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Tnent of such persons as have been concerned in a riotous assembly, insurrection or other heinous misdemeanor.
AUDITA QUERELA. A writ the object of which is to be relieved from a judgment or execution for some injustice of the party who obtained it, which could not be pleaded in bar to the action. 13 Mass. 453; 12 Mass. 270; 6 Verm. 243; Bac. Ab. h. t.; 2 Saund. 148, n. 1; 2 Sell. Pr. 252. It is a remedial process which bears solely on the wrongful acts of the opposite party, and not upon the erroneous judgments or acts of the court. 10 Mass. 103; 17 Mass. 159; 1 Aik. 363. It will not lie, therefore, where the cause of complaint is a proper subject for a writ of error. 1 Verm. 433, 491; Brayt. 27. An audita querela is in the nature of an equitable suit, in which the equitable rights of the parties will be considered. 10 Mass. 101; 14 Mass. 448; 2 John. Cas. 227. An audita querela is a regular suit, in which the parties may plead, take issue, &c. 17 John. 484. But the writ must be allowed in open court, and is not of itself, a supersedeas, which may or may not be granted, in the discretion of the court, according to circumstances. 2 John. 227. In modern practice, it is usual to grant the same relief on motion, which might be obtained by audita querela. 4 John. 191; US. & R. 274; and in Virginia, 5 Rand. 639, and South Carolina, 2 Hill, 298, the summary remedy by motion, has superseded this ancient remedy. In Pennsylvania, this writ, it seems, may still be maintained, though relief is more generally obtained on motion. 11 S. '& R. 274. Vide, generally, Pot. C. C. R. 269; Bravt. 27, 28; Walker, 66 ; 1 Chipm. 387 ; 3 Conn. 260; 10 Pick. 439; 1 Aik. 107; 1 Overt. 425; 2 John. Cas. 227; 1 Root, 151 ; 2 Root, 178; 9 John. 221.
AUDITOR. An officer whose duty is to examine the accounts of officers who have received and disbursed public moneys by lawful authority. See Acts of Congress, April 3, 1817, 3 Story's LawsU. S. 1630; and the Act of February 24, 1819, 3 Story's L. U. S. 1722.
AUDITORS, practice, are persons lawfully appointed to examine and digest accounts referred to them, take down the evidence in writing, which may be lawfully offered in relation to such accounts, and prepare materials on which a decree or judgment may be made; and to report the whole, together with their opinion, to the court in which such accounts originated. 6 Cranch, 8; 1 Aik. 145; 12 Mass. 412. Their report is not, per se, binding and conclusive, but will become so, unless excepted to. 5 Rawle, R. 323. It may be set aside, either with or without exceptions to it being filed. In the first case, when errors are apparent on its face, it may be set aside or corrected. 2 Cranch, 124; 5 Cranch, 313. In the second case, it may be set aside for any fraud, corruption, gross misconduct, or error. 6 Cranch, 8; 4 Cranch, 308; 1 Aik. 145. The auditors ought to be sworn, but this will be presumed. 8 Verm. 396. Auditors are also persons appointed to examine the accounts subsisting between the parties in an action of account render after a judgment quad computet. Bac. Ab. Accompt, F. The auditors are required to state a special account, 4 Yeates, 514, and the whole is to be brought down to the time when they make an end of their account. 2 Burr. 1086, and auditors arc to make proper charges and credits without regard to time, or the verdict. 2 S. & R. 317. When the facts or matters of law are disputed before them, they are to report them to the court, when the former will be decided by a jury, and the latter by the court, and the result sent to the auditors for their guidance. 5 Binn. 433.
AUGMENTATION, old English law. The name of a court erected by Henry VIII., which was invested with the power of determining suits and controversies relating to monasteries and abbey lands.
AULA REGIS. Vide Curia Regis.
AUNT, domestic relations, is the sister of one's father or mother; she is a relation in the third degree. Vide
2 Com. Dig. 474 ; Dane's Ab. c. 126, a. 3, § 4.
AUTER ACTION PENDENT, pleading, another action depending. In cases where the plaintiff has commenced two actions for the same cause, the defendant may plead that there is another action depending for the same cause, in the same or any other court of competent jurisdiction. In general, the pendency of another action must be pleaded in abatement,
3 Rawle, R. 320; 1 Mass. 495; 5 Mass. 174, 179; 2 N. H. Rep. 36; 7 Verm. 124; 3 Dana, 157; 1 Ashm. R.. 4; 2 Browne, 175; 4 H. & M. 487; but in a penal action at the suit of a common informer, the priority of a former suit for the same penalty in the name of a third person may be pleaded in bar, because the party who first sued is entitled to the penalty. 1 Ch. Plead. 443. Having once arrested a defendant, the plaintiff cannot, in general, arrest him again for the same cause of action. Tidd, 184. But under special circumstances, of which the court will judge, a defendant may be arrested a second time. 2 Miles, R. 99, 100, 141, 142. Vide Bac. Ab. Bail in Civ. Cas. B 3; Grah. Pr. 98; Troub. & Hal. Pr. 44; 4 Yeates, R. 206 ; 1 John. Cas. 397; 7 Taunt. R. 151 ; 1 Marsh. R. 395 ; 1 Mete. & P. Dig. 6, and article Lis pendens.
AUTER DROIT, or more propcrly, Autre Droit, another's right.
A man may sue or be sued in ano-* ther's right; this is the case with executors and administrators.
AUTHENTIC. This term signifies an original of which there 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 authorised 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; lb. 4, 21 ; Dig. 22, 4. In Louisiana, the authentic act, as it relates to contracts, is that which has been executed before a notary public or other officer authorised 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. 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. Ib. art. 2233. Vide Merl. Rep. h. t.
AUTHENTICATION, practice, is an attestation made by a proper officer, by w hich 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. 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 j
Jupply 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.
By the act of May 26, 1790, it is provided, " That the act of the legislatures of the several states shall be authenticated by having 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."
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 of• fice 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."
§ 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 ofthe several states."
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."
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. 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 in like cases. 1 Lilly's Reg. 219. These latter are sometimes called precedents, ^j. v.) Merlin, Repertoire, mot Autorites.
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. 301; 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 consi
dered 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.
AUTHORITY, contracts, is the lawful delegation of power by one person to another. 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.
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 to render that instrument perfect; unless, indeed, the principal be present, and verbally or impliedly authorises the agent to fix his name to the deed, 4 T. R. 313; W. Jones R. 268; as, if a man be authorised 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. & R. 331; 6 S. & R. 90. 2 Pick. R. 345; 5 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 unsealed paper, or a contract in writing not under seal. Paley on Ag. by Lloyd, 161; Story, Ag. § 50. 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.
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. 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. They are also divided into limited and unlimited. When the agent is bound by precise instructions, it is limited, and unlimited when he is left to pursue his own discretion. An authority is either express or implied. An express authority must be by deed or by parol, that is in writing not under seal, or verbally. The authority must have been actually given. An implied authority is one which, although no proof exists of its having been actually given, it may be inferred from the conduct of the principal, that it was given; 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.
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.—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. 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 an authority of a private nature, which must be executed by all to whom it is given; and not to a power of a public nature, which may be executed by a majority. 9 Watts, R. 466. 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. 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 the 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 A. § 146; 9 Ves. 236; 1 Y. 4c J. 387; 2 M. & S. 299; 4 Campb. R. IH4; 2 Cox R. 84; 9 Co. R. 75; 6 John. R. 94; 9 John. R. 334; 10