William Talcott against Mason F. Cogswell

William Talcott against Mason F. Cogswell. Where there dorsmí^'a" promissory note, they are, in general, U-other,t0¡n°t⅞ order of their respective endorsements. [A. being debted to B. by note, and payP°part by a new note, makes his note payable to V. cureña, 'and ^endorse it, for A.'s ae-commodatkm; the note be-⅛ coming due, after having been accepted by B., and discounted for him at the bank, A. fails, to take it up, and C. and />., after notice of such failure, come separately to the hank, and take it up, each paying a moiety. !n an action brought, more than three years afterwards, by D. against V , to recover back the money paid by D. on the note, these circumstances furnish sufficient evidence, that the endorsement by both was joint, and each having paid what, in that case, each would be compellable to pay, na recovery can be had. THIS was an action of assumpsit by the second en* d°rsor of a promissory note against the first endorser, for one moiety of the amount of the note, paid by the . plaintiff, on the failure of the maker. The action was commenced in December, 1804. The case, as it appeared from the evidence, was as : In the latter part of the year 1800, Samuel Tudor held William Howe's note, endorsed by the defendant, f°r 500 dollars. When that note became payable, Howe caj]ed on Tudor, and offered him, in part payment, another note, with the same names, for 400 dollars, Tudor objected to receiving it, without another name on tiie back ’ uPon winch it was agreed that the plaintiff’s should be added. Howe accordingly presented the note to the plaintiff, who endorsed his name under that of the defendant The note was then delivered by Howe to 7'udor, who got it discounted at the Hartford bank. Howe tailed to take it up; the endorsors were both notified; and each came separately to the bank, and paid 200 dollars. T. S. Williams and 8. Terry, for the plaintiff. Goodrich and Dwight, for the defendant. Swift, Pr. J. in summing up. There is no question but that the first endorsor is liable to the subsequent en-dorsors, in case they have to pay the money. The question, in this case, is a question of fact, whether both plaintiff and defendant were not joint sureties to Tudor for Howe ? The jury found a verdict for the plaintiff [MAJORITY — The Court] The Court were of opinion, that the circumstances of the case furnished sufficient evidence that the endorsement was joint; and that each having paid what, in that case, each would be compellable to pay, the verdict ought to be for the defendant. They, therefore, returned the jury to a second, and afterwards to a third consideration; but the jury adhered to their verdict.