Page:Federal Reporter, 1st Series, Volume 6.djvu/26

14 FEDERAL REPORTER. �stated by the court, was receiving interest from the surviving partners. �In Harris v. Lindsay, 4 Wash. 100, the liability of the out- going. partner was clearly shown to have been extinguished, and so the court decided. It is there said (page 273) that nq delay to pursue the outgoing partner, which falls short of an agreement, express or implied, to take the paying partner 9,8 a debtor, will discharge the retiring partner ; and the de- cisive question is stated to be whether the plaintiff had con- fprnaed to the agreement made between the parties at the dissolution; and the decisive fact considered to be that the paying partner "was to be credited with the notes when paid. In the present case we have an express adoption of a new and different firm as the debtors, and a credit to that firm of part payment of the debt. It is not seen that any difference arises from the circumstanee that the acquiescence in the arrange- ment, made between the old firm and the new, for a trans- fer of the liability of the old debts to the new firm, occurred after the new firm had become bankrupt, and not before. No inference is created by that delay, because David Eegester, the depositor, disappeared before the new firm was formed, and the existence of the deposits was not known until the bankruptcy. The representative of David Eegester, upon leaming of the debt and of the agreement by the new firm to assume it, had the right to take the benefit of that agreement, and to accept the new firm as debtors in place of the old firm. The acts and omissions under consideration were, in law and in fact, those of the creditor, and so they have been treated here, �I now proceed to consider this case in another aspect, which, as it seems tome, is also fatal to the plaintiff's daim. �The suit is in equity. The plaintiff applies for equitable relief, but his.claim is inequitable. This plainly appears. In 1873, when the new firm of Jay Cooke & Co. went into bankruptcy, and, the plaintiff was called on to act in respect to the debt sued on, it was open to him at once to assert the liability of Edward Dodgei for the debt in question. Had he ��� �