Sec 865

Novation, being a new contract, based, it is true, upon the extinguishment of a prior contract, but starting an independent obligation dating from its own inception, is not to be regarded as within that provision of the statute of frauds which prescribes a particular form for an agreement to pay another's debt.3 If the original debt is discharged, the new promise may be established by parol.1 But while a novation is not within the statute of frauds in the sense of involving an agreement to pay another's debt, it is as much within the terms of that statute as it would be were there no prior agreement outstanding between the parties. In other words, the fact that a prior agreement has been duly executed in accordance with the statute by the parties, does not in itself validate a new agreement between the parties without the adoption of the formalities the statute prescribes. The intention of the parties, it is true, can be brought out in rectification of the old contract, and this without a new solemnization. But to constitute a new contract there must be a new solemnization in conformity with the statute of frauds.2

Insurance company may devolve its duties on assignee.

Novation within statute of frauds.

1 Leake, 2d ed. 791; Hort's case, L. R. 1 C. D. 307; Grain's case, L. E. 1 C. D. 315; Cocker's case, L. R. 3 C. D. 1; Doman's case, L. R. 3 C. D. 21; Dowse's ease, L. R. 3 C. D. 384.

2 Conquest's case, L. R. 1 C. D. 334.

3 Times Life Ass. Co., L. R. 5 Ch. 381.

4 Blood ex parte, L. R. 9 Eq. 316; Miller's case, L. R. 3 C. D. 391.

5 Cocker's case, L. R. 3 C. D. 1.

6 National ProV. Ass. Soc. in re, L. R. 9 Eq. 306.

7 Leake, 2d ed. 792; Manchester, etc., Ass. in re, L. R. 5 Ch. 640. That the acceptance of payments of an annuity from the assignee of the company granting the annuity is not a novation, see Family Endowment Soc. in re, L. R. 5 Ch. 118.

8 Bird V. Gammon, 3 Bing. N. C. 883; Dearborn V. Parks, 5 Greenl. 81; Rowe V. Whittier, 21 Me. 545; Pike V.

Brown, 7 Cush. 133; Barker V. Buck-lin, 2 Denio, 45; Farley V. Cleveland, 4 Cow. 432; Rice V. Carter, 11 Ired. 298; Files V. McLeod, 14 Ala. 611; Robbins V. Ayres, 10 Mo. 358; see supra, sec 661, 690.

1 Wh. on EV. sec 1017, and cases there cited; Goss V. Nugent, 2 B. & Ad. 58;.

Bird V. Gammon, 3 Bing. N. C. 883; Medomak Bk. V. Curtis, 24 Me. 36; Wiggin V. Goodwin, 63 Me. 389; Curtis V. Brown, 5 Cush. 492; Watson V. Randall, 20 Wend. 201; Draughan V. Bunting, 9 Ired. 10.

2 Wh. on EV. sec 1035; see supra, sec 661, 690.