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debt due to him from A., the plaintiff can have no right of action upon the defendant's promise to pay the money.

In a joint action by two plaintiffs upon an account stated, it appeared that the defendant was indebted to Moor, one of the plaintiffs, in a large sum of money, and afterwards the other plaintiff was admitted a partner with Moor, and then a further debt was contracted by the defendant with the new partnership, after which an account was settled between the defendant and the two plaintiffs, and it was agreed that all the money due to Moor before his partnership with the other plaintiff, should be taken into that account, and that the balance should be paid to both the plaintiffs; and it was held, that the action was properly brought by them jointly. (b) But if there had been no special agreement or consent on the part of the defendant to substitute the one debt for the other, the plaintiffs would not, by reason of any agreement amongst themselves, have been entitled to join in the action. (c)

Drafts and orders for the payment of money operating by way of NOVATION and SUBSTITUTION.-An order addressed by a creditor to the defendant his debtor, given to the plaintiff, to whom such creditor is indebted, in satisfaction of his debt, and presented by the plaintiff to the defendant, and assented to by the latter, operates as a substitution of a new debt in the place of the original demand. But the mutual assent of the three parties is essential to the novation, as the original demand is not extinguished and annihilated, if the consent and concurrence of any one of the three are wanting.

"When a creditor," observes Pothier, indicates a person to whom the debtor may pay the amount of his debt, this indication does not amount to a novation; so long as the debtor does not contract any obligation to the person indicated, but continues the debtor of the creditor who made the indication." The direction so given, he observes, is a mere mandate, which is revocable, and does not constitute any novation, until it has been assented to by the debtor. (d) By the common law there must be not only an assent on the part of the debtor to whom the order is addressed, but there must be also the express concurrence of the person in whose favour the order is made, manifesting his assent to the change of liability. If he is not a party to the contract, the original debt. is not released and extinguished, there is no novation, and can be no substitution. (e)

(b) Moor v. Hill, 2 Peake, 10.
(c) Wilsford v. Wood, 1 Esp. 180.
(d) Pothier, partie 3, c. 2, art. 6, § 4.

(e) In Justinian's Institutes, it is ordained

"Solum NOVATIONEM prioris obligationis fieri, quoties hoc ipsum inter contrahentes expressum fuerit, quod propter novationem prioris obligationis convenerunt: alioqui et manere pristinam

A landlord, being indebted to the plaintiff, gave to the plaintiff an order upon the defendant, his tenant, to pay the plaintiff his, the landlord's debt, to the plaintiff, out of the next rent that would become due; the plaintiff transmitted this order to the defendant, but had not any communication with him upon the subject. At the next rent-day the defendant produced the order to his landlord, and told the landlord he would pay the amount of it to the plaintiff; he then paid the difference between the amount of the order, and the sum due for the rent, and thereupon obtained a receipt from the landlord for the whole amount of the rent. The plaintiff subsequently applied to the defendant for the debt specified in the order, when the defendant refused to pay it, and the plaintiff then brought an action for the money; but it was held, that as there had been no personal communication between the plaintiff and defendant upon the subject of the order, and the plaintiff had not consented to look to the defendant instead of his original debtor for the payment of the money mentioned therein, he could not maintain his action. "If," it was observed, "there had been an agreement between the three parties, and the plaintiff had undertaken to look to the defendant, and not to the original debtor, that would have been binding, and the plaintiff might have maintained an action upon the 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 have sued the landlord his original debtor.(g)

So long as the debtor has entered into no binding contract with the party in whose favour the order is made, the order is a mere authority or direction, which may, as Pothier observes, be revoked by the creditor, and cannot, therefore, convey to the payee any right of action for the money. Thus, where the plaintiff, being indebted to one Jones, gave the defendant. 87. to pay Jones, and the defendant gave the plaintiff a written promise to pay the money, but before he had communicated with Jones and promised to pay him the money, and before Jones had consented to look to him instead of the plaintiff for the amount, the plaintiff countermanded the order, and required the defendant to return him the money; it was held that he was entitled so to do, and that the defendant was bound to pay it back, inasmuch as he had not placed himself under any engagement with Jones to pay it to him. (h) When, however, the debtor or the depositary of money has assented to the order, and promised the payee or remittee to

obligationem, et secundam ei accedere."-Lib 3, tit. 30, § 3.

