proper qualification, and as coming within the obligation of the underwriter, there is no case to be found in which the suggestion has received the sanction of judicial authority. In this country the rule has been uniform. that there must be a destruction of the [*606 article in specie, as will be seen by a reference to the following authorities: Maggrath v. Church, 1 Caines, 196, Neilson v. Col. Ins. Co. 3 Ib. 108; Le Roy v. Gouverneur, 1 Johns. Cas. 226, Griswold v. New York Ins. Co. 1 Johns. 205, Livingston, J., S. C. 3 Ib. 321, Saltus v. Ocean Ins. Co. 14 Ib. 138; Whitney v. N. Y. Firemen Ins. Co. 18 Ib. 208, Brooke v. Louisiana State Ins. Co. 4 Martin, N. S. 640, S. C. 5 Ib. 530, Morean v. U. S. Ins. Co. 1 Wheat. 219, McGaw v. Ocean Ins. Co. 23 Pick, 405. 3 Sumner, 544; 1 Story, 342. Whether the test of liability is made to depend upon the destruction in specie, or in value, would, we are inclined to think, as a general rule, make practically very little, if any, differ ence; for while the goods remain in specie. and are capable of being carried on in that con dition to the destined port, it will rarely happen that on their arrival they will be of no value to the owner or consignee. The proposition as sumes a complete destruction in value, otherwise the uncertainty attending it would be an insuperable objection; and, in that view, it may be a question even if the degree of deterioration would not be greater to constitute a total loss than is required under the present rule. The rule as settled seems preferable, for its certainty and simplicity, and as affording the best security to the underwriter against the strong temptation that may frequently exist, on the part of the master and shipper, to convert a partial into a total loss. Mr. Park in speaking of the case of Cocking v. Fraser, 4 Doug. 295, a leading one in the establishment of the rule, observes that the wisdom of the decision is apparent; for, otherwise, it would be a constant temptation to the assured, whenever a cargo of this description was likely to reach the port of destination in an unsound state, to throw the loss upon the underwriters, by voluntarily giving up the further prosecution of the voyage, to which they were not liable by the terms of the memorandum 1 Park, 249. The rule, it will be observed, as we have stated it, contemplates the arrival of the goods, or some part of them, in specie, at the port of delivery; or that they were capable of being shipped to that port in specie. And hence, if the commodity be damaged so that it would not be allowed to remain on board consistently with the health of the crew or safety of the vessel, or if permission be refused to land the same by the public authorities at the port of distress for fear of disease, and, for these and like causes, should, from necessity, be destroyed by being thrown overboard, notwithstanding 607*] the article existed in specie, and might have been carried on in that condition, there would still be a total loss within the meaning of the policy. In the cases supposed, it is as effectually destroyed by a peril insured against, as if it had gone to the bottom of the sea from the wreck of the ship. The same result follows, also, if the goods be so much damaged as to be incapable of reaching the port of destination in their orginal character. These principles are either stated in, or are fairly deducible from, several cases, but especially from the cases of Dyson v. Rowcroft, 3 Bos. & Pull. 474, and Roux v. Salvador, 3 Bing. N. C. 266, and S. C. 1 Bing. N. C. 526. In Roux v. Salvador, in the Exchequer, it was observed that the argument rested upon the position, that, if, at the termination of the risk, the goods remained in specie, however damaged, there was not a total loss; and it was admitted that the position might be just, if, by the termination of the risk, was meant the arrival of the goods at their place of destination; but that there was a fallacy in applying those words to the termination of the adventure before that period by a peril of the sea, as the object of the policy is to obtain an indemnity for any loss that the assured might sustain by the goods being prevented by the perils of the sea from arriving in safety at the port of destination. been inevitable from the damage received, if it had been reshipped before it could have arrived at Matanzas, the port of destination. The second point certified assumes that the vessel, notwithstanding the disaster, was in a condition to carry on the cargo, or that another could be procured, and the question is, whether the plaintiff is