
    *David Chalfont, assignee of Frances Goodwin, one of the executors of Mary Goodwin against Caleb Johnston, surviving executor of Robert Johnston.
    Suit by assignee of a bond, assigned by one executor of the obligee against the other executor, who was also the surviving executor of the obligor, may be supported unless the formality of the assignment is pleaded in abatement.
    
      Queers, If so pleaded, whether such suit is not maintainable in Pennsylvania from the necessity of the case ?
    Debt 148I. on bond. Pleas, payment with leave, &c. plene administravit and want of assets.
    The facts turned out on evidence, as follow. The bond was dated 27th October 1768, conditioned for the payment of 74I. within one year, with legal interest. Ten different sums were indorsed, paid on account of interest, the last bearing date on the 12th October 1780.
    Robert Johnston, the obligor, made his will on the 26th'July 1769, and thereby appointed Caleb Johnston, the now defendant, and Simon Johnston, since deceased, his executors, and soon afterwards died.
    Mary Goodwin, the obligee, made her will on the 27th November, 1782, and thereby appointed Francis Goodwin and the aforesaid Caleb Johnston her executors.
    On the 17th January 1792, the said Caleb Johnston settled his administration account on the estate of the obligor, in New Castle county, in the state of Delaware, whereby there appeared a balance in favour of the accountant of 477I. 7s. i-Jd.
    And on the 14th July, 1796, Francis Goodwin assigned the obligation to the plaintiff.
    Mr. Hemphill for the defendant
    insisted, that the present suit could not be supported by the plaintiff as assignee, Caleb Johnston one of the executors of the obligee not having joined in the assignment. It was the folly of Mrs. Goodwin to nominate him her executor, who was one of the executors of her obligor, and known by her to be such.
   Per Cur.

The testratrix might not have known this fact, but at any rate, if this technical nicety was intended to be insisted on, it should have been pleaded in abatement, like the case of part owners-not sued. 2 Bla. Rep. 696, 947. 5 Burr. 2613. 5 Term Rep. 651. Perhaps it would be difficult, if not impracticable, to have given the plaintiff a better writ. Caleb Johnston was not compellable to join in the assignment, nor could he be reasonably expected to join in a suit against himself. Under such circumstances, a bill would certainly be supportable in Chancery against the now defendant. Courts in this state *adopt the rules of equity, which form a part of our law. *17] We are not necessarily called on to say in the present instance, how far we should feel ourselves obliged to follow the practice of a Court of Chancery, to prevent injustice, if even a plea in abatement had been put in to the form of the assignment.

Mr. T. Ross, pro quer.

It appearing afterwards, that Johnston’s executors had paid legacies to a greater amount than the balance found due to them on their account, and the sum due on the present obligation, it was agreed that a verdict should be given for the plaintiff for 148I. debt, 22I. 16s. 4d. damages, and six pence costs,  