Page:Federal Reporter, 1st Series, Volume 6.djvu/715

 VETTERLEIN V. BAHNES. 703 �the claita that the end may be maintained not to enforce th& solvent partner's right to liquidate in case at bankruptcy of his copartners, but as a suit for an account and payment to. the plaintiff out of collections made from the assets of the finn of a balance due to him ffom the firm. The collections- made by the assignee out of any assets claimed to belong to any firm of which plaintiff was a member were ail made more than four years before this suit was brought; nor is thero any averment in the bill of any fraud or concealment which would prevent the statutory limitation of two years from run- ning, Nor is there any evidence of such fraud or conceal- ment. The assignee's claim of right to these assets under this assignment was notoriously asserted, within the knowl- edge of the plaintiff, from the beginning. Theref ore the casea of BaUey v. Glover, 21 Wall. 342, and of ZeUer v. Eckert, e ■ How. 294, have no application. The plaintiff's claim, there- fore, to any part of these collections is barred by Eev. St. | 5057. I am also satisfied that the plaintiff's claim against alleged assets of Th. H. & B. Vetterlein & Co. is wholly ficti- tious; that he never was a partner in that firm. It is stated in the bill that the balance due him on the thirtieth of April, 1865, when that firm was dissolved, and then payable, wa& $22,926.62, the same balance of account above referred to en- closed in the letter of June 1, 1878. The evidence shows that at that time there stood to the credit of Theodore H. Vetter- lein, his father, on the books of the firm, $106,211.27. This $22,926.62 is alleged to have been part of what stood to his father's credit ; and it is f urther alleged that the succeeding firm of Theodore H. Vetterlein & Sons, without the knowledge or assent of the plaintiff, passed this $106,211.27 on their books to the credit of his father, and that the firm of Th. H. Vetterlein & Sons collected more than $40,000 out of the assets of the prior firm, out of which this balance due the plaintiff should have been paid ; that the firm held the money ' in trust for this purpose, and passed it over to the bankrupts subject to this trust. �As already stated, the plaintiff was a member of the firm of Th. H. Vetterlein & Sons. He is presumed to have knuwn ��� �