DUVALL VS. SPEED. 237

trustee of the insolvent, himself. Or, in other words, because
such trustee sells free of incumbrances, as he must do, in or-
der to accomplish the purposes of the insolvent system, that the
same result must follow when a sale is made by a chancery
trustee, in a case to which the trustee in insolvency is a party."

But can this be so ? If it is, then the fund raised by the sale
in Hodges' case, should have been handed over to the insolv-
ent trustee, to be administered in insolvency by him, and its
distribution by this court was improper.

The insolvent system, as contained in the act of 1805 and its
supplements, is a system to be administered by the courts of
law, and with which this court has nothing to do; the County
Court is to appoint the trustee—to order the sale—to fix the
commission—and to limit the time for the creditors to bring in
and declare their claims.

Now, if the trustee appointed by this court can by any
consent of the trustee in insolvency, be so far substituted for
him, as that a sale made by the former, shall pass to the purchaser
an unincumbered title, to the same extent, as if made by the
latter; and, if this court, by reason of such assent, or presence
of the insolvent's trustee, as a party to the cause, can adminis-
ter the insolvent system, it should do so, as the County Court
is required to do by the act of assembly.

The creditors should be called in upon notice, as provided
for by the 12th section of the act; for surely nothing could be
more unjust, than that their rights should be concluded, with-
out an opportunity of asserting them. If the argument of the
counsel of the complainant is sound, that the insolvent trustee
represents all the creditors of the insolvent, then it follows, not
only that these judgment creditors are concluded, but all the
other creditors of the insolvent are in the same situation, though
they may have had no notice whatever of the existence of this
chancery suit, and of course no opportunity of presenting their
claims. Now, suppose it should turn out, that there is some
other creditor of Sevier, having a lien older than Hodges' mort-
gage, who never, as these creditors did, came in and asked to
be paid out of this fund, and who in point of fact, had no no-