Page:Federal Reporter, 1st Series, Volume 2.djvu/649

 64:2 FEDERAL REPORTER. �prove that under such style one of the memters is a dormant partner is not concluded where more than two persons may compose the firm, and when more than two had been ad- judged bankrupts as members of the firm. �The authorities cnly go to the extent that because a part- ner's name does not appear in the firm style he is not, on that account, to be deemed a dormant partner, and, therefore, under the style "& Co.," ail the actual partners are regarded in law, members sustaining the same relation to the copart- nership as if their names were expressed, and are not dor- mant partners. But it is not neeessary that a member of a partnership should be universally unknown to constitute him a dormant partner. If he is not an ostensible partner it is sufiicient. See Goddard v. Pratt, 16 Pick. 429 ; 2 Harris & Gill, 172 ; 20 Vt. 110, and authorities cited; 30 N. Y. 374-80; 5 Gill, J. 383. �2. The next and last issue for the jury — " Was the payment to the defendants a fraudulent preference under the bank- rupt law?" �It is urged that the verdict is against the evidence upon this issue. It was neeessary for the plaintiff to prove, inter alia, that the defendants had reasonable cause to believe that the firm of A. Bernard & Co. was insolvent, and also that the defendants knew that a fraud on the bankrupt act was intended by the payment made to them. These are inde- pendent facts, and both must concur to sustain the verdict; and if the evidence does not show that the defendants had knowledge of an intended fraud upon the bankrupt law, as well as reasonable cause to believe the insolvency of A. Ber- nard & Co. at the time of payment, a new trial should be granted. �The defendant Pusey was consulted by A. Bernard with reference to the sale of his stock situafced in the store at Coun- eil Bluffs, or in Nebraska. He knew the firm was .embar- rassed, and a portion of its indebtedness was overdue. It cannot be said there was not sufficient evidence to induce a reasonable belief that the firm was insolvent. The facts and ����