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1824.

The KING

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tum solenne, quo firmatur donum, concessio, pactum, contractus, et hujusmodi; alias charta; et est vel simplex vel FAUNTLEROY. indentatum; hoc ubi plures contrahunt; illud, ubi solus quispiam agit." The latter part of the sentence, therefore, clearly refers to matters which are not of contract. In the case cited from the Year Books, the decision is not given, but it may be fairly collected, from the statement of the case, that, if the letter of attorney had been alleged in the count to have been a deed, no objection could have been taken; or, in other words, that the letter of attorney might have been properly called a deed. In Taverner's case the only question was, whether the forging of a customary of a manor was the forging of a writing sealed within the 5 Eliz. c. 14; and no question was raised as to what was or was not a deed. As to awards, all the authorities tend to shew that they are not necessarily deeds, but become so if executed with the requisite formality of deeds; for in Dod v. Herbert, Lord Chief Justice Glyn drew the distinction, stating, that an arbitrament might be made without a deed, and, if so, it necessarily follows that it may be done by deed; and Mr. Justice Lawrence, in the case of Brown v. Vawser (a), expressly says, "if an arbitrator deliver an award under seal as a deed, it must then have a deed stamp; but that though it were to be by a writing under seal, yet if it were not delivered as a deed, it was sufficient if it had the common award stamp." A licence A licence may also be by deed, although there be no contract: so, if a man levy a fine without a deed to lead the uses, the uses would result to himself, and if, without contract, he declare the uses to himself for life, or to his wife for life, remainder to his first and other sons in tail, such declaration in writing, sealed and delivered, would ex vi termini be a deed, although totally independent of any contract. If, therefore, the proposition that a deed must contain a contract or bargain, be disproved, it is scarcely necessary to advert to the argu

(a) 4 East, 585.

ments that have been urged as to the nature of the covenant expressed in this instrument; which is by no means so nugatory and unimportant as has been supposed. It is necessary, in order to bind the representatives after the death of the party, and was inserted, after great deliberation, with a view to protect the Bank as to acts done under a power, before they could have notice of the death of the principal; for, a mere power ceases as a matter of course with the life of the grantor.

Secondly, it has been insisted that although the power in question may be a deed, yet that it is not such an instrument as to fall within the meaning of the statutes 2 Geo. 2, c. 25; 31 Geo. 2, c. 22; and 45 Geo. 3, c. 89. With respect to the former of these statutes, it is quite clear that a power of attorney, signed, sealed and delivered, is a deed within the contemplation and intention of the Legislature. It is said, however, that the 8 Geo. 1, c. 22, had expressly included this species of instrument, and that, in subsequent acts, a power of attorney is also provided for, and, therefore, that it could not be brought within the meaning of 2 Geo. 2, c. 25, although clearly within its language. It is an established rule of law, that affirmative words in a statute do not repeal provisions in a prior statute with which they are consistent; and all the statutes subsequent to 2 Geo. 2, will, on examination, be found to be directed to remedy some particular mischief, and not to contemplate such a distinction as is now contended for. The forgery of a power of attorney for the transfer of shares in the public funds, was an offence not provided for at the time of passing the 2 Geo. 2, c. 25. The argument, therefore, drawn from the preamble of that act, is groundless. The particular object of the statute 31 Geo. 2, c. 22, s. 77, was to extend the provisions of 8 Geo. 1, c. 22, to capital stocks created subsequently to the passing of that statute, and also by s. 78, to extend the provisions of 2 Geo. 2, c. 25, s. 1, to forgeries committed with intent to defraud corporations. The

