
    * Daniel Tower versus Isaac Durell.
    In an action against an endorser of a promissory note, evidence that the defendant has said that the maker of the note had inforrped him that payment had been duly demanded of him, is not evidence that such demand has been made.
    Where an endorser of a promissory note believes a demand to have duly made on the maker, and that notice has been duly given to himself, and, believing himself therefore liable, takes measures for his indemnity, this will not excuse the holder from proving a regular demand and notice.
    This action was assumpsit against the defendant, as endorser of a note made by George Jackson, dated the 12th of February, 1810, by which he promised to pay the defendant, or his order, 358 dollars 44 cents in eight months after date. The plaintiff avers in the declaration, that the note fell due on the 13th of October, 1810, and that a demand was made on the maker of the note, and notice given to the defendant on that day.
    The cause was tried on the general issue, before Thatcher, J., at the last March term in this county; and a verdict found for the plaintiff, subject to the opinion of the Court on the evidence as reported by the judge.
    
      It appeared that on the 12th of October a written notification, in which it was stated that the note had fallen due and was unpaid, was left at the dwelling-house of the defendant; but the witness who was the bearer of the notification, did not carry the note with him to the defendant’s house, to receive payment thereof. Three days afterwards, the same witness had a conversation with the defendant, who admitted that he considered himself liable by reason of said notice, and stated that the maker of the note had informed him that payment had been duly demanded of him. It was m evidence that the defendant had taken from the maker of the note, after it fell due, an assignment of a suit then pending against one Hunneman, to indemnify him for his liability on the note ■ declared on in this case; but he had not yet derived any benefit from that assignment, the said suit being still pending at the time of the trial. It was also proved that the defendant had received part of the rent of a house belonging to Jackson, towards his indemnity for the said endorsement.
    When the cause was called up at this term, the counsel for the defendant was not present, but
    * The Solicitor-General,
    
    for the plaintiff, argued in support of the verdict, and contended that the demand was made and notice given on the proper day ; and for this he cited the case of Henry vs. Jones. 
       But the facts showed a waiver of a demand and notice, the defendant having taken security for his indemnity against his liability. 
    
    Aylwin,
    afterwards coming into Court, argued thus for the defendant : The undertaking of the endorser of a note is conditional only. It is therefore incumbent on thé holder of the note to prove that he has strictly performed the condition upon which the endorser consented to become liable. 
    
    No demand on the maker is proved in the case at bar, previous to the notice to the defendant. This was the precedent condition, which ought to have been performed. The confession of the endorser, that the maker of the note had acknowledged a demand upon him, cannot avail the plaintiff. This was not that evidence which the holder of the note must adduce to establish his right to recover. It was, in fact, mere hearsay.
    To the general rule requiring notice there are but two excep-j tians—the first, where the endorser knew the maker to be insolvent at the time of the endorsement;  the second, where the endorser, prior to the maturity of the note, receives security, oi takes an assignment of all the maker’s property, as in Bond & Al. vs. Farnham, cited by Mr. Solicitor. But the case at bar falls within neither of the exceptions.
    Upon the belief of the fact that a demand had been regularly made on Jackson, the promisor, the defendant conceded that he was liable, and attempted to obtain an indemnity for the loss he was apprehensive of sustaining; but as the fact did not exist, such an attempt, after the maturity of the note, to exonerate himself from' a burden he supposed himself liable to, would not render him chargeable, if otherwise he was not.
    
      
       5 Mass. Rep. 453.
    
    
      
       5 Mass. Rep. 170, Bond & Al. vs. Farnham.
      
    
    
      
       4 Cranch's Rep. 141, French vs. Bank of Columbia.
      
    
    
      
       2 H. Black. 336, De Berdt vs. Atkinson.
      
    
   By the Court.

In this case, it has been contended, for the plaintiff, that there was sufficient evidence of a demand * on the maker of the note. But the only evidence of the fact was the confession of the defendant, not of the fact, but that the maker of the note had informed him of the fact. Now, that declaration of the maker, if it had been made in open Court at the trial of the cause, would not have been evidence of the fact. Certainly, then, it cannot be evidence, when produced in this circuitous manner.

Then it was urged that the defendant had waived his claim of a demand and notice. We have decided, in Bond & Al. vs. Farnham, which was cited by the Solicitor-General, that if the maker of a promissory note, before the note becomes- due, assigns all his property to his endorser, this latter is to be considered as waiving a demand and notice. But it would be going too far, to say that an endorser, who, supposing a regular demand and notice to have been made and given, and believing hitnself chargeable, takes measures for his indemnity against his supposed liability, becomes thereby chargeable. The verdict in this case must be set aside, and a new trial granted, 
      
      
         [Vide in note, Crosser vs. Hutchinson, ante, 205. — Ed.]
     