1. Three points have been argued before us. We agree with the District Judge that there were no partners not joined and that the suit is not bad for non-joinder. We also agree with him that the contract was not rescinded by reason of the failure of the plaintiff to make stipulated payments.
2. Assuming that the defendant was liable in damages, it has been argued that one of the partners has since died and that as his death would in any case have put an end to the partnership, this fact must be considered in reduction of damages. Mr. Mayne in his Work on Damages lays down broadly that matters arising subsequently to the cause of action are inadmissible in reduction of damages and in Joyner v. Weeks (1891) 2 Q.B. 31 : 60 L.J.Q.B. 510 : 65 L.T. 16 : 39 W.R. 583 : 55 J.P. 725, it was observed by Fry, L.J., that as a general rule where a cause of action exists, the damages must be estimated with regard to the time when the cause of action came into existence. Applying this principle we think that the subsequent death of one of the partners cannot be taken into account and that in the words of Wright, L.J., in the same case at page 33, 'the suggested kind of ademption of loss appears to us to be too remote, uncertain and accidental to be properly made the ground of decision.' The appeal fails and is dismissed with costs, The memorandum of objections is also dismissed with costs.