Traders' Bank v. Van Wagenen

Stiles, J.

(concurring). — I concur in the decision, and desire to say further that the bill in this case clearly set forth that the property sought to be affected by it was purchased by the partners with money fraudulently diverted by them from the partnership funds. If that is the fact, it is still, in equity, partnership property, although the legal title may have been taken in the name of the partners’ wives; and, although it was not included in the partnership schedules, the assignee can sue for and recover it for the benefit of all creditors. If the assignee, upon being put in possession of the facts, neglects or refuses to proceed, he can be compelled to proceed by the court upon the motion of any creditor. The question of discharge cannot affect the case in any way. It is very difficult to see how there can be a discharge in a case of partnership insolvency where the partners do not schedule their individual property and liabilities.