part or all of it in his hands when the compromise was finally accepted. It is upon this statement of facts mainly that the United States asserts that the entire $80.000 was money had and received by Ward to its use, and sue for the $45,000 not paid over. The defendant's counsel requested the court to instruct the jury that there was no evidence from which they could infer any other contract between defendant and the railroad company, concerning this $80,000, than the one found in the written proposition. The court refused this request, and charged the jury that there was evidence tending to show that the written proposition of May 14, 1863, did not fully evidence the terms made to defendant by the railroad company, when he made the proposition to compromise to the district attorney and added: "I do not deem it necessary or expedient to say what the legal effect of that proposition is, as if, in the opinion, it is but a partial expression of the arrangement, or is different from the oral arrangement of April, a construction would only tend to complicate your inquiries." Again: the jury were told that it was for them to find what the arrangement or proposition was between the railroad company and the de fendant in reference to a compromise of the bonds, and whether there was any other different proposition than that reduced to writing May 14, 1863, or whether that evidences the precise terms of the arrangement between the company and the defendant when the latter opened negotiations with the district attorney. And they were told that upon their findings, in that respect, would depend their verdict. It is quite clear that the court charged the jury that there was evidence of a verbal contract differing from the one in writing; that they might infer that the verbal contract was such that defendant would be held in law to be a bailee for the United States as to the whole $80,000, and designedly left the impression that this was so clear that it was unnecessary for him to instruct them as to the legal effect of the written contract on the rights of the parties. Now, as all the testimony is in the bill of exceptions, and as the plaintiffs read this written contract as part of their case, we should be able to discern some evidence on which the jury could find not only that there was a verbal contract but that it differed from the written one, and that it showed that the defendant received the entire $80,000 to the use of the United States; for if this was not so the verbal contract was insufficient to authorize the verdict. We have not been able to find in the bill of exceptions anything which justified this charge of the court. Plaintiffs offered in evidence a paper which commences as follows: "It is stipulated by counsel for defendant that the following statements are facts, and that the same may be admitted in evidence upon the trial of this cause on the part of the plaintiffs." Among these statements was this: "That in April, 1863, the Board of Directors of said railroad company was applied to by the defendant verbally to make a proposition of compromise of said bonds, which was put in writing by the president, on the 14th day of May, as follows: "DETROIT AND MILWAUKEE R. R. Co., DETROIT, May 14, 1863. CAPTAIN E. B. WARD. MY DEAR SIR: Referring to the conversation we have had on the subject of the duty bonds due the United States, I am authorized to say that if you can procure the settlement and canceling of them for a sum not exceeding $80,000 currency, that sum to include your services and any claim you may have against the company on account of those bonds, this company is ready to pay, and will pay that sum; one half on your making the arrangement with the government, and the other half within thirty days thereafter. This offer, however, not to be considered as waiving any defense the company has to said bonds and claims. Yours truly, C. C. TROWBRIDGE, President." "And that, subsequently, in April, said Board did verbally make the said defendant the said proposition. From this it is clear that plaintiffs themselves have shown by their own testimony that the proposition which the defendant asked the railroad company to make and which they did make verbally in April is the proposition and the same proposition which was reduced to writing by Trowbridge, the president, on the 14th May thereafter. The writing refers to the previous conversation, and there is no attempt to conceal the fact that the proposition was made at a previous time verbally. Plaintiffs also introduced