AUTHENTIC. This term signifies an original of whichthere is no doubt.
AUTHENTIC ACT, civil law, contracts, evidence. The authentic act is that which has been executed before a notary or other public officer authorized to execute such functions, or which is testified by a public seal, or has been rendered public by the authority of a competent magistrate, or which is certified as being a copy of a public register. Nov. 73, c. 2; Code, 7, 52; 6; Id. 4, 21; Dig. 22, 4.
2. In Louisiana, the authentic act, as it relates to contracts, is that which has been executed before a notary public or other officer authorized to execute such functions, in presence of two witnesses, free, male, and aged at least fourteen years, or of three witnesses, if the party be blind. If the party does not know how to sign, the notary must cause him to affix his mark to the instrument. Civil Code of Lo., art. 2231.
3. The authentic act is full proof of the agreement contained in it, against the contracting parties and their. heirs or assigns, unless it be declared and proved to be a forgery. Id. art. 2233. Vide Merl. Rep. h. t.
AUTHENTICATION, practice. An attestation made by a proper officer, by which he certifies that a record is in due form of law, and that the person who certifies it is the officer appointed by law to do so.
2. The Constitution of the U. S., art. 4, s. 1, declares, "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." The object of the authentication is to supply all other proof of the record. The laws of the United States have provided a mode of authentication of public records and office papers; these acts are here transcribed.
3. By the Act of May 26, 1790, it is provided, "That the act of the legislatures of the several states shall be authenticated by havig the seal of their respective states affixed thereto: That the records and judicial proceedings of the courts of any state shall be proved or admitted, in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every court within the United States, as they have, by law or usage, in the courts of the state from whence the said records are, or shall be taken."
4. The above act having provided only for one species of record, it was necessary to pass the Act of March 27, 1804, to provide for other cases. By this act it is enacted, 1. " That, from and after the passage of this act, all records and exemplifications of office books, which are or may be kept in any public office of any state, not appertaining to a court, shall be proved or admitted in any other court or office in any other state, by the attestation of the keeper of the said records or books, and the seal of his office thereto annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county or district, as the case may be, in which such office is or may be kept or of the governor, the secretary of state, the chancellor or the keeper of the great seal of the state, that the said attestation is in due form, and by the proper officer and the said certificate, if given by the presiding justice of a court, shall be further authenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified; or if the said certificate be given by the; governor, the secretary of state, the chancellor or keeper of the great seal, it shall be under the great seal of the state in which the said certificate is made. And the said records and exemplifications, authenticated as aforesaid, shall have such faith and credit given to them in every court and office within the United States, as they have by law or usage in the courts or offices of the state from whence the same are or shall be taken."
5. - 2. That all the provisions of this act, and the act to which this is, a supplement, shall apply, as well to the public acts, records, office books, judicial proceedings, courts, and offices of the respective territories of the United States, and countries subject to the jurisdiction of the United States, as to the public acts, records, office books, judicial proceedings, courts and offices of the several states."
6. The Act of May 8, 1792, s. 12, provides: That all the records and proceedings of the court of appeals, heretofore appointed, previous to the adoption of the present constitution, shall be deposited in the office of the clerk of the supreme court of the United States, who is hereby authorized and directed to give copies of all such records and proceedings, to any person requiring and paying for the same, in like manner as copies of the records and other proceedings of the said court are by law directed to be given; which copies shall have like faith and credit as all other proceedings of the said court."
7. By authentication is also understood whatever act is done either by the party or some other person with a view of causing an instrument to be known and identified as for example, the acknowledgment of a deed by the grantor; the attesting a deed by witnesses. 2 Benth. on Ev. 449.
AUTHENTICS, civ. law. This is the name given to a collection of the Novels of Justinian, made by an anonymous author. It is called authentic on account of its authority.
2. There is also another collection which bears the name of authentics. It is composed of extracts made from the Novels, by a lawyer named Irnier, and which he inserted in the code at such places as they refer; these extracts have the reputation of not being correct. Merlin, Repertoire, mot Authentique.
