John McLean

“ But, further, in the bill there is a want of equity, in two essential particulars. The complainants nowhere deny that Yarborough knew of the pendency of the case in the Circuit Court of the United States for the state of Georgia. Shultz does not deny that Yarborough knew of it. In point of fact, it is very plain that he did know. In point of equity it was his duty to know, and in duty Shultz was bound to inform him. Nothing but a clear and positive denial could be admissible, and that would hardly be credible. Without such an averment, it becomes a fact in this case, that Yarborough did know. ”

“ At law, he may have a suit marked to his use. But bankruptcy does not abate a suit, at law or in equity. 1 Cook's Bankrupt Law, 558, 560. The suit goes on. If the complainant become a bankrupt, his assignee may come in by supplemental bill. It depends upon himself whether he will or not. In either case, the suit goes on. He cannot file a bill of revivor. Neither was it the business of the defendant to require or compel him to come in. It was the business and duty, therefore, of Mr. Yarborough himself to come in. ”

“ If Yarborough really had any uniting in one own, and Shultz only the contrary of equity, by whatever name called, it would not follow, it may be admitted, that he would not have a right to sue out an original bill, according to his equity. It may be admitted, further, that he might have a right to make Shultz a party defendant. But if they unite in one right, it must be obvious that the want of equity of the one must be available against both, and is demurrable. ”

“ Mr. Davis contended, on behalf of Lamar, that the Bank of the state of Georgia was a purchaser at a judicial sale, under a decree of a court having jurisdiction of the cause, the parties, and the subject-matter,-the sale being unimpeached for either fraud or irregularity, and so entitled to the bridge, and to convey it to Lamar. ”

“ But if no amendment had been made, would the orders and decrees in the case by the Circuit Court have been nullities? That they have been erroneous, and liable to be reversed, is admitted. In Skillern's Ex'rs. v. May's Ex'rs., 6 Cranch, 267, a final decree had been pronounced, and by writ of error removed to the Supreme Court, who reversed the decree, and after the cause was sent back to the Circuit Court, it was discovered to be a cause not within the jurisdiction of the court ”

“ The denial of jurisdiction in the Supreme Court does not involve the denial of that of the Circuit Court, nor show that its decree is void; for on certificate of division, the points certified alone are before the Supreme Court ”

“ Admitting, ex gratia, that Yarborough was assignee, duly appointed by an insolvent court, the assignment constituting him such assignee was in invitum in the state of South Carolina, and it could not on that ground operate a transfer of funds in the registry of the court of Georgia. Such assignment was not only in invitum, but was the creature of a local law of South Carolina, and could have no extra-territorial operation to pass property in Georgia. The general right of a foreign assignee to sue may be admitted ”

“ If the proceedings were void, how comes it complainants seek to revive a nullity?
3. We shall contend that the proceedings were not void, and that the decree cannot be impeached in the manner attempted by the present bill.
7th. We shall argue that the assignee (the only one appointed by the insolvent court) having disclaimed, Shultz, in whom the legal title was, became by implication the trustee of his creditors, and thus all parties were before the court at the time the decree was rendered. Tunno v. Edwards, 2 Treadw. (S.C..) 674. ”

“ The allegation of the invalidity of the mortgage to the bank is likewise controverting the opinion of the court, that it was valid, so far as to authorize a sale, or it is entirely irrelevant.
So none of them avail, to impeach the title of the bank of of Lamar. 2 How., 43, 58; 2 Pet., 168; 10 Id., 472, 473; Bennett v. Hamill, 2 Sch. ”

“ Story Eq. Pl., § 383, n. 3; 1 Dan. Ch. Pr., 75; Sharp v. Hullett, 2 Sim. & Stu., 496; Pendleton v. Fay, 3 Paige (N. Y.) , 206; Whitney v. Bank of United States, 13 Pet., 13; 3 Dan. Ch. Pr., 1733, 1737; 2 Ves., Sr., 571, 577; Dexter v. Dexter, 4 Mason, 304; Story Eq. Pl., §§ 466, 527, 528, 443; 1 Dan. Ch. Pr., 449, 625, 655; 4 Paige (N. Y.) , 639.
3d. ”