Page:Federal Reporter, 1st Series, Volume 4.djvu/117

 STEVEN3 V. THE EAILEOADS. 103 �tioned. xt is true the paper said to be seeured by this lien is negotiable, and the holder, whoever he be, would be en- titled to the benefits of the lien ; but the causes of action on the bonds protected by this principle against the consequences of lis pendens are independent of and entirely collateral to those causes of action arising out of the lien. If one held a negotiable note, seeured by a mortgage given by some third party not bound on the note, it cannot be that ail the legal and equitable suits between the payee of the note and the niortgagor would corne to naught by a transfer of the note, simply because the note was negotiable, when it is only in a court of equity, and by operation of equitable principles, that a transfer of the note would transfer the lien. The mortgage itself is not negotiable in that sense. �The cases cited neither in principle nor precedent apply to a case like this, and I know of no reason why an assignee of these bonds would not be chargeable with notice, by the pendency of these suits, of the defences set up by defendant, against the claim of a lien on their property. The answer given by Mr. Justice Miller in Durant v. lowa County, 1 Wool. 69, and approved in Warren County v. Marcy, supra, to objections to the doctrine making negotiable paper an ex- ception to the rule of lis pendens, rendors this view more cer- tain. He says the party can protect himself against a trans- fer by injunction, or a decree that the securities be given up to be cancelled. Now no injunction would be granted restrain- ing these plaintiffs from transferring these bonds of the state of Tennessee to wbomsoever they pleased, or requiring them to surrender them to be cancelled. The suit does not involva the bonds, and these defendants have no concern with them, or interest in having them enjoined or cancelled. Their only concern isto protect themselves against the claim of a lien on their property, and this they can effectually do only by an ad- judication that no such lien exists, and a decree restraining the plaintiffs from setting it up against them. No cross-biU is nec- essary to entitle a defendant to such a decree. It is the cus- tomary decree where a plaintiff sets up in a court of equity a false claim to property, or to an interest in it or lien upon it, ����