Trowbridge as a witness, and he testified that, though he had not heard the first conversation between the Board and defendant, he afterwards heard of it from Mr. Brydges, managing director, or from Mr. Summers, counsel for the company, and that after this and upon reducing it to writing in answer to the question of the defendant, as to what the Board had decided as to the proposition, he repeated it orally to defendant as he understood it, and has so stated; and as he understood it, it was fully expressed in the letter of May 14. Trowbridge had become president of the company during these transactions. Now, the plaintiffs not only introduced the statement above alluded to, but they proved by Trowbridge, their own witness, as part of their case, that the verbal proposition of April was identical with the written proposition which they had introduced. How can they be permitted to contradict their own witness and discredit their own written testimony, consistently with the rules of evidence? But if they could, we have searched in vain for any evidence which varies in the slightest degree that which we have cited. It is, in fact, all that there is on that subject. It has been argued here, as it probably was before the jury, that the written proposition was gotten up after the fact to cover up a fraud; that in fact Ward was given the $80,000 for payment to the United States alone without reference to his own claim on the company, and having concealed this fact and made a better compromise than was expected, he had this paper made out to include his own claim to give color to a fraud. But of this there is nothing but the merest suspicion of counsel. No witness has testified that the agree bonds. When this arrangement is made the company is ready to pay half that sum, and the other half in thirty days thereafter." Is this a proposition to pay Ward $80,000 if he procures a settlement of both demands, leaving him at liberty to keep as much or as little of it as he chose, provided he effected their purpose? Or is it a proposal to pay generally the $80,000 on the two demands, provided it be accepted in full satisfaction of both? ment of April was such as is here supposed, or that it differed from the writing of May 14. The plaintiffs themselves have proved that they were identical. It would be a total disregard of all rules of evidence to allow them to go to the jury with an argument founded on mere suspicion, a suspicion contradicted by their own evidence, and then have the court charge that there was in the testimony a foundation for this suspicion, a foundation so strong as to render a construction of the only real proposition which was proved, useless and embarrassing to them. And if it could for any reason be conjectured that the verbal proposal differed from the one made in writing, there is nothing to show what that difference was, and whether it might not have been even more favorable to the defend-response. Without entering into any further ant than the one produced in writing. The jury were left by the court, and in fact told to disregard the facts which were proved, and in dulge in the vagaries of their imagination, in this the turning point of the case. Now, it is undeniable that Ward made a very enormous profit in the transaction, and that he availed himself of a knowledge of facts unknown to the officers of the Government, in a manner which was well calculated to prejudice the jury against his case, but this was no reason why the court should authorize them to indulge this prej udice by a disregard of the established principles of the law of evidence. We are, therefore, of opinion that the circuit court erred in refusing to instruct the jury that there was no such evidence, and in charging them that there was. There were several other prayers for instruc tion asked by the defendant's counsel and refused by the court, on which error is assigned and which we do not deem necessary to notice further than this: that some of the prayers seemed to require a construction of the written proposition found in the record. Whether the specific prayers of the defendant's counsel were such as should have been given or refused, we are of opinion that it was the duty of the court to have given the jury a construction of that instrument, and as this duty will probably arise, and the interpretation of the writing become an important element of a new trial, we will consider it now. The language of the proposition is that they will pay that sum for a settlement of both claims. It does not say