Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1859-11-19

Ghe polpnesian.
SUPREME COURr.--1e,h Nov. 1859.


Justice Robertson deliver ed the decision Of the
Court as follows:
The detendent In error, plaintiff in the Court
below, brought suit in the Circuit Court for the
Island of Maui, to recover the sum Of $3.50 so,
and interest, upon five several promissory notes,
the first of which is the individual note of the
defendant below, payable to George NJ. Bates, or
order, and is endorsed by E. P. Bond, as his at
torney in fact; another is joint note made by
Albert a. COe and j. Hennessey, payable to the
order Of Messrs. Bolles Co.; and the other three
are the individual notes of the defendant below,
in favor of Messrs. BOlles Co. Neither of the
four last mentioned notes are endorsed by the orig
inal payee therein named.
At the last May term of the Circuit Court, de-
fendant having filed no answer, although person
ally served with process, the plaintiff below had
judgment by default for S40l 10, principal and
interest, and $23 25 costs.
On the 10th of October last, the defendant be-
low obtained writ Of error, upon application to
the Chief Justice, at Chambers, which writ hay-
ing been returned with the record from the Circuit
Court, jOinder in error ordered pursuant to
the statute.
This is the first instance of a writ of error hav-
ing issued from this Court; and it may be we'll,
therefore, to note certain Irregularities that have
taken place in this proceeding, with view to pre-
vent their recurrence in future practice.
The plaintiffs petition should have set forth
two things in order to entitle him to the writ un-
der the statute, viz: that six months had not
elapsed since the rendition of judgment in the
Circuit Court; and that execution on that judg-
ment had not been issued and returned satisfied.
| [CiVil Code, Section ll57. The first of these
conditions is shown by the petition, but the last
is not averred, nor does it appear in any way.
| This objection not raised by the defendants
counsel. and we advert to it merely for the pur-
pose of regulating the practice in similar cases
hereafter.
Again, the defendants plea, or answer, to the
assignment of errors ought to have been filed in
writing, IN the same manner as plea In an orig
inal action before the cause came up for argument.
The declaration in error, upon which the argu-
ment has been had, is the same that present
ed upon the application to the Chief Justice for
the writ of error; and the counsel for defendant
takes exception to it not being in proper form,
being an assignment Of errors appearing on the
copies OF the papers served upon the defendant
below, and not of errors appearing on the record
of the case in the Circuit Court. There is weight
| in this objection, and had it been raised at the
time Of the application for the writ of error, upon
a motion to dis iss the application, 1t would
probably have prevailed. But the objection now
comes too late. Joinder in error has taken place
upon the declaration as it stands, and the case
must be determined on its merits, the
signed being regarded assigned upon the record.
The errors assigned are, in substance, as fol-
| lows
l. The petition of plaintiff below is not verified
| in conformity with the statute of 1848.
| 2 One of the notes upon which the suit was
brought is the joint note of Albert A. COe, and j.
Hennessey, and therefore several action and sew
eral Judgment against Hennessey alone is errone-
| Gus.
3. None of the notes were made payable to B.
| F. BOiies, but to other parties. No assignment of
either of them to B. F. Bottles rs GrTeFFfsd in bis pc
tition, nor are any of them endorsed by thclPay-
ees named therein.
The verifcation of the plaintiffs petition in
this case, as it appears upon the copy of the re-
cord sent up, is almost precisely similar to the
veriication in the case of Kanuku u.s. Pukaikea,
in this court referred to in the argument, and is,
in our opinion, clearly insufficient under the stat
ute, as was held in that case.
| 1t is q form of veritcatiOn, however, which has
often been used in the Circuit Court of Maui, and
the validity of which has probably never been
questioned in that Court. Had the defendant be-
low appeared to contest the action, and objected
to the veri6cation, the plaintiff must have gone
out of Court, unless he was ready to amend the
yerifcation and obtained leave so to do. But the
defendant below made default, and, in opin-
ion, his exception to the sufcency Of the verifea-
ton comes too late, when raised on writ of er-
| ror proper veri6catiOn is necessary to the
completeness of petition, in point of form, but
SO far as it is necessary for plaintiff to set forth
lin his petition sufficient cause of action and a
way depend upon the verihcation, for If the petit
tion is defective in regard to those points it can
not be aided by the verifcaton. We think, there
fore that any objection to the verifcatiOn is but
an objection for informality-nOt affecting the
merits of the plaintiffs eaim-and should, in or
der to be available, be raised at the outset, and
ought not to prevail, if raised after judgment, in
anS case. certainly not after judgment by default.
1t is argued, further, on behalf of the plaintiff
in error that the Judgment against him alone, on
the Joint note of Coe and himself, is erroneous,
and must be set aside. Although the institution
of a suit against Hennessey alone, upon the joint
note of Hennessey and Coe, was undoubtedly lr-
regular, vet, we of the opinion that 1t is such
an irregularity ought to have been taken advan-
tage of, by plea in abatement, or, perhaps, de-
murrer under our mode of pleading, and, II not
so taken advantage of must be held to be waived.
This is an objection which goes rather to the mode
of proceeding, than to the merits OF the action
For if the plaintiff below had sued both Hennes-
sew and Coe and made personal service on Hennes-
sew alone, he might, if he showed n right of
action in himself have had judgment against
hoth and on execution he could have levied
on the sole property Of Hennessey to satisfy
his Judgment. IStatute laws, vol. =. p. 4O, sec 8;
D 50, sec. q. So that in contemplation OF law
the defendant below is not injured by this irregu-
larity, for if he is compelled to pay the whole
amount, he may have his action against the other
Joint maker of the note. for SO much money paid
to his use as his share of the note amounts to.
pIajptiff in error cannot assign for error matter
which he might have pleaded in abatement, al
though Judgment may have gone against him by
default. [CrOmpton's Practice, Vol. 2, page $780,
In our opinion, if party stands off and does not
choose to avail himself of this objection before
Judgment, he must be held to have waived it.
In the case of Reas Is. Abbott, Cowper's Rep,
page $50, which was action against one of the
makers of promissory note, declared by the court
to be joint and several note, Judgment went
against the defendant by default, and upon writ
of error in the Court of Kings Bench, the Court
refused to reverse the judgment; BUTLER. Justice,
remarking that, IL the note had been joint note