I:
IBIDEM. This word is used in references when it is intended to
say that a thing is to be found in the same place, or that the
reference has for its object the same thing, case, or other
matter.
IOU, contracts. The memorandum IOU, (I owe you), given by
merchants to each other, is a mere evidence of the debt, and does
not amouut to a promissory note. Esp. Cas. N. A. 426; 4 Carr. &
Payne, 324; 19 Eng. Com. L. Rep. 405; 1 Man. & Gran. 46; 39 E.
C. L. R. 346; 1 Campb. 499; 1 Esp. R. 426; 1 Man. Gr. & So.
543; Dowl. & R. N. P. Cas. 8.
ICTUS ORBIS, med. jurisp. A maim, a bruise, or swelling; any
hurt without cutting the skin. When the skin is cut, the injury
is called a wound. (q. v.) Bract. lib. 2, tr. 2, c. 5 and 24.
2. Ictus is often used by medical authors in the sense of
percussus. It is applied to the pulsation of the arteries, to any
external lesion of the body produced by violence also to the
wound inflicted by a scorpion or venomous reptile. Orbis is used
in the sense of circlo, circuit, rotundity. It is applied also to
the eye balls. Oculi dicuntur orbes. Castelli Lexicon Medicum.
IDEM SONANS. Sounding the same.
2. In pleadings, when a name which it is material to state, is
wrongly spelled, yet if it be idem sonans with that proved, it is
sufficient, as Segrave for Seagrave, 2 Str. R. 889; Keen for
Keene, Thach. Cr. Cas. 67; Deadema for Diadema, 2 Ired. 346;
Hutson for Hudson, 7 Miss. R. 142; Coonrad for Conrad, 8 Miss.
R. 291. See 5 Pike, 72; 6 Ala. R. 679; vide also Russ. & Ry.
412; 2 Taunt. R. 401, In the following cases the variances there
mentioned were declared to be fatal. Russ. & Ry. 351; 10 East,
R. 83; 5 Taunt. R. 14; 1 Baldw. R. 83; 2 Crom. & M. 189; 6
Price, R. 2; 1 Chit. R. 659; 13 E. C. L. R. 194. See,
generally, 8 Chit. Pr. 231, 2; 4 T. R. 611; 3 B. & P. 559; 1
Stark. R. 47; 2 Stark. R. 29; 3 Camp. R. 29; 6 M. & S. 45; 2
N. H. Rep. 557; 7 S. & R. 479; 3 Caines, 219; 1 Wash. C. C. R.
285; 4 Cowen, 148 and the article Name.
IDENTITATE NOMINIS, Engl. law. The name of a writ which lies
for a person taken upon a capias or exigent and committed to
prison, for another man of the same name; this writ directs the
sheriff to inquire whether he be the same person against whom the
action was brought, and if not, then to discharge him. F. N. B.
267. In practice, a party in this condition would be relieved by
habeas corpus.
IDENTITY, evidence. Sameness.
2. It is frequently necessary to identify persons and things.
In criminal prosecutions, and in actions for torts and on
contracts, it is required to be proved that the defendants have
Bouvier's Law Dictionary : I1 : Page 1 of 129
in criminal actions, and for injuries, been guilty of the crime
or injury charged; and in an action on a contract, that the
defendant was a party to it. Sometimes, too, a party who has been
absent, and who appears to claim an inheritance, must prove his
identity and, not unfrequently, the body of a person which has
been found dead must be identified: cases occur when the body is
much disfigured, and, at other times, there is nothing left but
the skeleton. Cases of considerable difficulty arise, in
consequence of the omission to take particular notice; 2 Stark.
Car. 239 Ryan's Med. Jur. 301; and in consequence of the great
resemblance of two persons. 1 Hall's Am. Law Journ. 70; 1 Beck's
Med. Jur. 509; 1 Paris, Med. Jur, 222; 3 Id. 143; Trail. Med.
Jur. 33; Foder‚, Med. Leg. ch. 2, tome 1, p. 78-139.
3. In cases of larceny, trover, replevin, and the like, the
things in dispute must always be identified. Vide 4 Bl. Com. 396.
4. M. Briand, in his Manuel Complet de M‚dicine L‚gale, 4eme
partie, ch. 1, gives rules for the discovery of particular marks,
which an individual may have had, and also the true color of the
hair, although it may have been artificially colored. He also
gives some rules for the purpose of discovering, from the
appearance of a skeleton, the sex, the age, and the height of the
person when living, which he illustrates by various examples.
See, generally, 6 C. & P 677; 1 C. & M. 730; 3 Tyr. 806;
Shelf. on Mar. & Div. 226; 1 Hagg. Cons. R. 189; Best on Pres.
Appx. case 4; Wills on Circums. Ev. 143, et seq.
IDES, NONES and CALENDS, civil law. This mode of computing
time, formerly in use among the Romans, is yet used in several
chanceries in, Europe, particularly in that of the pope. Many
ancient instruments bear these dates; it is therefore proper to
notice them here. These three words designate all the days of the
month.
2. The calends were the first day of every month, and were
known by adding the names of the months; as calendis januarii,
calendis februarii, for the first days of the months of January
and February. They designated the following days by those before
the nones. The fifth day of each month, except those of March,
May, July, and October; in those four months the nones indicated
the seventh day; nonis martii, was therefore the seventh day of
March, and so of the rest. In those months in which the nones
indicated the fifth day, the second was called quarto nonas or 4
nonas, that is to say, quarto die ante nonas, the fourth day
before the nones. The words die and ante, being understood, were
usually suppressed. The third day of each of those eight months
was called tertio, or 3 nonas. The fourth, was pridie or 2 nonas;
and the fifth was nonas. In the months of March, May, July and
October, the second day of the months was called sexto or 6
nonas; the third, quinto, or 5 nonas; the fourth, quarto, or 4
nonas; the fifth, tertio, or 3 nonas; the sixth, pridie,
usually abridged prid. or pr. or 2 nonas; and the seventh,
nones. The word nonae is so applied, it is said, because it
indicates the ninth day before the ides of each month.
Bouvier's Law Dictionary : I1 : Page 2 of 129
3. In the months of March, May, July and October, the fifteenth
day of the months was the Ides. These are the four mouths, as
above mentioned, in which the nones were on the seventh day. In
the other eight months of the year the nones were the fifth of
the month, and the ides the thirteenth in each of them the ides
indicated the ninth day after the nones. The seven days between
the nones and the ides, which we count 8, 9, 10, 11, 12, 13, and
14, in March, May, July and October, the Romans counted octave,
or 8 idus; septimo, or 7 idus; sexto, or 6 idus; quinto, or 5
idus; quarto, or 4 idus; tertio, or 3 idus; pridie, or 2,
idus; the word ante being understood as mentioned above. As to
the other eight mouths of the year, in which the nones indicated
the fifth day of the month, instead of our 6, 7, 8, 9, 10, 11,
and 12, the Romans counted octavo idus, septimo, &c. The word is
said to be derived from the Tuscan, iduare, in Latin dividere, to
divide, because the day of ides divided the month into equal
parts. The days from the ides to the end of the month were
computed as follows; for example, the fourteenth day of January,
which was the next day after the ides, was called decimo nono, or
19 kalendas, or ante kalendas febrarii; the fifteenth, decimo
octavo, or 18 kalindas februarii, and so of the rest. Counting in
a, retrograde manner to pridie or 2 kalendas februarii, which was
the thirty-first day of January.
4. As in some months the ides indicate the thirteenth, and in
some the fifteenth of the month, and as the months have not an
equal number of days, it follows that the decimo nono or 19
kalendas did not always happen to be the next day after the Ides,
this was the case only in the months of January, August and
December. Decimo sexto or the 16th in Fedruary; decimo septimo
or 17, March, May, July and October; decimo octave or 18, in
April, June, September, and November. Merlin, R‚pertoire de
Jurisprudence, mots Ides, Nones et Calendes.
A Table of the Calends of the Nones and the Ides.
-----------------------------------------------------------------
--------
Jan., Aug., Dec. | March, May, | April, June, | February
28,
31 days. | July, Oct., | Sept., Nov., |
bissextile,
| 31 days. | 30 days. | 29
days.
-----------------------------------------------------------------
--------
1 | Calendis. | Calendis | Calendis | Calendis
Bouvier's Law Dictionary : I1 : Page 3 of 129
2 | 4 Nonas. | 6 Nonas | 4 Nonas | 4
Nonas
3 | 3 Nonas. | 5 Nonas | 3 Nonas | 3
Nonas
4 | Prid. Non. | 4 Nonas | Prid. Non. | Prid.
Non.
5 | Nonis | 3 Nonas | Nonis | Nonis
6 | 8 Idus | Prid. Non. | 8 Idus | 8 Idus
7 | 7 Idus | Nonis | 7 ]dus | 7 Idus
8 | 6 Idus | 8 Idus | 6 Idus | 6 Idus
9 | 5 Idus | 7 Idus | 5 Idus | 5 Idus
10 | 4 Idus | 6 Idus | 4 Idus | 4 Idus
11 | 3 Idus | 5 Idus | 3 Idus | 3 Idus
12 | Prid. Idus | 4 Idus | Prid. Idus | Prid. Idus
18 | Idibus | 3 Idus | Idibiis | Idibus
14 | 19 Cal. | Prid. Idus | 18 Cal. | 16
Cal.
15 | 18 Cal. | Idibus | 17 Cal. | 15 Cal.
16 | 17 Cal. | 17 Cal. | 16 Cal. | 14
Cal.
17 | 16 Cal. | 16 Cal. | 15 Cal. | 3 Cal.
18 | 15 Cal. | 15 Cal. | 14 Cal. | 12
Cal.
19 | 14 Cal. | 14 Cal. | 13 Cal. | 11
Cal.
20 | 18 Chl. | 13 Cal. | 12 Cal. | 10
Cal.
21 | 12 Cal. | 12 Cal. | 11 Cal. | 9 Cal.
22 | 11 Cal. | 11 Cal. | 10 Cal. | 8 Cal.
23 | 10 Cal. | 10 Cal. | 9 Cal. | 7 Cal.
24 | 9 Cal. | 9 Cal. | 8 Cal. | 6 Cal.*
25 | 8 Cal. | 9 Cal. | 7 Cal. | 5 Cal.
26 | 7 Cal. | 7 Cal. | 6 Cal. | 4 Cal.
27 | 6 Cal. | 6 Cal. | 5 Cal. | 3 Cal.
28 | 5 Cal. | 5 Cal. | 4 Cal. | Prid. Cal.
29 | 4 Cal. | 4 Cal. | 3 Cal. |
30 | 3 Cal. | 3 Cal. | Prid. Cal. |
31 | Prid. Cal. | Prid. Cal. | |
* If February is bissextile, Sexto Calencas (6 Cal.) it is
counted twice, viz: for the 24th and 25th of the month, Hence
the word bis-sextile.
Bouvier's Law Dictionary : I1 : Page 4 of 129
IDIOCY, med. jur. That condition of mind, in which the
reflective, or all or a part of the affective powers, are either
entirely wanting, or are manifested to the least possible extent.
2. Idiocy generally depends upon organic defects. The most
striking physical trait, and one seldom wanting, is the
diminutive size of the head, particularly of the anterior
superior portions, indicating a deficiency of the anterior lobes
of the brain. According to Gall, whose observations on this
subject are entitled to great consideration, its circumference,
measured immediately over the orbiter arch, and the most
prominent part of the occipital bone, is between 11« and 14«
inches. Gall, sur les Fonctions, p. 329. In the intelligent
adult, it usually measures from 21 to 22 inches. Chit. Med. Jur.
248. See, ou this subject, the learned work of Dr. Morton, of
Philadelphia*, entitled Crania Americana. The brain of an idiot
equals that of a new born infant; that is, about one-fourth,
one-fifth, or one-sixth of the cerebral mass of an adult's in the
enjoyment of his faculties. The above is the only constant
character. observed in the heads of idiots. In other respects
their forms are as various as those of other persons. When idiocy
supervenes in early infancy, the head is sometime remarkable for
immense size. This unnatural enlargement arises from some kind of
morbid action preventing the development of the cerebral mass,
and producing serous cysts, dropsical effusions, and the like.
3. In idiocy the features are irregular; the forehead low,
retreating, and narrowed to a point; the eyes are unsteady, and
often squint the lips are. thick, and the mouth is generally
open; the gums are spongy, and the teeth are defective; the
limbs are crooked and feeble. The senses are usually entirely
wanting; many are deaf and dumb, or blind and others are
incapable of perceiving odors, and show little or no
discrimination in their food for want of taste. Their movements
are constrained and awkward, they walk badly, and easily fall,
and are not less awkward with their hands, dropping generally
what is given to them. They are seldom able to articulate beyond
a few sounds. They are generally affected with rickets, epilepsy,
scrofula, or paralysis. Its subjects seldom live beyond the
twenty-fifth year, and are incurable, as there is natural
deformity which cannot be remedied. Vide Chit. Med. Jur. 345;
Ray's Med. Jur. c. 2; 1 Beck's Med. Jur. 571 Shelf. on Lun.
Index, h. t.; and Idiot.
IDIOT, Persons. A person who has been without understanding
from his nativity, and whom the law, therefore, presumes never
likely to attain any. Shelf. on Lun. 2.
2. It is an imbecility or sterility of mind, and not a
perversion of the understanding. Chit. Med. Jur. 345, 327, note
s; 1 Russ. on Cr. 6; Bac. Ab. h. t. A; Bro. Ab. h. t.; Co.
Litt. 246, 247; 3 Mod. 44; 1 Vern. 16; 4 Rep. 126; 1 Bl. Com.
302. When a man cannot count or number twenty, nor tell his
father's or mother's name, nor how old he is, having been
frequently told of it, it is a fair presumption that, he is
devoid of understanding. F. N. B. 233. Vide 1 Dow, P. C. now
series, 392; S. C. 3 Bligh, R. new series, 1. Persons born deaf,
dumb, and blind, are, presumed to be idiots, for the senses being
Bouvier's Law Dictionary : I1 : Page 5 of 129
the only inlets of knowledge, and these, the most important of
them, being closed, all ideas and associations belonging to them
are totally excluded from their minds. Co. Litt. 42 Shelf. on
Lun. 3. But this is a mere presumption, which, like most others,
may be rebutted; and doubtless a person born deaf, dumb, and
blind, who could be taught to read and write, would not be
considered an idiot. A remarkable instance of such an one may be
found in the person of Laura Bridgman, who has been taught how to
converse and even to write. This young woman was, in the year
1848, at school at South Boston. Vide Locke on Human
Understanding, B. 2 c. 11, §12, 13; Ayliffe's Pand. 234; 4 Com.
Dig. 610; 8 Com. Dig. 644.
3. Idiots are incapable of committing crimes, or entering into
contracts. They cannot of course make a will; but they may
acquire property by descent.
Vide, generally, 1 Dow's Parl. Cas. new series, 392; 3 Bligh's
R. 1; 19 Ves. 286, 352, 353; Stock ou the Law of Non Compotes
Mentis; Bouv. Inst. Index, h. t.
IDIOTA INQUIRENDO, WRIT DE. This is the name of an old writ
which directs the sheriff to inquire whether a man be an idiot or
not. The inquisition is to be made by a jury of twelve men. Fitz.
N. B. 232.
IDLENESS. The refusal or neglect to engage in any lawful
employment, in order to gain a livelihood.
2. The vagrant act of 17 G. II. c. 5, which, with some
modifications, has been adopted, in perhaps most of the states,
describes idle persons to be those who, not having wherewith to
maintain themselves, live idle, without employment, and refuse to
work for the usual and common, wages. These are punishable
according to the difrerent police regulations, with fine and
imprisonment. In Pennsylvania, vagrancy is punished, on a
conviction before a magistrate, with imprisonment for one mouth.
IGNIS JUDICIUM, Eng. law. The name of the old judicial trial by
fire.
IGNOMINY. Public disgrace, infamy, reproach, dishonor. Ignominy
is the opposite of esteem. Wolff, §145. See Infamy.
IGNORAMUS, practice. We are ignorant. This word, which in law
means we are uninformed, is written on a bill by a grand jury,
when they find that there is not sufficient evidence to authorize
their finding it a true bill. Sometimes, instead of using this
word, the grand jury endorse on the bill, "Not found." 4 Bl. Com.
305. Vide Grand Jury.
IGNORANCE. The want of knowledge.
2. Ignorance is distinguishable from error. Ignorance is want
of knowledge; error is the non-conformity or opposition of our
ideas to the truth. Considered as a motive of our actions,
ignorance differs but little from error. They are generally found
together, and what is said of one is said of both.
Bouvier's Law Dictionary : I1 : Page 6 of 129
3. Ignorance and error, are of several kinds. 1. When
considered as to their object, they are of law and of fact. 2.
When examined as to their origin, they are voluntary or
involuntary, 3. When viewed with regard to their influence on the
affairs of men, they are essential or non-essential.
4. - §1. Ignorance of law and fact. 1. Ignorance of law,
consists in the want of knowledge of those laws which it is our
duty to understand, and which every man is presumed to know. The
law forbids any one to marry a woman whose hushand is living. If
any man, then, imagined he could marry such a woman, he would be
ignorant of the law; and, if he married her, he would commit an
error as to a matter of law. How far a party is bound to fulfil a
promise to pay, upon a supposed liability, and in ignorance of
the law, see 12 East, R. 38; 2 Jac. & Walk. 263; 5 Taunt. R.
143; 3 B. & Cresw. R. 280; 1 John. Ch. R. 512, 516; 6 John.
Ch. R. 166; 9 Cowen's R. 674; 4 Mass. R. 342; 7 Mass. R. 452;
7 Mass. R. 488; 9 Pick. R. 112; 1 Binn. R. 27. And whether he
can be relieved from a contract entered into in ignorance or
mistake of the law. 1 Atk. 591; 1 Ves. & Bea. 23, 30; 1 Chan.
Cas. 84; 2 Vern. 243; 1 John. Ch. R. 512; 2 John. Ch. R. 51;
1 Pet. S. C. R. 1; 6 John. Ch. R. 169, 170; 8 Wheat. R. 174; 2
Mason, R. 244, 342.
5. - 2. Ignorance of fact, is the want of knowledge as to the
fact in question. It would be an error resulting from ignorance
of a fact, if a man believed a certain woman to be unmarried and
free, when in fact, she was a married woman; and were he to
marry her under that belief, he would not be criminally
responsible. Ignorance of the laws of a foreign government, or of
another state; is ignorance of a fact. 9 Pick. 112. Vide, for
the difference between ignorance of law and ignorance of fact, 9
Pick. R. 112; Clef. des Lois Rom. mot Fait; Dig. 22, 6, 7.
6. - §2. Ignorance is either voluntary or involuntary. 1. It is
voluntary when a party might, by taking reasonable pains, have
acquired the necessary knowledge. For example, every man might
acquire a knowledge of the laws which have been promulgated, a
neglect to become acquainted with them is therefore voluntary
ignorance. Doct. & St. 1, 46; Plowd. 343.
7. - 2. Involuntary ignorance is that which does not proceed
from choice, and which cannot be overcome by the use of any means
of knowledge known to him
and within his power; as, the ignorance of a law which has not
yet been promulgated.
Bouvier's Law Dictionary : I1 : Page 7 of 129
8. - §3. Ignorance is either essential or non-essential. 1. By
essential ignorance is understood that which has for its object
some essential circumstance so intimately connected with the:
matter in question, and which so influences the parties that it
induces them to act in the business. For example, if A should
sell his horse to B, and at the time of the sale the horse was
dead, unknown to the parties, the fact of the death would render
the sale void. Poth. Vente, n. 3 and 4; 2 Kent, Com. 367.
9. - 2. Non-essential or accidental ignorance is that which has
not of itself any necessary connexion with the business in
question, and which is not the true consideration for enteting
into the contract; as, if a man should marry a woman whom he
believed to be rich, and she proved to be poor, this fact would
not be essential, and the marriage would therefore be good. Vide,
generally, Ed. Inj. 7; 1 Johns. h. R. 512; 2 Johns. Ch. R. 41;
S. C. 14 Johns. R 501; Dougl. 467; 2 East, R. 469; 1 Campb.
134: 5 Taunt. 379; 3 M. & S. 378; 12 East, R. 38; 1 Vern.
243; 3 P. Wms. 127, n.; 1 Bro. C. C. 92; 10 Ves. 406; 2 Madd.
R. 163; 1 V. & B. 80; 2 Atk. 112, 591; 3 P. Wms. 315; Mos.
364; Doct. & Stud. Dial. 1, c. 26, p. 92; Id. Dial. 2, ch. 46,
p. 303; 2 East, R. 469; 12 East, R. 38; 1 Fonbl. Eq. B. 1, ch.
2, §7, note v; 8 Wheat. R. 174; S. C. 1 Pet. S. C. R. 1; 1
Chan. Cas. 84; 1 Story, Eq. Jur. §137, note 1; Dig. 22, 6;
Code, 1, 16; Clef des Lois Rom. h. t.; Merl. R‚pert. h. t.; 3
Sav. Dr. Rom. Appendice viii., pp. 337 to 444.
ILL FAME. This is a technical expression, that which means not
only bad character as generally understood, but every person,
whatever may be his conduct and character in life, who visits
bawdy houses, gaming houses, and other places which are of ill
fame, is a person of ill fame. 1 Rogers' Recorder, 67; Ayl. Par.
276; 2 Hill, 558; 17 Pick. 80; 1 Hagg. Eccl. R. 720; 2 Hagg.
