The principal object of this suit is against the defendant Jacob Burdett. It proceeds, as to him, upon the grounds of his insolvency and a withholding of tile copartnership books. But the bill does not charge fraud or collusion between him and his surviving partner. Although Jacob Burdett may be acting fraudulently and be keeping the books from his copartner, yet this gives no right to the widow and next of kin of Garrit Hyer. In such a case, it rests with Walter E. Hyer to file a bill. He has rights as a partner. And he has also the legal title to Garrit Hyer’s share vested in him as administrator. Provided the bill had suggested a refusal on the part of Walter E. Hyer to file one, and that he was colluding with Jacob Burdett, then, I think, it might have been sustained. For these reasons and others which might be assigned, I consider the demurrer well taken.
Demurrer allowed, with costs,
The bill was afterwards allowed to be amended ; but the amendments were first submitted to the court, and the counsel of the defendant, Jacob Burdett, was heard in opposition.