The Hawaiian gazette., 1893-12-19
OPINION OF THE COURT BY JUDD. c..

OPINION or THE COURT BY JUDD, CT.
This is an action on a promissory
note which in words and figures is as
follows;
$4,000. Honolulu, Nov. Is, 1891.
Twelve months after date we
promise to pay the order of G. E.
Williams and j. Ii. Wood three
Thousand dollars in Z. S. gold coin
at the bank of Bishop & Co. with
interest at 10 per cent. per annum.
Value received.
H. II. WILLIAMS q Co."
Endorsed on back" G. Z. Williams,
J. II. Wood"
This note was the property of the
plaintiffs by endorsement and deliv-
cry. Before maturity j. II. Wood,
one Of the endorsers, died, and the
defendants Warehouse and Hartwell
qualified as executors under the pro-
visions Of Mr.. Woods will. The other
endorser, c. E. Williams, made no
answer and Judgment was entered
against him by default and the case
was proceeded with before the Cir
cult Court, First Circuit, August
Term. 1893, to determine the liability
Of the estate of Mr.. Wood on the
note. The verdict was for the plain
tiffs.
The case comes to US on defend
ants bill of exceptions. The first
point is on the exception to the
Courts refusal to charge the jury as
requested by defendants in their 9Th
prayer for instructions, VIZ:
Nothing said by MIR. Henry Water
house to Mr.. Damon can hold the
executors. not being in writing"
The Court also refused the plain
tiffs' prayer fer instructions (No. p
that the executors could waive the
presentation Of claim at any par
ficular time or in any particular
form" The evidence shows that MIR.
Waterhouse, one of the executors
named in the will of MIR. Wood,
asked OF Mr.. Damon, of the banking
house Of Bishop & Co., to see the
note. which Mr.. Damon showed to
him, and be said it was "all right"
Mr.. Hustace, cashier of the bank,
says this circumstance occurred be-
fore the note fell due; that he gave
Mr.. Waterhouse a statement of the
notes held by Bishop & Co. endorsed
by j. II. Wood, and. at Mr.. Damon's
request, got the note out and showed
Il to AIr. Waterhouse, who said that it
would be all right Mr.. Waterhouse
saws that alter he had been legally
appointed administrator (26th Aug,
80 he went to the bank Of Bishop q
Co. that when the note was pro
6uced by Mr.. Damon he told Mr..
Damon he thought It would be all
right; be thought it might be ar
ranged and that Mr.. Williams would
have 10 pay it.
We think the instruction was prop
erly refused. There was no attempt
made by plaintiffs to hold the execu-
tors personally responsible. The sta
tCte Of frauds requires a writing to
hold an executor upon special
promise to answer out of his own es-
tate, and an instruction of the char
acter asked for would tend to confuse
the Jury. The evidence went in with
out objection, and its object was to
show that the plaintiffs had duly
presented their claim against the es.
tste. The Court charged the jury
fhsf the statement made by Mr.
Warehouse that 1t was all right"
Is not sufficient in itself to bind the
executors, that is to say, to make
new promise to pay this note, but
you may regard it as evidence tend
ING TO show that there has been
of the claim to them"
The Jury we're in this way proper
" instructed that Mr. Warehouses;
that it was all right
ala not bind him as a
new promise to pay the debt out of
bis own estate and we do not per
ce;re that it would have had that
effect, even II in writing, and it is
to decide whether it
was evidence of a presentation OF |
he claim, for, as shown below, the de
msnd and notice of the notary public |
YES conclusive evidence Of this, and 9 |
rerdict for the defendant, if such had