
    Alton, Dewy & Tailor vs. Mary Robinson, Ex’x.
    If the holder of a promissory note wish to render the estate of a deceased tes* tator liable on his endorsement, he must give notice of his intention to look to the estate for payment, as in other cases, though the executor of the estate be the maker of the note.
    D. Vaught executed a bill single to Thomas Robinson, binding himself to pay him $3149 85. Robinson endorsed the instrument to Alton,Dewy & Tailor,and died before the maturity of the same. Vaught, the maker of the note, and Mary Robinson, were appointed executor and executrix of the will of Robinson, and Vaught was co-executor at the time of the maturity of the obligation, but renounced, and was released, before this action was commenced. No demand was made, or notice of default given, for some five or six weeks after the bill single fell due.
    Alton, Dewy & Tailor instituted an action on the case in the circuit court of Tipton county, on the 23d May, 1839, against Mary Robinson, sole executrix, on the endorsement of Thomas Robinson, deceased.
    The cause was submitted to the jury on the plea of non-assump-sit, and the court, Dunlap, judge, presiding, charged the jury, that regular notice was required by law to have been given to executor and executrix, as in other cases, that the plaintiffs intended to look to the estate of Thomas Robinson, deceased, for the payment of the bill single, and that the fact that Vaught, the maker of the note, was executor at the time the notice should have been given, did not dispense with the notice.
    The jury rendered a verdict for the defendant. A motion was made to set the same aside, which was overruled, and judgment rendered. The plaintiffs appealed in error to this court.
    
      H. G. Smith, for plaintiffs.
    The facts are: D. Vaught made his single bill, payable to Thomas Robinson, who endorsed it to the plaintiffs. Before the maturity of the bill, Robinson died. His will made Vaught and Mary Robinson his executor and executrix. The bill was not presented for payment, and notice of default given, until five or six weeks after it fell due. At the time of the maturity of the bill, Vaught was an acting executor on the estate of the deceased. Subsequently he resigned his office of executor, and this suit was brought against the defendant Mary Robinson, alone, as executrix of Thomas Robinson the endorser.
    
      The court directed the jury, that the plaintiffs ought not to hatfe a verdict, unless they showed that payment of the bill was demanded of Vaught on the day it fell due..
    Neither demand of payment, nor notice of default was necessary to fix the liability on the endorsement.
    Demand is immaterial, where notice of default is unnecessary. The object of demand and notice, is to afford the endorser an opportunity to obtain security from those persons to whom he is entitled to resort for indemnity. 3 Kent Com. 105. Such object does not exist where the maker and endorser is the same person. The reason of demand and notice failing, the necessity fails.
    This is clear, where the maker and endorser is the same person, and liable in both characters in the same right. It seems equally ■elear where the maker is at the maturity of the note the executor -of the endorser. As maker he is in default without demand; as executor of the endorser he is apprised of the default without notice. To demand payment of Dan Vaught sui juris for the purpose of apprising him as executor of the default, to enable him as executor to obtain indemnity from himself as maker, is absurd in the statement, and would be nugatory in fact.
    The result does not appear to be varied by there being a co-executor joined with the maker. Demand of payment of one of several joint makers, and notice of default given to one of several joint endorsers, is sufficient to fix the liability ofall the endorsers. Byles on Bills, 166: 3 Kent Com. 105. And so demand of, and notice to one of several persons composing a co-partnership is sufficient; ibid. And, so, if one of several drawers be also acceptor, notice to the other drawers is unnecessary. 1 Camp. 82, 404: 12 East, 317, 322, 323: 1 M.&S. 259: Ch. on Bills, 370.
    The resignation of the executorship by Vaught subsequent to the maturity of the note, is immaterial. The liability of the representatives of the endorser being once fixed, cannot be discharged by a change of the persons forming the representative character.
    On a subsequent day, Mr. Smith said:
    As late as the last edition of Chitty on Bills, no judicial determination had been made in England, that notice of default of payment was necessary to be given to the executor of an endorser Chitty on Bills, 529, n. k. Nor can I find any American decision to the same point. 17 John. B.ep. referred to by Chitty, does not decide this.
    
