The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-12-13
OPINION OF THE COURT BY JUDD. ca.

OPINION OF THE COURT BY JUDD, CD.
This is an action on a promi5sory
note which in words and figures is as
follows:
$4,000. "HoNoLULU, Nov. 10, 1891.
"Twelve months after date we
promise to pay the order of &. T.
Williams aud j. III. Wood three
thousand dollars in U. S. gold coin
at the bank of Bishop & Co. with
interest at 10 per cent. per annum
Value received.
&" H. III. WILLIAMS & Co"
Endorsed on back" g. Il. Williams,
j. III. Wood"
This note was the property of the
plaintiffs by Endorsement aud deliv-
cry. Before maturity j. III. 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, G.. 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:
~ IL 4 L., O. nr
house to Mr.. Damon can hold the
executors, not being In writing,
The Court also refused the plain
tiffs' prayer fer instructions mo. ~
shat the executors could waive the
presentation of q claim at any par
ticular time or in any particular
form" The evidence shows that Mr..
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 he said it was ''all right"
MIR. Hustace, cashier of the bank,
saws this circumstance occurred be-
fore the note fell due; that he gave
MIR. Waterhouse a statement of the
notes held by Bishop u Co. endorsed
by J. II. Wood, and, at MIR. Dsmon's
request, got the note out and showed
it to MIR. Waterhouse, who said that 1t
would be all right. MIR. Waterhouse
saws that after he had been legally
appointed administrator t26th Aug.
'92) he went to the bank of Bishop q
CO.: that when the note was pro
duced by Mr. Damon be told Mr.:
Damon he thought it would be all
right; he thought it might be ar.
ranged and that Mr.. Williams would
have to 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
tute of frauds requires writing TO
hold an executor upon q speclai
promise to answer out of his own es-
tate. and an instruction of the char
scter asked for would tend to confuse
tbs iury. The evidence went In with
ont objection, and its object was to
show that the plaintiffs had duly
,,r.ssented their claim against the es-
tate. The Court charged the Jury
that the statement made by MI:
Waterhouse that lit was all right,
Is not sufficient in itself to bind the
executors, that is to say, to make
new promise to pay this note, Dut
"you may regard it as evidence tend
ing to show that there has been a
presentation of the claim to them"
The Jury were in this way proper
Iy instructed that MIR. Warehouses;
statement that it was ali right |
did not bind him as
new promise to pay the debt out OF
his own estate and we do not per
ceiye that it would have had that
effect. even il In writing, and 1t is
unnecessary to decide whether 1T
was evidence OF presentation or
the claim, for, as shown below, the de
mand and notice of the notary public
was conclusive evidence of this, and
verdict for the defendant, If such had
been rendered, could not stand, even
IL this instruction had not been
given. This leads us to the consider
alton of the exception by defendants
to the Courts granting plaintiffs
prayer for instruction numbered L
THAT the jury may consider the
demand and notice by the notary :
nnbIic as evidence Of a claim made
bv Bishop & Co. upon the estate OF
7 III. Wood" The note fell due
Nov. 10, 1892. and on the last day OF
grace, Nov. %, Mr.. Paty, notary |