being about to deliver their opinion, the plff’s. counsel moved for leave to amend the narr, which was refused, the court stating that they had never allowed an amendment in a material point after the jury were sworn.
C. J. Clayton,now delivered the opinion of the court as follows: “ The engagement of the deft, in this case to the holder was, that he would pay the amount of this note to him in case it was presented at the Bank of Wilmington and Brandywine, when it became due for payment, and a failure to pay it there, with due notice of nonpayment. The proof of these facts constitutes the liability of the deft.
The declaration should have averred that the note was presented at the bank for payment; that it was not paid, and that the indorser had notice of such demand and non-payment. This is the form of declaring, as established by the books of precedents as far as we have looked into them.
The declaration alledges a personal demand on 0. Horsey. We consider that it is in this respect substantially defective; that this defect appears on the face of the declaration itself, the note being set out in the declaration, the place where the demand ought to have been made appears on the pleadings, and we apprehend that this is such a substantial defect in pleading as that the deft, may avail himself of it on demurrer, or on motion in arrest of judgment. Instead of averring that a demand was made at the bank, the plff. alledges that it was made on 0. Horsey personally; and the question now is, whether under this allegation the plff. shall be permitted to prove a demand essentially different from his own allegation to support his action. The proofs and allegations ought to correspond.
The plff. insists that there were no funds at the bank at the time when this note became due; and, therefore, he was excused for not presenting it for payment. Whenever a party is bound to alledge any matter to be done by him to entitle him to an action, if he has any matter of excuse for not doing the act, he is bound to alledge this matter of excuse, or he will not be permitted to give it in evidence, if it is objected to at the time. Here, before the plff. could entitle himself to an action he should have presented the note at bank for payment; or, if he meant to excuse himself for not presenting it according to this legal obligation, he should set out the matter in his declaration, which he relies on as an excuse, that the court may judge of its sufficiency. When this note became due, had it been presented at the bank for payment, and there had been a failure to pay, and due notice had been given to Mr. Cooper, he would have been liable to the plff. But in an action founded on these facts, it is necessary to state the facts as they exist. So if 0. Horsey had no *16funds in the bank at the time the note became due, as the bank was the holder of the note, it might not be necessary to make a formal presentment and demand, and the mere circumstance of its appearing from the books of the institution, that there were no funds there to meet the note, would in law excuse the formal presentment and demand; but when this matter is intended to be relied on as an excuse, such matter should appear on the face of the declaration, or the plff. is not at liberty to prove it. As the plff. has not averred, either a demand at the bank, or any matter in excuse for not making such demand, but has relied in his declaration on a personal demand on 0. Horsey, we consider that he is not at liberty, under this declaration, to prove any other species of demand or excuse than that which he has chosen to rely upon himself, and of course a nonsuit must be entered.”
Layton and Wales for plff. Bayard and Rogers for deft.The Chief Justice also added:—
It is not necessary therefore, to give any opinion on the other points started by the deft, although there is one on which I have a strong opinion, and that is, that it appears from the proof, that demand was made either on the day before or on the day after the last day of grace. The note of the notary on the back of the note is “noted on 21st.” on the certificate, he says demand was made on the 23d. Now the last day of grace was the 22nd. We, however, give no opinion on this point.
I must be permitted to say a word as to the case of Nicholls vs. Webb, in 5th Wheaton, so far as it is considered an authority to establish the point that the entry on the record of a deceased notary’s book “that due notice was given to the indorser” is to be taken as proof that legal notice was given. The book I would hold as evidence of all the facts it gives as to the time, manner, &c., of notice, by reason of his death. If we go further, we make the notary the judge of what is legal notice to fix the indorser. Now what is legal' notice is a question of law for the court, and not for the notary. He should note the facts; when he gave notice; to whom; the mode, &e. These are facts, and his record would be sufficient to prove them; but the conclusion of law, whether it is due notice or not, is for us to decide, and not him. if the case in Wheaton goes as far as it appears it did go, it has not my approbation as sound law.
The plff. was nonsuited.