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be made in exercise of any power to appoint any property, real or personal, amongst several objects, shall be invalid at law or in equity on the ground that any object of such power has been altogether excluded, but every such appointment shall be valid and effectual, notwithstanding that any one or more of the objects shall not thereby, or in default of appointment, take a share or shares of the property subject to such power.
2. Nothing herein contained shall prejudice or affect any provision in any deed, will, or other instrument, creating any power which shall declare the amount of the share or shares from which no object of the power shall be excluded, or some one or more object or objects of the power shall not be excluded.
POWERS OF ATTORNEY.
44 & 45 Vict. c. 41.
XI.—POWERS OF ATTORNEY. Execution under 46. (1.) The donee of a power of attorney may, if he thinks attorney.
fit, execute or do any assurance, instrument, or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power ; and every assurance, instrument, and thing so executed and done shall be as effectual in law, to all intents, as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.
(2.) This section applies to powers of attorney created by instruments executed either before or after the commencement of
this Act. Payment by 47. (1.) Any person making or doing any payment or act, in attorney under power without good faith, in pursuance of a power of attorney, shall not be notice of death, liable in respect of the payment or act by reason that before the &c., good.
payment or act the donor of the power had died or become lunatic, of unsound mind, or bankrupt, or had revoked the power, if the fact of death, lunacy, unsoundness of mind, bankruptcy, or revocation was not at the time of the payment or act known to the person making or doing the same.
(2.) But this section shall not affect any right against the payee
of any person interested in any money so paid; and that person shall have the like remedy against the payee as he would have had against the payer if the payment had not been made by him.
(3.) This section applies only to payments and acts made and done after the commencement of this Act.
nal instruments creating powers
48. (1.) An instrument creating a power of attorney, its Deposit of origiexecution being verified by affidavit, statutory declaration, or other sufficient evidence, may, with the affidavit or declaration, of attorney. if any, be deposited in the Central Office of the Supreme Court of Judicature.
(2.) A separate file of instruments so deposited shall be kept, and any person may search that file, and inspect every instrument so deposited, and an office copy thereof shall be delivered out to him on request.
(3.) A copy of an instrument so deposited may be presented at the office, and may be stamped or marked as an office copy, and when so stamped or marked shall become and be an office copy.
(4.) An office copy of an instrument so deposited shall without further proof be sufficient evidence of the contents of the instrument and of the deposit thereof in the Central Office.
(5.) General rules may be made for purposes of this section, regulating the practice of the Central Office, and prescribing, with the concurrence of the Commissioners of Her Majesty's Treasury, the fees to be taken therein.
(6.) This section applies to instruments creating powers of attorney executed either before or after the commencement of this Act.
The Conveyancing Act, 1882.
45 & 46 VICT. C. 39.
Powers of Attorney. 8. (1.) If a power of attorney, given for valuable conside- Effect of power ration, is in the instrument creating the power expressed to be of attorney for
value, made irrevocable, then in favour of a purchaser,
(i.) The power shall not be revoked at any time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power; and
(ii.) Any act done at any time by the donee of the power, in pursuance of the power, shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power, had not been done or happened, and
(iii.) Neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice of anything done by the donor of the power, without the concurrence of the donee of the power, or of the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power.
value or not,
(2.) This section applies only to powers of attorney created by
instruments executed after the commencement of this Act. Effect of power
9. (1.) If a power of attorney, whether given for valuable of attorney,
consideration or not, is in the instrument creating the power made irrevocable expressed to be irrevocable for a fixed time therein specified, not
exceeding one year from the date of the instrument, then, in
power shall not be revoked, for and during that fixed time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power; and
(ii.) Any act done within that fixed time, by the donee of the power, in pursuance of the power, shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power, had not been done or happened ; and
(iii.) Neither the donee of the power, nor the purchaser, shall at any time be prejudicially affected by notice either during or after that fixed time of anything done by the donor of the power during that fixed time, without the concurrence of the donee of the power, or of the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power within that fixed time.
(2.) This section applies only to powers of attorney created by instruments executed after the commencement of this Act.
