Page:The American Cyclopædia (1879) Volume II.djvu/109

 ATTORNEY, POWER OF 97 nor will he advise upon speculative or hypo- thetical cases, nor upon any point of^law un- less it has actually arisen in a case presented for the action of a department. An act of June 22, 1870, established an executive depart- ment of the government, called the department of justice, and made the attorney general the head of it. The statute provides for the ap- pointment of a solicitor general and of assist- ants to the attorney general, and transfers to the department the solicitors of the treasury, of the navy, and of the internal revenue, the naval judge advocate, and the clerks and as- sistants of these officers. It authorizes the at- torney general to refer questions submitted to him to his assistants, and their opinions ap- proved by him have the force of his own. He may direct the solicitor general to argue causes in the court of claims in which the United States is interested, and appeals from that court to the supreme court in such cases as are committed to him and to the solicitor general. The secretaries of the war and navy depart- ments may also by this act require opinions from the attorney general on questions of law the cognizance of which is not given by stat- ute to other officers. The duties of the attor- ney general of a state are denned by constitu- tional or statutory provisions. They are gen- erally to prosecute and defend all kinds of actions in the event of which the people of the state are interested ; to recover for the state escheated lands or forfeited estates ; to test the right of any person who is charged with unlawfully holding or exercising any public office or any franchise within the state, or the right of persons who are alleged to be acting as a corporation without authority; to bring actions for the purpose of vacating the charters or revoking the franchises of corporations for violations of the provisions of the acts which created them, or when they have incurred for- feiture of their charters by nonuser of their franchises, or the assumption of privileges not conferred upon them. It is also his function to give legal advice to the governor and to other officers of the state ; to prepare legal in- struments for the use of the state; and at the request of the governor or other state officials to indict and prosecute persons accused by such officers of violations of the laws which they are charged with enforcing. ATTORNEY, Power of, an authority by which one person is empowered to act in the place or as the attorney of another. The one who confers the power is called the constituent or the principal, and the one to whom it is given is called the attorney in fact, that is to say, in faction or for a special purpose, and by way of general distinction from a professional at- torney at law. All persons except those who have not a legal capacity to act for themselves, such as married women and infants, may ap- point an attorney in fact. But under the recent acts which give married women separate estates and independent powers over them, they also may, as to such property at least, probably appoint attorneys. All persons who have suffi- cient intelligence may be made attorneys in fact, including even some who are disqualified from acting for themselves, such as married women and minors, provided they are of sufficient age and discretion. The power of attorney may for many purposes be created by parol, but usually it is reduced to writing. If the power contemplates the making of a deed by the attorney, his authority must also be by deed, that is to say, by writing under seal, and must be executed and acknowledged with the same formalities which are required in the case of deeds. In the interpretation of powers of at- torney they are to be construed strictly, and this rule should be kept in view in framing such instruments. The power may be broad or narrow. It may be general, extending to all the affairs of the constituent, or it may be special, and limited to some particular subject or to some particular class of the affairs of the principal. In view of the rule of construction just suggested, a special power should be very explicit, enumerating as minutely as is prac- ticable all the acts which the attorney may perform, although all acts will be sustained which are fairly within the scope and design of the power, even though they are not spe- cifically named. And the power had best be thus special and particular, if possible, rather than general ; for the courts incline to construe even general powers narrowly rather than broadly, and even the general clause usually inserted in special powers, as for example, to do all other acts which the constituent might do in the premises, is usually interpreted with reference to the special matters enumerated, and is held to authorize only such acts as are fairly required in the performance of them. A general authority to make and indorse notes, the power being apparently conferred to enable the attorney to carry on the business of his principal in his absence, would be limited to notes to be used in that business ; an authority to collect all demands, and to accomplish a complete adjustment of all the principal's af- fairs, would not authorize the attorney, in the course and for the purposes of such a general settlement, to give a note in the name of the principal ; and it has been held that an author- ity to endorse notes does not empower the at- torney to receive notices of protest, and that a general power given by a member of a firm to his copartner to transact all his business, whether relating to him as a partner or as an individual, does not authorize the attorney to transfer the individual property of the princi- pal to a trustee for the payment of his debts. So a power to sell or convey lands does not give a power to mortgage, nor does it authorize such other dealing with the lands as a license to enter and cut timber. If the power looks to conveyance of real estate- and to the giving of deeds, it should state expressly whether the attorney may exchange or lease or mortgage