Page:Federal Reporter, 1st Series, Volume 6.djvu/19

 BEQESTEB V. DODQB. 7 �flrm, sligbt circnmstances only are required to juttify flnding the existence, on the part of a credltor of the old flrm, who has notice of the dissolution and of the agreemeat of the new flrm, of an inten- tion to acccpt the liability of the new flrm in place of the liability of the old. �1. Same— SAMB— Samb. �That proof of debt made by the administrator of a depositor!n the banliruptcy proceedingg of the new flrm, setting forth the orig- inal deposit made with the old flrm as a debt of the new flrm, with knowledge at the time that the old flrm of Jay Cooke & Co. had been disBolved; that the new flrm of Jay Cooke & Co. was composed of persons uot members of the old flrm, and that the new flrm had as- Bumed the debt in question for the purpose of terminating the liabil* Ity of the retiring partner therefOr, was an adoption of the new flrm 8B debtors by the creditor. The adoption of the new flrm as debt- ors under such circumstancca^ coupled with the omiasion on the part of the creditor, during the life-time of the retiring partner, to indi- cate, by word or deed, the existence of a claiin against such part- ner, and with a delay of flve years before attempting to charge the retired partner'g estate, are sufflcient circumstances to jnstify the inference that the intention was to accept the liability of the new flrm in place of the liability of the old. �i. Samb— Equitable Riqhts— Laches. �That the right sought to'be enforced by thls action, being an eqnl- table right, may be met by equitable circumstances; and where the resuit of unexcused delay in asserting the liability of the retired partner by the creditor bas been to deprive the retired partner of the opportunity to vote as a creditor in the bankru^ptcy proceedings of the new flrm, and, by participating In the distribution of the property of the new flrm, to save himself from any loss arising out of the liability for the debt, It would be inequitable to permit such creditor, at so late a day, to charge the estate of the retired partner with liability. �In Equity. �J. 0. McKeen, for plaintiflF. �Thomas M. Morgan, for defendant. �Benediot, D. J. In this case I have listened to a reargu- ment, and ,have re-examined the question upon which, as I suppose, the case tums, and my opinion remains unchanged, that the plaintiff is not entitled to recover. The eamestness of the contention made in behali of the plaintiff has impelled me to state at length the reasons of my conclusion. �The action is a suit in equity, brought by the administrator of David Eegester, who disappeared in the year 1870, and is ��� �