#### O.G. Start *v.*T.L. Tupper.

January Term, 1908.

Present: Rowell, C. J., Tyler, Munson, and Watson, JJ.

Opinion filed March 2, 1908.

*Bills and Notes*— Checks—Indorser—Liability—Holder’s *Default of Seasonable Presentment and Notice*— Effect.

The considerations on which the holder of a check drawn without funds is permitted, as against the drawer, to excuse his failure seasonably to present it for payment, are not applicable to an indorser.

An indorser’s liability is impliedly conditioned on prompt presentment and notice of nonpayment, and failure therein will discharge him, regardless of whether presentment in due course would have been ■availing.

In default of seasonable presentment and notice, an indorser of a check drawn without funds can be charged only by affirmative proof that he knew when he passed the check that there were, or would be no funds in the bank to meet it.

*20Assumpsit against defendant as indorser of a cheek for $110.74. Plea, the general issue. Trial by jury at the September Term, 1907, Franklin County, *Miles,*J., presiding. The defendant rested, without offering evidence, and moved for a verdict. Motion overruled, to which the defendant excepted. Whereupon the plaintiff moved for a verdict on the ground that the defendant was not damaged by the plaintiff’s neglect seasonably to present the check for payment. This motion was granted, and a verdict directed for the plaintiff for the face of the check, with interest and costs. The defendant excepted. The opinion sufficiently states the case.

*Tupper & Start*for the defendant.

The evidence shows negligence on the part of the plaintiff, in not presenting and forwarding the check. The rule is well settled that negligence of the plaintiff relieves an indorser. The check was good at the time plaintiff received it and was good for two days after. Pie held the same at his own risk. 5 Am. & Eng. Enc. Law, (2nd ed.) 1040, 1045; *Gregg & Co.*v. *Beane,*69 Yt. 22.

*Lee S. Tillotson*for the plaintiff.

Munson, J.

On the 22d of August, 1906, the defendant, the payee of the check in suit, delivered it to the plaintiff, duly indorsed, in payment of a preexisting indebtedness of less amount, and received the difference in cash. The check was dated August twentieth, and was drawn on a bank in Melrose, Mass. The plaintiff held it six days before forwarding it for collection. It was presented and protested for want of funds September fourth. August twenty-fourth was the last day on which payment would have been made. The case states that the defendant is sued as indorser.

Most of the facts, including those above recited, were shown by an agreed statement. The evidence before the jury was with reference to what “the usual commercial way now in use” required of the bank through which the check was forwarded, and-when the cheek would have been presented for payment if it had been received by the collecting bank on the twenty-third *21of August, and been forwarded in tbe way required. Several exceptions were taken to the admission and rejection of testimony. Tbe defendant rested without offering evidence and moved for a verdict, and bis motion was overruled on tbe ground that tbe defendant was not damaged by tbe plaintiff’s neglect, inasmuch as tbe check would not have been paid if forwarded in due course. Tbe plaintiff then moved for a verdict on tbe ground indicated, and a verdict was ordered accordingly, to which tbe defendant excepted.

It is not necessary to consider tbe exceptions relating to tbe evidence. Tbe agreed statement shows a failure to forward in due course, and this is decisive of tbe case presented. Tbe considerations on which tbe bolder of a check drawn without funds is- permitted to excuse bis neglect as against tbe drawer, are not applicable to an indorser. Tbe drawer is presumed to know tbe insufficiency of tbe fund, while tbe indorser is entitled to rely on its sufficiency. Tbe drawer is tbe one primarily liable, and prompt presentment and notice of non-payment may enable tbe indorser to secure himself. Tbe indorser’s liability is impliedly conditioned on this being done, and a failure therein will discharge him, even though presentment in due course would have been unavailing. In default of presentment and notice, an indorser can be charged only by affirmative proof that be knew when be passed tbe check that there were or would be no funds jn tbe bank to meet it. Daniel Neg. Inst. §§ 1587, 1596, 1646; *Humphries*v. *Bicknell,*Litt. 297; *Carroll*v. *Sweet,*128 N. Y. 19; see *Nash*v. *Harrington,*2 Aik. 9.

*Judgment reversed and cause remanded'.*