If a demurrer had been interposed in the court below, to the couut complained of as showing no cause of action, it would have availed nothing, as the material averment is, that the note was presented at the time when it was due and payable according to its tenor and effect. It was, according to its effect, payable on the 4th day of November, and therefore, the averment, under a scilicit, that it was presented on the 3d of August, is repugnant and cannot vitiate. This was the precise point decided in Bynner v. Russel, [1 Bing. 23,] and to the same effect is Jackson, adm’r v. Henderson, [3 Leigh, 196.] This disposes of the entire question; for if the defendant could have no advantage of the mistake on demurrer, and could not prevent the note, properly protested, from going to the jury, under this averment, he certainly cannot now be heard.
Let the judgment be affirmed.