Page:Federal Reporter, 1st Series, Volume 4.djvu/116

 102 FEDERAL REPORTER. �qualified ; tecond, that the proof does not sustain any estoppel ; third, that the defendants can, by bill of injunction, protect themselves against any transfer; fourth, that the law of lis pendens does not apply to negotiable paper, and that a trans- feree, while this suit is pending, would not be affected by these allegations of estoppel. �On a motion to dismiss I cannot try the merits of thia de- fence, nor determine whether it bas been made out by the proof. Sutton Harbor Co. v. Hitchens, 15 Eng. L. & Eq. 127. It is suf&cient on the present motion that the defence bas been pleaded. The point made by defendants is that they are now entitled to a hearing on the question of estop- pel, and that, relying on the issue of these suits to determine it, they cannot be defeated of their defence by a voluntary dis- missal. It is apparent that if the bonds held by the plain- tifs can be transferred so that the assignee would be unaf- fected by the pendenoy of these suits, no injury can resuit to the defendants by the proposed dismissal. And it is there- fore necessary to settle that point. �The rule is established that negotiable paper may be transferred pending a litigation concerning its validity, or in which defences are made to it, and the bona fide assignee is not chargeable by the pendenoy of the suit with the knowledge of the defence. County of Casa v. Gillett, 100 U. S. 685, 593; County ofWarreny.Marcy, 97 U. S. 96; Orleans v. Platt, 99 U. S. 676. But this doctrine has no application here. This is not a 3uit upon the bonds. The obligor, the state of Tennessee, is aot a party to the suit, and, even if it were, there is no question about the bonds themselves. Indeed, it is not a suit on the commercial paper. It is an equitable cause of action against third parties. It is a bill to enforce a lien claimed upon property in the hands of the defendants, who are not charged on the bonds in any other sense than that there is a lien upon their property. Some of the defendants setting up the estoppel are alleged to be subsequent lien holders, and as to them the controversy is between the plaintiffa claiming one lien and those defendants another. I do not see how this kind of case can be said to corne within the doctrine men- ����