Page:Federal Reporter, 1st Series, Volume 6.djvu/488

 476 FEDERAL REPORTBR. �ant not done what, in the consideration of a court of equity, is equivalent to that ? He was under a liability for the bank- rupts, and payment was so made as to relieve him from that liability, and thereby benefit him ; and it is not to be over- looked, — for this is a vital element of the bill, — that this was done in pursuance of a scheme or fraudaient device between the bankrupts and the defendant which enured to the benefit of the latter at the expense of other creditors. Thereby he as effectually secured a preference as if the assets had been paid to him direotly, and he had then personally appropriated them to the payment of the note. �In Bartholow v. Beau, 18 Wall. 635, the question was whether a payment by an insolvent, which would otherwise be void as a preference, was not excepted out of the provisions of the law, because it was made to a holder of his note, over- due, on which there was a solvent indorser whose liability was fixed; and it was held that it was not. Justice Miller, in the opinion, says that "the statute in express terms forbids such preference, not only to an ordinary crediter of the bank- rupt, but to any person who is under any liability for him. intend to place an indorser or other surety in any better posi- tion in this regard than the principal creditor; and that if the payment in the case before us had been made to the in- dorser, it would have been recoverable by the assignee. If the indorser had paid the note, as he was legally bound to do when it fell due, or at any time afterwards, and then re- ceived the amount of the bankrupt, it eould certainly have been recovered of him; or if the money had been paid to him directly, instead of the holder of the note, it could have been recovered ; or if the money or other property had been placed in his hand to meet the note, or to secure him instead of paying it to the bankers, he would have been liable." This language is plainly expressive of the view that if, in advance of his liability being fixed, an indorser takes the bankrupt's property to meet the note which he bas indorsed, when it shall mature, or to secure himself against loss, he will be liable as accepting a preference. And it would seem that i£ ��� �
 * * * It is therefore very evident that the statute did not