An indorser who protects himself by receiving security from the principal debtor, the maker of the note, or from a prior indorser, waives his right to demand and notice,1 provided the security is sufficient to cover his contingent liability,2 or provided the security is the whole estate of the indorser whether it bo sufficient or not.3 Or if the note is secured by a mortgage or pledge of property of the maker, and the indorser takes the property from the maker, agreeing to take care of the note, he waives thereby demand and notice;4 or if the indorser takes property of the maker, and as the price thereof agrees to pay the note, he likewise binds himself by waiver.5 If the indorser holds, however, security to which he is entitled not by virtue of a transfer to cover his liability, he does not waive his rights.6 The limitations upon this rule are that the indorser agree to the transfer to himself;7 that the transfer must either be of the whole estate of the maker or of sufficient property to cover his liability,8 and that the transfer was made to cover the particular claim, and not all his claims in the aggregate against the maker;9 and finally, that the security be given while the indorser's liability continued.10 If he had already been discharged by a failure to give him notice, he may take security with impunity. It seems that if the assignment is to a third party in trust to pay the indorser and others, there is no waiver.11 But an assignment of all the maker's property to a trustee for the purpose of paying all the debts of the maker ought to be equivalent to a waiver, since the theory of this rule as to indemnity is that the indorser has no remedy over against the drawer.12 The whole rule is illogical, but since it is established it ought to be consistent. Since the indorser, under the rule, is entitled to all the property of the maker, where the indemnity is insufficient, a transfer to the indorser of part of the maker's property, if it be insufficient to cover the indorser's liability, is not a waiver, although it should turn out to be all the property of the maker at maturity.13 The taking of indemnity was in one court construed to be a provision against a liability, provided the liability should be fixed by demand and notice.14

1 Stephenson v. Primrose, 8 Port. 155; Mead v. Small, 2 Me. 207; Lewis v. Kramer, 3 Md. 265; Walker v. "Walker, 7 Ark. 542; Barrett v. Charleston Bank, 2 McMul. 191; Durham v. Price, 5 Yerg. 300; Beard v. Westerman, 32 Ohio St. 29. But see Woodbury v. Crum, 1 Biss. 284; Woodman v. Eastman, 10 N. H. 359; Kramer v. Sanford, 4 Watts & S. 328: Seacord v. Miller, 13 N. Y. 55. Contra, Whittier v. Collins, 15 R 1.44. The rule applies as against a prior indorser in favor of a subsequent indorser. Walker v. Walker, 7 Ark. 542; Duvall v. Farmers' Bank, 9 Gill & J. 31.

2 See cases in preceding note and Burrows v. Hannegan, 1 McLean, 309; Spencer v. Harvey, 17 Wend. 489; Brunson v. Napier, 1 Yerg. 199; Marine Bank v. Smith, 18 Me. 99.

3 See cases in two preceding notes and Mechanics' Bank v. Griswold, 7 Wend. 165; Coddington v. Davis, 3 Denio, 16, 1 N. Y. 186; Barton v. Baker, 1 S. & R 334; Bank of South Carolina v. Meyers, 1 Bailey, 412. See Moses v. Ela, 43 N. H. 557; Woodbury v. Crum, 1 Biss. 284.

4 Armstrong v. Chadwick, 127 Mass. 156. But see Coghlan v. Dinsmore, 9 Bosw. 453.

5Whitridge v. Rider, 22 Md. 548; Andrews v. Boyd, 3 Met 434 Or if he receives property upon an agreement to pay the note. Wriglit v. Andrews, 70 Ma 86; Ray r. Smith, 17 Wall. 411.

6 Cruger v. Luedheim, 16 S. W. R 420 (Tex.).

7 Holman v. Whiting, 19 Ala. 703.

8 See notes 1, 2 and 3, supra.