Hotel Co. v. Construction Co. Cases cited and approved: Warner v. Yates, 118 Tenn., 548; Luttrell v. Railroad, 119 Tenn., 492; Wolf v. Stix, 99 U. S., 1; U. S. Wind, Engine & Pump Co. v. N. Penn. & Iron Co., 227 Pa., 262; Chamberlin v. Huguenot Mfg. Co., 118 Mass., 532; New Lamp Chimney Co. v. Ansonia Brass & Copper Co., 91 U. S., 656; Munson v. Railroad, 120 Mass., 81; Pike Bros. Lbr. Co. v. Mitchell, 132 Ga., 675. Cases cited and distinguished: Hill v. Harding, 130 U. S., 699; Butterick Pub. Co. v. Bowen, 33 R. I., 43; Powers Dry Goods Co. v. Nelson, 10 N. D., 580. 5. BANKRUPTCY. Proof of claim. Action. In the case of a bankrupt corporation, the bankruptcy act does not restrain a creditor who has not proved his claim in bankruptcy from prosecuting an action to judgment to enforce his lien upon the property attached or to charge officers or stockholders liable for the debts of the corporation. (Post, pp. 321, 327.) FROM SHELBY Error to Chancery Court of Shelby County.-FRANCIS FENTRESS, Chancellor. WILSON & ARMSTRONG, for plaintiff in error. H. H. BAKER, MCGEHEE, LIVINGSTON & FARRABAUGH and J. W. CANADA, for defendant in error. MR. A. R. GHOLSON, Special Judge, delivered the opinion of the Court. The facts so far as material to this inquiry are undisputed and are as follows: On October 11, 1912, the Chickasaw Hotel Company a corporation, entered into a contract with the C. B. Hotel Co. v. Construction Co. Barker Construction Company, also a corporation, by which said construction company agreed to erect on a certain lot in Memphis belonging to the hotel company a building known as the Chisca Hotel. The Barker Construction Company, as principal contractor, gave an indemnity bond with the United States Fidelity & Guaranty Company as surety to protect the hotel company against liens. The construction company did not pay all the subcontractors and materialmen for work done and materials furnished for said hotel building, and some nineteen of these parties filed suits in the chancery court at Memphis, claiming liens upon the hotel property. Thereupon the hotel company filed a bill in said chancery court against the C. B. Barker Construction Company, the United States Fidelity & Guaranty Company, the trustees in certain deeds of trust, and said subcontractors and material men. The said bill, among other things, stated that the several lien claimants had served notices and had filed bills thereon to collect from it their respective claims. It alleged that the said construction company and the said Fidelity & Guaranty Company denied some of said claims, or some parts thereof, and denied that some of them were liens on the property of the complainant. In said bill the following allegation is made by the hotel company: "If said claims are valid and binding liens upon its property, the complainant wishes them paid, and complainant also desires that said Barker Construction Hotel Co. v. Construction Co. Company comply with said contract to pay same, and that said United States Fidelity & Guaranty Company should comply with its contract and bond and should indemnify and save it harmless against payment of same. This complainant, however, cannot safely pay or discharge same, even if it had the money in its hands for that purpose, with any denial of liability, or correctness or justness of such claims, either by the Barker Construction Company or the United States Fidelity & Guaranty Company." The prayer of the bill asked that all separate suits of the lien claimants be enjoined, and that they be required to establish their respective claims in the suit brought by the hotel company; that all pending bills be treated as cross-bills in said cause, and the various causes consolidated thereunder; that if any of the lien claimants had valid and subsisting liens against its property, said construction company and said guaranty company be required to discharge same in accordance with their contracts and with the bond of said guaranty company, and that complainant be granted a decree against both of said parties for the amount of such claims as are established as liens against its property, etc. On September 11, 1914, the causes were consolidated under the bill of said Chickasaw Hotel Company, and an order entered that the proof taken in each case be read as to all the causes so far as applicable. It was agreed by counsel, in order to save costs, that the case of the York Lumber & Manufacturing Com Hotel Co. v. Construction Co. pany, was the one that should be brought to this court by appeal, the record in that case being similar to the records in all the other causes. The bill of the York Lumber & Manufacturing Company was filed April 7, 1914. The answer of the construction company was filed September 22, 1914. The answer of the Chickasaw Hotel Company was filed October 24, 1914, both of these answers being to the bill of the York Lumber & Manufacturing Company. The deposition of P. A. Gates, proving the claim of the York Lumber & Manufacturing Company, was filed February 9, 1915. No proof was taken to controvert it. On October 5, 1915, there was filed in the consolidated causes a stipulation of settlement of account between the hotel company and the construction company, which agreement was made between and among three parties: The hotel company, the C. B. Barker Construction Company, by R. E. Montgomery, Vice President, also by R. E. Montgomery its trustee in bankruptcy, and the United States Fidelity & Guaranty Company. This agreement showed that the trustee in bankruptcy in making said agreement was acting by and with the authority of the bankrupt court administering the estate of said construction company. The purport of said agreement was that the clerk and master's report in said cause, filed on the 20th of September, 1915, finding a net balance owing to the construction company by the hotel company of $22,853.38, should be modified so as to show that said hotel com Hotel Co. v. Construction Co. pany owed said construction company the sum of $19,000 as of October 1, 1915, which was to be in full and final settlement between the parties of all claims and counterclaims due for the construction of the Chisca Hotel, and when paid by the said hotel company was to be a full discharge therefor. Judgment was to be entered against the hotel company for said sum, to bear interest from October 1, 1915, until paid. It was stipulated that while said judgment might be in favor of said construction company, the said $19,000 was to be held and applied first to the liquidation and discharge of all legally valid claims for material, labor, and subcontractors which had been or might be established as liens against the property of the hotel company, or for which the Chickasaw Hotel Company was secondarily liable by reason of the lien claims chargeable to the construction company; that said agreement was in no way to release the Fidelity & Guaranty Company from its liability under its said bond to indemnify and hold harmless said hotel company against any liens or balance on any lien claims, material claims or labor claims, or subcontractors' claims, left unpaid after the application of the said $19,000. Upon this agreement a decree was by consent on the same day duly entered in said consolidated causes, embodying said stipulation, and in conformity thereto. On November 4, 1915, the C. B. Barker Construction Company filed a petition for stay and leave to plead its bankruptcy, alleging that on the 21st of September, 1915, it filed its voluntary petition in bankruptcy, and |