Page:Federal Reporter, 1st Series, Volume 1.djvu/821

 IN BB HAIILTON. 813 �ruptcy at this tîme was eonleinplated, and there is no evi- dence of an intent by BEamilton to increase his individual estate for the benefit of his creditors. The authorities seem to hold that to constitute a case of fraud the funds must bave been abstracted, not only without the consent of the other partners, but that it must have been done secretly, as by a false entry upon the books, or by the omission to make any entry at ail. Thus, in Ex parte Smith, 1 Glyn & I. 74, it was held that if one partner be entrusted with the entire manage- ment of the partnership concem, and he withdraws moneys for his separate use, which he duly and openly enters in the partnership books, this is not a fraud wuich will entitle the joint estate to prove against the separate; otherwise, if by the entries in the books he disguises the transaction or 'wholly omits and conceals it. �In Ex parte Lodge v. Fendall, 1 Ves. Jr. 166, Lodge, who had the whole management of the trade, without the knowl- edge of Fendall paid several debts of his own with the prop- erty of the partnership to the amount of $36,000. �Lord Thurlow at first was inclined to hold that this consti- tuted a case of fraud, but finally dismissed the petition, regard- ing the evidence as insufficient. In Ex parte Harris, 2 Ves. & B. 210, it was cpnsidered that, although the misapplication of the funds was without the knowledge, privity, consent or subsequent approbation of the other partner, yet the facts by reason and in consequence of which that application was made were with that knowledge, consent, etc., and that proof should not be admitted. In Ex parte Young, 3 Ves. & B. 31, one partner drew bills clandestinely to a large amount and absconded, and it was held that proof should be allowed in favor of the joint estate, no entries having been made of the bills abstracted ; and the lord chancelier observed that if the other partners could have known that their copartner had applied the copartners' property to his own purposes, from their immediate or subsequent knowledge, upon their subse- quent dealings, their consent would be implied. �In Ex parte Hinds, 3 De Gex & Small, 613, two partners ��� �