Page:Federal Reporter, 1st Series, Volume 6.djvu/717

 VBTTBRLEIN V. BABNES. 705 �On the sixtii day of July, 1869, wlien the first of these prior firms was dissolved, there was charged off to the several part- ners as loBB the sum of $106.108.73, of which the plaintiff's share was $15,916.31. This charge of $15,916.31 entered into the final account, by which the plaintiff was on the books shown to be indebted to the finn in the sum of $1,479.63, on the thirty -first of Deeember, 1870, which was balaucedby a cbarge on the books to the New York house, but which the books of the New York house do not show that they assumed or agreed to pay. As stated above, I do not find the agree- ment to give the plaintiff the entire amount to be collected from the items charged to profit and loss proved, and there- fore, even if it be assumed that the assets of the prior firm have continued to be their assets, distinguishable from the property of the bankrupt firm, and that some part of these items has been collected, the plaintiff would not be entitled to be credited with more than 15 per cent, of the amounts so col- lected. I am unable, from the fragmentary accounts and the evidence produced, to ascertain how the plaintiff's account with the prior firm of Vetterlein & Co. would stand if he were credited with his share of these collections; but I think the eyidence shows that, however this may be, the new firm of Vetterlein & Co., which became bankrupt, took ail the assets of the old firm as their capital in business, and used it as such; that this was done with the consent of the plaintiff; and it has been held that this subjects the property, in case of bankruptcy, to the debts of the new firm. In re Mills, 11 N. B. R. 76. �Therefore, because the plaintiff has no case upon the mer- its, and because his claim, if any, is barred by the statu te, the bill must be dismissed, with costs. �v.6,no.7— 45 ��� �