entitled to recover, as for a total loss of freight, if it appeared that it was for the interest of the insured and insurer of the cargo, on account of the damaged condition of the portion sold, that it should have been sold, and not carried on to Matanzas, the port of delivery. Many of the considerations stated in our examination of the first point certified have a direct application to this one; as it there appears that the interest of the insured, or of the underwriter of the cargo, is not taken into the account, nor in any way regarded in determining whether or not a total loss of the freight has happened from any of the perils insured against, but whether there has been a destruction of the entire cargo in specie, or such damage received as would inevitably prevent the arrival of any portion of it in specie at_the_destined port. The interest of the owner of the cargo may frequently be adverse to that of the owner of the ship; for although the goods remain in specie, and in that condition capable of being carried on, it may be for the interest of the owner, or of the insurer of the cargo, to have it sold in its then damaged state at the intermediate port instead of taking the risk of further deterioration. But, in that case, the owner, or those representing him, must act upon their own responsibility; for, if he elects to receive the goods voluntarily at a place short of the port of destination, he is responsible for the freight. The loss cannot be total or partial at his will, or as his interest may dictate. It was also remarked, that, if the goods once It was said in Griswold v. New York Ins. Co. damaged by the perils of the sea, and necessari- (which was an action on a policy on freight), ly landed before the termination of the voyage, that whether it would have been wise or foolish were, by reason of that damage, in such a state, in the shipper to have sent on the flour in the though the species be not utterly destroyed, condition it was in, was a question not to be that they could not with safety be reshipped put to the plaintiffs. It was none of their coninto the same or any other vessel-or if it was cern. The risk of the value of the cargo at the certain that before the termination of the orig-port of delivery lay with the owners of the inal voyage the species itself would disappear-cargo. All that the plaintiffs had to do by their in any of these cases, the circumstance of their contract was to provide the means to take on existence in specie at the forced termination of the cargo, by repairing their ship or procuring the risk was of no importance. another. The jury had found in that case, that the hides were so far damaged by a peril of the sea that they never could have arrived at the port of destination in the form of hides; and as the destruction was not complete when they were taken out of the vessel at the port of distress, they became, in their then condition, a salvage for the benefit of the party who was to sustain the loss. In respect to the first point, therefore, the court direct that it be certified to the Circuit Court, that, if the jury find that the jerked beef was a perishable article within the meaning of the policy, the defendant is not liable as for a total loss of the freight, unless it appears that there was a destruction in specie of the entire cargo, so that it had lost its original character at Nassau, the port of distress, or 808*] that a tital destruction would have Other considerations may arise as between the owner and insurer of the cargo, but it is not important now to go into them. On looking into the facts in this case, it will be seen that the portion of the beef landed at Nassau, and sold, was wet and heated; and that the board of health had recommended to the authorities, that it should be removed [*609 as soon as it conveniently could be without too great a sacrifice of the property. It is obvious, therefore, that the perishable condition of the article must be taken into consideration in deciding upon the obligation of the master, in the emergency, to repair his vessel, or to procure another, for the purpose of sending it on to the port of delivery. If it should be made to appear that the repairs or procurement of another vessel would necessarily produce such a retardation of the voyage as would, in all proba bility, occasion a destruction of the article in specie before it could arrive at the port of destination, or from its damaged condition could not be reshipped in time consistently with the health of the crew or safety of the vessel, or would not be in a fit condition from pestilential effluvia, or otherwise, to be carried on, it then was the duty of the master to sell the goods for the benefit of whom it might concern. The cargo being in a perishable condition, the extent of the repairs, or difficulty of procuring another vessel, and consequent delay attending the same, are material considerations influencing his judgment in deciding upon the necessity of a sale; for it would be unreason able to require him to subject his owner to this expense, when, at the same time, a strong probability existed that the cargo would not be in a condition to be reshipped. 