The Federal Reporter. Volume 6: Cases Argued and Determined in the Circuit and District Courts of the United States. March-May, 1881. Page: 12
xii, 927 p. ; 23 cm.View a full description of this legislative document.
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FEDERAL BUPOBTER.
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 sufficient to warrant a similar
inference.
In Hart v. Alexander, 2 Mee. & Well. 489, Follett, arguendo,
says: "If the creditor, 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 result 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 discharges the old firm, as both cannot be held
liable at once for the same debt."
'In In re Medical Invalid & General Life Assurance So-
ciety, (Spencer's Case,) 24 L. T. R. 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 & Co., already cited, the case was
made by the master of the rolls 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 will do." The decision of the master of the rolls
in that ease was reversed by the court of appeal upon the
ground that the circumstance from which the master of the
rolls found that there 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
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Boyle, Peyton. The Federal Reporter. Volume 6: Cases Argued and Determined in the Circuit and District Courts of the United States. March-May, 1881., legislative document, 1881; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc36335/m1/24/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.