Smith v. Hawkins

6 Conn. 444

Opinion

Brainard, J.

The question is, was the charge correct? I am of opinion, that it was.

The only objection made to it, deserving consideration, is, that the second indorsement discharged the defendant’s liability on the first. I think there is no soundness in this objection. They were separate and distinct transactions ; the considerations were separate and distinct; and so were the liabilities.

The holder of the note had a right to obtain as much security on his paper, as he could; and whether he had pursued the various steps stated in his counts, or in either of them, against the indorser, were questions submitted to the jury, who found for the plaintiff on both.

I am of opinion, that if either of the two counts was supported, the verdict must stand ; that the second indorsement did not cancel the first; that if the facts stated in the first count were found, by the jury, the defendant’s liability was fixed ; if not found, the enquiry was still open on the second.

Footnotes

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I would not advise a new trial.

The other Judges were of the same opinion.

New trial not to be granted.

This opinion Was copied from the one approved by the judges, and read in court, omitting a statement of the case, which preceded it. A part of that statement, however, regarding the second count, varied tram the copy of the declaration furnished to the Chief Justice, and used by the Reporter, inasmuch as the former contained an averment, that "on the 5th of April, 1821, the plaintiff again presented the note to the maker, and demanded payment,” which was omitted in the latter. It is not improbable, therefore, that Judge Brainard’s re. marks in relation to the second count, were made with reference to his own statement; and, on this assumption, the Reporter has not epitomized them in his summary. Still this does not affect the correctness of the decision upon the whole case; for if the Court were right regarding the first count, the plaintiff was entitled to retain his verdict on that count, and, according to our rules, a new trial was properly denied.