1824. FAUNTLEROY'S the instrument as in the first count), against the statute, &c., and against the peace, &c. The eleventh count charged, that the prisoner on, &c, aforesaid, at, &c. aforesaid, feloniously did forge and counterfeit, and procure to be forged and counterfeited, and knowingly and wilfully act and assist in the forging and counterfeiting a certain letter of attorney, to transfer and assign a certain share of one Frances Young, of and in the capital stock of certain annuities, called consolidated three pounds per cent. annuities, established by 25 G. 2., and by divers subsequent acts of parliament (enumerating them), the tenor of which said forged and counterfeited letter of attorney was as follows, (setting out the instrument as in the first count), against the statute, &c., and against the peace, &. The jury found the prisoner guilty upon the second, fifth, and eighth counts of the indictment, and acquitted him upon the other counts. The question reserved for the opinion of THE JUDGES was, whether this instrument is a deed within 2 G. 2. c. 25. The prisoner petitioned the Crown, and his case was argued before the TWELVE JUDGES, at the Sessions House, Guildhall, Westminster, on the 24th and 25th of November, 1824. BRODRICK for the prisoner. The question is whether the power of attorney set out on this record, and described as a deed, comes within the language and meaning of the 2 G. 2. c. 25. s. 1. It is true, that the argument now intended to be urged, was not insisted on in the case of Rex v. Waite (a), and the reason was that it was there the object of the (a) 1 Bing. 121. S. C. Russ. & Ry. C. C. R. 505. learned counsel for the prisoner, to shew the power of attorney to be a deed, in order to prove the incompetency of a trustee whose name was forged, without a release by deed. In Lyon's case (a), the point seems to have been decided, but it arose incidentally, and there was no argument by counsel. Whatever may have been the decisions in those two cases, if it can be shown that a power of attorney is not an instrument contemplated by the statute, the authority of mere precedents ought not now to prevail. It is, therefore, necessary to consider this case entirely as res integra. The propositions to be established, are first, that a power of attorney is not,in legal acceptation of the term, a deed, and therefore is not literally within the statute. The word deed, in legal and accurate meaning, must be an instrument in writing, signed, sealed and delivered, and must contain some contract or grant on the part of the person by whom it is executed. In Comyn's Digest, Fait. (A. 1.), a deed is defined as a writing containing a contract, and signed, sealed and delivered by the party. In Co. Litt. 35.b., it is said; a deed(factum), in the understanding of the common law, is an instrument written in parchment or paper, whereunto ten things are necessarily incident, amongst which is "a thing to be contracted for," and in Co. Litt. 171.b. “ Factum, anglice, a deed, signifieth in common law an instrument consisting of three things, viz. writing, sealing, and delivering, comprehending a bargain or contract between party and party, man or woman." Spelman's Glossary, "factum a forensibus nostris dicitur scriptum solenne quo firmatur donum, concessio, pactum, contractus." 1824. FAUNTLEROY'S (a) Russ. & Ry. C. C. R. 255. 1824. FAUNTLEROY'S This definition is adopted verbatim by Ducange, Cowel's Law Dictionary; and in Wood's Institute, 217, the same definition verbatim as in Co. Litt. 171. b. is found. All the authorities agree that a deed must contain matter of contract or matter of grant. A power of attorney contains neither; it confers a mere authority or power. It neither secures, conveys, nor releases any interest as distinct from a power or authority. It is revocable, without deed, by mere matter in pais. Rex v. Waite (a) which it could not be if a deed, consistently with the maxim, "eo ligamine quo ligatur,” &c. From the earliest periods a marked distinction has prevailed between deeds and powers of attorney. The former are uniformly called chartæ or facta, while instruments merely conferring a power are designated literæ. In Madox Formulare Anglicanum, 348, a power to enfeoff, 4 Ed. 2. is termed literæ, while the deed of feoffment to which it refers is