already escaped from his control. The act of the defendants was necessarily an obstruction and hindrance of the marshal in the performance of the duty in which he was then engaged, namely, the duty to arrest and take into custody the person who, in his presence, had attempted to vote under circumstances justifying the belief that he was not entitled to vote. The question whether the drawing of a pistol by the marshal was necessary to enable the marshal to protect his custody of the prisoner had no materiality. The material question was whether the marshal, while engaged as he was in maintaining his custody of Shafer, had been obstructed and hindered by the defendants in the discharge of that duty. So, also, the question whether Shafer had, in fact, the right to vote was immaterial, when it was shown that the circumstances under which Shafer attempted to vote were sufficient to justify the belief that he had no such right: the duty of the marshal to arrest him was made to appear.

It has been further contended that the arrest of the marshal, under the circumstances, was no offence, because the laws of the state required the defendants, being policemen, to arrest any person believed to be committing a breach of the peace, and equally made it their duty to remove the prisoner to a police station. But the law of the United States (section 5522) made it the duty of the defendants, under the circumstances, not to obstruct or hinder the marshal in an effort to maintain the custody of a prisoner duly arrested by him. This duty, created by this law of the United States, was not affected by any provision of the laws of the state. The statute of the United States says: "Whether with or without any authority, power, or process from any state or municipality;" and indicates, as clearly as language can, the intention of the legislative power to be that no authority derived from a law of the state should furnish excuse or justification for an obstruction of a marshal in the performance of a duty required of him by law. Upon the occasion in question this statute of the United States was the paramount law, binding upon policemen and all other persons. To this law the defendants owed obedience. any

authority, power, or process from any state or municipality to the contrary notwithstanding. Having been proved to have disobeyed this law, they were properly convicted.

The rulings and charge of the judge at the trial were in harmony with the views here expressed.

The views derive support from expressions used by the supreme court of the United States in Ex parte Siebold, 100 U. S. 371, where the court, in speaking of the same statute, and in regard to a line of argument similar to that which has been addressed to us on this occasion, say: "The objection so often repeated, that such an application of congressional regulations to those previously made by a state would produce a clashing of jurisdiction and a conflict of rules, loses sight of the fact that the regulations made by congress are paramount to those made by the state legislature; and if they conflict therewith, the latter, so far as the conflict extends, cease to be operative." And again: "The regulations of congress being constitutionally paramount, the duties imposed thereby upon the officers of the United States, so far as they have respect to the same matters, must necessarily be paramount to those to be performed by the officers of the state. If both cannot be performed, the latter are, pro tanto, superseded, and cease to be duties."

We add that an adoption of the arguments made in behalf of the defendants in this case would in effect make the execution of the laws of the United States, in regard to elections, to depend upon the will of the state, would render the marshals of the United States subject to the control of the municipal police in respect to the manner in which they should discharge their duties as to elections, and, in our opinion, would go far to nullify the law.

The motion for a new trial is denied.

DOUGLASS, Assignee, etc., v. VOGELER.*

(District Court, S. D. Ohio. February, 1881.

1. BANKRUPT LAW-SECURITY FOR ADVANCES.

A security given by an insolvent debtor, for money advanced to him at the time, is not in violation of the bankrupt law.

2. SAME SECURITY FOR INDORSEMENTS.

And the same principle would apply to a security given for a liability assumed (i. e., as an indorser) upon which money is raised for the bankrupt.

3. SAME-SAME - SECURITY SUBSEQUENTLY GIVEN AGREEMENT FOR, NEED NOT BE IN WRITING.

And if such advancement is made, or obligation assumed, upon an agreement that the bankrupt would execute a mortgage upon certain personal property to secure such advances or such assumed liability, a mortgage in pursuance of such agreement will be valid; and it is not necessary that such agreement should be in writing.

4. SAME-EXCHANGE OF SECURITIES.

An exchange of securities is not in violation of the bankrupt law.

5. UNRECORDED CHATTEL MORTGAGE-VALID BETWEEN MORTGAGOR AND MORTGAGEE.

As between mortgagor and mortgagee, a chattel mortgage is valid without being recorded.

6. SAME

ASSIGNEE IN BANKRUPTCY-BANKRUPT-CREDITORS.

In relation to liens of this character, the assignee occupies only the position of the bankrupt, and therefore is precluded from disputing their validity.

In Bankruptcy. Exceptions to Register's Report.
Long, Kramer & Kramer, for assignee.

Butterworth & Vogeler, contra.

SWING, D. J. The petition in this case alleges that Otto Taxis, being insolvent, on the twenty-fifth day of April, 1877, executed to Frederick Vogeler, to whom he was indebted in the sum of $1,500, and who was also liable as indorser for him, a chattel mortgage; that the mortgage was made to secure the sum of $5,000, and was made by said Taxis with intent to give a preference to the said Vogeler, and with intent to defeat the

*Reported by Messrs. Florien Giauque and J. C. Harper, of the Cincinnati bar.

operation of the bankrupt law; and that said Vogeler, at the time the chattel mortgage was made to him, had reasonable cause to believe that Taxis was insolvent, and knew that a fraud upon the bankrupt law was intended. The plaintiff therefore prays that the mortgage may be set aside. The defendant, by his answer, admits the making of the mortgage, but denies all the other allegations of the petition, and claims that the mortgage is a valid, subsisting lien.

The case was referred to Register Ball for the taking of testimony and for an opinion therein. The register has reported the testimony and his findings. The register reports that from the evidence in the case Taxis was insolvent when the mortgage was executed, and that Vogeler had reasonable cause to believe he was insolvent, and therefore the mortgage should be set aside; and the cause is now for hearing upon the report of the register and the evidence in the cause.

The defendant claims that the conclusion to which the register arrived is erroneous. He claims that the mortgage was given in substitution of a former mortgage, and for credit and advances made in pursuance of an agreement that the mortgage should be given, and therefore it was valid, although Taxis may have been insolvent, and the defendant may have known that fact.

The evidence in the case shows that in January, 1876, Vogeler loaned to Taxis $3,000, for which he took a chattel mortgage on the fixtures and chattels in a drug store on Broadway, and on a bottling establishment in the same place. This loan was for one year, evidenced by a note for $3,000, and two notes for $120 each, for the semi-annual interest at 8 per cent. It further appears that this mortgage was delivered to Vogeler, but was never recorded. When the note became due he paid one-half of it. And it further appears that about the first of April, 1877, Vogeler agreed to assist Taxis to raise money to relieve him from embarrassment by indorsing for him, and that, to secure him, Taxis agreed to give him a mortgage upon the Fifth street store property, and upon the Broadway property, which was already mort.

gaged. It further appears from the 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 $375 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 all $3,235. It further appears that on the twentyfifth day of April a chattel mortgage was given, which was filed on the eleventh day of May, 1877. And it further appears that on the twenty-second day of June proceedings in bankruptcy were instituted against Taxis. The proof shows that all 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 has 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 has been frequently held that a security taken from an insolvent debtor, for money advanced to him at the time, is not within the inhibition of the bankrupt law. Tiffany v. Boatman's Institution, 18 Wall. 375.

And the same principle will apply to the security for a liability assumed upon which money is raised for the insolvent. But it is said the liability in this case was one which had been assumed prior to the giving of the mortgage, and 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 specific property upon which it was afterwards given; and that before the agreement was made, that he and Taxis consulted an attorney to know whether such an agreement would be legal,