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term, a deed; and secondly, it is not such an instrument as falls within the proper signification of the term deed, in the statutes 2 Geo.2, c. 25, 31 Geo. 2, c. 22, and 45 Geo. 3 c. $9. In The King v. Wait (a), the indictment was framed in terms similar to the present; yet the only question raised was, as to the competency of a witness; and the prisoner's counsel there assumed that the power forged was a deed, in order to support his argument; that, as such, it could only be vacated by deed; and that, consequently, the witness, who was the person whose name had been forged, and was therefore interested, could not be examined without a release by deed: and it was not necessary for the counsel for the Crown to contest this point, as it was sufficient for him to shew, that the instrument might be revoked without deed. In The King v. Lyon (6), this question seems to have been decided; but it arose incidentally; the principal point being, not as to whether a power of attorney, similar to the present, were a deed under the statute 2 Geo.2, c. 25, but, whether the forgery of a power of attorney to receive seamen's prize-money, not being in the form prescribed by the statute 45 Geo. 3, c. 72, s. 92, were a capital offence under that statute. Whatever, therefore, may have been the decisions in these two cases, if it can be shewn that a power of attorney is not a deed, or that it is not such an instrument as was contemplated by the Legislature in passing the statutes on which the present conviction rests, this case must be looked at, as if the question now arose for the first time, and must be considered as res integra.- First, the word deed, in its legal and correct signification, means, an instrument in writing, signed, sealed, and delivered, and it must contain some matter of contract or grant on the part of the person by whom it is executed. In Comyns's Digest (c), a deed is
defined to be," a writing containing a contract, and signed, 1824 sealed and delivered by the party.” Lord Coke (a) says, “un The King fait, a deed, (factum). This word (deed), in the un- FAUNTLEROY. derstanding of the common law, is an instrument written on parchment or paper, whereunto ten things are necessarily incident;" one of which he states to be, "a thing to be contracted for;" and he again defines a deed as follows (6), “ Fait, factum, Anglicè, a deed, and signifieth in the common law, an instrument consisting of three things, viz. writing, sealing, and delivery, comprehending a bargain or contract between party and party, man or woman.” Spelman (c) says, “ Factum à forensibus nostris dicitur scriptum solenne, quo firmatur donum, concessio, pactum, contractus;" and this definition is adopted by Dufresne, in his Glossary, who refers to Spelman as an authority. In Wood's Institutes (d), it is laid down, that " a deed, (factum), in the understanding of the common law, is an instrument written on parchment or paper, comprehending a contract betwixt party and party, and that among other things necessarily incident to it, are persons able to contract, or be contracted with, by a sufficient name, and a thing to be contracted for.” In Cowell's Law Interpreter (e), a deed is defined to be, “ a writing, sealed and delivered, to prove and testify the agreement of the parties whose deed it is, and consisting of three principal points, writing, sealing, and delivery. By writing, is shewed the parties' names to the deed, their dwelling places, degrees, things granted, upon what consideration, the estate limited, the time when granted, and whether simply or upon condition, &c. 2. Sealing is a farther testimony of their consents, as appears by these words, In witness whereof, &c. In cujus rei testimonium, &c., without which the deed is insufficient.” And in Cunningham's
1824 The King
Law Dictionary (a), a deed is stated to be an instrument written on parchment or paper, consisting of three things, riz. writing, sealing and delivery; and comprehending a contract or bargain between party and party. So, in Tomlin's Law Dictionary (6), “ factum” is defined to be "an instrument on parchment, or paper, but chiefly in parchment, comprehending a contractor bargain between party and party; or an agreement of the parties thereto, for the matters therein contained ; and it consists of three principal points: writing, sealing and delivery; writing, to express the contents; sealing, to testify the consent of the parties; and delivery, to make it binding and perfect:"-and Termes de Ley is referred to as an authority in support of that definition.