Cons. R. 24; 1 Hagg. Cons. R. 302, 303; 1 Hagg. Eccl. R. 767;
2 Greenl. Ev. §44.
ILLEGAL. Contrary to law; unlawful.
2. It is a general rule, that the law will never give its aid
to a party who has entered into an illegal contract, whether the
same be in direct violation of a statute, against public policy,
or opposed to public morals. .Nor to a contract which is
fraudulent, which affects the defendant or a third person.
3. A contract in violation of a statute is absolutely void,
and, however disguised, it will be set aside, for no form of
expression can remove the substantial defect inherent in the
nature of the transaction; the courts will investigate the real
object of the contracting parties, and if that be repugnant to
the law, it will vitiate the transaction.
4. Contracts against the public policy of the law, are equally
void as if they were in violation of a public statute; a
contract not to marry any one, is therefore illegal and void. See
Void.
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5. A contract against the purity of manners is also illegal;
as, for example, a agreement to cohabit unlawfully with another,
is therefore void; but a bond given for past cohabitation, being
considered as remuneration for past injury, is binding. 4 Bouv.
Inst. n. 3853.
6. All contracts which have for their object, or which may in
their consequences, be injurious to third persons, altogether
unconnected with them, are in general illegal and void. Of the
first, an example may be found in the case where a sheriff's
officer received a sum of money from a defendant for admitting to
bail, and agreed to pay the bail, part of the money which was so
exacted. 2 Burr. 924. The case of a wager between two persons, as
to the character of a third, is an example of the second class.
Cowp. 729; 4 Camp. 152; 1 Rawle, 42; 1 B. & A. 683. Vide
lllicit; Unlawful.
ILLEGITIMATE. That which is contrary to law; it is usually
applied to children born out of lawful wedlock. A bastard is
sometimes called an illegitimate child.
ILLEVIABLE. A debt or duty that cannot or ought not to be
levied. Nihil set upon a debt is a mark for illeviable.
ILLICIT. What is unlawful what is forbidden by the law. Vide
Unlawful.
2. This word is frequently used in policies of insurance, where
the assured warrants against illicit trade. By illicit trade is
understood that "which is made unlawful by the laws of the
country to which the object is bound." The assured having entered
into this warranty, is required to do no act which will expose
the vessel to be legally condemned. 2 L. R. 337, 338. Vide
Insurance; Trade; Warranty.
ILLICITE. Unlawfully.
2. This word has a technical meaning, and is requisite in an
indictment where the act charged is unlawful; as, in the case of
a riot. 2 Hawk. P. C. 25, §96.
ILLINOIS. The name of one of the United States of America. This
state was admitted into the Union by virtue of a "Resolution
declaring the admission of the state of Illinois into the Union,"
passed December 3, 1818, in the following words: Resolved, &c.
That, whereas, in pursuance of an Act of Congress, passed on the
eighteenth day of April, one thousand eight hundred and eighteen,
entitled "An act to enable the people of the Illinois territory
to form a constitution and state government, and for the
admission of such state into the Union, on an equal footing with
the original states," the people of said territory did, on the
twenty-sixth day of August, in the present year, by a convention
called for that purpose, form for themselves a constitution and
state government, which constitution and state government, so
Bouvier's Law Dictionary : I1 : Page 9 of 129
formed, is republican, and in conformity to the principles of the
articles of compact between the original states and the people
and States in the territory northwest of the river Ohio, passed
on the thirteenth day of July, one thousand seven hundred and
eighty-seven: Resolved, &c. That the state of Illinois shall be
one, and is hereby declared to be one, of the United States of
America, and admitted into the Union on an equal footing with the
original states, in all respects whatever.
2. A constitution for this state, was adopted in convention
held at Kaskaskia, on the 26th day of August, 1818, which
continued in force until the first day of April; 1848. A
convention to revise the constitution assembled at Springfield,
June 7, 1847, in pursuance of an act of the general assembly of
the state of Illinois, entitled "An act to provide for the call
of a convention: On the first day of August, 1848, this
convention adopted a constitution of the state of Illinois, and
by the 13th section of the schedule thereof it provided that this
constitution shall be the supreme law of the land from and after
the first day of April, A. D. 1848.
3. It will be proper to consider, 1. The rights of citizens to
vote at elections. 2. The distribution of the powers of
government.
4. - 1. The sixth article directs that, §1. In all elections,
every white male citizen above the age of twenty-one years,
having resided in the state one year next preceding any election,
shall be entitled to vote at such election; and every white male
inhabitant of the age aforesaid, who may be a resident of the
state' at the time of the adoption of this constitution, shall
have the right of voting as aforesaid; but no such citizen or
inhabitant shall be entititled to vote, except in the district or
county in which he Shall actually reside lit the time of such
election.
§2. All votes shall be given by ballot.
§5. No elector loses his residence in the state by reason of
his absence on business of the United States, or this state.
§6. No soldier, seaman or mariner of the United States, is
deemed a resident of the state, in consequence of being stationed
within the state.
5. The second article distributes the powers of the government
as follows:
§1. The powers of the government of the state of Illinois shall
be divided into three distinct departments, and each of them be
confided to a separate body of magistracy, to wit: Those which
are legislative, to one; those which are executive, to another;
and those which are judicial, to another.
Bouvier's Law Dictionary : I1 : Page 10 of 129
2. No person, or collection of persons, being one of these
departments, shall exercise any power properly belonging to
either of, the others, except as hereinafter expressly directed
or permitted; and all acts in contravention of this section
shall be void. These will be separately considered.
6. The legislative department will be considered by taking a
view, 1. Of those parts of the constitution which relate to the
general assembly. 2. Of the senate. 3. Of the house of
representatives.
7. - 1st. Of the general assembly. The third article of the
constitution provides as follows
§1. The legislative authority of this state shall be vested in
a general assembly; which shall consist of a senate and house of
representatives, both to be elected by the people.
§2. The first election for senators and representatives shall
be held on the Tuesday after the first Monday in November, one
thousand eight hundred and forty-eight; and thereafter,
elections for members of the general assembly shall be held once
in two years, on the Tuesday next after the first Monday in
November, in each and every county, at such places therein as may
be provided by law.
§7. No person elected to the general sembly shall receive any
civil appointment within this state, or to the senate of the
United States, from the governor, the governor and senate, or
from the general assembly, during the term for which he shall
have been elected; and all such appointments, and all votes
given for any such member for any such office or appointment,
shall be void; nor shall any member of the general assembly be
interested, either directly or indirectly, in any contract with
the state, or any county thereof, authorized by any law passed
during the time for which he shall have been elected, or during
one year after the expiration thereof.
§12. The senate and house of representatives, when assembled,
shall each choose a speaker and other officers, (the speaker of
the senate excepted.) Each house shall judge of the
qualifications and election of its own members, and sit upon its
own adjournments. Two-thirds of each house shall constitute a
quorum but a smaller number may adjourn from day to day, and
compel the attendance of absent members.
§13. Each house shall keep a journal of its proceedings, and
publish them. The yeas and nays of the members on any question
shall, at the desire of any two of them, be entered on the
journals.
§14. Any two members of either house shall have liberty to
dissent and protest against any act or resolution which they may
think injurious to the public, or to any individual, and have the
reasons of their dissent entered on the journals.
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§15. Each house may determine the rules of its proceedings,
punish its members for disorderly behaviour, and, with the
concurrence of two-thirds of all the members elected, expel a
member, but not a second time for the same cause; and the reason
for such expulsion shall be entered upon the journal, with the
names of the members voting on the question.
§16. When vacancies shall happen in either house, the govenor,
or the person exercising the powers of governor, shall issue
writs of election to fill such vacancies.
§17. Senators and representatives shall, in all cases, except
treason, felony or breach of the peace, be privileged from arrest
during the session of the general assembly, and in going to and
returning from the same and for any speech or debate in either
house, they shall not be questioned in any other place.
§18. Each house may punish, by imprisonment during its session,
any person, not a member, who shall be guilty of disrespect to
the house, by any disorderly or contemptuous behaviour in their
presence: Provided, such imprisonment shall not, at any one
time, exceed twenty-four hours.
§19. The doors of each house, and of committees of the whole,
shall be kept open, except in such cases as in the opinion of the
house require secrecy. Neither house shall, without the consent
of the other, adjourn for more than two days, nor to any other
place than that in which the two houses shall be sitting.
8. - 2d Of the senate. The senate will be considered by taking
a view of, 1. The qualification of senators. 2. Their election.
3. By whom elected. 4. When elected. 5. Number of senators. 6.
The duration of their office.
9. First. Art. 3, s. 4, of the Constitution, directs that "No
person shall be a senator who shall not have attained the age of
thirty years; who shall not be a citizen of the United States,
five years an inhabitant of this state, and one year in the
county or district in which he shall be chosen, immediately
preceding his election, if such county or district shall have
been so long erected; but if not, then within the Iimits of the
county or counties, district or districts, out of which the same
shall have been taken unless he shall have been absent on the
public business of the United States, or of this state, and shall
not, moreover, have paid a state or county tax."
10. Secondly. The senators at their first session herein
provided for, shall be divided by lot, as near as can be, into
two classes. The seats of the first class shall be vacated at the
expiration of the second year, and those of the second class at
the expiration of the fourth year; so that one-half thereof, as
near as possible, may be biennially chosen forever thereafter.
Art. 31 s. 5.
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11. Thirdly. The senators are elected by the people.
12. Fourthly. The first election shall be held on the Tuesday
after the first Monday in November, 1848; and thereafter the
elections shall be on the Tuesday after the first Monday in
November, once in two years. Art. 3, s. 2.
13. Fifthly. The senate shall consist of twenty-five members,
and the house of representatives shall consist of seventy-five
members, until the population of the state shall amount to one
million. of souls, when five members may be added to the house,
and five additional members for every five hundred thousand
inhabitants thereafter, until the whole number of representatives
shall amount to one hundred; after which, the number shall
neither be increased nor diminished; to be apportioned among the
several counties according to the number of white inhabitants. In
all future apportionments, where more than one county shall be
thrown into a representative district, all the representatives to
which said counties may be entitled shall be elected by the
entire district. Art. 3, s. 6.
14. Sixthly. The senators at their first session herein
provided for shall be divided by lot, as near as can be, into two
classes. The seats of the first class shall be vacated at the
expiration of the second year, and those of the second class at
the expiration of the fourth year, so that one-half thereof, as
near as possible, may be biennially chosen forever thereafter.
Art. 3, s. 5.
15. - 3. The house of representatives. This will be considered
in the same order which has been observed in relation to the
senate.
16. First. No person shall be a representative who shall not
have attained the age of twenty-five years; who shall not be a
citizen of the United States, and three years an inhabitant of
this state; who shall not have resided within the limits of the
county or district in which he shall be chosen twelve months next
preceding his election, if such county or district shall have
been so long erected; but if not, then within the limits of the
county or counties, district or districts, out of which the same
shall have been taken, unless he shall have been absent on the
public business of the United States, or of this state; and who,
moreover, shall not have paid a state or county tax. Art. 3, s.
3.
17. Secondly. They are elected biennially.
18. Thirdly. Representatives are elected by the people.
19. Fourthly. Representatives are elected at the same time that
senators are elected.
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20. Fifthly. The house of representatives shall consist of
seventy-five members. See ante, No. 16.
21. Sixthly. Their office continues for two years.
22. - 2. The executive department. The executive power is
vested in a governor. Art. 4, s. 1. It will be proper to
consider, 1. His qualifications. 2. His election: 3. The
duration of his office. 4. His authority and duty.
23. First. No person except a citizen of the United States
shall be eligible to the office of governor, nor shall any person
be eligible to that office who shall not have attained the age of
thirty-five years, and been ten years a resident of this state;
and fourteen years a citizen of the United States. Art. 4 s. 4.
24. Secondly. His election is to be on the Tuesday next after
the first Monday in November. The first election in 1848, and
every fourth year afterwards.
25. Thirdly. He remains in office for four years. The first
governor is to be installed on the first Monday of January, 1849,
and the others every fourth; year thereafter.
26. Fourthly. His authority and duty. He may give information
and recommend measures to the legislature, grant reprieves,
commutations and pardons, except in cases of treason and
impeachment, but in these cases he may suspend execution of the
sentence until the meeting of the legislature - require
information from the officers of the executive department, and
take care that the laws be faithfully executed - on extraordinary
occasions, convene the general assembly by proclamation be
commander-in-chief of the army and navy of the state, except when
they shall be called into the service of the United States -
nominate, and, by and with the consent and advice of the senate,
appoint all officers whose offices are established by the
constitution, or which may be created by law, and whose
appointments - are not otherwise provided for - in case of
disagreement between the two houses with respect to the time of
adjournment, adjourn the general assembly to such time as he
thinks proper, provided it be not to a period beyond a
constitutional meeting of the same. Art. 4. He has also the veto
power.
27. A lieutenant governor shall be chosen at every election of
governor, in the same manner, continue in office for the same
time, and possess the same qualifications. In voting for governor
and lieutenant governor, the electors shall distinguish whom they
vote for as governor, and whom as lieutenant-governor. Art. 4, s.
14. The following are his principal powers and duties
§15. The lieutenant governor shall, by virtue of his office, be
speaker of the senate, have a right, when in committee of the
whole, to debate and vote on all subjects, and, whenever the
senate are equally divided, to give the casting vote.
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§16. Whenever the government shall be administered by the
lieutenant- governor, or he shall be unable to attend as speaker
of the senate, the senators shall elect one of their own, number
as speaker for that occasion; and if, during the vacancy of the
office of governor, the lieutenant governor shall be impeached,
removed from his office, refuse to qualify, or resign, or die, or
be absent from the state, the speaker of the senate shall, in
like manner, administer the government.
§17. The lieutenant governor, while he acts as speaker of the
senate, shall receive for his service the same compensation
which, shall, for the same period, be allowed to the speaker of
the house of representatives, and no more.
§18. If the lieutenant governor shall be called upon to
administer the government, and shall, while in such
administration, resign, die, or be absent from the state, during
the recess of the general assembly, it shall be the duty of the
secretary of state, for the time being, to convene the senate for
the purpose of choosing a speaker.
§19. In case of the impeachment of the governor, his absence
from the, state, or inability to discharge the duties of his
office, the powers, duties, and emoluments of the office shall
devolve upon the lieutenant governor and in case of his death,
resignation, or removal, then upon the speaker of the senate for
the time being, until the governor, absent or impeached, shall
return or be acquitted; or until the disqualification or
inability shall cease; or until a new governor shall be elected
and qualified.
§20. In case of a vacancy in the office of governor, for any
other cause than those herein enumerated, or in case of the death
of the governor elect before he is qualified, the powers, duties,
and emoluments of the office devolve upon the lieutenant
governor, or speaker of the senate, as above provided, until a
new governor be elected and qualified.
28. - 3. The judiciary department. The judicial power is vested
in one supreme court, in circuit courts, in county courts, and in
justices of the peace; but inferior local courts, of civil and
criminal jurisdiction, may be established by the general assembly
in the cities of the state but such courts shall have a uniform
organization and jurisdiction in such cities. Art. 5, s. 1. These
will be separately considered.
29. - 1st. Of the supreme court, its organization and
jurisdiction. 1. Of its organization. 1st. The judges must be
citizens of the United States; have resided in the state five
years previous to their respective elections; and two years next
preceding their election in the division, circuit, or county in
which they shall respectively be elected; and not be less than
thirty-five years of age at the time of their election. 2d. The
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judges are elected each one in a particular district, by the
people. But the legislature may change the mode of election. 3d.
The supreme court consists of a chief justice and three
associates, any two of whom form a quorum; and a concurrence of
two of said judges is necessary to a decision. 4th. They hold
their office for nine years. After the first election, the judges
are to draw by lot, and one is to go out of office in three, one
in six, and the other in nine years. And one judge is to be
elected every third year. 2. Of thejurisdiction of the supreme
court. This court has original jurisdiction in cases relative to
the, revenue, in cases of mandamus, habeas corpus, and in such
cases of impeachment as may be by law directed to be tried before
it, and it has appellate jurisdiction in all other cases.
30. - 2d. Of the circuit courts, their organization and
jurisdiction. 1st. Of their organization. The state is divided
into nine judicial districts, in each of which a circuit judge,
having the same qualifications as the supreme judges, except that
he may be appointed at the age of thirty years, is elected by the
qualified electors, who holds his office for six years and until
his successor shall be commissioned and qualified; but the
legislature may increase the number of circuits. 2d. Of their
jurisdiction. The circuit courts have jurisdiction in all cases
at law and equity, and in all cases of appeals from all inferior
courts.
31. - 3d. Of the county courts. There is in each county a court
to be called a county court. It is composed of one judge, elected
by the people, who holds his office for four years. Its
jurisdiction extends to all probate and such other jurisdiction
as the general assembly may confer in civil cases, and in such
criminal eases as may be prescribed by law, when the punishment
is by fine only, not exeeeding one hundred dollars. The county
judge, with such justices of the peace in each county as may be
designated by law, shall hold terms for the transaction of county
business, and shall perform such other duties as the general
assembly shall prescribe; Provided, the general assembly may
require that two justices, to be chosen by the qualified electors
of each county, shall sit with the county judge in all cases;
and there shall be elected, quadrennially, in each county, a
clerk of the county court, who shall be ex officio recorder,
whose compensation shall be fees; Provided, the general assembly
may, by law, make the clerk of the circuit court ex officio
recorder, in lieu of the county clerk.
32. - 4th. Of justices of the peace. There shall be elected in
each county in this state, in such districts as the general
assembly may direct, by the qualified electors thereof, a
competent number of justices of the peace, who shall hold their
offices for the term of four years, and until their successors
shall have been elected and qualified, and who shall perform such
duties, receive such compensation, and exercise such jurisdiction
as may be prescribed by law.
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ILLITERATE. This term is applied to one unacquainted with
letters.
2. When an ignorant man, unable to read, signs a deed or
agreement, or makes his mark instead of a signature, and he
alleges, and can provide that it was falsely read to him, he is
not bound by it, in consequence of the fraud. And the same effect
would result, if the deed or agreement were falsely read to a
blind man, who could have read before he lost his sight, or to a
foreigner who did not understand the language. For a plea of
"laymen and unlettered," see Bauer v. Roth, 4 Rawle, Rep. 85 and
pp. 94, 95.
3. To induce an illiterate man, by false representations and
false reading, to sign a note for a greater amount than that
agreed on, is indictable as a cheat. 1 Yerg. 76. Vide, generally,
2 Nels. Ab. 946; 2 Co. 3; 11 Co. 28; Moor, 148.
ILLUSION. A species of mania in which the sensibility of the
nervous system is altered, excited, weakened or perverted. The
patient is deceived by the false appearance of things, and his
reason is not sufficiently active and powerful to correct the
error, and this last particular is what distinguishes the sane
from the insane. Illusions are not unfrequent in a state of
health, but reason corrects the errors and dissipates them. A
square tower seen from a distance may appear round, but on
approaching it, the error is corrected. A distant mountain may be
taken for a cloud, but as we approach, we discover the truth. To
a person in the cabin of a vessel under sail, the shore appears
to move; but reflection and a closer examination soon destroy
this illusion. An insane individual is mistaken on the qualities,
connexions, and causes of the impressions he actually receives,
and he forms wrong judgments as to his internal and external
sensations; and his reason does not correct the error. 1 Beck's
Med. Jur. 538; Esquirol, Maladies Mentales, pr‚m. partie, III.,
tome 1, p. 202. Dict. des Sciences M‚dicales, Hallucination, tome
20, p. 64. See Hallucination.
ILLUSORY APPOINTMENT, chancery practice. Such an appointment or
disposition of property under a power as is merely nominal and
not substantial.
2. Illusory appointments are void in equity. Sugd. Pow. 489; 1
Vern. 67; 1 T. R. 438, note; 4 Ves. 785; 16 Ves. 26; 1 Taunt.
289; and the article Appointment.
TO IMAGINE, Eng. law. In cases of treason the law makes it a
crime to imagine the death of the king. In order to complete the
offence there must, however, be an overt act the terms compassing
and imagining being synonymous. It. has been justly remarked that
the words to compass and imagine are too vague for a statute
whose penalty affects the life of a subject. Barr. on the Stat.
243, 4. Vide Fiction.
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IMBECILITY, med. jur. A weakness of the mind, caused by the
absence or obliteration of natural or acquired ideas; or it is
described to be an abnormal deficiency either in those faculties
which acquaint us with the qualities and ordinary relations of
things, or in those which furnish us with the moral motives that
regulate our relations and conduct towards our fellow men. It is
frequently attended with excessive activity. of one or more of
the animal propensities.
2. Imbecility differs from idiocy in this, that the subjects of
the former possess some intellectual capacity, though inferior in
degree to that possessed by the great mass of mankind; while
those of the latter are utterly destitute of reason. Imbecility
differs also from stupidity. (q. v.) The former consists in a
defect of the mind, which renders it unable to examine the data
presented to it by the senses, and therefrom to deduce the
correct judgment; that is, a defect of intensity, or reflective
power. The latter is occasioned by a want of intensity, or
perceptive power.
3. There are various degrees of this disease. It has been
attempted to classify the degrees of imbecility, but the careful
observer of nature will perhaps be soon satisfied that the shades
of difference between one species and another, are almost
imperceptible. Ray, Med. Jur. ch. 3; 2 Beck, Med. Jur. 550, 542;
1 Hagg. Ecc. R. 384; 2 Philm. R. 449; 1 Litt. R. 252, 5 John.
Ch. R. 161; 1 Litt. R. 101; Des Maladies mentales, consider‚es
dans leurs rapports avec la legislation civille et criminelle, 8;
Georget, Discussion medico-l‚gale sur la folie, 140.
