#### Ebenezer Williams *et ux.*Administrators of Isaac Durell, *versus*Abraham Moore.

Where an administrator pays a debt for which his intestate was surety, he may recover the amount from the principal in an action for money paid by him as administrator.

Where an intestate had been surety for a debt and his administratrix paid part of the debt, and was afterwards married, and she and her husband paid the rest of the debt, it was *held,*that they might recover the whole of the debt against the principal, in assumpsit on a count for money paid by the husband and wife as admistrators; and that it was not necessary to count specially for the money paid by the administratrix before the marriage.

Assumpsit. The declaration contained three counts ; the first was for money paid to the use of the defendant by the plaintiffs as administrators of Isaac Durell ; the second was for money had and received by the defendant to the use of the plain'iffs as administrators; and the th:rd was for money had *440and received by the defendant to the use of Durell, the intes* tate. The case was tried on the general issue, before *Wilde*J. It appeared from the evidence, that Durell, the intestate, died on September 17th, 1824, and administration was granted to his widow, on September 27th, 1824, and that she, on May 10th, 1829, was married to the plaintiff, Ebenezer Williams. The writ was dated May 20th, 1829.

The plaintiffs gave in evidence a promissory note for $400, dated July 7th, 1823, payable to David Osgood, and signed by the defendant and the intestate, and a promise by the defendant to indemnify the intestate, and a judgment, founded on the note, against Elizabeth Durell as administratrix, before her marriage with Williams. Before the intermarriage of the plaintiffs, the administratrix paid Osgood $ 199 in part of his claim, and on the day of the date of the writ the plaintiffs paid the remainder ; and the creditor gave a receipt acknowledging full payment and satisfaction of the debt.

The plaintiffs also gave in evidence a lease from John Greenwood to the defendant, with a guaranty signed by the intestate indorsed on it; and a judgment recovered by Greenwood against the administratrix for $220, which judgment was pajd by the plaintiffs on the day of the date of the writ.

A verdict was taken *pro forma*for the whole amount claimed by the plaintiffs, reserving all questions which could be made by the defendant for the whole Court.

*S. D. Parker,*for the defendant.

The money paid by the plaintiffs was a personal payment. The action, therefore, should not have been in their names as administrators. *Coburn*v. *Ansart, 3*Mass. R. 319. The count for money paid by the plaintiffs will not support the claim for the $ 199 paid by the wife alone before her marriage. In the case of Osgood’s note, the intestate having a written indemnity from the defendant, the action should have been upon that instrument.

The two last counts for money had and received are clearly not supported by the evidence. *Ford*v. *Keith,*1 Mass. R. 139.

*Sumner*and *Field, contra,*

cited Toller, 37, 243, 358 *¡ Kings*v. *Neioton,*Cro. Car. 603.

Parker C. J.

delivered the opinion of the Court. The *441money paid both on the note and on the lease guarantied by the intestate, may well be recovered under the first count. It is settled in the case of *Mowry*v. *Adams,*14 Mass. R. 327, that when an administrator pays a debt for which the intestate was surety, he may recover of the debtor in an action either m his own name or as administrator. This removes all objections, except as to the $ 199 paid by Mrs. Williams before her intermarriage with E. Williams the plaintiff, all but that sum having been paid since the marriage. In regard to that sum it is said that there ought to have been a special count, declaring, according to the fact, that the wife, while sole administratrix, paid the money; but we do not think that necessary. The final payment upon execution was after marriage, and while both of the plaintiffs were liable. The payment made by her before the marriage may be considered as in advance, to be accounted for on the final settlement, and the payment of the whole debt may be considered as made when the discharge was given ; so that substantially the debt was paid after the intermarriage. Besides, on the payment of this debt the defendant became indebted to the estate of the intestate, for which debt the husband and wife became, by the marriage, jointly liable ; they may well therefore join in the action ; indeed necessarily must ; and it is quite immaterial whether the debt paid out of the assets was paid by her alone or jointly, she being administratrix, and having paid in that capacity; it was the administrator of the intestate who paid the debt; it is the administator who now sues ; for the husband coming in only in right of his wife, they are but one administrator. He assumed her debts as administratrix, and succeeded to her rights jointly with her. Though the allegation is that the money was paid by both, it is no variance to prove that it was paid by her alone, for it was paid by the administrator, which she is now jointly with him.

The objection to a recovery on the second and third counts is well founded.

Judgment is to be entered according to the verdict, on the first count.