ments of this description, no deed of revocation is ever required; but the acting of the principal is always considered a sufficient revocation; and in this respect the custom of the Bank has been invariable ever since its establishment. Besides, the power in question must be taken to have been executed according to the existing practice; and if so, it may be defeated either with or without deed. If a broker, about to leave the country, having a power to sell or transfer stock, were to go to the Bank for that purpose, and the principal afterwards interfered, and desired the stock not to be transferred or sold, the clerk would not require a deed under seal for that purpose: and if a transfer was made after such a notice or communication, the Bank would be liable to an action. With respect to the covenant contained in the power, by which the parties granting it, stipulated that their representatives should allow and confirm whatever might be done by their attorney after their deaths, as far as the Bank was concerned, unless notice thereof had been previously given, it must proceed on the supposition that the power was a valid and sufficient instrument at the time of their decease; and that it had never been revoked or countermanded. The death of the parties rested on a contingency; and it is doubtful whether it would be beneficial to them that the power should continue until that event took place or not. In Rex v. Rhodes (a), the proprietor of the stock was an interested witness, as it had been transferred; and it has been usual for the Bank since that time to put the proprietor, or holder, in the same situation, by replacing an equal quantity of stock in his name, and thereby restore his competency, so that he might be examined as a witness. Here, if the fraud had succeeded, the Bank would be the only persons affected by the loss; and they would have caused the amount of (a) 2 Stra. 728. 1823. THE KING ບ. WAIT. 490 1923. THE KING v. WAIT. stock sold out to be replaced in the name of Cox, so as to destroy any interest he might have in proving the instrument under which it was sold to be a forgery, and he would have sustained no injury by the sale. But here the stock has not been transferred or sold, and the Bank actually refused to allow the sale under the power, before they had any communication from Cor on the subject, as it appeared to be an instrument of a suspicious nature; and the letter written by him was tantamount to a revocation, which is never required to possess the formalities and technicalities of a deed. Mr. Campbell in reply. There would have been no difficulty whatever for Mr. Cox to have executed a revocation of the power by deed previous to his examination at the trial; and as he did not, he was not a competent witness for the prosecution. Although it has been said, that the exclusion of witnesses in a case of forgery is an anomaly which ought not to be extended, still if a witness has any interest at the time of his examination, and even a contingent interest is sufficient, he cannot be examined to prove that an instrument is forged. Whether the stock in question had been transferred or not, the power was still in existence, and might have been acted on until the guilt of the prisoner was established; and if it had been transferred, Rhodes's case is an express authority to shew that Cor could not be a competent witness. At all events he would be liable to a bill in equity, as well as other inconveniences. Still, however, it has been said, that he has been guilty of no breach of trust, as the instrument was not genuine, nor was it executed with his knowledge or consent: but by the terms of the will of Fitchew, Mrs. F. had a life interest in the stock, and if it had been sold out he would clearly have been liable to her, as he being a mere co-trustee with the prisoner, had no power to sell out until after her death. He therefore was interested in proving the power to be a forgery at the time of his examination. As to the nature of the attestation of the signature of the principals, as required by the statute 52 Geo. 3. c. 24, it appears to be inapplicable to the present question, as Cor said that he had never executed. the instrument; but if he had signed his name to it, and issued it, he could not afterwards object to it, or contest its validity, and the Bank would be compellable to transfer or sell the stock without the formal attestation of two witnesses to his signature: he therefore had an interest in its destruction. So, if a revocation were necessary, he would clearly be put to a pecuniary expence : and the legislature did not consider the purposes to which instruments of this description were to be applied ; and in order to render them valid, they must have the necessary stamps impressed on them. In order to shew that a revocation was requisite, the instrument in question was not a mere letter of attorney, for it was treated. as a deed throughout the whole of the indictment (a), and it did more than simply invest the broker with a power to sell or transfer the stock, as it bound the representatives of the grantors, so far as the Bank was