The portion of the section beginning with the words " provided, however," was added by the amendment of March 4, 1913. Prior to the amendment, a mortgage taken subsequent to the receipt of the assessment list by the Collector was inferior to the tax lien, even though the mortgagee did not and could not have known of the existence of the tax claim.59 The harshness of this situation was criticized by Judge Rose in United States v. Curry, and was in 1906 made the subject of a protest by the American Bar Association.61

60

It was apparently in response to these criticisms that Congress amended the section to provide for protection of a bona fide mortgagee or purchaser against a federal tax lien which was not filed at the time of the mortgage or purchase.

It is submitted that this amendment clarifies any ambiguity in the intent of Section 3466 or Section 64(a). These two sections can fairly be said to be in pari materia 62 with Section 3186. Although Section 3186 has more general application than the other two, all three deal with preferential treatment of claims of the United States. In the main, tax priorities and tax liens have similar functions. If liens are superior to priorities, and if a tax lien is postponed to an earlier mortgage lien, it cannot be longer maintained that a mere tax priority will override the lien of an earlier mortgage.

63

any mortgagee, purchaser, or judgment creditor until notice of such lien shall be filed by the collector in the office of the clerk of the district court of the district within which the property subject to such lien is situated." 14 STAT. AT L. 107, as amended in 20 STAT. AT L. 331, as amended in 37 STAT. AT L. 1016, 1916 U. S. COMP. STAT., § 5908.

59 United States v. Pacific R. R., 1 Fed. 97 (E. D. Mo., 1880); United States v. Turner, Fed. Cas. No. 16,548 (S. D. Ohio, 1873); United States v. Snyder, 149 U. S. 210 (1893); Blacklock v. United States, 208 U. S. 75 (1908).

60 201 Fed. 371 (D. Md., 1912).

61 See 1906 AM. BAR ASSN. REP., Pt. 1, 598.

62 Cf. In re Stoever, 127 Fed. 394 (E. D. Pa., 1904), holding that § 64 (a) of the Bankruptcy Act is in pari materia with U. S. REV. STAT., §3466.

63 It has been held that priorities were superior to liens. See 2 COLLIER, BANKRUPTCY, 12 ed., 988. But it is now established that liens are a jus in re, whereas priorities are merely procedural advantages. See In re Bennett, 153 Fed. 680, 690 (6th Circ., 1907). A priority has been likened to an equitable lien. Marshall v. New York, 254 U. S. 380, 386 (1920); State v. Rowse, 49 Mo. 586, 592 (1872).

RELATIVE JURISDICTIONS OF ADMIRALTY AND BANKRUPTCY

The first concern of the holder of a preferred ship mortgage will be to obtain a foreclosure of his lien in admiralty." But what happens if he is unable to do so before the complications of insolvency or bankruptcy proceedings set in?

Admiralty and bankruptcy courts have separate and distinct jurisdictions, and function to a large degree independently of each other. The general rule is that whichever court first gets jurisdiction over the vessel is entitled to retain that jurisdiction until its work is done. If the vessel is seized under a libel in admiralty before the owner is adjudicated a bankrupt, the admiralty court refuses to be ousted of its jurisdiction.65 One case ❝ has held that the admiralty court may obtain jurisdiction of the vessel by prior seizure, even after the adjudication in bankruptcy, and proceed notwithstanding the bankruptcy. But under the present Bankruptcy Act, there is strong authority for holding that the bankruptcy court's jurisdiction is complete upon adjudication, even in absence of actual custody of the res."T

66

But, even where the bankruptcy court gets jurisdiction first, it finds itself in an embarrassing position. The power to adjudicate maritime liens 68 is vested exclusively in the admiralty courts. The bankruptcy court cannot sell a vessel free from maritime liens,7° unless the maritime lienors have voluntarily submitted themselves to the jurisdiction of the bankruptcy court.” The usual practice is to reserve all rights in admiralty whenever a claim supported by a maritime lien is presented in bankruptcy. The result is that, sooner or later, the maritime liens must be adjudicated in admiralty, where they are paid out of the proceeds

64 See note 10, supra.

71

65 The Bethulia, 200 Fed. 862 (D. Mass., 1911); The Geisha, 200 Fed. 864 (D. Mass., 1911); The Philomena, 200 Fed. 859 (D. Mass., 1911).

66 The Ironsides, Fed. Cas. No. 7069 (N. D. Ill., 1869), decided under the Bankruptcy Act of 1867.

67 White v. Schloerb, 178 U. S. 542 (1900); In re Alton Mfg. Co., 158 Fed. 367 (D. R. I., 1908).

68 We are assuming that a preferred ship mortgage constitutes a maritime lien. See note 13, supra.

69 In re Interocean Transportation Co., 232 Fed. 408 (S. D. N. Y., 1916). 70 Moran v. Sturges, 154 U. S. 256 (1894).

of the vessel, and the balance, if any, is turned over to the bankruptcy court.

Speaking of a case where admiralty first obtained jurisdiction over the vessel, it was said in The Philomena:72

"Under such circumstances . . . the bankruptcy court cannot administer, nor its trustee 73 take title to, anything more than the bankrupt's interest in the vessel, which will only be so much of her or her proceeds as may be left after the maritime liens are satisfied."

74

Once in the admiralty court's jurisdiction, the holder of a preferred ship mortgage enjoys a favored position that ordinary mortgagees do not. His interest in the vessel will not be subject to the heavy costs of administration in the bankruptcy proceedings. Nor should he be troubled with any doubts as to tax priorities under Section 64 (a) of the Bankruptcy Act. That section must be considered a direction to the bankruptcy court which appointed the trustee, and not as establishing any priority in admiralty. Sections 3466 and 3186 are broader in their scope, and as binding in admiralty as elsewhere. But, as has already been pointed out, taxes are not covered by Section 3466; and Section 3186 by its terms protects the lien of any earlier bona fide mortgagee.

NEW YORK CITY.

H. Maurice Fridlund.

71 Hudson v. N. Y. & Albany Transportation Co., 180 Fed. 973 (2nd Circ., 1910).

72 200 Fed. at 862.

73 The trustee may, of course, intervene to contest the maritime liens claimed. In re Interocean Transportation Co., 232 Fed. at 410.

74 The Philomena, 200 Fed. at 862.

STATUS IN COMMON LAW

THE purpose of this paper is to consider the relations in common law which loosely go by the name of status. We shall try to find how the law treats them, and then recapitulate the findings in an attempt to formulate a status norm. We shall also notice in passing what factors have influenced courts and text-writers to treat these relations as they have. There will be no pretense at cataloguing the minutiae of law on status. The right is expressly reserved to burst from the strict economy of coherence whenever it is profitable or entertaining to do so. As the scope of the subject indicates, the conflict of laws will be of special concern.1

The original extent of these deliberations included a rather minute study of the lectures of John Austin on Status. But though that sound work is the only elaborate treatment of the subject now to be found, the fruit is meagre and dry. And yet out of deference to an honest soul, and to supply a microcosm of the work of jurists nearly a century ago, a brief statement of Austin's conclusions will be first set forth.

AUSTIN'S VIEW OF STATUS

Austin's problems were those of a classifier of positive law. His juristic outlook was severely one-dimensional. He was not concerned with length, which may be called the historical evolution of a concept; nor with width, its philosophical consonance to the nature of things; nor a fortiori with depth, its functional adequacy. He confined himself to the classification of legal phenomena of maturer systems known to him. To understand him we must forget these other qualities of a legal concept and acquire, for the purpose of this study, his one-dimensional point of view.

He accepted in its broad lines the classical Roman division of the ius privatum, into ius rerum, and ius personarum. The law

1 The obviously deep obligation to Professor Beale should not cause the reader to attribute any lapses herein to that preëminent scholar in this field.

of things, he said, is the bulk of those rights and duties, capacities and incapacities, which are the legal lot of the normal citizen of full age and powers. The law of persons, on the other hand, tells us how, for groups of special persons, the normal attributes of the law of things may be varied. The law of things, no less than the law of persons, deals with persons; but the law of persons deals with persons as such. The ius rerum is The Law minus the law of persons, which "for the sake of commodious exposition" is segregated from the bulk of the law as a whole. The law touching persons as such is the law of status or conditions, and in the distinction between the law of things and the law of persons must therefore lie the clue to status.

Austin, therefore, gives the name of status to a by-product. These are his own words:

"Where a set of rights and duties, capacities and incapacities, specially affecting a narrow class of persons, is detached from the bulk of the legal system, and placed under a separate head for the convenience of exposition, that set of rights and duties, capacities and incapacities, is called a status. And this, it appears to me, is the whole rationale of the matter. Though, such is the pother made about status, that nothing but a most elaborate inquiry into the subject would convince me of it." 2

When he has labored through these four lectures, he has in effect said only that status as such is nothing but a mechanical device. According to this criterion, our modern digests, full of relational titles such as master and servant, landlord and tenant, trustee and cestui - would be mostly status.

STATUS IN COMMON LAW

We shall now turn to the relations loosely called status, and see if any of them are candidates for the juridical cemetery. Having found common factors in the judicial handling of these cases, we shall sort them accordingly. I shall, however, at the outset venture a conclusion as a criterion: that those relations are status whose existence in another jurisdiction is measured

2 LECTURES, 4 ed., 746.