Page:Federal Reporter, 1st Series, Volume 6.djvu/714

 702 PEDEBAL BEPORTEB. �Suivent partner to obtain possession of the assets of his former firm for the purpose of liquidation, if that right had been reasonably demanded, I think it is clearly too late now for him to exercise it as agaiust the defendant, Theodore H. Vetterlein, as one of the members in ail these firms, though a bankrupt, had some interest in ail their remaining assets. To put the case most favorably for the plaintiff, Theodore H. Vetterlein and Bernard T. Vetterlein had possession of them as liquidators, with an interest in them on the part of Theo- dore H. Vetterlein. The assignee finding them in their pos- session takes and holds them, having reason to believe and ■claiming that they belonged to the bankrupts. The plaintiff appeared on the books of these several firms as a debtor, with- •out apparent interest in these assets, even if they still kept their distinctive character as assets of the .firms to which they originaily belonged. The assignee administered on them as assignee, denying the plaintiff's right to an account and payment out them, which was alone then his claim. It seems to me clear that, independently of the statuts of limitations, the plaintiff's right, if he ever had any, to administer on these assets as the sole remaining solvent partner is lost by laches. He knew of the bankruptcy, Then was the time for him to assert this right, if he had it. He f ailed to do so. After about two years he demanded an account of money collected and payment of his pretended balances due, and after about ten years from the time, if ever, his right to liquidate accrued to him, he bas brought suit. This right of a solvent partner is a privilege which he may assert or may waive. If he permita his insolvent partner or the representative of his insolvent part- ner to go un and administer the assets, he waives his privi- lege, and this, I think, the plaintiff has done. It seems to me, also, that the two-years' bar under section 5057 applies to this suit as a suit to recover these assets. The right really accrued, if at ail, against the bankrupts upon their failure, or at any rate against the assignee as soon as he assumed con- trol over these assets, upon his appoinment as alleged in the bill. �There is, however, perhaps enough in the bill to support ��� �