that they will pay it to Ward, but willpay that sum on account of these two demands. Ward had first called on them to do something in the matter. This was their verbal criticism of the language of the instrument, but looking to the relations of Ward to the Government, and to the railroad company which made the proposal, we think that its true construction is, that the $80,000 was to be paid in settlement of the claims of the Government on the bonds, and of Ward's claim for becoming surety, and a fair compensation for his serv ices in obtaining the compromise with the Government. With this construction of the instrument— the only evidence before the jury of the terms on which defendant received the money-it should have been left to them to ascertain how much was due the plaintiffs on account of the bonds when the proposition was made, how much was due the defendant for becoming surety for the railroad company, and what was a fair compension for his services in effecting the compromise with the United States. These facts being ascertained, they should have been directed to apportion the $80,000 between the plaintiffs and the defendant, according to the amounts thus ascertained as due to each, and make this the foundation of their verdict, deducting from the proportion of the $80,000 falling to the United States the $35,000 paid them by the defendant. The judgment of the Circuit Court is reversed, and a new trial awarded. Mr. Justice Bradley, dissenting: I dissent from the opinion of the court in this case. It seems to me that the charge of the judge to the jury was correct. The defend The evidence makes it pretty clear that the original corporation, the principal in the warehouse bonds, was also indebted to the defendant was surety for the Detroit and Milwaukee ant in a considerable amount, which appears to have never been liquidated. The corporation whose directors made the proposition to Ward, while it denied a direct liability either to him or to the United States, found a lien on their property which made them desire the settlement of both these claims. These facts are undis puted, and in view of them, and of the other fact that Ward was probably liable to the Government for the full amount unpaid on the bonds, we are to determine what those directors meant. Railroad Company on their re warehousing bonds, given to secure duties on railroad iron, for an amount admitted to be $76,000, besides interest. The property of the company was sold under mortgages, and a new company was formed by the purchasers, who purchased under a stipulation to recognize and pay all sums due the Federal Government for duties upon railroad iron which, it was admitted, then amounted to $94,000. The purchasers, after organization, gave a mortgage in November, 1860, to secure the payment, amongst other things, of the duties owing to the Government of the United States, so that the new company assumed the payment of the duties in question. But their assumption was not communicated to the officers of the Government, and was not known by them. In April, 1863, Ward, the plaintiff in error, urged upon the new company to settle this claim, and also a claim which he had, by way of compensation for becoming surety. The Board of Directors verbally made him a proposition, afterwards put in writing, to the effect that if he could procure the settle ment and cancellation of the bonds for a sum not exceeding $80,000 currency (that sum to in clude his services and any claim he had), they would pay that sum-one half on his making the arrangement, the other half within thirty days. Thereupon Ward had an interview with the district attorney, and after dilating upon the difficulties which would be met with in collecting the money, the defenses which the company had against the claim, etc., said that he had been urging the directors to do something in relation to the bonds; that he thought they were going to have some money that could be applied to this purpose, and that they would do something in relation thereto. He then offered $35,000 in full for the bonds, saying that whether the company did or did not furnish any money, as he expected they would, he would pay that sum out of his own funds, and that the company was apt to be behind when money was to be paid out. He never said one word about the of fer of the company to pay the $80,000, and yet he was the surety, and was seeking to get up obligations that were his own as well as the company's. Under these representations and this suppression of the facts, the district