NOTING

cannot be qualified, but must of necessity be taken as a confirmation of the tenancy, as if he distrain for rent accruing after the expiration of the notice, or recover in an action for use and occupation, the notice of course will be waived; Adams, Ej. 144; 1 H. Blackst. 311; 6 Term, 219; 19 Wend. 391. See 13 C. B. 178.

NOTING. A term denoting the act of a notary in minuting on a bill of exchange, after it has been presented for acceptance or payment, the initials of his name, the date of the day, month, and year when such presentment was made, and the reason, if any has been assigned, for non-acceptance or nonpayment, together with his charge. The noting is not indispensable, it being only a part of the protest: it will not supply the

protest. 4 Term, 175.

NOTOUR. In Scotch Law. Open; notorious. A notour bankrupt is a debtor who, being under diligence by horning and caption of his creditor, retires to sanctuary, or absconds, or defends by force, and is afterwards found insolvent by court of sessions. Bell, Dict.; Act of 1696, c. 5; Burton, Law

of Scotl. 601.

ton, was taken by Massachusetts colonists acting under a plan suggested by a Massachusetts lawyer.

and in 1763 France, by the treaty of Paris, In 1758 the province received its constitution, ceded all rights whatsoever.

In 1784 New Brunswick and Cape Breton were separated from Nova Scotia; but Cape Breton was reattached in 1819.

In 1867 it became a province of the Dominion of Canada. See supra; CANADA.

NOVA STATUTA. New statutes. A term including all statutes passed in the reign of Edw. III. and subsequently. VETERA STATUTA.

NOVA NARRATIONES. "New counts

or talys." A book of such pleadings as were then in use, published in the reign of Edw. III. 3 Bla. Com. 297; 3 Reeve, Hist. Eng. Law, 439.

NOVATION (from Lat. novare, novus, new). The substitution of a new obligation for an old one, which is thereby extinguished.

Novation takes place when a debtor contracts towards his creditor a new debt that is substituted for the old one that is extinguished. It is one of French Civil Code, art. 1271. the modes by which debts become extinct. In Civil Law. There are three kinds of

It includes Nova Scotia proper, a peninsula two hundred and eighty miles long and from fifty to one hundred miles wide, trending E. N. E., and connected with the province of New Brunswick by an isthmus only eight miles wide in its widest part, and the island of Cape Breton, separated from the eastern extremity of Nova Scotia proper by the Gut of Canso. Nova Scotia proper lies between latitude 430 25 and 460

north, and long. 610 and 66° 30' west.

England founds her claim to the original discovery of this province upon the patent granted by Queen Elizabeth to Sir Humphrey Gilbert, A. D. 1578.

This was followed by De la Roche's unfortunate attempt to colonize the Isle of Sable.

De Monts, having in 1603 received an appointment from Henri IV. of France, sailed the following year, with Champlain, De Poutrincourt, and others.

After exploring the outer shore of the peninsula, having entered the bay of Fundy, De Poutrincourt settled Port Royal, A. D. 1605,-the first permanent settlement in British North America. From this time the English began to assert their claims, and colonists from Virginia expelled the colony of De Monts.

The French regained possession, but only to be again expelled by the strong force sent against

them by Cromwell, A. D. 1654.

Thirteen years later, England ceded the province to France by the treaty of Breda, A. D. 1667; but in the new wars it was again ravaged by the English, who reacquired it in A. D. 1713; and in 1749 it was formally colonized by the British Government.

The French colonists, having resisted and joined the Indians, were defeated by the British, and their stronghold, Louisburgh on Cape Bre

First, where the debtor and creditor remain the same, but a new debt takes the place of the old one. Here, either the subjectmatter of the debt may be changed, or the conditions of time, place, etc. of payment.

