held that he should have to consider the first obEg&tiom sued on as a promissory note, although he was surprised'!® find so little authority upon the question, where such instruments as this sre so common. The case of Russel vs. Whipple, 2 Cowen 135, approved in the case of Luquee vs. Prosser, 1 Hill 256, is the only ease efetóti ly in point, and it was there held that a due-bill in this item substantially, was a promissory note within the statute.
As to the obligation to the second note, it is error nof» 'to aver-den ramd of payment at the place where the note was made payable, as decided by our Supreme Court in Wild vs. Van Valkenburgh, January *180Term, 1857. A general averment of a due demand is not sufficient where a special demand is necessary.
The demurrer- is overruled as to the first cause ot action, and sustained as to the second, with. leave to amend upon payment of costs.