an extinguishment of the original debt, edness by a banking association to a depos since the old firm and the individual lia-itor, from which association members retire bility of the retiring partner might still exist. Morrison v. Kendall, 6 Ind. App. 212, 33 N. E. 370.

Nor is the release of a retiring partner by a firm creditor effectual where obtained by fraud. And such a release from a specified amount of the firm's indebtedness, and the consent by the creditor to the assumption by the incoming partner of the indebted ness therefor, are of no effect where the credit was obtained by the firm, which dealt in grain, upon the promise that it would take no risk in options, which it violated, losing heavily, and the release was obtained upon the withdrawal of a partner, by concealment of such loss. Clark v. Taylor, 68 | Iowa, 519, 27 N. W. 493.

If one partner goes out of a firm and an other comes in, the debts of the old firm may, however, by consent of all three parties, the creditor, the old firm, and the new, be transferred to the new. Patterson v. Camden, 25 Mo. 13; Tootle v. Cook, 4 Colo. App. 111, 35 Pac. 193.

And, if creditors so become parties to the agreement, for a good consideration, they will be bound by it, and cannot sue the retiring partner. Tootle v. Cook, supra.

And such an agreement is not invalid because not in writing. Hopkins v. Carr, 31 Ind. 260.

and new members take their places, the new firm receiving the property and assets of the immediate predecessors, and assuming all the liabilities thereof, is not a joint obligation of each of these firms within the meaning of the rule that a release of one joint debtor is a release of all, so that a release by the depositor of one of the earlier firms will not effect a release of the last one. Starr v. Stiles, 2 Ariz. 436, 19 Pac. 225.

And an inquisition of lunacy is not conclusive, but only presumptive, evidence of the lunacy of a firm creditor releasing his debt; and an assent to an arrangement between partners, by which one retired and the other assumed payment of the partnership debts, made by an agent of a creditor, when the creditor was afterwards declared by a commission to have been a lunatic at the time, is good where the power of attorney under which the agent acted was a sane, rational, and prudent act, and not otherwise questioned, the presumption arising from the inquisition being obviated thereby. Ex parte Bradbury, 4 Deacon, Bankr. 202.

In the above case, Lodge v. Dicas, 3 Barn. & Ald. 611, and David v. Ellice, 5 Barn. & C. 196, infra, IV., b, 3, (b), were distinguished upon the ground that the question was not present in this case, as it was in them, whether the retiring partner remained liable, but whether the continuing partner had not taken upon himself a separate liability as a collateral security for the joint debt.

(b) The question of consideration.

And a transaction by which a member of a firm sells his interest therein to the other partners, who, as part consideration therefor, agree to hold him free from any claim arising from the partnership, to which a creditor of the firm agrees, accepting the new partnership composed of the remaining members as debtors and releasing the retiring partners, constitutes a novation of the The assent or agreement of a partnerdebt which discharges the retiring partner. ship creditor to an assumption of the partScott v. Hallock, 16 Wash. 439, 47 Pac. 968. nership debts which will release a retiring So, an agreement by the creditor of a partner must be founded upon a good and partnership, in consideration of the payment sufficient consideration running to the credof a part of the debt due him by the retir-itor. Norman v. Jackson Fertilizer Co. 79 ing partner and the promise of the continuing partner to pay the remainder thereof, to release the retiring partner, is a novation, and effects such release. Frye v. Phillips (Wash.) 89 Pac. 559.

And one to take the individual obligations or notes of each partner, each for his portion of the joint debt, and release them as partners, is effectual for that purpose. Bowyer v. Knapp, 15 W. Va. 277.

Miss. 747, 31 So. 419; Bronx Metal Bed Co. v. Wallerstein, 84 N. Y. Supp. 924.

But the liability of persons who succeed in a partnership to all the rights and liabilities of a firm previously existing, for a partnership debt of the old firm which they assume, is a sufficient consideration to sustain notes given by them in satisfaction of such debt. Silverman v. Chase, 90 Ill. 37.

And a release by a creditor of a firm of And an agreement by a continuing part- a retiring partner thereof, and an agreener to pay all partnership debts, and the ment to regard the continuing partner as fact that there was placed in his hands his debtor, is based upon a sufficient considpartnership effects for that purpose, are evi-eration to support it, where the retiring dence of authority from the retiring part-partner sells out to third persons, who join ner to make an agreement with a creditor by which the creditor was to adopt the continuing partner as his sole debtor. Thomp son v. Percival, 5 Barn. & Ad. 925, 3 Nev. & M. 167.

A release of one of several persons or firms, who have individually obligated themselves to pay a partnership debt, however, does not release the others; and an indebt

with the remaining partner in the assumption of the partnership debt; since in such case the creditor receives the obligation of the new firm into which two new partners have been introduced. Laucks v. Martin, 6 Sadler (Pa.) 352, 20 W. N. C. 93, 9 Atl. 279.

In the above case, Walstrom v. Hopkins, 103 Pa. 118, infra, was distinguished upon

the ground that that was a suit against two members of a dissolved firm in which one of them claimed an escape from liabil ity because the other partners were to pay the debts.

