The Hawaiian gazette., 1893-12-19

| alton of the exception by defendant
to the Courts granting plaintiffs
prayer for instruction numbered L
"That the jury may consider thu
demand and notice by the notary
public as evidence of a claim made
by Bishop q Co. upon the estate o.
j. II. Wood" The note fell due
Nov. 10, 1892, and on the last day Of
grace, Nov. %, Mr.. Patty, notary
public, presented, it as his notice OF
protest states, sat the bank of Bishop
& Co. where it was made payable
and payment demanded which was
refused, the said note having been
dishonored the same was this day
protested by me for the non-payment
thereof and the holders look to you
for the payment thereof with all
costs, charges, interests, expenses and
damages thereby already accrued or
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.. Warehouse admits
that he received it a few days after
the Goth November when he arrived
here from the United States. The
jury were told that this was evidence
of a claim made by Bishop q Co.
against the estate of j. II. Wood,
and they were also instructed that it
was 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. H. Wood is a
sufficient presentation of the claim
under our statute of non-claim.
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. 5 Encyc.
of Law, 217. 1t was not required nor
would it be proper to deposit the note
as a 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 a
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" Hsllett "
Branch Bank at Mobile, II Ala, 1873,
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 claim, be-
cause it was only intended to fix the
of the 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 and amount. 1t also
states a claim that 1.-The holder s |
look TO you for the payment thereof"
3 statement unnecessary to fix the
liability of the indorser. Warren Y.
Gilman, IL Me-, $50. The objection
IS made that the notice of the notary
does not state who the claimant is,
put "the notice need not state who is
lhe holder of the bill or note, nor at
whose request it is given" 2 Daniel
Neg. Instr. Sec. 979; Mills V. Pres.
D. S. Bank, IL VIII. 431; Woodthorpe
rs. Lawes, 2 NJ. & w. 100; Bradley
rs. Davis, 26 Me. IS; Howe vs.. Brad.
ey 10 Me. 81. Marshall VS.. Perkins, |
p Me- 346, is authority for the posi- |
ion that when a claimant hands to |
IN executor q written statement con-
aiming a full description of prom
ssory note to which his testator was
! party, its date, sum payable, time
If payment and parties, and de.
hands payment of him, he has done
ii the statute requires of him. There
an be no doubt, and it is not CUES
toned, that the proper parties to
whom notice of dishonor should be
yiven in this case were the personal
of the deceased in
lorser, the present defendants. 3
Com. Paper, Sec. 1920;
oriental Bank vs.. Blake, % Pick.
.06. Our view being that the no.
ary's notice was in law sufficient |
of the claim to satisfy
he probate law, it was sufficiently |
adorable to the defendant to leave |
he question of the suficiency of the |
lotice to the jury, as was done by the
rial Judge. 1t is not for the defend
.nts to complain of this instruction.
We next consider the exception to |
granting plaintiffs prayer for in
tructions numbered 4, viz: THAT
be memorandum given by Hustace
o Warehouse may be considered as
violence of presentation of a claim
.gainst the estate of J. H. Wood"
The memorandum testified to by
1ustace was not produced before the