Page:Federal Reporter, 1st Series, Volume 6.djvu/23

BEOEBTEB V. I>ODaS. 11 �debt as a subsisting liability of Edward Dodge. Tbedeposits 8ued on came to be known at the time of the bankruptcy of the new firm of Jay Cooke & Go., in 1873. Edward Dodge lived until 18T7 without the suggestion of'a continuing lia^ bility on bis part for this debt from any source. Tbere is no evidence that he was insolvent or absent; and the omission to make a claim upon him in bis life-time, the other membera- of the old firm being insolvent, is hardly consistent with the position now assumed, that there was no intention to accept- the liability of the new firm in lieu of the old. Purthermore, no claim was made of the exeoutor of Edward Dodge until September, 1878, when the estate of the new firm of Jay Cooke & Co. was substantially wound up, which seems to indicate that the making of the demand upon the executor of Edward Dodge had some connection with the resuit of the bankruptcy proceedings of the new firm, and gives rise to the suggestion that the intention to maintain a liability Ou the part of Edward Dodge was an afterthought. �In cases of this deseription delay in asserting the liability of an outgoing partner, when coupled with a dealing with the new firm, has often been deemed to be a circumstance tend- ing to show an intention to discharge liability of the old. In In re Smith, Knight & Co. already cited, it is said : "The time which has elapsed may be more material." �The next circumstance deserving attention is of more sig- nificance. Indeed, it is one that in some cf the cases has been considered to be of itself conclusive. This circumstance is that when the existence of these deposits was disclcsed in the bankruptcy proceeding of the new firm, the creditor, knowing that he was dealing in respect to the assets of a new firm whieh had agreed to assume the debts of the old firm, for the purpose of extinguishing the liability of the old fijrm, adopted the new firm as bis debtors for this very debt. This he did in the most formai way, by proving the deposit made by David Eegester, with the old firm, as a debt of the new firm. The proof was not of a liability by reason of property or money received by the new firm, to be applied to the dis- charge of debts of the old firm, but the original deposits were ��� �