Where there is a substitution of a new contract for an 'old one; the new contract must be a valid one upon which the creditor can have his remedy ; Guichard v. Brande, 57 Wis. 534, 15 N. W. 764; and the previous obligation of which novation is sought must be a valid one; Clark v. Billings, 59 Ind. 509.
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 B. & Ad. 925; Cox v. Baldwin, 1 La. 410; Goodrich v. Stanley, 24 Conn. 621; other wise, if there be no satisfaction ; 2 Scott N. IL 938. But as to the distinction between novation and accord and satisfaction, see that title. The discharge of the old debt must be contemporaneous with, and result from the consummation of, an arrangement with the new debtor ; Cornwell v. Megins, 39 Minn. 407, 40 N. W. 610.
But where an agreement is entered into by deed, that' deed gives in itself a substan tial cause of action; and the giving such deed may be a sufficient accord and satis faction for a simple contract debt ; Co. Litt. 212 b; 1 Burr. 9; Jones v. Johnson, 3 W. & S. (Pa.) 276, 38 Am. Dec. 760; Snyder v. Sponable, 1 Hill (N. Y.) 567.
In the civil law delegatio, no new creditor could be substituted without the debtor's consent. This rule is observed in the com mon 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 them. To establish such privity there must be a new promise founded on sufficient consideration; Mandeville v. Welch, 5 Wheat. (U. S.) 277, 5 L. Ed. 87 ; 5 Ad. & E. 115 ; Cornwell v. Megins, 39 Minn. 407, 40 N. W. 610; v. Werner, 74 Wis. 456, 43 N. W. 161, 5 L. R. A. 414 ; Galls v. The Osceola, 14 La. Ann. 54.
But in equity a creditor may assign his claim fully to another without any interven tion of the debtor; and the assignee is not even compelled to sue in his assignor's name ; Vanbuskirk v. Ins. Co., 14 Conn. 141, 36 Am. Dec. 473 ; Moseley v. Boush, 4 Rand. (Va.) 392.
The extinction of the prior debt is con sideration enough to support a novation. If A holds B's note, payable to A, and as signs this for value to C, B is by such transfer released from his promise to A, and this is sufficient consideration to sus tain his promise to C; Ans. Contr. 22Q; Bacon v. Daniels, 37 Ohio St. 279; Parsons v. Tillman, 95 Ind. 452 ; Bacon v. Bates, 53
Vt. 30. And a consideration need not be ex pressed in the contract of novationl 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 his 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 anything like an assent on the part of a holder of money can be inferred, he will be considered as the debtor; 4 Esp. 203 ; McNeil v. McCamley, 6 Tex. 163; if the debtor's assent be not secured, the order of transfer may be revoked before it is act ed on.
In a delegation, if the old debtor agree to provide a substitute, he must put his cred itor into such a position that the latter can claim full satisfaction from the delegated debtor, or otherwise the original liability re mains, and there is no novation ; Coy v. De Witt, 19 Mo. 322; Appleton v. Kennon, id. 637. See 2 M. & AV. 484 ; Sheehy v. Mande ville, 6 Cra. (U. S.) 253, 3 L. Ed. 215; Arnold v. Camp, 12 Johns. (N. Y.) 409, 7 Am. Dec. 328 ; Guichard v. Brande, 57 Wis. 534, 15 N. W. 764.
One who has contracted to pay the debts of another, and has been notified by a cred itor that he accepts the arrangement, cannot be released 'from liability to such creditor by rescinding the contract without his con sent ; Hume v. Brower, 25 Ill. App. 130.
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 declara tion. An intention to discharge the old debt must be shown in all cases; and this inten tion is sufficient to work a novation; Smith v. Brown, 12 La. Ann. 299. "The delegation by which the debtor gives to the creditor an other debtor, 'who obliged himself towards such creditor, does not operate as a novation unless the creditor has expressly declared his intention to discharge the debtor who made the delegation." Choppin v. Gobbold, 13 La. Ann. 238.