
    Austin & Haines Pl’ffs in error v Blue Def’t. in error.
    To make a note ‘'negotiable," within the meaning of the Gth section of the act concerning bench and notes, (R. C 1¡.3£, p. 104,) it, musl contain the c ords “for value reco/vod, negotiable and payable without dofalcation.” It is not sufficient that it contain the words “for value received, without defalcation.’’
    Error to Marion County.
    
      U. Wright for Plt’ffs in Error.
    
    1st. The instrument sued on is not a negotiable note, under ouy law, for lack of the words negotiable and payable..
    
    2nd. Kit be a negotiable instrument, then the defendant;; could not be made liable in the summary mode of declaring by petition in debt, but only as in the case of a bill of exchange.
    3rd. If the note declared on he negotiable, still the de-fence set up in the 3rd and remaining pleas is prima facia valid, and it was the duty of the assignee to reply that he was the innocent holder or purchaser in the fair course of tiade. If he wished to avoid the legal effect of the ground set up in the defence. R. Code 1835 p. 105.
    
      To make a note “negoti-o¿&,” within the meaning efthe 6th see. of the act concerning' tonda and notes, (It. C. 1833, p 304,) it must contain the words “ or' a lue rec.iveu, negotiable and payable without defalcation ” It is not sufficient th.it it contain the worth “for valus received, without defalcation.”
    
      
      T. L, Anderson for Deft.
    
    1st. The instrument sued on, contain” all the requisites of the statute of this state, to place it on a footing with an inland bill of exchange, see 1 vol. sta. Mo. p. 105, sect. 6 and 7 under the head of bonds and notes.
    2nd. The pleas are bad: Bylos on bills, p. 40, 52, (2. Ed.) Chitty on bills, p 100, h., 100, m. Chitty on bills, -.th American edition p. 90.
   Opinion of the Court- delivered by

Tompkins Judge.

Blue sued Austin and Haines by Petition in debt, on the following note: Oct. 15,1836. Twenty four months after date, we promise to pay William Muldrow or order seven hundred dollars for value received without defalcation, John W. Austin Sidney P. Haines.

This note was assigned to plaintiff. The defendants plead 1st, nil debit. 2nd, no assignment. 3rd. fraud in obtaining the note, by the assignor. 4th, a special plea of fraud. 5th. Total failure of consideration, and 6th, no consideration. 'The plaintiff took issue on the first and second pleas, and demurred to the remainder, and the demurrer was sustained by the court.- The issues were found for plaintiff and he had judgment. The only question before this court arises on the.demurrer. If the note sued on be not a negotiable note, within the meaning of the 6th section of our statute, the demurrer was improperly sustained. In the act concerning bonds and notes, found at page 104, of the digest of 1835, the legislature have defined, what shall, in Missouri, be negotiable paper; in the 6th section of that act, they say, that every promisf ory note for the payment of money, expressed on the face thereof to be for “value received” negotiable and payable “without defalcation,” shall be due and payable as therein expressed, and shall have the same effect, and be neggotiable in like manner, as m inland bills of exchange. It is to be remarked that the words “or order,” are not to be found in this section. By the law merchant those words, or others equivalent, are necessary to make promissory notes negotiable.

The words, negotiable and payable without defalcation, inform the holder, notwithstanding the maker may have paid the payee, as in cases of inland bills of exchange. This note then not being negotiable under our act, the maker has the same defence against the holder which he could have had against the payee. The circuit court then committed error in sustaining the demurrer to the pleas of the defendant, and its judgment is therefore reversed,  