delivered the opinion of the Court. This is an action of assumpsit brought by the firm of Stevens & Corlies, of the city of New York, in the name of the Adams Bank, on a promissory note made for the purpose of being discounted at the bank, but which was not, and was afterwards delivered over to Stevens & Corlies, who now claim to recover for their own use and benefit. Before the commencement of the action, Stevens & Corlies requested the Bank to indorse the note to them, or to authorize them to commence an action thereon in the name of the bank ; which request was declined. On the ground of this refusal the defendants’ counsel move that the action may be dismissed. The plaintiff’s counsel Oppose the mo-*578ti on on two grounds : 1. Because they contend that Stevens &■ Corlies are the bond fide holders of the note for a val-_ J uable consideration, and have a right to maintain the action in the name of the bank without their consent; and 2. If not so, that there is sufficient evidence from which the consent of the bank may be implied. But we are of opin ion, that neither of these grounds can be maintained.
We know of no principle of law or equity, which would authorize the holders of the note to commence an action in the name of the bank without their assent, express or implied. In the case of Chenango Bank v. Hyde, it was said, that a court of equity in that case would have compelled the bank to allow an action to be brought in their name if they had refused. But that case differs from this in a material point. There the bank, after refusing to discount the note, consented to become the agent and trustee of the person who had advanced money on it, and for whose use the suit was commenced. By thus becoming trustee the bank impliedly consented, that the suit should be brought in their name, and their consent was not revocable. So if there is an assignment of a chose in action, the assignor, by the assignment, impliedly gives authority to the assignee to use his name in any legal proceedings which may become necessary to give full effect to the assignment. But without consent, express or implied, no one is authorized to maintain a suit in the name of a stranger. Even a joint tenant of tenant in common may refuse to proceed in an action commenced by his cotenant in their joint names.
In this case there is no consent to the bringing of the action, on the part of the bank, either express or implied. There is no privity or connexion between them and Stevens & Corlies. They have not consented to act as trustees for the holders of the note, nor have they undertaken to assert any interest in it, or to assign it. We think, therefore, that, on strict principles of law, the action was commenced without authority.
And we are also of opinion, that if the bank had consented to allow their name to be used, this action nevertheless could not be maintained, because they refused to discount it. There *579never was any valid contract between them and the makers of the note. The mere signing of the note did not make it a valid contract. The assent of both parties is essential to the validity of a contract. Marvin v. M‘Cullum, 20 Johns. R. 288. If Stevens & Corlies acquired any right by the delivery of the note to them, they should have sued in their own names. They could not, however, maintain an action on the note, nor indeed in any form, excepting against Jones. Allen v. Ayers, 3 Pick. 298.
There is also another ground of defence. This note was made and left in the hands of Jones to raise money to pay the debts of Jones and Severance, and could not be appropriated to the payment of the separate debts of Jones. It was fraudulent in Jones thus to appropriate it, and the appropriation is not binding on Severance and Alden.
Plaintiffs nonsuit.
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