Sec 856

According to the Roman authorities, it is immaterial in what points the new contract differs from the old, provided the intention be to extinguish the old contract and create a new contract. The difference may be in the mode of performance,1 or in the person of debtor or creditor,2 or in some merely formal incident.3 The points of change, if not illegal, are indifferent, provided it be clear that the intention of the parties was that the new agreement should take the place of the old agreement. - When a new debtor is introduced on his own motion and not as assignee or appointee of the old debtor, this, accordiug to the modern Roman term is expromission. The introduction of a new debtor on the assignment or appointment of the older, is called delegation. This, however, it is maintained,4 has nothing necessarily in common with novation. That a new debtor is introduced, as where mortgaged property is purchased with an agreement by the purchaser to pay the mortgage, does not necessarily produce a new debt. The new debtor may be bound without any novation, the old debtor may continue to be bound, or be discharged, as the particular agreement provides. - In our law, as an old agreement may be rescinded and a new established in its place without regard to the character of the modification, the same principle holds good.5 It is true that the substitution of a new debtor in the place of an old is ordinarily an incident of novation.6 But this is not necessarily the case. "A novation," says Mr. Chitty, adopting Pothier's definition, "may take place when, without the intervention of any new person, a debtor contracts a new engagement with his creditor, in consideration of being liberated from the former,"1 and he cites cases to this effect where debtors give promissory notes upon the agreement that the creditors should receive the notes in satisfaction and extinction of the debt, and in which the novation consists not in taking a new debtor, but a new security with the old debtor.2 - Under delegation, as above stated, fall cases in which on A. owing B., and B. owing C, they make a mutual arrangement by which A. becomes C.'s debtor.3 According to Pothier, as cited by Mr. Chitty,4 "delegation is a kind of novation, by which the original debtor, in order to be liberated from his creditor, gives him a third person, who becomes obliged in his stead to the creditor, or to the person appointed by him. A delegation is made by the concurrence of three parties, and there may be a fourth. It includes a novation, by the extinction of the debt from the person delegating, and the obligation contracted in his stead by the person delegated. Commonly, indeed, there is a double novation, for the party delegated is commonly a debtor of the person delegating; and in order to be liberated from the obligation to him, contracts a new one with his creditor. In this case there is a novation both of the obligation of the person delegating, by his giving his creditor a new debtor, and of the person delegated by the new obligation which he contracts."5

To novation points of change are immaterial.

M. & W. 411; Gibson V. Cooke, 20 Pick. 15; McKinney V. Alvis, 14 Ill. 34; Short V. New Orleans, 4 La. An. 281. "Whether a note is a renewal of another note.depends upon the intention of the parties." Irving, J., Flanagan V. Hambleton, 54 Md. 225, citing Hacker V. Perkins, 5 Whart. 95.

1 L. 28 D. h. t. 8 C. h. t.

2 sec 3, I. quib. mod. toll. 3, 29; L. 8, sec 5, I. 20 D. h. t.

3 Ibid.; Windscheid, sec 353. 4 See Salpius, ut supra.

5 See Goss V. Nugent, 2 B. & Ad. 58; Marshall V. Baker, 19 Me. 402; Medo-mak Bk. V. Curtis, 24 Me. 36; Mana-han V. Noyes, 52 N. H. 232; Russell V. Barry, 115 Mass. 300; Murray V. Har-way, 56 N. Y. 337; Wilson V. Getty, 57 Penn. St. 266; Shepler V. Scott, 85 Penn. St. 329; Thurston V. Ludwig, 6 Oh. St. 1; and other cases cited Wh. on EV. sec 1017.

6 Fairlee V. Denton, 8 B. & C. 395; Heaton V. Angier, 7 N. H. 397; Gill V. Brown, 12 Johns. 385.