Affidavit of the execution of power. issued, have made, ordained, constituted, and appointed, and by these presents do make, ordain, constitute, and appoint C. C., of, &c., my true and lawful attorney, for me and in my name, place, and stead, to appear before the commissioners in and by the said fiat named and authorized, or the major part of them, at, &c., or elsewhere, at the days and times appointed in the London Gazette, for the choice of assignees of the estate and effects of the said B. B., and then and there, for me and in my name, to consent with whom the moneys to be received from time to time, amounting to the sum of L. and upwards, out of the said bankrupt's estate and effects, shall remain until the same be divided. And also, for me and in my name, to vote in the choice of one or more assignee or assignees of the said bankrupt's estate or effects. And also, in case that I, the said A. A., should happen to be chosen assignee under the said commission against the said B. B., then, as my said attorney, and for me and in my name, to accept the said trust; and further, to act, do, and perform all and whatsoever shall be needful and requisite to be done, in, about, or concerning the premises. And I do hereby ratify, confirm, and allow all and whatsoever my said attorney shall lawfully do, or cause to be done for me, by virtue of these presents, and of the power and authority hereby to him by me given. In witness, &c." Affidavit of the execution of the above power of attor ney: :“ T. H., of, &c., maketh oath, that he was present and did see A. A., of, &c., duly sign, seal, and as his act and deed deliver the power of attorney hereunto annexed; and that the name A. A., subscribed against the seal of the said power of attorney, is the proper handwriting of the said A. A.; and that the names of this deponent and of D. D., subscribed to the said power of attorney as witnesses to the execution thereof, are of this deponent's and of the said D. D.'s own proper respective handwriting. Sworn at A., in the county of B., the, &c., } before me, A. B., Master Extraordinary in Chancery. OBSERVATIONS ON POWERS OF ATTORNEY. It will be necessary to make but very few observa- How given. ̧ tions on this head. An attorney may be appointed by parol; but as a deed is necessary in those cases where it is intended to give the attorney power to do any act under seal, or to deliver seisin," it is the general, and certainly an advisable practice, to make the appointment by deed in all cases. Persons who are disqualified from acting in their own capacity, as infants and femes covert, may yet act as agents for others." A power of attorney is in general revocable by the party giving it at any time, and without the assent or even the knowledge of the attorney ; but where the appointment forms part of a security, or is otherwise united with some interest in the person to whom or in whose favour it is given, it cannot be revoked without the assent of such person; and where the appointment is under seal, it can be revoked only by deed. The extent of the attorney's power cannot be greater, or of longer duration, than that of his principal, and, consequently, he can do nothing after the death of the latter, which is necessarily a revocation, or rather a determination of the power." White v. Cuyler, 6 T. R. 176; Berkley v. Hardy, S Dowl, and R. 102. "Co. Litt. 52 b. V Co. Litt. 52 a; Emmerson v. Blondell, 1 Esp. 142; Cromwell v. Hyreon, 2 Esp. 511; Anderson v. Sanderson, 2 Stark. N. P. C. 204. 5 B. and C. 355. * Walsh v. Whitcomb, 2 Esp. 565; Watson v. King, 4 Camp. 272; Hodgson v. Anderson, 3 Barn. and C. 842; Gaussen v. Morton, 10 Barn. and C. 731; Bromly v. Holland, 7 Ves. 28. ▾ Jarm. Byth. vol. v. 150. Lepard v. Vernon, 2 Ves. and B. 51; Watson v. King, 4 Camp. 272; S. C. Stark. 121; Co. Litt. 52 b. 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. 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; 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 "Bristow v. Taylor, Stark. 50. Jarm. Byth. vol. v. 150. White v. Cuyler, 6 T. R. 176; Berkley v. Hardy, 8 Dowl. 102; 5 B. and C. 355. d Randall v. Harvey, 2 H. Bl. 610. e Parker v. Kett, 1 Salk. 95. * Gutherie v. Armstrong, 5 B. and A. 628. to compound, discharge, and give releases, the attorney is not thereby authorized to negotiate or indorse bills in the name of his principal, even though his doing 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.1 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 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 the g 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 pa pers 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. |