Gambar halaman
PDF
ePub

1827.

ATTWOOD

v. MUNNINGS.

exchange for other freehold, copyhold, or leasehold estates of any of my said freehold, leasehold, or copyhold estates, the which may be sold or exchanged, and to sign receipts for the consideration money on such sales or exchanges, and also to transpose or transfer any mortgages, or other securities, which she may take for any moneys which, from time to time, may have arisen from such sales or exchanges, and may have been placed out on such securities, and also to view, search, and see the state, condition, and defects of the reparation of all the said estates, and forthwith to give proper notices and directions for repairing the same, and generally to oversee, set, let, manage, and improve the said estates to the best advantage. And also, from time to time, to fell or cut down any wood, or underwoods, timber, or other trees, standing or being on any of my said lands, &c., which I have power to cut down, as my said attorney shall see fit, and to sell and dispose of, or allow for repairs, or otherwise, in or about the said premises, and generally to repair and uphold, or take down and rebuild all or any houses, &c., in and upon the said lands, &c., as occasion shall require, or do any other act and thing for the improvement of the same. And also to pay all taxes, &c., and all other payments whatsoever, due and payable for, or on account of, the houses, &c., and other the premises, of my estate ; and also to contract with any persons for leasing any of the said premises, and to set fines for new leases, and to accept surrenders of leases, and for that purpose, for me, and in my name, and as my act and deed, to make, &c., any leases, demises, or grants, or other lawful deeds, or instruments whatsoever, which shall be necessary and proper

in that behalf. And also for me, and in my name, to ask, receive, and recover, of all the stewards, bailiffs, receivers, farmers, tenants, and all other occupiers whatsoever of all and every my said lands, &c., all rents, arrears of rent, services, issues, profits, emoluments, and sums of money, due, owing, and payable, or at any time hereafter

1827.

ATTWOOD

v. MUNNINGS.

to grow and become due, &c., for, or in respect, or on account of the same premises. And also to take all accounts from any persons whatsoever that have, or shall have, any dealings or transactions with me. And also for me, and in my name, and on my account, to sign my name, and affix my seal, and in due form of law to deliver any other deeds, conveyances, &c., either as trustee or otherwise, as need or occasion may be or require. And also for me, and in my name, during such continuance abroad, to demand, levy, sue for, recover, and receive, by all lawful ways and means whatsoever, of and from all persons whom it doth, shall, or may concern, as well all and

such sum and sums which are now due and owing to me, or which shall or may become and grow due and payable to me, and in default of payment thereof, to have, use, and take all lawful ways and means, and in my name, and otherwise for recovery thereof, by suit, action, plaint, attachment, arrest, or otherwise, and to compromise, or take less than the whole thereof, or otherwise to agree for the same, and, on receiving thereof, acquittances or other sufficient discharges for the same, to make, &c. And also for me, and by the like ways and means, and during my said continuance abroad, to receive as well all sums of money which shall and may become and grow due and payable to me, by and upon all bills of exchange which shall or may be remitted or sent to England for me, or on my account, and such bills to indorse, if necessary, in my name and on my behalf, and also all sums of money which are and shall become and grow due and payable to me, for or upon account of any act or acts of parliament, or for any dividend or dividends for or in respect of any stock belonging to me. And likewise for me, and in my name, but to and for my use, to demand, &c., all such other debts, dues, sunis of money, goods, &c., which now are, or which shall and may hereafter become and grow due, owing, payable, or belonging to me, upon any bonds, bills, notes, or other securities. And also for me, and on my behalf, to pay and

every

1827.

ATTWOOD

MUNNINGS.

accept such bills, notes, or other securities. And also for me, and on my behalf, to pay and accept such bill or bills of exchange as shall be drawn or charged on me by my agents or correspondents, as occasion shall require. And also for me, and on my account, to receive all sums of money now due or payable to me, for or in respect of any legacy, testamentary bequest, or appointment, or otherwise howsoever, and all sums of money which I am now, or hereafter, during my residence abroad, may become entitled to receive as next of kin to any person or persons whatsoever. And generally to do, negotiate, and transact my affairs and business during my absence, as fully and effectually as if I were present and acting therein ; and upon receipt or recovery of all or any such sum or sums of money,' annuities, dividends, debts, dues, goods, effects, bequests, and other things, or any of them, or any part thereof, receipts, acquittals, and other sufficient discharges for the same to make, sign, seal, and execute, for me, and in my name.—230 July, 1817.