IMMATERIAL. What is not essential; unimportant what is not
requisite; what is informal; as, an immaterial averment, an
immaterial issue.
2. When a witness deposes to something immaterial, which is
false, although he is guilty of perjury in foro conscientiae, he
cannot be punished for perjury. 2 Russ. on Cr. 521; 1 Hawk. b.
1, c. 69, s. 8; Bac. Ab. Perjury, A.
IMMATERIAL AVERMENT. One alleging with needless particularity
or unnecessary circumstances, what is material and requisite, and
which, properly, might have been stated more generally, or
without such circumstances or particulars; or, in other words,
it, is a statement of unnecessary particulars, in connexion with,
and as descriptive of, what is material. Gould on Pl. c. 3, §186.
2. It is highly improper to introduce immaterial averments,
because, when they are made, they must be proved; as, if, a
plaintiff declare for rent on a demise which is described as
reserving a certain annual rent, payable "by four even and equal
quarterly payments," &c.; and on the trial it appears that there
was no stipulation with regard to the time or times of payment of
the rents, the plaintiff cannot recover. The averment as to the
time, though it need not have been made, yet it must be proved,
and the plaintiff having failed in this, he cannot recover; as
there is a variance between the contract declared upon and the
contract proved. Dougl. 665.
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3. But when the immaterial averment is such that it may be
struck out of the declaration, without striking out at the same
time the cause of action, and when there is no variance between
the contract as, laid in the declaration and that proved,
immaterial averments then need not be proved. Gould on Pl. C. 3,
§188.
lMMATERIAL ISSUE. One taken on a point not proper to decide the
action; for example, if in an action of debt on bond,
conditioned for the payment of ten dollars and fifty cents at a
certain day, the defend ant pleads the payment of ten dollars
according to the form of the condition, and the plaintiff,
instead of demurring, tenders issue upon the payment, it is
manifest that, whether this issue be found for the plaintiff or
the defendant, it will remain equally uncertain whether the
plaintiff is entitled to maintain his action, or not; for, in an
action for the penalty of a bond, conditioned to pay a certain
sum, the only material question is, whether the exact sum were
paid or not, and the question of payment of a part is a question
quite beside the legal merits. Hob. 113; 5 Taunt. 386.
IMMEDIATE. That which is produced directly by the act to which
it is ascribed, without the intervention or agency of any
distinct intermediate cause.
2. For immediate injuries the remedy is trespass; for those
which are consequential, an action on the case. 11 Mass. R. 59,
137, 525; 1 & 2 Ohio R. 342; 6 S. & R. 348; 18 John. 257; 19
John. 381; 2 H. & M. 423; 1 Yeates, R. 586; 12 S & R. 210;
Coxe, R. 339; Harper's R. 113; 6 Call's R . 44; 1 Marsh. R.
194.
3. When an immediate injury is caused by negligence, the
injured party may elect to regard the negligence as the immediate
cause of action, and declare in case; or to consider the act
itself as the immediate injury, and sue in trespass. 14 John.
432; 6 Cowen, 342; 3 N. H. Rep. 465; sed vide 3 Conn. 64; 2
Bos. & Pull. New Rep. by Day, 448, note. See Cause.
IMMEMORIAL. That which commences beyond the time of memory.
Vide Memory, time of.
IMMEMORIAL POSSESSION. In Louisiana, by this term is understood
that of which no man living has seen the beginning, and the
existence of which he has learned from his elders. Civ. Code of
Lo. art. 762; 2 M. R. 214; 7 L. R. 46; 3 Toull. p. 410; Poth.
Contr. de Societ‚, n. 244; 3 Bouv. Inst. n. 3069, note.
IMMIGRATION. The removing into one place from another. It
differs from emigration, which is the moving from one place into
another. Vide Emigration.
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IMMORAL CONSIDERATION. One contrary to good morals, and
therefore invalid. See Moral obligation.
IMMORALITY. that which is contra bonos mores. In England, it is
not punishable in some cases, at the common law, on, account of
the ecclesiastical jurisdictions: e. g. adultery. But except in
cases belonging to the ecclesiastical courts, the court of king's
bench is the custom morum, and may punish delicto contra bonos
mores. 3 Burr. Rep. 1438; 1 Bl. Rep. 94; 2 Strange, 788. In
Pennsylvania, and most, if not all the United States, all such
cases come under one and the same jurisdiction.
2. Immoral contracts are generally void; an agreement in
consideration of future illicit cohabitation between the parties;
3 Burr. 1568; S. C. 1 Bl. Rep. 517; 1 Esp. R. 13; 1 B. & P.
340, 341; an agreement for the value of libelous and immoral
pictures, 4 Esp. R. 97; or for printing a libel, 2 Stark. R.
107; or for an immoral wager, Chit. Contr. 156, cannot,
therefore, be enforced. For whatever arises from an immoral or
illegal consideration, is void: quid turpi ex causa promissum
est non valet. Inst. 3, 20, 24.
3. It is a general rule, that whenever an agreement appears to
be illegal, immoral, or against public policy, a court of justice
leaves the parties where it finds them; when the agreement has
been executed, the court will not rescind it; when executory,
the count will not help the execution. 4 Ohio R. 419; 4 John. R.
419; 11 John. R. 388; 12 John. R. 306; 19 John. R. 341; 3
Cowen's R. 213; 2 Wils. R. 341.
IMMOVABLES, civil law. Things are movable or immovable.
Immovables, res immobiles, are things in general, such as cannot
move themselves or be removed from one place to another. But this
definition, strictly speaking, is applicable only to such things
as are immovable by their own nature, and not to such as are so
only by the destination of the law.
2. There are things immovable by their nature, others by their
destination, and others by the objects to which they are applied.
3. - 1. Lands and buildings or other constructions, whether
they have their foundations in the soil or not, are immovable by
their nature. By the common law, buildings erected on the land
are not considered real estate, unless they have been let into,
or united to the land, or to substances previously connected
therewith. Ferard on Fixt. 2.
4. - 2. Things, which the owner of the land has placed upon it
for its service and improvement, are immovables by destination,
as seeds, plants, fodder, manure, pigeons in a pigeon-house,
bee-hives, and the like. By the common. law, erections with or
without a foundation, when made for the purpose of trade, are
considered personal estate. 2 Pet. S. C. Rep. 137; 3 Atk. 13;
Ambl. 113
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5. - 3. A servitude established on real estate, is an instance
of an immovable, which is so considered in consequence of the
object to which it is applied. Vide Civil Code of Louis. B. 2, t.
1, c. 2, art. 453-463; Poth. Des Choses, §1; Poth. de la
Communante, n. 25, et seq; Clef des Lois Romaines, mot
Immeubles.
IMMUNITY. An exemption from serving in an office, or performing
duties which the law generally requires other citizens to
perform. Vide Dig. lib. 50, t. 6; 1 Chit. Cr. L. 821; 4 Har. &
M'Hen. 341.
IMMUTABLE. What cannot be removed, what is unchangeable. The
laws of God being perfect, are immutable, but no human law can be
so considered.
IMPAIRING THE OBLIGATION OF CONTRACTS. The Constitution of the
United States, art. 1, s. 9, cl. 1, declares that no state shall
"pass any bill of attainder, ex post facto law, or law impairing
the obligation of contracts."
2. Contracts, when considered in relation to their effects, are
executed, that is, by transfer of the possession of the thing
contracted for; or they are executory, which gives only a right
of action for the subject of the contract. Contracts are also
express or implied. The constitution makes no distinction between
one class of contracts and the other. 6 Cranch, 135; 7 Cranch,
164.
3. The obligation of a contract here spoken of is a legal, not
a mere moral obligation; it is the law which binds the party to
perform his undertaking. The obligation does not inhere or
subsist in the contract itself, proprio vigore, but in the law
appli- cable to the contract. 4 Wheat. R. 197; 12 Wheat. R. 318;
and. this law is not the universal law of nations, but it is the
law of the state where the contract is made. 12 Wheat. R. 213.
Any law which enlarges, abridges, or in any manner changes the
intention of the parties, resulting from the stipulations in the
contract, necessarily impairs it. 12 Wheat. 256; Id. 327; 3
Wash. C. C. Rep. 319; 8 Wheat. 84; 4 Wheat. 197.
4. The constitution forbids the states to pass any law
impairing the obligation of contracts, but there is nothing in
that instrument which prohibits Congress from passing such a law.
Pet. C. C. R. 322. Vide, generally, Story on the Const. §1368 to
1891 Serg. Const. Law, 356; Rawle on the Const. h. t.; Dane's
Ab. Index, h. t.; 10 Am. Jur. 273-297.
TO IMPANEL, practice. The writing the names of a jury on a
schedule, by the sheriff or other officer lawfully authorized.
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IMPARLANCE, pleading and practice. Imparlance, from the French,
parler, to speak, or licentia loquendi, in its most general
signification, means time given by the court to either party to
answer the pleading of his opponent, as either, to plead, reply,
rejoin, &c., and is said to be nothing else but the continuance
of the cause till a further day. Bac. Abr. Pleas, C. But the more
common signification of the term is time to plead. 2 Saund. 1, n.
2; 2 Show. 3 10; Barnes, 346; Lawes, Civ. Pl. 93, 94.
2. Imparlances are of three descriptions: First. A common or
general imparlance. Secondly. A special imparlance. Thirdly. A
general special imparlance.
3. - 1. A general imparlance is the entry of a general prayer.
and allowance of time to plead till the next term, without
reserving to the defendant the benefit of any exception; so
that, after such an imparlance, the defendant cannot object to
the jurisdiction of the court, or plead any matter in abatement.
This kind of imparlance is always from one term to another.
4.-2. A special imparlance reserves to the defendant all
exception to the writ, bill, or count; and, therefore, after it,
the defendant may plead in abatement, though not to the
jurisdiction of the court.
5. - 3. A general special imparlance contains a saving of all
exceptions whatsoever, so that the defendant, after this, may
plead, not only in abatement, but he may also plead a plea which
affects the jurisdiction of the court, as privilege. He cannot,
however, plead a tender, and that he was always ready to pay,
because, by craving time, he admits he is not ready, and so
falsifies his plea. Tidd's Pr. 418, 419. The last two kinds of
imparlances are, it seems, sometimes from one day to another in
the same term. See, in general, Com. Dig Abatement, I 19, 20, 21;
1 Chit. Pl. 420; Bac. Abr. Pleas, C; 14 Vin. Abr. 335; Com.
Dig. Pleader, D; 1 Sell. Pr. 265; Doct. Pl. 291; Encycl. de M.
D'Alembert, art. Delai (Jurisp.)
IMPEACHMENT, const. law, punishments. Under the constitution
and laws of the United States, an impeachment may be described to
be a written accusation, by the house of representatives of the
United States, to the senate of the United States, against an
officer. The presentment, written accusation, is called articles
of impeachment.
2. The constitution declares that the house of representatives
shall have the sole power of impeachment art. 1, s. 2, cl. 5 and
that the senate shall have the sole power to try all
impeachments. Art. 1, s. 3, cl. 6.
3. The persons liable to impeachment are the president,
vice-president, and all civil officers of the United States. Art.
2, s. 4. A question arose upon an impeachment before the senate,
in 1799, whether a senator was a civil officer of the United
States, within the purview of this section of the constitution,
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and it was decided by the senate, by a vote of fourteen against
eleven, that he was not. Senate Journ., January 10th, 1799;
Story on Const. §791; Rawle on Const. 213, 214 Serg. Const. Law,
376.
4. The offences for which a guilty officer may be impeached
are, treason, bribery, and other high crimes and misdemeanors.
Art. 2, s. 4. The constitution defines the crime of treason. Art.
3, s. 3. Recourse must be had to the common law for a definition
of bribery. Not having particularly mentioned what is to be
understood by "other high crimes and misdemeanors," resort, it is
presumed, must be had to parliamentary practice, and the common
law, in order to ascertain what they are. Story, §795.
5. The mode of proceeding, in the institution and trial of
impeachments, is as follows: When a person who may be legally
impeached has been guilty, or is supposed to have been guilty, of
some malversation in office, a resolution is generally brought
forward by a member of the house of representatives, either to
accuse the party, or for a committee of inquiry. If the committee
report adversely to the party accused, they give a statement of
the charges, and recommend that he be impeached; when the
resolution is adopted by the house, a committee is appointed to
impeach the party at the bar of the senate, and to state that the
articles of impeachment against him will be exhibited in due
time, and made good before the senate, and to demand that the
senate take order for the appearance of the party to answer to
the impeachment. The house then agree upon the articles of
impeachment, and they are presented to the senate by a committee
appointed by the house to prosecute the impeachment; the senate
then issues process, summoning the party to appear at a given day
before them, to answer to the articles. The process is served by
the sergeant-at-arms of the senate, and a return is made of it to
the senate, under oath. On the return-day of the process, the
senate resolves itself into a court of impeacmment, and the
senators are sworn to do justice, according to the constitution
and laws. The person impeached is called to answer, and either
appears or does not appear. If he does not appear, his default is
recorded, and the senate may proceed ex parte. If he does appear,
either by himself or attorney, the parties are required to form
an issue, and a time is then assigned for the trial. The
proceedings on the trial are conducted substantially as they are
upon common judicial trials. If any debates arise among the
senators, they are conducted in secret, and the final decision is
given by yeas and nays; but no person can be convicted without
the concurrence of two-thirds of the members present. Const. art.
1, s. 2, cl. 6.
6. When the president is tried, the chief justice shall
preside. The judgment, in cases of impeachment shall not extend
further than to removal from office, and disqualification to hold
and enjoy any office of honor, trust, or profit under the United
States. Proceedings on impeachments under the state constitutions
are somewhat similar. Vide Courts of the United States.
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IMPEACHMENT, evidence. An allegation, supported by proof, that
a witness who has been examined is unworthy of credit.
2. Every witness is liable to be impeached as to his character
for truth; and, if his general character is good, he is
presumed, at all times, to be ready to support it. 3 Bouv. Inst.
n. 3224, et seq.
IMPEACHMENT OF WASTE. It signifies a restraint from committing
waste upon lands or tenements; or a demand of compensation for
waste done by a tenant who has but a particular estate in the
land granted, and, therefore, no right to commit waste.
2. All tenants for life, or any less estate, are liable to be
impeached for waste, unless they hold without impeachment of
waste; in the latter case, they may commit waste without being
questioned, or any demand for compensation for the waste done. 11
Co. 82.
IMPEDIMENTS, contracts. Legal objections to the making of a
contract. Impediments which relate to the person are those of
minority, want of reason, coverture, and the like; they are
sometimes called disabilities. Vide Incapacity.
2. In the civil law, this term is used to signify bars to a
marriage. These impediments are classed, as they are applied to
particular persons, into absolute and relative; as they relate
to the contract and its validity, they are dirimant (q. v.) and
prohibitive. (q. v.) 1. The absolute impediments are those which
prevent the person subject to them from marrying at, all, without
either the nullity of marriage, or, its being punishable. 2. The
relative impediments are those which regard only certain persons
with regard to each other; as, the marriage of a brother to a
sister. 3. The dirimant impediments are those which render a
marriage void; as, where one of the contracting parties is
already married to another person. 4. Prohibitive impediments are
those which do not render the marriage null, but subject the
parties to a punishment. Bowy. Mod. Civ. Law, 44, 45.
IMPERFECT. That which is incomplete.
2. This term is applied to rights and obligations. A man has a
right to be relieved by his fellow-creatures, when in distress;
but this right he cannot enforce by law; hence it is called an
imperfect right. On the other hand, we are bound to be grateful
for favors received, but we cannot be compelled to perform such
imperfect obligations. Vide Poth. Ob. arc. Pr‚liminaire; Vattel,
Dr. des Gens, Prel. notes, §17; and Obligations.
IMPERIUM. The right to command, which includes the right to
employ the force of the state to enforce the laws; this is one
of the principal attributes of the power of the executive. 1
Toull. n. 58.
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IMPERTINENT, practice, pleading. What does not appertain, or
belong to; id est, qui ad rem non pertinet.
2. Evidence of facts which do not belong to the matter in
question, is impertinent and inadmissible. In general, what is
immaterial is impertinent, and what is material is, in general,
not impertinent. 1 McC. & Y. 337. See Gresl. Ev. Ch. 3, s. 1, p.
229. Impertinent matter, in a declaration or other pleading is
that which does not belong to the subject; in such case it is
considered as mere surplusage, (q. v.) and is rejected. Ham. N.
P. 25. Vide 2 Ves. 24; 5 Madd. R. 450; Newl. Pr. 38; 2 Ves.
631; 5 Ves. 656; 18 Eng. Com. Law R. 201; Eden on Inj. 71.
3. There is a difference between matter merely impertinent and
that which is scandalous; matter may be impertinent, without
being scandalous; but if it is scandalous, it must be
impertinent.
4. In equity a bill cannot, according to the general practice,
be referred for impertinence after the defendant has answered or
submitted to answer, but it may be referred for scandal at any
time, and even upon the application of a stranger to the suit.
Coop. Eq. Pl. 19; 2 Ves. 631; 6 Ves. 514; Story, Eq. Pl. §270.
Vide Gresl. Eq. Ev. p. 2, c. 3, s, 1; 1 John. Ch. R. 103; 1
Paige's R. 555; I Edw. R. 350; 11 Price, R. 111; 5 Paige's R.
522; 1 Russ. & My. 28; Bouv. Inst. Index, h. t.; Scandal.
IMPETRATION. The obtaining anything by prayer or petition. In
the ancient English statutes, it signifies a pre-obtaining of
church benefices in England from the church of Rome, which
belonged to the gift of the king, or other lay patrons.
TO IMPLEAD, practice. To sue or prosecute by due course of law.
9 Watts, 47.
IMPLEMENTS. Such things as are used or employed for a trade, or
furniture of a house.
IMIPLICATA, mar. law. In order to avoid the risk of making
fruitless voyages, merchants have been in the habit of receiving
small adventures on freight at so much per cent, to which they
are entitled at all events, even if the adventure be lost. This
is what the Italians call implicata. Targa, chap. 34 Emer. Mar.
Loans, s. 5.
IMPLICATION. An inference of something not directly declared,
but arising from what is admitted or expressed.
2. It is a rule that when the law gives anything to a man, it
gives him by implication all that is necessary for its enjoyment.
It is also a rule that when a man accepts an office, he
undertakes by implication to use it according to law, and by
non-user he may forfeit it. 2 B1. Com. 152.
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3. An estate in fee simple will pass by implication; 6 John..
R. 185; IS John. R. 31; 2 Binn. R. 464, 532; such implication
must not only be a possible or probable one, but it must be plain
and necessary that is, so strong a probability of intention that
an intention contrary to that imputed to the testator cannot be
supposed. 1 Ves. & B. 466; Willes, 141; 1 Ves. jr. 564; 14
John. R. 198. Vide, generally, Com. Dig. Estates by Devise, N 12,
13; 2 Rop. Leg. 342; 14 Vin. Ab. 341; 5 Ves. 805; 5 Ves. 582;
3 Ves. 676.
IMPORTATION, comm. law. The act of bringing goods and
merchandise into the United States from a foreign country. 9
Cranch, 104, 120; 5 Cranch, 368; 2 Mann. & Gr. 155, note a.
2. To prevent the mischievous interference of the several
states with the national commerce, the constitution of the United
States, art. 1, s. 10, provides as follows: "No state shall,
without the consent of the congress, lay any imposts or duties on
imports or exports, except what may be absolutely necessary for
executing its inspection laws, and the net produce of all duties
and imposts, laid by any state on imports or exports, shall be
for the use of the treasury of the United States; and all such
laws shall be subject to the revision and control of the
congress."
3. This apparently plain provision has received a judicial
construction. In the year 1821, the legislature of Maryland
passed an act requiring that all importers of foreign articles,
commodities, &c., by the bale or package, of wine, rum, &c., and
other persons selling the same by wholesale, bale or package,
hogshead, barrel or tierce, should, before they were authorized
to sell, take out a license for which they were to pay fifty
dollars, under certain penalties. A question arose whether this
act was or was not a violation of the constitution of the United
States, and particularly of the above clause, and the supreme
court decided against the constitutionality of the law. 12 Wheat.
419.
4. The act of congress of March 1, 1817, 3 Story, L. U. S.
1622, provides:
5. - §1. That, after the 30th day of September next, no goods,
wares, or merchandise, shall be imported into the United States
from any foreign port or place, except in vessels of the United
States, or in such foreign vessels as truly or wholly belong to
the citizens or subjects of that country of which the goods are
the growth, production or manufacture; or from which such goods,
wares or merchandise, can only be or most usually are, first
shipped for transportation: Provided, nevertheless, That this
regulation shall not extend to the vessels of any foreign nation
which has not adopted, and which shall not adopt a similar
regulation.
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6. - §2. That all goods, wares or merchandise, imported into
the United States contrary to the true intent and meaning of this
act, and the ship or vessel wherein the same shall be imported,
together with her cargo, tackle, apparel, and furniture, shall be
forfeited to the United States and such goods, wares, or
merchandise, ship, or vessel, and cargo, shall be liable to be
seized, prosecuted, and condemned, in like manner, and under the
same regulations, restrictions, and provisions, as have been
heretofore established for the recovery, collection,
distribution, and remission, of forfeitures to the United States
by the several revenue laws.