18 Johns. 208; 6 Cow. 270; 1 Bing. N. C. 526; 3 Ib. 266; 3 Brod. & Bing. 97; S. C. 6 Moore, 288; 6 Taunt. 383; 1 Holt, 48; 3 Kent's Com. 212, 213; 2 Phillips, 331 et seq. The quantity and value of the portion saved are also material circumstances to be considered in exercising a sound discretion in respect to the extent of the repairs required to be made, or of expense in the procurement of another vessel, with a view to the earning of salvage for the benefit of the underwriter on freight. The owner of the cargo is liable for any increased freight arising from the hire of another vessel; and unless it can be procured at an expense not exceeding the amount of the freight to be earned by completing the voyage, the underwriter on freight has no right to insist upon this duty of the master. Beyond this, it becomes a question between him and the owner or underwriter of the cargo. 3 Kent's Com. 212; Shipton v. Thornton, 9 Adolph. & Ellis, 314; Searle v. Scovel, 4 Johns. Ch. 218; American Ins. Co. v. Center, 4 Wend. 45; 2 Phillips, 216. In respect to the second question, therefore, we direct it to be certified to the Circuit Court, if the jury find that, from the condition of that portion of the cargo sold at Nassau, it was for the interest of the insured and insurers of the 610*] cargo that it should have been so sold, and not transported to Matanzas, still, the plaintiffs are not entitled to recover as for a total loss of freight, provided their own vessel could have been repaired in a reasonable time, and at a reasonable expense, so as to perform the voyage, or they could have procured another at Nassau, the port of distress, and have transshipped the portion sold in specie to the port of destination. The third question is, assuming that the plaintiffs are entitled to recover, is the policy on the amount mentionel for one entire voyage round from Baltimore out, and home again; and are the defendants entitled to deduct from the amount insured the freight earned in the voyage from Baltimore to Rio upon the outward cargo. The policy provides, that the defendants, in consideration of $156.25, agree to insure the plaintiffs, etc., on freight of the bark Margaret Hugg, at and from Baltimore to Rio Janeiro and back to Havana or Matanzas, or a port in the United States, etc., to the amount of $5,000 upon all kinds of lawful goods, etc., be ginning the adventure upon the said freight from and immediately following the lading thereof aforesaid at Baltimore, and continuing the same until the said goods, wares, and mer chandise shall be safely landed at the port aforesaid. It is insisted, on the part of the defendants, that the voyage insured is one entire voyage from Baltimore out to Rio Janeiro, and then to Matanzas, or home; and that they are entitled to a deduction of the freight earned on the outward cargo from Baltimore to Rio. The court are of opinion, that, upon a true construction of the policy, the insurance was upon every successive cargo that was taken on board in the course of the voyage out and home, and is to be applied to the freight at risk at any time, whether on the outward or homeward passage. This was the construction given to these terms in a freight policy in Davy v. Hallett, 3 Caines, 16, and The Columbia Ins. Co. v. Catlet, 12 Wheat. 383. The insurance was regarded as, in effect, covering freight upon separate voyages out and home, to the amount of the valuation; and in the former case the payment of double premium was deemed a pretty sure index to the intent of the parties that the policy should attach on the outward or homeward freight according to events, and was to be valid and operative as long as there was aliment to keep it alive. All the considerations urged in favor of this construction in the cases referred to apply with equal force to the policy in question. The court direct, therefore, that it be certified to the Circuit Court, that, as [*611 suming the plaintiffs are entitled to recover, the defendants are not entitled to deduct from the insured the freight earned on the voyage from Baltimore to Rio upon the outward cargo, as the policy is not for one entire voyage round from Baltimore out, and home. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion agreeably to the act of Congress in such case made and provided, and was argued by counsel; on consideration where of, it is the opinion of this court, 1st. That, if the jury find that the jerked beef was a perishable article within the meaning of the policy, the defendants are not liable as for a total loss of the freight, unless it appears that there was a destruction in specie of the entire cargo, so that it had lost its original character at Nassau, the port of distress; or that a total destruction would have been inevitable from the damage received, if it had been reshipped before it could have arrived at Matanzas, the port of destina tion. 2d. If the jury find, that, from the condition of that portion of the cargo sold at Nassau, it was for the interest of the insured and insurers of the cargo, that it should have been so sold, and not transported to Matanzas, still, that the plaintiffs are not entitled to recover as for a total loss of freight, provided their own vessel could have been repaired in a reasonable The question for adjudication is whether the original plaintiffs can avail thmeselves of this process as a proceeding in rem. Howland, who is the several assignee of each of the original defendants, is in no proper sense a party to the record. He appears in the names of Peck and Bellows, and relies upon their rights. 5 Stat. at Large, 443, ch. 9, sec. 3. time, and at a reasonable expense, so as to per- | able as the one or the other, as the party may form the voyage, or they could have procured elect. another at Nassau, the port of distress, and have transshipped the portion sold in specie to the port of destination. And 3. That, assuming the plaintiffs are entitled to recover, the defendants are not entitled to deduct from the insured the freight earned on the voyage from Baltimore to Rio upon the outward cargo, as the policy is not for one entire voyage round from Baltimore out, and home. Whereupon, it is now here ordered and adjudged, that it be so certified to the said Circuit Court. 612"] *PHILIP PECK and William Bellows, Copartners, trading under the Firm of Philip Peck & Company, Plaintiff in Error, V. JOHN S. JENNESS, John Gage, and John E. Lyon, trading under the Name and Firm of Jenness, Gage & Company, Defendants in Error. *Statutes operate upon property, con- [*613 tracts, or persons. The statutes of the United States and those of a State may operate upon the same property, the same contracts, the same persons. Their action is distinct in time, or in purpose, or both. The operation of the two jurisdictions, each within prescribed limits, is independent. Courts of equity cannot, in this country, in all things, exercise the same power, to the same extent, as do courts of equity in England. Courts of the United States and those of the States have a different origin; their jurisdictions are for different purposes. The one court will exercise its control over the citizen, so as Attachment on mesne process in New Hamp- not to impair his ability to yield obedience to shire creates a lien, not defeated by dis- the other, when and where such obedience is charge in bankruptcy-U. S. District Court, due. The jurisdiction of the courts of' the sitting in bankruptcy, no control of suit United States and of the several States can pending in Common Pleas of New Hampshire. never rightfully come in collision; where the jurisdiction is concurrent, the one which first The proviso of the second section of the Bank-attaches will retain it. There are only two rupt Act passed on 19th of August, 1841, preserves all liens which may be valid by the laws of the States respectively. In some of the States, attachments are issued on mesne process, by which the property seized is held to await the result of the sult. This constitutes a llen, which is saved by the proviso in the Bankrupt Act. The various kinds of liens explained. Therefore, where an attachment was issued and the defendants afterwards applied for the benefit of the Bankrupt Act, a plea of bankruptcy was not sufficient to prevent a judgment from being rendered condemning the property under attachment. The fourth section of the statute, if it stood alone, would make a plea of bankruptcy a good plea in bar in discharge of all debts; but if the whole statute be construed together, this is not the result. modes in which a suit rightfully