Field, C. J. and Norton, J. concurring.

This is an action upon seven promissory notes of which the plaintiff claims to be the holder by assignment. Six of these notes, payable to different parties, were assigned to one of the makers, and by him to the plaintiff. The first assignment was before and the second after maturity, and the question arises as to the effect of these assignments.

It is contended that the first assignment extinguished the notes, and that the subsequent transfer vested no right of action in the holder. The notes are payable to order and, of course, are negotiable ; but the complaint merely alleges that for a valuable consideration they were assigned, etc. Authorities are cited to show that a transfer of this character vests in the holder such rights only as he would acquire upon an assignment of a note not negotiable. This point is made with reference to certain matters relied upon as counter claims, and is not important if it be held that the notes were extinguished by the first assignment. We are of opinion that the transaction amounted to payment, and that the notes became functus officio, and were not revived by the assignment to the plaintiff. If the rights of the plaintiff had attached before maturity, and his position were that of an innocent holder, he would be entitled to *80protection, but under the circumstances the action cannot be maintained. It is clear that the notes could not have been enforced by his assignor, and having taken them with a knowledge of that fact, they are equally unavailable in his hands. What Ms rights are in respect to contribution it is unnecessary to decide; the action is based upon the notes, and in rejecting them it cannot be sustained. It is possible that the plaintiff may recover upon the notes as against the assignor, but however this may be, the present judgment is erroneous.

Judgment reversed and cause remanded.