7. - §4. That no goods, wares, or merchandise, shall, be
imported, under penalty of forfeiture thereof, from one port of
the United States to another port of the United States, in a
vessel belonging wholly or in part to a subject of any foreign
power; but this clause shall not be construed to prohibit the
sailing of any foreign vessel from one to another port of the
United States, provided no goods, wares, or mere other than those
imported in such vessel from some foreign port, and which shall
not have been unladen, shall be carried from one port or place to
another in the United States.
8. - §6. That after the 30th day of September next, there shall
be paid upon every ship or vessel of the United States, which
shall be entered in the United States from any foreign port or
place, unless the officers, and at least two-thirds of the crew
thereof, shall be proved citizens of the United States, or
persons not the Subjects of any foreign prince or state, to the
satisfaction of the collector, fifty cents per ton: And provided
also, that this section shall not extend to ships or vessels of
the United States, which are now on foreign voyages, or which may
depart from the United States prior to the first day of May next,
until after their return to some port of the United States.
9.- §7. That the several bounties and remissions, or abatements
of duty, allowed by this act, in the case of vessels having a
certain proportion of seamen who are American citizens, or
persons not the subjects of any foreign power, shall be allowed
only, in the case of vessels having such proportion of American
seamen during their whole voyage, unless in case of sickness,
death or desertion, or where the whole or part of the crew shall
have been taken prisoners in the voyage. Vide article Entry of
goods at the Custom-house.
IMPORTS. Importations; as no state shall lay any duties on
imports or exports. Const. U. S. Art. 1, s. 10; 7 How. U. S.
Rep. 477.
IMPORTUNITY. Urgent solicitation, with troublesome frequency
and pertinacity.
2. Wills and devises are sometimes set aside in consequence of
the importunity of those who have procured them. Whenever the
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importunity is such as to deprive the devisor of the freedom, of
his will, the devise becomes fraudulent and void. Dane's Ab. ch.
127, a. 14, s. 5, 6, 7; 2 Phillim. R. 551, 2.
IMPOSITIONS. Imposts, taxes, or contributions.
IMPOSSIBILITY. The character of that which. cannot be done
agreeably to the accustomed order of nature.
2. It is a maxim that no one is bound to perform an
impossibility. A l'impossible nul n'est tenu. 1 Swift's Dig. 93;
6 Toull. n. 121, 481.
3. As to impossible conditions in contracts, see Bac. Ab.
Conditions, M; Co. Litt. 206; Roll. Ab. 420; 6 Toull. n. 486,
686; Dig. 2, 14, 39; Id. 44, 7, 31; Id. 50, 17, 185; Id. 45,
1, 69. On the subject of impossible conditions in wills, vide 1
Rop. Leg. 505; Swinb. pt. 4, s. 6; 6 Toull. 614. Vide,
generally, Dane's Ab. Index, h. t.; Clef des Lois Rom. par
Fieff‚ Lacroix, h. t.; Com. Dig. Conditions, D 1 & 2; Vin. Ab.
Conditions, C a, D a, E a.
IMPOSTS. This word is sometimes used to signify taxes, or
duties, or impositions; and, sometimes, in the more restrained
sense of a duty on imported goods and merchandise . The
Federalist, No. 30; 3 Elliott's Debates, 289; Story, Const.
§949.
2. The Constitution of the United States, art. 1, s. 8, n. 1,
gives power to congress "to lay and collect taxes, duties,
imposts and excises." And art. 1, s. 10, n. 2, directs that "no
state shall, without the consent of congress, lay any imposts, or
duties on imports or exports, except what may be absolutely
necessary for executing its inspection laws." See Bac. Ab.
Smuggling, B; 2 Inst. 62; Dy. 165 n.; Sir John Davis on
Imposition.
IMPOTENCE, med. jur. The incapacity for copulation or
propagating the species. It has also been used synonymously with
sterility.
2. Impotence may be considered as incurable, ourable,
accidental or temporary. Absolute or incurable impotence, is that
for which there is no known relief, principally originating in
some malformation or defect of the genital organs. Where this
defect existed at the time of the marriage, and was incurable, by
the ecclesiastical law and the law of several of the American
states, the marriage may be declared void ab initio. Com. Dig.
Baron and Feme, C 3; Bac. Ab. Marriage, &c., E 3; 1 Bl. Com.
440; Beck's Med. Jur. 67; Code, lib. 5, t. 17, l. 10; Poynt.
on Marr. and Div. ch. 8; 5 Paige, 554; Merl. R‚p. mot
Impuissance. But it seems the party naturally impotent cannot
allege that fact for the purpose of obtaining a divorce. 3
Phillim. R. 147; S. C. 1 Eng. Eccl. R. 384. See 3 Phillim. R.
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325; S. C. 1 Eng. Eccl. R. 408; 1 Chit. Med. Jur. 877; 1 Par.
& Fonbl. 172, 173. note d; Ryan's Med. Jur. 95. to 111; 1 Bl.
Com. 440; 2 Phillm. R. 10; 1 Hagg. R. 725. See, as to the signs
of impotence, 1 Briand, M‚d. L‚g. c. 2, art. 2, §2, n. 1;
Dictionnaire des Sciences M‚dicales, art. Impuissance; and,
generally, Trebuchet, Jur. de la. Med. 100, 101, 102; 1 State
Tr. 315; 8 State Tr. App. No. 1, p. 23; 3 Phillm. R. 147; 1
Hagg. Eccl. R. 523; Foder‚, M‚d. L‚g. §237.
IMPRESCRIPTIBILITY. The state of being incapable of
prescription.
2. A property which is held in trust is imprescriptible; that
is the trustee cannot acquire a title to it by prescription; nor
can the borrower of a thing get a right to it by any lapse of
time, unless he claims an adverse right to it during the time
required by law.
IMPRIMATUR. A license or allowance to one to print.
2. At one time, before a book could be printed in England, it
was requisite that a permission should be obtained that
permission was called an imprimatur. In some countries where the
press is liable to censure, an imprimatur is required.
IMPRIMERY. In some of the ancient English statutes this word is
used to signify a printing-office, the art of printing, a print
or impression.
IMPRIMIS. In the first place; as, imprimis, I direct my just
debts to be paid. See Item.
IMPRISONMENT. The restraint of a person contrary to his will. 2
Inst. 589; Baldw. Rep. 239, 600. Imprisonment is either lawful
or unlawful; lawful imprisonment is used either for crimes or
for the appearance of a party in a civil suit, or on arrest in
execution.
2. Imprisonment for crimes is either for the appearance of a
person accused, as when he cannot give bail; or it is the effect
of a sentence, and then it is a part of the punishnient.
3. Imprisonment in civil cases takes place when a defendant on
being sued on bailable process refuses or cannot give the bail
legally demanded, or is under a capias ad satisfaciendum, when he
is taken in execution under a judgment. An unlawful imprisonment,
commonly called false imprisonment, (q. v.) meaus any illegal
imprisonment whatever, either with or without process, or under
color of process wholly illegal, without regard to any question
whether any crime has been committed or a debt due.
4. As to what will amount to an imprisonment, the most obvious
modes are confinement in a prison or a private house, but a
forcible detention in the street, or the touching of a person by
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a peace officer by way of arrest, are also imprisonments. Bac.
Ab. Trespass, D 3; 1 Esp. R. 431, 526. It has been decided that
lifting up a person in his chair, and carrying him out of the
room in which he was sitting with others, and excluding him from
the room, was not an imprisonment; 1 Chit. Pr. 48; and the
merely giving charge of a person to a peace officer, not followed
by any actual apprehension of the person, does not amount to an
imprisonment, though the party to avoid it, next day attend at a
police; 1 Esp. R. 431; New Rep. 211; 1 Carr. & Pavn. 153; S.
C. II Eng. Com. Law, R. 351; and if, in consequence of a message
from a sheriff's officer holding a writ, the defendant execute
and send him a bail bond, such submission to the process will not
constitute an arrest. 6 Bar. & Cres. 528; S. C. 13 Eng. Com. Law
Rep. 245; Dowl. & R. 233. Vide, generally, 14 Vin. Ab. 342; 4
Com. Dig. 618; 1 Chit. Pr. 47; Merl. R‚pert. mot Emprisonment;
17 Eng. Com. L. R. 246, n.
IMPROBATION. The act by which perjury or falsehood is proved.
Techn. Dict. h. t.
IMPROPRIATION, eccl. law. The act, of employing the revenues of
a church living to one's own use; it is also a parsonage or
ecclesiastical living in the hands of a layman, or which descends
by inheritance. Techn. Dict. h. t.
IMPROVEMENT, estates. This term is of doubtful meaning It would
seem to apply principally to buildings, though generally it
extends to amelioration of every description of property, whether
real or personal; it is generally explained by other words.
2. Where, by the terms of a lease, the covenant was to 1eave at
the end of the term a water-mill with all the fixtures,
fastenings, and improvements, during the demise fixed, fastened,
or set up on or upon the premises, in good plight and condition,
it was held to include a pair of new millstones set up by the
lessee during the term, although the custom of the country in
general authorized the tenant to remove them. 9 Bing. 24; 3 Sim.
450; 2 Ves. & Bea. 349. Vide 3 Yeates, 71; Addis. R. 335; 4
Binn. R. 418; 5 Binn. R. 77; 5 S. & R. 266; 1 Binn. R. 495; 1
John. Ch. R. 450; 15 Pick. R. 471. Vide Profits. 2 Man. & Gra.
729, 757; S. C. 40 Eng. C. L. R. 598, 612.
3. Tenants in common are not bound to pay for permanent
improvements, made on the common property, by one of the tenants
in common without their consent. 2 Bouv. Inst. n. 1881.
IMPROVEMENT, rights. An addition of some useful thing to a
machine, manufacture or composition of matter.
2. The patent law of July 4, 1836, authorizes the granting of a
patent for any new and useful improvement on any art, machine
manufacture or composition of matter. Sect. 6. It is often very
difficult to say what is a new and useful improvement, the cases
often approach very near to each other. In the present improved
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state of machinery, it is almost impracticable not to employ the
same elements of motion, and in some particulars, the same manner
of operation, to produce any new effect. 1 Gallis. 478; 2
Gallis. 51. See 4 B. & Ald. 540; 2 Kent, Com. 370.
IMPUBER, civil law. One who is more than seven years old, or
out of infancy, and who has not attained the age of an adult, (q.
v.) and who is not yet in his puberty that is, if a boy, till he
has attained his full age of fourteen years, and, if a girl, her
full age of twelve years. Domat, Liv. Prel. t. 2, s. 2, n. 8.
IMPUNITY. Not being punished for a crime or misdemeanor
committed. The impunity of crimes is one of the most prolific
sources whence they arise. lmpunitas continuum affectum tribuit
delinquenti. 4 Co. 45, a; 5 Co. 109, a.
IMPUTATION. The judgment by which we declare that an agent is
the cause of his free action, or of the result of it, whether
good or ill. Wolff, §3.
IMPUTATION OF PAYMENT. This term is used in Louisiana to
signify the appropriation which is made of a payment, when the
debtor owes two debts to the creditor. Civ. Code of Lo. art. 2159
to 2262. See 3 N. S. 483; 6 N. S. 28; Id. 113: Poth. Ob. n.
539, 565, 570; Durant. Des Contr. Liv. 3, t. 3, §3, n. 191; 10
L. R. 232, 352; 7 Toull. n. 173, p. 246.
IN ALIO LOCO. In another place. Vide Cepit in alio loco.
IN ARTICULO MORTIS. In the article of death; at the point of
death. As to the effect of this condition on wills, see
Nuncupative; as to the testimony of such person, see Dying
declarations.
IN AUTRE DROIT. In another's right. An executor, administrator
or trustee, is said to have the property confided to him in such
character, in autre droit.
IN BLANK. This is generally applied to indorsements, as,
indorsements in blank, which is one not restricted, made by the
indorser simply writing his name. See Indorsement.
IN CHIEF. Evidence is said to be in chief when it is given in
support of the case opened by the leading counsel. Vide To Open -
Opening. The term is used to distinguish evidence of this nature
from evidence obtained on a cross-examination. (q. v.) 3 Chit.
890. By evidence in chief is sometimes meant that evidence, which
is given in contradistinction to evidence which is obtained on
the witness voir dire.
2. Evidence in chief should be confined to such matters as the
pleadings and the opening warrant, and a departure from this
rule, will be sometimes highly inconvenient, if not fatal.
Suppose, for example, that two assaults have been committed, one
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in January and the other. in February, and the plaintiff prove
his cause of action to have been the assault in January, he
cannot abandon that, and afterwards prove another committed in
February unless the pleadings and openings extend to both. 1
Campb R. 473. See also, 6 Carr. & P. 73; S. C. 25 E. C. L. R.
288; 1 Mood. & R. 282.
IN COMMENDAM. The state or condition of a church living, which
is void or vacant, and it is commended to the care of some one.
In, Louisiana, there is a species of partnership called a
partnership in commendam. Vide Commendam.
IN CUSTODIA LEGIS. In the custody of the law. In general, when
things are in custodia legis, they cannot be distrained, nor
otherwise interfered with by a private person.
IN ESSE. In being. A thing in existence. It is used in
opposition to enposse. A child in ventre sa mere is a thing in
posse; after he is born, he is in esse. Vide 1 Supp. to Ves. jr.
466; 2 Suppl. to Ves. jr. 155, 191. Vide Posse.
IN EXTREMIS. This phrase is used to denote the end of life;
as, a marriage in extremis, is one made at the end of life. Vide
Extremis.
IN FACIENDO. In doing, or in feasance. 2 Story, Eq. Jurisp.
§1308.
IN FAVOREM LIBERTATIS. In favor of liberty.
IN FAVOREM VITAE. In favor of life.
IN FIERI. In the course of execution; a thing commenced but
not completed. A record is said to be in fieri during the term of
the court, and, during that time, it may be amended or altered at
the sound discretion of the court. See 2 B. & Adol. 971.
IN FORMA PAUPERIS. In the character or form of a pauper. In
England, in some cases, when a poor person cannot afford to pay
the costs of a suit as it proceeds, he is exempted from such
payment, having obtained leave to sue in forma pauperis.
IN FORO CONSCIENTIAE. Before the tribunal of conscience;
conscientiously. This term is applied in opposition, to the
obligations which the law enforces.
2. In the sale of property, for example, the concealment of
facts by the vendee which may enhance the price, is wrong in foro
conscientiae, but there is no legal obligation on the part of the
vendee to disclose them, and the contract will be good if not
vitiated by fraud. Poth. Vent. part 2, c. 2, n. 233; 2 Wheat.
185, note c.
20 IN FRAUDEM LEGIS. In fraud of the law. Every thing done in
fraudem legis is void in law. 2 Ves. sen. 155, 156 Bouv. Inst. n.
585, 3834.
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IN GREMIO LEGIS. In the bosom of the law. This is a figurative
expression, by which is meant, that the subject is under the
protection of the law; as, where land is in abeyance.
IN GROSS. At large; not appurtenant or appendant, but annexed
to a man's per son: e. g. Common granted to a man and his heirs
by deed, is common in gross; or common in gross may be claimed
by prescriptive right. 2 Bl. Com. 34.
IN INVITUM. Against an unwilling party; against one who has
not given his consent. See Invito domino.
IN JUDICIO. In the course of trial; a course of legal
proceedings.
IN JURE. In law; according to law, rightfully. Bract. fol.
169, b.
IN LIMINE. In or at the beginning. This phrase is frequently
used; as, the courts are anxious to check crimes in limine.
IN LITEM, ad litem. For a suit; to the suit. Greenl. Ev. §348.
IN LOCO PARENTIS. In the place of a parent; as, the master
stands towards his apprentice in loco parentis.
IN MITIORI SENSU, construction. Formerly in actions of slander
it was a rule to take the expression used in mitiori sensu, in
the mildest acceptation; and ingenuity was, upon these
occasions, continually exercised to devise or discover a meaning
which by some remote possibility the speaker might have intended;
and some ludicrous examples of this ingenuity may be found. To
say of a man who was making his livelihood by buying and selling
merchandise, he is a base, broken rascal, he has broken twice,
and I'll make him break a third time, was gravely asserted not to
be actionable - "ne poet dar porter action, car poet estre intend
de burstness de belly," Latch, 114. And to call a man a thief was
declared to be no slander for this reason, "perhaps the speaker
might mean he had stolen a lady's heart."
2. The rule now is to construe words agreeably to the meaning
usually attached to them. 1 Nott & McCord, 217; 2 Nott & McCord,
511; 8 Mass. R. 248; 1 Wash. R. 152; Kirby, R. 12; 7 Serg. &
Rawle, 451; 2 Binn. 34; 3 Binn. 515.
IN MORA. In default. Vide mora, in.
IN NUBIBUS. In the clouds. This is a figurative expression to
signify a state of suspension or abeyance. 1 Co. 137.
IN NULLO EST ERRATUM, pleading. A plea to errors assigned on
proceedings in error, by which the defendant in error affirms
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there is no error in the record. As to the effect of, such plea,
see 1 Vent. 252; 1 Str. 684; 9 Mass. R. 532; 1 Burr. 410; T.
Ray. 231. It is a general rule that the plea in nullo est erratum
confesses the fact assigned for error; Yelv. 57; Dane's Ab.
Index, h. t.; but not a matter assigned contrary to the record.
7 Wend. 55; Bac. Ab. Error; G.
IN ODIUM SPOLIATORIS. In hatred of a despoiler. All things are
presumed against a despoiler or wrong doer in odium spoliatoris
omnia praesumuntur.
IN PARI CAUSA. In an equal cause. It is a rule that when two
persons have equal rights in relation to a particular thing, the
party in possession is considered as having the better right: in
pari causa possessor potior est. Dig. 50; 17, 128; 1 Bouv.
Inst. n. 952.
IN PARI DELICTO. In equal fault; equal in guilt. Neither
courts of law nor equity will interpose to grant relief to the
parties, when an illegal agreement has been made, and both
parties stand in pari delicto. The law leaves them where it finds
them, according to the maxim, in pari delicto potior est conditio
defendentis et possidendis. 1 Bouv. Inst. n. 769.
IN PARI MATERIA. Upon the same matter or subject. Statutes in
pari materia are to be construed together.
IN PERPETUAM REI MEMORIAM. For the perpetual memory or
remembrance of a thing. Gilb. For. Rom. 118.
IN PERSONAM, remedies. A remedy in personam, is one where the
proceedings are against the person, in contradistinction to those
which are against specific things, or in rem. (q. v.) 3 Bouv.
Inst. n. 2646.
IN POSSE. In possibility; not in actual existence; used in
contradistinction to in esse.
IN PRAESENTI. At the present time; used in opposition to in
futuro. A marriage contracted in words de praesenti is good; as,
I take Paul to be my hushand, is a good marriage, but words de
futuro would not be sufficient, unless the ceremony was followed
by consummation. 1 Bouv. Inst. n. 258.
IN PRINCIPIO. At the beginning this is frequently used in
citations; as Bac. Ab. Legacies, in pr.
IN PROPRIA PERSONA. In his own person; himself; as the
defendant appeared in propria persona; the plaintiff argued the
cause in propria persona.
IN RE. In the matter; as in re A B, in the matter of A B.
IN REBUS. In things, cases or matters.
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IN REM, remedies. This technical term is used to designate
proceedings or actions instituted against the thing, in
contradistinction to personal actions which are said to be in
personam. Proceedings in rem include not only judgments of
property as forfeited, or as prize in the admiralty, or the
English exchequer, but also the decisions of other courts upon
the personal status, or relations of the party, such as marriage,
divorce, bastardy, settlement, or the like. 1 Greenl. Ev. §§525,
541.
2. Courts of admiralty enforce the performance of a contract by
seizing into their custody the very subject of hypothecation;
for in these case's the parties are not personally bound, and the
proceedings are confined to the thing in specie. Bro. Civ. and
Adm. Law, 98; and see 2 Gall. R. 200; 3 T. R. 269, 270.
3. There are cases, however, where the remedy is either in
personam or in rem. Seamen, for example, may proceed against the
ship or cargo for their wages, and this is the most expeditious
mode; or they may proceed against the master or owners. 4 Burr.
1944; 2 Bro. C. & A. Law, 396. Vide, generally, 1 Phil. Ev. 254;
1 Stark. Ev. 228; Dane's Ab. h. t.; Serg. Const. Law, 202, 203,
212.
IN RERUM NATURA. In the nature of things; in existence.
IN SOLIDO. A term used in the civil law, to signify that a
contract is joint.
2. Obligations are in solido, first, between several creditors;
secondly, between several debters. 1. When a person contracts the
obligation of one and the same thing, in favor of several others,
each of these is only creditor for his own share, but he may
contract with each of them for the whole when such is the
intention of the parties, so that each of the persons in whose
favor the obligation is contracted, is creditor for the whole,
but that a payment made to any one liberates the debtor against
them all. This is called solidity of obligation. Poth. Obl. pt.
2, c. 3, art. 7. The common law is exactly the reverse of this,
for a general obligation in favor of several persons, is a joint
obligation to them all, unless the nature of the subject, or the
particularity of the expression lead to a different conclusion.
Evans' Poth. vol. 2, p. 56. See tit. Joint and Several; Parties
to action.
3. - 2. An obligation is contracted in solido on the part of
the debtors, when each of them is obliged for the whole, but so
that a payment made by one liberates them all. Poth. Obli. pt. 2,
c. 3, art. 7, s 1. See 9 M. R. 322; 5 L. R. 287; 2 N. S. 140;
3 L. R. 352; 4 N. S. 317; 5 L. R. 122; 12 M. R. 216; Burge on
Sur. 398-420.
IN STATU QUO. In the same situation; in the same place; as,
between the time of the submission and the time when the award
was rendered, things remained in statu quo.