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CASES IN HILARY TERM,

4 Geo. 3, c. 25, merely extends the provisions of 8 Geo. 1, c. 22, and 31 Geo. 2, c. 22, to capital stocks for bodies poliFAUNTLEROY. tic and corporate then established, or to be established by subsequent acts. The 37 Geo. 3, c. 122, does not at all affect the present question, as it applies only to the forging of the names of attesting witnesses to powers of attorney. According, therefore, to the true and legal construction of the several statutes, the instrument in question has been properly described as a deed. That it is so, is demonstrated by the uniform usage and practice of proceeding against offences of this nature under the statute 2 Geo. 2, c. 25. In the case of Western, who was convicted and executed in 1796, there were two counts in the indictment for forging a deed, two for uttering it knowing it to be forged, and two for forging a power of attorney; but in that case there was evidence of the actual forgery. In Cock's case, in 1802, the indictment was in the same form, and there was no evidence of the actual forgery; the prisoner must therefore have been convicted on the count for uttering. 1804, Ann Hurle was convicted and executed on an indictment containing four counts, viz. two for forging, and two for uttering a forged deed knowing it to be so, under the statute 31 Geo. 2, c. 22, and alleging the intent to be to defraud the Governor and Company of the Bank of England. In 1816, Joseph Boyce was convicted of forging and uttering a deed under 2 Geo. 2, c. 25, which deed was described in the indictment as a power of attorney. In 1817, Mary Ann James was convicted under similar circumstances. In The King v. Wait, the objection now taken was not even suggested by counsel, or the Court, although the nature of the instrument was there fully considered. [Mr. Justice Park referred to the case of Sophia Pringle, who was executed in 1787, under the statute 2 Geo. 2, c. 25, for forging and uttering as true a forged deed, purporting to be a power of attorney]. If there had been the slightest doubt as to the propriety of these convictions,

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all of which were anterior to the passing of the statute 45 Geo. 3, c. 89, that statute would have removed those doubts by the express mention of "powers of attorney;" of attorney;" FAUNTLEROY. but the words used in the previously existing statutes are there followed verbatim.

Mr. Brodrick in reply.-The true and legal definition of a deed from the time of Lord Coke, supported as it is by a long series of high authorities, ought not to be questioned, because a few loose dicta, made with no view to the defining of the legal ingredients of a deed, chance to be scattered through various parts of the works of that learned writer. But supposing Lord Coke's definition to be inaccurate, or too narrow, still, that of Spelman cannot be objected to, within which it is impossible to include a letter of attorney. The word hujusmodi, in the passage there referred to, following, as it does, donum, concessio, pactum, contractus, can only refer to instruments of a similar kind; and all these words imply a bargain or grant of some interest, and therefore cannot include a power. So, as to the latter part of the passage, the word agit can only be said to apply to the conveyance of an interest, and not to the granting of a power. All the instruments enumerated on the part of the Crown, as releases, confirmations, &c. convey an interest, although they may not contain a contract; and thus they are strictly within Spelman's definition. The mere signing, sealing and delivery, will not constitute a deed. There must be, besides these formalities, apt words and apt subject matter. The case from the Year-books was cited to shew that it was there considered doubtful whether a letter of attorney could be pleaded as a deed; and in the Table, the case is thus referred to: "(a) Briefe suppose forg de diuers faites et muniments, et count d'un fayt et escript per que liuery doit este fait pur atturne et male-quere. And

(a) Le Table, Forger de Faits.

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Brooke in his Abridgment (a), states the case thus: "Le brefe fuit diversa falsa facta et munimenta, et le FAUNTLEROY. Count fuit de un fait de feffement et un lettre d'attorney, et ideo optima opinio que le count abatera pur ce que n'est garr per le count," &c. The case of Brown v. Vawser (b) only decided, that an award not delivered as a deed, does not require a deed stamp. The argument, that deeds and letters of attorney are considered as distinct instruments, is strongly supported by the stamp acts, which, throughout, class them under separate heads, and subject them to different regulations and to different duties; and the instrument in question had not and could not have had a deed stamp, and yet it is described on the record as a deed. That the covenant contained in the power in question, was not a contract, on which an action could be maintained, but that it might be pleaded as a release, in order to prevent circuity of action, is clearly proved by the cases of Deux v. Jeffreys (c), Hodges v. Smith (d), Ayliff v. Scrimsheire (e), and the opinion of Mr. Justice Buller in Smith v. Mapleback (ƒ), where he said-" In doubtful cases, where the parties express themselves inaccurately, the Courts will expound their contracts according to their intention; and it is a maxim in law so to judge of contracts as to prevent a multiplicity of actions; and it is on that ground that the Courts have construed express words of covenant into a release: as, supposing the obligee of a bond covenanted that he would not sue on it, the Courts say that shall operate as a release; for if it operated only as a covenant, it would produce two actions."

The Judges afterwards made their report to his Majesty in council; and the prisoner was executed.

(a) Tit. "Forger de Faits," pl. 7.

(b) 4 East, 584.

(c) Cro. Eliz. 352.

(d) Cro. Eliz. 623.

(e) 1 Show. 46.

(f) 1 Term Rep. 446.

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