Page images
PDF
EPUB

Where two or more persons concur in the appointment of an attorney, each of them has the power of revoking the appointment, even without the consent of the other.

It is a general rule, that no one can take any thing under a deed, except by way of remainder, who is not a party to it; but it is the custom to appoint persons attorneys to deliver or receive seisin in a feoffment, without making them parties to the deed of feoffment; and though such appointments are stated by Lord Coke to be bad, there are decisions in their favour; and there is no doubt but that they would be now considered valid.

A subsequent power will be considered a revocation of a previously existing power relative to the same matters, unless it should clearly appear that the attorney appointed by the subsequent power is intended to act conjointly with, and not instead of the one first appointed.c

It has been elsewhere noticed, that an attorney executing a deed for his principal must do so in his principal's, and not in his own name; ante, p. 3 and 115.

An authority to do any act implies an authority to do every other act which is incident to it, or necessary to its performance;d but with its qualification it may be stated as a universal proposition, that an attorney has no powers beyond those actually given him by the terms of his appointment, and with which he must act in strict accordance. Thus where the power authorizes two persons to act jointly, the acts of one alone would be invalid ;' and where a power is given to receive and recover all moneys, and

[ocr errors]

to compound, discharge, and give releases, the attorney is not thereby anthorized to negotiate or indorse bills in the name of his principal, even though his do. ing so might be in furtherance of the objects of his appointment;' but where the power authorizes the attorney to deliver seisin of premises, according to the form and effect of the deed of feoffment, the livery is good, though not made on the day of the execution of such deed."

A general power to an attorney to receive moneys authorizes him to receive a legacy.

A party will not be entitled to receive dividends on stock under an ordinary power, but a power for that purpose must be obtained from the Bank of England.

If a power is given to more than two to act jointly and severally, one only, or the whole number, must concur in any act; but the act of two would be considered neither joint nor several, unless the power was given to “any of them."

The accountant-general of the Court of Chancery, and most other public officers, themselves prepare the powers of attorney upon which they are to act; and care should be taken to follow exactly the directions given for verification of the signatures, and for the affidavits required from the attesting witnesses.

Where a power of attorney is transmitted to the East Indies to recover a debt due to a person resident in London, it should be accompanied by affidavits by the creditor, and some third person verifying the debt; which affidavits should be sworn before the mayor, whose signature should be certified by a notary-public and the assistant secretary of the company ;--this certifies that such notary is a public no

: Murray v. the East India Company, 5 B. and A. 204.
+ Roe dem. Heale v. Rashlegh, 3 B. and A. 156.
i Carr v. Eastbrook, 2 Cox, 390.

Co. Litt. 181 b.
Gutherie v. Armstrong, 5 Barn, and Ald. 628.

tary practising in London. For these forms, see Chitty's Commercial Law, vol. iv. p. 30. In order to avoid the necessity of having more than one affidavit, the person deposing to the fact of the debt being due should be one of the attesting witnesses to the power of attorney, and should make the affidavit of its execution. · Where a power is intended to be used in the United States, the person executing it should attend at the office of the Consulate, (which, in London, is near Bishopsgate Church,) where the execution will be duly authenticated; but if this be impracticable, the party should produce the power in the presence of a notary-public, and two other persons, and the notary will attest it by an act in the usual way. The papers should then be taken to the Consulate's office of the States, (at the nearest port,) where the necessary authentication of the notary's act may be obtained. If the power is to be used in the United States only, no stamp will be requisite.

CHAPTER XXXI.

ON THE PROTECTORATE.

After the able way in which the provisions of the 3d and 4th William IV., c. 74, have been handled, the editor feels that he should be guilty of little short of presumption, were he to attempt to add any thing of his own on the subject; nor is it possible, within the compass allowed in a work of this character, to give any thing like a general view of what has been written on the subject; but he trusts that the illustrative tables, and few explanatory notes which he has prepared, with a view of assisting the practitioner in the application of those provisions of the act which more immediately relate to the office of Protector, will not be found altogether unacceptable.

It is important, in using the following tables, that the reader should bear in mind the definitions of the word “Settlement,” as used in this act of Parliament. It is defined, in the 1st section, to be an “ assurance, whether by deed, will, act of Parliament, or otherwise, by which lands are or shall be entailed or agreed, or directed to be entailed ;" and by the same section it is provided, that an appointment under a power shall be considered part of the settlement creating the power, and that the death of the

testator shall be considered the date of a settlement
made by will, a provision which is consistent with
the general law of wills, as altered by the 1st Victoria,
c. 26. The person who, under the permanent pro-
visions of the act, will be entitled to the protector-
ship, is pointed out in the second table ; but as the
act contains particular provisions, made out of re-
spect to vested rights, which, for some years to
come, will in many instances interfere with those of
a permanent nature, it will be necessary, before resort-
ing to that table, to ascertain whether any one may
be in existence, who, under the temporary clauses,
may be entitled to the office of protector. To faci-
litate this inquiry, the editor has attempted, in the
first table, to point out who may be so entitled.
Should the temporary provision not point out any
protector, then resort must be had to the permanent
provision; and it may be noticed, that, in cases
where there is no protector, owing either to the
death of any party, or the fact of none having ever
been in existence, the tenant in tail has in himself
all the powers that he would have had if a protector
was in existence, and assented to his acts.

would have

Table I. Person who ist, Where an estate created by the same settle

ment as the estate tail was originally assigned prior been tenant to the precipe. to 1834, if the present owner of it (whether the ori

ginal assignee or not) would have been the person to make a tenant to the precipe, had the act not passed, he shall be the protector, sect. 29.

2d, Where the estate tail was created prior to 1834, out of a remainder or reversion, the person who, if this act had not passed, would be entitled to make a tenant to the precipe, shall be protector, sect. 30.

3d, The person who, in respect of an estate created by a settlement made prior to 28th August 1833, would be the person to make a tenant to the precipe, shall, notwithstanding he may be a bare

« PreviousContinue »