Second, where the debt remains the same, but a new debtor is substituted for the old. This novation may be made without the intervention or privity of the old debtor (in this case the new agreement is called expromissio, and the new debtor expromissor), or by the debtor's transmission of his debt to another, who accepts the obligation and is himself accepted by the creditor. This transaction is called delegatio. Domat lays down the essential distinction between a delegation and any other novation, thus: that the former demands the consent of all three parties, but the latter that only of the two parties to the new debt.

Third, where the debt remains the same, but a new creditor is substituted for the old. This also is called delegatio, for the reason adduced above, to wit: that all three parties must assent to the new bargain. It differs from the cessio nominis of the civil law by completely cancelling the old debt, while the cessio nominis leaves the creditor a claim for any balance due after assignment.

In every novation the old debt is wholly extinguished by the new. To effect such a transformation, several things are requisite.

First, there must be an anterior obligation of some sort, to serve as a basis for the new contract. If the old debt be void, as being, e. g., contra bonos mores, then the new debt is likewise void; because the consideration for the pretended novation is null. But if the old contract is only voidable, in some cases

the new one may be good, operating as a ratification of the old. Moreover, if the old debt be conditional, the new is also conditional, unless made otherwise by special agreement, which agreement is rarely omit

ted.

NOVATION

Third, there must be an express intention to innovate,-the animus novandi. A novation is never presumed. If an intent to destroy the old debt be not proved, two obligations now bind the debtor,-the old and the new. Conversely, if the new contract be invalid, without fraud in the transaction, the creditor has now lost all remedy. The anterior obligation is destroyed without being replaced by a new one.

An important rule of novation is that the extinction of the debt destroys also all rights and liens appertaining thereto. Hence, if any hypothecations be attached to the ancient agreement, they are cancelled by the new one, unless express

words retain them. The second contract is simple and independent, and upon its terms is the action ex stipulatu to be brought. Hence, too, the new parties cannot avail themselves of defences, claims, and set-offs which would have prevailed between the old parties.

Obviously, a single creditor may make a novation with two or more debtors who are each liable in solido. In this case any one debtor may make

the contract to innovate; and if such a contract be completed, all his fellow-debtors are discharged with him from the prior obligation. Therefore Pothier says that, under the rule that novation cancels all obligations subsidiary to the main one, sureties are freed by a novation contracted by their principal. The creditor must specially stipulate that co-debtors and guarantors shall consent to be bound by the novation, if he wish to hold them liable. If they do not consent to such novation, the parties all remain, as before, bound under the old debt. So in Louisiana the debt due to a community creditor is not necessarily novated by his taking the individual note of the surviving spouse, with mortgages to secure its payment. 11 La. An. 687.

It follows that the new debtor, in a delegation, can claim nothing under the old contract, since he has consented to the destruction of that contract. For the same reason, a creditor can not proceed against the discharged debtor. And this is true though the new debtor should beAnd even though at the time of the novation the new debtor was insolvent, still the creditor has lost his remedy against the old debtor. But the rule, no doubt, applies only to a bona fide delegation. And a suit brought by the creditor against a delegated debtor is not evidence of intention to discharge the original debtor. 11 La.

come insolvent while the old remains solvent.

An. 93.

In a case of mistake, the rule is this: if the new debtor agree to be substituted for the old,

under the belief that he himself owes so much to the discharged debtor, although he do not in fact owe the amount, yet he is bound to the creditor on the novation; because the latter has

A novation may be made dependent on a condition. In that case the parties remain bound, as before, until the condition is fulfilled. The new debtor is not freed from a conditional novation as to the creditor until the condition happens; and he is not liable in an action to the old debtor until it is performed.

Any obligation which can be destroyed at all may be destroyed by novation. Thus, legacies, judgments, etc., with mortgages, guarantees, and similar accessories, are as much the subjects of novation as simple contract debts. But a covenant by the obligee of a bond not to sue the obligor within a certain time is not an example of the civil-law novation. The agreement was not a release, not a substituted contract, but a covenant merely, for the breach of which the

obligee has his action; 19 Johns. 129.