instituted in a State court can be proceeded in, or controlled by, the courts of the United States; the one is by transfer, the other under the twenty-fifth section of the Judiciary Act. The courts of the United States are invested with the exclusive power of construction of the laws and treaties of the United States; courts of the several States construe the laws thereof; the construction of each, within its appropriate sphere, is obligatory upon the other. When a statute of the United States adopts or engrafts upon itself a statute or law of one of the States, quoad the law adopted, the conA rejoinder, setting forth that the District Court of the United States had decided that the attach-struction of such law, at the time of its adop ment was not a valid lien upon the property, was not a good rejoinder. The District Court could not oust the State court of its jurisdiction, which had already attached. HIS case was brought up from the Superior Hampshire, by writ of error issued under the twenty-fifth section of the Judiciary Act. Peck and Bellows were residents of the town of Walpole, in the County of Cheshire and State of New Hampshire. Jenness, Gage & Company resided in Boston. The facts in the case are sufficiently set forth in the opinion of the court. It was argued by Mr. Goodrich, on behalf of the defendants in error. tion by the highest judicial tribunal of the State whose law is adopted is also adopted. If this be not so, the same law, acting within the same territory and upon the same person, may mean one thing in one court room, something else in another. A State law adopted by the laws of law. The jurisdiction of the District Court of the United States, sitting in bankruptcy, over property, is co-extensive with the effect produced by the decree of bankruptcy; which is to pass the property of the bankrupt, cum onere. The judgment of the court below should be affirmed, and I submit I. That the District Court of the United States for the District of New Hampshire acMr. C. B. Goodrich, for defendants in error: quired no jurisdiction of the several original In October, 1842, the plaintiffs below sued petitions of Philip Peck and of William Belout a process of attachment, upon which estate lows to be declared bankrupt, and its proceedof the defendants below, real and personal, ings upon said several petitions are void. This was attached. This process issues without the is so, because the pleas do not aver or show sanction of any judicial officer. It issues at the that the petitions were verified by oath, will of anyone who assumes to be a creditor without which oath and verification the [*614 of the party against whom it issues. It is a petitions were nullities; because the pleas do proceeding in personam and in rem-is avail-not aver that the petitioners represented to said District Court that they owed debts not created in consequence of a defalcation as a public officer, or an executor, administrator, guardian, or while acting in any other judiciary character; because the pleas do not aver or exhibit the notice which was ordered, or which was published, of the time when the several original applications to be declared bankrupt would be considered. 5 Laws U. S. 440, ch. 9, sec. 1; United States v. Marvin, 3 How. 620; Elliott v. Peirsol, 1 Peters, 338; Ex parte Bollman, 4 Cranch, 93; Sharp v. Spier, 4 Hill, N. Y. 76; Sharp v. Johnson, Hill, 92; Bank of Utica v. Rood, 4 Hill, 535; 2 Christian's Bank. Law, 20, 21, 22; Cooper on Bank. Sta. 165; Buckland v. Newsome, 1 Taunt. 477; Sackett v. Andros, 5 Hill, 330; Stephens v. Ely, 6 Hill, 608; Brereton v. Hull, 1 Denio, 75; Varnum v. Wheeler, 1 Denio, 331; Maples v. Burnside, 1 Denio, 332; Thatcher v. Powell, 6 Wheat. 119; Wilcox v. Jackson, 13 Peters, 511, 516, 517; Walden v. Craig's Heirs, 14 Peters, 147; Hickey v. Stewart, 3 How. 762; Wheeler v. Townsend, 3 Wend. 247; Gordon v. Wilkinson, 8 D. & E. 507; 1 Chitty on Plead. 223; Owen on Bank. App. 25; Archbold on Bank. App. 9 and 97; Wyman v. Mitchell, 1 Cow. 316; Frary v. Dakin, 7 Johns. 75; Ex parte Balch, McLean, 221; United States v. Clark, 8 Peters, 444, 445; Garland v. Davis, 4 How. 131. II. The several rejoinders of the original defendants, and the matters therein set up, amount in law to a departure from their several pleas. 1 Chitty on Plead. 