delivered the opinion of the Court. In deciding this cause, we have not thought it necessary to consider and determine all the questions which have been raised and argued by the learned counsel, but have confined our consideration to those alone which appear to be most important, and which are decisive of the merits of the case.

The action is assumpsit on a promissory note of hand, and the defence is, that the note is void for want of consideration ; or if not, that it has been legally released and discharged.

It was proved on the trial, that the plaintiff had no knowledge of the giving of the note at the time, and had no interest or concern in the matter. He is a mere nominal party, and sues for the use and benefit of one Tylee Lincoln, the wife of Amos Lincoln, to whom she had been married for a long time previous to this transaction. If any consideration was given for the note, it was given by her.

The first consideration relied on by the plaintiff’s counsel is, that the note was given to compromise a process com*289meneed by Tylee Lincoln against the defendant, on the bastardy act, (St. 1785, c. 66,) and that the process was accordingly no further prosecuted.

The second, that the defendant was discharged from all further liability by Tylee’s receipt, which receipt, though not received by the defendant, was given to the officer for his use, and was retained in the hands of the officer by his request.

The objection made to the first mentioned consideration is, that the process was. void, and could not be maintained without joining the husband. This objection appears to the Court to be well-founded. The rule, that no action can be maintained by or against a feme covert, appears to be of universal application; we are not aware of any exception. The husband and wife are considered in law but as one person. There is allowed but one will between them, which .s placed in the husband. This may be a technical and artificial rule, but the Court have no power to dispense with it for that reason. And there seems to be no good exception to it, if we had the power. If the wife were allowed to sue alone, the defendant, if he should recover judgment for costs, might have no sufficient means to secure payment, which would be unjust. For as the husband would be entitled to the money if the wife should recover judgment, he ought to be responsible if she should fail.

But it has been argued, that this case is an exception to the general rule, or does not fall within it, first, because the process is in some respects in the form of a criminal prosecution. But we consider the form of process immaterial ; the suit is in substance and effect a civil suit ; as much so, as it would have been if the remedy provided were a special action on the case. The object of the suit is to recover damages up to the time of the judgment, and security for subsequent damages and expenses.

Secondly, it is said that the statute expressly provides that the mother of a bastard child may prosecute, and that feme-coverts are comprehended in this provision. It may be so, but we give no opinion on this point. . Whatever nay be the construction of the statute in this respect, it is *290not to be presumed that there was any intention to interfere with or change the rights of the husband as established by law. The form was adapted to the cases which were chiefly, if not solely, intended to be provided for ; and besides, the language of the statute does not prohibit the joining the husband, and the rules of the common law are not to be changed by doubtful implication. By the statute of wills (1783, c. 24,) it is provided, that all persons of full age and of sane mind may dispose of their real estates, as well by last will and testament in writing, as otherwise by any act executed in his or her lifetime. It was, however, decided in the case of Osgood v. Breed, 12 Mass. R. 530, that a married woman, although within the words of the statute, was not authorized, during coverture, to make a devise of her lands, because, say the Court, “ it was not the design to alter the relation between husband and wife, or the legal effect of that relation.” And there is much less reason, or appearance of reason, in the present case, for supposing that the legislature intended to alter the legal effects of that relation, by the statute in question.

But it is again argued, that if the husband should have joined in the process, the non-joinder was only matter of abatement, and that the process was not void. We consider it, however, immaterial whether the process was void, or only voidable by plea of abatement. If the defendant had a legal right to defeat the process, the surceasing the suit was not a valid consideration to support the note.

The second consideration relied on, viz. that the wife discharged the defendant from his liability, is altogether unfounded. Her receipt was a void act, and could not operate as a discharge, or in any other manner. Upon the whole, therefore, we are of opinion that the first ground of defence is well maintained, and this is decisive of the cause.

We have, however, no doubt that the second ground of defence is equally well maintained.

If this note had been given to the wife directly, it would have enured to the use of the husband, and he alone could have released or discharged it; and the intervention of a trustee does not change the husband’s rights. It is true he *291might recover on the note in the name of the nominal promisee, but he has a right also to release the note; and we think the release in the case does operate as a discharge. The note is not released in terms, but every matter and thing the note was given to secure was released, and this alone would show a failure of consideration.

“ The note,” it is said, “ was given in this manner, for the laudable, as well as obvious purpose, of securing the avails of it to the mother of the child, whose interests the Court will protect by all legal measures in their power.” Or in other language, as we understand it, the wife, after committing the foulest crime against her husband, may secure to her own use the wages of her iniquity, in defiance of his authority and rights, by the intervention of a trustee, and this is such a laudable act as to deserve the especial protection of the Court. We certainly feel no disposition to countenance such an attempt. The law does not sanction it, nor will it, we trust, ever be tolerated in a court of justice.

It is the opinion of the Court therefore, upon the whole matter, that this action, upon the facts reported, cannot be maintained, and the plaintiff, according to the agreement of parties, is to become nonsuit.