The opinion of the court was delivered, January 3d 1871, by

— A note was drawn by Smithley to order of Ross, and by him endorsed; then endorsed by Espy, and discounted at the Iron City Bank. Payment failing, the bank got separate judgments against the endorsers Ross and Espy. Espy paid the bank, and claimed the right to control the judgment against Ross. Ross alleged an agreement at the time the note was drawn and endorsed (all the parties being together) that he and Espy should endorse for the accommodation of Smithley, and in the event of his failure to pay, that he and Espy should contribute equally. This was a feigned issue to try the fact as to contribution. Smithley was offered as a witness, and objected to as a party to the note and incompetent, the trial being on the 15th of March 1869, and was received by the court subject to the right to exclude his testimony afterwards, and no exception taken by the defendant to his admission. The trial being a month before the Act of 15th April 1869, making interest and policy of law no longer a ground of incompetency, Smithley was then incompetent: Saurman’s Ex’rs v. Bodey, 6 Wright 476; Barton v. Fetherolf, 3 Id. 279. But the judge who tried the cause gave no instruction to the jury to exclude the testimony of Smithley, and charged them peremptorily, “ as a matter of law, that under all the evidence in the case the plaintiff cannot recover, and their *483verdict must be for the defendant.” Whether the learned judge had in his mind the whole evidence excluding the testimony of Smithley (which is quite possible), we cannot tell from the charge sent up to us. But the evidence having been received without exception, in order to reserve the question, it was the duty of the court to have charged expressly on the competency of the witness if they believed him incompetent, in order that the plaintiff might have the benefit of an exception if he conceived himself aggrieved by the decision. As the evidence stood before the jury, the agreement proved by Smithley was a flat bar to Espy’s right to recover more than the one-half of the money he advanced in payment of the note. Whatever objection there might have existed to the competency of the channel through which the evidence came, tlm evidence itself was entirely competent. The contract of endorsement is one implied by the law from the blank endorsement, and can be qualified by express proof of a different agreement between the parties, and is not subject to the rule which excludes the' proof to alter or vary the terms of an express agreement. This is well settled: Susquehanna Bridge and Bank Co. v. Evans, 4 Wall. C. C. R. 480; Barclay v. Weaver, 7 Harris 396. The very point now before us was decided in Hill v. Ely, 5 S. & R. 363, and Patterson v. Todd, 6 Harris 426; and analogous decisions will be found in Bank v. Fordyce, 9 Barr 276, and Miller v. Henderson, 10 S. & R. 290. The agreement to contribute equally between the endorsers modified the implied contract of Boss by his endorsement to pay Espy; and being made at the very time when they both endorsed for the accommodation of Smithley, the court ought so to have informed the jury, unless they had previously excluded the testimony of Smithley.

Judgment reversed, and a venire facias de novo awarded.