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IN TERROREM. By way of threat, terror, or warning. For example,
when a legacy is given to a person upo condition not to dispute
the validity or the dispositions in wills and testaments, the
conditions are not in general obligatory, but only in terrorem;
if, therefore, there exist probabilis causa litigandi, the
non-observance of the conditions will not be a forfeiture. 2
Vern. 90; 1 Hill. Ab. 253; 3 P. Wms. 344; 1 Atk. 404. But when
the acquiescence of the legatee appears to be a material
ingredient in the gift, the bequest is only quousque the legatee
shall refrain from disturbing the will. 2 P. Wms. 52; 2 Ventr.
352. For cases of legacies given to a wife while she shall
continue unmarried, see 1 Madd. R. 590; 1 Rop. Leg. 558.
IN TERROREM POPULI. To the terror of the people. An indictment
for a riot is bad, unless it conclude in terrorem populi. 4 Carr.
& Payne, 373.
IN TOTIDEM VERhis. In just so many words; as, the legislature
has declared this to be a crime in totidem verhis.
IN TOTO. In the whole; wholly; completely; as, the award is
void in toto. In the whole the part is contained: in toto et
pars continetur. Dig. 50, 17, 123.
IN TRANSITU. During the transit, or removal from one place to
another.
2. The transit continues until the goods have arrived at their
place of destination, and nothing remains to be done to complete
the delivery; or until the goods have been delivered, before
reaching their place of destination, and the person entitled
takes an actual or symbolical possession. Vide Stoppage in
transitu; Transitus.
IN VADIO. In pledge; in gage.
IN VENTRE SA MERE. In his mother's womb.
2. - 1. In law a child is for all beneficial purposes
considered as born while in ventre sa mere. 5 T. R. 49; Co.
Litt. 36; 1 P. Wms. 329; Civ. Code of Lo. art. 948. But a
stranger can acquire no title by descent through a child in
ventre sa mere, who is not subsequently born alive. See Birth;
Dead Born.
3. - 2. Such a child is enabled to have an estate limited to
his use. 1. Bl. Com. 130.
4. - 3. May have a distributive share of intestate property. 1
Ves. 81.
5. - 4. Is capable of taking a devise of lands. 2 Atk. 117; 1
Freem. 224, 298.
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6. - 5. Takes under a marriage settlement a provision made for
children living at the death of the father. 1 Ves. 85.
7. - 6. Is capable of taking a legacy, and is entitled to a
share in a fund bequeathed to children under a general
description, of "children," or of "children living at the
testator's death." 2 H. Bl. 399; 2 Bro. C. C. 320; S. C. 2 Ves.
jr. 673; 1 Sim. & Stu. 181; 1 B. & P. 243; 5 T. R. 49. See,
also, 1 Ves. sr. 85; Id. 111; 1 P. Wms. 244, 341; 2 Bro. C. C.
63; Amb. 708, 711; 1 Salk. 229; 2 P. Wms. 446; 2 Atk. 114;
Pre. Ch. 50; 2 Vern. 710; 3 Ves. 486; 7 T. R. 100; 4 Ves.
322; Bac. Ab. Legacies, &c., A; 1 Rop. Leg. 52, 3; 5 Serg. &
Rawle, 40.
8. - 7. May be appointed executor. Bac. Ab. Infancy, B.
9. - 8. A bill may be brought in its behalf, and the court will
grant an injunction to stay waste. 2 Vern. 710 Pr. Ch. 50.
10. - 9. The mother, of a child in ventre sa mere may detain
writings on its behalf. 2 Vern. 710.
11. - 10. May have a guardian assigned to it. 1 Bl. Com. 130.
12. - 11. The destruction of such a child is a high
misdemeanor. 1 Bl. Com. 129, 130.
13. - 12. And the birth of a posthumous child amounts, in
Pennsylvania, to the revocation of a will previously executed, so
far as regards such child. 3 Binn. 498. See Coop. Just. 496. See,
as to the law of Virginia on this subject, 3 Munf. 20. Vide
Foetus.
IN WITNESS WHEREOF. These words, which, when conveyancing was
in the Latin language, were in cujus rei testimonium, are the
initial words of the concluding clause in deeds. " In witness
whereof the said parties have hereunto set their hands," &c.
INADEQUATE PRICE. This term is applied to indicate the want of
a sufficient consideration for a thing sold,or such a price as,
under ordinary circumstances, would be considered insufficient.
2. Inadequacy of price is frequently connected with fraud,
gross misrepresentations, or an intentional concealment of the
defects in the thing sold. In these cases it is clear the. vendor
cannot compel the buyer to fulfil the contract. 1 Lev. 111; 1
Bro. P. C. 187; 6 John. R. 110; 3 Cranch, 270; 4 Dall. R. 250;
3 Atk. 283; 1 Bro. C. C. 440.
3. In general, however, inadequacy of price is not sufficient
ground to avoid a contract, particularly' when the property has
been sold by auction. 7 Ves. jr. 30; 3 Bro. C. C. 228; 7 Ves.
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jr. 35, note. But if an uncertain consideration, as a life
annuity, be given for an estate, and the contract be executory,
equity, it seems, will enter into the adequacy of the
consideration. 7 Bro. P. C. 184; 1 Bro. C. C. 156. Vide. 1
Yeates, R. 312; Sugd. Vend. 189 to 199; 1 B. & B. 165; 1
M'Cord's Ch. R. 383, 389, 390; 4 Desaus. R. 651. Vide Price.
INADMIISSIBLE. What cannot be received. Parol evidence, for
example, is inadmissible to contradict a written agreement.
INALIENABLE. This word is applied to those things, the property
of which cannot be lawfully transferred from one person to
another. Public highways and rivers are of this kind; there are
also many rights which are inalienable, as the rights of liberty,
or of speech.
INAUGURATION. This word was applied by the Romans to the
ceremony of dedicating some temple, or raising some man to the
priesthood, after the augurs had been consulted. It was
afterwards applied to the installation (q. v.) of the emperors,
kings, and prelates, in imitation of the ceremonies of the Romans
when they entered into the temple of the augurs. It is applied in
the United States to the installation of the chief magistrate of
the republic, and of the governors of the several states.
INCAPACITY. The want of a quality legally to do, give,
transmit, or receive something.
2. It arises from nature, from the law, or from both. From
nature, when the party has not his senses, as, in the case of an
idiot; from the law, as, in the case of a bastard who cannot
inherit from nature and the law; as, in the case of a married
woman, who cannot make contracts or a will.
3. In general, the incapacity ceases with the cause which
produces it. If the idiot should obtain his senses, or the
married woman's hushand die, their incapacity would be at an end.
4. When a cause of action arises during the incapacity of a
person having the right to sue, the act of limitation does not,
in general, commence to run till the incapacity has been removed.
But two incapacities cannot be joined in order to come within the
statute.
INCENDIARY, crim. law. One who maliciously and wilfully sets
another person's house on fire; one guilty of the crime of
arson.
2. This offence is punished by the statute laws of the
different states according to their several provisions. The civil
law punished it with death, Dig. 47, 9, 12, 1, by the offender
being cast into the fire. Id. 48, 19, 28, 12; Code, 9, 1, 11.
Vide Dane's Ab. Index, h. t.
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INCEPTION. The commencement; the beginning. In making a will,
for example, the writing is its inception. 3 Co. 31 b; Plowd.
343. Vide Consummation; Progression.
INCEST. The carnal copulation of a man and a woman related to
each other in any of the degrees within which marriage is
prohibited by law. Vide Marriage. It is punished by fine and
imprisonment, under the laws of the respective states., Vide 1
Smith's Laws of Pennsylv. 26; Dane's Ab. Index, h. t.; Dig. 23,
2, 68; 6 Conn. R. 446; Penal Laws of China, B. 1, s. 2, §10;
Sw. part 2 §17, p. 103.
INCH. From the Latin uncia. A measure of length, containing
one-twelfth part of a foot.
INCHOATE. That which is not yet completed or finished.
Contracts are considered inchoate until they are executed by all
the parties who ought to have executed them. For example, a
covenant which purports to be tripartite, and is executed by only
two of the parties, is incomplete, and no one is bound by it. 2
Halst. 142. Vide Locus paenitentiae.
INCIDENT. A thing depending upon, appertaining to, or following
another, called the princinal.
2. The power of punishing for contempt is incident to a court
of record; rent is incident to a reversion; distress to rent;
estovers of woods to a tenancy for a life or years. 1 Inst. 151;
Noy's Max. n. 13; Vin. Ab. h.. t.; Dane's Ab. h. t.; Com. Dig.
h. t., and the references there; Bro. Ab. h. t.; Roll's Ab. 75.
INCIPITUR, practice. This word, which means "it is begun,"
signifies the commencement of the entry on the roll. on signing
judgment, &c.
INCLUSIVE. Comprehended in computation. In computing time, as
ten days from a particular time, one day is generally to be
included and one excluded. Vide article Exclusive, and the
authorities there cited.
INCOME. The gain which proceeds from property, labor, or
business; it is applied particularly to individuals; the income
of the government is usually called revenue.
2. It has been holden that a devise of the income of land, is
in effect the same as a devise of the land itself. 9 Mass. 372;
1 Ashm. 136.
INCOMPATIBILITY. offices, rights. This term is used to show
that two or more things ought not to exist at the same time in
the same person; for example, a man cannot at the same time be
landlord and tenant of the same land; heir and devise of the
same thing; trustee and cestui que trust of the same property.
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2. There are offices which are incompatible with each other by
constitutional provision; the vice-president of tho United
States cannot act as such when filling the office of president;
Const. art. 1, s. 3, n. 5; and by the same instrument, art . 1,
s. 6, n. 2, it is directed that "no senator or representative
shall, during the time for which he was elected, be appointed to
any civil office under the authority of the United States, which
shall have been created or the emoluments whereof shall have been
increased, during such time; and no person holding any office
under the United States, shall be a member of either house,
during his continuance in office."
3. Provisions rendering offices incompatible are to be found in
most of the, constitutions of the states, and in some of their
laws. In Pennsylvania, the acts of the 12th of February, 1802, 3
Smith's Laws of Pa. 485; and 6th of March, 1812, 5 Sm. L. Pa.
309, contain various provisions, making certain offices
incompatible, with each other. At common law, offices subordinate
and interfering with each other have been considered
incompatible; for example, a man cannot be at once a judge and
prothonotary or clerk of the same court. 4 Inst. 100. Vide 4 S. &
R. 277; 17 S. & R. 219; and the article Office.
INCOMPETENCY, French law. The state of a judge who cannot take
cognizance of a dispute brought before him; it implies a want of
jurisdiction.
2. Incompetency is material, ratione materia, or personal,
ratione personae. The first takes place when a judge takes
cognizance of a matter over which another judge has the sole
jurisdiction, and this cannot be cured by the appearance or
agreement of the parties.
3. The second is, when the matter in dispute is within the
jurisdiction of the judge, but the parties in the case are not;
in which case they make the judge competent, unless they make
their objection before they. take defence. See Peck, 374; 17
John. 13; 12 Conn. 88; 3 Cowen, Rep. 724; 1 Penn. 195; 4
Yeates, 446. When a party has a privilege which exempts him from
the jurisdiction, he may waive the privilege. 4 McCord, 79;
Wright, 484; 4 Mass. 593; Pet. C. C. R. 489; 5 Cranch, 288; 1
Pet. R. 449; 4 W. C. C. R. 84; 8 Wheat. 699; Merl. R‚p. mot
Incompet‚nce.
4. It is a maxim in the common law, aliquis non debet esse
judex in propriƒ causa. Co. Litt. 141, a; see 14 Vin. Abr. 573;
4 Com. Dig. 6. The greatest delicacy, is constantly observed on
the part of judges, so that they never act when there could be
the possibility of doubt whether they could be free from bias,
and even a distant degree of relationship has induced a judge to
decline interfering. 1 Knapp's Rep. 376. The slightest degree of
pecuniary interest is considered as an insuperable objection. But
at common law, interest forms the only ground for challenging a
judge. It is not a ground of challenge that he has given his
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opinion before. 4 Bin. 349; 2 Bin. 454. See 4 Mod. 226; Comb.
218; Hard. 44; Hob. 87; 2 Binn. R. 454; 13 Mass. R. 340; 5
Mass. R. 92; 6 Pick. 109; Peck, R. 374; Coxe, Rep. 190; 3
Ham. R. 289; 17 John. Rep. 133; 12 Conn. R. 88; 1 Penning R.
185; 4 Yeates, R. 466; 3 Cowen, R. 725; Salk. 396; Bac. Ab.
Courts, B; and the articles Competency; Credibility; Interest;
Judge; Witness.
INCOMPETENCY, evidence. The want of legal fitness, or ability
in a witness to be heard as such on the trial of a cause.
2. The objections to the competency (q. v.) of a witness are
four-fold. The first ground is the want of understanding; a
second is defect of religious principles; a third arises from
the conviction of certain crimes, or infamy of character; the
fourth is on account of interest. (q. v.) 1 Phil. Ev. 15.
INCONCLUSIVE. What does not put an end to a thing. Inconclusive
presumptions are those which may be overcome by opposing proof;
for example, the law presumes that he who possesses personal
property is the owner of it, but evidence is allowed to
contradict this presumption, and show who is the true owner. 3
Bouv. Inst. in. 3063.
INCONTINENCE Impudicity, the indulgence in unlawful carnal
connexions. Wolff, Dr. de la Nat. §862.
INCORPORATION. This term is frequently confounded, particularly
in the old books, with corporation. The distinction between them
is this, that by incorporation is understood the act by which a
corporation is created; by corporation is meant the body thus
created. Vide Corporation.
INCORPORATION, civil law. The union of one domain to another.
INCORPOREAL. Not consisting of matter.
2. Things incorporeal. are those which are not the object of
sense, which cannot be seen or felt, but which we can easily,
conceive in the understanding, as rights, actions, successions,
easements, and the like. Dig. lib. 6, t. 1; Id. lib. 41, t. 1,
l. 43, §1; Poth. Traite des Choses, §2.
INCORPOREAL HEREDITAMENT, title, estates. A right issuing out
of, or annexed unto a thing corporeal.
2. Their existence is merely in idea and abstracted
contemplation, though their effects and profits may be frequently
the objects of our bodily senses. Co Litt. 9 a; Poth. Traite des
Choses, §2. According to Sir William Blackstone, there are ten
kinds of incorporeal hereditamenta; namely, 1. Advowsons. 2.
Tithes. 3. Commons. 4. Ways. 5. Offices. 6. Dignities. 7.
Franchises. 8. Corodies. 9. Annuities. 10. Rents. 2 Bl. Com. 20.
3. But, in the United States, there, are no advowsons, tithes,
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dignities, nor corodies. The other's have no necessary connexion
with real estate, and are not hereditary, and, with the exception
of annuities, in some cases, cannot be transferred, and do not
descend.
INCORPOREAL PROPERTY, civil law. That which consists in legal
right merely; or, as the term is, in the common law, of choses
in actions. Vide Corporeal property.
TO INCULPATE. To accuse one of a crime or misdemeanor.
INCUMBENT, eccles. law. A clerk resident on his benefice with
cure; he is so called because he does, or ought to, bend the
whole of his studies to his duties. In common parlance, it
signifies one who is in the possession of an office, as, the
present incumbent.
INCUMBRANCE. Whatever is a lien upon an estate.
2. The right of a third person in the land in question to the
diminution of the value of the land, though consistent with the
passing of the fee by the deed of conveyance, is an incumbrance;
as, a public highway over the land. 1 Appl. R. 313; 2 Mass. 97;
10 Conn. 431. A private right of way. 15 Pick. 68; 5 Conn. 497.
A claim of dower. 22 Pick. 477; 2 Greenl. 22. Alien by judgment
or mortgage. 5 Greenl. 94; 15 Verm. 683. Or any outstanding,
elder, and better title, will be considered as incumbrances,
although in strictness some of them are rather estates than
incumbrances. 4 Mass. 630; 2 Greenl. 22; 22 Pick. 447; 5 Conn.
497; 8 Pick. 346; 15 Pick. 68; 13 John. 105; 5 Greenl. 94; 2
N. H. Rep. 458; 11 S. & R. 109; 4 Halst. 139; 7 Halst. 261;
Verm. 676; 2 Greenl. Ev. §242.
3. In cases of sales of real estate, the vendor is required to
disclose the incumbrances, and to deliver to the purchaser the
instruments by which they were created, or on which the defects
arise; and the neglect of this will be considered as a fraud.
Sugd. Vend, 6; 1 Ves. 96; and see 6 Ves. jr. 193; 10 Ves. jr.
470; 1 Sch. & Lef. 227; 7 Serg. & Rawle, 73.
4. Whether the tenant for life, or the remainder-man, is to
keep. down the interest on incumbrances, see Turn. R. 174; 3
Mer. R. 566; 6 Ves. 99; 4 Ves. 24. See, generally, 14 Vin. Ab.
352; Com. Dig. Chancery, 4 A 10, 4 I. 3; 9 Watts, R. 162.
INDEBITATUS ASSUMPSIT, remedies, pleadings. That species of
action of assumpsit, in which the plaintiff alleges in his
declaration, first a debt, and then a promise in consideration of
the debt, that the defendant, being indebted, he promised the
plaintiff to pay him. The promise so laid is, generally, an
implied one only. Vide 1 Chit. Pl. 334; Steph. Pl. 318; Yelv.
21; 4 Co. 92 b. For the history of this form of action, see 3
Reeves' Hist. Com. Law; 2 Comyn on Contr. 549 to 556; 1 H. Bl.
550, 551; 3 Black Com. 154; Yelv. 70. Vide Pactum Constituae
Pecuniae.
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INDEBITI SOLUTIO, civil law. The payment to one of what is not
due to him. If the payment was made by mistake, the civilians
recovered it back by an action called condictio indebiti; with
us, such money may be recovered by an action of assumpsit.
INDEBTEDNESS. The state, of being in debt, without regard to
the ability or inability of the party to pay the same. See 1
Story, Eq. 343; 2 Hill. Ab. 421.
2. But in order to create an indebtedness, there must be an
actual liability at the time, either to pay then or at a future
time. If, for example, a person were to enter and become surety
for another, who enters into a rule of reference, he does not
thereby become a debtor to the opposite party until the rendition
of the judgment on the award. 1 Mass. 134. See Creditor; Debt;
Debtor.
INDECENCY. An act against good behaviour and a just delicacy. 2
Serg. & R. 91.
2. The law, in general, will repress indecency as being
contrary to good morals, but, when the public good requires it,
the mere indecency of disclosures does not suffice to exclude
them from being given in evidence. 3 Bouv. Inst. n. 3216.
3. The following are examples of indecency: the exposure by a
man of his naked person on a balcony, to public view, or bathing
in public; 2 Campb. 89; or the exhibition of bawdy pictures. 2
Chit. Cr. Law, 42; 2 Serg. & Rawle, 91. This indecency is
punishable by indictment. Vide 1 Sid. 168; S. C. 1 Keb. 620; 2
Yerg. R. 482, 589; 1 Mass. Rep. 8; 2 Chan. Cas. 110; 1 Russ.
Cr. 302; 1 Hawk. P. C. c. 5, s. 4; 4 Bl. Com. 65, n.; 1 East,
P. C. c. 1, s. 1; Burn's Just. Lewdness.
INDEFEASIBLE. That which cannot be defeated or undone. This
epithet is usually applied to an estate or right which cannot be
defeated.
INDEFENSUS. One sued or impleaded, who refuses or has nothing
to answer.
INDEFINITE. That which is undefined; uncertain.
INDEFINITE FAILURE OF ISSUE, executory devise. A general
failure of issue, whenever it may happen, without fixing a time,
or certain or definite period, within which it must take place.
The issue of the first taker must be extinct, and the issue of
the issue ad infinitum, without regard to the time or any
particular event. 2. Bouv. Inst. n. 1849.
INDEFINITE, NUMBER. A number which may be increased or
diminished at pleasure.
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2. When a corporation is composed of an indefinite number of
persons, any number of them consisting of a majority of those
present may do any act unless it be otherwise regulated by the
charter or by-laws. See Definite number.
INDEFINITE PAYMENT, contracts. That which a debtor who owes
several debts to a creditor, makes without making an
appropriation; (q. v.) in that case the creditor has a right to
make such appropriation.
INDEMNITY. That which is given to a person to prevent his
suffering damage. 2 McCord, 279. Sometimes it signifies
diminution; a tenant who has been interrupted in the enjoyment
of his lease may require an indemnity from the lessor, that is, a
reduction of his rent.
2. It is a rule established in all just governments that, when
private property is required for public, use, indemnity shall be
given by the public to the owner. This is the case in the United
States. See Code Civil, art. 545. See Damnification.
3. Contracts made for the purpose of indemnifying a person for
doing an act for which he could be indicted, or an agreement to,
compensate a public officer for doing an act which is forbidden
by law, or omitting to do one which the law commands, are
absolutely void. But when the agreement with an officer was not
to induce him to neglect his duty, but to test a legal right, as
to indemnify him for not executing an execution, it was held to
be good. 1 Bouv. Inst. n. 780.
INDENTURE, conveyancing. An instrument of writing containing a
conveyance or contract between two or more persons, usually
indented or cut unevenly, or in and out, on the top or, side.