attorney was induced to recommend the offer to the ac ceptance of the department, and on the 24th of July, 1863, Ward paid the $35,000, got posses sion of the bonds, and the next day delivered them to the company and received from it the $80,000 which had been offered. Afterwards, in February, 1864, when the district attorney had discovered the deception, and demanded the balance of $45,000, Ward offered him a check for $22,000, on the plea that when the compromise was made he did not know that the company had provided for the Government claim in their mortgage of November, 1860. Upon this state of facts the Government claimed that the whole $80,000 was received for their use. A singular feature of the case is, that the offer of the company, made to Ward in April, was not put into writing until the 14th of May, 1863, and was then written out at the request of Ward, by Trowbridge, an officer of the railroad company, who was not present when the verbal proposition was made, but only heard of it from others. He wrote it out in a formal letter to Ward, dated May 14th, 1863, and this letter and the evidence of Trowbridge as to what he learned about it from others, is all the evidence we have of its precise terms. The judge left it to the jury to say whether the letter contained the precise oral arrange ment or not, with liberty to take into consideration all the facts and circumstances of the case. The plaintiff in error complains of this feature of the charge. He insists that there was no evidence that the oral agreement was anything different from what the letter stated it to be. formed the government officials of this offer, but made representations which entirely ignored any such state of things-representations, to say the least, that were disingenuous, considering the relation in which he stood to the parties as surety on the bonds. Upon these representations he got a compromise, and afterwards had the offer of the railroad company put in writing in the shape in which it now stands in Trowbridge's letter. He finally received the money and pocketed it all, except $35,000, which he paid to the Government. His conduct was surely an estoppel against himself, so far as the Government was concerned. He was under an obligation to disclose the offer which had been made to him. He admits he received the $80,000 on account of the bonds. He cannot be permitted to say that he received part of the money for himself. If that was the arrangement why did he not tell the district attorney so? As between him and the Government, the latter had the prior right to be paid out of the fund. Ward was surety to the Government for the payment of its whole claim. He must be deemed in law, under the circumstances, to have received the money for the use of the Government. Hence the judge was right in declining to say what the true con struction of Trowbridge's letter was. I think the judgment should be affirmed; and I am authorized to say that Mr. Justice Clifford and Mr. Justice Davis agree with me in this opinion. Cited-93 U. S., 299. DAVID GIBSON, for Himself and THOMAS G. GAYLORD ET AL., Partners, as GAYLORD, SON & COMPANY, Appts., v. AMERICUS WARDEN ET AL. (See S. C., 14 Wall., 244-252.) Chattel mortgage need not be sealed-on partnership property-assignee in bankruptcy, not a creditor, purchaser nor mortgagee—mortgage as to whom valid from its delivery-lien of, follows fund. 1. It is not necessary to the validity of a chattel mortgage that it should be sealed, unless a seal is required by the Statute of the State. executed by one of the partners, is good, if the 2. A chattel mortgage on partnership property other partners authorized its execution, and after its execution, with full knowledge, acquiesced in what he had done. 3. The assignee in bankruptcy is not a creditor, subsequent purchaser,nor mortgagee in good faith, and a chattel mortgage is not void as to such assignee by the Statute of Ohio, which was executed the petition in bankruptcy. before, but filed within four months before filing 4. As between the mortgagor and the mortgagee and subsequent mortgagees and purchasers with NOTE.