The earlier, if not the general, rule was, however, that an undertaking by one of two partners, on dissolution, to pay a firm debt, did not constitute a consideration for the promise of the creditor to release the firm and the retiring partner from liability, since the promising partner was already bound for the amount. Early v. Burt, 68 Iowa, 716, 28 N. W. 35; Fagg v. Hambel, 21 Iowa, 140, 89 Am. Dec. 561; Fowler v. Coker, 107 Ga. 817, 33 S. E. 661; Clark v. Billings, 59 Ind. 508; Eagle Mfg. Co. v. Jennings, 29 Kan. 657, 44 Am. Rep. 668; Chase v. Vaughan, 30 Me. 412; Walstrom v. Hopkins and Lodge v. Dicas, supra. This was the early English rule. Nightingale v. Chafee, 11 R. I. 609, 23 Am. Rep. 531; Lodge v. Dicas, supra; David v. Ellice, 5 Barn. & C. 196, Affirming David v. Ellis, 1 Car. & P. 368.

And, under it, the fact that partners settled their partnership business with reference to an agreement by a creditor to release a retiring partner and accept the responsibility of a continuing one, who assumed the partnership debts, created no valid consideration for the promise of the creditor, where he was not a party to the settlement and derived no benefit from it. Frentress v. Markle, 2 G. Greene, 553.

But any advantage gained by a creditor by an assumption by a continuing partner of the partnership debts, or any prejudice suffered by the retiring partner, constitutes a legal consideration for a promise by the creditor to release the retiring partner. Walstrom v. Hopkins, supra.

Percival, 5 Barn. & Ad. 925, 3 Nev. & M. 167; Kirwan v. Kirwan, 4 Tyrw. 491.

In Lyth v. Ault, supra, Lodge v. Dicas, 3 Barn. & Ald. 611, supra, was distinguished on the ground that there the matter relied upon as the consideration for the exoneration of one of the partners was the agreement that the other partner should pay the plaintiff's claim; and the court held that there was no evidence that the plaintiff knew of this arrangement between the defendants.

And in Thompson v. Percival, supra, Lodge v. Dicas, supra, was criticized on the ground that the difference between the joint liability of two and the separate liability of one does not appear to have been brought into the consideration of the court.

So, in Re Clap, 2 Low. Dec. 226, Fed. Cas. No. 2.784, it was said that the doctrine laid down in Lodge v. Dicas and David v. Ellice, 5 Barn. & C. 196, supra, that a promise by a joint creditor to look to one partner only and release the other is void for the want of consideration, was changed in England by the case of. Thompson v. Percival, 5 Barn. & Ad. 925, which has been followed ever since.

And in Ex parte Bradbury, 4 Deacon, Bankr. 202, the holding in Lodge v. Dicas and David v. Ellice, supra, that the transfer of a partnership debt to a continuing partner is not binding upon the parties without proof that it was either to the prejudice of one party or beneficial to the other was said to be overruled by Thompson v. Percival and Kirwan v. Kirwan, supra.

So, an agreement by creditors of a partnership to look to one partner alone for payment, and to release the others, the firm to turn over to such partner certain goods, and such partner to agree to assume and alone discharge the indebtedness, is sufficiently supported by a consideration, under the rule that promises and releases, when made in conjunction with the turning over of goods, are a sufficient consideration to support an agreement to release. Hellman v. Schwartz, 44 Ill. App. 84; Rush v. Gray, 83 Ind. 589.

And the rule seems to be growing in favor, that the consideration which will sustain the discharge of a retiring partner whose copartner has assumed the partnership debts need not be a money consideration, but may consist of the obtaining of additional security, better terms of payment, negotiable securities, which the creditor may use in his business, or any other benefit; or it may be a loss of some right And a "transfer," mentioned in special or advantage suffered by the retiring part-findings to interrogatories that the only conner through the act of the creditor. John- sideration for a release by a creditor of a son v. Emerick, 70 Mich. 215, 38 N. W. 223. Under this rule, a promise of a continuing partner, made to the creditor himself, may be sufficient consideration to support the release of the outgoing partner by the creditor. Motley v. Wickoff, 113 Mich. 231, 71 N. W. 520.

firm of a retiring partner was the transfer by the retiring member to his copartners of his interest in the firm property, means the transfer founded upon and made in consideration of the creditor's agreement to look to the other partners for his debt, and not to the retiring partner, and is not in conflict with a general verdict finding the dissolution of the firm and an agreement between the creditor and the three partners by which the retiring partner conveyed to the other two all his interest in certain And the acceptance by a creditor of a property, and in consideration thereof the partnership, of the sole and separate lia-other two assumed to pay the creditor, and bility of one or more of the partners, is a the creditor agreed to look to them only, good consideration for an agreement to dis- and release the retiring partner. Rush v. charge all the other partners from liability. Gray, supra. Lyth v. Ault, 7 Exch. 669; Thompson v.

