
    Jonathan Lee and Wife, v. Benjamin Chambers.
    The wife can only bs joined with her husband when her interest existed before coverture, or when she is the meritorious cause of action, and u.a promise is to her, or when the right of action is in autre droit. Hence a count and promise to husband and wife, for money received to their joint use, and a count for money received to the use of the wife dum sola, and a promise to husband and wiio, are dofective in themselves; and, if they were not, still they could not be joined with a count for money received to the use of the wife dum sola, and a promise to her as such. So, also, neither of these counts can be joined with a count for money received to the use of the wife dum sola in autre droit.
    
    It is a misjoinder to join a count which would survive to the wife, with a count which would abate by the death of the husband.
    Tried before Mr. Justice Frost, at York, Spring Term, 1846.
    This was an action of assumpsit, to recover money had and received to the use of the plaintiffs, by the defendant, as Ordinary.
    Martha C. Lee was the widow of John B. Quirl, who had intermarried with Jonathan Lee. Quirl left two children, to whom his widow had been appointed guardian. The defendant, as Ordinary, had sold a tract of land of the estate of Quirl, (who died intestate) and had received several payments on the bond taken for the purchase money. The defendant admitted the receipt of the sums sued lor, to the attorney in fact of Mrs. Lee, and to her attorney at law. When the latter, Mr. Williams, called on the defendant and demanded payment of the amount he had received, on account of all the parties interested, the defendant requested that he would not sue or take any measures for the recovery, until the defendant should have lime to write to Mrs. Lee, and request her consent to set off against this, her demand, a debt which was due to the defendant by her father, and promised if he did not succeed in that application, he would pay the amount to Mr. Williams. Time was given to the defendant, until he was about to remove from the State, when being again applied to for payment and having refused, this action was brought.
    The declaration contained four counts; for money had and received to the use of the plaintiffs, to the use of Martha C. Lee, dam sola, to the use of Jonathan and Martha C. Lee, and to the use of Martha C. Lee, guardian of her minor children.
    It was objected, as a misjoinder, that the declaration contained counts for demands in different rights, to the plaintiff Martha Lee in her own right, and as guardian of her children. The objection was overruled, because the action was supported on the express assumpsit of the defendant to pay to Martha C. Lee the amount he had received on account of the estate of Quirk
    The defendant appealed, and moved in arrest of judgment for a new trial, on several grounds, the following of which are considered in the opinion of the Court.
    Because the plaintiffs have inserted in their declaration, and obtained a verdict, on counts for demands due them both individually and as guardian; and because the verdict was in other respects contrary to law and evidence.
    Witherspoon, for the motion.
    Williams, contra.
    
   O’Neall J.

delivered the opinion of the Court.

In this case there are four counts in indebitatus assumpsit. The first is for so much money had and received to the use of Lee and wife jointly, and a promise to them accordingly. The second is for money had and received to the use of the wile, dum sola, and a promise to her while sole. The third is for money had and received to the use of the wife, dum sola, and a promise thereon to husband and wife after marriage. The fourth count sets out that the wife was guardian of her infant children; that while she was unmarried, the defendant received so much money for her use as guardian, and promised to pay her the same. The question is, whether these counts are not improperly joined. There can be no doubt that they are. The count and promise to husband and wife on money received to their joint use, is an anomaly. The wife can only be joined when her interest existed before coverture, or when she is the meritorious cause of action, and the promise is to her; or where the right of action is in autre droit, as executrix: 1 Chitty, p. 22: of the same character is the count for money received to the use of the wife, dum sola, and a promise to husband and wife. This, if it bears any legal character, must be regarded as a promise to the husband. These two counts cannot be joined with the count for money received to the use of the wife, dum sola, and a promise to her as such; for they are altogether in a different right. In the second count there would be a right of survivorship to her. The others would abate by the death of the husband. The fourth count is a clear misjoinder; it presenting altogether a distinct right: the money there is the money of the children, and the plaintiffs can have no right to demand it except in the right of their wards. This makes it entirely in autre droit. Such a joinder cannot be allowed; 1 Chitty’s Pleadings, 200. But notwithstanding these objections to the declaration, it is plain, that on the second count the plaintiffs may recover the money received for the wife; andón looking to the bill of particulars, I see it is ascertained to be $83.84 2-3. This sum with the interest upon it, from the demand of payment, the plaintiffs may retain in their verdict, upon amending their record, (which they have leave to do) by striking out the first, third and fourth counts, and conforming their bill of particulars to the amendment to be made, and releasing so much of the verdict as exceeds $'83.84 2-3, and the interest aforesaid. If the plaintiffs will so amend and release, the motion is dismissed, otherwise a new trial is ordered.  