provision, the universal rule of construction requires that the special provision shall be considered as an exception to the general rule, contained in the general provision. Townsend v. Little, 109 U. S. 504, 512; United States v. Nix, 189 U. S. 199, 205.

Appellees having demurred only as to jurisdiction cannot now bolster up their case by arguing the merits of the cause of action as if they had demurred generally. This they cannot do. The certificate raises only the question of jurisdiction of courts of the United States as such. Schweer v. Brown, 195 U. S. 171; Lucius v. Cawthorn-Coleman Co., 190 U. S. 149. The merits of the case are not before this court.

Appellees confuse the New York lien law as to chattel mortgages with the personal property law as to pledges and other charges. Hangen v. Hachemeister, 114 N. Y. 566; Southard v. Benner, 72 N. Y. 424; Russell v. Winne, 37 N. Y. 591. And the question of jurisdiction alone can be considered. Act of March 3, 1891, c. 517, § 5; Hennessy v. Richardson Drug Co., 189 U. S. 25, 33; Huntington v. Laidley, 176 U. S. 668, 679; McDonald v. Smalley, 1 Pet. 620.

As to Re Economical Printing Company, 110 Fed. Rep. 514, cited to effect, that there should have been an allegation in the bill that there was a judgment creditor in existence, in whose right the trustee was acting, see In re Garcewich, 115 Fed. Rep. 87.

The lien law of New York provides that transactions such as are disclosed by the appellant's bill, shall be "absolutely void as against creditors."

Muller v. Nugent, 188 U. S. 1, 14, holds that the filing of a petition in bankruptcy is in effect a levy of attachment and it is settled law of the State of New York that an attaching creditor may attack an invalid chattel mortgage.

Other Circuit Courts of Appeals have refused to follow Re Economical Printing Company, supra. See Chesapeake Co. v. Seldner, 112 Fed. Rep. 593; Re Antiago Screen Co., 123 Fed. Rep. 249; Re Rodgers, 125 Fed. Rep. 169; Re Pekin Plow Co.. VOL. CXCVIII-35

Argument for Appellee, Security Warehouse Co.

198 U. S.

112 Fed. Rep. 308; Spencer v. Duplex Co., 112 Fed. Rep. 638, 643; In re Beede, 126 Fed. Rep. 853; Mueller v. Bruss, 112 Wisconsin, 406, 412, and cases cited.

Hewit v. Berlin Co., 194 U. S. 302, held in construing § 112 of the lien law of New York with respect to conditional sales, that a trustee in bankruptcy has no standing to attack a voidable transaction thereunder.

Mr. Edwin B. Smith for appellee, Security Warehousing Company, as to question of jurisdiction:

The fair presumption as to a court of limited jurisdiction is against the jurisdiction until the contrary appears. Thomas v. Board, 195 U. S. 210; People v. Spencer, 55 N. Y. 1; Fife v. Whittell, 102 Fed. Rep. 539; Pacific Railway v. Los Angeles, 194 U. S. 118. The history of the act shows this jurisdiction never was intended; that § 70e affects fraudulent conveyances running back through the period of the State's statutes of limitations which are a fraud on creditors though made without reference to the bankrupt act. These long past transactions are left to the state courts unless defendant consents to the jurisdiction of a Federal court. Collier on Bankruptcy, 4th ed., 250; Gregory v. Atkinson, 127 Fed. Rep. 183; Brandenberg, 369, § 578.

To maintain an equity suit under § 70e, by a trustee, these facts must be averred with the certainty and positiveness required in equity pleadings, viz.: (1) A transfer by the bankrupt; (2) such as his creditor might have avoided; (3) that the defendant is not a bona fide holder for value; (4) that the proposed defendant has consented to the bringing and prosecution of the suit in the Federal court. Before a party can avail himself of the statutory right he must show upon the record that his is a case which comes within the provisions of the statute. Pacific Railway v. Los Angeles, 194 U. S. 118.

In this case the bill does not properly aver any one of the necessary jurisdictional facts. It is immaterial how this failure to state jurisdictional facts is called to the attention of the

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Argument for Appellee, Security Warehouse Co.

court. Chase v. Palmer, 23 Maine, 345; Richards v. Lake Shore, 124 Illinois, 521, and the presumptions are against it. Wels. Eq. Pl. 10, 126; M. & F. 128; Vernon v. Vernon, 2 Myl. & Cr. 145; Clark v. Dillon, 97 N. Y. 373.

The transfer by the bankrupt was not one that any creditor might have avoided. A general lien was created at common. law and sustained by statute. Brooks v. Hanover Bank, 26 Fed. Rep. 302; Stallman v. Kimberly, 121 N. Y. 393; Yenni v. McNamee, 45 N. Y. 614. A trustee in bankruptcy can avoid a transfer only to the extent that a judgment creditor could. Re N. Y. Economical Printing Co., 49 C. C. A. 133; Re Kellogg, 112 Fed. Rep. 52; Hewit v. Berlin, 194 U. S. 302; Thompson v. Fairbanks, 196 U. S. 526; In re Garcewich, 115 Fed. Rep. 87.

