¶1delivered the opinion of the court.
¶2Miller redeemed from Crouch a tract of land which had been sold as the property of Redford. Crouch insisted that in addi*587tion to the sum bid at the sale, filler should take up a note on Redford, payable to one Porter^and endorsed to Crouch. To this Miller agreed, provided Crouch would refund the money, should it turn out that Miller was not legally bound to pay this note in order to redeem the land. To this Crouch agreed, and Miller took up the note. This suit is brought for the amount so paid.
¶3It is not pretended that Miller was bound to take up the note in order that he should be entitled to redeem the land; but it is insisted, that while he held the note it fell due, and that he failed to demand payment of Redford, and notify Porter the endorser, whereby Porter is discharged, and a loss to Crouch of the debt has thus accrued by Miller’s laches; for which he is liable in damages; the amount of which should be allowed him by way of recoupment in this action. This is no case for recoupment of damages. The cases of recoupment where a party has sustained injury by reason of the non-performance of a cbntract, and the party thus failing to perform comes into court to recover so much as he may deserve to have for his partial performance, have no analogy to the present case. 1 Cow. R. 359; 3 Hump. 56.
¶4It is not necessary to enquire whether Miller is liable for failing to make demand and give notice in this case, in any form of proceeding. It would be difficult to fix upon him that duty, by reason of the contract between the parties as set forth in this record.
¶5Affirm the judgment.