In short, all the old authorities agree that a deed must contain matter of contract or of grant; a power of attorney contains neither; it neither conveys, secures, nor releases any interest; it confers a mere authority or power, and is revocable without deed, by mere matter in pais; whereas, if it were a deed, it could only be revoked by deed, on the well known and established rule that “nihil tam conveniens est naturali æquitati, quam unumquodque dissolvi eo ligamine quo ligatum est. From the earliest times, a marked distinction has been observed between deeds, or instruments of grant or contract under seal, and instruments conferring a power: the former have been uniformly termed facta or charte, whilst instruments of the latter description have been commonly styled literæ. In Madox's Formulare Anglicanum (c), a power to enfeoff, in the fourth year of the reign of Edw. 2d, is termed literæ, while the deed of feoffment to which it refers, is styled, carta, viz. “ Attornavi, et loco meo posui, dilectum meum W. de W. ad ponendum H. I. de N. in seysinam &c. secundum quod in quádem cartâ inter me et
prædictum H. 1. inde factá et indentata plenius contine- 1824 tur; ratum et gratum habitura quicquid idem W. nomine The King meo in præmissis duxerit faciendum. In cujus rei testimo- FAUNTLEROY. nium, has literas sigillo meo signatas fieri feci patentes." In the same book (a) is another power of attorney, dated 1235, in the following words: “ Universis Christi fidelibus præsentes literas inspecturis."—So Fleta (b), in treating of forgery, says, “ Crimen vero falsi dicitur, cum quis accusatus fuerit quod sigillum regis, vel appellatus, quod sigillum domini sui, de cujus familia, fuerit, falsaverit, et brevia inde consignaverit, vel chartam aliquam vel literam ad exhæredationem domini, vel alterius damnum, sic sigillaverit.” Wills, though signed and sealed, are not deeds; neither are awards, though signed and sealed; and no profert in curiam of an award is necessary; Dod v. Herbert(c). A warrant of a Justice of the Peace, though under seal, is not a deed: nor is an inquisition taken by the sheriff on a writ of inquiry, and returned under seal.
This distinction between deeds and writings sealed, has always prevailed: and from the earliest enactment against forgery (d), it appears that there are many instruments under seal that are not comprised within the legal description of deeds; the 2nd section of that statute enacts, " that if any person shall, upon his own head and imagination, or by false conspiracy and fraud with others, falsely forge or make any false deed, charter, or writing sealed, court roll, or the will of any person in writing, &c. &c. and shall be thereof convicted, he shall be set upon the pillory and have both his ears cut off, &c.:" and in Taverner's case (e), which was decided only ten years after the passing of that statute, the forging the customary of a manor, with seals attached to it, purporting to be the seals of the copyholders, was held to be forging a writing sealed, within the meaning of the act. The writ given by the statute 1 Hen.
(a) P. 346. (6) Lib. I, c. 22, p. 32. (c) Sty. 459. (d) 5 Eliz, c. 14.
(e) Dyer, 322 b.
1824. The King
5, č. 3, is against those who forge and make " faux faitz et munementz.” In the Year Book, 35 Hen. 6 (a), in a writ of forger of false deeds, founded on this statute, the plaintiff by his writ alleged, that the defendant had forged diversa falsa facta et munimenta, and the defendant demanded judgment of the count; for that such count alleged that the defendant had forged a certain deed of feoffment, by which one T. had enfeoffed certain persons, &c. and also a writing or muniment, by which the said T. had made one C. his attorney, to deliver seisin, &c., so that the count was not conformable to the writ, for that the writ alleged diversa falsa facta et munimenta, and the count only alleged the forgery of one deed, and Lord Chief Justice Priscot was of this opinion; and although the ultimate disposal of this case does not appear, it is a strong authority to sliew that the term deed is not the proper appellation for à letter of attorney: and the insertion of the words writing or muniment in the count may be accounted for on this principle. Although it may be contended, that the covenant contained in the present power of attorney amounts to a contract or bargain between party and party, yet similar covenents have constantly been inserted in these instruments, as appears from that set out in Madox of the date of Edw. 2d. Here, however, the power of attorney does not in effect contain that which amounts to a legal covenant; it is altogether useless, and does not express any more than the law would imply without it. The character of an instrument must be taken with reference to its purpose; mere words of covenant do not of themselves make a covenant, and no action could be maintained by the Bank upon this covenant, as it is one which, in its nature, can never be broken. A covenant by A. not to sue B., is a release, and must be pleaded as such, and the terms here used, though in form a covenant, are nothing more than a repetition of the preceding words of authority,
(a) P. 37.