detriment to Dicas by Rondeau's collecting the partnership debts, that was not shown to be known to the plaintiff; nor did the plaintiff obtain any benefit, for he acquired no new debtor, and no new security. The case is certainly distinguished from those before cited by the fact that no fresh security was given, although in principle it seems to fall within them. But the next decision, that of David v. Ellice and others (5 Barn. & Cressw. 196), took a much greater leap to the prejudice of the retiring partner, and in disparagement of the authority of Lords Kenyon and Ellenborough. The facts were these: Messrs. John Inglis, Ellice, J. P. Inglis, and James Inglis, carried on business in partnership as merchants in London, under the firm of Inglis, Ellice, and Co., and had extensive dealings with the plaintiff, a merchant in Canada. On the 30th April 1821, Mr. Ellice (the present Secretary at War) retired from the firm; and a circular stating that fact, and that the business would be carried on by the remaining partners, who assumed the funds, and charged themselves with the liquidation of the debts of the partnership, was transmitted to the plaintiff (as also to the other correspondents of the house,) in a letter from the new firm, Inglis and Co., dated the 10th of May following. On the 28th June, the plaintiff wrote to Inglis and Co. in reply:"I am favoured with yours of the 10th ult., with circular of the 30th April, advising the change in your firm, which continues to have my full confidence. The accounts will be transferred so soon as I receive my account current, and an account opened for the new firm." The account current of Inglis, Ellice, and Co. with the plaintiff was made up, according to their annual usage, to the 30th June 1821, showing a balance to the plaintiff's credit of £18,000, and was transmitted to him by Inglis and Co. on the 17th July. They did not open any new books of accounts, but continued to keep the account with the plaintiff in the same books, and in the same manner as before. On the 24th September, the plaintiff wrote to them :- "The account current with your late firm is received, and is perfectly correct, and have transferred it in a new account with your present firm, whose confidence I hope I shall continue to merit." On the 3rd November following, the plaintiff drew a bill on the new firm for £5000, which

they honoured. They continued to act as his mercantile agents and correspondents in London, and on the 1st July 1822, made up and sent to him the first account current in their own names, balanced up to the 30th June preceding. In August of that year the senior partner, John Inglis, died, and the firm in consequence suspended their payments; and in May 1823, a commission issued against J. P. Inglis and James Inglis, under which they were duly found bankrupts, and obtained their certificates. In the meanwhile, on the 14th October 1822, the plaintiff had written advising the receipt of the account, and expressing his continued confidence. Between the retirement of Ellice and the death of John Inglis, the new firm had continued in credit, and carried on business to a very great extent, having made payments during that time to nearly the amount of two millions sterling. The plaintiff now sued Ellice and the two surviving Inglis's for the balance of the old account: Ellice pleaded the general issue, the other defendants their bankruptcy and certificate, and a nolle prosequi was entered as to them; against Ellice a verdict passed for the amount of the balance due on the account of 30th June 1821, giving credit for the payments subsequently made by the new firm to the plaintiff's account. And the Court, on a special case reserved, and after time taken to consider, held that the plaintiff was entitled to retain that verdict.

The counsel for the plaintiff contended, that there was no consideration for any agreement to discharge Mr. Ellice from his liability-there was no benefit to the plaintiff, for he acquired no new security; no prejudice to Ellice, for it did not appear that he left any funds in the house; at all events no prejudice arising at the plaintiff's request. On the other side, it was urged that the transaction was the same in effect as if the plaintiff had actually received the balance due from the old firm, and re-lent it to the new, in which case Mr. Ellice would undeniably have been discharged: that the plaintiff agreed to accept the new firm as his debtors, and they agreed to hold themselves liable to him as such, for that amount; and that such an agreement, according to the authorities, was sufficient to exonerate the retired partner. But, it was added, if a consideration was necessary, there was a

sufficient consideration; there was a benefit to the plaintiff, because he was permitted to draw on the new firm for a larger sum than they had in their hands belonging to him; there was a prejudice to Ellice, since he might have withdrawn his funds before the new firm failed-and he must have left funds, since the plaintiff was informed that the new firm had funds to pay the creditors, which must have belonged to the old firm. Lord Chief Justice Abbott, in delivering the judgment of the Court, put the case entirely on the ground of want of consideration. The plaintiff, he said, gained nothing, nor was Mr. Ellice prejudiced, unless it were presumed that he had left funds in the hands of his former partners, which he would have withdrawn. But this being a matter of fact, ought to have been proved, and not left to presumption; and the first step in such proof would have been to show that Ellice knew what the plaintiff had done; even that was not proved. In the absence of such proof, it was clear that he was not discharged. The facts, he added, were much less favourable to the retiring partner than in the case of Heath v. Percival,' which had been cited on the part of the plaintiff.