2. Formerly it was common to make two instruments exactly
alike, and it was then usual to write both on the same parchment,
with some words or letters written between them, through which
the parchment was cut, either in a straight or indented line, in
such a manner as to leave one-half of the word on one part, and
half on the other. The instrument usually commences with these
words, "This indenture," which were not formerly sufficient,
unless the parchment or paper was actually indented to make an
indenture 5 Co. 20; but now, if the form of indenting the
parchment be wanting, it may be supplied by being done in court,
this being mere form. Besides, it would be exceedingly difficult
with even the most perfect instruments, to out parchment or paper
without indenting it. Vide Bac. Ab. Leases, &c. E 2; Com. Dig.
Fait, C, and note d; Litt. sec. 370; Co. Litt. 143 b, 229 a;
Cruise, Dig t. 32, c. 1, s. 24; 2 Bl. Com. 294; 1 Sess. Cas.
222.
INDEPENDENCE. A state of perfect irresponsibility to any
superior; the United States are free and independent of all
earthly power.
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2. Independence may be divided into political and natural
independence. By the former is to be understood that we have
contracted no tie except those which flow from the three great
natural rights of safety, liberty and property. The latter
consists in the power of being able to enjoy a permanent
well-being, whatever may be the disposition of those from whom we
call ourselves independent. In that sense a nation may be
independent with regard to most people, but not independent of
the whole world. Vide on of Independence.
INDEPENDENT CONTRACT. One in which the mutual acts or promises
have no relation to each other, either as equivalents or
considerations. Civil Code of Lo. art. 1762; 1 Bouv. Inst. n.
699.
INDETERMINATE. That which is uncertain or not particularly
designated; as, if I sell you one hundred bushels of wheat,
without stating what wheat. 1 Bouv. Inst. n. 950.
INDIAN TRIBE. A separate and distinct community or body of the
aboriginal Indian race of men found in the United States.
2. Such a tribe, situated within the boundaries of a state, and
exercising the powers of government and, sovereignty, under the
national government, is deemed politically a state; that is, a
distinct political society, capable of self-government; but it
is not deemed a foreign state, in the sense of the constitution.
It is rather a domestic dependent nation. Such a tribe may
properly be deemed in a state of pupilage and its relation to the
United States resembles that of a ward to a guardian. 5 Pet. R.
1, 16, 17; 20 John. R. 193; 3 Kent, Com. 308 to 318; Story on
Const. §1096; 4 How. U. S. 567; 1 McLean, 254; 6 Hill, 546; 8
Ala. R. 48.
INDIANS. The aborigines of this country are so called.
2. In general, Indians have no political rights in the United
States; they cannot vote at the general elections for officers,
nor hold office. In New York they are considered as citizens and
not as aliens, owing allegiance to the government and entitled to
its protection. 20 John. 188, 633. But it was ruled that the
Cherokee nation in Georgia was a distinct community. 6 Pet. 515.
See 8 Cowen, 189; 9 Wheat. 673; 14 John. 181, 332 18 John. 506.
INDIANA. The name of one of the new states of the United
States. This state was admitted into the Union by virtue of the
"Resolution for admitting the state of Indiana into the Union,"
approved December 11, 1816, in the following words: Whereas, in
pursuance of an act of congress, passed on the nineteenth day of
April, one thousand eight hundred and sixteen, entitled "An act
to enable the people of the Indiana territory to from a
constitution and state government, and for the admission of that
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state into the Union," the people of the said territory did, on
the twenty-ninth day of June, in the present year, by a
convention called for that purpose, form for themselves a
constitution and state government, which constitution and state
government, so formed, is republican, and in conformity with the
principles of the articles of compact between the original states
and the people and states in the territory north-west of the
river Ohio, passed on the thirteenth day of July, one thousand
seven hundred and eighty-seven.
2. Resolved, That the state of Indiana shall be one, and is
hereby declared to be one of the United States of America, and
admitted into the Union on an equal footing with the original
states, in all respects whatever.
3. The first constitution of the state was adopted in the -year
eighteen hundred and sixteen, and has since been superseded by
the present constitution, which was adopted in the year eighteen
hundred and fifty-one. The powers of the government are divided
into three distinct departments, and each of them is confided to
a separate body of magistracy, to wit: those which are
legislative, to one; those which are executive, including the
administrative, to another; and those which are judicial to a
third. Art. III.
4. - 1st. The legislative authority of the state is vested in a
general assembly, which consists of a senate and house of
representatives, both elected by the people.
5. The senate is composed of a number of persons who shall not
exceed fifty. Art. 2. The number shall be fixed by law. Art. IV.
6. A senator shall 1. Have attained the age of twenty-five years.
2. Be a citizen of the United States. 3. Have resided, next
preceding his election, two years in this state, the last twelve
months of which must have been in the county or district in which
he may be elected. Senators shall be elected for the term of four
years, and one-half as nearly as possible shall be elected every
two years.
6. - 2. The number of representatives is to be fixed by law. It
shall never exceed one hundred members. Art. IV. s. 2, 5.
7. To be qualified for a representative, a person must, 1. Have
attained the age of twenty-one year's. 2. Be a Citizen, of the
United States. 3. Have been for two years next preceding his
election an inhabitant of this state, and for one year next
proceding his election, an inhabiant of the county or district
whence he may be chosen. Art. IV. s. 7. Representatives are
elected for the term of two years from the day next after their
general election. Art. IV. s. 3. And they shall be chosen by the
respective electors of the counties. Art. IV. s. 2. .
8. - 2d, The exeutive power of this state is vested in a
governor. And, under certain circumstances, this power is
exercised by the lieutenant-governor.
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9. - 1. The governor is elected at the time and place of
choosing members of the general assembly. Art. V. s. 3. The
person having the highest number of votes for governor shall be
elected; but, in case to or more persons shall have an equal and
the highest number of votes for the office, the general assembly
shall, by joint vote, forthwith proceed to elect one of the said
persons governor. He shall hold his office during four years, and
is not eligible more than four years in any period of eight
years. The official term of the governor shall commence on the
second Monday of January, in the year one thousand eight hundred
and fifty-three, and on the same day every fourth year
thereafter. His requisite quali- fications are, that he shall, 1.
Have been a citizen of the United States for five years. 2. Be at
least thirty years of age. 3. Have resided in the state five
years next preceding his election. 4. Not hold any office under
the United States, or this state. He is commander-in-chief of the
army and navy of the state, when not in the service of the United
States, and may call out such forces, to execute the laws, to
suppress insurrection, or to repel invasion. He shall have the
power to remit fines and forfeitures; grant reprieves and
pardons, except treason and cases of impeachments; and to
require information from executive officers. When, during a
recess of the general assembly, a vacancy shall happen in any
office, the appointment of which is vested in the general
assembly, or when at any time a vacancy shall have happened in
any other state office, or in the office of judge of any court,
the governor shall fill such vacancy by appointment, which shall
expire when a successor shall have been elected and qualifled. He
shall take care that the laws be faithfully executed. Should the
seat of government become dangerous, from disease or at common
enemy, he may convene the general assembly at any other place. He
is also invsted with the veto power. Art. V.
10. - 2. The lieutenant-governor shall be chosen at every
election for a governor, in the same manner, continue in office
for the same time, and possess the same qualifications. In voting
for governor and lieutenant-governor, the electors shall
distinguish whom they vote for as governor, and whom as
lieutenant-governor. He shall, by virtue of his office, be
president of the senate; have a right, when in committee of the
whole, to debate and vote on all subjects, and when the senate
are equally divided, to give the casting vote. In case of the
removal of the governor from office, death, resignation, or
inability to discharge the duties of the office, the
lieutenant-governor shall exercise all the powers and authority
appertaining to the office of governor. Whenever the government
shall be administered by the lieutenant-governor, or he shall be
unable to attend as president of the senate, the senate shall
elect one of their own members as president for that occasion.
And the general assembly shall, by law, provide for the case of
removal from office, death, resignation, or inability, both of
the governor and lieutenant-governor, declaring what office r
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shall then act as governor; and such officer shall act
accordingly, until the disability be removed, or a governor be
elected. The lieutenant-governor, while he acts as president of
the senate, shall receive for his services the same compensation
as the speaker of the house of representatives. The
lieutenant-governor shall not be eligible to any other office
during the term for which he shall have been elected.
11. - 3. The judicial power of the state is vested by article
VII of the Constitution as follows:
§1. The judicial power of this state shall be vested in a
supreme court, in circuit courts, and in such other inferior
courts as the general assembly may direct and establish.
12. - §2. The supreme court shall consist of not less than
three nor more than five judges, a majority of whom form a
quorum, which shall have jurisdiction co-extensive with the
limits of the state, in appeals and writs of error, under such
regulations and restrictions as may be prescribed by law, shall
also have such original jurisdiction as the general assembly may
confer. And upon the decision of every case, shall give a
statement, in writing, of each question arising in the record of
such case, and the decision of the court thereon.
13. - §3. The circuit courts shall each consist of one judge.
The state shall, from time to time, be divided into judicial
circuits. They shall have such civil and criminal jurisdiction as
may be prescribed by law. The general assembly may provide by
law, that the judge of one circuit may hold the court of another
circuit in case of necessity or convenience; and in case of
temporary inability of any judge, from sickness or other cause,
to hold the courts in his circuit, provision shall be made by law
for holding such courts.
14. - §4. Tribunals of conciliation may be established with
such powers and duties as shall be prescribed by law; or the
powers and duties of the same may be conferred on other courts of
justice; but such tribunals or other courts when sitting as
such, shall have no power to render judgment to be obligatory on
the parties, unless they voluntarily submit their matters of
difference, and agree to abide the judgment of such tribunal or
court.
15. - §5. The judges of the supreme court, the circuit and
other inferior courts, shall hold their offices during the term
of six years, if they shall so long behave well, and shall, at
stated times, receive for their services a compensation, which
shall not be diminished during their continuance in office.
16. - §6. All judicial officers shall be conservators of the
peace in their respective jurisdiction.
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17. - §7. The state shall be divided into as many districts as
there ate judges of the supreme court; and such districts shall
be formed of contiguous territory, as nearly equal in population,
as without dividing a county the same can be made. One of said
judges shall be elected from each district, and reside therein;
but said judges shall be elected by the electors of the state at
large.
18. - §8. There shall be elected by the voters of the state, a
clerk of the supreme court, who shall hold his office four years,
and whose duties shall be prescribed by law.
19. - §9. There shall be elected in each judicial circuit by
the voters thereof, a prosecuting attorney, who shall hold his
office for two years.
20. - §10. A competent number of justices of the peace shall be
elected by the qualified electors in each township in the several
counties, and shall continue in office four years, and their
powers and duties shall be prescribed by law.
21. - §11. Every person of good moral character, being a voter,
shall be entitled to admission to practice law in all courts of
justice.
INDICIA, civil law. Signs, marks. Example: in replevin, the
chattel must possess indicia, or earmarks, by which it can be
distinguished from all others of the same description. 4 Bouv.
Inst. n. 3556. This term is very nearly synonymous with the
common law phrase, "circumstantial evidence." It was used to
designate the facts giving rise to the indirect inference, rather
than the inference itself; as, for example, the possession of
goods recently stolen, vicinity to the scene of the crime, sudden
change in circumstances or conduct, &c. Mascardus, de Prob. lib.
1, quaest. 15; Dall. Dict. Compet‚nce Criminelle, 92, 415;
Morin, Dict. du Droit Criminal, mots Accusation, Chambre du
Conseil.
2. Indicia may be defined to be conjectures, which result from
circumstances not absolutely necessary and certain, but merely
probable, and which may turn out not to be true, though they have
the appearance of truth. Denisart, mot Indices. See Best on Pres.
13, note f.
3. However numerous indicia may be, they only show that a thing
may be, not that it has been. An indicium, can have effect only
when a connexion is essentially necessary with the principal.
Effects are known by their causes, but only when the effects can
arise only from the causes to which they. are attributed. When
several causes may have produced one and the same effect, it is,
therefore, unreasonable to attribute it to any one of such
causes. A combination of circumstances sometimes conspire against
an innocent person, and, like mute witnesses, depose against him.
There is danger in such cases, that a jury may be misled; their
minds prejudiced, their indignation unduly excited, or their zeal
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seduced. Under impressions thus produced, they may forget their
true relation to the accused, and condemn a man whom they would
have acquitted had they required that proof and certainty which
the law demands. See D'Aguesseau, Oeuvres, vol. xiii. p. 243. See
Circumstances.
INDICTED, practice. When a man is accused by a bill of
indictment preferred by a grand jury, he is said to be indicted.
INDICTION, computation of time. An indiction contained a space
of fifteen years.
2. It was used in dating at Rome and in England. It began at
the dismission of the Nicene council, A. D. 312. The first year
was reckoned the first of the first indiction, the second, the
third, &c., till fifteen years afterwards. The sixteenth year was
the first year of the second indiction, the thirty-first year was
the first ar of the third indiction, &c.
INDICTMENT, crim. law, practice. A written accusation of one or
more persons of a crime or misdemeanor, presented to, and
preferred upon oath or affirmation, by a grand jury legally
convoked. 4 Bl. Com. 299; Co. Litt. 126; 2 Hale, 152; Bac. Ab.
h. t.; Com. Dig. h. t. A; 1 Chit. Cr. L. 168.
2. This word, indictment, is said to be derived from the old
French word inditer, which signifies to indicate; to show, or
point out. Its object is to indicate the offence charged against
the accused. Rey, des Inst. l'Angl. tome 2, p. 347.
3. To render an indictment valid, there are certain essential
and formal requisites. The essential requisites are, 1st. That
the indictment be presented to some court having jurisdiction. of
the offence stated therein. 2d. That it appear to have been found
by the grand jury of the proper county or district. 3d. That the
indictment be found a true bill, and signed by the foreman of the
grand jury. 4th. That it be framed with sufficient certainty;
for this purpose the charge must contain a certain description of
the crime or misdemeanor, of which the defendant is accused, and
a statement of the facts by which it is constituted, so as to
identify the accusation. Cowp. 682, 3; 2 Hale, 167; 1 Binn. R.
201; 3 Binn. R; 533; 1 P. A. Bro. R. 360; 6 S. & R. 398 4
Serg. & Rawle, 194; 4 Bl. Com. 301; Yeates, R. 407; 4 Cranch,
R. 167. 5th. The indictment must be in the English language. But
if any document in a foreign language, as a libel, be necessarily
introduced, it should be set out in the original tongue, and then
translated, showing its application. 6 T. R. 162.
4. Secondly, formal requisites are, 1st. The venue, which, at
common law should always be laid in the county where the offence
has been committed, although the charge is in its nature
transitory, as a battery. Hawk. B. 2, c. 25, s. 35. The venue is
stated in the margin thus, "City and county of _____ to wit." 2d.
The presentment, which must be in the present tense, and is
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usually expressed by the following formula, "the grand inquest of
the commonwealth of ______ inquiring for the city and county
aforesaid, upon their oaths and affirmations present." See, as to
the venue, 1 Pike, R. 171; 9 Yerg. 357. 3d. The name and
addition of the defendant; but in case an error has been made in
this respect, it is cured by the plea of the defendant. Bac. Ab.
Misnomer, B; Indictment, G 2; 2 Hale, 175; 1 Chit. Pr. 202.
4th. The names of third persons, when they must be necessarily
mentioned in the indictment, should be stated with certainty to a
common intent, so as sufficiently to inform the defendant who are
his accusers. When, however, the names of third persons cannot be
ascertained, it is sufficient, in some cases, to state " a
certain person or persons to the jurors aforesaid unknown." Hawk.
B. 2, c. 25, s. 71; 2 East, P. C. 651, 781; 2 Hale, 181;
Plowd. 85; Dyer, 97, 286; 8 C. & P. 773. See Unknown. 5th. The
time when the offence was committed, should in general be stated
to be on a specific year and day. In some offences, as in
perjury, the day must be precisely stated; 2 Wash. C. C. Rep.
328; but although it is necessary that a day certain should be
laid in the indictment, yet, in general, the prosecutor may give
evidence of an offence committed on any other day previous to the
finding of the, indictment. 5 Serg. & Rawle, 316. Vide 11 Serg. &
Rawle, 177; 1 Chit. Cr. Law, 217, 224; 1 Ch. Pl. Index, tit.
Time. See 17 Wend. 475; 2 Dev. 567; 5 How. Mis. 14; 4 Dana.
496; C. & N. 369; 1 Hawks, 460. 6th. The offence should be
properly described. This is done by stating the substantial
circumstances necessary to show the nature of the crime and,
next, the formal allegations and terms of art required by law. 1.
As to the substantial circumstances. The whole of the facts of
the case necessary to make it appear judicially to the court that
the indictors have gone upon sufficient premises, should be set
forth; but there should be no unnecessary matter or any thing
which on its face makes the indictment repugnant, inconsistent,
or absurd. Hale, 183; Hawk. B. 2, c. 25, s. 57; Ab. h. t. G 1;
Com. Dig. h. t. G 3; 2 Leach, 660; 2 Str. 1226. All indictments
ought to charge a man with a particular offence, and not with
being an offender in general: to this rule there are some
exceptions, as indictments against a common barrator, a common
scold, and the keeper of a common bawdy house; such persons may
be indicted by these general words. 1 Chit. Cr. Law, 230, and the
authorities there cited. The offence must not be stated in the
disjunctive, so as to leave it uncertain on what it is intended
to rely as an accusation; as, that the defendant erected or
caused to be. erected a nuisance. 2 Str. 900; 1 Chit. Cr. Law,
236.
2. There are certain terms of art used, so appropriated by the
law to express the precise idea which it entertains of the
offence, that no other terms, however synonymous they may seem,
are capable of filling the same office: such, for example, as
traitorously, (q. v.) in treason; feloniously, (q. v.) in
felony; burglariously, (q. v.) in burglary; maim, (q. v.) in
mayhem, &c. 7th. The conclusion of the indictment should conform
to the provision of the constitution of the state on the subject,
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where there is such provision; as in Pennsylvania, Const. art.
V., s. 11, which provides, that " all prosecutions shall be
carried on in the name and by the authority of the commonwealth
of Pennsylvania, and conclude against the peace and dignity of
the same." As to the necessity and propriety of having several
counts in an indictment, vide 1 Chit. Cr. Law, 248; as to.
joinder of several offences in the same indictment, vide 1 Chit.
Cr. Law, 253; Arch. Cr. Pl. 60; several defendants may in some
cases be joined in the same indictment. Id. 255; Arch. Cr. Pl.
59. When an indictment may be amended, see Id. 297 .Stark. Cr.
Pl. 286; or quashed, Id. 298 Stark. Cr. Pl. 831; Arch. Cr. 66.
Vide; generally, Arch. Cr. Pl. B. 1, part 1, c. 1; p. 1 to 68;
Stark. Cr. Pl. 1 to 336; 1 Chit. Cr. Law, 168 to 304; Com. Dig.
h. t.: Vin. Ab. h. t.; Bac. Ab. h. t.; Dane's Ab. h. t.;
Nels. Ab. h. t.; Burn's Just. h. t.; Russ. on Cr. Index, h. t.,
5. By the Constitution of the United States, Amendm. art. 5, no
person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces, or in
the militia, when in actual service in time of war, or public
danger.
INDICTOR. He who causes another to be indicted. The latter is
sometimes called the indictee.
INDIFFERENT. To have no bias nor partiality. 7 Conn. 229. A
juror, an arbitrator, and a witness, ought to be indifferent, and
when they are not so, they may be challenged. See 9 Conn. 42.
INDIRECT EVIDENCE. That proof which does not prove the fact in
question, but proves another, the certainty of which may lead to
the discovery of the truth of the one sought.
INDIVISIBLE. That which cannot be separated.
2. It is important to ascertain when a consideration or a
contract, is or is not indivisible. When a consideration is
entire and indivisible, and it is against law, the contract is
void in toto. 11 Verm. 592; 2 W. & S. 235. When the
consideration is divisible, and part of it is illegal, the
contract is void only pro tanto.
3. - To ascertain whether a contract is divisible or
indivisible, id to ascertain whether it may or may not be
enforced, in part, or paid in part, without the consent of the
other party. See 1 Bouv. Inst. n. 694, and articles Divisible;
Entire.
INDIVISUM. That which two or more persons hold in common
without partition; undivided. (q. v.)
TO INDORSE. To write on the back. Bills of exchange and
promissory notes are indorsed by the party writing his name on
the back; writing one's name on the back of a writ, is to
indorse such writ. 7 Pick. 117. See 13 Mass. 396.
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INDORSEE, contracts. The person in whose favor an indorsement
is made,
2. He is entitled to all the rights of the indorser, and, if
the bill or note have been indorsed over to him before it became
due, he may be entitled to greater rights than the payee and
indorser would have had, had he retained it till it became due,
as none of the parties can make a set-off, or inquire into the
consideration of the bill which he then holds. If he continues to
be the holder (q. v.) when the bill becomes due, he ought to make
a legal demand, and give notice in case of non-acceptance or
non-payment. Chitty on Bills, passim.
INDORSEMENT, crin. law, practice. When a warrant for the arrest
of a person charged with a crime has been issued by a justice of
the peace of one county, which is to be executed in another
county, it is necessary in some states, as in Pennsylvania, that
it should be indorsed by a justice of the county where it is to
be executed: this indorsement is called backing. (q. v.)
INDORSEMENT, contracts. In its most general acceptation, it is
what is written on the back of an instrument of writing, and
which has relation to it; as, for example, a receipt or
acquittance on a bond; an assignment on a promissory note.
2. Writing one's name on the back of a bill of exchange, or a
promissory note payable to order, is what is usually called, an
indorsement. It will be convenient to consider, 1. The form of an
indorsement; and, 2. Its effect.