648. III. The statute of the United States, in relation to bankruptcies, passed Aug. 10, 1841, as to all matters of liens and securities adopts the laws of the States respectively, and exempts from the operation of the decree of bankruptcy all property which, at the time of the decree, might be charged with any duty, lien, or security valid by the law of the State in which the duty, lien, or security might arise. This position is sustained by the language of the act, and is in consonance with the uniform policy of the United States, which has been to adopt the laws, usages, and modes of proceeding of the several States so far as practicable. 1 Laws, 92, 1789, ch. 20, sec. 34; Laws, 93, 1789, ch. 21, sec. 2; 1 Laws, 276, 1792, ch. 36, sec. 2; 4 Laws, 278, 1828, ch. 68, sec. 1; 4 Laws, 281, ch. 68, sec. 2; 1 Laws, 79, ch. 20, sec. 12; 2 Laws, 123, ch. 32, sec. 3; 1 Laws, 106, ch. 5; 5 Laws, 393, ch. 43, sec. 4; 5 Laws, 394, ch. 47, sec. 1; 5 Laws, 321, ch. 35; 5 Laws, 410, ch. 2, sec. 1. An attachment on mesne process was known 615*] to the laws of the United States, as a lien and security, and recognized by its judiciary, prior to the bankrupt statute. 1 Laws, 602, ch. 75, sec. 16: 3 Laws. 33, ch. 16. sec. 28; 3 Laws, 83, ch. 56. sec. 6; 1 Laws, 594, ch. 71, sec. 15: United States v. Graves, 2 Brock. 381; Tyrell's Heirs v. Rountree, 1 McLean, 95; S. C. 7 Peters, 464; Beaston v. Farmers' Bank of Delaware, 12 Peters, 102; Wallace v. McConhell, 13 Peters, 151. fesses to pass only such property as the bank rupt might convey; the act gives lm no new right of property, or power over it. Ex parte Christy, 3 low. 316, fully sustains the prin ciple, in which the court say: "There is no doubt that the liens, mortgages, and other se curities within the purview of this proviso, so far as they are valid by the State laws, are not to be annulled, destroyed, or impaired under the proceedings in bankruptcy, but they are to be held of equal obligation and validity in the courts of the United States as they would be in the State court." It is not necessary to ascer tain what constitutes a lien at common law, in equity or admiralty, or in the civil law. The lien protected is such a one as is known to the law of the State in which the question arises. Savage v. Best, 3 How. 119; Norton v. Boyd, 3 How. 436. How will this court ascertain what constitutes a lien by the laws of New Hampshire? By a resort to the adjudications of its highest judicial tribunal; this course is in conformity with general principles and with the course of this court. Green v. Neal, 6 Peters, 295; Livingston v. Moore, 7 Peters. 542; Jackson v. Chew, 12 Wheat. 153; Shelby v. Guy, 11 Wheat. 361. IV. An attachment on mesne process, on the 19th of August, 1841, and on the 10th of October, 1842, was a lien or security valid by the laws of the State of New Hampshire. In support of this, I refer to the laws of New Hampshire, edition of 1830, pp. 58, 59, 101. 105, 106; to Kittridge v. Warren and Kittridge v. Emerson, in manuscript, not yet reported. These cases, and the authorities cited in them, exhibit the law of New Hampshire as it has been recognized from its early history. The principle is sustained by the courts of other States. Kilborn v. Lyman, 6 Met. 304; Hubbard v. Hamilton Bank, 7 Met. 342; Am. Ex. Bank v. Morris Canal Co. 6 Hill, N. Y. 367; Storm v. Waddell, 2 Sandford, Ch. R. 494; Davidson v. Clayland, 1 Harr. & Johns. 546. I refer, also, to an opinion of a distinguished jurist, Hon. Jeremiah Mason, which sustains the views submitted. *In opposition to the two last posi- [*616 tions, Ex parte Foster, 2 Story, 131, is relied upon. I submit that the authorities relied upon in this case do not support the judgment pronounced. The cases mainly relied upon in Ex parte Foster are Atlas Bank v. Nahant Bank, 23 Pick. 488, Conard v. Atlantic Ins. Co. 1 Peters, 386, 441, 443, Giles v. Grover. 6 Bligh, 279. An examination of them will show that they sustain, so far as applicable, the views which I have presented; the case of Giles v. Grover proceeded entirely upon the ground of prerogative, and it was so regarded in a subsequent case. Godson v. Sanctuary, 1 Nev. & Mann. 52. The case Ex parte Foster is not sustained by the reasons; our answer to them is complete. A statute lien is exactly what the statute makes it, and it derives no aid from the analogies of other liens. Several of the adjudications of this court, to which I have referred, are in opposition to the doctrines of Ex parte Foster. I now recur to the position, that the bankrupt statute adopts liens which are so by the laws of the several States. Its correctness is V. Assuming that the bankrupt statute evident from the proviso in the second section adopts the laws of the States respectively as to of the act, and from the fact that the act pro-liens and securities, and that an attachment on |