Page:Federal Reporter, 1st Series, Volume 1.djvu/835

IN EE PBANKLIN M. KBTCHOM. 837 �money as assignee of Toey, which he had paid and applied in discharge of the debts of his firm, and otherwise used in their firm business. The question was whether Apsey, as assignee of Toey, could prove for the money so used by the firm of Edward and James Allen against their joint estate. Proof ■was refused, and upon petition to the lord chancellor the decision was sustained. �Counsel for the petitioner cited the cases of Boardman v. Mosman, 1 Bro. C. G. 68, and Ex parte Clones, 2 Bro. G. G, 595. But the lord chancellor said: "In the latter of these cases the partners had agreed to consolidate the separate debts which made the difference. ïïere, one, by abusing his trust, advances the money to the partuership. That will not raise a contract between the partnership and the person whose money it is. " �That the firm will be liable to an action to recover the money, where the other partner knew of the source from which the money paid in was derived, and that it belonged to or was charged with a trust in favor of another party, on the ground that one who aids in the perpetration of a fraud will be equally responsible with the principal wrong-doer, is sufficiently obvi- ons, but it bas been frequently so ruled. Vanderwich v. Sumvierel, 2 Wash. G. G. 41 ; Hutchinson v. Smith, 7 Paige, 33 ; Walsin, ex parte, Ebes. & B. 414 ; Smith v. Jameson, 6 T. E. 601. �It would be no answer to the owner of the money, who, waiving the tort, Bued for money lent, or money had and received to his use, that what was paid in was money, or that money bas no ear-mark, and that it went in payment of the balance due from the partner paying it to his copartner. This was precisely how the proceeds of plaintiff's property had been applied, as between the copartners, in Vanderwich v. Summerel, ut supra, but with knowledge of the other copart- ner, and he was compelled to account for it. �But it is entirely consistent with the case of Ex parte Apsey that the innocent partner knew of the advance of the money to the firm by his copartner, though he did not know of the breach of trust committed by him in paying it in. It is also ��� �