We are unable to agree with the learned-judge of the circuit court in his finding, that the appellant took the respondent’s check on the Bank of Madison at the appellant’s risk and without recourse to the respondent. We need not consider the question, whether a parol agreement at the time the check was given, was admissible to control the legal liability of the drawer to the holder of the check (Addison on Con., 158; Edwards on Bills, 147, 313), because no such agreement appears to have been made. There is no proof tending to show such an agreement. It may be inferred, indeed, that the respondent thought that, his note being paid, his liability to the appellant ceased, and that he would not be *153liable on bis cheek. But that was his mere mistake of law. "When he gave his check, he assumed all the liability which the law attaches to it. If parol evidence would be competent to vary such liability, it could only be upon express and distinct agreement to that effect between the parties. Here it seems very plain that no such agreement was made.
The attempt of the appellant to pay his liability at the bank with the respondent’s check, was an attempt to collect the check, and has no other significance in the case. As between the appellant and the bank, the appellant had no right to apply the check to the payment of the draft upon him, and the bank was not obliged to accept it. Story on Bills, § 419.
Excluding Sunday, the appellant presented the check for payment the day after he received it, and on the succeeding day notified the respondent of its dishonor and of his liability over. Under the circumstances, we think, that this was due diligence, within all the authorities, unless it should appear that the respondent was injured by the delay. Byles, 13; Story on Bills, §§ 231, 382; Edwards on Bills, 397. And the more easily -and surely, because it appears that, when the check was drawn, the bank had already suspended payment. Had the bank suspended while the appellant held the check, it might have been otherwise.
No injury to the respondent appears. The only injury possible to him, by any delay of the appellant, which we can see, would be a suspense of legal proceedings against the bank. Such an injury cannot be inferred, when he does not appear to have proceeded for the residue of his account with the bank.
The subsequent protest of the check does not enter into the question. No protest was necessary. Story on Bills, § 281 Edwards on Bills, 50.
The judgment of the court below for the account seems to have been correct. The entire judgment must, therefore, be reversed, and the cause remanded to the court below with *154directions to enter the proper judgment for the appellant on the account and on the check.
By the Court. — It is so ordered.