(g) Wharton v. Walker, 4 B. & C. 163; 6 D. & R. 288, s. c. Maxwell v. Jameson, 2

B. & Ald. 55. Cuxon v. Chadley, 3 B. & C. 591; 5 D. & R. 417, s. c.

(h) Owen v. Bowen, 4 C. & P. 93-96. Taylor v. Lendey, 9 East, 49.

hold the amount specified at his disposal, the authority to pay the money is irrevocable; the original debt is discharged, and none of the parties can then recede from the arrangement. "The transaction falls within that class of cases where, when an order has been given to a person who holds goods to appropriate them in a particular manner, and he has engaged to do so, none of the parties are at liberty, without the consent of all, to alter that arrangement." (i)

D. applied to the plaintiff to lend him the sum of 707., but the plaintiff refused to advance it without security, whereupon D. gave to the plaintiff an order upon the defendants, who were his debtors, to pay to the plaintiff the amount of their debts. This order was forwarded by the plaintiff to the defendants, with a request that they would acknowledge their having given him, the plaintiff, credit for it. The defendants accepted the order, and promised that they would pay all the money that they owed D. to the plaintiff, and the plaintiff then advanced 707. to D. Subsequently the defendants refused to pay the amount of the debt to the plaintiff, and an action having been brought against them by the latter in his own name, it was held that he was entitled to recover it. (k) Here, the defendant, as soon as he had assented to the order, was discharged from all further liability to D., the original creditor, (l) and the extinguishment of that debt consequently formed a sufficient consideration to support the new contract or promise to pay the amount of it to the plaintiff. In the absence of an express assent on the part of the debtor, no action could, of course, have been maintained by the plaintiff in his own name, as the transaction, wanting the concurrence of the debtor, would have amounted merely to an assignment of a chose in action, and would not have given to the plaintiff any right of action in a court of law. (m) 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, but if there be anything like an assent on the part of the holder of the money, in that case I think an action is maintainable." (n)

A considerable sum of money being due from the defendant to S. upon a balance of account, the exact amount of which had not been ascertained,

(i) Walker v. Rostron, 9 M. & W. 421. Meert v. Moessard, 1 M. & P. 11. Baron v. Husband, 4 B. & Ad. 614; 1N. & M. 730,s. c. MCarthy v. Colvin, 9 Ad. & E. 617. Peate v. Dhicken, 1 C. M. & R. 422; 5 Tyr. 117; 3 Dowl. 171, s c. Lacy v. M'Neile, 4 D. & R. 7.

(k) Israel v. Douglas, 1 H. Bl. 239.
(1) Buller, J., 3 T. R. 180.
(m) Wedlake v. Hurley, 1 Cr. & J. 83.
(2) Ellenborough, C J., Surtees v.

Hubbard,

4 Esp. 203. The obligor in a respondentia bond, who had indorsed a memorandum by which he promised to pay the amonnt thereby secured to any person to whom the obligee should assign it, was held liable in an action of assumpsit at the suit of an assignee of the bond. Fenner v. Mears, 2 W. Bl. 1269. Master v. Miller, 4 T. R. 342, but the authority of this case has been doubted. Johnson v. Collings, 1 East, 104; 14 East, 587, n. (a). Barlow v. Bishop, 1 East, 432.

S. gave to Messrs. Solly and Sons, to whom he was largely indebted, a letter addressed to the defendant, saying, "I shall be obliged by your paying to Messrs. Isaac Solly and Sons the balance due to me for building, and their receipt shall be a sufficient discharge to you." This letter was forwarded by Solly and Sons to the defendant, inclosed in a letter from themselves, requesting "his due attention to the order." The defendant replied, "I have received your letter, inclosing Mr. Streatham's, and shall be happy to make the payment to you, instead of to him, as requested;" and it was held, that the defendant, after his receipt and acceptance of the order, held the money mentioned therein at the disposal of Messrs. Solly, and was accountable to them, and no one else, for the amount deposited in his hands. (0)

