with such a person." If he should omit to state that the bill is a copy, or to write his own indorsement after the word copy, he may become liable on the copy as on an original. It is a common but not a safe practice for a drawer, to whom a negotiated part has come back with many indorsements on it, to substitute a new part without such indorsements. The holder of such a substituted part may be deprived of his remedy against the acceptor by the intermediate act of the drawer." § 310 WALSH v. BLATCHLEY. 6 WISCONSIN, 422. - 1853. THE plaintiff declared in trespass on the case upon promises, for money lent; money laid out and expended; money paid and received by the defendants for the use of the plaintiff, etc; and gave notice of the cause of action, the indorsement by defendants upon the bill of exchange, copied, and served with the declaration as follows: EXPRESS EXCHANGE OFFICE, DOWNIEVILLE, SAN FRANCISCO. ADAMS & Co. Exchange for $250. Oct. 6, 1854. --- - pay to the At sight of this second of exchange — first and third unpaid · order of Phoebe Blatchley, two hundred and fifty dollars value received, and place to account of exchange. To MESSRS. ADAMS & Co., New York. (Countersigned), ADAMS & Co. S. W. LANGWORTHY, C. B. MACY, Agents. Indorsed by Phoebe Blatchley to Henry Dart or order, and by J. Henry Dart to P. O. Strang or order, and by Strang to P. Walsh or order. The defendants plead the general issue; and by mutual agreement of counsel the cause was tried before the circuit judge, without the intervention of a jury, who found, and reported in writing with his decision, the facts and conclusions, and recited in full in the opinion of the court therein. By the Court, COLE, J. - This case was tried by the court without the intervention of a jury, and the judge found the following facts: First. That the action is brought upon the bill of exchange introduced in evidence, and described in the plaintiff's declaration. That this bill, which is the second of the set, was indorsed by the defendants on a Sunday. Second. That the first of the set was sold by defendants to plaintiff about the 1st of January, 1855. That the plaintiff, without delay, Cour Royale de Paris, 14 Janvier, 1830; Sirey, t. 30, 1. 172. • Ralli v. Dennistoun, 6 Exch. 483. sent the same by mail to his correspondent in New York city, the residence of the drawee, for presentation for payment. That by some delay in the mail the letter did not reach New York until the 9th of April following, at which time the letter, with inclosure, was duly received by the said correspondent. That the bill was not presented for payment. Third. That in the last of March, the plaintiff, fearing the said first bill was lost, procured the defendants to indorse and deliver to him the second of the set, and had it presented on the third day of April following for payment, to the drawee, and payment was refused. The bill was duly protested, and proper notice given to the defendants, who were indorsers. The conclusions of law which the court drew from these facts, were, 1st. That the liability in this action, if any at all, is upon the second bill of the set, and not on the first; 2d. That because the said bill was indorsed on Sunday, that therefore such indorsement was absolutely void." We have examined with considerable care the authorities, and have not been able to find a case precisely like the present, although it would seem as if the point must frequently have arisen in the courts in this country, and in England. The case of Perreira v. Jepp et al. (cited in a note on page 449, 11 B. and C.), would seem to have a strong bearing upon the case at bar. It was there held that he to whom any part of the set is first transferred, acquires a property in all the other parts, and may maintain trover even against a bona fide holder, who subsequently, by transfer, or otherwise, gets possession of another part of the set. That is, deciding that the first indorsement of one of the set vests in the indorsee the absolute right to the possession of the whole set. And we suppose it would follow, from this doctrine, that the indorsement of the second in this case was entirely unnecessary. The liability of the indorser arose from indorsing the first of the set for value. We think her liability was not increased one jot or tittle by indorsing the second of the set. Suppose she had indorsed all of them in January, at the time she indorsed the first, is it not obvious that her liability would not have been different from what it is? It is conceded that the indorsement of the first was good, and this indorsement was entirely adequate to carry with it the second and third. (See Edwards on Bills, 304 and 162; Holdsworth v. Hunter, 10 B. C. 449; Kenworthy v. Hopkins, 1 Johns. Cas. 107.) Either of the set may be presented for acceptance, and, if not accepted, a right of action arises upon due notice against the indorser. (Downes and Co. v. Church, 13 Peters, 205.) The bill upon which the protest was made was declared on and produced, and it also appeared that the first had not been presented for payment. The court says, and we think properly and correctly, that if the first had been presented for payment and protested, even as late as April 9th, that upon proper notice the indorser would have been held, for the delay in the mail would have been a sufficient excuse for the apparent neglect in not presenting it for acceptance before. The case might have been relieved from all doubt or difficulty, had the indorsee declared upon the first of the set, and produced on the trial the second, which had been presented for acceptance and dishonored. (Wells v. Whitehead, 15 Wend. 527.) This he did not see fit to do, but we think he was entitled to recover even as the facts appeared before the court. The judgment is reversed, and a new trial ordered.1 1 It seems that an indorsee has no right to demand the other parts except from his immediate indorser. Thus, the fourth indorsee cannot maintain an action against the second indorser for outstanding parts of the set. Pinard v. Klockmann, 3 B. & S. 388; s. c., 32 L. J., Q. B. 82. In an action against the acceptor on one part of the set, the holder need not file the other part or parts. Johnson v. Offutt, 4 Met. (Ky.) 19. In