-Power of partner, as agent, to bind the firm as party to negotiable instruments and otherwise. See note to LeRoy v. Johnson, 27 U. S. (2 Pet.), 188. Partnership realty, conveyance of; rights of partners to convey. One partner cannot execute a deed in the firm It seems to me that the judge went quite as name so as to bind his co-partner. Gerard v. Basse, far as he was bound to go, in favor of the plaint-1. S. (1 Dall.), 119; S. C., 1 Am, Dec., 226; Robinson v. Crowder, 4 McCord, 519; S. C., 17 Am. Dec., iff in error. The great controlling facts of the 762. case were that the company agreed to pay this $80,000 to get clear of the bonds and of ali claims in regard to them; that Ward never in A partner has no power to bind his copartner by an instrument under seal without special author. ity. Trimble v. Coons, 2 A. K. Marsh., 375; S. C., 11 Am. Dec., 411; Morgan v. Scott, Minor, 81; S. C., 22 notice, the mortgage was valid and took effect from the time of its delivery, which was more than six months before the filing of the petition in bankruptcy. 4. The mortgage to Gaylord, Son & Co., made on January 27, 1868, though not filed according to the statute, was valid as against everybody, in the condition of the liabilities as they stood, from the time it was made, to the filing of the second mortgage, on Mar. 18. 1868. If the first mortgage had been then filed, it Argued Feb. 8, 1872. Decided Feb. 26, 1872. would have held a prior lien against everybody, 5. Where the mortgaged premises have been converted into money,the lien of the mortgage follows the fund into the hands of the assignee, and binds it there. [No. 101.] APPEAL from the Circuit Court of the Unit with the possible exception of David Gibson. ed States for the Southern District of Ohio. 1. Bona fide chattel mortgages in Ohio, al though leaving the possession of the property in the mortgagor, were valid, even as against execution creditors, and bona fide purchasers with out notice, before the statute relating to chattel mortgages. Hombeck v. Van Metre, 9 Ohio, 153; Collins v. Myers, 16 Ohio, 552; Brown v. Webb, 20 Ohio, 389; Webb v. Brown, 3 Ohio St., 246. 2. The statute requiring such mortgages to be filed, does not make the filing a part of the execution of the instrument, nor necessary to its validity against the mortgagor and subsequent mortgagees and purchasers with notice. See, Statute, 1 S. & C., 475; Wilson v. Leslie, 20 Ohio, 161; Sidle v. Maxwell, 4 Ohio St., 236; Kendall v. Mason, 7 Ohio St., 198; Gregory v. Thomas, 20 Wend., 17; Day v. Munson, 14 Ohio St., 488; Seaman v. Eager, 16 Ohio St., 209. 3. The mortgage, when filed, gives a prior lien as against all creditors and others who had not by execution levied, attachment or otherwise, before the filing obtained a lien. Webb v. Brown, 3 Ohio St., 253; Swift v. Holdridge, 10 Ohio, 232; Wilson v. Leslie, 20 Ohio, 166; Hallowell v. Bayless, 10 Ohio St., 537; Clarke v. Strong, 16 Öhio, 322; Barr v. Hatch, 3 Ohio, 530; Freeman v. Rawson, 5 Ohio St., 1. Am. Dec., 35; Williams v. Hodgson, 2 Har. & J., 474; S. C., 3 Am. Dec., 563; Overton v. Tozier, 7 Watts, 333. Such authority may be given by parol. Skinner v. Dayton, 19 Johns., 513; S. C., 10 Am. Dec., 286, One partner can convey no more than his own interest in houses or other real estate, even where they are held for purposes of the partnership. Coles v. Coles, 15 Johns.. 159; S. C., 8 Am. Dec., 231. Property conveyed to a partnership vests in the company-not in the individual partners; and the transfer of such property by one of the partners passes only a contingent right to a part after the debts are paid and the copartnership ended. Donaldson v. Bk. of Cape Fear, 1 Dev. Eq., 103; S. C., 18 Am. Dec., 577. Authority cannot be given to a partner by parol to bind his copartners by deed. Hart v. Withers, 1 Penr. & W., 285; 21 Am. Dec., 382. But a thing done in another's presence and at his request is his immediate act, and a partner is bound by a sealed instrument executed by a partner in his presence with his assent in the firm name. Hart v. Withers, 1 Penr. & W., 285; S. C., 21 Am. Dec., 382; Fichthorn v. Boyer, 5 Watts, 159; S. C., 30 Am. Dec., 300; Hunt v. Kline, 2 Miles, 344. Partner may bind his copartner by contract under seal made in the name and for the use of the firm in the course of partnership business, provided the copartner assents previous to its execution, or afterward ratifies and adopts it. Cady v. Shepherd, 11 Pick., 400; S. C., 22 Am. Dec., 379; Russell v. Annable, 109 Mass., 74; Holbrook v. Chamberlain, 116 Mass., 161; McIntyre v. Park, 11 Gray, 106; Tapley v. Butterfield, 1 Met., 517; Swan v. Stedman, 4 Met., 552; Van Deusen v. Bium, 18 Pick, 231; Kendall v. Garland, 5 Cush., 79; Peine v. Weber, 47 Ill., 45; McDonald v. Eggleston, 26 Vt., 5. The new mortgage executed and filed Mar. 18, 1868, was substituted for the other and covered exactly the same property, with the exception of stock in