1 There must be an absolute extinguishment of the original debt. Caswell v. Fellows, 110 Mass. 52. As to extension of the time of payment being a sufficient consideration, see Windham v. Doles, 59 Ga. 265; Hixon v. Hetherington, 57 Ala. 165. - K.

(f) Where a declaration alleged that one J. S., being indebted to the plaintiff, made and delivered to him his order in writing, directed to the defendant to deliver to the plaintiff or bearer a certain quantity of wood; and that the defendant, being indebted to J. S., in consideration thereof accepted the said order, and promised to deliver the wood, according to the tenor and effect of such order and the acceptance thereof; Held, on demurrer, that the defendant's acceptance of the order, and his promise to deliver the wood, were without any consideration, and therefore void; and that the plaintiff could not maintain an action against him thereon. Perhaps it might be questioned in such a case as this, whether the order of J. S. on the defendant, together with the acceptance of it by J. S., did not discharge the defendant's debt to J. S., and so raise a consideration for his promise to pay the plaintiff. The defendant would undoubtedly have been liable under the rules of the civil law. Ford v. Adams, 2 Barb. 349. See also Gails v. Sch. Osceola, 14 La. An. 54.

pleasure. (g)1 And if the person in whose favor the order is drawn has in consideration * thereof discharged the debt due to him, and so may hold this order as against the creditor giving it, still it is not a novation. He must sue in the name of the party drawing the order, unless the person on whom it is made has agreed with him in whose favor it is made to comply with the order. (A) And if the action is brought in the name of the original creditor, it is subject to the equitable defences which may exist between him and the debtor. But after such assent or agreement is given, then the order is irrevocable, and neither party can recede from the agreement. (i) The old debt is entirely discharged.

It will be seen, therefore, that in such case the debtor does not undertake to pay the debt of another, but contracts an entirely new debt of his own, the consideration of which is the absolute discharge of the old debt. Consequently, this new promise is not within the provisions of the Statute of Frauds, relating to a promise to pay the debt of another. (j)

(g) Owen v. Bowen, 4 C. & P. 93. In this case A gave a sum of money into the hands of B, to pay to C, but B had not paid it over. It was held, that if C had not consented to receive this sum of B, A might countermand the authority and recover it back from B. See also Gibson v. Minet, 1 C. & P. 247.

(h) The agreement of all parties seems to be absolutely essential to complete this contract, and unless there is a promise by the debtor to pay the new subtituted creditor the amount for which he was originally liable to his own creditor, there is no privity of contract, and an action at law will not lie by the transferee in his own name. Williams v. Everett, 14 East, 582; Mande-ville v. Welch, 5 Wheat. 277; Trustees of Howard College v. Pace, 15 Ga. 480; Gib-son v. Cooke, 20 Pick. 18. See Wharton v. Walker, 4 13. & <'. 163: Scott v. Porcher, 3 Meriv. 652; Wedlake v. Hurley, 1 Cr. & J. 83; Baron v. Husband, 4 B. & Ad. 614. But see Hall v. Marston, 17 Mass. 575.- And the creditor must also consent to take the new debtor as his sole security, and to extinguish his claim against his former debtor. Butterfield v. Hartshorn, 7 N. H. 345.

(i) See Ainslie v. Boynton, 2 Barb. 258; Hodges v. Eastman, 12 Vt. 358; Surtees v. Hubbard, 4 Esp. 203. In this case Lord Ellenborough observed: "Choses in action generally are not assignable. Where a party entitled to money assigns over his interest to another, the mere act of assignment does not entitle the assignee to maintain an action for it. The debtor may refuse his assent; he may have an account against the assignor, and wish to have his set-off; but if there is anything like an assent on the part of the holder of the money, in that case I think that this [assumpsit for money had and received], which is an equitable action, is maintainable." Beecker v. Beecker, 7 Johns. 103; Holly v. Rathbone, 8 id. 149; Norris v. Hall, 18 Me. 332; Clement v. Clement, 8 N. H. 472.

(/) Bird v. Gammon, 3 Bing. N. C. 883; Blunt v. Boyd, 3 Barb. 209. Aud see ante, note (4), p.* 217.

1 All three parties must concur in the same agreement, Murphy v. Hanrahan, 50 Wis. 485, 489; which the original and substituted debtor may rescind at any time before the latter has notice that the creditor accepts him, Trimble v. Strother, 25 Ohio St. 378; Durham v. Bischoff, 47 Ind. 211. The acceptance of the new For the original contract discharges the old debt, whether the new contract is ever performed or not. Morriss v. Harvey, 75 Va. 726. By accepting a third person in substitution for the original debtor, the creditor assumes the risk of such person's insolvency. Cadens v. Teasdale, 53 Vt. 469. See also Andrews v. Campbell, 36 Ohio St. 361; Flanagin v. Hambleton, 54 Md. 222; Drake v. Hill, 53 Ia. 37; Shaffer v. McKanna, 24 Kan. 22. - K.

There is one point upon which some uncertainty exists as to the principles of the civil law concerning novation, but upon which the rule of the common law is clear. If the order be for less than the whole debt due from him on whom it is made to the maker, it seems not to be entirely agreed upon by civilians whether such an order, assented to and complied with, would * or would not discharge the whole of the original debt. But there can be no doubt that by the common law it would be a discharge only pro tanto, unless there were a distinct agreement and a valid promise that it should be taken for the whole. (k)

(k) Heathcote v. Crookshanks, 2 T. R. 27; Fitch v. Sutton, 5 East, 230; Pinnel's case, 5 Rep. 117; Cumber v. Wane, 1 Stra. 426. See also Sibree v. Tripp, 15 M. & W. 23, where the case of Cumber v. Wane was much discussed, and somewhat qualified. - Neither will an order or draft for part only of a debt due from the drawee to the drawer, without the consent of the drawee, amount to an assignment of any portion of the debt or liability, and does not authorize the institution of a suit in the name of the assignee for the whole or any part of the sum due from the debtor. Gibson v. Cooke, 20 Pick. 15; Mandeville v. Welch, 5 Wheat. 277; Robbins v. Bacon, 3 Greenl. 346 (2d ed.), n.