The bill does not charge that defendants were holders for value.

It is not the defendant's consent that is made a condition precedent to jurisdiction, but that of the person whom the trustee proposes to make a defendant.

A "proposed" defendant is not one in esse, but a person intended to be made such in futuro. 27 App. Div. N. Y. 110. The purpose to sue him in a bankruptcy court must be communicated, and assented to by him, before service of the summons; for that service makes him, eo instanti, a defendant, calling him into court to make some defense. 184 U. S.

26. Section 23 does not say simply no suit shall be brought without the consent of the proposed defendant; it adds "or prosecuted." Consent to the prosecution of a suit requires something more than merely appearing to demur. The Bardes case went up on a demurrer to the jurisdiction. 178 U. S. 525; In re Thomson, 112 Fed. Rep. 946; Donnelly v. Cordage Co., 66 Fed. Rep. 613; St. Louis Ry. v. McBride, 141 U. S. 127; Louisville Traction Co. v. Cominger, 184 U. S, 26; In re Mitchie, 116 Fed. Rep. 725; In re Steuer, 104 Fed. Rep. 977; In re Hembey-Hutchinson Pub. Co., 105 Fed. Rep. 909.

Mr. Louis F. Doyle for appellees, Wenman and others: The bill is not framed as an application for the exercise of the summary jurisdiction of the court of bankruptcy and it seeks relief wholly beyond that jurisdiction. Bardes v. Bank, 178 U. S. 524; Whitney v. Wenman, 96 App. Div. N. Y. 290; White v. Schloerb, 178 U. S. 542; Mueller v. Nugent, 184 U. S. 1; Minnesota v. St. Paul Co., 2 Wall. 609; Morgan Co. v. Tex. Cent. Ry., 137 U. S. 171; Sharpe v. Doyle, 102 U. S. 171, distinguished.

On the admitted facts it does not appear that the property was in custodia legis. See Bush v. Export Co., U. S. Circuit Ct., E. D. Tennessee, August, 1904.

Jurisdiction is not conferred by § 70e. Bardes v. Bank, 178 U. S. 524, and cases cited by other counsel for appellees.

MR. JUSTICE Day, after making the foregoing statement, delivered the opinion of the court.

This case is here upon the question of the jurisdiction of the District Court to entertain the action. The case in the court below was dismissed for want of jurisdiction, the demurrer having been sustained solely upon the ground that the bankruptcy act of July 1, 1898, as amended by the act of February 5, 1903, gave the court no jurisdiction. We are not concerned with the merits of the controversy further than the allegations concerning the same are necessary to be considered in determining the question of the jurisdiction of the District Court as a court of bankruptcy to entertain this suit. It is sufficient to say that in our opinion the bill made a case which presented a controversy for judicial determination as to the right of the defendants to hold the lease and property under the alleged security of the warehouse receipts undertaken to be issued in the manner set forth in the petition. Whether it will turn out upon full hearing that the lease and securities are good is not now to be determined. The bill makes allegations which raise a justiciable controversy as to the validity

of the alleged lien in view of the lack of change of possession of the goods under the circumstances set forth. The question for this court now to determine is whether the bankruptcy court, on the allegations made and admitted as true by the demurrer, had jurisdiction to determine the controversy. It is positively alleged in the bill that the supervision and control of the goods continued in the firm of Dresser & Company, and that the alleged doings of the Security Warehousing Company and its agents were merely colorable and did not, in fact, change the control over the goods, nor give any notice of the alleged lease of the Warehousing Company, nor the lien of the instruments thereby secured. It is further positively averred that when the receivers were appointed upwards of $150,000 worth of goods belonging to the firm were in the possession and under the control of the bankrupts, and after the receivers had taken possession of the store the goods were delivered up to the Warehousing Company without any order or attempt to procure the sanction of the court to such surrender of the property. Under these circumstances had the bankruptcy court jurisdiction to determine the rights of parties claiming interests in the property?

Section 2 of the bankrupt act of 1898, among other things, confers jurisdiction upon the District Courts of the United States, as courts of bankruptcy, (3) to "appoint receivers or the marshals, upon application of parties in interest, in case the court shall find it absolutely necessary, for the preservation of estates, to take charge of the property of bankrupts after the filing of the petition and until it is dismissed or the trustee is qualified;" (7) to "cause the estates of bankrupts to be collected, reduced to money and distributed, and determine controversies in relation thereto, except as herein otherwise provided."

This section, in connection with section 23, was before this court for construction in the case of Bardes v. Hawarden Bank, 178 U. S. 524, in which case it was held that section 23b of the act as it then stood prevented the courts of the United