The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-07-18

legal effect of an Endorsement by
stranger has been much discussed
and variously decided. The view
which finds most support Is probably
that which holds the Endorsement OF
negotiable note by stranger be-
/ fore, or at the time OF its delivery. to
the payee to be Prima tdcie an original
undertaking as joint maker with an
| implied liability as such to the payee
and all holders for value And in
| Section 1874, the same author says:
SIN opposition to the view above
given it is held that such inGorser
contracts and becomes liable as an
indorser, his position on the back of
tie note indicating that intention"
In Pennsylvania he is held to be a
second indorser because with the
payee's name before his he cannot be
considered first indorser. Gilbert
V. Finkheiner. IS Penn, 247. In New
York he is now considered rs a first
indorser; Moore V. Cross, 10 n Y,
227; Coulter Y Richmond, 80 N. Y.
479.
Daniel expresses his own views
thus: sour own views are that the
party who puts his name ON the back
of negotiable note before it is in
dorsed by the payee, should be pre-
sumed to be a first indorser. If he
intended to be second indorser he
should have refrained from putting
his name on the note until it was
first Endorsed by the psyee. By plac-
ing it first he enables the payee to
place his own afterwards; and primo
.faeie the facts would seem to indicate
such intention. We do not perceive
that there is anything insuperable to
this view in the objection that there
is no title in him to indorse away.
Prior parties could not be sued with
out the payee's Endorsement; but he
being an indorser can be sued by any
one deriving title under him."
In England such an irregular in
dorsement is considered to render
the party liable as a new drawer.
Penny VS.. Inne-, 1 Crompton, Nee.
son & Roscoe, 439. In California by
Riggs VS.. Waldo, 2 Cal, 4S7, and
Jones VS.. Goodwin, 80 Cal, 493, and
by Code, he is held to be an indorser,
and entitled to demand and notice
to fix his liabilities.
This has been the view which has
obtained for a long while in the
business community of these islands.
And being free to decide either way
upon authority, and there being good
reasons for both views we prefer to
adopt the view which has prevailed
here among business men, and hold
that such a person Is u first indorser.
If the plaintiffs in error were indor-
sers, as we have held them to be.
then they were entitled to demand
and notice. An Endorsement is held
to be an Independent contract. So
distinct Is the contract of an indorser
from that Of the maker, that at com
mon law a separate action against
each was indispensable. l Daniel
Neg. Instr, Sec $50, and cases cited.
But by Act Of 1876, Chap. 80, holder
Of negotiable security may join as
defendants in any action for the re-
,overy of the amount secured by any
such instrument all or any OF the an
ecedent parties to the same whether
maker, drawer, acceptor or indorser."
But this statute which dispenses with
he necessity .of a separate action
against tbs indorser does not render
t unnecessary to state in the COM
)laint the facts which are essential
o holding an indorser liable. These
ire allegations that the plaintiffs in
'rror Endorsed the note, that it was
presented to the maker at maturity
md notice of non payment thereupon
,iven to the indorser and demand
made upon him. A cause of action
hould be stated the language may
,e varied, but the essential facts to
how liability on the part of the in
lorser must appear. We notice that
sections 919 and 921 of the Compiled
laws by which the District Courts
we're not confined to forms, and
which allow parties to be cited by
raj message or by writing, etc., are
epealed by Section so of the Act to
teorganize the Judiciary Depart
nent. None of the essentials above
amed appearing in the complaint,
nd there being no evidence of notice
nd demand, it was error to have
endered judgment for the defendant
q error, and the judgment is reversed
nth costs.
A. ). Hartwell for plaintiffs in err
or; j. NJ. Davidson for defendant in
rror
Honolulu, July 9Th, 1898.