Page images




nation, and not afterwards. Here the main question is, whether, supposing the power of attorney to be genuine, the testimony of Cor ought not to have been excluded, on account of his interest in proving it to be not so. If it were, Underhill, the broker, would be the agent of Cor; and the power conveys no interest to such broker, nor does it divest Cox of any; for he was always capable to act, and exercise any right himself; and Underhill would be accountable to him as the principal for any sum be might receive under it, whether it were genuine or not ;-and Cox could only be prejudiced by the fraud of Under hill, which is not to be presumed, nor can any imputation be cast on him in his character as broker. It has been said, however, that if the stock had been sold, it would amount to a breach of trust on the part of Cox : but the money by which it was purchased was invested by him and the prisoner, and they are the only legal proprietors. The Bank, therefore, are not to enquire for what purpose the stock is to be sold, or whether the parties would be guilty of a breach of trust in directing such sale. The attesting witnesses proved that the sig. nature of the prisoner alone was on the power when they attested it, and that Cox's was added afterwards. If he had executed and signed it, it would be an answer to this prosecution, and preclude him from setting up any objection to it. What, then, is the nature of his interest so as to exclude him from shewing that the signature purporting to be his, is not in his own hand-writing? No sale or transfer has been effected, nor could it be, unless the signature of Cox had been attested by two witnesses, or he had applied personally at the Bank for that purpose. The power therefore gives no legal authority. The attestation is required by the various loan acts, and the statute 52 Geo. 3. c. 24. s. 19 (a), (an act for raising the

(a) By which it is enacted, that “ books shall be constantly kept by the Accountant-General for the time being, wherein all assignments or trans

sum of 6,789,625l. by way of annuities). If, therefore, a 1823. transfer had been effected, it would have been invalid

THE KING when the Bank had become acquainted with the nature of the attestation to the instrument; and if it conveys no authority, Cor could not be affected by it. At all events, the power was a bare authority given to a person therein named, to execute it at will; and the party who gave it might revoke it at his pleasure. It is clear, therefore, that even if Cox had executed it, he might put an end to it whenever he pleased ; and consequently he is not prejudiced by its existence, as it has never been acted on. How, therefore, can it exclude him from being a witness, if he could destroy it after he himself had executed it? He might revoke it as easily as he could give evidence against it. It has been said, however, that it could not be revoked without trouble and expence. The paper requisite for such a purpose would be of no value; and as to a deed stamp being required, the stamp acts were never intended to alter or vary the general principles of law.-Further, the power, though under seal, might be revoked without deed, by any act of the grantor inconsistent with the continuance of his will; for it gives a mere naked authority, to be executed, and determinable at will. If a man grant a lease by deed of an estate at will, he may put an end to it by parol, or any act inconsistent with the continuance of the will. Therefore the rule nihil tam conveniens est naturali æqui


fers of all sums advanced or contributed towards the said sumn of six millions, seven hundred eighty-nine thousand, six hundred and twenty-five pounds, shall be entered and registered ; which entry shall be conceived in proper words for that purpose, and shall be signed by the parties making such assignments or transfers, or such parties be absent, by their respective attorney or attornies, thereunto lawfully authorized, in writng under his or their hand and seal, or hands and seals, to be attested by two or more credible witnesses ; and that the several persons to whom such transfer shall be made, shall respectively underwrite their acceptance thereof; and that no other method of assigning and transferring the said annuities, or any part hereof, or any interest thercin, shall be good or available in law.".




tati quam unumquodque dissolvi eo ligamine quo ligatum est," applies only to cases of deeds where the interest given or conveyed is not determinable at will. Before the statute of frauds (a), devises of lands made by virtue of the slatute of wills (32 Hen. 8. c. 1.) might be revoked by parol (b), the latter statute having merely given a power to devise lands by will in writing, but being silent as to the mode of revocation. So in the case of an appointment of a testamentary guardian, though by the statute 12 Car. 2. c. 24, such appointment must be attested in the presence of two witnesses, yet it may be revoked by an instrument made expressly for that purpose, without any attestation, because no positive provision was made against it by that statute. Ex parte The Earl of Ilchester (c): and Sir William Grant (the Master of the Rolls) after referring to the above rule, there said (d)," the statute of wills prescribed writing; yet it was held, that a parol revocation was sufficient. It is determined, that agreements in writing, and required by the statute of frauds to be in writing, may be determined by parol; and it is observable, that different solemnities are required by the statute, for the framing and for the revocation of wills. I should therefore have been of opinion, that if the professed object of the codicil in question had been only a direct revocation, that object would have been accomplished, though without two witnesses."