3. - 1. An indorsement is in full, or in blank. In full, when
mention is made of the name of the indorsee; and in blank, when
the name of the indorsee is not mentioned. Chitty on Bills, 170;
13 Serg. & Rawle, 315. A blank indorsement is made by writing the
name of the indorser on the back; a writing or assignment on the
face of the note or bill would, however, be considered to have
the force and effect of an indorsement. 16 East, R. 12. when an
indorsement has been made in blank any after attempt to restrain
the negotiability of the bill will be unavailing. 1 E.N. P. C.
180; 1 Bl. Rep. 295; Ham. on Parties 104.
4. Indorsements may also be restrictive conditional, or
qualified. A restrictive indorsement may restrain the
negotiability of a bill, by using express words to that effect,
as by indorsing it "payable to J. S. only," or by using other
words clearly demonstrating his intention to do so. Dougl. 637.
The indorser may also make his indorsement conditional, and if
the condition be not performed, it will be invalid. 4 Taunt. Rep.
30. A qualified indorsement is one which passes the property in
the bill to the indorsee, but is made without responsibility to
the indorser; 7 Taunt. R. 160; the words commonly used are,
sans recours, without recourse. Chit. on Bills, 179; 3 Mass.
225; 12 Mass. 14, 15.
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5. - 2. The effects of a regular indorsement may be considered,
1. As between the indorser and the indorsee. 2. Between the
indorser and the acceptor. And, 3. Between the indorser and
future parties to the bill.
6. - 1. An indorsment is sometimes an original engagement;as,
when a man draws a bill payable to his own order, and indorses
it; mostly, however, it operates as an assignment, as when the
bill is perfect, and the payee indorses it over to a third
person. As an assignment, it carries with it all the rights which
the indorsee had, with a guaranty of the solvency of the debtor.
This guaranty is, nevertheless, upon condition that the holder
will use due diligence in making a demand of payment from the
acceptor, and give notice of non-acceptance or non-payment. 13
Serg. Rawle, 311.
7.-2. As between the indorsee and the acceptor, the indorsement
has the effect of giving to the former all the rights which the
indorser had against the acceptor, and all other parties liable
on the bill, and it is unnecessary that the acceptor or other
party should signify his consent or knowledge of the indorsement;
and if made before the bill is paid, it conveys all these rights
without any set-off, as between the antecedent parties. Being
thus fully invested with all the rights in the bill, the indorsee
may himself indorse it to another when he becomes responsible to
all future patties as an indorser, as the others were to him.
8. - 3. The indorser becomes responsible by that act to all
persons who may afterwards become party to the bill.
Vide Chitty on Bills, ch. 4; 3 Kent, Com. 58; Vin. Abr.
Indorsement; Com. Dig. Fait, E 2; 13 Serg. & Rawle, 311; Merl.
R‚pert. mot Endossement Pard. Droit Com. 344-357; 7 Verm. 356;
2 Dana, R. 90; 3 Dana, R. 407; 8 Wend. 600; 4 Verm. 11; 5
Harr. & John. 115; Bouv. Inst. Index, h. t.
INDORSER, contracts. The person who makes an indorsement.
2. The indorser of a bill of exchange, or other negotiable
paper, by his indorsement undertakes to be responsible to the
holder for the amount of the bill or note, if the latter shall
make a legal demand from the payer, and, in default of payment,
give proper notice thereof to the indorser. But the indorser may
make his indorsement conditional, which will operate as a
transfer of the bill, if the condition be performed; or he may
make it qualified, so that he shall not be responsible on
non-payment by the payer. Chitty on Bills, 179,180.
3. To make an indorser liable on his indorsement, the
instrument must be commercial paper, for the indorsement of a
bond or single bill.will not, per se, create a responsibility. 13
Serg. & Rawle, 311. But see Treval v. Fitch, 5 Whart. 325;
Hopkins v. Cumberland Valley R. R. Co., 3 Watts & Serg. 410.
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4. When there are several indorsers, the. first in point of
time is generally, but not always, first-responsible; there may
be circumstances which may cast the responsibility, in the first
place, as between them, on a subsequent indorsee. 5 Munf. R. 252.
INDUCEMENT, pleading. The statement of matter which is
introductory to the principal subject of the declaration or plea,
&c., but which is necessary to explain and elucidate it; such
matter as is not introductory to or necessary to elucidate the
substance or gist of the declaration or plea, &c. nor is
collaterally applicable to it, not being inducement but
surplusage. Inducement or conveyance, which. are synonymous
terms, is in the nature of a preamble to an act of assembly, and
leads to the Principal subject of the declaration or plea, &c.
the same as that does to the purview or providing clause of the
act. For instance, in an action for a nuisance to property in the
possession of the plaintiff, the circumstance of his being
possessed of the property should be stated as inducement, or
byway of introduction to the mention of the nuisance. Lawes, Pl.
66, 67; 1 Chit. Pl. 292; Steph. Pl. 257; 14 Vin. Ab. 405; 20
Id. 845; Bac. Ab. Pleas. &c. I 2.
INDUCEMENT, contracts, evidence. The moving cause of an action.
2. In contracts, the benefit.which the obligor is to receive is
the inducement to making them. Vide Cause; Consideration.
3. When a person is charged with a crime, he is sometimes
induced to make confessions by the flattery of hope, or the
torture of fear. When such confessions are made in consequence of
promises or threats by a person in authority, they cannot be
received in evidence. In England a distinction has been made
between temporal and spiritual inducements; confessions made
under the former are not receivable in evidence, while the latter
may be admitted. Joy on Conf. ss. 1 and 4.
INDUCLAE LEGALES, Scotch law. The days between the citation of
the defendant, and the day of appearance. Bell's Scotch Law Dict.
h. t. The days between the test and the return day of the writ.
INDUCTION, eccles. law. The giving a clerk, instituted to a
benefice, the actual possession of its temporalties, in the
nature of livery of seisin. Ayl. Parerg. 299.
INDUTLGENCE. A favor granted.
2. It is a general rule that where a creditor gives
.indulgence, by entering into a binding contract with a principal
debtor, by which the surety is or may be damnified, such surety
is discharged, because the creditor has put it out of his power
to enforce immediate payment; when the surety would have a right
to require him to do so. 6 Dow, P. C. 238; 3 Meriv. 272; Bac.
Ab. Oblig. D; and see Giving Time.
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3. But mere inaction by the creditor, if he do not deprive
himself of the right to sue the principal, does not in general
discharge the surety. See Forbearance.
INELIGIBILITY. The incapacity to be lawfully elected.
2. This incapacity arises from various, causes, and a person
may be incapable of being elected to one office who may, be
elected to another; the incapacity may also be perpetual or
temporary.
3. - 1. Among perpetual inabilities may be reckoned, 1. The
inability of women to be elected to a public office. 2. Of
citizens born in a foreign country to be elected president of the
United States.
4. - 2. Among the temporary inabilities may be mentioned, 1.
The holding of an office declared by law to be incompatible with
the one sought. 2. The non-payment of the taxes required by law.
3. The want of certain property qualifications required by the
constitution. 4. The want of age, or being over the age required.
Vide Eligibility. Incompatibility.
INEVITABLE ACCIDENT. A term used in the civil law, nearly
synonymous with fortuitous. event. (q. v.) 2 Sm. & Marsh. 572. In
the common law commonly called the ad of God. (q. v.) 2 Smed. &
Marsh. Err. & App. 572.
INFAMIS. Among the Romans was of a general rule, and not by
virtue of an arbitrary decision of the censors, lost his
political rights, but preserved his civil rights. Sav. Dr. Rom
§79.
INFAMY, crim. law, evidence. That state which is produced by
the conviction of crime and the loss of honor, which renders the
infamous person incompetent as a witness.
2. It is to be considered, 1st. What crimes or punishment
incapacitate a witness. 2d. How the guilt is to be proved. 3d.
How the objection answered. 4th. The effect of infamy.
3. - 1. When a man is convicted of an offence which is
inconsistent with the common principles of honesty and humanity,
the law considers his oath to be of no weight, and excludes his
testimony as of too doubtful and suspicious a nature to be
admitted in a court of justice to deprive another of life,
liberty or property. Gilb. L. E. 256; 2 Bulst. 154; 1 Phil. 23;
Bull. N. P. 291. The crimes which render a person incompetent,
are treason; 5 Mod. 16, 74; felony; 2 Bulst. 154; Co. Litt.
6; T. Raym. 369; all offences founded in fraud, and which come
within the general. notion of the crimen falsi of the Roman law;
Leach, 496; as perjury and forgery; Co. Litt. 6; Fort. 209;
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piracy 2 Roll. Ab. 886; swindling, cheating; Fort. 209;
barratry; 2 Salk. 690; and the bribing a witness to absent
himself from a trial, in order to get rid of his evidence. Fort.
208. It is the crime and not the punisshment which renders the
offender unworthy of belief. 1 Phill. Ev. 25.
4. - 2. In order to incapacitate the party, the judgment must
be proved as pronounced by a court possessing competent
jurisdiction. 1 Sid. 51; 2 Stark. C. 183; Stark. Ev. part 2, p.
144, note 1; Id. part 4, p. 716. But it has been held that a
conviction of an infamous crime in another country, or another of
the United States, does not render the witness incompetent on the
ground of infamy. 17 Mass. 515. Though this doctrine appears to
be at variance with the opinions entertained by foreign jurists,
who maintain that the state or condition of a person in the place
of his domicil accompanies him everywhere. Story, Confl. §620,
and the authorities there cited; Foelix, Trait‚ De Droit Intern.
Priv‚, 31; Merl. R‚pert, mot Loi, §6, n. 6.
5. - 3. The objection to competency may be answered, 1st. By
proof of pardon. See Pardon. And, 2d. By proof of a reversal by
writ of error, which must be proved by the production of the
record.
6. - 4. The judgment for an infamous crime, even for perjury,
does not preclude the party from making an affidavit with a view
to his own defence. 2 Salk. 461 2 Str. 1148; Martin's Rep. 45.
He may, for instance, make an affidavit in relation to the
irregularity of a judgment in a cause in which he, is a party,
for otherwise he would be without a remedy. But the rule is
confined to defence, and he cannot be heard upon oath as
complainant. 2 Salk. 461 2 Str. 1148. When the witness becomes
incompetent from infamy of character, the effect is the same as
if he were dead and if he has attested any instrument as a
witness, previous to his conviction, evidence may be given of his
handwriting. 2 Str. 833; Stark. Ev. part. 2, sect. 193; Id.
part 4, p. 723.
7. By infamy is also understood the expressed opinion of men
generally as to the vices of another. Wolff, Dr. de la Nat. et
des Gens, §148.
INFANCY. The state or condition of a person under tho age of
twenty-one years. Vide Infant.
INFANT, persons. One under the age of twenty-one years. Co.
Litt. 171.
2. But he is reputed to be twenty-one years old, or of full
age, the first instant of the last day of the twenty-first year
next before the anniversary of his birth; because, according to
the civil computation of time, which differs from the natural
computation, the last day having commenced, it is considered as
ended. Savig. Dr. Rom. §182. If, for example, a person were born
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at any hour of the first day of January, 1810, (even a few
minutes before twelve o'clock of the night of that day,) he would
be of full age at the first instant of the thirty-first of
December, 1831, although nearly forty-eight hours before he had
actually attained the full age of twenty-one years, according to
years, days, hours and minutes, because there is, in this case,
no fraction of a day. 1 Sid. 162; S. C. 1 Keb. 589; 1 Salk. 44;
Raym. 84; 1 Bl. Com. 463, 464, note 13, by Chitty; 1 Lilly's,
Reg. 57; Com. Dig. Enfant, A; Savig. Dr. Rom. §§ 383, 384.
3. A curious case occurred in England of a young lady who was
born after the house clock had struck, while the parish clock was
striking, and before St. Paul's had begun to strike twelve on the
night of the fourth and fifth of January, 1805, and the question
was whether she was born on the fourth or fifth of January. Mr.
Coventry gives it as his opinion that she was born on the fourth,
because the house clock does not regulate anything but domestic
affairs, that the parochial clock is much better evidence, and
that a metropolitan clock ought to be received with "implicit
acquiescence." Cov. on Conv. Ev. 182-3. It is conceived that this
can only be prima facie, because, if the fact were otherwise, and
the parochial and metropolitan clocks should both have been
wrong, they would undoubtedly have had no effect in ascertaining
the age of the child.
4. The sex makes no difference, a woman is therefore an infant
until she has attained her age of twenty-one years. Co. Litt.
171. Before arriving at full infant may do many acts. A male at
fourteen is of discretion, and may consent to marry; and at that
age he may disagree to and annul a marriage he may before that
time have contracted he may then choose a guardian and, if his
discretion be proved, may, at common law, make a will of his
personal estate; and may act as executor at the age of seventeen
years. A female at seven may be betrothed or given in marriage;
at nine she is entitled to dower; at twelve may consent or
disagree to marriage; and, at common law, at seventeen may act
as executrix.
5. Considerable changes of the common law have probably taken
place in many of the states. In Pennsylvania, to act as an
executor, the party must be of full age. In general, an infant is
not bound by his contracts, unless to supply him for necessaries.
Selw. N. P. 137; Chit. Contr. 31; Bac. Ab. Infancy, &c. I 3; 9
Vin. Ab. 391; 1 Com. Contr. 150,.151; 3 Rawle's R. 351; 8 T.
R. 335; 1 Keb. 905, 913; S. C. 1 Sid. 258; 1 Lev. 168; 1 Sid.
129; 1 Southard's R. 87. Sed vide 6 Cranch, 226; 3 Pick. 492;
1 Nott & M'Cord, 197. Or, unless he is empowered to enter into a
contract, by some legislative provision; as, with the consent of
his parent or guardian to put himself apprentice, or to enlist in
the service of the United States. 4 Binn. 487; 5 Binn. 423.
6. Contracts made with him, may be enforced or avoided by him
on his coming of age. See Parties to contracts; Voidable. But to
this general rule there is an exception; he cannot avoid
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contracts for necessaries, because these are for his benefit. See
Necessaries. The privilege of avoiding a contract on account of
infancy, is strictly personal to the infant, and no one can take
advantage of it but himself. 3 Green, 343; 2 Brev. 438. When the
contract has been performed, and it is such as he would be
compellable by law to perform, it will be good and bind him. Co.
Litt. 172 a. And all the acts of an infant, which do not touch
his interest, but take effect from an authority which he has been
trusted to execute, are binding. 3 Burr. 1794; Fonbl. Eq., b. 1,
c. 2, §5, note c.
7. The protection which the law gives an infant is to operate
as a shield to him, to protect him from improvident contracts,
but not as a sword to do injury to others. An infant is therefore
responsible for his torts, as, for slander, trespass, and the
like; but he cannot be made responsible in an action ex delicto,
where the cause arose on a contract. 3 Rawle's R. 351; 6 Watts'
R. 9; 25 Wend. 399; 3 Shep. 233; 9 N. H. Rep. 441; 10 Verm.
71; 5 Hill, 391. But see contra, 6 Cranch, 226; 15 Mass. 359;
4 M'Cord, 387.
8. He is also punishable for a crime, if of sufficient
discretion, or doli capax. 1 Russ. on Cr. 2, 3. Vide, generally,
Bouv. Inst. Index, h. t.; Bingh. on Infancy; 1 Hare & Wall.
Sel. Dec. 103, 122; the various Abridgments and Digests, tit.
Enfant, Infancy; and articles Age; Birth; Capax Doli; Dead
born; Faetus; In ventre sa mere.
INFANTICIDE, med. juris. The murder of a new born infant,
Dalloz, Dict. Homicide, §4; Code Penal, 300. There is a
difference between this offence and those known by the name of
prolicide, (q. V.) and foeticide. (q. v.)
2. To commit infanticide the child must be wholly born; it is
not. Sufficient that it was born so far as the head and breathed,
if it died before it was wholly born. 5 Carr. & Payn. 329; 24
Eng. C. L. Rep. 344; S. C. 6 Carr: & Payn. 349; S. C. 25 Eng.
C. L. Rep. 433.
3. When this crime is to be proved from circumstances, it is
proper to consider whether the child had attained that size and
maturity by which it would have been enabled to maintain an
independent existence; whether it was born alive; and, if born
alive, by what means it came to its death. 1 Beck's Med. Jur. 331
to 428, where these several questions are learnedly considered.
See also 1 Briand, M‚d L‚g. pr‚m. part. c. 8 Cooper's Med. Jur.
h. t. Vide Ryan's Med. Jur. 137; Med. Jur. 145, 194; Dr.
Cummin's Proof of Infanticide considered L‚cieux, Considerations
M‚dico-l‚gales sur l'Infanticide; Duvergie, M‚dicine L‚gale,
art. Infanticide.
INFEOFFMENT, estates. The act or instrument of feoffment. (q.
v.) In Scotland it is synonymous with saisine, meaning the
instrument of possession; formerly it was synonymous with
investiture, Bell's Sc. L. Dict. h. t.
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INFERENCE. A conclusion drawn by reason from premises
established by proof.
2. It is the province of the judge who is to decide upon the
facts to draw the inference. When the facts are submitted to the
court, the judges draw the inference; when they are to be
ascertained by a jury, it is their duty to do so. The witness is
not permitted as a general rule to draw an inference, and testify
that to the court or jury. It is his duty to state the facts
simply as they occurred. Inferences differ from presumptions. (q.
v.)
INFERI0R. One who in relation to another has less power and is
below him; one who is bound to obey another. He who makes the
law is the superior; he who is bound to obey it, the inferior. 1
Bouv. Inst. n. 8.
INFERIOR COURTS. By this term are understood all courts except
the supreme courts. An inferior court is a court of limited
jurisdiction, and it must appear on the face of its proceedings
tliat it has jurisdiction, or its proceedings. will be void. 3
Bouv. Inst. n. 2529.
INFIDEL, persons, evidence. One who does not believe in the
existence of a God, who will reward or punish in this world or
that which is to come. Willes' R. 550. This term has been very
indefinitely applied. Under the name of infidel, Lord Coke
comprises Jews and heathens; 2 Inst 506; 3 Inst. 165; and
Hawkins includes among infidels, such as do not believe either in
the Old or New Testament. Hawk. P. C. b 2, c. 46, s. 148.
2. It is now settled that when the witness believes in a God
who will reward or punish him even in this world he is competent.
See willes, R. 550. His belief may be proved from his previous
declarations and avowed opinions; and when he has avowed himself
to be an infidel, he may show a reform of his conduct, and change
of his opinion since the declarations proved when the
declarations have been made for a very considerable space of
time, slight proof will suffice to show he has changed his
opinion. There is some conflict in the cases on this subject,
some of theni are here referred to: 18 John. R. 98; 1 Harper,
R. 62; 4 N. Hamp. R. 444; 4 Day's Cas. 51; 2 Cowen, R. 431,
433 n., 572; 7 Conn. R. 66; 2 Tenn. R. 96; 4 Law Report, 268;
Alis. Pr. Cr. Law, 438; 5 Mason, 16; 15 mass. 184; 1 Wright,
345; So. Car. Law Journ. 202. Vide Atheist; Future state.
INFIRM. Weak, feeble.
2. When a witness is infirm to an extent likely to destroy his
life, or to prevent his attendauce at the trial, his testimony de
bene esge may be taken at any age. 1 P. Will. 117; see Aged
witness.; Going witness.
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INFLUENCE. Authority, credit, ascendance.
2. Influence is proper or improper. Proper influence is that
which one person gains over another by acts of kindness and,
attention, and by correct conduct. 3 Serg. & Rawle, 269. Improper
influence is that dominion acquired by any person over a mind of
sanity for general purposes, and of sufficient soundness and
discretion to regulate his affairs in general, which prevents the
exercise of his di scretion, and destroys his free will. 1 Cox's
Cas. 355. When the former is used to induce a testator to make a
will, it will not vitiate it; but when the latter is the moving
cause, the will cannot stand. 1 Hagg. R. 581; 2 Hagg. 142; 5
Serg. & Rawle, 207; 13 Serg. & Rawle, 323; 4 Greenl. R. 220; 1
Paige, R. 171; 1 Dow. & Cl. 440; 1 Speers, 93.
3. A contract to use a party's influeuce to induce a person in
authority to exercise his power in a particular way, is void, as
being against public policy. 5 Watts & Serg. 315; 5 Penn. St.
Rep. 452; 7 Watts, 152.
INFORMALITY. The waut of those forms required by law.
Informality is a good ground for a plea in abatement. Com. Dig.
Abatement, H 1, 6; Lawes, Pl. 106; Gould, Pl. c. 5, part 1,
§132.
INFORMATION. An accusation or complaint made in writing to a
court of competent jurisdiction, charging some person with a
specific violation of some public law. It differs in nothing from
an indictment in its form and substance, except that it is filed
at the discretion of the proper law officer of the government, ex
officio, without the intervention or approval of a grand jury. 4
Bl. Com. 308, 9.
2. In the French law, the term information is used to signify
the act or instrument which contains the depositions of witnesses
against the accused. Poth. Proc. Cr. sect. 2, art. 5 .
3. Informations have for their object either to punish a crime
or misdemeanor, and these have,.perhaps, never been resorted to
in the United States or to recover penalties or forfeitures,
which are quite common. For the form and requisites of an
information for a penalty, see 2 Chit. Pr. 155 to 171. Vide
Blake's Ch. 49; 14 Vin. Ab. 407; 3 Story, Constitution, §1780 3
Bl. Com. 261.
4. In summary proceedings before justices of the peace, the
complaint or accusation, at least when the proceedings relate to
a penalty, is called an information, and it is then taken down in
writing and sworn to. As the object is to limit the informer to a
certain charge, in order that the defendant may know what he has
to defend, and the justice may limit the evidence and his
subsequent adjudication to the allegations in the information, it
follows that the substance of the particular complaint must be
stated and it must be sufficiently formal to contain all material
averments. 8 T. R. 286; 5 Barn. & Cres. 251; 11 E. C. L. R.
217; 2 Chit. Pr. 156. See 1 Wheat. R. 9.
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INFORMATION IN THE NATURE OF A WRIT OF QUO WARRANTO, remedies.
The name of a proceeding against any one who usurps a franchise
or office.
2. Informations of this kind are filed in the highest courts of
ordinary jurisdiction in the several states, either by the
attorney-general, of his own authority, or by the prosecutor, who
is entitled, pro forma, to use his name, as the case may be. 6
Cowen, R. 102, n.; 10 Mass. 290; 2 Dall. 112; 2 Halst. R. 101;
1 Rep Const. Ct. So. Car. 86; 3 Serg. & Rawle, 52; 15 Serg. &
Rawle, 127: Though, in form, these informations are criminal,
they are, in their nature, but civil proceedings. 3 T. R. 484;
Kyd on Corp. 439. They are used to try a civil right, or to oust
a wrongful possessor of an office. 3 Dall. 490; 1 Serg. & Rawle.
385, For a full and satisfactory statement of the law on this
subject, the reader is referred to Angell on Corp. ch. 20. p.
469. And see Quo Warranto.
INFORMATUS NON SUM, pleading, practice. I am not informed; a
formal answer made in court, or put upon record by an attorney
when he has nothing to say in defence of his client. Styles Reg.
372.
INFORMER. A person who informs or prefers an accusation against
another, whom he suspects of the violation of some penal statute.
2. When the informer is entitled to the penalty or part of the
penalty, upon the conviction of an offender, he is or is not a
competent witness, accordingly as the statute creating the
penalty has or has not made him so. 1 Phil. Ev. 97; Rosc. Cr.
Ev. 107; 5 Mass. R. 57; 1 Dall. 68; 1 Saund. 262, c. Vide
articles Prosecutor; Rewards.
INFORTIATUM, civil law. The second part of the Digest or
Pandects of Justinian, is called infortiatum: see Digest. This
part, which commences with the third title of the twenty-fourth
book, and ends with the thirty-eighth book, was thus called
because it was the middle part, which, it was said, was supported
and fortified by the two others. Some have supposed that this
name was given to it, because it treats of successions,
substitutions, and other important matters, and being, more used
than the others, produced greater fees to the lawyers.
INFRA, Latin. Below, under, beneath, underneath. The opposite
of supra, above. Thus we say primo gradu est supra, pater, mater;
infra, filius, filia. In the first degree of kindred in the
ascending line; above, is the father and the mother; below, in
the descending line, the son and daughter. Inst. 3, 6, l.
2. In another, sense, this word signifies within; as, infra
corpus comitatus, within the body of the county; infra
proesidia, within the guards.
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3. It also signifies during; as infra furorem during the
madness.
INFRA ATATEM. Under age that is, during infancy, or before
arriving at the
full age of twenty-one years.
INFRA CORPUS COMITATUS. Within the body of the countt.
2. The common law courts have jurisdiction infra corpus
comitatus; the admiralty, on the contrary, has no such
jurisdiction, unless, indeed, the tide water may extend within
such county. 5 Howard's U. S. Rep. 441, 451.
INFRA DIGNITATEM CURAE. Below the dignity of the court.
Example, in equity a demurrer will lie to a bill on the ground of
the triviality of the matter in dispute, as being below the
dignity of the court. See 4 John. Ch. 183; 4 Paige, 364; 4
Bouv. Inst. n. 4237.
INFRA HOSPITIUM. Within the inn when once a traveller's baggage
comes infra hospitium, that is, in the care and under the charge
of the innkeeper, it is at his risk. See Guest; Innkeeper.
INFRA PRAESIDIA. This term is used in relation to prizes, to
signify that they have been brought completely in the power of
the captors, that is, within the towns, camps, ports or fleet of
the captors. Formerly, the rule was, and perhaps still in some
countries is, that the act of bringing a prize infra praesidia,
changed the property but the rule now established is, that there
must be a sentence of condemnation to effect this purpose. 1 Rob.
Adm. R. 134; 1 Kent's Com. 104; Chit. Law of Nat. 98; Abb. Sh.
14; Hugo, Droit Romain, §90.
INFRACTION. The breach of a law or agreement; the violation of
a compact. In the French law this is the generic expression to
designate all actions which are punishable by the code of France.
INFUSION, med. jur. A pharmaceutical operation, which consists
in pouring a hot or cold fluid upon a substance, whose medical
properties it is desired to extract. Infusion is also used for
the product of this operation. Although infusion differs from
decoction, (q. v.) they are said to be ejusdem generis; and in
the case of an indictment which charged the prisoner with giving
a decoction, and the evidence was that he had given an infusion,
the difference was held to be immaterial. 8 Camp. R. 74.
INGENUI, civ. law. Those freemen who were born free. Vicat,
vocab.
2. They were a class of freemen, distinguished from those who,
born slaves, had afterwards legally obtained their freedom the
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latter were called at various periods, sometimes liberti,
sometimes libertini. An unjust or illegal servitude did not
prevent a man from being ingenuus.
INGRATITUDE. The forgetfulness of a kindness or benefit.
2. In the civil law, ingratitude on the part of a legatee, was
sufficient to defeat a legacy in his favour. In Louisiana,
donations inter vivos are liable to be revoked or dissolved on
account of the ingratitude of the donee; but the revocation on
this account can, take place only, in the three following cases:
1. if the donee has attempted to take the life of the donor. 2.
If he has been guilty towards him of cruel treatmeut, crimes or
grievous injuries. 3. If he has refused him food when in
distress. Civ. Code of Lo. art. 1546, 1547; Poth. Donations
Entrevifs, s. 3, art. 1, §1. There are no such rules in the
common law. Ingratitude is not punishable by law.
INGRESS, EGRESS AND REGRESS. These words are frequently used in
leases to express the right of the lessee to enter, go upon, and
return from the lands in question.
INGRESSU. An ancient writ of entry, by which the plaintiff or
complainant sought an entry into his lands. Techn. Dict. h. t.
INGROSSING, practice. The act of copying from a rough draft a
writing in order that it may be executed; as, ingrossing a deed.
INHABITANT. One who has his domicil in a place is an inhabitant
of that place; one who has an actual fixed residence in a place.
2. A mere intention to remove to a place will not make a man an
inhabitant of such place, although as a sign of such intention he
may have sent his wife and children to reside there. 1 Ashm. R.
126. Nor will his intention to quit his residence, unless
consummated, deprive him of his right as an inhabitant. 1 Dall.
480. Vide 10 Ves. 339; 14 Vin. Ab. 420; 1 Phil. Ev. Index, h.
t.; Const. of Mass., part 2, c. 1, s. 2, a. 1; Kyd on Corp.
321; Anal. des Pand. de Poth. mot Habitans; Poth. Pand. lib.
50, t. 1, s. 2; 6 Adolph. & Ell. 153; 33 Eng. Common Law Rep.
31.
3. The inhabitants of the United States may be classed into, 1.
Those born within the country; and, 2. Those born out of it.
4. - 1. The natives consist, 1st. Of white persons, and these
are all citizens of the United States, unless they have lost that
right. 2d. Of the aborigines, and these are not in general,
citizens of the United States nor do they possess any political
power. 3d. Of negroes, or descendants of the African race, and
these generally possess no political authority whatever, not
being able to vote, nor to hold any office. 4th. Of the children
of foreign ambassadors, who are citizens or subjects as their
fathers are or were at the time of their birth.
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5. - 2. Persons born out of the jurisdiction of the United
States, are, 1st. children of citizens of the United States, or
of persons who have been such; they are citizens of the United
States, provided the father of such children shall have resided
within the same. Act of Congress of April 14, 1802, §4. 2d.
Persons who were in the country at the time of the adoption of
the constitution; these have all the rights of citizens. 3d.
Persons who have become naturalized under the laws of any state
before the passage of any law on the subject of naturalization by
Congress, or who have become naturalized under the acts of
congress, are citizens of the United States, and entitled to vote
for all officers who are elected by citizens, and to hold any
office except those of president and vice-president of the United
States. 4th. Children of naturalized citizens, who were under the
age of twenty-one years, at the time of their parent's being so
naturalized or admitted to the rights of citizen-ship, are, if
then dwelling in the United States, considered as citizens of the
United States, and entitled to the same rights as their
respective fathers. 5th. Persons who resided in a territory which
was annexed to the United States by treaty, and the territory
became a state; as, for example, a person who, born in France,
moved to Louisiana in 1806, and settled there, and remained in
the territory until it was admitted as a state, it was held, that
although not naturalized under the acts of congress, he was a
citizen of the United States. Deshois' Case, 2 Mart. Lo. R. 185.
6th. Aliens or foreigners, who have never been naturalized, and
these are not citizens of the United States, nor entitled to any
political rights whatever. See Alien; Body politic; Citizen;
Domicil; Naturalization.
INHERENT POWER. An authority possessed without its being
derived from another. It is a right, ability or faculty of doing
a thing, without receiving that right, ability or faculty from
another.
INHERITANCE, estates. A perpetuity in lands to a man and his
heirs; or it is the right to succeed to the estate of a person
who died intestate. Dig. 50, 16, 24. The term is applied to
lands.
2. The property which is inherited is called an inheritance.
3. The term inheritance includes not only lands and tenements
which have been acquired by descent, but also every fee simple or
fee tail, which a person has acquired by purchase, may be said to
be an inheritance, because the purchaser's heirs may inherit it.
Litt. s. 9.
4. Estates of inheritance are divided into inheritance
absolute, or fee simple; and inheritance limited, one species of
which is called fee tail. They are also divided into corporeal,
as houses and lands and incorporeal, commonly called incorporeal
hereditaments. (q. v.) 1 Cruise, Dig. 68; Sw. 163; Poth. des
Retraits, n. 2 8.
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5. Among the civilians, by inheritance is understood the
succession to all the rights of the deceased. It is of two kinds,
1 . That which arises by testament, when the testator gives his
succession to a particular person; and, 2. That which arises by
operation of law, which is called succession ab intestat. Hein.
Lec. El. §484, 485.
INHIBITION, Scotch law,. A personal prohibition which passes by
letters under the signet, prohibiting the party inhibited to
contract any debt, or do . any deed, by which any part of the
lands may be aliened or carried off, in prejudice of the creditor
inhibiting. Ersk. Pr. L. Scot. B. 2, t. 11, s. 2. See Diligences.
2. In the civil law, the probibition which the law makes, or a
judge ordains to an individual, is called inhibition.
INHIBITION, Eng. law. The name of a writ which forbids a judge
from further proceeding in a cause depending before him; it is
in the nature of a prohibition. T. de la Ley; F. N. B. 39.
INIQUITY. Vice; contrary to equity; injustice.
2. Where, in a doubtful matter, the judge is required to
pronounce, it is his duty to decide in such a manner as is the
least against equity.
INITIAL. Placed at the beginning. The initials of a man's name
are the first letters of his Dame; as, G. W. for George
Washington. When in a will the legatee is described by the
initials of his name only, parol evidence may be given to prove
his identity. 3 Ves. 148. And a signature made simply with
initials is binding. 1 Denio, R. 471. But see Ersk. Inst. B. 3,
t. 2, n. 8.
INITIALIA TESTIMONII, Scotch law. Before a witness can be
examined in chief, he may be examined with regard to his
disposition, whether he bear good or ill will towards either of
the parties whether he has been prompted what to say whether he
has received a bribe, and the like. This previous examination,
which somewhat resembles our voir dire, is called initialia
testimonii.
INITIATE. A right which is incomplete. By the birth of a child,
the hushand becomes tenant by the curtesy initiate, but his
estate is not consummate until the death of the wife. 2 Bouv.
Inst. n. 1725.
INITIATIVE, French law. The name given to the important
prerogative given by the charte constitutionelle, art. 16, to the
late king to propose through his ministers projects of laws. 1
Toull. n. 39. See Veto.
INJUNCTION, remedies, chancery, practice. An injunction is a
prohibitory writ, specially prayed for by a bill, in which the
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plaintiff's title is set forth, restraining a person from
committing or doing an act (other than criminal acts) which
appear to be against equity and conscience. Mitf. Pl. 124; 1
Madd. Ch. Pr. 126.
2. Injunctions are of two kinds, the one called the writ
remedial, and the other the judicial writ.
3. - 1st. The former kind of injunction, or remedial writ, is
in the nature of a prohibition, directed to, and controlling, not
the inferior court, but the party. It is granted, when a party is
doing or is about to do an act against equity or good conscience,
or litigious or vexatious; in these cases, the court will not
leave the party to feel the mischief or inconvenience of the
wrong, and look to the courts of common law for redress, but will
interpose its authority to restrain such unjustifiable
proceedings.
4. Remedial injunctions are of two kinds common or special. 1.
It is common when it prays to stay proceedings at law, and will
be granted, of course; as, upon an attachment for want of an
appearance, or of an answer; or upon a dedimus obtained by the
defendant to take his answer in the country; or upon his praying
for time to answer, &c. Newl. Pr. 92; 13 Ves, 323. 2. A special
injunction is obtained only on motion or petition, with notice to
the other party, and is applied for, sometimes on affidavit
before answer, but more frequently upon the merits disclosed in
the defendant's answer. Injunctions before answer are granted in
cases of waste and other injuries of so urgent a nature, that
mischief would ensue if the plaintiff were to wait until the
answer were put in; but the court will not grant an injunction
during the pen-dency of a plea or demurrer to the bill, for until
that be argued, it does not appear whether or not the court has
jurisdiction of the cause. The injunction granted in this stage
of the suit, is to continue till answer or further order; the
injunction obtained upon the merits confessed in the answer,
continues generally till the hearing of the cause.
5. An injunction is generally granted for the purpose of
preventing a wrong, or preserving property in dispute pending a
suit. Its effect, in general, is only in personam, that is, to
attach and punish the party if disobedient in violating the
injunction. Ed. Inj. 363; Harr. Ch. Pr. 552.
6. The principal injuries which may be prevented by injunction,
relate to the person, to personal property, or to real property.
These will be separately considered.
7. - 1. With respect to the person, the chancellor may prevent
a breach of the peace, by requiring sureties of the peace. A
court of chancery has also summary and extensive jurisdiction for
the protection of the relative rights of persons, as between
hushand and wife, parent and child, and guardian and ward; and
in these cases, on a proper state of facts, an injunction will be
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granted. For example, an injunction may be obtained by a parent
to prevent the marriage of his infant son. 1 Madd. Ch. Pr. 348;
Ed. Inj. 297; 14 Ves. 206; 19 Ves. 282; 1 Chitt. Pr. 702.
8. - 2. Injunctions respecting personal property, are usually
granted, 1st. To restrain a partner or agent from making or
negotiating bills, notes or contracts, or doing other acts
injurious to the partner or principal. 3 Ves. jr. 74; 3 Bro. C.
C. 15; 2 Campb. 619; 1 Price, R. 503; 1 Mont. on Part. 93; 1
Madd. Ch. Pr. 160; Chit. Bills, 58, 61; 1 Hov. Supp. to Ves.
jr. *335; Woodd. Lect. 416.
9. - 2d. To restrain the negotiation of bills or notes obtained
by fraud, or without consideration. 8 Price, R. 631; Chit.
Bills, 31 to 41; Ed. Inj. 210; Blake's Ch. Pr. 838; 2 Anst.
519; 3 Anst. 851; 2 Ves. jr. 493; 1 Fonb. Eq. 43; 1 Madd. Ch.
Pr. 154. 3d. To deliver up void or satisfied deeds. 1 V. & B.
244; 11 Ves. 535; 17 Ves. 111. 4th. To enter into and deliver a
proper security. 1 Anst, 49. 5th. To prevent breaches of covenant
or contract, and enjoin the performance of others. Ed. Inj. 308.
6th. To prevent a breach of confidence or good faith, or to
prevent other loss as, for example, to restrain the disclosure of
secrets, which came to the defendant's knowledge in the course of
any confidential employment. 1 Sim. R. 483 and see 1 Jac. & W.
394. An injunction will be granted to prevent the publication of
private letters without the authors consent. Curt. on Copyr. 90;
2 Atk. 342; Ambl. 137; 2 Swanst. 402, 427; 1 Ball & Beat. 207;
2 Ves. & B. 19; 1 Mart. Lo. R. 297; Bac. Ab. Injunction A. But
the publication will be allowed when necessary to the defence of
the character of the party who received them. 2 Ves. & B. 19.
7th. To prevent improper sales, payments, or conveyances. Chit.
Eq. Dig. tit. Practice, xlvii. 8th. To prevent loss or
inconvenience; this can be obtained on filing a bill quia timet.
(q. v.) 1 Madd. Ch. Pr. 218 to 225. 9th. To prevent waste of
property by an executor or administrator. Ed. Inj. 300; 1 Madd.
Ch. Pr.; 160, 224. 10th. To restrain the infringement of
patents; Ed. Inj. ch. 12; 14 Ves. 130; 1 Madd. Ch. Pr. 137;
or of copyrights; Ed. Inj. c. 13; 8 Ares. 225; 17 Ves. 424.
11th. To stay proceedings in a court of law. These proceedings
will be stayed when justice cannot be done in consequence of
accident; 1 John. Cas. 417: 4 John. Ch. R. 287,194; Latch, 24,
146, 148; 1 Vern. 180, 247; 1 Ch. C. 77, 120; 1 Eq. Cas. Ab.
92; or mistake; 1 John. Ch. R. 119, 607; 2 John. Ch. R. 585;
4 John. Ch. R. 85; Id. 144; 2 Munf. 187; 1 Day's Cas. Err.
139; 3 Ch. R. 55; Finch., 413; 2 Freem. 16; Fitzg. 118; or
fraud. 1 John. Ch. R. 402; 2 John. Ch. R. 512; 4 John. Ch. R.
65. But no injunction will be granted to stay proceedings in a
criminal case. 2 John. Ch. R. 387; 6 Mod. 12; 2 Ves. 396.
9. - 3. Injunctions respecting real property, may be obtained,
1st. To prevent wasteful trespasses or irreparable damages,
although the owner may be entitled to retake possession, if he
can do so, without a breach of the peace. 1 Chit. Pr. 722. 2d. To
compel the performance of lawful works in the least, injurious
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manner. 1 Turn. & Myl. 181. 3d. To prevent waste. 3 Tho. Co.
Litt. 241, M; 1 Madd. Ch. Pr. 138; Ed. Inj. ch. 8, 9, and 10;
1 John. Ch. R. 11; 2 Atk. 183. 4th. To prevent the creation of a
nuisance, either private or public. 1. Private nuisance; for
example, to restrain the owner of a house from making any
erections or improvements, so as materially to darken or obstruct
the ancient lights and windows of an adjoining house. 2 Russ. R.
121. 2. Public nuisances. Though usual to prosecute the parties
who create nuisances, by indictment, yet, in some cases, an
injunction may be had to prevent the creating of such nuisance. 5
Ves. 129; 1 Mad. Ch. 156; Ed. Inj. ch. 11.
10. - 2d An injunction of the second kind, called the judicial
writ, issues subsequently to a decree. It is a direction to yield
up, to quit, or to continue possession of lands, and is properly
described as being in the nature of an execution. Ed. Inj. 2. 11.
Injunctions are also divided into temporary and perpetual. 1. A
temporary injunction is one which is granted until some stage of
the suit shall be reached; as, until the defendant shall file
his answer; until the bearing; and the like. 2. A perpetual
injunction is one which is issued when, in the opinion of the
court, at the hearing the plaintiff has established a case, which
entitles him to an injunction; or when a bill, praying for an
injunction, is taken pro confesso; in such cases a perpetual
injunction will be decreed. Ed. Inj. 253.
12. The interdict (q. v.) of the Roman law resembles, in many
respects, our injunction. It was used in three distinct, but
cognate senses. 1. It was applied to signify the edicts made by
the proctor, declaratory of his intention to give a remedy in
certain cases, chiefly to preserve or to restore possession;
this interdict was called edictal; edictale, quod praetoriis
edictis proponitur, ut sciant omnes ea forma posse implorari. 2.
It was used to signify his order or decree, applying the remedy
in the given case before him, and then was called decretal;
decretale, quod praetor re nata implorantibus decrevit. It is
this which bears a strong resemblance to the injunction of a
court of equity. 3. It was used, in the last place, to signify
the very remedy sought in the suit commenced under the proctor's
edict; and thus it became the denomination of the action itself.
Livingston on the Batture case, 5, Am. Law Jour. 271; 2 Story,
Eq. Jur. §865; Analyse des Pandectes de Pothier, h.t.; Dict. du
Dig. h.t.; Clef des Lois Rom. h. t.; Heineccii, Elem. Pand.
Ps. 6, §285, 28
Vide, generally, Eden on Injunctions; 1 Madd. Ch. Pr. 125 to
165; Blake's Ch. Pr. 330 to 344; 1 Chit. Pr. 701 to 731; Coop.
Eq. Pl. Index, h. t.; Redesd. Pl. Index, h. t.; Smith's Ch. Pr.
h. t.; 14 Vin. Ab. 442; 2 Hov. Supp. to Ves. jr. 173, 434, 442;
Com. Dig. Chancery, D 8; Newl. Pr. o. 4, s. 7; Bouv. Inst.
Index, h. t.
INJURIA ABSQUE DAMNO. