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Unformatted text preview: terms and provisions of the power of attorney in vain to find any authority for the husband
to make his wife liable as a surety for the payment of the preexisting debt of a third person.
Paragraph 5 of the power of attorney above quoted authorizes the husband for in the name of his wife to
"loan or borrow any sums of money or fungible things, etc." This should be construed to mean that the
husband had power only to loan his wife's money and to borrow money for or on account of his wife as her
agent and attorney in fact. That does not carry with it or imply that he had the legal right to make his wife
liable as a surety for the preexisting debt of a third person.
Paragraph 6 authorizes him to "enter into any kind of contracts whether civil or mercantile, giving due form 62 thereof either by private documents or public deeds, etc."
Paragraph 7 authorizes him to "draw, endorse, accept, issue and negotiate any drafts, bills of exchange,
letters of credit, letters of payment, bills, vales, promissory notes, etc."
The foregoing are the clauses in the power of attorney upon which the bank relies for the authority of the
husband to execute promissory notes for and on behalf of his wife and as her agent.
It will be noted that there is no provision in either of them which authorizes or empowers him to sign
anything or to do anything which would make his wife liable as a surety for a preexisting debt.
It is fundamental rule of construction that where in an instrument powers and duties are specified and
defined, that all of such powers and duties are limited and confined to those which are specified and defined,
and that all other powers and duties are excluded.
Paragraph 8 of the power of attorney authorizes the husband to institute, prosecute and defend all actions or
proceedings in a court of justice, including "accepting notices and summons."
There is nothing in the record tending to show that the husband accepted the service of any notice or
summons in the action on behalf of the bank, and e...
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- Fall '14