      Chitty and other elementary writers say, that notice to the executor of the endorser is necessary. And this is reasonable.
    Co-executors are regarded in law as an individual person. They have a joint and entire interest in the testator’s effects which is incapable of being divided, and in case of death such interest vests in the survivor. Tol. on Ex’rs, 243.
    Each executor has the control of the estate, and may release, pay or transfer without the agency of the other. Per Kent, II John. Rep. 21.
    The sale or gift of one, is the sale or gift of all. 2 Williams on Ex’rs, 621.
    
    • These cases and principles show the unity of character of several executors.
    
      J. W Harris, for defendant.
    If payment is not made upon demand of the maker, and notice given to endorsers, they will be discharged from their liabilities. Chitty on Bills, 465.
    If the endorser be dead, notice should be given to the executor or administrator. Chitty on Bills, 369, top page: also page 529: 17 John. Rep. p. 25.
    It is incumbent on the holder to prove distinctly, and by positive evidence, that due notice was given to the party sued, and this cannot be left to inference or presumption. Chitty on Bills, 511, top page. •
    And the endorser is entitled to notice, although the drawer and acceptor are fictitious. Chitty on Bills, bottom page, 529.
    The endorser is entitled to strict notice. 20 John. Rep. 20.
    The death, bankruptcy, or known insolvency of the drawer, or his being in prison, constitute no excuse, either in law or equity, for the neglect to give notice of non-acceptance or non-payment, &c. And it is not competent for the holders to show that delay in giving notice was not prejudicial. Chitty on Bills, 360.
    Notoriety of the insolvency of the drawer, as in the case of bankruptcy, constitutes no cause for the neglect of the holder to give notice of non-acceptance to drawer and endorsers; and it appears to have been considered, that such notice must come from the holder, and that it will not suffice, if it comes from any other party, because the object of the notice is not merely that the parties may immediately call on those who are liable • to them for indemnity, but it must import the holder intends to stand on his legal rights, and resort to them for payment; and, therefore, where the drawer having notice before the bill was due, that the acceptor had failed, gave another person money to pay the bill, and the holder neglected to give notice of the dishonor, it was holden the drawer was discharged. Chitty on Bills, 368, bottom page. See Chitty on Bills, 530, and in note (†).
   Reese, J.

delivered the opinion of the court.

The only question in this case is, whether if the maker of a note, at the time of its maturity be the executor of the endorser, the holder is bound, in order to make the estate of the testator liable, to demand payment of the maker, and upon his default, to give him notice as executor, that he will look to the estate of the testator for payment. And we think it very clear that such notice is necessary. It is argued that the executor in such cases knows that he as maker has not paid. Certainly he does. But he does not know that it is the purpose of the holder to resort to the estate of his testator for payment. There is but one mode in which, according to law, knowledge of this can be brought home to him; namely, the usual notice from the holder. In ordinary cases, personal knowledge on the part of the endorser, that the maker has made default in payment, will not supply the want of the notice required by the law merchant; neither will it in this case: knowledge is not notice. For it is held, that the endorser is entitled to notice, although the drawer and acceptor are fictitious. Chitty on Bills, 529. So the death, bankruptcy, notorious insolvency, or the being in prison of the drawer or maker, constitute no exemption to the holder from the necessity of giving notice to the endorser of the default of such drawer or maker. That no injury was produced by the want of notice, and no indemnity attainable, if it had been given, can furnish no proper ground for its omission; and the reason is this: the endorser is not directly liable on the mere ground of his having endorsed. The law creates for him a conditional liability, and implies a contingent promise, that if default be made by the maker, and due notice of such default be given to him, he will pay. Notice, then, is an element in this implied contract, as important as the default itself; both must exist, or the endorser, not directly and primarily liable on his endorsement, never becomes so by operation of law. For these reasons, we think there is no error in the judgment of the circuit court, and we therefore affirm it.  