Page:Federal Reporter, 1st Series, Volume 6.djvu/25

 EEGESTEE V. DODGE. ���13 ���ihe rolls, that an adoption of the eompany as debtor by the creditor, with knowledge, was a fact decisive of the case. �In Kerwin v. Kerwin, 2 Crompt. & Mee. 627, the opinions of Lyndhurst and Bolland proceed upon the assumption that the consent of the creditor to take the new firm as debtora would be conclusive. In Brown v. Gordon, 16 Beavan, 309, great stress is laid upon a fact which appears in this case also, that the partners had settled with each other, treating the debt as a debt of the new firm, �The conclusion that a novation of the debt in question was effected, and the liability of Edward Dodge therefor extin- guished, is not at variance with any of the cases upon which the plaintiff relies. In Harris v. Farwell, 15 Beavan, 31, the creditor proved against the new firm an original obligation of the new firm, based upon money paid the new firm to the use of the creditor. The case is made to turn upon the particu- lar form of the proof of debt. In Hall v. Jones, 56 Ala. 493, it is said : "Proof, if made, that the accounts against the old firm were restated against the new, would be strong evidence from which an agreement (to release the retired partner) tnight be inferred." In principle that is this casie. The debt due from the old firm of Jay Cooke & Co. was by the creditor restated against a new firm, and that for the purpose of shar- ing in the distribution of the estate of a firm known.to be in nowise liable for the debt, eicept by reason of an agreement to assume it, made for the purpose of releasing their retired partner from liability. �In Heath v. Hall, 4 Taunt. 352, the case put is that of proving the joint debt in the bankruptcy proceedings of ona of two joint debtors, and suing the other debtor in an action at law, This is not such a case. In Devagnes v. Noble, (SleicKs Case,) Merivale, 562, the question decided was whether delaying for the space of eight months after the death of one partner, and meanwhile accepting part of the debt from the surviving partners, who were liable for the whole, was evi- dence of the transfer of the credit to the surviving partners. �In Daniels v. Cross, 3 Ves. Jr. 277, the only act done, as ��� �