Page:Federal Reporter, 1st Series, Volume 6.djvu/67

 DOUGLAgS V. VOGBLER. 55 �gaged. It furtlier appears fromthe evidence that on the third day of April, 1877, Vogeler gave to Taxis a note for $600. On the twelfth of April, three notes of Taxis to A. Wolf for $376 each were indorsed by Vogeler; on the sixteenth of April a note for $700; on the twenty-fifth of April a note for $310; and on the fifth day of May, 1877, a note for $500 was given, — making in ail $3,235. It further appears that on the twenty- fifth day of April a chattel mortgage was given, which was filed on the eleventh day of May, 1877. And it further ap- pears that on the twenty-seeond day of June proceedings in bankruptcy were instituted against Taxis. The proof shows that ail the notes except the note for $700 had been paid January 3, 1878, by Vogeler. Although some of them were indorsed or drawn in the firm name of Vogeler' s firm, they were paid by him. Whether the $700 note bas since been paid the evidence does not disclose. �. Upon this statement of facts two questions arise — First^ was the mortgage, as to the liabilities assumed by Vogeler for Taxis, in contravention of the bankrupt law ? It bas' been f requently held that a security taken from an insolvent debtor, for money advanced to him at the time, is not within the inhibi- tion of the bankrupt law. Tiffany v. Boatman's Institution, 18 WaU. 375. �And the same principle will apply to the security for a liability assumed upon which money is raised for the insolv- ent. But it is said the liability in this case was one which had been assumed prior to the giving of the mortgage, aud the mortgage must, therefore, be regarded as a security for a pre-existing debt. The notes and indorsements secured by this mortgage were given before its date : — the proof shows that one was given upon its date, one after, and the balance before. But the testimony of Vogeler is clear and explicit, that before any of the notes were given it was agreed that they should be secured by a mortgage upon the specifie propr erty upon which it was afterwards given; and thp.t before the agreement was made, that he and Taxis consulted an attorney to know whether such ^n agreement would be legal, ��� �