*608The opinion of the court was delivered by

By our former statute, under which this note was made, the maker of a note, when sued by an in-dorsee, could make the same defence as if sued by the payee, and that law must govern this case. The note of Rich and the contract of Jordon, made at the same time and concerning the same subject matter, constitute one contract. By that contract, whenever Rich gave up the deed from Jordon, or re-deeded, it was in satisfaction of the note. As soon as Rich was notified that his note was in the hands of Heywood, for Dewey, and, within a reasonable time after receiving his deed from Jordon, he elected to abandon the contract and offered to give up the deed, or to re-deed or quit claim; then and ever after, insisting on his right so to do. This was his right and if he did all that could reasonably be required of him, it should be held sufficient. What more could he have done ? He offered to deed to the holder of the note, and it was declined. Jordan had absconded, and the offer could not be made to him. If the holders of the note wanted more done, they should have demanded it, or at least intimated or suggested it' to Rich. Rich could indeed have made and procured to be recorded a deed from him to Jor-don ; but it would have been inoperative, as Jordon was not here to receive its delivery. The making and tendering a deed to the holder of the note was a useless formality, as Rich was informed that it would not be received.

It is however insisted, that, by subsequently procuring the deed from Jordon to be recorded, Rich waived his right to rescind or abandon the contract. In order to waive any right, the party must do something which is inconsistent with the right, and not otherwise to be accounted for. For example, had Rich conveyed to another what he received by the deed from Jordon, or, possibly, had he entered on its beneficial use and enjoyment and long held the same, that would have been inconsistent with abandonment. But his procuring the deed from Jordon to be recorded might have been necessary to secure the property for the holders of the note, against the attachments of other creditors of Jordon. At any rate, it did not remove the property from Rich nor deprive him of the power to re-deed and was no way inconsistent with his claim and right so to do.

*609It is further insisted that there was testimony tending to show a fraudulent design between Rich and Jordon to defraud others, which should have been left to the jury. The only circumstance relied on, however, consists in the giving of a negotiable note. That, however,Jto men who were then acquainted with the existing law, was of no weight. All then knew that negotiable notes were subject to all the defences of non-negotiable paper, and therefore they tended to no deception. They required, in the purchaser thereof, the same diligence and inquiry of the maker as is now required of the purchaser of non-negotiable claims, or negotiablejnotes un-current or long overdue.

Judgment affirmed»