This decision, it is manifest, flung aside altogether the considerations which had influenced the minds of the learned

11 P. Wms. 682; Stra. 403. The defendant's testator and one E. were partners in trade, and on dissolving, agreed that all their joint bonds should be discharged by E. only, who had an allowance made him for that purpose. The plaintiff was a bond creditor of the firm, and after the dissolution applied to E. for payment; and they two came to an agreement that the bond, which before carried interest at 5 per cent., should in future stand out at 6 per cent., and some interest after that rate was paid accordingly. E. became bankrupt; the plaintiff received a dividend out of his estate, and now filed a bill against the executor of the other partner to discover assets, and compel a redemption of the bond. The defendant admitted assets, but relied on the circumstances of the plaintiff's dealings with E. Lord Chancellor Macclesfield decreed for the plaintiff. He said the agreement between the partners, being res inter alios acta, ought not to prejudice the plaintiff, as it would do if of any avail, because it tended to lessen his security: the subsequent agreement for an advance of the interest did not alter the case, for the other partner might nevertheless have come in and been discharged on payment of principal and interest at 5 per cent. : neither did the plaintiff's receipt of the dividend prejudice his right, for that was an advantage to the defendant by lessening the debt. If the retired partner be still held liable in equity, his case will certainly be little mended; but if the principle now adopted by the Court of King's Bench be a correct one, we apprehend it must follow that the creditor, having adopted a new debtor and gained a new security, has equally barred himself of his remedy in equity.

judges in Evans v. Drummond and Reed v. White, and seemed to render it almost impracticable for a retiring partner to discharge himself from liability at law, however equitable the terms on which he quitted the partnership, and however fully they might be sanctioned by the creditors of the firm. It excited, accordingly, a good deal of observation in the profession, and no little dissatisfaction in the City. It remained however untouched until the determination of the case which we referred to in the outset, and to which we are now to advert more particularly.

This was a case of Thompson v. James and Charles Percival, decided in Hilary Term last, and as yet reported only in Nevile and Manning's Reports, vol. iii. p. 167. It was assumpsit for goods sold, to which James Percival pleaded the general issue, and Charles Percival his bankruptcy, whereupon a nolle prosequi was entered as to him. The following were the material facts: The defendants were partners in trade up to the 22d Dec. 1829, on which day an advertisement was inserted in the Gazette announcing the dissolution of their partnership, and that the business would be continued by James P., who would receive and pay all debts, and effects sufficient for that purpose were left in his hands. The greater part of the goods in question had been delivered before the dissolution; other part, to the value of about 131., was ordered subsequently by James. It did not appear that the plaintiff had, either at the time of the order or of the delivery, any direct notice of the dissolution. In the beginning of 1830, he applied to James P. for the balance, who told him that Charles knew nothing of the transactions, and that the plaintiff must look to him (James) alone. The plaintiff afterwards drew a bill on James for the mixed account, which James accepted, but did not honour; the plaintiff then gave him time to pay, but eventually brought his action against both. And as he had had no sufficient notice of the dissolution, the whole demand stood upon the same footing.

For the plaintiff, the cases of Lodge v. Dicas and David v. Ellice were relied on. The defendant's counsel endeavoured, not very successfully, to distinguish them. The Court, however, adopted a principle of decision very different from that

which those cases had introduced. The following is an extract from the judgment delivered by Lord Denman:

"It appears to us that the facts proved raised a question for the jury, whether it was agreed between the plaintiff and James P., that the former should accept the latter as his sole debtor, and take the bill of exchange accepted by him alone by way of satisfaction of the debt due from both. If it was so agreed, we think the agreement and receipt of the bill would be a good answer on the part of Charles P. to this demand, by way of accord and satisfaction. It is not necessary to determine whether the assent of Charles to this agreement was necessary to give it such an operation; because if it was, there is evidence of a delegation by Charles to James to make such an agreement, for James had all the partnership effects left in his hands, and was to pay all the partnership debts. It cannot be doubted but that if a chattel of any kind had been, by the agreement of both the defendants, given and accepted in satisfaction of the debt, it would have been a good discharge: nor can it be questioned but that the bill of exchange of third persons given and accepted in satisfaction of the debt would be a good discharge; but it is contended that the acceptance of a bill of exchange by one of two debtors cannot be a good satisfaction, because the creditor gets nothing which he had not before. The written security, however, which is negotiable and transferable, is of itself something different from that which he had before; and many cases may be conceived in which the sole liability of one of two debtors may 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, cannot be made the subject of inquiry." His Lordship went on to distinguish Lodge v. Dicas, on the ground that there no new negotiable security was given; nor did the difference between the joint liability of two and the separate liability of one, occur to the consideration of the Court. The decision in David v. Ellice, (which was admitted to be a stronger case than the present in favour of the retired partner,) he said was not, on consideration, altogether satis