Where the negligence complained of consists in a loss of the paper in transmitting it, the burden is upon the bank to show that the loss happened without its fault.1 There arises, upon the fact being shown, a presumption of carelessness.2 Even though the paper was lost without its fault, the bank must show that it used due diligence in ascertaining the fact.3 Where the bank has failed to present the check or other paper for payment or has failed to give notice of non-payment, the fact of the indorsees insolvency ought to be proof in mitigation of damages.4 It has been held that the burden of proof is upon the ing. First there is alleged the fact of deposit and acceptance for collection, next the duty, and then the breach of the duty. Yet the court with this before it talks about the contract, as if it were an express contract, and not the clearest case possible of a guasi-contract. See note 2 to Sec. 186, and note 22 to Sec. 181.

8 Morris v. Eufala Bank, 106 Ala. 383; Farmers' Bank v. Newland, 97 Ky. 464; Finch v. Karste, 97 Mich. 20.

9 Bank of Mobile v. Huggins, 3 Ala. 206. But the better rule would be that the insolvency of parties discharged goes in mitigation of damages. Stowe v. Bank of Cape Fear, 3 Dev. 408; Borup v. Nininger, 5 Minn. 523.

10 Farmers' Bank v. Newland, 97 Ky. 464

11 The relation raises the duty. Special instructions and the posted terms of collection are material, since they may modify the relation. Wingate v. Mechanics' Bank, 10 Pa. 104.

12 Keyes v. Bank of Hardin, 52 Ma App. 323.

1 Chicopee Bank v. Philadelphia Bank, 8 Wall. 641.

2 American Exp. Co. v. Parsons, 44 I1L 312.

3First Nat. Bank v. First Nat. Bank, Fed. Cas. No. 4810; Shepley v. Bowery Nat. Bank, 59 N. Y. 485.

4Coghlan v. Dinsmore, 9 Bosw. 453; Borup v. Nininger, 5 Minn. 523. But First Nat. Bank v. Fourth Nat.