The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-12-13

| PUBIC, pIeseuleu, IL Do MS nOtlCc "
protest states, "at the bank of Bishop
IL Co. where it was made payable
and payment demanded which wa
refused, the said note having beer
dishonored the same was this day
protested by me for the non payment
thereof and the holders look to yCU
for the payment thereof with al
costs, charges, interests, expenses and
damages thereby already accrued OIL
that may hereafter accrue thereon
by reason Of the non payment OF said
note" This notice was addressed to
the Executors of estate Of John II
Wood" and Mr.. Waterhouse admits
that he received it few days after
the goth November when he arrived
here from the United States. The
jury were told that this was evidence
Of claim made by Bishop Il Co.
| against the estate of j. II. Wood,
! and they were also instructed that it
was a question OF fact for them TO
| find whether the notice was sufficient.
| The instruction was also excepted to.
After much research we have come
| to the conclusion that the notice of
dishonor and demand for payment
made by the notary upon the execu
| tors Of the will of j. II. Wood is a
sufficient presentation of the claim
under our statute of nOn-clala.
The statute does not prescribe the
form in which the claim must be
made 1t is sufficient If it apprises
the executors definitely of the claim
of its character and amount. Encyc.
of Law, pit. 1t was not required nor
would it be proper to deposit the note
as voucher with the executors. The
notary may be considered as the
agent of the plaintiffs in presenting
the claim. "a notice of the non
payment of a promissory note per
sonally served on the executor of the
indorser of the note, or which IS
shown to have come to his hands,
although it may have come from
notary protesting the note, will be
sufficient to withdraw the claim from
the influence of the statute of non
claim in Alabama provided it des-
cribes the note with accuracy, and
informs the personal representative
who the holder is, and that he looks
to him for payment" Hallett V.
Branch Bank at Mobile, II Ala, 1913,
GIL. Cited In 5 Encyc. Law, 219.
This case is quite parallel with the
one at bar.
1t is urged by defendants counsel
that the notice of protest is not
sufficient presentation of a claim, be-
cause it was only intended to fix the
liability of thu indorser. We fail to
see, even if this was its primary OBJ
ject. why it cannot also be considered
as the presentation of claim within
the statute of non-claim. 1t afforded
them all the particulars of the claim,
as to character aud amount. 1t also
states q claim that "the holder s
look to you for the payment thereof"
a statement unnecessary to Tx the |
of the indorser. Warren v. |
Gilman, IL Me-, $50. The objection |
is made that the notice of the notary |
does not state who the claimant is,
but "the notice need not state who is
the holder of the bill or note, nor at |
whose request it is given" 2 Daniel
Neg. Instr. Sec. 979; Mills v. Pres.
U. S. Bank, IL VIII All; Woodthorpe
vs.. Lawes, M. & w. 100; Bradley
vs. Davis, 26 Me. As; Howe vs.. Brad
ley 10 Me- 81 Marshall VS.. Perkins,
~ Me. 346, is authority for the posi-
ton that when a claimant hands to
an executor written statement con-
tanning a full description of prom
issory note to which his testator was
q party, its date, sum payable, time
Of payment and parties, and de
mands payment of him, he has done
all the sts'nte requires of him. There
ian he no doubt, and it is not ques
toned, that the proper parties to
whom notice of dishonor should be
given In this case were the personal
of the deceased In
lorser, the present defendants. 3
Com. Paper, Sec. 1920;
Oriental Bank VS.. Blake, % Pick.
9O6. Our view being that the no.
,ary's notice was in law sufficient
of the claim to satisfy
he probate law, it was sufficiently
favorable to the defendant to leave
he question of the sutficiency of the
,otice to the jury, as was done by the
rial Judge. 1t is not for the defend
lnts to complain of this instruction.
We next consider the exception to
granting plaintiffs prayer for in
tructions numbered 4, viz: THAT
he memorandum given by Hustace
o Waterhouse may be considered as
violence of presentation of claim
against the estate of j. III. Wood"
The memorandum testified to by1
1ustace was not produced before the
ury so that its date was not shown
With certainty, but it would seem
rom the evidence to have been pre-
ented before the dishonor of the
tote. A memorandum showing the
PARTICULARS of the note in Hustace's
Is now before the Court
g an exhibit to defendants motion
or a new trial on the ground of sur
rise. 1t is dated Aug. 13, '92, after
Ir. Woods death and the petition
or probate of the will and while Mr..
Yaterhouse was temporary ad ;
Illustrator, but before the note ;
ad matured. 1t is contended that 7
his memorandum is not sufficient in ,,
aw, because Q) the will was not ad- !
1itted to probate then, and (2) be- !
ause it was not claim against the ..
estate as indorser, the con- !
ingency of the maker not paying the
ote not having arisen, as the note l
Tas not then due. We do not con- I
ider that, since Mr.. Waterhouse, as |
,mnorary administrator bainO also /