NATURE OF A MARITIME LIEN. The maritime privilege or lien is adopted from the Civil Law, and imports a tacit hypothecation of the subject of it. It is a jus in re, without actual possession or any right of possession. It accompanies the property into the hands of a bona fide purchaser. It can be executed and divested only by a proceeding in rem. This sort of proceeding against personal property is unknown to the common-law, and is peculiar to the process of courts of admiralty. (The Yankee Blade, 19 How. 82; Revilla, Commentaries on the Marine Mortgage Law of Spain, Aug. 31, 1893.) LIEN DEFINED. A lien, therefore, may be defined to be a right pertaining to a creditor over the corpus of the property of his debtor for the payment of a debt due the former from the latter. The lien fastens itself upon the goods, as a charge or incumbrance. The extent and nature of the different liens will be fully discussed in the chapters which will follow. MORTGAGE MORE THAN A LIEN. A mortgage is something more than a lien; it is a transfer of property itself, as security for the debt. This must be admitted to be true at law, and it is equally true in equity, for in this respect equity follows the law. It does not consider the estate of the mortgage as defeated and reduced to a mere lien, but it treats it as a trust estate, and according to the intention of the parties, as a qualified estate and security. When the debt is discharged there is a resulting trust for the mortgagor. It is therefore only in a loose and general sense that it is sometimes called a lien, and then only by way of contract to an estate absolute and indefeasible. (Conard v. Atlantic Ins. Co., 1 Pet. (U. S.) 386, 441; 7 L. Ed. 189.) DISTINCTION BETWEEN A "LIEN" AND A "GENERAL PREFERENCE." Before entering into the discussion, it must be noted and kept in mind that in using the phrase general preference I refer to a preference created by a mere judgment, and not a preference with regard to specific property. A right of prior payment does not of itself constitute a lien. The distinction is an obvious one. A lien is said to be a qualified right, which in a given case may be exercised over the property of another. (Lickbarrow v. Mason, 6 East, 20.) It attaches to the subjects of property and follows them in their transmission to others. (Brent v. The Bank of Washington, 10 Peters, 611.) A lien is an interest in property. A preference is not. A lien relates to specific property. A preference has nothing to do with property of any kind. A lien may exist against the property of a solvent debtor. A preference cannot exist or operate except where the debtor is unable to pay his debts in full; for question of preference cannot arise except where the debtor is insolvent and cannot pay his debts in full. This is so of necessity; for, if debtor A is simply able to pay his three creditors B, C, and D in full, how can the necessity exist for determining which of the three creditors shall be paid first or whether they shall be paid out of the proceeds of specific property? If the property encumbered with a lien is sold it is sold subject to the lien; whereas, with respect to preferences, a creditor having an inferior credit who levies and sells does not sell subject to the superior preference. The property sold is sold absolutely free from the superior preference, the only right of the holder of the superior preference being to contest with the person making the sale the distribution of the proceeds; and if he does not exercise his preference by presenting and insisting on his right to be paid ahead of the inferior credit and, by reason of his failure to do so, the proceeds turned over to the person holding the inferior credit under which the sale was made, the superior preference becomes valueless and the creditor holding it loses all rights thereunder. This latter statement brings out the last difference between a lien and a preference to which I desire to call your attention. One of the things showing the wide separation between a lien and preference is this: I recall no case where a preference has been made effective, or any creditor has sought to make it effective, through a direct action by that creditor against another creditor. The uniform and universal practice has been for all the creditors to intervene in a proceeding before the sheriff having for its object the distribution of the proceeds of the sale of all the property of the insolvent debtor. No action is brought in the real sense of the term as no one is made a defendant with the possible exception of the sheriff himself. The creditors simply file their claims with the sheriff with a statement of the grounds on which they base their preference. The sheriff refers the matter to the Court of First Instance, which proceeds to hear the claims of the creditors and to decide the question of preference. A preferred creditor has no cause of action against any other creditor; there is no privity between the two. This situation has been recognized as existing in the Philippine Islands: and, as a result, the proceedings just referred to have always been taken. No independent action by one creditor against another has, so far as I recall, been brought in the Philippine Islands: and the strong probability is that no such action can be maintained. This indicates with striking clearness the difference between the lien and the preference. In case of a lien the lienor has a right of action against any person who takes the property upon which he has his lien. The taking of the property creates a juridical relation between the lienor and the taker which will support the appropriate action. As we have said, no such right of action exists in case of a preference. There the proceeding is in every respect and submit them with their alleged preferences to the determination of the proper authorities. (Mr. Justice Moreland in the case of Kuenzle & Streiff, Ltd., v. Juan Villanueva and Ed. A. Keller & Co., v. Juan Villanueva, 14 O. G. 2212.) CHAPTER III AMERICAN IDEA OF ATTACHMENT. An Attachment on Process is a Lien.-The Circuit Court of Massachussets, speaking through Mr. Justice Story, said in ex parte Foster, 9 Fed. Case, p. 514, that "An attachment does not come up to the exact definition, or meaning of a lien, either in the general sense of the common law, or in that of the maritime law, or in that of equity jurisprudence. Not in that of the common law, because the creditor is not in possession of the property; but it is in custodia legis, if personal property; if real property, it is not a fixed and vested charge, but it is a contingent, conditional charge, until the judgment and levy. Not in the sense of the maritime law, which does not recognize or enforce any claim as a lien, until it has become absolute, fixed, and vested. Not in that of equity jurisprudence, for there a lien is not a jus in re or a jus ad rem; that is, it is not a property in the thing itself, nor does it constitute a right of action for the thing. It is but a charge upon the thing, and then only when it has, in like manner, become absolute, fixed, and vested." The question for determination was whether an attachment is a lien, in such sense as to be within that clause of the Bankrupt Law which protects existing liens against the operation of the law. If a lien, the attachment cannot be dissolved by an act of bankruptcy. Mr. Justice Story in the above entitled case concluded that it does not constitute a lien in any proper legal sense of the term; and therefore the attachment may be dissolved by an act of bankruptcy committed by the defendant after the levy of the writ. The great weight of authority, however, throughout the United States is opposed to the doctrine as laid down by Mr. Justice Story in ex parte Foster, 2 Story 131, Fed. Cas. 4960. To this effect see the opinion written by Mr. Justice Thompson of the Supreme Court of the United States in Haughton v. Eustis, 5 Law Reporter, 505. Also Peck v..Jenness, 7 Howard Sup. Ct. 612; Downer v. Brackett, 5 Law Reporter, 392; 21 Vermont, 599; Franklin Bank v. Batchelder, 23 Maine, 60; Kittredge v. Warren, 14 New Hamp. 509; Kittredge v. Emerson, 15 Ibid. 227; Buffum v. Seaver, 16 Ibid. 160; Davenport v. Tilton, 10 Metcalf, 320; Vreeland v. Brown, 1 Zabriskie, 214; Wells v. Brander, 10 Smedes & Marshall, 348; Hill v. Hardin, 93 Ill., 77; Burke v. Johnson, 37 Kan. 337, 15 Pac. 204, 1 A. S. R. 252; Columbia Bank v. Jacobs, 10 Mich. 349, 81 Am. Dec. 792. All the above authorities