Sec 840

In equity, and now at law in England and in those states which have adopted equity practice in common law procedure, it is not necessary, in order to enable the assignee to sue in his own name, that the debtor should assent to the assignment.3 Nor is the debtor's assent necessary to the assignment of negotiable paper, or to assignments in the other excepted cases noticed.4 But wherever the suit is brought in the assignee's name, then (outside of these and other excepted cases) it is necessary, to sustain the suit, that there should be a contractual relation established between the debtor and the assignee.5 But, as has been already seen, Debtor's assent constitutes contractual relation.

1 Rodick V. Gandell, 1 D. M. & G. 763.

2 Porter V. Bullard, 26 Me. 448; Dennis V. Twitchell, 10 Met. 180.

3 See Bell V. R. R., 15 BeaV. 548; Spring V. Ins. Co., 8 Wheat. 268; Mc-Kinney V. Alvis, 14 Ill. 33.

4 Supra, sec 795 et seq.

5 Williams V. Everett, 14 East, 582; Mandeville V. Welch, 5 Wheat. 277; Tiernan V. Jackson, 5 Pet. 597: Saylor V. Bushong, cited supra, sec 836.

Whether the original creditor can revoke the assignment, after a mere notice to the debtor, has been much discussed. On the principle stated in the text (supra, sec 784 et seq.), it is essential, to establish a binding contractual relation, that the parties to such relation should concur in the specific agreement. If it is intended that the indebtedness of C. to A. should be extinguished, and an indebtedness from C. to B. is to take its place, A., B., and C. should concur in the contract by which this intention is carried out. See Wilson V. Coupland, 5 B. & Al. 228; Wharton V. Walker, 4 B. & C. 164; Owen V. Bowen, 4 C. & P. 93; Mowry V. Todd, 12 Mass. 284; Gibson V. Cooke, 20 Pick. 15; Pickens V. Hathaway, 100 Mass. 247; and other cases cited Story on Cont. sec 483. That the agreement between a substituted debtor and an original debtor may be rescinded at any time before the acceptance of the substitution by the original creditor, see Trimble V. Strother, 25 Oh. St. 378; Durham V. Bischoff, 47 Ind. 211. In Owen V. Bowen, 4 C. & P. 93, where D. deposited with B. money to be paid to C, it was held that unless C. had agreed with D. and B., either directly or indirectly, D. could recover the amount of the deposit from B. On the other hand, it has been held that the nature of the transaction may be such as to imply assent beforehand to any assignment the creditor may make; in other words, the debtor may make the creditor his agent to convey his (the debtor's) assent to an assignment by the creditor.1 And, in any view, the debtor's assent may constitute a contractual relation between the debtor and the assignee.2 Such assent may be inferred from the acts of the parties and the circumstances of the case.3 A banker, for instance, who knowingly retains money left by a depositor to meet a particular cheque, may be inferred to have assented to the negotiability of the eheque,and becomes, therefore, liable to the holder.4 - If it be said that the extension in this way of the right of assignees to sue militates against the principle heretofore announced that no one should become my creditor without my assent, the answer may be repeated, that the case of an assignee suing me on an indebtedness to which I consented is very different from that of a volunteer creditor suing me on a debt to which I gave no assent at all. The first is an incident to a contract which I instituted; the second is the imposition on me of a contract with which I have had nothing at all to do.5 - Wherever there has been a promise by the defendant, then, on the principles of novation, there being an adequate consideration, suit may be brought by the assignee independent of the statutes.6