dissenting:
Before the note in suit became due Mary E. Smaltz, the indorser, died, and letters testamentary were issued to Theophilus W. Smaltz, the maker. Suit was brought against him as executor of the indorser, and in his amended statement filed by leave of *155court, the plaintiff averred: “ At maturity of said note, to wit: April 29,1898, it was presented to the maker at the northeast corner of American and Cambria streets and payment demanded, which was refused, and answer made, ‘ It will be attended to.’ ” This averment is not denied in the affidavit of defense; therefore the facts averred must be taken as admitted for present purposes. The question is whether the defendant had such notice of the dishonor of the paper as the law requires in order to bind him, as executor of the indorser.
The object of notice is twofold, first, to give the indorser prompt information of the dishonor of the paper so that he may take measures for his own security; second, to warn him that the holder intends to stand on all his legal rights both as against him and the maker. For the latter reason mere knowledge is not equivalent to notice; but on principle as well as the great weight of authority the intention to hold the indorser need not be expressly asserted in the notice. When he receives notice from the proper source that the note has been dishonored he may and ought to infer that he will be held responsible. In the present case — to adopt with slight changes the language of the court in Caunt v. Thompson, 7 Mann., Grang. & Scott, 400, 411— the defendant knew that the note was dishonored, and he knew it from the best source, namely, his own personal act in refusing payment when presented by the holder; and he knew from the same source that time had not been given to the maker, and that the holder had done nothing to indicate an intention to look only to the maker. Therefore, he had all the information coming from the proper source which notice ought to convey; and knowing that, he would also know that the holder had placed himself in a situation to call upon him as executor of the' indorser for payment, from which, to adopt the view of the modern decisions, he might infer that he would be called upon. Indeed, it would not be going too far to say that he was called upon in both capacities and that when, after the paper was dishonored, he said, “ It will be attended to,” he was speaking in his representative capacity as well as for himself. “This,” to quote further from Caunt v. Thompson, “ is very different from the knowledge which has been spoken of as not being equivalent to notice, and is at least as much notice as the notice spoken of by Aldeksoe, J., in Miers v. Brown. Indeed there would be some *156absurdity in requiring that the plaintiff should have stated to the defendant at the time when he dishonored the bill: “ Take notice that this bill has been dishonored by you.’ ” See also West Branch Bank v. Fulmer, 3 Pa. 399.
The case, it seems to me, might be rested here without further discussion were itnot for the argument that the question has been ruled the other way in this commonwealth in the cases of Juniata Bank v. Hale, 16 S. & R. 157, and Groth v. Gyger, 31 Pa. 271. In those cases it was attempted to hold the defendants as indorsers upon the ground of the knowledge which they, as administrators of the maker, had or were presumed to have of the nonpayment of a note which fell .due after their appointment. It does not appear in either of these cases that demand for payment was made upon the defendants personally and that, coupled with their failure or refusal to pay was a promise to attend to the matter. There was no such unequivocal evidence of an intention on the part of the holder to stand on all his legal rights as appears in the present case. In the first case the trial judge held that neither demand of payment nor notice of nonpayment was necessary to hold the indorsers in a case where they became administrators of the estate of the deceased maker before the day of payment. This was held to be error. In the second case the note was payable at a bank and was presented there. In Magruder v. The Union Bank, 3 Pet. 87, there was neither demand nor notice prior'to bringing suit. In all of these cases there was knowledge, or presumed knowledge, on the part of the administrators of the nonpayment of the notes at maturity, but that was all. The point decided was that mere knowledge is not equivalent to notice, and this, as a general proposition, is true, but I do not think this case comes within the principle.
The amended statement filed by leave of court cured the defect in the original statement, and as the defendant filed an affidavit of defense to the latter there was no error of which he can now complain in permitting the amendment pending the demurrer.
For the reasons above suggested I would affirm the judgment. Judge O it lady authorizes me to say that he concurs in the foregoing conclusion.