If a creditor actually agrees to take a firm, from which one partner has retired, as his debtor in lieu of the whole firm, he is bound by the agreement. Nightingale v. Chafee, supra.

In the above case, Clark v. Billings, 59

ness, to show his discharge by the creditor, | partner. Bronx Metal Bed Co. v. Wallereither by express agreement, or by facts stein, 84 N. Y. Supp. 924; Chase v. Vaughan, from which an agreement will be implied. 30 Me. 412. Hall v. Jones, 56 Ala. 493.

So, that a creditor has agreed to look to a partner, who, on dissolution of his firm, had agreed to pay the partnership indebtedness to the creditor, for its payment, is an affirmative defense in an action by the creditor against a retiring partner for the recovery of the partnership debt, and it must be proved by a preponderance of the evidence; and an instruction that "it is not necessary that he prove it by more testimony than against it" is erroneous. Wadhams v. Page, 1 Wash. 420, 25 Pac. 462.

Nor does an answer, under such circumstances, of "All right; pay as fast as you can." Motley v. Wickoff, 113 Mich. 231. 71 N. W. 520.

And evidence of an agreement between partners whereby one assumed all liabilities and indebtedness of the firm, and that the agreement was made with the knowledge and assent of a creditor, and that the creditor assured the retiring partner that he was released from liability, and that the agreement was in possession of the creditor and so could not be produced, is inadmissible in an action by the creditor against both partners, the debt being one of the old firm.

But when the dissolution of an old firm has occurred, and a new firm has agreed to assume its liabilities, but slight circum-Griffee v. Griffee, 173 Pa. 434, 34 Atl. 441. stances are required to justify finding an intention upon the part of the creditor of the old firm, who has notice of the dissolution and of the agreement, to accept the liability of the new firm in place of that of the old. Register v. Dodge, 19 Blatchf. 79, 6 Fed. 6; Re Family Endowment Soc. L. R. 5 Ch. 118.

Strict proof will be required, however, before it can be held that a creditor of a company under a special contract has accepted the liability of another company with which the first is amalgamated. Re Family Endowment Soc. supra.

So, an indulgence granted by a creditor of a partnership to a continuing partner, who has taken the assets and assumed the debts of the firm, does not amount to an agreement on his part to discharge the retiring partner. Harris v. Lindsay, 4 Wash. C. C. 98, Fed. Cas. No. 6.123.

And the owner of goods consigned for sale to two partners, afterwards dissolving, who, after being notified by the retiring partner of the dissolution, suffers the goods to remain in the possession of the continuing partner, does not thereby release the retiring partner from liability for the proWhether or not a creditor of a partner-ceeds. Holden v. McFaul, 21 Mo. 215. ship, from which a partner has retired, actually agrees to take the firm, consisting of the remaining partners, as his debtor in lieu of the old firm, is a question of fact. Nightingale v. Chafee, 11 R. I. 609, 23 Am. Rep. 531; Bowyer v. Knapp, 15 W. Va. 277; Thompson v. Percival, 5 Barn. & Ad. 925, 2 Nev. & M. 167.

And a finding that a partner had sold his interest in a firm to a member thereof, and that the new firm had assumed the payment of a partnership debt, and that the creditor had released the retiring partner from liability, and accepted the new firm as his debtor, will not be disturbed on appeal, where there was any evidence tending to prove the issues. Baum v. Fryrear, supra.

(d) Particular facts and circumstances indicating consent.

(1) Acquiescence and delay.

Mere silence upon the part of a creditor of a partnership, one partner in which had transferred his liability to another, does not establish acceptance by him of the agreement of the partners. Wadhams v. Page, supra.

And evidence that the agent of a creditor of a firm which had dissolved, one partner having sold the partnership effects to the other, the latter having agreed to pay the partnership debts, said, upon being informed of the facts, "All right; I am satisfied," does not establish an agreement upon his part to release from liability the retiring

Delay by a creditor of a partnership for any period of time within the statute of limitations, to demand payment of the partnership debt, does not discharge the retiring partner under such an agreement. Wadhams v. Page, 1 Wash. 420, 25 Pac. 462.

Nor does a depositor of a bank carried on by a limited company, the assets of which were afterwards handed over to another company having a similar name, and the business of which was thereafter carried on in the name of the new company, by accepting interest on his deposit for two successive half years after the transfer, accept the new company as his debtor and discharge the old, where he did not know of the existence of the new company, or that there had been a transfer to it of the liability which the old company had incurred toward him. Re Commercial Bank Corp. 16 Week. Rep. 958.

So, the act of creditors of a partnership, knowing of its dissolution and of the retirement of a partner, and that the continuing partners had agreed to discharge the debts of the old firm, of extending the time of payment of the debt due them for a valuable consideration, and accepting the notes of the new firm as evidence of the indebtedness, does not show an agreement to look solely to the new firm for payment, and does not, therefore, amount to a release of the retiring partner. First Nat. Bank v. Cheney, 114 Ala. 536, 21 So. 1002.

And where a life-assurance society was dissolved by the shareholders, and its assets were transferred to another company,