In the civil law delegatio, no new creditor could be substitnted without the debtor's con sent. This rule is observed in the common law. Hence, without this consent and promise to pay, a new creditor can have no action against the debtor, because there is no privity of contract between thein. To establisin such privity there must be a new promise founded on sufficient consideration. 14 East, 582 ; 3 Mer. Ch. 652 ; 5 Wheat. 277 ; 12 Ga. 406 ; 15 id. 486 ; 5 Ad. & E. 115 ; 7 Harr. & J. Md. 213, 219 ; 21 Me. 484.
10. But in equity a creditor may assign ,his claim fully to another without any inter vention of the debtor ; and the assignee is not even compelled to sue in his assignor's ,name. 14 Conn. 141 ; 3 Swanst. 302 ; 4 Rand. Va. 392 ; Mart. & Y,. Tenn. 378.
The extinction of the prior debt is con sideration enough to support a novation. If A holds B's note, payable to A, and assigns this for value to C, B is by such transfer released from his promise to A, and this is sufficient consideration to sustain his promise to C. 1 Parsons, Contr. ch. 13 ; 2 Barb. N.
Y. 349. And a consideration need not be expressed in the contract of novation; though one ,must be proved in order to defend in a suit brought by creditors of the assignor.
When assent or consideration is wanting, the novation operates only as a species of collateral security. The transferee cannot sue in b;s own name, and will be subject to all the equitable defences which the debtor had against the original creditor. This assent on —the debtor's part is said to be essential, for the reason that he may have an account with his assignor, and he shall not be barred of his right to a set-off. Still, if any thing like an assent on the 'part of a holder of nioney can be inferred, he will be consIdered as the debtor. 4 Esp. 203 ; 6 Tex. 163. If the debtor's assent be not secured, the order of transfer may be revoked before it is acted on.
11. In a delegation, if the old debtor agree to provide a substitute, he must put his creditor into such a position that the latter can claim full satisfaction from the delegated debtor, or otherwise the original liablity remains, and there is no novation. 19 Mo. 322, 637. See 3 Barnew. & Ald. 64 ; 5 id. 925 ; 5 Barnew. & C. 196 ; 4 Esp. 89 ; 4 Price, Exch. 200 ; 2 Mees. W. Exch. 484 ; 6 Cranch, 253 ; 12 Johns. N. Y. 409 ; 7 /c/. 311 ; 21 Wend. N. Y. 450.
The existing Louisiana law is based upon the doctrines of the Civil Code considered above. It is held in numerous cases that " novation is not to be presumed :" hence the receipt of a bill or note is not necessarily a novation, or extinguishment of the debt for which it is given.. An express declaration to that effect is required in most of our states, or else acts tantamount to a declaration. An
intention to discharge the old debt must be shown in all cases ; and this intention is suffi cient to work a novation. 4 La. Ann. 329, 543 ; 6 id. 669 ; 9 id. 228, 497 ; 12 id. 299. " The delegation by which the debtor gives to the creditor another debtor, who obliges him self towards such creditor, does not operate a novation unless the creditor has expressly declared his intention to discharge the debtor who made the delegation." 13 La. Ann. 238.
12. One of the most common of modern novations is the surrender and destruction of an old promissory note or bill of exchange, and the receipt of a new one in payment thereof. The rules of novation apply as com pletely to debts evidenced by mercantile paper as to all other obligations. Story, Bills, 0 441; Pothier, de Change, n. 189 ; Thomson, Bills, ch. 1, 0 3. Hence, everywhere, if the parties intend that a promissory note or bill shall be absolute payment, it will be so considered. 10 Ad. & E. 593 ; 4 Mas. C. C. 338 ; 1 Rich. So. C. 37, 112 ; 9 Johns. N. Y. 310 ; 13 Vt. 452. In sonne states, the receipt cf a nego tiable promissory note is prima facie payment of the debt upon which itris given, and has an action upon the account unless the pre sumption is controverted. 12 Mass. 27 : 12 Pick. Mass. 268 ; 2 Mete. Ma.ss. 76 ; 5 Cush. Mass. 158 ; 8 Me. 298 ; 29 Vt. 32. " lf creditor gives a receipt for a draft in payment of his account, the debt is novated." 2 La. 109. But see the cases cited supra for the full Louisiana law. In most states, however, the rule is, as in England, that, whether the debt be pre-existing or arise at the time of giving the note, the receipt of a promissory note is fitcie a conditional ,payment only, and works no novation.
13. It is payment only on fulfilment of the condition, i.e. when the, note is paid. 5 Beav. Rolls, 415 ; 40 Eng. L. & Eq. 625 ; 6 Cranch, 264 ; 2 Johns. Cas. N . Y. 438 ; 15 ;Johns. N. Y. 224, 247 ; I Cow. N. Y. 290 ; 27 N. II. 253 ; 11 Gill & J. Md. 416 ; 4 R. I. 383 ; 8 Cal. 501 ; 2 Speers, So. C. 438 ; 2 Rich. So. C. 244; 15 Serg. & R. Penn. 162.
If a vendor transfer his vendee's note, he can only sue on the original contract when he gets back the note, and has it in his power to return it to his vendee. 1 Pet. C. C. 262 ; 4 Rich. So. C. 59. See DISCHARGE ; PAYMENT ; 10 Pet. 532 ; 8 Cow. N. Y. 390 ; 6 Watts & S. Penn. 165 ; 1 Hill, N. Y. 516 ; 3 Wash. C. C. 396 ; 5 Day, Conn. 511 •, Add. Penn. 39 ; 9 Watts, Penn. 273 ; 10 Md. 27 ; 1 Sneed, Tenn. 501; 1 Hempst. Ark. 431; .27 Ala. kr. s. 254 ; 1 Parsons, Contracts, c. 13 ; Dixon on Substituted Liabilities.