The preceding summary is founded on Massi, Mackeldey, Römischen Rechts, and Pothier, Droit Commercial, liv. v. tit. 1, ch. 5, § 2; Traité des Obligations, pt. 3, ch. 2. See, also, Domat's Civil Law, trans. by Dr. Strahan (Cushing's ed.), part. i. b. iv. tit. 3, 4; and Burge, Suretyship, b. 2, c. 5, Am. ed. pp. 168–190.

At Common Law. The common-law doctrine of novation mainly agrees with that of the civil law, but in some parts differs from it.

The term novation is rarely employed. The usual common-law equivalent is assignment, and found its way into common-law treatises as early sometimes merger. Still, this form of contract as Fleta's day, by whom it was called innovatio.

Item, per innovationem, ut si transfusa sit obligatio de una persona in aliam, quæ in se susceperit obligationem. Fleta, lib. 2, c. 60, § 12. The 3, c. 2, § 13, but we have novationem for innovasame words here quoted are also in Bracton, lib. tion has been revived in some cases. tionem. In England, recently, the term nova

A case of novation is put in Tatlock vs. Harris, owes C £100, and the three meet, and it is agreed 3 Term, 180. "Suppose A owes B £100, and B between them that A shall pay C the £100: B's debt is extinguished, and Ĉ may recover that sum against A."

The subject of novation has been much before business of life assurance companies. In order the courts in reference to the transfers of the to constitute a novation the old obligation must be discharged; and it has often been the interest of claimants on the transferor company, where the transferee company has become insolvent, to contend that there is no "novation," but that the old obligation is still in force. In England the for the most part set at rest by the stat. 35 & 36 questions which have arisen on this matter are Vict. c. 41, s. 7, providing that no policy-holder shall be deemed to have abandoned any claim against the original company, and to have accepted in lieu thereof the liability of the new company, unless such abandonment and acceptance shall have been signified by some writing signed by him, or by his agent lawfully author

ized. Moz. & W.

There must always be a debt once existing and now cancelled, to serve as a consideration for the new liability. The action in all cases

is brought on the new agreement. But in order to give a right of action there must be an extinguishment of the original debt; 4 B. & C. 163; 1 M. & W. 124; 14 Ill. 34; 4 La. An. 281; 15 N. H. 129.

No mere agreement for the transformation 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; 3 N. & M'C. 171; 1 Stra. 426; 15 M. & W. 23; see 1 Ad. & E. 106; 2 Campb. 383; 1 La. 410; 1 Exch. 601; 24 Conn. 621; otherwise, if there be no satisfaction; 2 Scott, N. R. 938.

But where an agreement is entered into by deed, that deed gives in itself a substantial cause of action; and the giving such deed may be a sufficient accord and satisfaction for a simple contract debt; Co. Litt. 212 b; 1 Burr. 9; 2 Rich. 608; 3 W. & S. 276; 1 Hill, N. Y. 567. See 1 Mass. 503; 11 Wend. 321.

In the civil law delegatio, no new creditor could be substituted without the debtor's consent. This rule is observed in the common 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; 14 East, 582; 3 Mer. 652; 5 Wheat. 277; 12 Ga. 406; 15 id. 486; 5 Ad. & E. 115; 7 Harr. & J. 213, 219; 21 Me. 484.

But in equity a creditor may assign his claim fully to another without any intervention of the debtor; and the assignee is not even compelled to sue in his assignor's name; 14 Conn. 141; 3 Swanst. 392; 4 Rand. 392; Mart. & Y. 378.

