1 Thus where a mortgagor conveys the mortgaged premises, and his grantee agrees to assume and pay the mortgaged debt, and the mortgagee accepts him as his debtor, a novation results, Campbell v. Smith, 71 N. Y. 26; Calvo v. Davies, 73 N. Y. 211; Merriman v. Moore, 90 Penn. St. 78; or where a new firm takes upon itself the liabilities of the old, and a creditor, with knowledge of that fact, agrees to accept the new firm as debtor, and releases the old firm, Shaw v. McGregory, 105 Mass. 96, Silverman v. Chase, 90 Ill. 37. Such a release may be inferred from the acceptance of interest, the receiving of new notes, or the proving a claim in bankthen it is a sufficient consideration; and if at the same time C gives up his claim on B as the ground on which B orders A to pay C, then the consideration for which A promises to pay C may be considered as moving from C. An order addressed by a creditor to his debtor, directing him to pay the debt to some one to whom the creditor is indebted, operates as a substitution of the new debt for the old one, when it is presented to the debtor, and assented to by him, and not before; and also provided this third party gives up his original claim against the first creditor, and not otherwise. (/) The mutual assent of all the three parties seems to be necessary to make it an effectual novation, or substitution; for so long as the debtor has made no promise, or come under no obligation to the party in whose favor the order is given, it is a mere mandate which the creditor may revoke at his agency of three individuals, for the purpose of payment; and it can have no other effect than to extinguish the original debt, and create a new liability of debtor and creditor between the person holding the money and the individual who is to receive it. On any other supposition there would be a duplicate liability for the same debt; and the deposit, instead of being a payment, would be a mere collateral security, which is totally different from the avowed object of the parties. To entitle the plaintiff to recover, there must be an extinguishment of the original debt; and it is questionable whether, in cases of this kind, anything can operate as an extinguishment of the original debt, but payment, or an express agreement of the creditor to take another person as his debtor in discharge of the original claim." See also Warren v. Batchelder, 15 N. H. 129. - Wharton v. Walker, 4 B. & C. 163. In this case A being indebted to B, gave him an order upon C, who was A's tenant, to pay B the amount that should be due from C to A, from the next rent. B sent the order to the tenant C, but had not any direct communication with him, upon the subject. At the next rent-day C produced the order to A, and promised him to pay the amount to B, and upon receiving the difference between the amount of the order and the whole rent then due, A gave C a receipt fur the whole. B afterwards sued C to recover the amount of the order, in an action for money had and received, and upon an account stated. It was held by the whole Court of King's Bench, that he could not recover on either count, because the debt from A to B was not extinguished, Bayley, J., saying: "If, by an agreement between the three parties, the plaintiff had undertaken to look to the defendant, and not to his original debtor, that would have been binding, and the plaintiff might have maintained an action on such agreement; but in order to give him that right of action there must be an extinguishment of the intermediate debt. No such bargain was made between the parties in this case. Upon the defendant's refusing to pay the plaintiff, the latter might still sue A, and this brings the case within Cuxon v. Chad-ley, 3 B. & C. 591." See also French v. French, 2 Man. & G. 644, 3 Scott, N. R. 125; Thomas v. Shillibeer, 1 M. & W. 124; Moore v. Hill, 2 Peake, 10; Maxwell v. Jameson, 2 B. & Ald. 55; Short v. City of New Orleans, 4 La. An. 281; McKinney v. Alvis, 14 Ill. 34.

This would certainly seem to be in contradiction or exception to the ancient rule, that a personal contract cannot be assigned so as to give the assignee a right of action in his own name. But it is not so much an exception as a different thing. It is the case of a new contract formed and a former contract dissolved. *And the general principles in relation to consideration attach to the whole transaction. (d) Thus, to give to the transaction its full legal efficacy, the original liabilities must be extinguished. For if the debt from A to B be not discharged by A's promise to pay it to C, then there is no consideration for this promise, and no action can be maintained upon it; (e)1 but, * if this liability be discharged, *220

(d) For example, in order that an assignment of a chose in action should be valid against the creditors of the assignor, it must be bona fide and upon adequate consideration. Langley v. Berry, 14 N. H. 82; Giddings v. Coleman, 12 N. H. 153. The assignment, however, need not, although in writing, express to be for value received. Johnson v. Thayer, 17 Me. 401; Legro v. Staples, 16 Me. 252; Adams v. Robinson, 1 Pick. 461. It is sufficient if it be so in point of fact; and this must be proved aliunde than from the face of the paper. Langley v. Berry, supra. See post, Chapter on Assignment.

(e) Cuxon v. Chadley, 3 B. & C. 591; Butterfield v. Hartshorn, 7 N. H. 345. This was an action of assumpsit for money had and received. The plaintiff held a claim against the estate of a person deceased. The executor of the estate sold a farm belonging thereto to the defendant, and left in the defendant's hands a portion of the purchase-money to pay the plaintiff and other creditors their demands against the estate, which the defendant promised the executor to pay. This action was brought to recover the amount of the plaintiff's demand. Held, that he could not recover. Upham, J., "The principal question in this case is, whether the plaintiff can avail himself of the promise made by the defendant to the executor, - he never having agreed to accept the defendant as his debtor, nor having made any demand of him for the money prior to the commencement of this suit. ... In cases of this kind, a (.....tract, in order to be binding, must be mutual to all concerned; and until it is completed by the assent of all interested it is liable to be defeated, and the money deposited countermanded. It seems, also, to be clear, that no contract of the kind here attempted to be entered into can be made without an entire change of the original rights and liabilities of the parties to it. There is to be a deposit of money for the payment of a prior debt, an agreement to hold the money for this purpose, and an agreement on the part of a third person to accept it in compliance with this arrangement. It is made through the ruptcy, Bilborough v. Holmes, 5 Ch. D. 255; Wright v. Brosseau, 73 Ill. 381; but the mere acceptance of the note of an individual partner after dissolution is not enough without an express agreement, Leabo v. Goode, 67 Mo. 126; otherwise, of a bond given for a simple contract debt, Bennett v. Cadwell, 70 Penn. St. 253. See Hountz v. Holthouse, 85 Penn. St. 235, as to the assumption of firm debts by an incoming partner. - A compromise between the creditor and debtor, by which the amount, the terms and mode of payment of the debt, the rate of interest and nature of the securities are changed, is not a novation, unless the intention of the parties so to do is particularly expressed. Baker v. Frellsen, 32 La. An. 822. - The debtor also must assent to the new arrangement, to give it validity; as where an ice company, with which a cus-tomer from dissatisfaction had ceased to ileal, bought out the company with which the customer had subsequently contracted for ice, and continued to deliver ice to him without notifying him of the purchase until after the consumption of the ice, it was held, that no recovery could be had for the ice so delivered. Boston Ice Co. v. Potter, 123 Mass. 28. - K.