called charta. "Attornavi et loco meo, posui W. A. ad ponendum, J. H. in seysinam, etc. secundum quod in quadam cartá inter me et prædictum J. H. inde factá plenius continetur; ratum et gratum habitura quicquid idem W. duxerit faciendum, etc. In cujus rei testimonium has literas sigillo meo signatas fieri feci patentes. In the same author is another power of attorney of the date of 1235: Universis Christi fidelebus præsentes literas inspecturis. Wills, though signed and sealed, are no deeds; nor awards, though signed and sealed; and no profert of an award, is necessary. Dod v. Herbert. (b) A Justice's warrant, though under seal, is no deed. The same is true of an inquisition by the Sheriff on a writ of inquiry, and returned under seal. Fleta on the offence of forgery, says, "Crimen vero falsi dicitur cum quis accusatus fuerit quod sigillum, regis, vel appellatus, quod sigillum domini sui de cujus familiâ, fuerit falsaverit et brevia inde consignaverit vel chartam aliquam vel literam ad exherædationem domini vel alterius damnum sic sigillaverit." (a) The distinction between deeds, and writings sealed prevails in the earliest statutes on forgery, and a letter of attorney is not the only sealed instrument distinguished from deeds in those statutes. The 5 Eliz. c. 14. provides, "That if any person shall forge any false deed, charter, or writing sealed, court roll, or the will of any person, &c. ;" and in Taverner's case (b), which was decided immediately subsequent to this act, a forged customary of a manor, having the seals of copyholders attached to it, was held within the act as a sealed instrument. The writ given by 1 Hen. 5. c. 3. is against those who forge and make "fauz faitz et munementz." In the Year Book, 35 Hen. 6. p. 37. (c) in a writ of forger of false deeds founded on this statute, the plaintiff alleged by his writ that the defendant had forged divers facta falsa et munimenta, and the defendant demanded judgment of the count, for the count alleged that the defendant had forged a certain deed of feoffment, purporting to be the feoffment of one T., and also a writing or muniment by which T. purported to make C. his attorney to deliver seisin, so that the count is not conformable to the writ, for the writ alleges diversa falsa facta et munimenta, and the count only alleges one deed. And of this 1824. FAUNTLEROY'S Case. (a) Fleta, lib. 1. c. 22. p. 32. (b) Dyer, 322. b. (c) Bro. Abr. Amendment, 15. Count. 22. Fait. 5. 1824. FAUNTLEROY'S Case. opinion was PRISOT C. J., though what became of the case does not appear. This case is a strong authority to show that deed is not a proper appellation for a letter of attorney, for which purpose it is cited; and Moile's argument, and the insertion by the pleader of the words "writing or muniment," are accounted for upon this principle. Nor can it be maintained in answer to this argument, that the covenant expressed in the present power of attorney amounts to a bargain or contract between party and party. Similar covenants have been contained in powers of attorney from the earliest periods, as in that in Madox, p. 346., and it is to instruments of this form that the preceding reasoning and authorities are applied. But in fact, this instrument does not contain that which amounts to a legal covenant. The covenant is altogether useless, and does not express more than the law would imply without it. The character of an instrument must be taken from its purpose, and mere words of covenant do not make it a covenant, and no action could be maintained by the Bank upon it. A covenant not to sue is a release, and the terms here used, though in form a covenant, are nothing more than an amplification of the preceding words of authority, and do not give to the instrument the legal effects of a contract. But secondly; even though the term deed may in strict legal meaning comprehend a power of attorney, still that it was not within the intention of the legislature in 2 G. 2. c. 25. is to be collected from the distinction in the authorities cited, and from the general meaning of the statutes on forgery. Now every statute ought to be construed, not according to the letter, but according to the intent of the parliament (a), and penal (a) Com. Dig. Parliament (R. 10. b.) 2 Roll. Abr. 318. Stowel v. Zouch. Plow. Com. 352. 10 Co. 57. b. |