majority">Tilghman C„ J.

after stating the facts, delivered the court’s opinion.

The argument in this court has taken ■ a wider range than the point reserved, and reasons have been urged to shew, that on the general merits of the case, the plaintiffs are not entitled to the money. Although this point, in strictness, is not open, yet the court have no hesitation in declaring their opinion, that John Pinkerton, having paid the amount of *386the note drawn by Andrew Kennedy, was entitled in equity* 'to stand in' Kennedy's place, and have the same relief from the fund pledged for the payment of that note, as Kennedy himself might have had. This principle is highly reasonable, and sufficiently established by the cases cited by the plaintiffs’ counsel. Let us consider then what objection can be made-to the form of action. It is said that a chose in action is not assignable, and that the suit should have been in the name of Andrew Kennedy. But this action is by no means founded on the assignment of a chose in action. It is not founded on the deed by which David Pinkerton conveyed the vessel and cargo to Jones and Clark and Andrew Kennedy, but on an original right vested in John Pinkerton, in consequence of his having taken up a note for which this cargo was pledged. It bears no resemblance to an action by the assignee of a bond, where the cause of action is founded solely on the bond. Besides, to put the matter out of all doubt, if the action cannot be supported in the name of the plaintiffs, it cannot be supported at all; for in the name of Kennedy no action will lie. He has no claim on this fund, having already received full payment of all his demand, and the surplus was paid over by his consent. Another objection was, that this action w.as too general, and gave the defendant no notice of the plaintiffs’ real claim, and therefore he should have brought a special action on the case. But this objection has no more weight in the present instance, than in a thousand others, in which this kind of action has been allowed to be well brought. It is an objection to the form of action in general, which in its nature is not calculated to give special tjotice of the plaintiffs’ claim. But to remedy this inconvenience, the court will take care to protect the defendant from surprise. He may call on the plaintiff to specify the nature of his demand, and until that is done, the trial will be postponed. By this precaution, we are enabled to preserve a form of action, well calculated for the recovery of equitable demands, without injury to the defendant; and in this state, where there is no court of chancery, we are bound to encourage those forms of action by which equity may be attained.

On the whole, the court are of opinion that the plaintiffs’ action is well supported by the evidence.

Judgment for plaintiffs#

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