
    Planters’ Bank vs. White.
    1. Notice of the non-payment of a note, the endorser being dead, should be transmitted to his personal representative.
    S. Where the notice was duly transmitted to the usual place of residence of the endorser, under the belief that he was alive, when in fact he was dead: Held, that such notice was sufficient.
    On the 11th day of March, 1839, Moses P. White executed his note to A. M. White, for the sum of $2,100 28, payable four months after date, at the Planters’ Bank. A. M. White endorsed and delivered this note to Douglass, Wood & Co.; and Douglass, Wood & Co. endorsed and delivered it to the Planters’ Bank. Before it fell due, to wit, on the 22nd day of May, 1839, A. M. White died, and on the 24th, notice of his death was published in the Franklin Review, a newspaper published weekly in the town of Franklin, Williamson county, of which, thirty numbers were taken in the town of Nashville, and a copy of the paper was taken also by Watson and Gibson, Watson beingthe President of the Planters’ Bank. On the first Monday in June, 1839, Susan White took out letters of administration upon the estate of her deceased husband, A. M. White. At the maturity of the bill single it was protested for non-payment, and Alpha Kingsley, notary public, deposited a notice of the demand and protest, on the 13th day of July, 1839, (the 14th, the regular day of notice, being Sunday,) in the post office at Nashville, directed to A. M. White, Franklin. The administrator resided at the mansion •house of the deceased in the town of Franklin. The Notary did not know of the death of White, and it does not appear by any direct proof that the Bank knew of his death. The intercourse between Nashville and Franklin was constant and his death might have been ascertained at any time.
    The Bank instituted an action against M. P. White and Susan White, administratrix, in the circuit court of Williamson county, on the 20th day of February, 1840. The defendant, S. White, pleaded “non assumpsit” and “no notice:” upon these pleas issues were joined and the cause was submitted to a jury upon the above facts, at the November term, 1840. Judgment passed against M. P. White by default.
    The presiding judge, Maney, charged the jury that the undertaking of an endorser was conditional, not absolute; that to hold the endorser liable it was incumbent on the holder to show that demand of payment was made at the time the note fell due, at the place designated in the note for payment, and that notice of nonpayment was given within reasonable time, and that proof of the notice being sent to the post office nearest the residence of the endorser was sufficient. The court further charged the jury that if the note was endorsed by A. M. White at the time it bears date, notice should have been given on the 14th July, but if the 14th of July was on Sunday, then notice should have been transmitted on the 13th; that the law did not impose on the holder the necessity of enquiring whether the endorser was dead or alive; but if White was dead and letters of administration were taken out upon his estate before the obligation became due, and these facts were known to the holder, then it was incumbent on such holder to give notice to his administratrix. If, however, the ad-ministratrix received notice, although directed to the intestate, it would be sufficient.
    The jury rendered a verdict for plaintiff for $2,274 87. A motion was made to set this verdict aside, but it was overruled and. judgment rendered for the plaintiff. The defendant appealed in error to this court.
    
      Alexander, for plaintiff in error.
    A. Ewing, for defendant in error.
   GReen, J.

delivered the opinion of the court.

The intestate of the plaintiff in error, Abram M. White, .was the first endorser, on a note for $2,100, drawn by Moses P. White and payable at the Planters’Bank the 11-14th of July, 1839, and dated the 11th of March preceding. A. M. White, died the 22nd of May, 1839, and at the June term following, of the Williamson county court, the plaintiff in error was qualified as his administratrix.

The note was protested for non-payment, and notice thereof, addressed to A. M. White, at Franklin, his late residence, was deposited in the Post Office at Nashville in due time. The notary public, who gave the notice, knew nothing of the death of White at the time the note fell due, nor is there any evidence, that any of the directors of the Bank knew this fact.

The only question in the case is, whether the notice addressed to the endorser, after his death, is sufficient to fix his representative. There is no doubt, but that notice should be given the executor or administrator of a party who is dead. Chitty on Bills, 629. But if there be no executor or administrator, notice sent to the residence of the deceased party’s family is sufficient, (Chitty, 529, note K.) and if there be an executor or administrator, but their existence be not known to the holder, notice addressed to the endorser, at the residence of his family is sufficient. 17 John. Rep. 25-27.

The executor or administrator, having possession of the papers of the deceased endorser, and interested to know the state of his affairs, would take letters addressed to him, out of the Post Office, and thus, at least, for some months after his death, be as likely to obtain information communicated under his address, as though it had been addressed to the administrator himself. And when we consider the impossibility, that knowledge of the qualification of an administrator, should exist at a great distance from the residence of the parties for several months afterwards, it would be absurd to requre that notice should be addressed to him, whether this knowledge existed or not. To do so, would be to cripple the circulation of commercial paper, without conferring any benefit upon the the estate of the endorser.

In this case the jury have found, under a proper charge of the court, that the holder had no knowledge of the qualification of the administrator. Let the judgment be affirmed.  