Page:Federal Reporter, 1st Series, Volume 1.djvu/822

 814 FEDERAL REPORTER. �were trading as merchants at Liverpool aud Barbadoeô, one residing and tranaacting the business at each place. The Liv- erpool partner, without the authority or knowledge of the other, laid eut partnership moneys in the purcliase of raUway shares in his own name, but on account of the partnership, and in substance declared himself a trustee of the shares for the firm; afterwards the firm became bankrupt. It was held that the joint estate had no right of proof against the sepa- rate estate of the Liverpool partner for the amount laid out upon the shares. Ail the prior authorities are reviewed by the eommissioner in this case, whieh, in its facts, is very much like the one under consideration, and he eame to the conclusion, in which he was sustained bythe vice chancelier, that as the entries were made openly upon the books, and as these books were open to the inspection of the other partner, who, if he had exercised only ordinary diligence, would have acquired fuU information on the subject, his negligence amounted to an implied consent. Story on Part. § 390, 392 ; Pars, on Part. 491, 494. �These cases indicate that to constitute fraud there must be something more than mere abstraction of the funds with- out the knowledge of the copartner, particularly if it be done by one haVing the sole management of the business. Upon the whole, I think the conclusion of the register in postpon- ing this claim to those of the individual creditors of Hamilton ought to be confirmed. But I wiU not undertake to say that the assignee might not maintain a petition to bave the money thuB charged over to Hamilton administered as a part of tha joint estate, as was done in Ex parte Hinds, above cited. ��� �