The Hawaiian gazette., 1893-12-19

temporary administrator (being also
named as executor in the will which
was then filed in Court had received
a full memorandum of the claim, it
was essential to present new one
after his formal qualification as ex-
ecutor. See Goodnow V. Warren, 122
Mass, 70. Whether it was a va ! |
presentation, the note not being dU.,
and the liability of the estate not
being then fixed, is more serious
question. 1t is clear by our statute
that the failure to present the claim
before the note was dishonored would
not be fatal, for the statute only bars
claims that are not presented within
six months after they fall due, and
unless suit is brought within two
months after they fall due (if rejec-
ted. There is no distinct authority
for the presentation of claims that
are contingent, or before they fall due
1t may be that the presentation of a
claim like the one at bar before the
contingency of dishonor by the maker
had happened and before the note
had fallen due would not be sufficient
under our statute. But being of the
opinion that as a matter of law upon
undisputed evidence the notice of the
notary was a sufficient presentation
of the claim under the probate sta
tute, the jury were bound to find
verdict for the plaintiff upon this,
without considering the ''memoran
DUN" sent by Hustace. Even though
the trial Judge may have instructed
the jury enormously on some points,
a new trial should not be granted,
because on the whole case as matter
of law the verdict must have been as
rendered, or be set aside. A new trial
could not result in a different verdict
The defendants asked the following
instruction (No. 81: "The plaintiffs
cannot recover of the executors de
PENDANT unless they show that de-
mand was made on the last day of
grace and within bank hours Of the
proper officer at the bank Of Bishop
& Co. for payment of the note, to be
made of II. II. Williams Dc Go. It is not
sufficient if demand was made for
payment of G. E. Williams, as sue
cessor of II. II. Williams & Co. and
if no demand was made except for
payment of q. E. Williams, the exec
utors of ]. H. Wood cannot be held
liable"
This was given as above except the
underscored portioa-'to be made By II.
Il. WiHtams& Co.. Thequestion raised
is whether demand should have been
made at the bank upon the maker.
"Where the bill designates place
of payment, and it is accepted gen.
orally, it will be sufficient to demand
payment at such place without max
ing a personal demand on the &C.
ceptor." 8 Rand. Com. Paper, Sec.
lib.
eff bill be made payable at a
particular place, it is not necessary
to state q presentment to the accept
or there; it is sufficient to state
a presentment at that place." Byles
on Bills, p. 218, and numerous Eng
lish cases there cited.
Whatever difference there may be
in the cases, as to the necessity of a
demand at the place specified, it is
perfectly clear that, SO far as place
is concerned, a presentment there by |
the holder is always sufficient" l |
Parsons, N. & B. p. 434 ed. of 1862
Fullerton V. Bank, l Pet. 604
Brent's Exor. V. Bank, i'd. SO.
Upon authority therefore it was
not necessary to have demanded pay
ment personally of II. II. Williams &
Co., the makers; the demand at the
bank was sufficient.
The last exception is to the Circuit
Courts refusing new trial on the
ground of surprise, in that since the
trial it has been found that the
furnished by Hustace
was dated Aug. 13, 1872, prior to de-
iendants' notice to creditors and
prior to their receiving letters tesla
But this memorandum
vas in possession of the defendants
Ill the while and should have been
produced by them at the trial and
therefore, there was no surprise in
aw, and as we have seen above, there
vas another valid presentment of the
lain upon which the jury were en-
tiled to find their verdict, and SO a
lew trial is not allowable.
Exceptions overruled.
F. NJ. Hatch for plaintiffs; A. S.
Iartwell for defendants.
Honolulu, December 7th, 1898.