
    GILL AND BENNET v. FAWCETT.
    Substitution of one debtor for another — agreement to pay another — privity.
    Where A. owes B. and agrees with C. that C. shall pay it, and B. agrees to accept C. in A.’s stead, this is no discharge of A. without C. has agreed with B. to pay; until such agreement with B. lie is not privy to the agreement, and has no right of action against C.
    Assumpsit for goods sold. It appeared in evidence that the defendant, after he received the goods, sold out his stock to a partnership, who agreed with him to pay the plaintiff’s demand. The defendant, before he sold the goods, had asked the plaintiffs if they were willing to take the new firm, and received for answer that they were. The sale was made, but the purchasers would not give their obligation for the debt.
    
      Chester, for the plaintiff,
    moved to reject that part of the testimony which related to the conversation about taking the new firm.
    
      Caswell and Starr
    
    cited Gow on Part. 201, 324; 3 B. & Ald. 127; 13 John. 87; 17 John. 340.
    
      Fox, contra,
    cited 2 O. 91, and Gow 326.
   BY THE COURT.

Whatever weight there may be in the objection urged, it does not go to the competency of the testimony. The effect of the evidence is for the jury. We are not now to judge of it.

LANE, J. to the jury. The testimony is, that Fawcett refused to sell tbe goods till the plaintiffs agreed to take the new firm as their paymaster — he then sold; but he did not see to procure the new firm to become paymaster to the plaintiffs. He took their word that they would pay the plaintiff, and there left the matter. The plaintiffs agreed, to accept the new firm, and were bound to do so, if they had offered; but they have no obligation on them, nor right of action against them. Tbe new firm never agreed with them to pay the old debt, and, therefore, it remains as it was. The defendant has never substituted any other liability for his own, nor exonerated himself. We think the defence not made out.

Verdict for the plaintiff, and judgment.  