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1823.

stock, on its being returned to him as executed by the parties : and if even such a presumption can be raised, The King there is an end of the question. The mere production of

Wait. the Bank ledger, in wbich the stock appeared to be standing in the names of the prisoner and Cor, was not sufficient to shew that the power had not been acted on at the time of the examination of the latter. The person who produced it was not asked whether the power had been acted on at the time of the trial or not; nor did it appear to what day the ledger was made up. And supposing the power to be genuine, the stock might have been sold or transferred at the Bank, in the interval between the examination of that witness and the swearing of Cox.

[Mr. Justice Bayley.-Underhill, the broker to whom the power was granted, proved that when he presented it at the Bank, and applied to sell under it, he was pot permitted to do so.]

Even supposing that the power had not been acted upon, or the stock transferred, still Cor, when called into the witness box, had an interest in the destruction of the instrument, or that it should not be completed ;-for if it were genuine, it would be a valid and subsisting power of attorney, under which the stock might have been legally transferred; or even if it were revocable, it had never been revoked, since being under seal, it could only be revoked by an instrument under seal. At all events, the letter written by Cox to the Accountant-General cannot amount to a revocation, as it was not under seal, but merely written on the bare supposition that the power

a forgery. Besides, it does not even appear that such letter ever reached the Accountant-General, or any other officer of the Bank; and even if it had, it would not have the effect of revoking the power, as Cox only stated that he had not executed any such power, and

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that he was not privy to its execution. That, therefore, is not equivalent to a renunciation, or, at all events, does not amount to a revocation. Lord Coke repeatedly refers to the maxim, that, Nihil tam conveniens est naturali æquitati, quam unumquodque dissolvi eo ligamine, quo ligatum est (a).” So that if the instrument in question was a mere power of attorney, yet being under seal, it could only be revoked by an instrument of a like nature. It therefore follows, that when a power is by deed, the revocation must have all the incidents and qualities of a deed. In Sheppard's Touchstone it is laid down (b), that “every agreement put in writing, sealed and delivered, becomes à deed: and that attornments, exchanges, surrenders, partitions, authorities, commissions, licenses, revocations, and the like, are usually made, given, done, and granted by deed; and that there are divers other instruments concerning merchants and other affairs : if, therefore, any of these be done by deed, such a deed is for the most part subject to the rules of deeds : and that albeit feoffments, gifts, bargains, leases, attornments, exchanges, surrenders, and such like things, may, in divers cases, be as well made and done without as with a deed; yet if a man will make his claim to any thing given or granted by such feoffment, gift, &c. by deed, the deed must be such a deed as is a good and perfect deed, according to the rules of law by which such instruments are governed.”

Such, then, being the general rules as to the revocation of deeds, the practice of the Bank of England, as to the revoking instruments of this description, cannot alter the law of the land ; and in powers of sale or transfer, a mere notice, or countermand of the sale by the principal,

not a sufficient revocation; nor will it prohibit the attorney appointed to act under such powers, from

(a) 2 Inst, 359, 573, 5 Rep. 26, (a). 6 Rep. 43, (b). (6) Page 5).

effecting the sale; for in the case of a power under seal, 1823. although the principal himself may have acted under it, Tue KING still it will not amount to a revocation, without an instru

Wait. ment duly effected for that purpose. At Lloyd's it is the common practice for agents to receive a power from underwriters to subscribe policies in their names ; and if the latter were to give a notice to the assured, that they had not authorised such agents to underwrite for them, it would not amount to a revocation ; but they would be still liable on the policies so subscribed on their behalf. Here, however, it does not appear that Cor had ever acted as a principal, either by receiving the dividends or otherwise ; and as he and the prisoner had a joint interest in the stock, it was coupled with an interest, and the power was not revocable by one alone.