make it clear that in the absence of an express provision in the bankruptcy act, an attachment is not dissolved by the defendant's bankruptcy. An attachment creates a lien or a security on specific property and, although arising by operation of law, is as effective as if created by virtue of a voluntary act of the debtor and stands on as high equitable grounds as a mortgage lien. The right acquired by an attachment of property is sufficient to justify the attaching creditor in filing a suit to clear the property from adverse claims or to preserve the lien of the attachment when necessary papers have been lost and cannot be supplied, or in applying for an injunction against the sale of the property under an execution issued on a subsequent judgment. Schuster v. Rader, 13 Colo., 329; Alley v. Carrol, 6 Heisk. (Tenn.), 221; Francis v. Lawrence, 48 N. J. Eq., 508; Smith v. Bradstreet, 16 Pkck. (Mass.), 264. While it is sometimes said that a lien created by an attachment is inchoate, as it awaits the judgment and must fall with the suit, it is, nevertheless, a lien in real sense, Peck v. Jenness, 7 How., 612, 622; Colby v. Ledden, 7 How., 626; Pratt v. Law, 9 Cranch, 456, 496; Fidelity, etc. Co. v. Bucki, etc., Lumber Co., 189 U. S., 135, 139; and places the attaching creditor in the position of a purchaser and he will be protected as such. Green v. Van Buskirk, 7 Wall., 139, 146; Dooley v. Pease, 180 U. S., 126, 128. When an attachment is served, a lien on the property attached is created, which nothing subsequent can destroy but the dissolution of the attachment. Goore v. Daniel, 1 McCord, 480; Peck v. Webber, 7 Howard (Mi.), 658; Smith v. Bradstreet, 16 Pick. 264; People v. Cameron, 7 Illinois (2 Gilman), 468; Vinson v. Huddleston, Cooke, 264; Vanloan v. Kline, 10 Johnson, 129; Desha v. Baker, 3 Arkansas, 509; Freleson v. Green, 19 Ibid., 376; Harrison v. Tracer, 29 Ibid., 85; Davenport v. Lacon, 17 Conn. 278; Woolfolk v. Ingram, 53 Alabama, 11; McClellan v. Lipscomb, 56 Ibid., 255; Grigg v. Banks, 59 Ibid., 311; Schacklett and Glyde's Appeal, 14 Penn. State, 326; Erskine v. Stanley, 12 Leigh, 406; Moore v. Holt, 10 Grattan, 284; Cary v. Gregg, 3 Stewart, 433; Murray v. Gibson, 2 Louisiana Annual, 311; Hervey v. Champion, 11 Hemphreys, 569; Snell v. Allen, 1 Swan, 208; Zeigenhagen v. Doe, 1 Indiana, 296; Pierson v. Robb, 4 Ill. (3 Scammon), 139; Martin v. Dryden, 6 Ill. (1 Gilman), 187; Lyon v. Sanford, 5 Conn: 544; Lackey v. Seibert, 23 Missouri, 85; Chandler v. Dyer, 37 Vermont, 345; An attachment takes precedence of a junior execution. Beck v. Grady, 7 Louisiana Annual, 1; Eddy v. Weaver, 37 Kansas, 540. A purchaser of land under an attachment will prevail against a purchaser under a judgment obtained after the levy of the attachment, though the judgment in the attachment suit was subsequent to the other. Baldwin v. Leftwich, 12 Alabama, 838; American Ex. Bank v. Morris C. and B. Co., 6 Hill, (N. Y.), 362; Martin v. Dryden, 6 Illinois, 1 Gilman, 187; Oldham v. Scrivener, 3 B. Monroe, 597. PHILIPPINE VIEW OF ATTACHMENT.-The attachment law in the Philippine Islands is the same in the nature and effect as in the United States. On examining Chapters VII and XVIII of the Code of Civil Procedure, particularly Sections 150, 428, 435, 436, 437, 440, 461, 462, and Par. 2, of 464, the intention to create an effective lien in favor of the attachment creditor that shall be of practical value is apparent. Section 150 provides that such temporary injunction shall not operate to discharge or release bail nor extinguish "any lien which the party enjoined has acquired upon the property of the plaintiff by attachment or levy of execution." Section 428 says that the property "shall be held to await final judgment in execution." Whose judgment? Undoubtedly that of the attaching creditor. Section 435 provides that the proceeds shall "be deposited in court to abide the judgment in the action." Section 436 says that "If judgment be recovered by the plaintiff the officer of the court must cause the same to be satisfied out of the property attached, if it be sufficient for that purpose." Section 437 provides that plaintiff may proceed by execution “as in other cases” against other property if, after realizing |