The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-07-13

he may have taken 1t Tor collection
only.
OPINION or THE COURT BY JUDD. C. j..
This is an action of assumpsit on a
negotiable promissory note IN words
and figures as follows:
"Kilauea, Kauai, FL. l.,
Oct. LIST, 1892.
Six months after date promise to
pay to II. z. Hugus, or order, Two
Hundred Dollars $4,000 without de-
falcation for value received.
With interest at s per cent. from
date. 7. Mitamura."
On the back of the note there are
the following Endorsements: "Psy
to order of DR.. st. d. O.. Walters,
III. z. Hugus.
Pay to order of j. III. Coney,
st. ID. Gunlais Walters"
The case was tried before the Dis
trict Magistrate of the district of
Hanalei, Kauai, who gave Judgment
for the defendant. The plaintiff
then appealed to the Circuit Court,
Fifth Circuit, jury waived. The case
was put on the calendar for the Sep
request of defendant, continued to
called at the March Term, 1895, of
said Court il was stated that none of
the papers of the case, except the
note could be found. The Court was
proceeding to hear the plaintiffs
evidence when counsel for defendant
objected, on the ground that the
Court had no jurisdiction to hear the
case, because there were no plead
ings nor papers before the Court, and
no proof of loss of same, nor any
proof of the contents of same.
These objections were severally
overruled, but the plaintiffs counsel
supplied proof or the loss of the
original papers, and, by affidavit,
proof of their contents substantially,
also that the appeal had been per-
fected. These facts all appear in
defendants bill of exceptions. The
defects complained of by defendants
counsel having been cured as above
set forth, we do not consider 1T neces
sary to decide whether the Court
would have had jurisdiction to pro-
coed with the case without these
proofs being made.
After plaintiffs proofs were
in, the defendant moved for
nonsuit, making the following
points as appear In the bill of ex-
ceptions; that the note upon which
the action IS based has been trans
ferred to the plaintiff without con-
sideration, and that the plaintiff Is
not bona tide holder thereof for valu
able consideration. The nonsuit be
ing refused the defendant put on
evidence and the Court gave judg-
ment In favor of the plaintiff.
The facts sent up are substantially
these: At the date of the note, Octo-
Der l, 1892, one DR.. Ii. z. Hugus
was Government Physician at Hama
would procure for DR.. Mitamura
(defendantl, the appointment of Gov
eminent Physician at Hsnalei, de-
PENDANT gave DIR. Hugus his promis-
sorry note for 5000 payable in six
months. Defendant testified that
the condition had not been perform
ed for he had not received the ap-
pointment. This is not denied. If
the action had been brought by DIR.
Hugus it would seem as if this de-
Tense should have prevailed. The
note, however, had been transferred
to DIR. St. ID. G.. Walters by indorse-
ment- The consideration of the
transfer was proved to be one hun
dred dollars. If the transfer of this note
had been made before maturity the
equities would not be open to the de.
PENDANT unless they had been brought
to his notice. But If the transfer was
made after maturity they would be-
Unfortunately there is no evidence
upon this point, and the presump.
ton Is that it was transferred before
maturity, and so the defense of
failure of consideration is not avail
able to defendant.
2 Randolph, Commercial paper,
Sec. CSC and numerous cases there
cited.
The endorsement by DR.. Walters
to the plaintiff Coney, is the ordinary
special Endorsement "Pav to the order
of j. II. Coney." But Coney admit.
ted that this transfer was made with
out consideration passing and for
collection merely. The plaintiff as
indorsee became vested with the
legal title and was the proper person
to bring suit on the note. Even if it
be proved that the transfer was for
the purpose of collection merely snit
thereon may be maintained by the
holder Authorities for these pro-
positions of law are 2 Randolph,
Commercial paper, Secs. 735 6.
DarEiao 70 &C. OK