The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-07-13

given 1t is held that such indorser
contracts and becomes liable as an
indorser, his position on the back of
the note indicating that intention
| In Pennsylvania he is held to be q
/ second iudOrser because with the
| payee's name before his be cannot be
considered a first indorser. Gilbert
Y. flukheiner, 6S Penn, 247. Ia New
York he Is now considered Is a first
| ludOrser; Moore V. Cross, 10 y. y,
227; Coulter Y. Richmond, 80 y. Y.
479.
Daniel expresses his own views
thus: Our own views are that the
| party who puts his name on the back
of negotiable note before it is in-
dorsed by the psyee, should be pre-
sumed to be first indorser. If he
intended TO be q second indorser he
should have RETAINED from putting
his name on the note until it was
first indcrsed by the payee. By plae
ing it first he enables the payee TO
place his own afterwards; and priD7G
faeis the facts would seem to indicate
such intention. We do not perceive
that there is anything insuperable to
this view in the objection that there
is no title in him to iudorse away.
Prior parties could not be sued with
out the payee's Endorsement; but he
being an indorser can be sued by any
one deriving title under him"
In England such an irregular in
dorsement Is considered TO render
the party liable as new drawer.
Penny W.. lime. CromptoH, Nee
son & Roscoe, 439. In California by
Riggs VS. Waldo, 2 Cal. 4S7, and
Jones VS. Goodwin. SO Cal, 493. and
by Code, he IS held to be an iudorser,
and entitled to demand and notice
to tx his liabilities.
This has been the view which has
obtained for long while Ia the
business community OF these islands.
And being free to decide either way
upon authority, and there being good
reasons for both views we prefer TO
adopt the view which has prevailed
here among business men, and hold |
that such a person is first iudOrser. /
Ii the plaintiffs in error were indOr
sers, as we have held them to be, |
then they were entitled to demand |
and notice An Endorsement Is held 7
10 be an independent contract. SO I.
distinct IS the contract OF an indOrser /
from that of the maker, that at CON /
mon law separate action against |
each was Indispensable. L Daniel /
Neg Instr, Sec 669, and cases cited. (
But by Act OF 1876, Chap. so, a holder /
of negotiable security may join rs .
defendants In any action for the re
covery OF the amount secure by any 4
such instrument all or auy OF the an (
tecedent parties 10 the same whether /
maker, drawer, accsptor or lndorser.' i
But this statute which dispenses with |
the necessity of separate action 4
against the indorser does not render /
it unnecessary to state In the com /
plant the facts which are essential /
to holding an indorser liable. These /
are allegations that the plaintiffs IN |
error indorsed the note, that 1t was /
presented to the maker at maturity /
and notice of non payment thereupon /
given to the indorser aud demand !
made upon him. 4 cause of action /
should be stated = the language may |
be varied, but the essential facts to |
show liability on the part OF the IN
dorser must appear. We notice that |
Sections 9l9 and 921 of the Compiled |
Laws by which the District Courts
were not confined to forms, and /
which allow parties to be cited by |
oral message or by writing, etc, are |
repealed by Section so of the Act to |
Reorganize the Judiciary Depart
ment. None OF the essentials above !
named appearing in the complaint, |
and there being no evidence of notice
1nr1an6 ~
rendered judgment for the defendant |
in error, and the judgment is reversed |
with costs.
A. S Hartwell for plaintiffs IN er
ror; J. III. Davidson for defendant IN |
error.
Honolulu, July 9Th, 1898.