an action against the indorser on the second part, after dishonor by nonacceptance, the holder need not account for the first part; it is a matter of defence "to show either that some other bill of the set has been presented and accepted, or paid; or that it has been presented at an earlier time and dishonored, and due notice has not been given; or that another person is the proper holder, and has given notice of his title to the party sued; or that some other ground of defence exists, which displaces the prima facie title made out by the plaintiff." Downes v. Church, 13 Pet. (U. S.) 205; Miller v. Palmer, 58 Md. 452. But where the second of the set is protested for nonacceptance, the holder must produce that number of the set, because otherwise it may have been accepted supra protest for the honor of the defendant, and he be liable upon it. Wells v. Whitehead, 15 Wend. (N. Y.) 527. If the drawee accepts more than one part, he is liable on each to holders in due course. Holdsworth v. Hunter, 10 B. & C. 449; Bank v. Neal, 22 How. (U. S.) 96. If the drawee dishonors one part, but subscauently honors and pays the other part, the drawer is discharged. Page v. Warner, 4 Calif. 395.-H. ARTICLE XVII. PROMISSORY NOTES AND CHECKS. I. Promissory notes. 1. ORIGIN AND HISTORY.1 [See pages 27-28.] 2. FORM AND INTERPRETATION. See ARTICLE II, pp. 34-233, ante. 1 The statute of 3 & 4 Anne, c. 9, § 1 (1704), provided that, "Whereas it hath been held, that notes in writing, signed by the party who makes the same, whereby such party promises to pay unto any other person, or his order, any sum of money therein mentioned, are not assignable or indorsable over, within the custom of merchants, to any other person; and that such person to whom the sum of money mentioned in such note is payable cannot maintain an action, by the custom of merchants, against the person who first made and signed the same; and that any person to whom such note should be assigned, indorsed, or made payable, could not, within the said custom of merchants, maintain any action upon such note against the person who first drew and signed the same: Therefore, to the intent to encourage trade and commerce, which will be much advanced if such notes shall have the same effect as inland. bills of exchange, and shall be negotiable in like manner, be it enacted, etc., (1) That all notes in writing that, after [May 1st, 1705], shall be made and signed by any person whereby such doth or shall promise to pay to any other person or per his, her or their order, or unto bearer, any sum of money mentioned in such note, shall be taken and construed to be, by virtue thereof, due and payable to any such person or persons to whom the same is made payable: (2) and also every such note payable to any person or his, her, or their order, shall be assignable or indorsable over in the same manner as inland bills of exchange are or may be, according to the custom of merchants; (3) and that the person or persons to whom such sum of money is or shall be by such note made payable, shall and may maintain an action for the same, in such manner as he, she, o they might do upon any inland bill of exchange, made or drawn according to the custom of merchants, against the person or persons who signed the same; (4) and that any person or persons person sons, persons, . to whom such note is indorsed or assigned, or the money therein mentioned ordered to be paid by indorsement thereon, shall and may maintain his, her, or their action for such sum of money, either against the person or persons who signed such note, or against any of the persons that indorsed the same, in like manner as in cases of inland bills of exchange." The statute was held to apply to foreign, as well as domestic, notes. Milne v. Graham, 1 Barn. & Cress. 192. Statutes of like tenor have been passed in the American states. 1 Daniel, § 5. Independent of statute, some states have held promissory notes to be negotiable by force of common law. Dunn v. Adams, 1 Ala. 527; Irvin v. Maury. 1 Mo. 194. See 1 Parsons, Bills and Notes (2d ed.), pp. 9-13; Story on Prom. Notes, § 6. — H, § 320 EDELMAN v. RAMS. 58 MISCELLANEOUS (N. Y. SUP. CT., APP. T.) 561.-1908. DEMURRER to complaint on promissory note overruled and defendant appeals. GILDERSLEEVE, P. J. * * The appeal from the interlocutory judgment rendered on January 3, 1908, is well founded, and that judgment must be reversed. The plaintiff's cause of action rests upon a promissory note made by the defendant and payable to the "order of myself." Although the complaint alleged the making and delivery for value of the note to the plaintiff, and that the plaintiff was the lawful holder and owner of the note, and its presentation and demand. for and refusal of payment, it contained no allegation that said note was ever indorsed by the defendant, its maker. The Negotiable Instruments Law of the state (Laws 1897, p. 755, c. 612) repealed all prior statutes regarding bills and notes, and provides by section 320 thereof as follows: "A negotiable promissory note within the meaning of this act is an unconditional promise in writing made by one person to another signed by the maker engaging to pay on demand or at a fixed or determinable future time, a sum certain in money to order or to bearer. Where a note is drawn to the maker's own order, it is not complete until indorsed by him." The note, unless indorsed by the defendant, was therefore incomplete, and the failure of the complaint to allege such indorsement rendered it demurrable. Odell v. Clyde, 53 N. Y. Supp. 61, 62. Interlocutory judgment of January 3, 1908, reversed, and demurrer sustained, with costs, with leave to the plaintiff to amend the complaint within five days upon payment of said costs. Costs of one party to be offset against those allowed the other. All concur. § 320 3. NON-NEGOTIABLE NOTES. SMITH v. KENDALL, EXECUTOR. 6 TERM REPORTS, 123. 1794. - ASSUMPSIT on the following instrument, given by defendant's testator: Three months after date I promise to pay to Mr. Smith, currier, 401, value received in trust for Mrs. E. Thompson, as witness my hand. 25 June, 1787. L. ASKEW. The action was commenced September 26, 1793. Defendant objected that the instrument was not a promissory note within the |