Page:Federal Reporter, 1st Series, Volume 8.djvu/470

 456 FEBEBAL BEPOBTES. �complainants, that this advanoe cannot be brought into the account bet-ween them and the defendant, tenable ? I think not. The notice proved to have been given to the defendant on January 17th waa of the transfer of "royalties that had become due;" and it does not a^j- pear that proper notice was given before the letter of January 27, 1877. But if the notice of January 17th had been ever so full, why should it have the effect claimed, for it ? The defendant was not a mere licpnsee of Albert Bail, accountable for royalty. Bail and the de- fendant were engaged in a joint enterprise, which was to endure wlnle the patents were in force. And if the defendant conoeived that the success of the enterprise would be promoted by an advance, why mip;ht he not make it, notwithstanding the alleged notice? Why should he be trammelled by an assigriment to which he was not a party, and to which he had not yet given his consent? The assignment to John Bail & Co., it will be observed, was not the entire agreemenfc between Albert Bail and the defendant. It was'a partial assignment only. Upon what Bound principle could the contract be severed by ono party without the assent of the other ? Say the supreme court, in Mandeville v. Walch, 5 Wheat. 286 : �"A creditor shall not be permitted to split up a single cause of action into many actions without the assent of his debtor, since it may subject hiui to manyerQbarassmentsand responsibilities not contemplated in his original con- tract. He has the right to stand upon the singleness of his original contract, and to decline any legal or equitable assignments by which it may be broken into fragments." �It will not do to say that Ball's royalties and commissions are dis- tinct and separable claims. They both arise under one contract, grow out of the same enterprise, are olosely connected, and properly the subject of one account. It seems to me that it is only by virtue of the defendant's assent to the assignment to John Bail & Co., given in his letter of January 30, 1877, and his subsequent recognition of the plaintiffs' rights upon the basis of that letter, that the plaintiffs can maintain this bill. In all cases where the assignment does not pass the legal title, and is not absolute and unconditional, or there are remaining rights or liberties of the assigner which may be affected by the decree, he is a necessary party. 1 Dan. Ch. 192; Story's Eq. PI. § 153. Now, the assignment not having been absolute, and but partial, Albert Bail would be a necessary party, save for the defend- ant's assent; and as the plaintiffs must rely upon the defendant's assent in order to maintain this bill, they must take it with its quali- fication. ��� �