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

SLuN MS lAhbtlAAA d1 al AiAAtA0Nt-
OPINION OF THE COURT BY JUDD. CD.
In March of this year John Burke
brought his action against See Lee
and Yuen Lung & Co., declaring
"that he claims of See Lee and Yuen
Lung Co., composed of Yuen Lung
and Pau Lum Mau, partners, the
sum of one hundred and forty dol
lars with interest according to the
tenor of 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
ence. That ten dollars has been
paid on said note, leaving balance
of $40 with interest still due By de
PENDANTS and owing to plaintiff,
which balance due, plaintiff has de
manded 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.
Two months after date we prom
Use to pay to the order of John Burke
one hundred and fifty dollars, at
196) one per cent. interest per month
until paid. Value received.
Witness, tSig.) See Lee"
Loo Chit Sam.
due
Endorsed in blank on back without
date, Yuen Lung Co. Payment of
SO and $50 are also indorsed.l
Service was made upon See Lee
and upon the secretary and trea
surer of Yuen Lung & Co. See Lee
came to Court and confessed judg-
ment. Yuen Lung & Co. failed to
appear and were defaulted, and the
Magistrate rendered judgment
against defendants plaintiffs in err
ror) for SLABS, which included in
terest, commissions and costs. Exc
cution was taken out against Yuen
Lung & Co. April 18th, bat not levied,
as Yuen Lung & Co., on the 18th
April, prayed for writ of error
to the District Court. The errors
assigned are as follows:
l. That the complaint in said &c
ton does not contain averments to
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
Yuen Lung & Co., by pla-
cling their name on the back |
of the note, became prima facie
Joint promisors or makers with See
Lee, or whether they are prima faeie
indorsers.
The Endorsement being in blank,
without date, and there being no evi-
dence as to when it was made or as
to what was the intention of the
parties as to the liability of the plain
lifts in error by so indorsing the pa
per, we, upon authority, treat the
as made before delivery
to the payee and inquire what in law
their liability is presumed 10 be. In
the diversity of opinion on this ques-
lion among Courts of higher charac-
-er we are now to decide, for the first
lime we believe in this country, what
lhe presumed liability is which at
aches to the person who, being a
stranger to a negotiable instrument
places his name on the backfn blank
1t the time of the making of the
note, i.e., before delivery. Without
reviewing in detail the vast number
If cases on this point, we remark
hat in some States one indorsing in
iuch a manner (often called an s'ir-
regular endorser'0 is prima tacic re-
yarded as O guarantor, in others
IS an ~ indorser, and in others as a
81 joint promisor, and also in some
States as a az surety. 2 Pars. Notes
Z Bills, 122.
LAO aOOASACao C]AD /
Is Daniel says, For the reason that
| third party whose name is on the
pack of note before that of the
,ayee does not appear to have deriv-
ID title to the note by Endorsement
n assignment to himself, it is held
" numerous authorities that he must
'e regarded prlma' faete as q joint
maker" / Daniel Neg. Instr. Section
'13A. Also Martin Y. Boyd IL N. H.
'S5; Colburn Y. Averill 80 Me. 80:
Iobley V. Ryan IA Ill. 81; Sylvester
Z. Downer 20 Vt. 355; Lewis v. Har
-ey Is Mo. "a. In Massachusetts by
long current of decisions Union
Bank Y. Willis s Met. 5ON person
making such an Endorsement was
leld to be joint maker or promisor
Until 1874 when by statute lCh. 4O4)
was provided that all persons be-
oming parties to promissory notes
y signature in blank on the back