Brown and Rossiter as copartners, and Brown individually, were indebted to the Bank of Utica to the amount of $3,000, for $1,000 of which the bank held their copartnership note, and for the residue the individual notes of Brown. Brown assigned to the bank a mortgage, his private property, as security for the payment of the notes. The bank collected the full amount of the mortgage, which paid the notes, leaving a surplus in money in possession of the bank. The plaintiffs, general assignees of Brown, filed their complaint against the bank, demanding the excess of money and a return of the notes. The defendant demurred, on the ground that the plaintiffs could not have judgment for the excess in money and a return of the notes in one action.

Held, that the complaint was good.

(S. C., 4 How. Pr. 423 ; 7 id. 134; 7 N. Y. 486.)