The opinion of the Court was drawn up by
Hathaway, J.Assumpsit, by the indorser, against the acceptors of a bill of exchange.
*76The bill was duly protested, and the defendants were liable to pay it to the Calais Bank, Dec. 7,1857, when this suit was commenced. At that time, the plaintiff was liable, as indorser, to the holder of the bill, but he had no such interest in the bill as would enable him to maintain an action on it, in his own name, until he paid it, Jan. 2, 1858.
The authority which the president of the bank gave him, Jan. 5, 1858, “to prosecute this suit, at the risk and expense of the plaintiff,” was nugatory. The bank, then, had no interest in the matter, nor any power to do any thing to vary the legal rights of the parties in this action. As Mr. Chief Justice Weston said, in Bradford & al. v. Bucknam, 3 Fairf. 15, “ The objection, taken to the right of the plaintiff to recover, is not founded on the merits of the case, * * * but, with every disposition to sustain the action, we are unable to discover any legal ground which would justify it, at the time it was brought.” The cases cited as authorities, by the plaintiff’s counsel, are very materially different from this case. The action having been prematurely commenced, a nonsuit must be entered. Plaintiff nonsuit.
Tenney, C. J., Rice, Appleton, Cutting, and Goodenow, J. J., concurred.