This is an action on a promissory note by an endorser, after maturity, against the maker, the defense to which is a failure of consideration, and a subsequent agreement between the maker and payee, that the note should be extinguished by an account held by the maker against the mother of the payee.
The only question is presented by a bill of exceptions taken to the ruling of the District Judge, excluding, on the score of Ínteres);, the testimony of the payee offered by the defendant and appellant.
*166If ha be viewed as an unconditional guarantor to his immediate endorsee, he is called on to testify against his own interest, as the release of tlio maker may make him solely liable. But if he stands in the same situation as the drawer or endorser of a bill, his endorsement creates a collateral liability only, which is dependent on a reasonable presentment and notice, which must be shown before the liability is fixed. Story on Notes, 128, 133, 134; 12 M. 177.
In either view he is a competent witness for the maker.
Justice requires the case to be remanded to afford the parties an opportunity to have their rights adjusted, as the record does not enable us to do so.
It is therefore ordered that tlie judgment appealed from be reversed, and tlio case remanded, to be proceeded in according to law, with instructions to tlio District Judge to admit the testimony of L. W. Brown, the endorser.
Plaintiff to pay costs of appeal.