
    SUPREME COURT—IN BANCO.
    APRIL TERM—1881.
    
      Harris, C. J., Judd and Me Cully, J. J.
    
    E. Hoffschlaeger & Co. vs. Han Same, Ayau and Wong Kwai.
    ON EXCEPTIONS TO A RULING SUSTAINING THE DEMURRER-
    In an action against the indorser of a promissory note, the com.plaint, in order to hold the indorser, should contain either an-averment of demand on the maker and his non-payment,, and notice of the dishonor to the indorser,,or the excuse for the nonperformance of these conditions;
    
      Copies of promissory notes merely-fastened to the complaint, and not referred to therein as annexed to and to form a part of the complaint, are no part of the complaint.
    J. M. Davidson for plaintiff.
    A. S. Hartwell for defendant.
    Honolulu, April 25th, 1881.
   Opinion of the Court by

Judd, J.

The plaintiffs’ declaration claims twélve'hundred and eighty-one dollars -and sixty-six cents, upon two several promissory notes made by the said Han Same and Ayau, and indorsed by the said Wong Xwai, and payable, &c., * * * for which said sums the defendants are indebted to complainants; for that whereas the said defendants Han Same and Ayau by their promissory notes dated, &c., now over and past due, and the said Wong Kwai as indorser thereof promised and became liable to .pay,” &c. And an averment of non-payment after -an amicable demand.

This is demurred to by Wong Kwai as insufficient.

The complaint, in order to be good against the indorser, ¡should contain either an averment of the performance of the conditions fixing his liability, to wit, demand upon the maker ^.nd his non-payment, and notice of the dishonor to the in-dorser, or the excuse for the non-performance of these conditions. The declaration contains neither allegation. But it is urged that it is apparent that Wong Kwai is liable without demand and notice, because he has waived the necessity of these conditions over his own indorsement, as may be seen by copies of the notes which are affixed to the declaration.

The notes are not recited in full in the body of the complaint, nor are they referred to in apt words as being annexed to and to form a part of the complaint. The notes are simply fastened to the declaration.

We do not see how they ean be regarded as part of the complaint, unless made so by the form of the pleading. This being determined, the declaration is insufficient to charge the indorser. Demurrer sustained.  