Upham, J.

It appears from the testimony of Wilson, which is made a part of this case, that, sometime subsequently to the comencement of this action, the plaintiff admitted u he had no claim, or interest in the note now in suit, and had no knowledge that a suit had been commenced upon the note.” This is sufficient to show that the plaintiff has no present interest in this claim, and the defence set up must be considered to prevail against him, so that judgment cannot be rendered for Isis benefit. * But it has been contended that there is sufficient evidence before the court to show an assignment of the note to one Thomas S.

Tillotson, and if this is the case his rights as assignee should be protected. Sumner v. Steward, 2 N. H. Rep. 39. There is no endorsement of the note to Tillotson, and no evidence of any consideration having been paid by him, and so far as we can arrive at any conclusion, as to the nature of the delivery, front the testimony before us, the note seems to have been placed in Tillotson’s hands as the agent of Mahu-rin, and for Mahurin’s benefit, and Tillotson has no interest in it. If this should prove to be the case, the defence of payment would be sustained both against Tillotson and Phelps.

But it is unnecessary for the court to determine this point. It is sufficient that from his admission the plaintiff is not entitled to judgment in his own behalf. The verdict was therefore erroneously taken for the plaintiff. Under the circumstances of the case the court will not permit judgment to be rendered against the defendant, unless some person, claiming to prosecute the suit, comes in, and shows an assignment of the legal interest in the note to him, for a valuable consideration. The verdict must therefore be set aside, and A new trial granted.