5. It follows that the new debtor, in a dele gation, can claim nothing under the old con tract, since he has consented t,o the destruc tion of that contract. For the same reason, a creditor cannot proceed against the dis charged debtor. And this is true though the new debtor should become insolvent while the old remains solvent. And even though at the time of the novation the new debtor was insolvent, still the creditor has lost his remedy against the old debtor. But the rule, no doubt, applies only to a bona fide delega tion. And a suit brought by the creditor against a delegated debtor is not evidence of intention to discharge the original debtor. 11 La. Ann. 93.
6. In a case of mistake, the rule is this ; if the new debtor agree to be substituted for the old, under the belief that he himself owes so much to the discharged debtor, although he do not in fact owe the amount, yet he is bound to the creditor on the novation ; be cause the latter has been induced to discharge the old debtor by the contract of the new, and will receive only his due in holding the new debtor bound. But where the supposed cre ditor had really no claim upon the original debtor, the substitute contracts no obligation with him; and even though he intended to be bound, yet be may plead the fact of no former debt against any demand of the creditor, as soon as this fact is made known to him.
A novation may be made dependent on a condition. In that case the parties remain bound, as before, until the condition is ful filled. The new debtor is not freed from a conditional novation as to the creditor until the condition happens ; and he is not liable in an aetion to the old debtor until it is per formed.
7. Any obligation which can be destroyed at all may be destroyed by novation. Thus, legacies, jadgment debts, etc., with mortgages, guarantees, and similar accessories, are as much the subjects of novation as simple con tract debts. But a covenant by the obligee of a bond not to sue the obligor within a certain time is not an example of the oivil-law no vation. The agreement was not a release, not a substituted contract, but a covenant merely, for the breach of which the obligee has his action. 19 Johns. N. Y. 129.
The preceding summary is founded on Massi, Droit Commercial, liv. v. tit. 1, ch. 5, 2 ; Mackeldey, Romischen Rechts, and Pothier, Traite des Obligations, pt. 3, ch. 2.
See, also, Domat's Civil -Law, trans. by Dr. Strahan (Cushing's ed.), part i. b. iv. tit. 3, 4; and Burge on Suretyship, b. 2, c. 5, Am ed. pp. 168-190.
At Common Law. The common-law doctrine of novation mainly agrees with that of the civil law, but in some parts differs from it.
S. The term novation is rarely employed. Tho usual common-law equivalent is assignment, and sometimes merger. Still, this form of contract found its way into oommon-lam treatises as early as Fleta's day, by whom it was oalled innovatio. Item, per innovationem, ut ei tranefusa sit obligati° de ma persona in aliam, gum in ee sueeeperit obligationent. Fleta, lih. 2, c. 60, 12. The same words here quoted are also in Braoton, lib. 3, o. 2, 13, but we have novationem for intioinulottem. In England, recently, the term novation has heen revived 111 some ea Re& A case of novation is put in Tatlock ve. Harris, 3 Term, 180. "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 recover that sum against A." There must always be a debt once existing and now cancelled, to serve as &consideration for the new liability. The action in all eases is brought on the new agreement. But in order to give a right of action there must be an extinguishment of the original debt. 4 Barnew. & C. 163 ; 1 Mees. & W. Exch. 124 ; 14 Ill. 34 ; 4 La. A.nn. 281 ; 15 N. H. 129.
9. No mere agreement for the transforma tion of one contract into another is of effect until actually carried into execution and the consent of the parties thereto obtained. A good novation is an accord executed, 5 Barnew. & Ad. 925; 3 Nott & M'C. So. C.171 ; 1 Strange, 426 ; 15 Mees. & W. Exch. 23 ; see 1 Ad. & E. 106 ; 2 Campb. 383 ; 1 La. 410 ; 1 Exch. 601 ; 24. Comi. 621 ; otherwise, if there be no satisfaction. 2 Scott, N. 938. But where an agreement is entered into by deed, that deed gives in itself a substantial cause of action ; and the giving such deed may be a sufficient accord and satisfaction for a simple contract debt. Coke, Litt. 212 b ; 1 Burr. 9 ; 2 Rich. So. C. 608 ; 3 Watts & S. Penn. 276 ; 1 Hill, N. Y. 567. See 1 Mas. C.
C. 503 ; 11 Wend. N. Y. 321.