In this action Ellis has been defaulted. The other defendants were sureties for him upon the note in suit, which was made payable to the order of the Granite Bank. The directors o.f the Bank declining to take it, Ellis sold it to Samuel S. Brooks. The note being unpaid at maturity, Brooks sued the principal and the sureties upon it in the name of the bank — having first obtained authority for that purpose. Can the action be sustained against the sureties ?
It is not essential to the maintenance of an action upon a negotiable promissory note that the nominal plaintiff should have any interest in the note, if the action is prosecuted with his consent. Marr v. Plummer, 3 Greenl., 73; Golder v. Foss, 43 Maine R., 364.
If the principal maker of such a note transfer it to one not the payee, for a good consideration, such bona fide holder may maintain an action against such maker, in the name of *369the payee, with his consent. Lime Rock Bank v. Macomber, 29 Maine R., 564. Such is clearly the law applicable to the principal. Does the same rule apply to the sureties ? Will the transfer of the note by the principal to a third person, not the payee named in the aróte, without the coxasent of the sarreties, discharge them ?
In several of the states it has been held that if the payee named in the xroto declines to take it, the principal may sell it to a third person, and that the sureties, or accommodation parties, are not thereby discharged. Bank of Natchez v. Claibourne, 5 Howard, Miss. R., 301; Bank of Chenango v. Hyde, 4 Cow., 567; Elliott v. Abbott, 12 N. H., 549; Hunt v. Aldrich, 7 Foster, 31.
In other states it has been held that if the principal sells the note to one not the payee, without the consent of the sureties, the holder cannot maintain an action upon it against them. Clinton Bank v. Ayer, 16 Ohio, 282; Adams Bank v. Jones, 16 Pick., 574.
In the only case in this state where such an action has been sustained against the sureties, the question was submitted to the jury, who found that the sureties consented that the principal might throw the note into the market to raise money upon it. Starrett v. Barber, 20 Maine R., 456.
On the whole, we believe the better opinion to be, that, if the principal sells the note to a third person not the payee, without the express or implied consent of the sureties, they are not liable upon it. There is aro valid contract until the note is delivered. And if the principal deliver the note to one not the payee, without the authority of the sureties, they are not bound by it. There is no privity of contract between them and such person. They may well say, “non haec in foedera." It is not the contract which they proposed to make, and to which alone they assented.
There are no facts reported in this case from which we can infer that the sureties consented that Ellis should sell the note to Brooks.
Plaintiff Nonsuit.