concerned. It is clear, that an estate at will may be determined by the act of the lessor without deed; so a tenancy from year to year may be determined by a notice to quit, which need not be under seal, although the original lease was by deed; as such a notice would amount to a legal determination of the estate, without requiring any revocation of the lease. And in the case of a will, which might be revocable by parol before the passing of the (a) The first count charged the prisoner with uttering and publishing as true a certain forged and counterfeited deed, knowing it to be forged, (the tenor of which was set forth), with intention to defraud the Governor and Company of the Bank of England. The second charged him with disposing of and putting away the said deed, knowing it to be forged, with the like intent; and the third and fourth charged him with uttering and publishing, and disposing and putting away the deed, with intent to defraud John Cox. 1823. THE KING v. WAIT. 1823. t'. WAIT. statute of frauds, it might be placed on the same foot THE KING ing as contracts of the same degree, which might not require to be by deed, or executed under seal. As to the cases of feoffment, the letters of attorney to make livery of seisin need not be by deed, or under seal, and they may consequently be discharged by the act or will of the feoffor. But the cases of submission to arbitration by deed are conclusive to shew, that whenever an authority is granted under seal, it cannot be revoked but by an instrument of a like nature; and in Vynior's case, the whole of the pleadings are set out, from which it is manifest, that the revocation was by deed and sealed; and although it has been said, that a submission arises on a contract between two parties, still it cannot be abrogated by a mere notice from one of them; and the arbitrator stands in the situation of a person having power and authority to act for both, until such authority be duly and formally countermanded by deed. Here, although it appears to be the practice of the Bank not to require a deed of revocation in cases of this description, still, however inconvenient it may be, if the law requires it, it must be adhered to, and cannot be controlled by such a custom and if a person give a letter of attorney to another, whom he afterwards discovers not to be trust-worthy, he may easily revoke it, and give the Bank notice that he has done so ; and the deed of revocation might be executed in a minute, and without much trouble or inconvenience. On the whole, therefore, as the power in question had not been duly or legally revoked when Cox was called as a witness, he ought not to have been examined; and even if such revocation were not necessary, he had an interest in shewing that the power was a forgery, and he was therefore an incompetent witness to prove that it was not his deed. The Judges delivered no opinion publicly, but the prisoner was afterwards executed at the Old Bailey, 1823. Ex parte SHERWOOD. of Friday, Jan. 31st. torney was ad and regularly certificates to 1814, but did not renew them took out his for that and the following year, on account of his having been employed as a managing clerk to an attorney in the country, and re-com menced practising on his own account in 1817, having his certificate Court allowed first obtained for 1816; the him to be re MR. Serjeant Taddy, on a former day, obtained a rule where an atnisi, that the applicant might be re-admitted an attorney mitted in 1799, of this Court upon payment of a nominal fine, and without giving a Term's notice; on affidavits, which stated that he was duly admitted an attorney of the Court of King's Bench in Michaelmas Term, 1797, and of this Court in Trinity Term, 1799; and that from the time of his first admission in 1797, to the year 1813 inclusive, he regularly obtained his annual certificates, the last which would not expire until the 1st November, 1814; that he ceased to renew his certificates for the years 1814 and 1815, on account of his having been employed as a managing clerk to an attorney in the country, by which alone he was prevented from practising for his own advantage, and not from any desire to defraud the revenue, nor on account of any threat, fear, or apprehension of any application or motion being made to this or any other Court against him: that in January, 1817, he recommenced practising as an attorney on his own account, having first regularly obtained his certificate for the year 1816, from which time to the present he had regularly obtained his certificates; and that he had not incurred any penalty by practising as an attorney during the time he was so uncertificated; and that during such time he wholly abstained from practising as an attorney for his own benefit or profit, but was engaged solely as a clerk to the person by whom he was employed. It was also sworn, that notice of this application had been served on the solicitor to the Commissioners of the Stamp Office, and that no objection had been made on his part. admitted on payment of a nominal fine, and the duty for the two years in which he had not certificates. taken out his |