1. In coming to the opinion that this petition for enforcing a mechanic’s lien by the assignee of the mechanic, cannot be maintained, we do not place the decision on the ground that giving negotiable notes for the amount of the. debt was a satisfaction or payment of the debt, or a waiver of the lien ; it being understood that it should not be so considered. When a note is taken, though in form negotiable, if *392not intended as payment, it will be rather a liquidation and adjustment of the amount due, than an extinguishment of the original debt, until it is itself paid, even under the Massachusetts rule. Thurston v. Blanchard, 22 Pick. 18; Butts v. Dean, 2 Met. 76; Curtis v. Hubbard, 9 Met. 322. But if the holder indorses such note, and negotiates it for value, so as to gi ve a legal title to an indorsee, then, while the note is so outstanding, and the property of another, the original creditor can maintain no action against the original debtor.

In the present case, Coggeshall, the insolvent, had so negotiated both notes, of which one is paid, and the other still outstanding. It is indeed stated in the verdict that it does not appear whether the latter of the two notes was indorsed by Coggeshall; but it does appear that it was payable to the order of Coggeshall, and that it had been discounted, and was held by a bank, and therefore the inference is strong, if not conclusive, that it was so indorsed.

2. It is then suggested in the argument that this petition to enforce the lien may be brought and maintained by the assignee as trustee of the actual holders, and that it does not appear that it is not so brought. In the first place, as the insolvent, at the time of the assignment, had a mere naked lien for securing a debt, in which the insolvent had no pecuniary interest, such a lien, if it still subsisted to any purpose, would not pass to the assignee by the assignment of the assets of the insolvent. But further; if it is intended to sustain this petition on that ground, it should have been distinctly stated ■ and shown. At present, it appears to be a suit by the assignee for the use and benefit, and at the expense of the estate of the insolvent. As such, the court are of opinion that it cannot be maintained. Petition dismissed.