Page:Federal Reporter, 1st Series, Volume 1.djvu/834

 826 PEDERAIi BKPORTER, �But the real question, after ail, is wliether the cireum- stances under which the money came to the hands of the firm were such that Franklin M. Ketchum, as the copartner of Belknap, acquired an equity in it, or right to keep it, as being apparently Belknap's money, contributed to the firm by him, which ought to prevent a suit for the recovery against the firm. As to Belknap, or the firm, if his interest in the firm were alone to be considered, it is clear that a suit could be maintained. The only possible equity of Franklin M. Ketchum in the money, upon its being paid into the firm by Belknap, which wiU take the case out of the general rule, that would allow it to be recovered by the owner, grows out of the nature of money, as stated above. This equity must be based on the fact that Belknap paid it in in the form of money, and, therefore, that his copartner had the right to rely on Belknap's possession of it, as evidence of its being in fact his money ; for this is the only distinction that can be drawn between money and other personal property in such a case. In other words, did Franklin M. Ketchum, so far as it was feeeived on his behalf, reçoive it in payment of a debt or for Bome other valuable consideration ? �The counsel for the opposing crediter relies chiefly on two cases, which, it is claimed, establiah the general position that if one partner misapplies trust funda in his hands by paying them into the firm, without knowledge of the fraud on the part of his copartner, the firm is not thereby rendered liable to an action to recover the money. Tiiese cases are Ex parte Apsey, 3 Bro. C. G. 265, and Jacques v. Marquand, 6 Cow. 497. �The case of Ex parte Apsey was before Lord Chancellor Thurlow, and decided in 1791. The report is very brief, and shows the following facts : On the eleventh of February, 1790, a commission of bankruptcy issued against one Toes-. The petitioner Apsey and Edward Allen were chosen his assignees. Edward Allen and James Allen were partners in business, and in April, 1791, a joint commission in bankruptcy was issued against them. Edward Allen, before the issue of the commission against himself and his partner, received ��� �