1 Cuxon v. Chadley, 3 B. & C. 591; post, § 1343, 1350.
2 This doctrine was held in Weston v. Barker, 12 Johns. 281 (Spencer, J., dissenting); Neilson v. Blight, 1 Johns. Cas. 205; Israel v. Douglas, 1 H. Bl. 239 (spoken of with disapprobation in Taylor v. Higgins, 3 East, 169, and Johnson v. Collings, 1 East, 98); Ward v. Evans, 2 Ld. Raym. 928; Fenner v. Meares, 2 W. Bl. 1269; Surtees v. Hubbard, 4 Esp. 203; Hall v. Marston, 17 Mass. 575; Gibson v. Minet, 2 Bing. 7.
3 Scott v. Porcher, 3 Meriv. 652; Crowfoot v. Gurney, 2 Moo. & S. 473, 480; 9 Bing. 372; Hodgson v. Anderson, 3 B. & C. 842; Williams v. Eveseveral cases, in which it has been held, that not only the assent of all parties is required, but that the contract should clearly be considered by them as an extinguishment of the debt so far as the original parties were concerned;1 or, in other rett, 14 East, 582; Yates v. Bell, 3 B. & Al. 643; Mowry v. Todd, 12 Mass. 284; Meert v. Moessard, 1 Moo. & P. 11; Gibson v. Cooke, 20 Pick. 15; Owen v. Bowen, 4 C. & P. 93. In this case A. gave a sum of money into the hands of B. to pay to C, and it was ruled by Lord Tenterden, in an action against B. by A. to recover the money, that unless C. had consented to look to B. for the payment of that sum, A. was entitled to recover. In Baron v. Husband, 4 B. & Ad. 613, Lord Denman says: "The defendant received the money as the agent of the assignees and not of the plaintiff; he held it subject to their control and directions, and would continue to be accountable to them until he entered into some binding engagement with the plaintiff to hold it for his use. As soon as that engagement was entered into, and not until then, he would hold the money to the plaintiff's use. This is the doctrine laid down in Williams v. Everett, 14 East, 582; Wharton v. Walker, 4 B. & C. 163; Scott v. Porcher, 3 Meriv. 652; Wedlake v. Hurley, 1 Cr. & J. 83." See also Maxwell v. Jameson, 2 B. & Al. 55; Drake v. Mitchell, 3 East, 251; Walker v. Rostron, 9 M. & W. 418, 420; Robertson v. Fauntleroy, 8 Moore, 10; Burn v. Carvalho, 1 Ad. & El. 883; Fairlie v. Denton, 8 B. & C. 395; Enthoven v. Hammond, 1 Com. Law, 22; 22 Eng. Law & Eq. 476; Barlow v. Browne, 16 M. & W. 126. In Maxwell v. Jameson, 2 B. & Al. 55, one of the makers of a joint and several promissory note, after it had become due, gave his bond to the holder for the amount, but before the commencement of the action no money was actually paid on the bond; and it was said by Mr. Justice Holroyd, "In order to support this action [assumpsit for money paid], the debt must have been extinguished either by an actual or a virtual payment of money by the plaintiff to the defendant's use. There has clearly been no actual payment; and in order to have made the giving of the bond operate as a virtual payment, the defendant must be shown to hace been a party to that transaction, which was not the case." See Pickens v. Hathaway, 100 Mass. 247; Wright v. Law-ton, 37 Conn. 167 (1870).
1 Wilson v. Coupland, 5 B. & Al. 228. In Wharton v. Walker, 4 B. & C. 164, Mr. Justice Bayley, commenting on this case, says: " The case of Wilson v. Coupland is very distinguishable from the present. There the defendants were originally indebted to Taillasson & Co. for money had and received, and Taillasson & Co. were indebted to the plaintiffs, and with the consent of all parties it was arranged that the plaintiffs should take the defendants as their debtors. By that arrangement the demand against Taillasson & Co. was extinguished, and the defendants having been indebted to them for money had and received, it was held that the plaintiffs might recover in that form of action. In the present case no money was ever had and received by the defendant to the use of any person, which objection existed in Israel v. Douglas, and has caused the propriety of that decision to be words, a strict novation of the debt is necessary to found a right on the part of the third person to recover against the drawee.
§ 484. The true result of the English cases would seem to be, that the assent of the three parties is necessary to create a had the defendant delivered the sixty cords of wood to the plaintiff, he could not have discharged the defendant from the whole or any part of the debt due to Jacob Schyer. The plaintiff gave no consideration to Jacob Sehyer for the order, nor to the defendant for his acceptance of the order, and his promise to deliver the wood. If the defendant had, in consideration of his owing $200 to Jacob Schyer, promised to deliver to him sixty cords of wood, the promise would have been without consideration, without a promise on the part of Jacob Schyer that he would accept the wood in satisfaction of part or the whole of the debt due to him." In this case it will be observed that there was no privity of contract between the plaintiff and the drawee, and no reciprocal promise and acceptance between them, which, of itself, would bring the case within the decisions requiring assent of all parties, without going so far as to require an utter extinguishment of the debt. See also Thomas v. Shillibeer, 1 M. & W. 124; French v. French, 3 Scott, N. R. 125; 2 Man. & Grang. 644; Short v. City of New Orleans, 4 La. An. 281; McKinney v. Alvis, 14 111. 34. In Butterfield v. Hartshorn, 7 N". H. 345, an action of assumpsit was brought by the plaintiff to recover an amount claimed against the estate of a person deceased. The executor sold a farm belonging to the estate to the defendant, and left in the defendant's hands a portion of the purchase-money to pay the plaintiff and other creditors their demands against the estate, which the defendant promised the executor to pay; but it was held that the plaintiff could not recover. Upham, J., said, in delivering the judgment: "The principal question in this case is whether the plaintiff can avail himself of the promise made by the defendant to the executor, he never having agreed to accept the defendant as his debtor, nor having made any demand on him for the money prior to the commencement of this suit." " In cases of this kind a contract, in order to be binding, must be mutual to all concerned, and until it is completed by the assent of all interested, it is liable to be defeated, and the money deposited countermanded." Thus far this case proceeds exactly upon the grounds of the decisions cited in the previous note, and the doctrine laid down is amply sufficient to support the judgment. But the learned judge continues: "It seems also to be clear that no contract of the kind here attempted to be entered into can be made, without an entire change of the original rights and liabilities of the parties to it. There is to be a deposit of money for the payment of a prior debt, - an agreement to hold the money for this purpose, and an agreement on the part of a third person to accept it in compliance with this arrangement. It is made through the agency of three individuals for the' purpose of payment; and it can have no other effect than to extinguish the original debt, and create a new liability of debtor and creditor betwixt the person holding the money and the individual who is to receive it. On any other supposition there would be a duplicate liability for the same debt; and the deposit, instead of being a payment, reciprocal right and obligation between the drawer and the person in whose favor the order is drawn, but that the absolute extinguishment of the original debt would not be required. The taking of a draft or.order would seem to operate as a conditional payment of the debt, and when accepted by the drawee, it would be binding as between him and the holder, so as provisionally to exclude the original drawer; but on nonpayment by the drawee, the condition failing, the holder of the draft would have a right to recur to the original creditor.1 would be a mere collateral security, - which is totally different from the avowed object of the parties.