delivered the opinion of the court.
The plaintiffs, as indorsees of several promissory notes made by W. R. Hornsby and payable to F. M. Wallace, sued Wallace as indorser on said notes, and, as an excuse for the want of a presentment of the notes to the maker, Hornsby, for payment, and of notice to Wallace, the declaration alleged that when said promissory notes became due and payable said “Hornsby had long since departed this life, intestate and insolvent, and without a residence in Washington county, and leaving no personal *278or legal representative ’ ’ to whom a presentment of said notes could be made. There was proof on the trial that Hornsby was dead, but there is not a scintilla of evidence that he left no domicile in Washington county, or had no personal representative. A peremptory instruction was given for Wallace. The contract of the defendant as indorser was conditional—i. e., he was bound to pay the notes to the holder, on notice of nonpayment by the maker, if duly presented to him. And where the holder has not alleged presentment and notice, he must allege some excuse therefor. Chitty on Bills, 576. The plaintiffs alleged a good excuse for want of presentment and notice, but they offered no legal evidence of such excuse. Chitty on Bills, p. *24:1, note Í; lb., *576 ; Story on Prom. Notes, secs. 253, 254:. We think that Wallace was discharged of his contract, and that the jury were rightly instructed.
Affirmed.