AUTHORITIES, practice. By this word is understood the citations which are made of laws, acts of the legislature, and decided cases, and opinions of elementary writers. In its more confined sense, this word means, cases decided upon solemn argument which are said to 'be authorities for similar judgments iii like cases. 1 Lilly's Reg. 219. These latter are sometimes called precedents. (q. v.) Merlin, Repertoire, mot Autorites.
2. It has been remarked, that when we find an opinion in a text writer upon any particular point, we must consider it not merely as the opinion of the author, but as the supposed result of the authorities to which he refers; 3 Bos. & Pull. 361; but this is not always the case, and frequently the opinion is advanced with the reasons which support it, and it must stand or fall as these are or are not well founded. A distinction has been made between writers who have, and those who have not holden a judicial station; the former are considered authority, and the latter are not so considered unless their works have been judicially approved as such. Ram. on Judgments, 93. But this distinction appears not to be well founded; some writers who have occupied a judicial station do not possess the talents or the learning of others who have not been so elevated, and the works or writings of the latter are much more deserving the character of an authority than those of the former. See 3 T. R. 4, 241.
AUTHORITY, contracts. The delegation of power by one person to another.
2. We will consider, 1. The delegation 2. The nature of the authority. 3. The manner it is to be executed. 4. The effects of the authority.
3. - 1. The authority may be delegated by deed, or by parol. 1. It may be delegated by deed for any purpose whatever, for whenever an authority by parol would be sufficient, one by deed will be equally so. When the authority is to do something which must be performed through the medium of a deed, then the authority must also be by deed, and executed with all the forms necessary, to render that instrument perfect; usless, indeed, the principal be present, and verbally or impliedly authorizes the agent to fix his name to the deed; 4 T. R. 313; W. Jones, R. 268; as, if a man be authorized to convey a tract of land, the letter of attorney must be by deed. Bac. Ab. h. t.; 7 T. R. 209; 2 Bos. & Pull, 338; 5 Binn. 613;. 14 S. & A. 331; 6 S. & R. 90; 2 Pick. R. 345; 6 Mass. R. 11; 1 Wend. 424 9 Wend. R. 54, 68; 12 Wend. R. 525; Story, Ag. 49; 3 Kent, Com. 613, 3d edit.; 3 Chit. Com. Law, 195. But it does not require a written authority to sign an unscaled paper, or a contract in writing not under seal. Paley on Ag. by Lloyd, 161; Story, Ag. 50.
4. - 2. For many purposes, however, the authority may be by parol, either in writing not under seal, or verbally, or by the mere employment of the agent. Pal. on Agen. 2. The exigencies of commercial affairs render such an appointment indispensable; business would be greatly embarrassed, if a regular letter of attorney were required to sign or negotiate a promissory note or bill of exchange, or sell or buy goods, or write a letter, or procure a policy for another. This rule of the common law has been adopted and followed from the civil law. Story, Ag. 47; Dig. 3, 3, 1, 1 Poth. Pand. 3, 3, 3; Domat, liv. 1, tit. 15, 1, art. 5; see also 3 Chit. Com. Law, 5, 195 7 T. R. 350.
5. - 2. The authority given must have been possessed by the person who delegates it, or it will be void; and it must be of a thing lawful, or it will not justify the person to whom it is given. Dyer, 102; Kielw. 83. It is a maxim that delegata potestas non potest delegari, so that an agent who has a mere authority must execute it himself, and cannot delegate his authority to a sub-agent. See 5 Pet. 390; 3 Story, R. 411, 425; 11 Gill & John. 58; 26 Wend. 485; 15 Pick. 303, 307; 1 McMullan, 453; 4 Scamm. 127, 133-; 2 Inst. 597. See Delegation.
6. Authorities are divided into general or special. A general authority is one which extends to all acts connected with a particular employment; a special authority is one confined to "an individual instance." 15 East, 408; Id. 38.
