The opinion of the court was delivered by
Isham, J.The plaintiff, in this action, seeks to recover the amount of money paid by him, on a note payable to Elizabeth and Sarah Little, and which was executed by the defendant as principal, and the wife of the plaintiff, before her marriage, as surety. We learn from the case, that after the marriage of theplai ntiff, he paid'the money on the note for which this suit is brought.
It is objected in the case, that this action should have been brought in the name of the plaintiff and his wife, and that the action cannot be sustained in the name of the husband alone.
It is evident, that no right of action on this matter existed at the time of the marriage, for no money had been paid by the surety at that time. There was simply a liability on her part, and which liability was afterwards imposed on the plaintiff by his marriage. A right of action accrued only on the payment of the money in discharge of that liability. If the money had been paid by her before marriage, the cause of action would have accrued whilst sole, and she must then have joined in the action, as in case of his death, the right of action would have survived to her. And possibly she might have been joined, if after marriage, the claim had been paid from her separate estate. But where the right or cause of action accrues during coverture, as in this case, on the payment of the money in discharge of the debt, the husband mag sue alone, so if the right of action is inchoate before marriage and consummate after, he may sue alone or join the wife. In no case must she be joined, except -where the cause of action would survive to her. And as the money in this case was advanced by the husband in his own right, and in discharge of a personal obligation) resting upon him, we do not see that the cause of action would' survive to her, on the death of the husband. It is manifest his personal release would have discharged this debt, on the ground that the legal interest in the contract was vested in him, and having this legal interest, he can sustain this suit alone. Chitty on Plea. 29. 1 B. & Ald. 224, McNeilage v. Holloway.
The note upon which this payment was made, was dated May 1, 1838, and at the time of its execution, was signed by the defendant alone. The note, during the year 1840, was taken to Ohio, and delivered to the payees and owners, by the wife of the plaintiff, and before her marriage. Objections being made as to the ability of the maker to pay the note, it was signed, on that oe*122casion by the plaintiff’s wife, before her marriage, as surety for the defendant.
It is claimed on the part of the defendant, that this action cannot be sustained for the money paid hy the plaintiff on this note, as it was not signed by the surety at the time of its execution, or by the request of the defendant, and that it was a voluntary act on the part of the surety, and for which no obligation of indemnity arises on the part of the defendant.
It was unquestionably necessary for the plaintiff to show by competent evidence, that the obligation assumed by the plaintiff’s wife before her marriage, and the payment of the money by the plaintiff after the marriage, were made at the request of the defendant, or under such circumstances as would show that the relation of principal and surety existed between them. This as a question of fact, could he proved by various modes. It was competent to show an express request, either previous or cotemporaneous with the execution of the note, or circumstances from which the law will imply a request. It was competent also to show that fact by the subsequent conduct of the parties, or by the acknowledgment of the defendant, either verbal or by written communication.
For this purpose, the letter dated in March, 1845, written by the defendant to the plaintiff’s wife, after her marriage, was offered and read in evidence. It is to he observed, that this letter was not offered to prove a special contract, on which the action was brought, and on which the court were called upon to decide as to its legal effect, but it was- offered as proof of an acknowledgment of the defendant, that the plaintiff’s wife signed the note as his surety, that he was under obligations to pay the note, and relieve the plaintiff and his wife, from the payment of the same. For that purpose, the letter was properly passed and submitted to the con'sideration of the jury, as depositions used in the case are submitted, for them to ascertain and draw the inference, whether or not, at the time of signing the note, or paying the same, the relation of principal and surety existed between them.
The evidence should pass to the jury under instructions from the court as to the law arising from the facts, as they shall find them to exist, from the evidence. • This instruction was given, and no -exceptions have been taken to the charge of the court. And *123the jury have found from this acknowledgment of the defendant as contained in this letter, that the defendant did assent to the signing of this note by the surety, and did recognize a liability on his part to indemnify the surety therefrom. And this finding of the jury, we are convinced, is founded in the justice and equity of the case, and that the facts so found, do create a liability on the defendant to repay the money advanced on the note.
The result is, that the judgment of the county court must be affirmed.