The extinction of the prior debt is consideration enough to support a novation. If A holds B's note, payable to A, and assigns this for value to C, B is by such transfer released from his promise to A, and this is sufficient consideration to sustain his promise to C; 1 Pars. Contr. ch. 13; 2 Barb. 349. And a consideration need not be expressed in the contract of novation; 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 any thing like an assent on the part of a holder of money can be inferred, he will be considered as the debtor; 4 Esp. 203; 6 Tex. 163; If the debtor's assent be not secured, the order of transfer may be revoked before it is acted on. In a delegation, if the old debtor agree to

NOVATION

provide a substitute, he must put his creditor into such a position that the latter can claim full satisfaction from the delegated debtor, or otherwise the original liability remains, and there is no novation; 19 Mo. 322, 637. See 3 B. & Ald. 64; 5 id. 925; 5 B. & C. 196; 4 Esp. 89; 4 Price, 200; 2 M. & W. 484; 6 Cra. 253; 12 Johns. 409; 7 id. 311; 21 Wend. 450.

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 declaration. An intention to discharge the old debt must be shown in all cases; and this intention is suffi、 cient to work a novation; 4 La. An. 329, 543; 6 id. 669; 9 id. 228, 497; 12 id. 299. The delegation by which the debtor gives to the creditor another debtor, who obliges himself towards such creditor, does not operate a novation unless the creditor has expressly declared his intention to discharge the debtor who made the delegation." 13 La. An. 238.

One of the most common of modern novations is the surrender and destruction of an old promissory note or bill of exchange, and the receipt of a new one in payment thereof. The rules of novation apply as completely to debts evidenced by mercantile paper as to all other obligations; Story, Bills, § 441; Pothier, de Change, n. 189; Thoms. Bills, ch. 1, § 3. Hence, everywhere, if the parties intend that a promissory note or bill shall be absolute payment, it will be so considered; 10 Ad. & Ě. 593; 4 Mas. 336; 1 Rich. 37, 112; 9 Johns. 310; 13 Vt. 452. In some states, the receipt of a negotiable promissory note is prima facie payment of the debt upon which it is given, and has an action upon the account unless the presumption is controverted; 12 Mass. 237; 12 Pick. 268; 5 Cush. 158; 8 Me. 298; 29 Vt. 32. "If a creditor gives a receipt for a draft in payment of his account, the debt is novated." 2 La. 109. But see the cases cited supra for the full Louisiana law. In most states, however, the rule is, as in England, that, whether the debt be pre-existing or arise at the time of giving the note, the receipt of a promissory note is prima facie a conditional payment only, and works no novation.

It is payment only on fulfilment of the condition, i. e. when the note is paid; 5 Beav. 415; 40 E. L. & Eq. 625; Cra. 264; 2 Johns. Cas. 438; 15 Johns. 224, 247; 27 N. H. 253; 11 Gill & J. 416; 4 R. I. 383; 8 Cal. 501; 2 Speers, 438; 2 Rich. 244; 15 S. & R. 162.

If a vendor transfer his vendee's note, he can only sue on the original contract when he gets back the note, and has it in his power to return it to his vendee; 1 Pet. C. C. 262; 4 Rich. 59. See DISCHARGE; PAYMENT;

10 Pet. 532; 8 Cow. 390; 6 W. & S. 165; 1 Hill, N. Y. 516; 3 Wash. C. C. 396; 5 Day, 511; 9 Watts, 273; 10 Md. 27; 1 Sneed, 501; Hempst. 431; 27 Ala. N. s. 254; Dixon on Substituted Liabilities.

NOVEL ASSIGNMENT. ASSIGNMENT.

See NEW

NOVEL DISSEISIN. The name of an

NUDUM PACTUM

sented in the Corpus Juris Civilis by a Latin translation of 134 of them. These form the fourth part of the Corpus Juris Civilis. They are directed either to some officer, or an archbishop or bishop, or to some private indi vidual of Constantinople; but they all had the force and authority of law.

When tenant in fee-simple, fee-tail, or for term of life, was put out and disseised of his lands or tenements, rents, and the like, he might sue out a writ of assize or novel disseisin; and if, upon trial, he could prove his title and his actual seisin, and the disseisin by the present tenant, he was entitled to have judgment to recover his seisin and damages for the injury sustained; 3 Bla. Com. 187. This remedy is obsolete.