7. They are also divided into limited and unlimited. When the agent is bound by precise instructions, it is limited; and unlimited when be is left to pursue his own discretion. An authority is either express or implied.
8. An express authority may be by deed of by parol, that is in writing not under seal, or verbally.. The authority must have been actually given.
9. An implied authority is one which, although no proof exists of its having been actually given, may be inferred from the conduct of the principal; for example, when a man leaves his wife without support, the law presumes he authorizes her to buy necessaries for her maintenance; or if a master, usually send his servant to buy goods for him upon credit, and the servant buy some things without the master's orders, yet the latter will be liable upon the implied authority. Show. 95; Pal. on Ag. 137 to 146.
10. - 3. In considering in what manner the authority is to be executed, it will be necessary to examine, 1. By whom the authority must be executed. 2. In what manner. 3. In what time.
11. - 1. A delegated authority can be executed only by the person to whom it is given, for the confidence being personal, cannot be assigned to a stranger. 1 Roll. Ab. 330 2 Roll. Ab. 9 9 Co. 77 b .; 9 Ves. 236, 251 3 Mer. R. 237; 2 M. & S. 299, 301.
12. An authority given to two cannot be executed by one. Co. Litt. 112 b, 181 b. And an authority given to three jointly and separately, is not, in general, well executed by two. Co. Litt. 181 b; sed vide 1 Roll. Abr. 329, 1, 5; Com. Dig. Attorney, C 8 3 Pick. R. 232; 2 Pick. R. 345; 12 Mass. R. 185; 6 Pick. R. 198; 6 John. R. 39; Story, Ag. 42. These rules apply to on authority of a private nature, which must be executed by all to whom it is given; and notto a power of a public nature, which may be executed by all to whom majority. 9 Watts, R. 466; 5 Bin. 484, 5; 9 S, & R. 99. 2. When the authority is particular, it must in general be strictly pursued, or it will be void, unless the variance be merely circumstantial. Co. Litt. 49 b, 303, b; 6 T. R. 591; 2 H. Bl. 623 Co. Lit. 181 , b; 1 Tho. Co. Lit. 852.
13. - 2. As to the form to be observed in the execution of an authority, it is a general rule that an act done under a power of attorney must be done in the name Of the person who gives a power, and not in the attorney's name. 9 Co. 76, 77. It has been holden that the name of the attorney is not requisite. 1 W. & S. 328, 332; Moor, pl. 1106; Str. 705; 2 East, R. 142; Moor, 818; Paley on Ag. by Lloyd, 175; Story on Ag. 146 T 9 Ves. 236: 1 Y. & J. 387; 2 M. & S. 299; 4 Campb. R. 184; 2 Cox, R. 84; 9 Co. R. 75; 6 John. R. 94; 9 John. Pi,. 334; 10 Wend. R. 87; 4 Mass. R. 595; 2 Kent, Com. 631, 3d ed. But it matters not in what words this is done, if it sufficiently appear to be in the name of the principal, as, for A B, (the principal,) C D, (the attorney,) which has been held to be sufficient. See 15 Serg. & R. 55; 11 Mass. R. 97; 22 Pick. R. 168; 12 Mass. R. 237 9 Mass. 335; 16 Mass. R. 461; 1 Cowen, 513; 3 Wend. 94; Story, Ag. 154,275, 278, 395; Story on P. N., 69; 2 East, R. 142; 7 Watt's R. 121 6 John. R. 94. But see contra, Bac. Ab. Leases, J 10; 9 Co, 77; l Hare & Wall. Sel. Dec. 426.
14. - 3. The execution musr take place during the continuance, of the authority, which is determined either by revocation, or performance of the commission.
15. In general, an authority is revocable, unless it be given as a security, or it be coupled with an interest. 3 Watts & Serg. 14; 4 Campb. N. P. 272; 7 Ver. 28; 2 Kent's Com. 506; 8 Wheat. 203; 2 Cowen, 196; 2 Esp. N. P. Cases, 565; Bac. Abr. h. t. The revocation (q. v.) is either express or implied; when it is express and made known to the person authorized, the authority is at an end; the revocation is implied when the principal dies, or, if a female, marries; or the subject of the authority is destroyed, as if a man have authority to sell my house, and it is destroyed by fire or to buy for me a horse, and before the execution of the authority, the horse dies.
