This case is distinguishable from the case of Westmoreland v. Davis, decided at the present term of this Court, in this, that if the plaintiff cannot maintain this action, he is without remedy; as it is very certain, that an action will not lie against the wife of the defendant, after the restoration of the husband to sanity, and the consequent dismissal of the bill for a separate maintenance.
*261There is, however, a clear moral obligation, on the part (f the defendant, to pay for the boarding and tuition of his children; and such being the case, he would be liable, on an express promise, to pay the debt, in a court of law; and it would seem to follow, that as in equity and good conscience, he ought to pay a debt incurred for his benefit, under the sanction of an order of the Court of Chancery, that Chancery would enforce its performance. Such being the case, I think this action, which is in the nature, in many respects of a suit in equity, may be maintained, from the necessity of the case; as otherwise, there would be a failure of justice, which would be a reproach to our law. No good reason can be assigned for turning the plaintiff round to file a bill in Equity, where the rule of decision, and the reason for granting the relief, must be the same, as in the action of assumpsit.
Let the judgment be reversed, and the cause remanded.