The opinion of the Court was drawn up by

The plaintiffs gave to the defendant their joint note, which is alleged to have been for an usurious consideration, and the money which was paid for the excess beyond the sum actually received from the defendant, and legal interest thereon, is sought to be recovered in this action.

The mortgage of the real estate of the wife was for the security of the note. But the money, for which the note was given, was received by the husband; and it does not appear *444that the mortgage was ever resorted.: to, on the part of the defendant, for the purpose of obtaining payment, or an indedefeasible title to the estate.

The note which the wife signed, created no legal obligation on her to pay it. A suit against her, either alone or jointly with her husband upon it, could not be maintained. 1 Black. Com. 442; Howe v. Wildes ux., 34 Maine, 556.

The. obtaining of the money from Huse upon the note of the plaintiffs, secured by a mortgage of the same land held by the defendant, as security, for the purpose of paying the note to him, could not affect the case. This was a matter foreign to the transaction, which is alleged to/be illegal. This money was borrowed on the personal security of the husband, and the wife, was not liable thereon.

The action cannot be maintained in the name of the two plaintiffs.

In the case of Chadbourne v. Rackliff, 30 Maine, 354, which was a real action, the writ was allowed to be amended by striking out the name of one of the demandants, but this was upon the ground that the tenant had acquired the title of one of the original demandants, after the commencement .of the suit. The same has been done in suits where one of the defendants was an infant; at-the time he executed the contract, and he relied upon that as a defence. Woodward v. Newhall & al., 1 Pick. 500; Cutts v. Gordon, 13 Maine, 474. The same has often been done, where one of two or more defendants has become a bankrupt pending the suit. . It was held, .in Minor & als., v. The Mechanics’ Bank of Alexandria, 1 Peters, 46, that where there are several defendants, and they sever in their pleadings', a nolle prosequi ought to be allowed.

In this State, a plaintiff can strike from, his writ, one or more defendants, and proceed against others, and can insert new defendants on certain conditions. R. S; .of 1841, c. 115, § § 11 and 12; R. S. of 1857, c. 82, § 12. But our attention has been called to no case where one of two or more plaintiffs has been allowed to retire from the suit, when all of them had full opportunity to know who should constitute the prose*445cuting party, and nothing has taken place since the commencement of the suit to change the relations of the parties, or the character of the claim. It is believed that such permission by the Court would be inconsistent with well established principles and general practice.

In the case at bar, the plaintiffs must have known, before the institution of the suit, whether the wife had, in her own right, any ground of action, and when it is found, after a full hearing, that the action cannot be maintained in the name of the two, their condition in reference to the proceedings' having undergone no change, we think the amendment cannot with propriety be made. Plaintiff nonsuit.