Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1852-12-04
ADVERTISEMENT

A. Oar EWING &
WILLIAM MILLER,
ROBERT c. JANioN.
! Tie bill filed in this suit alleges that tn,
defendant as one of the late firm of Messrs
iStarkey, Janion s. Co. has in his posses
. sion certain goods and moneys belonging t,
the Complainants, who reside in Glasgow
Scotland, for which he refuses to account
Iprays that he may be compelled to account
Therefor, SC.
On the final hearing, it was contendet
J that the bill is merely bill of discovery
and that on the coming in of the defendant ;.
answer, the case, so fer as the Equity side
Of this Court is concerned, is brought to an
end. We entertain a different opinion. The
bill, while it seeks discovery of the facts
as to the receipt, sale, &c., of the goods,
also prays that the defendant may be made
to account for such goods. Now this suit,
as we have shown in former decision, is
clearly one over which the Equity side of
this Court has rightful jurisdiction; and once
having jurisdiction, 1t is well settled prin-
ciple, that the Court ought to proceed to
give relief, in order TO avoid the multiplicity
of suits. "The jurisdiction having once
attached, it shall be made effectual for the
purposes of complete relief" { Story s
Eq. Jur: p 80. "a. K.) But it is said by
the Counsel for the defendant, that granting
II to be true that relief is ancillary to dscoy-
cry, yet the Complainant's 8 case must fall to
the ground; for the Defendant by his answer
has made no discovery; and the bill sho4ld
be dismissed with costs. We are of the
opinion, however, that the defendants an
swer, and his deposition made before the
Master, do make discovery, and that too,
sufficient, in connection with the other proofs
to require the Court to proceed to a De-
icree
But the demand for an account was made
and this is brought, by virtue of power Of
Attorney executed by the complainants in
Glasgow, TO Messrs. Porter s. Ogden Of Hon
olulu, viii h power of Attorney il is contend
ed by the Counsel for the defendant is not
duly authenticated, and consequently, one
which Mr.. Janion was not bound to obey
The execution of the power of Attorney is
certified TO have been proved before the Hon
Sir James Anderson, Lord Provost and
Chief Magistrate of the city of Glasgow; /;
| and to this is annexed the certificate of R
Jameson, Noiary Public" under his seal, to
the effect that the Honorable Sir James An
derson, is the Lord Provost and Chief Mag
Istrate of the city of Glasgow, and the sig
nature flames Anderson Lord Provost" to
the certificate of proofs genuine. But, say
the learned Counsel, this is not sufficient:
for the certificate Of the Lord Povost of
Glasgow, in the absence OF any statutory en-
actment making it admissible IN Evidence,
Is no better than the statement of private
person, and entitled to no more weight We
are aware that the general rule on this SUBJ
lIect, as il prevails in England and the Uni
ted States, supports the doctrine contended
for, but that rule has not been adopted here,
to It's full extent, and in the present position
of affairs at these islands, we do not feel
justified in SO adopting it. Foreign certifi-
Gates have been occasionally admitted into
the United States, United States rs. Mitch
|ell, 3 Wash, G. G. Rep. 95. &C. under cir
Icumstances similar to those existing in this
case; and we feel inclined TO say, that so
long we have no Commissioners in other
countries to take the acknowledgment of
deeds, powers Of attorneys, &C., an acknowl-
Judgment made before the Lord Provost and
Chief Magistrate o: Glasgow, or the Mayor
or Chief Magistrate of any large city in
Great Britain. France or the United States,
or Notary Public, and duly authenticated
under his hand and official seal, will be suf
ficient evidence of the execution Of such
deed or power. Of attorney here. Such a
ruling would seem almost necessary in these
remote islands, to the safety of commercial
The language of Professor
Grcenleaf in his able Treatise on the Law
of Evidence, we think, would fully sustain
such ruling in this case. If the instru-
ment is formally executed in foreign coun
try, and the execution is authenticated by a
Notary Public, this is sufficient proof to en-
title it to be read. But if the authorization
was before the Mayor of foreign toun, it is
not received without some evidence of his
holding the Office" q GTeen'f Ev: s 290.
But it is unnecessary for us to go to that
length in the present case; for If there is
any defect in the proof of the power Of at
torney, we are of opinion, that it has been
cured BY the repeated admissions of the de-
fendant in his letters to compliments atior-
neys Of November 29th and December lst,
1851, by the defendants introduction of the
letters from A. Orr Ewing & Co. dated
August Odd, 1851. and finally, by the defend
anti deposition made before the Master on
the 18th August, 1852. There is not a
shadow of doubt in our mind that the power
of attorney is genuine, nor has the defend
ant ever denied its validity IN his corresPon-
dence with the attorneys, Porter & Ogden
The only ground taken by the defendant IN
the outset, was that stated in his letters to
the attorneys. namely: that the goods Of the
complainants were secure in his hands, and
that before Porter s. Ogden could proceed to
act ,,non the power of attorney, and take
them out of his keeping, it was incumbent OH
them to show that the goods were in state
Of insecurity, or in his own words. TO prove