Page:Federal Reporter, 1st Series, Volume 6.djvu/24

 13 FEDERAL BSPOBTEB. �proved as a ground of liability. This adoption of the new firm as the debtors, coupled with the omission during the life-time of the retired partner to indicate, by word or deed, the existence of a liability on his part for the debt in question, and coupled with the lapse of time that occurred before the liability of the retired partner's estate was asserted, appears to me to be sufficient, according to the requirements of the cases already cited, to justify the inference that the new firm was adopted as debtor with the intention that the liability of the firm was to stand in place of the liability of the old. �In some of the adjudged cases less proof than is here pre- sented has been considered suflicient to warrant a similar inference. �In Hart v. Alexander, 2 Mee. & WelL 489, Follett, argueudo, says : "If the crediter, by some positive act, adopts a new firm as his debtor, the retired partner is discharged." And Lord Abinger, in giving judgment, states as the resuit of the cases, that "if a new partner comes in, and an account is accepted in which the new partner is made liable for the balance, that discbarges the old firm, as botb cannot be held liable at once for the same debt. " �In.Zw re Medical Invalid e General Life Assurance So- ciety, {Spencer's Case,) 24 L. T. E. 455, the circumstance that the new company and the customer had treated each other as insurer and insured, was held to be "complete evidence of novation." �In In re Smith; Knight e Ca., already cited, the case was made by the master of the roUs to turn upon. the question whether the company had been adopted as debtor. He says : "I am of the'opinion there was an adoption of the company as the debtor, and that it cannot be treated otherwise. It is useless to go into cases, because it is admitted that very small things wiU do." The decision of the master of the roUs in that case was reversed by the court of appeal upon the ground that the circumstance from which the master of the rolls found that thore had been an adoption of the company as debtor was not sufficient to warrant that conclusion; but there was no dissent from the proposition of the master of ��� �