The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-07-13
OPINION OF THE COURT By JUDD, GU

brought Ills dCtlOu dSoAHob OOO ACO
aud Yuen Lung & Co, declaring
THAT he claims of See Lee and 1uen
Lung Co, composed OF Iuen Lung
and Pau Lum Mau, partners, the
sum of one hundred aud forty dol
lars with interest according to the
tenor OF a certain promissory note
dated November 16. 1892, payable two
months after date, for value received,
TO the order of the plaintiff, a copy OF
said note is hereto annexed for refer
epce. That ten dollars has been
paid on said note, leaving a balance
OF $40 with interest still due by de
PENDANTS and owing to plaintiff,
wbich balance due, plaintiff has de
mauded of said defendants, who have
and still to this date refuse to pay;
wherefore" etc.
The note annexed is as follows:
Honolulu, 18th Nov, 1892.
$4,000.
"rwo months after date we prom
ise 70 pay TO the order of John Burke
Que hundred aud fifty dollars, u;
n@6l one per cent. interest per month
until paid. Value received ;,
WITNESS, lSigl See Lee"
Loo Chit Sam.
due
0ud Irsed III blank or back without
date, Yueu Lung Co payment OF
SO and $50 are also indorsed)
Service was made upon See Lee
and upon the secretary and trea
surer Of Yuen Lung q Co. See Lee
came 70 Court and confessed !udg-
ment. Yuen Lung & Co. failed to
appear and were defaulted, and the
Magistrate rendered Judgment
against defendants plaintiffs IN err
ror) for SI423S, which included in
terest, commissions and costs Exc
cntion was taken out against YGen
Lung & Co. April 11tb, bat not levied,
as Yuen Lug & Co, on the 18Th
ApriI. prayed for writ or error
TO the District Court. The errors
assigned are as follows:
/. That the com plant IN SAID &C
ton does not contain aysTinents 10
charge the plaintiffs IN error as IN,
dorsers of the note sued on IN said
action. while the said note shows
that they were Liable If at all as IN
dorsers-
2. That no proof was taken before
said District Court on which to base
judgment against the plaintiffs IN
error.
The crucial point in this case Is
whether Yuen Lung q Co., by pla-
cling their name on the BACK
of the note, became prtnla Jdeie
Joint promisors or makers with Bee
Lee, or whether they are pr1H1a Jdc's
indorsers-
The Endorsement being In blank,
without date, and there being no EVIL
dence as to when it was made or as
to what was the intention or the
Darties as to the liability of the plain
tiffs in error by SO indOrsing the pa
Der. we. upon authority, treat the
Endorsement as made before delivery
TO the payee and inquire what IN law
their liability Is presumed TO be- In
the diversity of opinion on this cues
ton among Courts OF higher eharac
ter we are now to decide, for the hrst
time we believe In this country, what
the presumed liability IS when at
taches to the person who, being
stranger to g negotiable instrument
places his name on the back IN blank
at the time of the making OF the
i e
reviewing in detail the vast NUMBER
of cases on this point, we remark
that 10 some States one lpdorslng IN
such a manner (often called an III
regular endorser'O Is primo Jdc1c re
garded as o. guarantor, IN others
as an (2l indorser, and IN others as
(3) Joint promisor, and also III some
States as a az surety. z Pars- Notes
& Bills, 122-
The decisions are irreconcllable-
As Daniel SAYS, For the reason that
a third party whose name Is on the
back of a note before that OF the
payee does not appear to have derlv-
ed title to the note by Endorsement
or assignment to himself, 1t IS held
by numerous authorities that he must
be regarded priEaa f1cis as joint
maker" Dauiel Neg. Instr Section
7I3A. Also Martin V. Boyd II y. H
3S5; Colburu V. Averill 80 Me. 80;
Mobley Z. Ryan IA Ill. 81; Sylvester
Y. Downer 20 Vt. 355; Lewis V. Har
yey Is Mo. "a In Massachusetts by
q long current OF decisions Union
Bank V. Willis s Met 504) person
making such an Endorsement was
held.to he Joint maker or promisor
until 1874 wnen by statute tCh. 4O4l
it was provided that all persons be
coming parties to promissory notes
by q signature in blank on the back
thereof shall be entitled TO notice OF
non-payment the same as an in
dOrser.
Randolph IN vol. Commercial
Paper. Section. S31, says that the
legal effect of an Endorsement by q
stranger has been much discussed
and vsriously decided. The view
which finds most support is probably
that which holds the Endorsement Of
q negotiable note by q stranger be-
fore, or at the time of its delivery, to
the payee to be priDla Jacis an original
undertaking as joint maker with an
implied liability as such to the payee
and all holders for value" And IL
Section S3A thu same author SAYS: