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AUTHORITY

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.

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.

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 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. 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.

Contracts. The 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.

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 as, if a man be authorized to convey a tract of land, the letter of attorney must be by deed. But it does not require a written authority to sign an unscaled paper, or a contract in writing not under seal.

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. 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.

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. 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.

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.'

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.

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.

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.

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.

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.

An authority given to two cannot be executed by one. And an authority given to three jointly and separately, is not, in general, well executed by two. These rules apply to on 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 all to whom majority. When the authority is particular, it must in general be strictly pursued, or it will be void, unless the variance be merely circumstantial.

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. It has been holden that the name of the attorney is not requisite. 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.

The execution musr take place during the continuance of the authority, which is determined either by revocation or performance of the commission.

In general, an authority is revocable, unless it be given as a security, or it be coupled with an interest. The revocation 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.

When once the agent has exercised all the authority given to him, the authority is at an end.

An authority is to be so construed as to include all necessary or usual means of executing it with effect and when the agent acts, avowedly as such, within his authority, he is not personally responsible.

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