¶1delivered the opinion of the court.
¶2The defendants are sued as maker and endorser of two promissory notes. They resisted the claim on the ground that the notes had been given to G. Chretien, (by whom they were endorsed to the plaintiff, without recourse) in part payment of a tract of land of which they are in danger of being evicted ; a suit being pending therefor. That this circumstance authorized them to withhold payment of the price ; or at. least to require security. That the plaintiff took these notes'with the knowledge of the defendants’ rights in this respect, and with a view of preventing the exercise of them. There was judgment for the plaintiff, and the defendants appealed..
¶3Our attention is arrested on two bills of exception taken by • , ~ J the defendants’counsel on the refusal of (he District Court, to'permit evidence to be given of the pending of the suit against them, and the act of sale of the land by G. and F. “ . . /V J Chretien to them.
¶4The plaintiff’s counsel contended that the evidence could nor |ye received, because the defendants had not offered any ’ J proof of the knowledge of the plaintiff of the danger of eviction, alleged in the defence.
¶5The counsel of the defendants urged that this knowledge appeared from the mention on the face of the notes, that their amount was part of the price of the land ; and from Chre-endorsement, which was made without recourse. That they had other evidence of this knowledge, which they in-fended to introduce after they had established the facts, which *211(he court prevented them from proving. We have often said that courts could not control the parties, in the order in which they chose to bring in and offer their proofs.
¶6The mention on the face of the notes that they were given in part payment of a tract of land, did not prevent or obstruct their negotiability. 2 Martin, 235; Wheaton.
¶7It has been contended that the notes being endorsed without recourse, created a presumption a presumption (hat the plaintiff knew ... , , , . , . . his endorser, foresaw that the payment of the notes could not be obiaiued without difficulty, and that a failure of consideration would be urged by the makers. We have been referred to 4 Massachusetts Reports, 370; in which chief justice Parsons held, that when a note was negotiated after it was overdue, and the endorsement excluded the responsibility of the endorser, the maker was authorized to introduce evidence of any equitable defence which he might have opposed to the payee. That case differs widely fiom the present, in which the notes were negotiated before their maturity. What was said by the chief justice ass to the endorsement without recourse, must be considered as a mere obitur dictum; because it was unnecessary to the decision of the case. The ck cumstance of the notes having been negotiated when overdue, was sufficient to authorize the introduction of the evidence.
¶8We refrain from expressing any opinion on this diclkm, because the case before us does not require it ; the defend dants being at liberty according to the jurisprudence of tmt stale, and the practice of the inferior courts, to introduce their evidence in the order which suits them best.
¶9The District Court, in our opinion erred, in refusing to the defendants leave to read the documents offered by them as evidence.
¶10It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and the case remanded for further proceedings, with directions-to the judge, aguo to admit in evidence the documents mentioned in the bills of exception ; the plaintiff and appellee paying the costs of the appeal.