
    [607] [*] STEWARD against CHANCE.
    IN EREOR.
    Hubband alone may sue on a bond to him and his wife.
    The action below is an action of debt, brought by Steward against Chance, on a bond given by Chance to Steward and wife. The condition of the [*] bond, after reciting that divers controversies and disputes [f] were then depending and undetermined, between the said John Chance, in right of his wife, who was the daughter of Abel Lee, deceased, and the said Archibald Steward and Susannah his wife, late Susannah Lee, and late widow and executrix of the said Abel Lee, deceased, was that the said John Chance should abide the award of certain arbitrators therein named of, for, upon, and concerning costs in a certain action of trespass on the case, in the Cumberland Common Pleas, brought by the said Steward and wife against Chance; and also of and concerning all, and all manner of actions, causes of action, &c., damages and demands whatsoever, relative to the estate of Abel Lee, deceased, at any time or times, heretofore made, moved,- brought, commenced, sued, prosecuted, done or suffered, committed [608] or depending, by or between the said parties, for or by reason of any other matter, cause or thing whatsoever, from the beginning of the world to the day of the date of the bond. The plaintiff declared on the penalty of the bond, on which the defendant craved oyer of the bond and condition, and then demurred generally. The court below sustained the demurrer, and rendered judgment for the defendant below, Chance.«
    
      Orame, for the plaintiff in error.
    The action is rightly brought, in the name of the husband only, even if the condition of the bond was the ground of the action. But that is not so; the penalty of the bond is the foundation of the action, in which the wife is not named. 2 Com. Dig. 107; 2 Mod. 217; 1 Stra. 229; 1 Baa. 501.
    
    
      Hwnter, contra.
    It is a general rule, that in all cases where the action would survive to the wife, it must be brought in the joint name of the husband and wife. 1 Wil. 324; 1 Swift Sys. 199; 1 Com. Dig. 572; 2 Mod. 169. This debt would survive to the wife; she ought, therefore, to have been joined. If this proceeding is sustained, and the husband obtains [*] judgment in his own name, the representatives of Abel Lee will be shut out altogether; and should Steward die, his representatives will be alone entitled to the money, which will be wrong. It ought to survive to his wife, and in case of her death, to go to the administrator de bonis non of Abel Lee. A general demurrer is a proper method to take advantage of the omission, in not joining all the obligees in the action. 1 Sand. 154, 291; 1 Com. Dig. 12.
    
    
      Mr. Soott, in reply.
    It is not' necessary for baron and feme to be joined in an action brought on a contract made with them jointly, which is precisely this case. The cause of action springs from the bond, and not from the right of the wife, as administratrix. This action arises on the penalty of the bond, and not from any matter that is set out in the condition. The husband could refuse to let his wife have any part of the money; and if so, he surely could dissent to her joining in the action.
   Kirkpatrick, C. J.

I think there must be judgment for the plaintiff. For though it be admitted, that in all cases where the suit, or cause of action will survive to the wife, there she must be joined in the action; and though it be also admitted, that in all cases where the debt is due to the wife, en autre droit, as in case she be executrix, administratrix, &c., the suit or cause of action will survive to her; yet it is to be understood, that this is only when the suit or action is brought upon the original bond or undertaking made to the testator or intestate himself, and not upon that taken by the administratrix or executrix in her [609] own name, for then the debt changes its nature; it is no longer to her as executrix or administratrix, but in her own private right, and must be subject to the same rules as other bonds and undertakings; and if such bond be made to a feme executrix or administratrix, during coverture, or to [*] her or her baron, in either case the baron may sue in his own name. Her being named executrix or administratrix in the bond, makes no difference, it is surplusage. This indeed is an administration bond; but I see no ground to distinguish it in this respect, from other bonds.

Rossele, J.

Was of the same opinion.

Peukihgtok, J.

Without any question, if a bond is given to a man and his wife, the husband alone may bring the action. 1 Bae. 501; 2 Com. 107 ; 2 Mod. 217 ; 1 Stra. 230 ; 3 Lev. 1/1)3. But then it is said, that the wife being administratrix, and the subject of the action in autre droit, makes a difference. The Court of King’s Bench, in the case of Ankerstein v. Clarke, 1/. Term Hep. 616, says, it does not; for that the husband may reduce all the assets into possession, and he will only be liable on a devastavit, if he does not pay the debts of the intestate. But as the case was adjudged since the revolution, and therefore not law here, it is proper to pursue the subject further. Although I can find no case directly repugnant to the case in 4 Term Rep., yet there are cases that are not in perfect accordance with it. Yel. 84; 11 Mod. 177; Oro. Car. W81 Salk 28£. In cases where the action is brought on the original contract made with the intestate, I think the wife administratrix ought to be joined ; also, where an action is brought for a wrong done to the goods of the intestate. 11 Mod. 177. But the case under consideration does not come within any of the adjudged cases that I have been able to meet with, anterior to the revolution. The bond in this case, is given to the husband and wife, conditioned to abide the award of arbitrators, to whom was submitted, net a matter in controversy, exclusively concerning the personal estate of the intestate, but first a bill of costs in an action between the parties. This certainly could not have survived to the wife, even if that action had been [*] brought in the right of the estate of the intestate, and this does not appear. Second, all matters in difference respecting the estate. This may have respected the right of dower of the widow; it may have respected costs in other suits respecting the estate; it might have been for a distributive share of the estate; besides, all other controversies [610] between the parties were submitted. Although some of the matters in controversy submitted, respected the estate of the intestate, Abel Lee, yet in case of the death of Steward and his wife, the administratrix of Lee, no one can for a moment entertain an idea, that the administrator de bonis non of Lee could ever maintain an action on this bond. To let in the objection of the defendant, Avhether sound or not, it ought distinctly to appear that the consideration, or moving causes of the bond, arose solely from a debt or duty owing from the defendant, to the estate of the deceased; and that the plaintiff had no other interest in the transaction than what grew out of the interest and office of his wife as administratrix of the estate, separate from her interest in the estate, in any other relation. This by no means appears. I am, therefore, of opinion that the Common Pleas erred, and that judgment be reversed.

Judgment reversed.  