court of jurisdiction. The question then is, can the cause be now removed?—for an amendment of the record at this time, so as to show the necessary jurisdictional facts, could be equivalent to a removal at this time. With respect to the time of removal, the statute provides that the petition therefor shall be filed in the state court "before or at the term at which said cause could be first tried." This means, as has been repeatedly held in this circuit, the term at which by law the cause could first be tried; not necessarily the term at which the parties are ready for trial.

If it be that this term has not yet passed, a removal is still permitted by the statute; but if it has passed, the question is whether it is not too late to remove the cause, either by a new petition or an amendment of the record. This question will not necessarily arise until the amended transcript is presented, and is therefore not finally passed upon.

Leave is granted to file an amended transcript, if plaintiff still desires to do so, otherwise the cause will be remanded. MILLER, C. J., concurs.

NOTE. See Curtin v. Decker, 5 FED. REP. 385, and Beede v. Cheeney, Id. 888.

REGESTER V. DODGE.

(Circuit Court, E. D. New York. February 16, 1881.)

1. LIABILITY OF RETIRED PARTNER-NEW FIRM.

In a suit in equity to charge the estate of a partner, who retired from the banking firm of Jay Cooke & Co. in 1871 and died in 1877, with the amount of certain deposits made with said firm in 1869—

Held, that where money is deposited with a banking firm which subsequently dissolves, and whose business is continued by a new firm, the liability of the members of the old firm continues, unless facts be shown from which an intention to accept the liability of the new firm in lieu of the liability of the old firm can be fairly inferred. If such facts be shown, the liability of a retired partner will be held to have been extinguished.

2. SAME-ACCEPTANCE BY CREDITOR OF NEW FIRM-EVIDENCE.

That where a banking firm is dissolved, and the business is carried on by a new firm which has agreed to assume the liability of the old

firm, slight circumstances only are required to justify finding the existence, on the part of a creditor of the old firm, who has notice of the dissolution and of the agreement of the new firm, of an intention to accept the liability of the new firm in place of the liability of the old.

8. SAME-SAME-SAME.

That proof of debt made by the administrator of a depositor in the bankruptcy proceedings of the new firm, setting forth the original deposit made with the old firm as a debt of the new firm, with knowledge at the time that the old firm of Jay Cooke & Co. had been dissolved; that the new firm of Jay Cooke & Co. was composed of persons not members of the old firm, and that the new firm had assumed the debt in question for the purpose of terminating the liabil ity of the retiring partner therefor, was an adoption of the new firm as debtors by the creditor. The adoption of the new firm as debtors under such circumstances, coupled with the omission on the part of the creditor, during the life-time of the retiring partner, to indicate, by word or deed, the existence of a claim against such partner, and with a delay of five years before attempting to charge the retired partner's estate, are sufficient circumstances to justify the inference that the intention was to accept the liability of the new firm in place of the liability of the old.

4 SAME-EQUITABLE RIGHTS-LACHES.

That the right sought to be enforced by this action, being an equitable right, may be met by equitable circumstances; and where the result of unexcused delay in asserting the liability of the retired partner by the creditor has been to deprive the retired partner of the opportunity to vote as a creditor in the bankruptcy proceedings of the new firm, and, by participating in the distribution of the property of the new firm, to save himself from any loss arising out of the liability for the debt, it would be inequitable to permit such creditor, at so late a day, to charge the estate of the retired partner with liability.

In Equity.

J. O. McKeen, for plaintiff.

Thomas M. Morgan, for defendant.

BENEDICT, D. J. In this case I have listened to a reargument, and have re-examined the question upon which, as 1 suppose, the case turns, and my opinion remains unchanged, that the plaintiff is not entitled to recover. The earnestness of the contention made in behalf of the plaintiff has impelled me to state at length the reasons of my conclusion.

The action is a suit in equity, brought by the administrator of David Regester, who disappeared in the year 1870, and is

supposed to be dead, against Harry E. Dodge, executor of Edward Dodge, for the purpose of charging the estate of Edward Dodge with the amount of certain deposits of money made by David Regester in the year 1869 with the firm of Jay Cooke & Co., of Philadelphia, of which firm Edward Dodge was then a member.

The material facts are as follows:

At the time of the deposits in question the banking firm of Jay Cooke & Co., of Philadelphia, was composed of William G. Morehead, Henry D. Cooke, Pitt Cooke, George C. Thomas, Harry C. Fahnestock, John W. Sexton, and Edward Dodge. This firm dissolved January 1, 1871. John W. Sexton and Edward Dodge then retired from the business, and a new firm was formed, consisting of the remaining members of the old firm, and two new members, Jay Cooke, Jr. and James A. Carhart. The new firm succeeded to the business of the old firm, the account with the retiring members was made up and settled, and the new firm then assumed all the obligations of the old firm, and agreed that the liability of the retiring members therefor should be terminated.