NOVELLÆ LEONIS. The ordinances of the emperor Leo, which were made from the year 887 till the year 893, are so called. These novels changed many rules of the Justinian law. This collection contains one hundred and thirteen Novels, written originally in Greek, and afterwards, in 1560, translated into Latin by Agilæus.

NOVELS, NOVELLÆ CONSTITUTIONES. In Civil Law. The name given to the constitutions or laws of Justinian and his immediate successors, which were promulgated soon after the Code of Justinian.

It appears to have been the intention of Justinian, after the completion of the second and revised edition of the Code, to supply what had not been foreseen in the preceding laws, together with any necessary amend ments or alterations, not by revising the Code, but by supplementary laws. Such laws he promulgated from time to time; but no official compilation of them is known to have been made until after his death, when his laws, 159 in number, with those of the reigns of Justin II. and Tiberias, nine in number, were collected, together with some local edicts, under this name. They belong to various times

between 535 and 565 A.D.

Although the Novels of Justinian are the best known, and when the word Novels only is mentioned those of Justinian are always intended, he was not the first who used that name. Some of the acts of Theodosius, Valentinian, Leo, Severus, Authennius, and others, were also called Novels. But the Novels of the emperors who preceded Justinian had not the force of law after the legis lation of that emperor. Those Novels are not, however, entirely useless; because, the Code of Justinian having been compiled to a considerable extent from the Theodosian Code and the earlier Novels, the latter frequently remove doubts which arise on the construction of the Code.

The original language of the Novels was for the most part Greek; but they are repre

copied in many states of the Union. See 1 P. Wms. 27; Prec. in Chanc. 593.

NOVELTY. In Patent Law. Every device for which a patent is sought should have, to some extent, the attributes of novelty. It is said to be difficult to lay down a rule as to novelty which will meet all cases. The subject matter of a patent is said to be new when it is substantially different from what has gone before; Curtis, Pat. § 41. In patents for a composition of matter the test is said to be not whether the materials of which the combination is made are new, but whether the combination is new. See Curtis, Pat. ; 12 O. G. 351; 2 Fish. 120.

NOVUS HOMO (Lat. a new man). This term is applied to a man who has been pardoned of a crime, by which he is restored to society and is rehabilitated.

NOXA (Lat.). In Civil Law. Damage resulting from an offence committed by an irresponsible agent. The offence itself. The punishment for the offence. The slave or animal who did the offence, and who is delivered up to the person aggrieved (datur noxa) unless the owner choose to pay the damage. The right of action is against whoever becomes the possessor of the slave or animal (noxa caput sequitur). D. de furt. L. 41; Vicat, Voc. Jur.; Calv. Lex.

NOXAL ACTION. See NoxA.

NUBILIS (Lat.). In Civil Law. One who is of a proper age to be married. Dig. 32. 51.

is applied to various subjects. NUDE. Naked. Figuratively, this word

A nude contract, nudum pactum, is one without a consideration. Nude matter is a bare allegation of a thing done, without any evidence of it.

NUDUM PACTUM. A contract made without consideration.

It is a mere agreement, without the requisites necessary to confer upon it a legal obligation to perform. 3 McLean, 330; 2 Denio, 403; 6 Ired. 480; 1 Strobh. 329; 1 Ga. 294; 1 Dougl. Mich. 188. The term, and the rule which decides upon nullity of its effects, are borrowed from the civil law; yet the common law has not in any degree been influenced by the notions of the civil law in defining what constitutes a nudum pactum. Dig. 19. 5. 5. note in Fonbl. Eq. 335, and 2 Kent, 364. ToulSee, on this subject, a learned lier defines nudum pactum to be an agreement not executed by one of the parties. Tom. 6, n. 13, page 10.

It is of no consequence whether the agree ment be oral or written; 7 Term, 350; 7