Page:Federal Reporter, 1st Series, Volume 6.djvu/708

 G96 FEDEBAIi BEPOBTSB. �the defendant, eheir assignee in bankruptcy; that the de- fendant, under color of his title as assignee in bankruptcy, upon his appointment in Apx'il, 1871, took into his possession ail the funds so held by the bankrupts, as liquidators, to administer the same as such assignee ; that he has sold some of said assets, and now holds the proceeds thereof ; that the defendant has in his possession over $40,000 of such funds 80 wrongfully collected and appropriated. �The defendant's answer, besides containing a deniai of nearly ail the averments of the bill, sets up as a defence the two-years' limitation contained in Eev. St. § 5057. �The proof s show that the plaintiflf was a partner in the first firm of Vetterlein & Co. from January 1, 1866, tillits dissolu- tion July 6, 1869, and also in the second firm of Vetterlein & Co. till its dissolution December 31, 1869, and in the first firm of Th. H. Vetterlein & Sons from its formation May 1, 1865, to its dissolution December 31, 1867, his interest in those firms being the share of the profits of the business stated in the bill. The proof is not sufficient, in my judg- ment, to show that he was a partner in the firm of Th. H. & B. Vetterlein & Co. The proofs, on the contrary, show very clearly, I think, that he was not a member of that firm, but that, by an agreement between him and his father, Theodore H. Vetterlein, his father promised to give him one-sixth part of his, Theodore H. Vetterlein's, share of the profits from sometime in 1862 down to April 30, 1865. Not only is there no entry whatever in the books of the firm of H. & B. Vetter- lein & Co. showing that the plaintiff had any interest therein as a partner, but it appears that the next succeeding firm, Theodore H. Vetterlein & Sons, No. 1, of which the plaintiff was a partner, became the liquidators of the former firm, and received and distributed, in money and other property, a large part of the assets of the late firm of Th. H. & B. Vetterlein & Co. among the partners, exclusive of the plaintiff, and had accounts with that firm and some of its members, which are entirely inconsistent with any right or claim of the plaintiff to be considered a partner in that house. Nor is the proof sufficient to show that the plaintiff was a member of Vetter- ��� �