
    Crain against Colwell.
    Where the holdceived part payket"of°the notej and^'efore calling on the en-held that the enrlorsor was discharged; and a Cyle’nZ k'nowiedge^of'a inaker*1 and due notice to the endorsor, was not binding.
    IN error, on certiorari, from a justice’s court,
    
      Colwell sued Crain, as endorser of a promissory note, given by one Gillet to him. 'After the note was negoRated and had become due, the plaintiff received part of Qf the maker. Three months after it fell due, and a few days after the maker had absconded, the plaintiff de- ; manded thq£ balance of the defendant, who said, he would “ turn o,ut notes, though he did not think he was holden, since Gillet went away.” The plaintiff refused t^le notes. -jfAt a subsequent time, the defendant refused to „jve tijem to the plaintiff. There was a judgment ° 1 J for the plaintiff.
   Per Curiam.

Crain was not holden as endorser. There was no proof of a demand on the maker, and notice of non-payment to Crain, as endorsor. As the holder had received part payment of the maker, after the note fell due, and two months before he called on the endorser, it is to be presumed that he looked solely to the maker, and gave him credit. This was also £t discharge to the endorser. Nor was the promise by the endorser binding, unless upon the terms prescribed, which were refused. It does not appear that the promise was made under a knowledge of the want of a due demand on the maker, and due notice to him ; and if he had such knowledge at the time, the promise was conditional, and not binding, except upon the terms imposed. The judgment below must be reversed.

Judgment reversed.  