Page:Federal Reporter, 1st Series, Volume 2.djvu/197

 190 ÏBDEBAL BHPORTBB. �An assignee in bankruptcy takes the property subject to ex- isting liens. He is not a purehaser for value, but a volun- teer. He cannot, therefore, avail himself of the objection that the execution is dormant, since the bankrupt himself could not do so; nor did the subsequent instructions to the sheriiï, not to levy, impair or affect the lien created by the delivery of the execution to the aheriff, if that is to be upheld as a valid lien. Ferguson v. Lee, 17 Wend. 260 ; In re Week, 4 N, B. E. 364. Nor is there any basis for the suggestion that prior to the bankruptcy the judgments had been vacated, and that the executions and levies must fail on that account. �The only ground for this is that on the twenty-seventh of Au- gust, 1877, the judgment debtor applied to the marine court by motion, upon afBdavit, to be allowed to come in and interpose a defence in said actions, and forother relief. Upon this ap- plication the court granted an order to show cause, with a stay of proceedings under the executions until the hearing and determination of the motion. This stay was modified, how- ever, so as to allow a levy to be made, and the first levy cer- tainly was made before the commencement of the proceed- ings in bankruptcy. The motion did not come to a hearing till after the bankruptcy. It resulted in the granting of the motion for leave to come in and defend, leaving the judg- ments, executions and levies to stand as secarity. Answers were served under the leave so given, which were afterwards struck out as sham and frivolous. There was clearly nothing in this proceeding which affected or impaired the lien of the executions, if that was otherwise valid. �The further point made by the complainants, that the judgments and executions must be set aside as fraudulent in fact against the bankrupt and its assignee, cannot be sus- tained. It is unnecessary to consider the question raised by the defendants, whether this court would bave jurisdiction to decree the nullity of the judgments and executions for this cause, as it is very plain that whatever cause of action of this nature, if any, the corporation had, it waived its right to this relief before the bankruptcy, and its assignees are bound by that waiver. The bill, indeed, puts in issue the existence ����