The term novation is also used to indicate a contract between the same parties as a prior contract, intended as a discharge of such prior contract and as a substitution therefor.1 In this sense the term is substantially equivalent to the novation of the Roman law-2 The questions which are presented under novation of this sort are the same that have been considered under the subject of new contract as discharge,3 or that will be considered under the subject of a new contract as payment.4 No novation of this sort exists unless the parties intend the new contract as a satisfaction of the prior contract.5 Accordingly, the acceptance of a note,6 or a receiver's certificate,7 is not such novation. So the mere acceptance of a new certificate of deposit from a banking partnership does not discharge the estate of a deceased partner from liability on a certificate of deposit issued when such partner was alive and a member of the firm.8
2Castte v. Persons, 117 Fed. 835, 54 C. C. A. 133.
3 Griffin v. Cunningham, 183 Maes. 505, 67 N. E. 660.
4 Commercial National Bank v. Kirk-wood, 184 111. 139, 56 N. E. 405 [affirming, 85 111. App. 235].
5 Barnes v. Crockett, 111 Va. 240, 36 L. R. A. (N.S.) 464, 68 S. E. 983.
6 Burford v. Hughes, - Okla. - , 182 'Pac. 689 (defense of fraud).
1 United States. Monitor Drill Co. v. Mercer, 163 Fed. 943, 20 L. R. A (N. S.) 1065.
Alabama. Hopkins v. Jordan, - Ala. - , 77 So. 710.
Maryland. District National Bank v. Mordecai. - Md. - , 105 Atl. 586.
Montana. Kinsman v. Stanhope, 50 Mont. 41, L. R. A. 1916C, 443, 144 Pac. 1083.
New Jersey. Morecraft v. Allen, 78 N. J. L. 729, L. R. A. 1915B, 1, 75 Atl 920.
New York. Bandman v. Finn, 185 N. Y. 508, 12 L. R. A. (N.S.) 1134, 78 N. E. 175.
Rhode Island. Cohen v. P. E. Harding Construction Co., 41 R. I. 242, 103 Atl. 702.
West Virginia. Dunn v. Bank of Union. 74 W. Va. 694, L. R. A. 1915B, 168, 82 S. E. 758.
See Sec. 2457 et seq.
2 "The insistence of appellants is that when Holloway acted or assumed to act (as the case was) as Mrs. Jordan's agent, and took a note and mortgage from Adams for $1,100 to Mrs. Jordan, she was thereby bound in such sense as that it was 'a kind of accord and satisfaction' (Bandman v. Finn, 185 N. Y. 508, 78 N. E. 176, 12 L. R. A. (N.S.) 1135) as to the Hopkins note and mortgage; that in law and in fact it amounted to novation. McDonnell v. Ala. Gold Life Ins. Co., 85 Ala. 401, 414, 5 South. 120. Mr. Justice Somer-ville gives a general definition of a novation in McDonnell's case, supra, as follows:
" 'A novation, under the rules of the civil law. whence the term has been introduced into the modern nomenclature of our common-law jurisprudence, was a mode of extinguishing one obligation by another, the substitution, not of a new paper or note, but of a new obligation, in lien of an old one; the effect of which was to pay, dissolve or otherwise discharge it.'