The new firm continued business until November 26, 1873, when it was adjudged bankrupt. Among the debts of the new firm, published in the bankruptcy proceedings of that firm, was the debt here sued on. In June, 1873, this debt was, without objection, proved as a debt of the new firm in the bankruptcy proceeding of that firm by the representative of David Regester.

Upon this debt so proved dividends were from time to time declared out of the assets of the new firm of Jay Cooke & Co., and the same received by the representative of David Regester. In the year 1879 the estate of the new firm was wound up under the direction of trustees, in accordance with the provisions of the bankrupt law, and the stocks then constituting the assets of the new firm were distributed among the creditors of that firm in pursuance of a scheme assented to by the creditors.

Edward Dodge died in 1877. During his life-time no claim of liability for the deposits in question was made upon him

in any form, so far as appears. In September, 1878, and prior to the distribution of the stocks by the trustees of the new firm, payment of this debt was demanded by the representative of David Regester of the executor of Edward Dodge, who then denied the existence of the debt as a liability of Edward Dodge. Thereafter the representative of David Regester participated in the distribution of the stocks belonging to the new firm of Jay Cooke & Co. made by the trustees thereof, and as a creditor of that firm received sundry shares of various stocks, which he forthwith, and on June 12, 1879, sold at private sale, without notice to the executor of Edward Dodge. The amount of the cash dividends received from the estate of the new firm, together with the amount realized from the sale of the stocks distributed by direction of the trustees of that firm, not being equal to the amount of the deposits made in 1869 by David Regester, this action is brought by his representative to charge the estate of Edward Dodge with the deficiency.

The law of the case is not doubtful. By the deposits made in 1869 with the old firm of Jay Cooke & Co., Edward Dodge, then a member of that firm, became liable for the amount thereof. That liability continues, unless facts be shown from which an intention on the part of the creditor to accept the liability of the new firm in lieu of the liability of the old firm can be fairly inferred. The question, therefore, is whether the facts above stated are sufficient to warrant the conclusion that the liability of the new firm was so accepted by the plaintiff.

In disposing of questions of this character, courts have frequently held that, when the dissolution of an old firm has occurred, and a new firm has agreed to assume the liabilities of the old firm, but slight circumstances are required to justify finding an intention on the part of a creditor of the old firm, who has notice of the dissolution and of the agreement by the new firm, to accept the liability of the new firm in place of the liability of the old. In Ex parte Williams, Buck, 13, the court, speaking of such a case, say: "A very little will do.” In In re Smith, Knight & Co. L. R. 4 Ch. App. 66,

the lord justice says: "There is no doubt whatever that if you have an old firm, and either a new partner is taken into it or a new firm constituted, and the assets are taken over by the new firm, and the customer, knowing all these things, afterwards goes on and deals with the new firm, you infer assent on his part from slight circumstances." In In re Family Indorsement Soc. L. R. 5 Ch. App. 118, speaking of a case very like the present, it was said: "Very slight evidence, indeed, would be required to establish that the creditor had taken the liability of the new firm instead of the old."

What, then, are the circumstances in this case tending to show assent by the plaintiff to the novation of the debt sued on? In the first place, it will be observed that from the time of the publication of this debt as a debt of the new firm of Jay Cooke & Co., the creditor-and the representative of David Regester was then the creditor authorized to collect and to discharge the debt-knew that the old firm of Jay Cooke & Co. had dissolved; that Edward Dodge and John W. Sexton had retired from the business; that a new firm had been formed, containing members who were not members of the old firm; and that such new firm had agreed to assume all the liabilities of the old firm. The creditor is also chargeable with knowledge that the purpose of this agreement made by the new firm was to relieve the outgoing parties from their liability for the debts of the old firm. The nature of the agreement itself disclosed that to be its object.

This knowledge on the part of the creditor is not without significance in ascertaining his intention. If it had been the intention of the creditor to maintain intact the then existing liability of the retired partner, such an intention would naturally have evoked from the creditor, when he came to deal with the new firm in respect to this debt, some positive expression of a purpose to avoid a substitution of the liability of the new firm in place of the liability of the old. The proofs here fail to show that any expression of such a purpose in any form escaped from this creditor.

The next circumstance deserving attention is the time which elapsed before any attempt was made to enforce the