Page:Federal Reporter, 1st Series, Volume 2.djvu/174

 BEITTON ». BRŒWSTBB. 167 �force, The articles constituted an agreement between Bald- ■win and Burr alone. Brewster was no party to them, and, as is proved, did not know what they contained. The question here is of the agreement between Brewster on the one hand and Baldwin & Burr on the other, and of a fraud practiced by Brewster on Burr. If it was the understanding between Brewster on the one part and Baldwin & Burr on the other that the finn funds, after the formation of the partnership, should be used in a particular way, no agreement between Baldwin and Burr, to which Brewster is not a consenting party, can possibly affect Brewster's right, as against them both, to have the funds so used. Still less can such a secret agreement between them be adduced as proof that such use availed of by Brewster is a fraud upon either of them. �The complainant having failed to prove the fraud is enti- tled to no relief in this suit. The complainant claims that the debt due to Brewster was reduced below $20,000, and that therefore such of the notes now held by the defendants as rep- resent a part of that original debt should be delivered up to be cancelled. The defendants insist, with better reason, I think, that the debt never was so reduced; that new loans were made from time to time to pay the notes representing this debt, and that within the true spirit and meaning of the agreement the debt has always exceeded $20,000. It is un- necessary, however, to determine this question. If the com- plainant is right the proper mode of raising the question is by proceedings under the bankrupt law for re-examining the proofs of debt. He can have no relief in this suit, becausa the fraud alleged as the sole ground of relief is not proven. �So, as to the earriage, if Baldwin exceeded his authority as a copartner in pledging it, and the pledge was without Burr's knowledge or consent, or for any other reason Brews- ter's claim to it is invalid, the remedy of the assignee is obvious enough. The only claim made in equity in this suit to recover it or its value is the same alleged fraud. Nor can the bill be sustained on the ground that the funds were diverted from an insolvent firm, to the knowledge of the de- ����