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assessed the damages at the sum above awarded, and the Court of King's Bench held the award to be right.

In the preceding case, the Court proceeded on the principle, that the entries which had been continued in the creditor's books immediately on the death of Ingham, not having been communicated to the debtors, were not conclusive on the creditors, and consequently that the general legal appropriation of which such entries would otherwise have been evidence, w as incomplete. It is clear from this, as also from the express opinions of the Judges, that they did not consider it necessary, in order to support any alleged appropriation on the part of the creditor, that he should prove it to have been made at the time of payment. On the other hand, if payment be made to the creditor of any sum in respect of an account current, the creditor making no appropriation at the time of payment, and if after such payment the debtor and creditor continue their mutual dealings, or do any other mutual act in respect of the same account, the creditor will be barred by such subsequent transactions from establishing an appropriation of the payment.

V. It frequently happens, that, upon the retirement of a partner, the remaining partners undertake to pay the debts, and receive the credits of the firm. This, as has been already observed (a), is a private regulation between the parties, which cannot be binding as between the creditors and a retiring partner without consideration. A consideration will arise in favour of the retiring partner, either if the creditor derive some benefit from this agreement, or the retiring partner sustain some prejudice from it on the creditor's account. We will endeavour to distinguish the cases in which such a consideration has been presumed in favour of the retiring partner, from those in which he has been held liable for the partnership debts, for want of a sufficient consideration moving to the creditor for his assent to the retiring partner's exemption.

It was held in an early case in equity, that if, after the retirement of one of two partners, their joint bond creditor leave his money in the hands of the remaining partner, and receive from him an increased rate of interest in consideration of not

(a) Ante, pp. 328, 329.

calling in the principal, this is not such an assent to the sole credit of the remaining partner, as will exempt the retiring partner's residuary legatee from liability in respect of the bond. The decision, however, in this case depended in a great measure on the nature of the security. There was clearly not sufficient evidence of fraud in the creditor to induce a Court of equity to set aside the bond; and accordingly, Lord Chancel. lor Parker observed—“that the plaintiff's changing the interest did not alter the security, for still it was the bond of both (a).

The principles which we are now discussing have been adopted more decidedly in modern cases, in which the creditor has either, Ist, taken the securities of the remaining partners for a debt due from the old firm, or, 2ndly, received interest from the new firm for such debt, or, 3rdly, continued an account current with the new firm, apparently adopting such account.

VI. 1. First, if, upon the retirement of a partner, the creditor of a firm take the securities of the remaining partners for his debt, this, it is conceived, will not operate as a discharge to the retiring partner if the creditor is allowed to retain the securities given to him by the original firm. In the case of Bedford v. Deakin (6), the plaintiff was the holder of bills drawn by three partners. The bills were dishonoured. Upon the dissolution of the partnership, Bickley, one of the partners, informed the plaintiff that an arrangement had been made, by which he, Bickley, was to provide for these bills, and therefore requested the plaintiff to take his separate promissory notes for the principal, interest, and expenses due. To this the plaintiff ultimately agreed, at the same time reserving strictly the security of the three partners. It was held that this agreement did not operate as a satisfaction of the joint debt; and that, although the two other partners might be ignorant of the transaction, that would make no difference in their favour, for that a creditor giving time to one of three joint debtors does not discharge the others.

Again, if a person hold a copartnership bill, and, upon the retirement of one of the partners, indorse it over to the new firm for payment, at the same time expressly reserving his

(a) Heath v. Percival, 1 P. W.682.

(6) 2 Barn. & Ald. 210.

rights on all the parties to it, in case it should not be paid by the new firm, the retiring partner will still be liable in an action on the bill. In the case of Featherstone v. Hunt (a), it appeared that Hunt, Stab, and Preston were partners at Newfoundland, and that Hunt carried on trade separately at London. Goods were furnished by Featherstone to Hunt, Stab, & Preston, for which they gave him a bill drawn by their firm on Hunt. The bill was dishonoured. Hunt afterwards retired from the firm. Featherstone indorsed the bill to the new firm of Stab & Preston, and sent it to Preston, in order, if possible, to obtain payment of it, but strictly reserving his rights on all the parties to it. Hunt also sent out an agent to settle his accounts with the new firm. On settling the accounts, Stab & Preston told Hunt's agent that the bill was paid, but they gave him no proof of that fact, nor was the bill produced to or seen by Hunt's agent. The Court of King's Bench held clearly, under these circumstances, that Hunt's liability was not discharged.