trade, omitted from the last mortgage, but included in the first. There was no provision in the first mortgage giving power of sale to the mortgagor over the stock in trade, and there is no proof aliunde of an understanding that the mortgagor retained the right to sell "stock in trade. But if such understanding had been shown, it would not invalidate the mortgage as to the property covered by the last mortgage. The new mortgage was filed more than four months, and only three days less than six months, before the petition in bankruptcy. It made no change in the situation as to the parties or creditors. No new consideration was necessary, but ample new consideration was given in the surrender of the first mortgage, the indorsement for $10,000 given, and in forbearance. The second mortgage is to be treated in law as if made when the agreement for it was made, preparatory to indorsement, viz.: Jan. 23, 1868, nearly nine months before the petition in bankruptcy. In re Colemere, L. R., 1 Ch. App., 128; Mercer v. Peterson, L. R. 2 Exch., 304; Hutton v. Crittwell, 17 Jur., 392; 72 Eng. Com. L., 15; Er parte Tempest, Br. L. R. Eq. Pi., Jan. 1, 1871, p. 70. The transaction was not, either as to the firs or second mortgage, in the sense of the Bankrupt 154: Drumwright v. Philpot, 16 Ga., 424: Bond v. Aitkin, 6 W. & S., 165; S. Č., 40 Am. Dec., 550. It seems to be the rule that other partners may ratify by parol an unauthorized signature of a sealed instrument by a copartner. Story, Part, sec. 121, et seq., Haynes v. Seachrest, 13 la.. 455: Smith v. Kerr, 3 N. Y., 150; Worrall v. Munn, 5 N. Y., 240; Wilson v. Hunter, 14 Wis., 683: Pike v. Bacon, 21 Me., 280; Lowery v. Drew, 18 Tex., 786: Mackay v. Bloodgood, 9 Johns., 285; Skinner v. Dayton, 19 Johns., 513: Johns v. Battin, 30 Pa. St., 84; McNaughton v. Partridge, 11 Ohio, 223; Bond v. Aitkin, 6 W. & S., 165; S. C., 40 Am. Dec.. 550; Gwinn v. Rooker, 24 Mo., 291; Anderson v. Thompkins, 1 Brock., 462. Partnership realty on the death of a partner is not distributed as personal stock, but descends to the heirs, certainly after all debts of firm are paid, as in case of any other tenancy in common. Yeatman v. Woods, 6 Yerg., 20; S. C., 27 Am. Dec., 452; McAllister v. Montgomery, 3 Hayw.. 94; Barcroft v. Snodgrass, 1 Cold w., 445; Piper v. Smith, 1 Head, 93; Collins v. Warren, 29 Miss., 236; Scruggs v. Blair, 44 Miss., 406; Holland v. Fuller, 13 Ind., 195; Summer v. Hampson, 8 Ohio, 358; Shearer v. Shearer, 98 Mass., ill: Gray v. Palmer, 9 Cal., 639; Goodburn v. Stevens, 5 Gill, 1; Wilcox v. Wilcox, 13 Allen, 552; Rice v. Barnard, 20 Vt., 479; Lang v. Waring, 25 Ala., 625; Holland v. Fuller, 13 Ind., 19; Piatt v. Oliver, 3 McLean, 27; Tillinghast v. Chaplain, 4 R. I., 137; Hauff v. Howard, 3 Jones, Eq, 440. One partner cannot bind his copartner by deed unless he is expressly empowered by deed to do so. This power cannot be proved by parol. Mosly v. Arkansas, 4 Sneed, 327; Napier v. Catron, 2 Humph.. 536; Boyd v. Dodson, 5 Humph., 37; Sinith v. Dickinson, 6 Humph., 262; McNutt v. McMahan, 1 Head, 98; Cain v. Heard, 1 Coldw., 166. Act, a voluntary preference or in violation of the Act. Authorities cited to last proposition; also Pennell v. Reynolds, 103, Eng. Com. L., 708; Yates v. Hoppe, 9 C. B., 541; Bittlestone v. Cooke, 6 E. & B., 296: Green & White, 3 Bing. (N. C.), 59: Baxter v. Pritchard, 1 A. & E., 456; Young v. Waud, 8 Exch., 221; Thompson v. Freeman, 1 T. R., 156; Smith v. Payne, 6 Term, 152. The six months' clause of the 35th section of the Bankrupt Act does not apply to this class of cases. Bean v. Brookmier, 10 Am. Law Reg., N. S., 181. ing one who is under liability for a failing debtor, can only be attacked in bankruptcy on the ground of illegal purpose, within four months from its delivery and record. Bean v. Brookmier, 10 Am. Law Reg. N. S., 181. Seventh. After the lapse of four months, the preferences an insolvent debtor may have made, so far as the preferred creditor is concerned, are valid as against all the world and cannot be questioned. Bump, Bankruptcy, 3d ed.. 401; Potter v. Coggeshall, 4 B. R., 19; In re Wynne, 4 B. R., 5; In re Fuller, 4 B. R., 29; Bean v. Brook The mortgage to Gibson was executed by Robert Moore & Son, and was a voluntary pref-mier, supra. erence contrary to the Bankrupt Act. Messrs. George Hoadley and E. M. Johnson, for David Gibson, appellant: First. A chattel mortgage executed by one partner in his individual name, but sealed with the seal of the partnership, will bind the firm at law, where the