Sec 854

To constitute novation, according to the Roman law, it is essential that there should be shown to be an intention on the part of the creditor to institute a new contractual relation - animus novandi. This intention must be proved by the party setting up the novation. But no particular form is requisite for this purpose, nor need it, such is the prevalent opinion, be expressly declared.2 In our own law, to constitute the surrender of the old debt and the substitution of another, it must be shown from all the facts that this was the intention of the creditor, and that this intention was duly executed by an agreement with a sufficient consideration.3 It must appear that the creditor intended specifically to accept the new debtor, and agreed so to do.4 Thus, in a New Hampshire case, the evidence was that, C. being a creditor of the estate of D., E., D.'s executor, sold a farm belonging to the estate, and left the purchase money in the hands of S., the purchaser, to pay C, and other creditors, which debts S. agreed to pay. It was held that as C. had never assented to this arrangement before suit, or agreed in any way to accept S. as his debtor, the suit could not be maintained.5

Consent of the creditor to constitute a new obligation and surrender the old, is essential.

Metc 283; Markle V. Hatfield, 2 Johns. 455; Whitbeck V. Van Ness, 11 Johns. 409; Boyd V. Hitchcock, 20 Johns. 76; Booth V. Smith, 3 Wend. 66; Frisbie V. Lamed, 21 Wend. 450; Christie V. Craige, 20 Penn. St. 430; Gresham V. Morrow, 40 Ga. 487; Jones V. Perkins, 29 Miss. 142.

1 Infra, sec 954 et seq.

2 L. 8, sec 5, i. f. D. h. t.

3 Infra, sec 953 et seq.; Bedford V. Deakin, 2 B. & Al. 210; Robinson V. Read, 9 B. & C. 449; Robson V. Drum-mond, 2 B. & Ad. 303; Jones V. Walker, 2 Paine, 688; Bntterfield V. Hartshorne,.

7 N. H. 345. In Conquest's case, L. R. 1 Ch. D. 334, it was held that assent to a novation is not to be inferred unless a definite request has been shown. See Hort's case, L. R. 1 Ch. D. 307; Robson V. Drummond, 2 B. & Ad. 303.

4 Smith V. Wheatcroft, L. R. 9 Ch. D. 230; Boulton V. Jones, 2 H. & N. 564; Miller's case, L. R. 3 Ch. D. 391; Boston Ice Co. V. Potter, 123 Mass. 28; Murphy V. Hanrahan, 50 Wis. 489; and see supra, sec 180.

5 Butterfield V. Hartshorne, 7 N. H. 345. See supra, sec 784 et seq.

Sec 855

It stands to reason that the substitution of a new contract in the place of an old requires the assent of all the parties to the old contract, and of all the parties to the new contract. Unless all the parties to the old contract consent, it cannot be rescinded; unless all the parties to the new contract consent, it cannot be created.1 We are thus brought to notice the fallacy of the argument on which several American courts rest the conclusion that a third party, with whom no contractual relations have been instituted by the original parties to a contract, can sue on that contract if it contains provisions for his benefit.2 A cognate question arises when A. assigns to B. a debt due from C. to A. At what time does such an assignment become irrevocable by A.? The better opinion is, in conformity with what has been stated above, that until A. and C. agree to the transfer of the debt to B., and B. assents to the transfer, the transfer cannot be made. The debtor's assent is necessary to establish the contractual relation with the new creditor.3

And so of consent of other parties.

1 See Murphy V. Hanrahan, 50 Wis. 489.

2 See supra, sec 785 et seq.; infra, sec 863; Owen V. Bowen, 4 C. & P. 43; Mandeville V. Welsh, 5 Wheat. 277; Gibson V. Cooke, 20 Pick. 15.

3 See supra, sec 840. In Boulton V. Jones, 2 H. & N. 564, which has been the subject of much discussion, the defendants sent an order for goods to B., who (they being ignorant of the change) had transferred his business to the plaintiff. The plaintiff, to adopt Mr. Pollock's summary (3d ed. 436), supplied the goods without notifying the change, and after the goods had been accepted, sent an invoice in his own name, whereupon the defendants said they knew nothing of him. It was held that there was no contract, and that he could not recover the price of the goods. The defendants, it should be added, had a set-off against B. Mr. Benjamin, while admitting the ruling of the court to be right under the circumstances, argues that the defendants were bound " in equity either to make an equitable assignment to the vendor (plaintiff) of his [their] claim against B. for an amount equivalent to the price, or to become trustee for the seller in recovering the claim against B." Mr. Pollock rejects this view, but thinks that a proposal to a particular trader for goods might, in absence of any facts showing personal relationship, be regarded as a proposal to such trader's immediate successors and representatives in carrying on the trade.

As cases of novation see Tatlock V. Harris, 3 T. R. 174, and Wilson V. Coupland, 5 B. & Ald. 228. That all parties to the old contract must consent to the novation, so as to extinguish the old contract, as well as to establish the new contract, see Crowfoot V. Gurney, 9 Bing. 372; Yates V. Bell, 3 B. & Ald. 643; Owen V. Bowen, 4 C. & P. 93; Hutchinson V. Hey worth, 9 Ad. & El. 375; Walker V. Rostron, 9