delivered the opinion of the court,
The undertaking specially declared on is clearly a technical guaranty, identical in form with that in Zahtn against the same defendant in error, No. 53 of July Term 1883, in which an opinion has just been filed. What is there said in regard to the liability of the guarantor and the error of the court in directing a verdict for the plaintiff below, is applicable to this case.
The testimony offered and excluded by the court would have tended to prove that Swartz, the second indorser, continued liable to the bank notwithstanding the note may not have been formally protested. His guaranty, alleged to have been given to the bank before the maturity of the note, was virtually a waiver of protest so far as he was concerned. If *584his contract relation to the bank was such that it could have compelled him to pay the note, it was • bound to do so before resorting to the plaintiff in error, who was strictly a technical guarantor. The testimony referred to should have been received for the purpose of showing that all the parties to the note, and liable to pay the same, had not been pursued to insolvency before resorting to the guarantor, who in other respects was a mere stranger to the instrument.
Judgment reversed, and a venire facias de novo awarded.