instrument itself shows conclu sively that it was intended to be executed in the name and as the act of the partnership, and the testimony proves that all the partners consented to the execution and delivery of the instrument, and that the signing of the same by the partner in his individual name instead of that of the partnership, was simply a clerical error upon his part. Montgomery v. Dorion, 7 N. H., 475; Magill v. Hinsdale, 6 Conn., 464; Love v. S. N. L. W. & M. Co., 32 Cal., 639; Tenant v. Blacker, 27 Ga., 418; Zouch v. Woolston, 2 Burr., 1147; Rogers v. Frost, 14 Tex., 267. Second. A seal not being required to the valid execution of a chattel mortgage in Ohio, where one is affixed to such an instrument, it may be entirely disregarded. Purviance v. Sutherland, 2 Ohio St., 478; Webster v. Harris, 16 Ohio, 490; Milton v. Mosher, 7 Metc., 244; Tapley v. Butterfield, 1 Mete., 515; Eureka Co. v. Bailey Co. (ante, 209): 11 Texas, 376; 40 Mo., 69; 12 N. H., 206; 7 M. & W., 323. Third. If a chattel mortgage be executed by one partner under the circumstances as set forth in point first, the seal may be disregarded, and the instrument will be deemed and held as binding on the partnership. Sherman v. Fitch, 98 Mass., 59; Haskell v. Cornish, 13 Cal., 45; McDonald v. B. R & A. W. & M. Co., 13 Cal., 221; Dispatch Line v. Bellamy Mfg. Co., 12 N. H., 206. Fourth. A chattel mortgage, executed under the circumstances as set forth in point first, if it does not bind the partnership at law, does so in equity; and a court of equity will decree its reformation, in order to effect the obvious in tention of the parties. Tebb v. Hodge, L. R., 5 C. P., 73; Webster v. Harris, 16 Ohio, 490; McNaughten v. Partridge, 11 Ohio, 223; Ecants v. Strode, 11 Ohio, 480; Huntv. Freeman, 1 Ohio, 491; Hunt v. Rhodes, 1 Pet., 1. Eighth. The validity of a mortgage cannot be questioned under the Bankrupt Act, on the ground of illegal preference, if more than six months have elapsed since its execution, though placed on record within that period. In re Wynne, 4 B. R., 5. Mr. R. B. Warden, for defendants. Mr. Justice Swayne delivered the opinion of the court: This is an appeal in equity from the decree of the Circuit Court of the United States for the Southern District of Ohio. The appellees are the assignees in bankruptcy of Robert Moore & Sons, and filed this bill to compel such of the defendants as claimed to have liens upon certain effects of the bankrupt firm to have their respective rights touching the property in question ascertained and adjusted by the decree of the court. The decree rendered, disposed of the several cases litigated under the bill. All the defendants acquiesced in the decisions made, except David Gibson and Gaylord, Son & Co. They have brought the decree of the circuit court, so far as it affects them, here for review by this appeal. Our examination of the case will be confined to their respective claims. On the 8th of March, 1868, Moore & Sons executed to Gibson a chattel mortgage. It was conditioned that if the mortgagors should pay to Gibson their promissory note to him of the same date with the mortgage, for $6,000, pay. able sixty days from date at the Central National Bank of Cincinnati, the instrument should be void. The testatum clause set forth that Robert Moore & Sons, by Robert Moore, one of the firm, had thereto set their hands and seals. Robert Moore alone affixed his name and seal to the document. The amount claimed by Gibson under the mortgage was indorsed and sworn to by him, and the instrument was filed with the proper officer on the 18th of the same month. On the 21st of that month Moore & Co. failed in business, and made a general assignment of all their effects for the benefit of their creditors. On the 15th of September, 1868, a petition in bankruptcy was filed against them, under which they were subsequently adjudged bankrupts, and the appellees were appointed their assignees in that proceeding. Fifth. An equitable chattel mortgage in Ohio is binding upon subsequent purchasers and The note mentioned in the mortgage was increditors, chargeable with actual notice of its ex-dorsed by Gibson for the accommodation of the istence. Paine v. Mason, 7 Ohio St., 199; Day v. Mun son, 14 Ohio St., 488. Sixth. By the provisions of the 35th section of the Bankrupt Act, a chattel mortgage secur makers. They procured it to be discounted, and the proceeds went to their benefit. Gibson was compelled to pay it. The amount thus paid, with interest, constitutes his claim under the mortgage. |