Page:Federal Reporter, 1st Series, Volume 1.djvu/827

 IN EB FRANKLIN M. KETOHtJM. 819 �there is no proof that lie individually used the money thus ■wrongfuliy paid in, except so far as it may be inferred from tliis indiscriminate drawing on the bank account, ■which was partly for his own private stock speculations, which were in violation of the partnership agreement ; and, at the time of the f ailure, he was largely indehted to the firm, and his frauds caused, or largely contributed to cause, the failure of the iirm. �There is no evidence whatever of an account stated as to the moneys taken from the private bank account of Morris Ketchum and deposited in the bank account of the firm. No account, such as is annexed to the first proof of debt, and which is a copy of the account made up by Belknap in the firm's book, was, so far as appears, ever rendered to Morris Ketchum or assented to by him. Without such assent to the account, either express or implied by failure to object to it upon its being rendered, there can be no account stated. Therefore, if there be any liability of the firm for these moneys the same is misdescribed in the proof, of debt. The question of liability, however, has been argued upon the facts proved,. with little regard to form, and if a firm liability exista the proof may be amended or a new proof, according to the fact, may be filed. So in regard to the second proof of debt, so far as regards the securities sold by Belknap, it is clearly stated untruly in the proof of debt that they were held and sold by the firm. As to those securities the liability of the firm, if there is any, arises not from the improper sale of the securities, which was Belkuap's individual act, but from the receipt of, the money * and its subsequent use by the firm. And in this respect, also, if the claim is sustained, the proof may be amended or a new proof filed. �The questions that arise are different as to the money taken from the private bank account, the stocks pledged to the bank for a loan to the firm, and the proceeds of the stocks depos- ited in the firm's bank account. Upon the argument a large number of cases have been cited, illustrative of the rules of law as to ioans made to a partner, where the moneys are by him used for the purposes of the partnership. As to this ��� �