Page:Federal Reporter, 1st Series, Volume 1.djvu/585

KIMBEELINQ V. HARTLY. 577 �the bankruptcy, and the property and right of action paased absolutely to the assignee, and he alone had the right to sue. �In the case at bar there was a lis pendens and a lien, and the crediter had a right to proceed to satisfaction in the state court unless he was stayed by some appropriate affirmative action of the assignee or the bankrupt court. The distinction in the two cases is obvious, and is clearly pointed out in Wintersv. Claiton, 54 Miss. 341; S. C. 18 Bank. Eeg. 533. �The rule is well settled that an assignee pendente lite, whether he be the claimant of a legal or equitable interest, or whether he be the assignee of the plaintiff or of the defend- ant, need not be made a party to the bill, and is bound by the decree. Story'sEq. PL § 156. �It is generally true that this rule does not apply to assign- ments by mere operation of law, and it bas been held not to apply to an assignee in bankruptcy of the defendant. Story's Eq. PI. § 158a; Lowry v. Morrison, 11 Paige, 237. But the supreme court of the United States, in Eyster v. Gaf, supra, seems tu place assignees in bankruptcy, so far as relates to pending suits to enforce liens on the bankrupt's property, on the sam .-^ footing as a purchaser pendente lite. The court say : "We see no reason "why the same principle [that one who purchases pendente lite is bound by the subsequent proceed- ings] should not apply to the transfer made by a bankrupt proceeding." �In that case, as we have seen, pending an action to fore- close a mortgage, the mortgagor was adjudged a bankrupt, and the court, af ter stating that the assignee might have mada himself a party, say that "if he chose to let the suit proceed without such defence he stands as any other person would on whom the title had fallen since the suit was commenced." And see Carr v. Farmington, 63 N. C. 560. �The discharge of the bankrupt pending the s.uit did not discharge or impair the lien acquired by the commencement of the suit. A decree in personam, against which the dis- charge, if properly pleaded, would bave been effectuai, was not sought or rendered, and the discharge was unavailing against �v.l,no.8— 37 ��� �