The Hawaiian gazette., 1888-02-21

a pEOulloSOiN nObG SSCdiSu Dy a lIOI U
gage of real estate of Catherine
BateheIer, the wife of E. Bachelor;
both note and mortgage are signed
4sE. Bachelor by his attorney in
fact Catherine Bachelor, Catherine
Bathelor," and are dated lst August,
1888.
The jury was waived and the case
tried by Mr.. Justice Bickerton who
found for the defendants. The
plaintiff excepted to the decision and
moved for new trial on the grounds
(IsD that the decision was contrary
to the law and the evidence, and ed
of newly discovered evidence. The
motion was overruled and the plant
if filed his bill of exceptions.
A power of attorney, dated 18th
January, 1888 and recorded on the
22d January, 1888, is in evidence;
it is executed by Edward Bachelor
and authorizes Catherine Bachelor,
his wife, to take possession of and
manage all of his real and personal
estate in the Kingdom and to mort
gage and sell the real estate at her
discretion and execute and deliver
necessary instruments therefor and
receive the consideration money.
The power of attorney contains no
allusion to the real estate belonging
to Catharine Bachelor, and gives
her no authority to deal with any
such real estate.
There was some effort to show a
verbal authority from E. Bachelor
TO his wife for the execution of the
note, followed by a ratification of the
instruments on his part; but the
testimony was properly regarded as
insufficient by the Court.
There being no authority in the
power Of attorney produced in evil
dence, for the wife to mortgage her
own real estate the Court was clearly
right in deciding that the note Sc
cured by such mortgage and exc
cuted by the wife for herself and as
the attorney in fact of her husband,
was unauthorized by the power of
attorney in question.
We therefore, on the first ground
of the motion for new trial, 4. G. !,
that the decision of the Court was
contrary to the law and the evidence,
find no reason for granting a new
trial.
Upon the second ground, that of
newly discovered evidence, we find
from the affidavits filed in support of
the motion, particularly the affidavit
of Cecil Brown, that there were cir
cumstances unknown to the plaintiff
at the time of thetrial, which would
have materially altered the charac-
ter of the case before the Court if
the plaintiff could have introduced
testimony concerning them. Browns
statement in effect is, that he
acted for plaintiff in loaning the
money in question and that the
power of attorney on file is not the
one under which Catherine Batch
eler acted as attorney to execute the
note and mortgage in question, that
he examined and rejected it, and
that there was power of attorney
under which Catherine Bachelor
acted in executing the mortgage and
note, from her husband, which was
special for the purpose of the loan OF
$1,000 to Z. Bachelor on the mort
1 gage Of his wife's property and the
execution of a note therefor
z. The plaintiffs affidavit alleges
that the information contained in
} Mr.. Browns affidavit is a surprise tc
} him and that be was ignorant thereof
at the time of the trial and had nc
means of discovering the same il
time for production thereof at the
h hearing. In his testimony he says
b. 81 have not given it presumably
his suit as much thought as
Il should"
n, 1t is urged by defendants counsel
I shat Mr.. Brown being the plaintiff
M agent in the effecting of the loan,
81 his knowledge is the knowledge OF
W his principal and consequently the
. plaintiff is not entitled to a new
l. trial on the ground of newly discov.
: cred evidence. 1t seems to us thai
Il this Is not proper application OF the
y principle referred to. Mr.. Browns
e information was in the nature of :
K lawyers professional opinion as tC
O. the legal character of written instru.
IS ments, and the plaintiff could not be
e expected to know several years
n later that a power of attorney in his
a possession between the same parties
lie and for similar object as the one
referred to in Mr.. Browns affidavit,
was not the one under which the
ali mortgage and note were executed
thu especially as Mr.. Brown was not his
IN attorney in conducting the case.
Under these circumstances the sur
81 g. prise of the plaintiff is not inconsist-
Il 4 -.