The case was continued for advisement, and the opinion of the Court was afterwards drawn up by

Emery X. ■

This action is against the defendant, as indorser of a bill of exchange. A verdict has been rendered against him, and the case comes before us on exceptions. The whole evidence on the part of the plaintiff is detailed in the exceptions. In Green v. Jackson, in the county of Washington, not yet published, it was held, that an indorsee for value, or collection, possessed of a bill is regarded as a bona fide holder, unless there be evidence to the contrary, notwithstanding one or more indorsements in full, subsequent to the one to him, without producing receipt or indorsement to him of such indorser, whose name he may strike out or not as he thinks proper.

The payment of the bill by the indorsee, as stated by the Judge, to authorize him, the indorser, to maintain the action, was right.

The only question is as to the seasonableness of the notice. If we perceived the evidence that the notice was given seasonably, we should sustain the verdict, notwithstanding the turning over generally to the jury, to enquire whether “ reasonable notice had been given.”

*73The indorser, stipulating to be responsible only on the condition of due presentment and due notice given to him of nonpayment, may insist on critical proo£ if he choose to do so. There is a defect of proof of notice to the defendant.

The testimony reported, is of uncertainty on the part of the witness when he gave the paper, or put it into the post-office. And it is fairly exposed to the criticism under this statement, that although he might honestly suppose it in season on the day he received it, as was his usual practice, yet it is not even stated, that he believed that even this equivocal mode was adopted on the day he received it, nor can he say at what time ho received it. At another trial the plaintiff may be enabled to relieve the case from all difficulty. But under the present posture of the evidence the requested instruction, “ that the evidence of the notice was not seasonable,” ought to have been given.

Thus far wo all agree. The exceptions are therefore sustained. The verdict is sot aside, and a new trial granted.