¶1delivered the opinion of the court.
¶2From the facts, appearing by the statement above, the question arises whether an assignee of a non negotiable note can maintain an action at law against the makers of the note, when the assigiibig; himself, could not*
¶3That White, the assignor and payee of the note, which is not negotiable, being, himself, one of the firm of McPherson &Co., the makers of the note, could not, at law, maintain an action on this note against the makers : that is, that he could not be both plaintiff and defendant in the same snit at law, is a proposition that does not now require the citation of authorities to support it.
¶4Does his assignee stand in a better attitude ? Sect. 4 of the statute concerning bonds and notes, Digest of 1846 page 194 declares, “that the nature of the defence of the obligor or maker shall not be changed by the assignment, but he may make the same defence against the bond or note, in the hands of the assignee that he might have made against the ««signor;
¶5*207The defence, mentioned in this section, may be one of law or of fact. It may exist alone m the incapacity of the plaintiff legally to sue, and such, we think, is the case now before us. We cánnot see how the assignor, who could not sue himself, can give, by his assignment, power to the assignee to sue. The same defence is given against each, and the existence of the same legal defence to the one, sufficient to defeat his action, must have the same effect against the other.
¶6We, therefore, reverse the judgment of the court below,