In Coke Littleton (e), it is laid down, that if a man leaseth a manor at will, whereunto a common is appendant, if the lessor put in his beasts to use the common, this is a determination of the will;—and that being a lease of a manor, it must necessarily have been by deed. As to submissions to arbitration by deed, they are beside the

(a) 29 Car. 2. c. 3.

-() 7 Ves. 348.

(6) 1 Roll. Abr. 614, tit. Devise (O) pl. l.

(d) Id. 377. -(e) 55 (b).

[merged small][merged small][ocr errors]

present question, as they depend on a contract between the parties. In Fitzherbert's Abridgment (a), there is the following passage : Nota, If the parties put themselves in arbitrament without deed, they (il) may discharge the arbitrators without deed, or enlarge the day without deed, by the assent of them ; but if the submission be by deed, it is otherwise, per Finch ;” and a reference is there made in the margin to the Year Book, Hil. 49 Edw. 3. 9, where Finch does not appear to have said any such thing. That, therefore, must be considered as a vague or doubtful authority; and it is quite clear, that the day could not be enlarged without deed. Although in Vynior's case (b), it appears by the pleadings that the revocation was by deed, yet Lord Coke lays no stress on that circumstance, but states the case as if it were a mere writing without deed ; and it was there resolved, that although the defendant was bound in a bond to stand to and abide the arbitrament of the arbitrator, yet he might countermand it. It is not therefore a necessary inference, that such revocation must be by deed; but an authority by letter of attorney is clearly revocable by parol, or matter in pais. In Rolle's Abridgment (c), it is said, that if one make a feoffment, and the letter of attorney to make livery be simple, and after the feoffor commands the attorney to make livery upon an uncertain condition, and he does so accordingly, it seems that this is not a good feoffment, but a disseisin of the feoffor; for it seems that this is a revocation of the first letter of attorney, and then this cannot create a new power to make the feoffinent without deed. The same passage is to be found in Brooke's Abridgemeni (d), where, in addition to the word command, those of per bouche (scilicet) per parol, are introduced. So if a may make a charter of feoffment

(a) Tic. Arbitrament, pl. 22. tit. Peoffment (2), pl. 3. Conditions, pl. 108.

-(1) 8 Rep. 80 b. -(c) Vol. 2. fol. 8.
(d) Tit. Feoffments, deternes, pl. 27.



0. WAIT.

with letter of attorney to deliver seisin, and before livery made, by malady he becomes paralytic, so that he is mute (nuit) at the time when livery is made, yet by all the signs which a man could perceive, he agrees to the livery of seisin, this is a good feoffment, and no revocation of the letter of attorney (a).

[Mr. Justice Bayley. That must have been done in the presence of the feoffor.]

Even if it had been his wish, it would have been sufficient, if it could have been expressed by any other means; for if a man make a deed of feoffment of land in two vills, with letter of attorney to make livery, and before livery made by the attorney, the feoffor himself makes livery of the land in one vill, this is a countermand of the letter of attorney, so that the attorney cannot make livery in the other vill (6). So if a man make a charter of feoffment of two acres, of which one is in lease for years, and the other in demesne, and make a letter of attorney to make livery, and after the feeffor himself make livery in the acre in demesne, in the name of the whole, although the other acre, which is in lease, cannot pass by it, still the letter of attorney is revoked for this acre; for it appears that so was the intent of the feoffor (c). Here, , even if the power were genuine, Cox might put an end to it without any expense or trouble; but he disavowed it altogether; and the letter sent by himn to the AccountantGeneral of the Bank, giving him notice that he had executed no such instrument, was not only a countermand of the authority of Underhill, but operated as a distinct and sufficient revocation of the power. According to the uniform practice at the Bank, with regard to instru

(6) Id. fol. 12, pl. G.

(a) 2 Roll. Ab. fol. 11, lit. Feoffmcat (Z). pl. 2.

-(c) Id. ibid. pl. 7.

« PreviousContinue »