16. When once the agent has exercised all the authority given to him, the authority is at an end.
17. - 4. An authority is to be so construed as to include all necessary or usual means of executing it with effect 2 H. Bl. 618; 1 Roll. R. 390; Palm. 394 10 Ves. 441; 6 Serg. & R. 149; Com'. Dig. Attorney, C 15; 4 Campb. R. 163 Story on Ag. 58 to 142; 1 J. J. Marsh. R. 293 5 Johns. R. 58 1 Liv. on Ag. 103, 4 and when the agent acts, avowedly as such, within his authority, he is not personally responsible . Pal. on Ag. 4, 5. Vide, generally, 3 Vin. Ab. 416; Bac. Ab. h. f.; 1 Salk. 95 Com. Dig. h. t., and the titles there referred to. 1 Roll. Ab. 330 2 Roll. Ab. 9 Bouv. Inst. Index, h. t. and the articles, Attorney; Agency; Agent; Principal.
AUTHORITY, government. The right and power which an officer has in the exercise of a public function to compel obedience to his lawful commands. A judge, for example, has authority to enforce obedience to his not being correct. Merlin, Repertoire, mot Authentique.
AUTOCRACY. The name of a government where the monarch is unlimited by law. Such is the power of the emperor of Russia, who, following the example of his predecessors, calls himself the autocrat of all the Russias.
AUTRE VIE. Another's life. Vide, Pur autre vie.
AUTREFOIS. A French word, signifying formerly, at another time; and is usually applied to signify that something was done formerly, as autrefois acquit, autrefois convict, &c.
AUTREFOIS ACQUIT, crim. law, pleading. A plea made by a defendant, indicted for a crime or misdemeaner, that he has formerly been tried and acquitted of the same offence. See a form of this plea in Arch. Cr. PI. 90.
2. To be a bar, the acquittal must have been by trial, and by the verdict of a jury on a valid indictment. Hawk. B. 2, c. 25, s. 1; 4 Bl. Com. 335. There must be an acquittal of the offence charged in law and in fact. Stark. PI. 355; 2 Swift's Dig. 400 1 Chit. Cr. Law, 452; 2 Russ. on Cr. 41.
3. The Constitution of the U. S., Amend. Art. 5, provides that no person shall be subject for the same offence to be put twice in jeopardy of life or limb. Vide generally, 12 Serg. & Rawle, 389; YeIv. 205 a, note.
AUTREFOIS ATTAINT, crim. law. Formerly attainted.
2. This is a good plea in bar, where a second trial would be quite superfluous. Co. Litt. 390 b, note 2; 4 Bl. Com. 336. Where, therefore, any advantage either to public justice, or private individuals, would arise from a second prosecution, the plea will not prevent it; as where the criminal is indicted for treason after an attainder of felony, in which case the punishment will be more severe and more extensive. 3 Chit. Cr. Law, 464.
AUTREFOIS CONVICT, crim. law, pleading. A plea made by a defendant, indicted for a crime or misdemeanor, that he has formerly been tried and convicted of the same.
2. As a man once tried and acquitted of an offence is not again to be placed in jeopardy for the same cause, so, a fortiori, if he has suffered the penalty due to his offence, his conviction ought to be a bar to a second indictment for the same cause, least he should be punished twice for the same crime. 2 Hale, 251; 4 Co, 394; 2 Leon,. 83.
3. The form of this plea is like that of autrefois acquit; (q. v.) it must set out the former record, and show the identity of the offence and of the person by proper averments. Hawk. B. 2, c. 36; Stark. Cr. Pi. 363; Arcb. Cr, PI, 92; 1 Chit. Cr. Law, 462; 4 Bl. Com. 335; 11 Verm. R. 516.