Thomas Burleigh, the drawer of the bill of exchange in question, corresponded with the defendant, and acted as his agent, both before and after the receipt of the power of attorney of 23d July, 1817. The defendant, while abroad, employed part of the produce of the joint speculations in his individual concerns. During the absence of the defendant, Thomas Burleigh, for the purpose of raising money to pay to creditors of the joint concern, who were become urgent, drew four bills of exchange for 5001. each, upon the defendant, dated 22d May, 1819. The proceeds of the said four bills were applied in payment of partnership debts. They were accepted by the defendant by procuration of his wife. The bill in question was afterwards drawn and accepted in order to raise money to take up the bills before-mentioned. The following is a copy of the bill :

1827.

ATTWOOD

MUNNINGS.

“ 1,5601.

July 23.

London, 30th January, 1820. Six months after date, pay to my order one thousand five hundred and sixty pounds, for value received.

Thomas Burleigh.“ To Mr. G. G. H. Munnings,

172, Bishopsgate-street.” The acceptance was in these words: “At Esdaile & Co., by procuration of G. G. H. Munnings, S. Munnings.

The bill in question was discounted by the plaintiffs. The defendant returned to England in October, 1821. He, and each of the partners to the joint speculations, claimed to be a creditor on the joint concern.

The question for the opinion of the Court is, whether, under either of the powers of attorney, the defendant's wife was authorized to accept bills drawn by Thomas Burleigh, to raise money to discharge debts, owing by the partners in the joint concern.

Parke for the plaintiffs. The question in this case depends entirely upon the construction of the powers of attorney, and upon their binding effect on the defendant, with respect to third persons; and it is submitted, on the part of the plaintiffs, that Mrs. Munnings had authority to accept the bill in question under both, or either of the powers of attorney; and it will perbaps be most convenient to consider the second, in point of order, first. By the second power, the acceptance of this bill is expressly authorized, for the defendant there empowers his wife, “ for me and in my behalf, to pay and accept such bill or bills of exchange as shall be drawn or charged on me by my agents or correspondents, as occasion shall require.” That the bill in question was drawn on the defendant, by an agent and correspondent of his, is specifically stated in the case; so that the only question really is, whether occasion required that such a bill should be drawn and accepted.

1827.

ATTWOOD

MUNNINGS.

Now, in the first place, that point cannot affect the rights and interests of third persons, the bona fide holders of the bill. The plaintiffs are bankers ; they have discounted the bill in that character, in the fair and ordinary course of business, supposing that the attorney had authority to do that which she assumed to do; and whatever may be the effect of a stipulation like this upon her, it ought not to have any operation upon them; for it must be considered as merely directory to the attorney, giving her a discretionary power, which once exercised, cannot be invalidated. There are authorities for saying that a power of attorney, such as this, ought to receive a more liberal and extended construction, with reference to third persons, than the courts would give it, with reference to the parties themselves. In Howard v. Baillie (a), it was said by the Court, when alluding to this very point, “ Our books say, that these kind of authorities are to be pursued strictly ; they instance, that an authority given to three, cannot be executed by a less number than the whole ; and the statute of 21 Hen. 8, c. 4, was thought necessary to be made, to remedy the inconvenience arising from it, in the case of executors, where some have declined to act : but our books also say, that they are to be so construed as to include all the necessary means of executing them with effect: thus an authority to receive and recover debts includes a power to arrest.” And again, " this direction to pay, in a course of administration, may operate as between her (the execatrix granting the power of attorney) and her attorneys; but as against creditors receiving payment of their debts, it can have no operation.” That language applies forcibly to the present case. This power of attorney ought to be read as if the words, " at the discretion of my attorney, were inserted, for that is the obvious meaning of the clause. The stipulation here is not, to accept “ if it shall be necessary,” but “ as occasion shall require," words of great latitude, involving the question both of necessity and of

(a) 2 H. B. 618.

« SebelumnyaLanjutkan »