In these cases, when, by the accession and agreement of all the parties interested, the original or intermediate debt is extinguished, the promise to pay the amount thereof to a third party is not, of course, a promise to answer for the debt of another within the statute of frauds, as no such debt exists it is a new, original, and independent engagement, founded upon the merger and extinguishment of the pre-existing debt or demand. (p)

A doubt is raised by Pothier and some of the civilians as to whether an order by a creditor upon a debtor, in favour of a third party, for less than the amount of the debt, accepted by the debtor, and paid to such third party, operates as an extinguishment of the whole debt, or only so much of it as is covered by the amount mentioned in the order; and they treat it as a question of intention, to be determined by the circumstances of the particular case. By our own common law, it is clear that it would be only a discharge pro tanto, in the absence of a special agreement founded upon sufficient consideration for the release and discharge of the residue of the debt. (g)

(0) Crowfoot v. Gurney, 2 M. & Sc. 473. Hutchinson v. Heyworth, 9 Ad. & E. 375.

(p) Anstey v. Marden, 4 B. & P. 131. Taylor v. Hillary, 1 C. M. R. 741; 5 Tyr. 373, s. c. Bird v. Gammon, 3 Bing. N. C. 889. Goodman v. Chase, 1 B. & Ald. 297. Lacey v. M'Neile,

4 D. & R. 10. Hodgson v. Anderson, 5 D. & R. 746, 747. Browning v. Stallard, 5 Taunt. 450. In no case, of course, can a simple contract be substituted for a specialty.

(q) Heathcote v. Crookshanks, 2 T. R. 27. Fitch v. Sutton, 5 East, 230.

CHAPTER XII.

OF THE RIGHT OF ACTION EX CONTRACTU WHEN THERE HAS BEEN A CHANGE OF INTEREST BY BANKRUPTCY OR INSOLVENCY.

SECTION I.-Effect of bankruptcy and insolvency as a transfer to the assignees for the time being of all the bankrupt's and insolvent's real and personal estate, and all his rights of action ex contractu -Of the right of action of the assignees upon the bankrupt's or insolvent's real and personal covenants, bonds, and choses in action-Contracts and choses in action in which the bankrupt has a bare legal title as trustee, and no beneficial interest, do not pass to the assignees-Aliter if the bankrupt has the legal title and a possibility of a beneficial interest.

SECTION II.-Simple Contracts-Of the right of action of the assignees upon bills of exchange and promissory notes payable to the bankrupt—No right of action passes to them upon bills and notes which the bankrupt holds as trustee or agent, and in which he has no beneficial interest-Nor upon any bill, note, contract, or security which has been assigned by the bankrupt to a third party, so as to give the latter a claim in equity thereto-Of the right of election of the assignees to adopt or abandon the executory simple contracts of the bankrupt―Their right of action to recover money paid away by the bankrupt, or money belonging to his estate in the hands of third parties-Contracts with the bankrupt during the bankruptcy-Either the bankrupt or the assignees may sue thereon-All the assignees must be made plaintiffs in an action brought by them in their representative character-They may sue in their representative character or in their own right upon contracts made during the bankruptcy-Of the bankrupt's right during the bankruptcy to the earnings of his own personal labour-Of his right ex contractu under a second commission-Of the right of action of a trustee under the Scotch bankrupt act.

SECTION III. Of the right of action of the assignees upon contracts in which the bankrupt is interested in right of his wife, or in which he is jointly interested with other persons-Transfer to the assignees of the bankrupt's disposable interest in his wife's real and personal estate-The assignees can stand in no better position as regards the wife's property than the bankrupt himself-The wife's choses in action recoverable only in a joint action by the assignees and the wife-Transfer to the assignees of a bankrupt's interest in a partnership-Joint actions by the assignees and the solvent partners upon partnership contracts-Right of the assignees to use the names of the solvent partners in such actions-Of joint and separate commissions against bankrupt partners, and the right of action of the assignees under such commissions.

SECTION IV. Of the appointment of new assignees-Effect of changes by deaths, retirements, and new appointments-Right of the new assignees to continue actions commenced by their prede

cessors.

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