delivered the opinion of the court.

The plaintiffs in error were sued on an endorsement made on a promissory note by their testator in his lifetime. The note matured after the death of the testator, and notice was directed to him at the place of his residence. It was insisted on the trial that notice should have been given to the executors, and that it was incumbent on the holder to use due diligence to ascertain whether he was dead or living, and the court was requested so to charge the jury, which charge the court refused to give, but charged the jury that if the holder knew of the death of the endorser and could, by ordinary diligence, have ascertained who were executors, then it was incumbent on him to give notice to them, but if the holder did not know of his death, or by ordinary diligence could not have ascertained who were executors, then notice directed to Jno. A. Barnes, the intestate, was sufficient.

The charge of the court was strictly correct. The law does not *120in such cases raise a presumption that the endorser of a promissory note is dead, and impose on the holder the duty of enquiring after his executors; on the contrary, it presumes that he is living, and that the holder will be justified in acting on this presumption, unless it be shown that he knew of the death of the endorser, which showing devolves on the executors before they can object to the sufficiency of the notice. As a legal proposition it is certainly true that notice should be given to the administrator or executor of a deceased endorser, but this proposition necessarily pre-supposes a knowledge on the part of the holder, that the endorser is dead. He who objects to the sufficiency of notice which appears to have been regularly given, must show the ground of objection.

It is insisted that the proof does not support the declaration. There are three counts: the first, laying the liability and promise to pay by the testator; the second avers a liability and promise by the executors. The authority referred to in 2 Caines, 121, is directly in point as regards the first count. The promise being laid as by the testator, was not supported by an endorsement on a note which fell due after his death, but the second count, in which the promise is laid as having been made by the executors on the liability accruing after the death of the testator, by the failure of the maker to pay, is sustained by the proof, the law implying a promise, on the liability, and the notice was good under this count.

The endorsement appears to have been made after the death of the endorser, but it is said by counsel to have been done under a blank authority given in the testator’s lifetime. This was not made a point in the defence in the court below, nor is it raised in this court, but seems to be tacitly waived, and we do not therefore notice it.

The judgment must be affirmed.

A re-argument was awarded in this case, and at the present term Mr. Justice Trotter delivered the following opinion:

This cause was decided at the last January term of this court. A re-argument was ordered, and the attention of the court was called to several points not no+1'^®d in the former opinion. It was *121insisted upon the late argument of the case,' that Barnes the testator of the defendants, having endorsed the note which is sued on, in blank, and having died before the blank was filled up and dated, the authority to fill up the blank ceased at his death, and that as the date of the endorsement is subsequent to his death, it was erroneous to allow it to charge him as endorser, without further explanatory proof. It is a well settled principle, that if a person endorse his name on a note, in which a blank is left for the date, and leave it with the maker, it is an authority to put such date upon it as be pleases, and the endorser will be liable, even if it is dated before the time when the endorsement is actually made. Bayley on Bills, 146. And if a man endorse a bill with blanks for sum and date, and die before it is filled up, such previous death can form no objection to the filling up of the date or sum. Bayley on Bills, 146. 4 Camp. 97. We are therefore,, not inclined to change the former opinion on the ground of this objection.' It was also insisted that as the note in this case had in the course of negotiation returned to the hands of the maker, it could not be again put into circulation. The principle of this objection is fully recognized by the court. But the fact no where appears upon the record that this note was ever paid by Willis, the maker, or otherwise came to his possession.

It was also urged as an objection to the verdict, that it was not authorised by the issue and the proof. There are three counts in the declaration. The first and third counts allege a promise by the testator, and the second count alleges a promise by the executors. The plea denies the promise by the testator. The objection to the verdict on this ground refers to and is founded on the other objection to the sufficiency of the notice to' charge the testator. But as was before decided by this court, we think the notice good, and if so, the liability of the executors arises by operation of law. The second count was therefore sustained by the proof upon the record, and we do not feel authorised to disturb the verdict on account of any technical defect in the plea. The statute of Jeofails cures the objection.

Judgment affinfled.