— The note sued on, being payable in bank, is by statute governed by the rules of the iaw merchant — (Aik. Dig. 329, s. 11.)
It was not necessary to sue the maker to insolvency, in order to enable the holder to maintain a suit against the endorser, as is required by the same statute, when the note is not payable in bank. ^
*348The other objection is equally unsustainable. The consideration of the note was shewn to be property or effects belonging to the estate, of which the defendant in error was the executor; and in such a case, the contract is considered as made with the individual, and he need not declare inf his representative capacity, in a suit on the contract—(1 Chitty’s Plead, 205; 2 Williams on Ex’rs, 1149.)
Such is the rule, when the action is founded on the contract of sale, but in this case the note is endorsed immediately to the defendant in error, and the suit could alone be brought in the manner it is instituted.
Let the judgment be affirmed.