This was an action of assumpsit, by husband and wife, for the recovery of rent which arose out of the estate of the latter, and fell due before their intermarriage. The defendant pleaded payment to one Smith, who was, at the time, of the leasing and occupation of the premises and the receipt of the rent, the husband of the said Judith, the present Mrs. Haralson; the plaintiffs replied, that the payment was made by collusion, and to prevent them from receiving the rent as was their legal right, and alleged that the said Smith, at the time when, &c., and till the said Judith was subsequently divorced from him, was living notoriously separate and apart from her, *38having abandoned and wholly neglected to support her. To this replication there was a demurrer which the circuit court sustained, and that decision is now assigned for error.
We have no doubt that a payment made to Smith, while the husband of Judith, was a legal discharge of the defendant’s liability. The fact that he and his wife were then living apart did not alter their legal rights'in this respect. It may be that upon the state of case set forth in the replication, a court of equity would interfere to prevent the collection, by the husband, of the rents issuing out of the wife’s estate; but unless restrained in some such way, the lessee’s right to make payment to the husband is unquestioned.
Judgment affirmed.