The term "novation" has not been much used in English or American law, hut may he found in some late English cases; and the thing itself, or this form of contract, may he found in many cases, both in England and in this country. The word is borrowed from the civil law, where it forms an important topic; and we may find a clear statement of its principles in Pothier's work on Contracts. (a)1 It is defined thus: a transaction whereby a debtor is discharged from his liability to his original creditor, by contracting a new obligation in favor of a new creditor, by the order of his original creditor. Thus, A owes B one thousand dollars; B owes C the same sum, and, at the request of C, orders A to pay that sum, when it shall fall due, to C. To this A consents, and B discharges A from all obligation to him. A thus contracts a new obligation to C, and his original obligation to B is at an end. By the civil law, any new contract entered into for the purpose and with the effect of dissolving an existing contract was regarded as a novation, and in the above case the civil law would recognize two sorts of contracts of novation; the contract by which A is discharged from his liability to B by contracting a new obligation to C, and the novation by which B would be discharged from his obligation to C by procuring A as a new debtor. This distinction has not been preserved in the common law, and the rights and obligations of the parties in both cases are governed by the same rule.

A leading English case on this subject is Tatlock v. Harris. (b)

(a) Part 3, ch. 2, art. 4.

(b) 3 T. R. 174. In this case it was determined that where a bill of exchange was drawn by the defendant and others on the defendant alone, in favor of a fictitious person (which was known to all parties concerned in drawing the hill), and the defendant received the value of it from the second indorser, a bona fide holder for valuable consideration might recover the amount of it in an action against the acceptor for money paid or money had and received; and Buller, J., puts this case: "Suppose A owes B £100, and B. owes C. £100, and the three meet, and it is agreed between them that A shall pay C the £100, B's debt is extinguished, and C may re-cover that sum against A." - So in Wil1 The various kinds of novation are considered and many cases collected in an article by Professor J. B. Ames, in 0 Harv. L. Rev. 184.

It will be seen, from the statement of the cases in the *note, that the principle deducible from them is, that if A owes B, and B owes C, and it is agreed by these three parties that A shall pay this debt to C, and A is by this agreement discharged from his debt to B, and B is also discharged from his debt to C, then there is an obligation created from A to C, and C may bring an action against A in his own name. (c)1 son v. Coupland, 5 B. & Ald. 228, where the plaintiffs were creditors and the defendants were debtors to the firm of " T. & Co.," and by consent of all parties an arrangement was made that the defendants should pay to the plaintiffs the debt due from them to " T. & Co.," it was held, that as the demand of " T. & Co." on the defendants was for money had and received, the plaintiffs might recover against the defendants on a count for money had and received, Best, J., saying, " A chose in action is not assignable without the consent of all parties. But here all parties have assented, and from the moment of the assent of the defendants it seems to me that the sum due from the defendants to ' T. & Co.' became money had and received to the use of the plaintiffs." The case of Heaton v. Angier, 7 N. H. 397, furnishes an excellent illustration of this principle. That was an action of assumpsit for a wagon sold and delivered. The defendant having bought the wagon of the plaintiff at auction, sold it immediately afterwards on the same day to one John Chase. Chase and the defendant then went to the plaintiff, and Chase agreed to pay the price of the wagon to the plaintiff for the defendant, and the plaintiff agreed to take Chase as paymaster. Held, that the debt due from the defendant to the plaintiff was extinguished. Green, J., having cited the case put by Buller, J., in Tatlock v. Harris, said: "The case put by Buller is the very case now before us. Heaton, Angier, and Chase being together, it was agreed between them that the plaintiff should take Chase as his debtor for the sum due from the defendant. The debt due to the plaintiff from the defendant was thus extinguished. It was an accord executed. And Chase, by assuming the debt due to the plaintiff, must be considered as having paid that amount to the defendant, as part of the price he was to pay the defendant for the wagon." See also Thompson v. Percival, 5 B. & Ad. 925, 3 Nev. & M. 171. - And in such case the defendant's undertaking is not to pay the debt of a third person within the meaning of the Statute of Frauds. Bird v. Gammon, 3 Bing. N. C. 883; Meert v. Moessard, 1 Mo. & P. 8; Arnold v. Lyman, 17 Mass. 400; French v. French, 2 Man. & G. 644, 3 Scott, N. R. 125; Blunt v. Boyd, 3 Barb. 209.

(c) So if in such case the promise of A to pay C is conditional, as to pay whatever may hereafter be found due from A to B, and after such amount is ascertained but before it is paid, B becomes bankrupt, still C may sue A for the amount of A's debt to B. Crowfoot v. Gurney, 9 Bing. 372. See also Hodgson v. Anderson, 3 B. & C. 842. - It is to be borne in mind that in order to constitute an assignment of a debt or a novation, so as to enable the transferee to bring an action in his own name in a court of law, the assent of the debtor to the agreed transfer is absolutely essential, and there must be a promise founded on sufficient consideration to pay it to the transferee. In equity, however, it is otherwise, and there need be no promise by the debtor to the assignee in order to entitle him to sue in his own name. Lord Eldon in Ex parte South, 3 Swanst. 392; Tibbits v. George, 5 A. & E. 115, 116; Robbins v. Bacon, 3 Greenl. (2d ed.) 346, n.; Blin v. Pierce, 20 Vt. 25; L'Estrange v. L'Estrange, 1 E. L. & E. 153 n.; Van Buskirk v. Hartford Fire Ins. Co. 14 Conn. 141; Mandeville v. Welch, 5 Wheat. 277; Gibson v. Cooke, 20 Pick. 15. See also Schlosser's Appeal, 58 Penn. St. 493.