Although there is no authority as to the revocation of a power of attorney, yet it may be assimilated to a case of submission to arbitration by deed, which can only be revoked by deed. This appears to have been necessary from the time of Vynior's case (a), which was an action of debt on an arbitration bond, and the defendant pleaded that the arbitrator had made no award; to which tbe plaintiff replied, that the defendant per quoddam scriptum suum revocavit et abrogavit authoritatem arbitratoris ; from which it must be inferred, that the revocation was not only under his hand and seal, but by deed. So in Milne v. Gratrix (6), King v. Joseph (c), and Marsh v. Bulteel (d), the revocations were all by deed; and in the latter case, it was determined that it was unnecessary to state in the declaration that the arbitrators had notice of the revocation, it being necessarily implied in the averment, that the defendant had revoked the authority by deed. Here, however, it must be observed, that on reference to the power of attorney it has all the incidents

-(C) 5 Taunt, 432.

(a) 8 Rep. 81, (b).- (6) 7 East, 608.() 5 Barn. & Ald, 507.

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of a deed-poll; as it not only gives a power of sale and transfer, but was to be binding, as far as the Bank was concerned, on the grantors and their representatives, as it would have been upon them if living, unless the Bank had previous notice in writing of their respective deaths; and that unless such notice were given, the grantors covenanted with the Bank, and bound themselves their executors and administrators, that such executors, &c. should ratify and confirm the power as against the grantors, and their respective estates. An action of covenant, therefore, might be maintained by the Bank against the representatives of Cox, in case the power had been genuine, and it could only be revoked by his death, and on notice of that fact being given to the Bank : and his executors could not plead that the power was a forgery. Besides, supposing the instrument to be genuine, John Cox would be subject to a bill in equity, at the suit of Mrs. Fitchew, to restrain him from selling the stock, the dividends of which she was entitled to during her life; and he would be also liable to an injunction at the suit of Stephen Cox, who was jointly interested in the remainder with himself; in both of which proceedings he would be liable to costs. In this view of the case, therefore, he was also interested in the destruction of the instrument. If the prisoner had been acquitted, the power would have been handed back to Underhill, as the attorney appointed to act under it, and to whom it was given ; and he might immediately have proceeded with it to the Bank, and sold out the stock. At all events, the Bank might have permitted it to be transferred. If, therefore, the instru. ment were genuine, Cor would not only be liable to the cestuis quetrust, according to the terms of the will of Fitchew, but to the Bank, who might maintain an action against his representatives, after the respective deaths of himself and the prisoner, for a breach of trust in selling the stock. Even if the loss to be incurred by Cox is only contingent,

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it is sufficient to disqualify him as a witness. In civil cases, where a verdict may be evidence for or against a witness, it renders him incompetent, although no benefit or loss might accrue to him from the event of the suit in which he is called as such witness; as in the common case of an action against a master for the negligence of his servant, the latter is not a competent witness; because a verdict against the master might be given in evidence in a subsequent action by the master against the servant, as to the quantum of damages the master may have sustained through the neglience of his servant. Bat whether the master will ever bring such an action, or give such a verdict against his servant in evidence, are altogether matters of contingency and doubt.-With respect to the revocation of the power, if it were genuine, it could not be effected without trouble and pecuniary expense; for the amount of the stamp alone would be Il. 158., and the value of the mere paper and wax would have been sufficient to disqualify Cox as a witness at the time of his examination, as he had at that moment a direct interest in the conviction of the pri. soner.

Mr. Serjeant Bosanquet for the prosecution. The principle as to the exclusion of a witness on the ground of interest, in the case of a prosecution for forgery, has been very properly stated by two learned Judges to be an anomaly in the law; and being so, it ought not to be extended further than it has been already carried. Although a distinction may be drawn as to the admissibility of witnesses in civil and criminal cases, yet, in the latter, the interest of a witness in proving an instrument to be forged must be direct and certain, and not merely a remote or contingent interest. Every witness must primá facie be taken to be competent, and the party objecting must shew an incompetency at the time of his exami

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