¶1The question whether the principals could maintain an action against the trustee in this' case, upon showing that the contract between the trustee and Convers was a fraud upon Peabody, need not be settled. 9 B. & C. 532, Jones vs. Yates; 16 Johns. 34, Dob vs. Halsey.
¶2Nor is this a case where the plaintiff endeavors to maintain his action upon a note given in the name of a firm by one partner for his own debt, and where the plaintiff, in order to maintain his action, must show the authority of the partner to bind the firm. Want of authority, and not fraud, is the ground of defence in such a case.
¶3The only ground on which the trustee can be charged in this case, is that the contract between Convers and the trustee was a fraud upon Peabody, and therefore void. But fraud is never to be presumed. It must he proved. And there is nothing stated in this case that is calculated to raise the slightest suspicion of fraud. Convers applied to the trustee to take his pay in work. It does not appear that Peabody has ever made any objection to the arrangement. It is highly probable that there was an understanding between the partners that their several bills should be paid in work, because such an arrangement might have been very useful and advantageous to both.