The great weight of authority is that the drawer or assignor or the indorser, so called, of a non-negotiable instrument is not entitled to have a demand made upon the drawee;1 but if the instrument is a promise to pay money at a day certain, there is no reason for holding that the indorser of such a document ought not to be entitled to all the rights of an ordinary indorser of a negotiable promissory note, or where the order is for money, a sum certain, words of negotiability are not necessarily required to make it a bill of exchange, and hence demand and notice ought to be necessary.2 The reason, however, doubtless is that the law as to demand and notice is a part of the law merchant, applicable to negotiable instruments as such, and ought to have no application to instruments that do not fall within this class. But there are other decisions which require such demand as to the drawer and indorser of a non-negotiable order,3 and one exception that might seem reasonable is that, if the indorsee shows that he treated the order as negotiable, then the indorser is entitled to the rights of an indorser of a negotiable instrument.4 But whether the instrument be negotiable or not is purely a matter of law, and a mistake of law is not usually held to give the man who makes it or who concurs in it any right from the standpoint of civil liabilities, unless the circumstances would amount to an estoppel. The courts which hold this rule that a demand must be shown as to the indorser of a non-negotiable order must necessarily hold the same rule as to the drawer of an order,5 but in no event ought the defense to be allowed except as to the amount of injury suffered.6 But unless the order be for money, certainly it needs no demand as to the drawer or indorser. Thus an order for lumber needs no presentment.7 And orders of public corporations issued by authority of law need no demand as against an indorser.8

21 Read v. Cutts, 7 Me. 186; Klein v. Currier. 14 III. 237; Gage v. Mechanics' Nat. Bank, 79 I11 62; French v. Citizens' Nat. Bank, 97 Ind. 211; Tyler v. Waddington, 58 Conn. 375; Claflin v. Reese, 54 Iowa, 544, semble; Adams v. Gordon, 22 La. Ann. 41; Matthewson v. Sprague, 1 R. L 8; Clay v. Edgerton, 19 Ohio St. 549; Buchner v. Liebig, 38 Mo. 188; Donley v. Camp, 22 Ala. 659; Park man v. Brewster, 15 Gray, 271; Hunger-ford v. O'Brien, 37 Minn. 306; Wright v. Dyer, 48 Mo. 525; Bloom v. Warder, 13 Neb. 476; Stout v. Stevenson, 4 N. J. Law, 178; Hough v. Gray, 19 Wend. 202; Williams v. Irwin, 3 Dev. & B. 74 (indorsers sureties by statute); Carpenter v. McLaughlin, 12 R L 270. Contra, Pierce v. Kennedy, 5 Cal. 138. But see First Nat. Bank v. Babcock, 94 Cal. 96, for present rule. Lewis v. Brewster, 2 McLean, 21; Offutt v. Hall, 1 Cranch, C. C. 534; Bradley v. Phelps, 2 Root, 325 (see Williams v. Granger, 4 Day, 444); Second Nat. Bank v. Gay lord, 34 Iowa, 246; Parker v. Riddle, 11 Ohio, 102. But see Forest v. Stewart, 14 Ohio St. 246; Sibley v. Van Horn, 13 Iowa, 209; Fuller v. Scott, 8 Kan. 25; Wheton v. Mears, 11 Met. 563; Talbot v. Gay, 18 Pick. 534; Newton Wagon Co. v. Diers, 10 Neb. 284

22 Dickerson v. DerriDgton, 39 I11. 574; Farmers' Bank v. Kercheval, 2 Mich. 504; Clay v. Edgerton, 19 Ohio St. 549; Hammond v. Chamberlain, 26 Vt. 406. See Sylvester v. Downer, 18 Vt. 32; Woodson v. Moody, 4 Humph. 303.

23Rhett v. Poe, 2 How. 457; Reynolds v. Douglass, 12 Pet. 497; Martyn v. Lamar, 75 Iowa, 235; Parkman v. Brewster, 15 Gray, 271; Johnson v. Wilmarth, 13 Met. 416; Gibbs v. Cannon, 9 S. & R 198; Sibley v. Van Horn, 13 Iowa, 209; Fuller v. Scott, 8 Kan. 25. And see cases contra, in note 21, supra.

1 Seymour v. Van Slyck, 8 Wend. 403; Ish v. Mills, 1 Cranch, C. C. 567; Huse v. Hamblin, 29 Iowa, 501; Briggs v. Parsons, 39 Mich. 400; Smith v. Barnes, 24 Ga. 442; Richards v. Waring, 1 Keyes, 576; Ford v. Mitchell, 15 Wis. 304 (a certificate of deposit held non-negotiable); Lyell v. Lapeer Co., 6 McLean, 446 (municipal order); Steel v. Davis Co., 2 G. Greene, 469 (municipal order); Pitman v. Brackenridge, 3 Gratt. 127; Sinclair v. Johnson, 85 Ind. 527. A guarantor of an order can require no notice of non-payment. Gammel v. Parramore, 58 Ga. 54. See, for the effect of an attorney's receipt, Runnells v. Spencer, 1 Miss. 362. Compare Wood v. Duval, 9 Leigh, 6.

2 An order for money, see the next note.

3 Hawkins v. Barney, 27 Vt. 392 (injury must be shown); Adams v. Boyd, 33 Ark. 33; Hart v. Eastman, 7 Minn. 74; Rhodes v. Morgan, 1 Baxt 360; Brown v. Teague, 52 N. C. 573; Henderson v. Griffin, 3 Mart. (N. S.) 403; Strader v. Batchelor, 8 B. Mon. 168; National Bank v. Gooding. 87 Me. 337. For order on an attorney, see Wood v. Duval, 9 Leigh, 6.

4 Haber v. Brown, 101 Cal. 445.