Page:Federal Reporter, 1st Series, Volume 2.djvu/201

 194 FSSSBAIi BSPOBTEB. �were entitled, including that based on the want of juriadio- tion. �I think this proceeding clearly estops the corporation from taking the ground that the judgments are an absolute nuUity in any collateral proceeding. The application could not have been withdrawn without leave of the court so as to reinstate the defendant in the position it was in, with respect to the judgment, before the application was made. It was not with- drawn before the bankruptcy. It was afterwards proceeded with to the knowledge and with the apparent concurrence of the assignees, and resulted in the validity of the judgments being established by the decision of the court. It is not nec- essary, however, to impute any particular efiBcacy to what was done after the petition in bankruptcy was filed. The corpo- ration was already bound by its election of remedies. If the judgments might have been treated as absolutely void, by reason of the fraud, for want of jurisdiction, it had a right to elect between treating them so and going into the court in which they were rendered as a party defendant therein, and submitting itself to its jurisdiction, and obtaining such relief as it was entitled to there. It chose the latter course, and its assignee is bound by its election. �Tbus far it bas been assumed that the fraud is proved. I am not satisfied, however, that the notes were given to Mrs. Penny, as claimed, shortly before the suits were brought, and for the purpose of enabling her to bring'the actions in the marine court. The notes themselves bave nothing on their face to indieate that they were made long after their date. They are written upon blanks in use by the company at the time of their dates respectively, and not in use at the time the suits were brought. Mrs. Penny's testimony is positive that they were given at or about their dates. It is a point on which ehe eannot be mistaken. I have examined with care the testimony of this witness and of the other witnesses, and while there are certainly some inconsistenoies in her statements, and on some points she is seriously contradicted, I have not been able to reaoh the conclusion, to which the argument of the learned counsel for the complainants ear- ����