2 & 3 WILL. 4, c. 71. Rights of cori- 1. No claim, lawfully made, by custom, prescription, or grant, mon and other profits à prenlre.
to any right of common or other profit or benefit to be taken and enjoyed from or upon any land of the King, or being parcel of the duchy of Lancaster, or of the duchy of Cornwall, or of any ecclesiastical or lay person, or body corporate, except such matters and things as are herein specially provided for, and except tithes, rent, and services, shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for thirty years, be defeated or destroyed by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years, but, nevertheless, such claim may be defeated in any
other way by which the same is now liable to be defeated ; and when such right, profit, or benefit shall have been so taken and enjoyed for sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.
2. In claims of rights of way, rights of water, and other ease- Easements. ments, the periods are to be twenty years and forty years.
In other respects, this section is similar to sect. 1. (a)
3. When the access and use of light to and for any dwelling Light. house, workshop, or other building, shall have been actually enjoyed therewith (6) for twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly, &c. (as in sect. 1). (c)
4. Each of the said respective periods shall be deemed and Before-mentaken to be the period next before some suit or action wherein tioned periods the claim or matter to which such period may relate shall have those before
actions brought. been or shall be brought into question, and no act or other matter shall be deemed to be an interruption within the meaning of this statute, unless the same shall be submitted to or acquiesced in for one year after the party interrupted shall have notice thereof and of the person making or authorising the same to be made.
5. In pleadings to actions of trespass and other pleadings, Allegation in where the party formerly used to allege his claim from time pleadings. immemorial, the periods mentioned in this Act may be alleged ; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, agreement, or other matter herein before mentioned, or on any cause or matter of fact, or of law not inconsistent with the simple fact of enjoyment, the same
(a) The way, &c., must have been enjoyed “ as a right,” and not merely by stealth, or by occasional permission : (Bright v. Walker, 1 C. M. & R. 211.) User which is neither physically preventible by the owner of the servient tenement, nor actionable, cannot found an easement: (Sturges v. Bridgman, 41 L. T. 219; 11 Ch. Div. 852 ; 48 L. J. 785, Ch.) A right of lateral support to a building by its adjacent soil is an easement, and may be acquired by twenty years' uninterrupted enjoyment: (Commissioners of Public Works, &c., v. Angus and Co.; Dalton v. Angus, 44 L. T. 844.) And, in the case of ancient adjoining buildings, the owner of the one can claim an easement of support from the other : (Lemaitre v. Davis, 46 L. T. 407 ; 19 Ch. Div. 281; 51 L. J. 173, Ch.)
(6) Occupation is not necessary : (Courtauld v. Leigh, 4 Ex. 126.)
(c) The consent or agreement mentioned in sect. 3 need not be signed by the person giving it. An agreement signed by the licensee, and the payment of a nominal rent is sufficient: (Bewley v. Atkinson, 41 L. T. 275; 13 Ch. Div. 283; 49 L. J. 6, Ch.)
No presumption to be allowed.
shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation.
6. In the several cases mentioned in and provided for by this Act, no presumption shall be allowed or made in favour of sup
any claim upon proof of the exercise or enjoyment of the right or matter claimed, for any less time than as before mentioned.
7. The time during which any person otherwise capable of resisting any claim to any of the matters before mentioned shall be an infant, idiot, non compos mentis, feme covert, or tenant for life, or during which any action or suit shall have been pending, and which shall have been diligently prosecuted until abated by the death of any party or parties thereto, shall be excluded in the computation of the periods herein before mentioned, except where the right or claim is hereby declared to be absolute and indefeasible.
8. Provided that when any land or water upon, over, or from which any
such way or other convenient watercourse, or use of water shall be enjoyed or derived, shall be held under or by virtue of any term of life, or any term of years exceeding three from the granting thereof, the time of the enjoyment of any such way or other matter as herein last before mentioned, during the continuance of such term, shall be excluded in the computation of the said period of forty years (a) in case the claim shall, within three years next after the end or sooner determination of such term, be resisted by any person entitled to any reversion expectant on the determination thereof.
Exclusion of time in certain cases
Damage during carriage by water.
31 & 32 Vict. c. 119.
15. Lists of passengers' fares shall be exhibited at each station.
(a) But not in the computation of the period of twenty years : (Palk v. Skinner, 22 L. J. 27 Q. B.)
(0) See also the Railway and Canal Traffic Act, ante, title “ Carriers."