DELEGATION. In Civil Law. A kind of novation by which the original debtor, in order to be liberated from his crenicor, gives him a third person, who becomes obliged in his stead to the creditor or to the person appointed by him. See NOVATION.
Perfect delegation exists when the debtor who makes the obligation is discharged by the creditor.
Imperfect delegation exists whein the cred itor retains his rights against the original debtor. 2 Duvergnoy, n. 169.
It results from the definition that a dele gation is made by the concurrence of at least three parties, viz.: the party delegat ing—that is the former debtor who procures another debtor in his stead; the party dele gated, who enters into the obligation in the place of the former debtor, either to the creditor or to some other person appointed by him; and the creditor, who, in conse quence of the obligation contracted by the party delegated, discharges the party dele gating. Sometimes there intervenes a fourth party; namely, the person indicated by the creditor in whose favor the person delegated becomes obliged, upon the indication of the creditor and by the order of the person del egating. Pothier, Obl. pt. 3, c. 2, art. 6; Adams v. Power, 48 Miss. 454. See La. Civ. Code 2188, 2189; Kellogg v. Richards, 14 Wend. (N. Y.) 116; Buster v. Newkirk, 20 Johns. (N. Y.) 76; Wentworth v. Wentworth, 5 N. H. 410; Sterling v. Trading Co., 11 6. & R. (Pa.) 179.
The party delegated is commonly a debt or of the person delegating, and, in order to be liberated from the obligation to him, contracts a new one with his creditor. In this case there is a novation both of the ob ligation of the person delegating, by his giving his creditor a new debtor, and of the person delegated, by the new obligation which he contracts. Pothier, Ut 8upra.
In general, where the person delegated contracts a valid obligation to the, creditor, the delegant is entirely liberated, and the creditor has no recourse against him in case of the substitute's insolvency. There is an exception to this rule when it is agreed that the debtor shall at Ms own risk delegate an other person; but even in that case the cred itor must not have omitted using proper diligence to obtain payment whilst the sub stitute continued solvent. Pothier.
Delegation differs from transfer and sim ple indication. The transfer which a cred itor makes of his debt does not include any novation. It is the original debt which passes from one of the parties, who makes the transfer to the other, who receives it, and only takes place between these two per sons, without the consent of the debtor nec essarily intervening. Again, when the debtor indicates to the creditor a person from whom he may receive payment of the debt, and to whom the debtor gives the creditor an order for the' purpose, it is merely a mandate, and neither a transfer nor a novation. So, where the creditor indicates a person to whom his debtor may pay the money, the debtor does not contract any obligation to the person in dicated, but continues the debtor of, his cred itor who made the indication. Pothier. See NOVA.TION.
At Common Law. The transfer of authori ty from one or more persons to one or more others.
Any person, sui Juris, may delegate to an other in authority to act for him in a matter which is lawful and otherwise capable of being delegated; Comyns, Dig. Attorney, c. 1; 9 Co. 75 b; Story, Ag: § 6.
When a bare power or authority has been given to another, the latter cannot, in gen eral, delegate that authority, or any part of it, to a third person, for the obvious rea son that the principal has relied upon the intelligence, skill, and ability of his agent, and cannot have the same confidence in a stranger ; Story, Ag. § 13; 2 Kent 633; Broom, Leg. Max. 839; Shankland v. Wash ington, 5 Pet. (U. S.) 390, 8 L. Ed. 166 ; Ex parte Winsor, 3 Sto. 411, 425, Fed. Cas. No. 17,884; Entz v. Mills, 1 McMull. (S. C.) 453; Brewster v. Hobart, 15 Pick. (Mass.) 303; Wilson v. R. Co., 11 Gill & J. (Md.) 58 :" Mason v. Wait, 4 Scam. (Ill.) 127, 133; Smith v. Lowther, 35 W. Va. 300, 13 S. E. 999 ; Whitlock v. Washburn, 62 Hun 369, 17 N. Y. Sitpp. 60. A power to delegate his au thority may, however, be given to the agent by express terms of substitution ; Commer cial Bank of Lake Erie v. Norton, 1 Hill (N. Y.) 505. If the power of the agent is cre ated by writing, he cannot go beyond It; Henry v. Lane, 128 Fed. 243, 62 C. C. A. 625.