A debtor who is bound for the payment of a sum of money or for the delivery of a quantity of goods cannot be required to make performance in instalments unless he expressly or impliedly agreed to do so,78 as a banker does when he receives a depositor's account subject to check;79 nor can the law

74Cases of this sort are - Comfort, v. Betts, (1891) 1 Q. B. 737; Tancred v. Delagoa Bay R. Co., 23 Q. B. D. 23d. (Cf. Mercantile Bank v. Evans, [1899] 2 Q. B. 613); Columbian Reinforced Concrete Co. v. Rose, 187 Fed. 803, 109 C. C. A. 563; In re Stiger, 202 Fed. 791, 796; Cress v. Ivena, 163 Ia. 669, 146 N. W. 326; Wheleas v. Meyer & Schmid Co., 140 Mo. App. 672, 120 S. W, 708; St. Nicholas Hotel Co. v. Meyer ft Schmid Co., 140 Mo. App. 592, 120 S. W. 714; Cogan v. Conover

Mfg. Co., 69 N. J. Eq. 809, 64 Atl. 973, 115 Am. St. Rep. 629; Fairbanks v. Sargent, 117 N. Y. 320, 332, 22 N. E. 1039, 6 L. R. A. 476; Randal v. Vanderbilt, 76 N. Y. App. D. 313, 318, 78 N. Y. S. 124.

75McCrum p. Corby, 11 Kan. 464.

76 See supra, Sec. 429.

77 Timmons v. Citisens' Bank, 11 Ga. App. 69, 74 S. E. 798.

78 Infra, Sec. 861.

79 Weinstock v. Bellwood, 12 Bush, fairly subject a debtor to several actions where he has contracted to perform a single act. Therefore, as the assignor himself is not entitled to bring action for a part, he cannot in any way authorize another to do so; so that under ordinary procedure at common law, a partial assignee cannot maintain an action either in his own name or in that of the assignor;80 even though by statute an assignee of a chose in action is allowed to sue in his own name.81

139, 140; Skobis v. Forge, 102 Wis. 122,131, 78 N.W. 426.

80 Fairlie v. Denton, 8 B. A C. 395; Mandeville v. Welch, 5 Wheat. 277, 5 L. Ed. 87; Bosworth v. Jacksonville Nat Bank, 64 Fed. 615, 12 C. C. A. 331, 24 U. S. App. 413; Sheats v. Markley, 249 Fed. 315, 161 C. G. A. 323; Kansas City, etc., R. Co. v. Robertson, 109 Ala. 206, 19 So. 432; Andrews v. Frierson, 134 Ala. 626, 33 So. 6; Thomas v. Rock Island Gold, etc., Mining Co., 54 Cal. 578; Chicago, Burlington A Quincy R. v. Provolt, 42 Colo. 103, 93 Pac 1126, 16 L. R. A. (N. S.) 587; Pueblo v. Dye, 44 Colo. 35, 96 Pac. 969; Timmons v. Citizens' Bank, 11 Ga. App. 69, 74 S. E. 798; Potter v. Gronbeck, 117 111. 404, 7 N. E. 586; German Fire Ins. Co. v. Bullene, 51 Kans. 764, 33 Pac. 467; Weinstock v. Bellwood, 12 Bush, 139; Getohell v. Maney, 69 Me. 442, 444; Whitcomb p. Waterville, 99 Me. 75, 58 Atl. 68; Palmer v. Palmer, 112 Me. 149, 91 Atl. 281; Palmer v. Merrill, 6 Cuah. 282, 52 Am. Dee. 782; Cotting v. Foster, 178 Mass. 564, 566, 60 N. E. 386; Andrews Electric Co. v. St. Alphonse, etc., Soc. (Mass.), 123 N. E. 103; Milroy v. The Spurr Mountain Iron Min. Co., 43 Mich. 231, 5 N. W. 287; Dean p. St. Paul, etc., R. Co., 63 Minn. 504, 55 N. W. 628; Cross v. Page ft Hill Co., 116 Minn. 123, 133 N. W. 178; Swift a. Wabash R. Co., 149 Mo. App. 526, 131 S. W. 124; Otis v. Adams, 56 N. J. L. 38, 27 Ad. 1092; Sternberg ft Co. v. Lehigh

Valley R. Co., 78 N. J. L. 277, 73 Atl. 39; Field v. Mayor, 6 N. Y. 179, 57 Am. Dec. 435; Stanbery v. Smythe, 13 Oh. St. 405; McDaniel v. Maxwell, 21 Oreg. 202, 28 Am. St. Rep. 740; Vetter 0. Meadville, 236 Pa. 563,85 Atl. 19; Carter v. Nichols, 58 Vt. 553, 5 Atl. 197; Dudley v. Barrett, 66 W. Va. 363, 66 S. E. 507.

81 Sternberg ft Co. v. Lehigh Valley R. Co., 78 N. J. L. 277, 73 Atl. 39, affd. in SO N. J. L. 468, 78 Atl. 1135; National Union F. Ins. Co. c. Denver, etc., R. Co., 44 Utah, 26, 137 Pac. 653. In England the mattter has been the subject of much doubt. In Brice v. Bannister, 3 Q. B. D. 569, a partial assignee was allowed with little discussion to maintain an action against the debtor though the assignor was not a party to the action. This case was criticised on this ground, it seems justly, by Chitty, J., in a decision of the Court of Appeal in Durham v. Robertson, [1898] 1 Q. B. 765, but the point was expressly left undecided. In Skipper v. Holloway, [1910| 2 K. B. 630, Darling, J., followed Brice v. Bannister, but his decision was reversed by the Court of Appeal on another point. In Forster v. Baker, [1910] 2 K. B. 636, Bray, J., held the partial assignee of a judgment debt was not entitled to execution because the assignment of part of a chose in action could not give rise to a legal right. The decision was affirmed on the somewhat narrower principle (which seems nevertheless to involve

It is generally stated as an exception to the rule that a partial assignee cannot sue at law, that this is permissible if the debtor consent to the partial appropriation by an acceptance of it.82 Doubtless, "the debtor's acceptance or promise gives the assignee an action at law against him [the debtor], not on the assignment but on the promise."83 In other words, novations are possible by which the debtor enters into two separate contracts in lieu of the original single contract; the partial assignment by the assignor operating as an assent on his part to the creation of such contracts. It has been held occasionally that where no objection is made by a debtor on notice of a partial assignment he thereby becomes liable to the partial assignee,84 but, on the one hand, as will be argued in the following sections, even though the debtor objects to the assignment, he ought not to be allowed to defeat it, and on the other hand to give silence the effect of assent to a novation in the absence of special circumstances seems to enlarge too much the possibility of making out contracts by tacit acceptance.85