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 obliga- tion for an old one, which is thereby ex- tinguished. A transaction whereby a debtor is dis- charged from his liability to his original creditor by contracting a new obligation in favor of a new creditor by the order of the original creditor. 1 Pars. Cont. 217; 136 Ν. Υ. 152; 137 id. 542. It is a mode of extinguishing one obliga- tion by another-the substitution. not of new paper or note, but of a new obligation in lieu of an old one-the effect of which is to pay, dissolve, or otherwise discharge it. 85 Ala. 401. In Civil Law. There are three kinds of novation. First, where the debtor and creditor re- main the same, but a new debt takes the place of the old one. Here, either the subject-matter 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 trans- mission of his debt to another, who accepts the obligation and is himself ac- cepted 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. See DELEGATION. 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 par- ties 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 cred- itor 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 re- quisite. First, there must be an anterior obliga- tion 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 condi- tional, the new is also conditional unless made otherwise by special agreement, - which agreement is rarely omitted. Second, the parties innovating must con- sent thereto. In the modern civil law, every novation is voluntary. Anciently, a novation not having this voluntary element was in use. And not only consent is exacted, but a capacity to consent. But capacity to make or receive an absolute payment does not of itself authorize an agreement to innovate. Third, there must be an express inten- tion 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 con- tract be invalid, without fraud in the