VI. 2. But if, upon the retirement of a partner, a creditor of the firm give up the security which he has against them, and take in exchange a fresh security from the new firm, this will be binding on the creditor, and will operate as a discharge to the retiring partner. In the case of Evans v. Drummond (6), Combrune and Drummond were partners. Goods having been furnished to the firm, a partnership bill was given for the amount. Drummond afterwards retired from the firm, with the full knowledge of the creditor. After Drummond's retirement, and when the bill became due, it was renewed by another bill to the same amount, by Combrune. It being contended that Drummond was still liable, Lord Kenyon said—“Is it to be endured, that when partners have given their acceptance, and where, perhaps, one of two partners has made provision for the bill, the holder shall take the sole bill of the other partner, and yet hold both liable? I am of opinion, that when the holder chooses to do so, he discharges the other partner. Here the plaintiff has taken the bill of Combrune, after he was informed that Drummond had nothing to do with the concern, as he admits. It is a reliance on the sole security of Combrune, and discharges the defendant.” Verdict for the defendant. (a) 1 Barn. & Cres. 113; 2 Dowl. & Ryl. 233.

(6) 4 Esp. 89.

CC

So in Reed v. White (a), a joint contract for goods sold was considered to be waived by the creditor taking the separate security of one of the joint contractors. An action was brought for cordage sold, against the defendants, as owners of a ship. White was the managing owner, or ship's husband. The plaintiff took White's bill for the amount, which was dishonoured and renewed, and again dishonoured. For the other defendants it was insisted, that the plaintiff had discharged the other owners, who, in ignorance of this mode of dealing between the plaintiff and White, had suffered him to receive large sums of the East India Company for freight, which they would otherwise have detained. Lord Ellenborough—If the plaintiff, dealing with White separately, has adopted him, he has discharged the others, and must have a verdict against him. The question is, whether it was intended as a settlement with him alone, and adopting him as the single debtor?” A full special jury of merchants found for the defendants.

And if the creditor, having previously no written security from the firm, take the sole security of the remaining partner for a debt due to him from the firm, that is strong evidence to shew that he has accepted the sole security of the remaining partner in lieu of the joint responsibility of the firm. This was decided by the Court of King's Bench in the case of Thompson v. Percival(6), in which the cases of Evans v. Drummond and Reed v. White were recognised, and adopted as sound law. That was an action for goods sold and delivered. At the trial, it appeared that the two defendants, James and Charles Percival, were in partnership until the 22nd of December, 1829, when an advertisement was inserted in the London Gazette, announcing the dissolution of the partnership, and that the business would be carried on by the defendant James, who would receive and pay all debts. The chief part of the goods in question was delivered before the dissolution: the other part was ordered by James Percival after the 22nd of December. It did not appear that when these goods were delivered the plaintiffs had had notice of the dissolution. On the dissolution, effects were left in the hands of James sufficient to pay the debts due from the partnership. In the beginning of 1830, the plaintiffs' collector

(a) 5 Esp. 122.
(6) 5 Barn. & Adol. 925; 3 Nev. & Man. 167.

applied for the balance to James Percival, who told him that Charles knew nothing of these transactions, and that the plaintiffs must look to him (James) alone. The plaintiffs afterwards drew a bill on James, at three months, for the mixed amount, which was accepted by James, and dishonoured ; and the plaintiffs gave him time to pay, but eventually brought an action against both defendants for the amount of the goods sold, and obtained a verdict. Upon these facts, the Court of King's Bench were of opinion that a new trial should be granted, for that if the plaintiffs had expressly agreed to take the separate acceptance of James, in satisfaction of the joint debt, (the proof of which had not been insisted on at the trial), such agreement amounted to a discharge of Charles; and that the facts proved raised a question for the jury upon that point. And Denman, C. J., in the course of his judgment, adverted to an argument which had been used in that and other cases, that the acceptance of a bill of exchange by one of two debtors could not be a good satisfaction, because the creditor thereby got nothing which he had not before. In answer to this, his Lordship said, that the written security, which was negotiable and transferable, was of itself something different from what the creditor had before ; and many cases might be conceived in which the sole liability of one of two debtors might be more beneficial than the joint liability of two, either in respect of the solvency of the parties or the convenience of the remedy, as in cases of bankruptcy, or survivorship, or in various other ways; and whether it was actually more beneficial in each particular case could not be the subject of inquiry (a).

In this case the Court did not think it necessary to determine whether the assent of Charles to the agreement between his brother and the plaintiff was necessary, in order to give it operation as a discharge of Charles ; because there was evidence of a delegation by Charles to James, to make such an agreement, for James had the partnership effects left in his hands, and was to pay all the partnership debts.

The above observations of Lord Denman, so far at least as they relate to bankruptcy, seem to be borne out by the case of Ex parte Whitmore (6), in which the creditor was anxious to re

(a) And see Kirwan v. Kirwan, post, p. 394.

(6) 3 Mont. & A. 627.

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