Page:Federal Reporter, 1st Series, Volume 1.djvu/842

 884 FEDERAL REFOBTEB. �Ex parte Apsey for support of the general proposition, which the opposing creditors maintain here, that the payment of money into the firm by the guilty partner does not raise an implied contract to repay on the part of the firm. The dis- tinction above pointed out between this case and Apsey'a case existed in Jacques v. Marquand, but it was not adverted to by the court. �The real point in the case, however, was not whether the firm was liable, but whether Marquand was individu- ally liable. The firm might be liable, and yet Marquand, as the actual wrong-doer, who first misappropriated the money, might still continue individually liable. But, se far as the dicta of the learned judge are inconsistent with the views herein expressed, as applicable to the present case, I am unable to concur in them. The case bas been several times cited and distinguished, but the precise case seems not to have arisen again. Whitaker v. Brown, 16 Wend. 509 ; Hutch- Hson V. Smith, 7 Paige, 33 ; Willett v. Stringer, 1 7 Abb. N. S. 15 5. The chancellor, in Whitaker v. Brown, seems to take pains to restrict the authority of Jacques v. Marquand to the precise point that the defence of non-joinder was not good, and the later cases in which it is cited certainly add nothing to its authority. �The point made by the opposing creditors, that Franklin M. Ketchum, or the firm, is not liable because Belknap, after the deposit of these moneys, drew out ail or some of them for his own personal uses, is untenable. If, by the receipt of the money, the firm was made ehargeable with it, it is no answer that the firm was afterwards robbed of it, or a part of it ; much less that a member of the firm, being authorized to draw checks on the firm's bank account, abused that author- ity by drawing for purposes not authorized by the agreement between the partners. If any authority is needed for this proposition, the case of Marsh v. Keating, cited above, which was a much barder case than this for the deceived partner, is sufficient. �The claims, therefore, of Morris Ketchum, set forth in the proofs of debt, those proofs being properly amended, unless ��� �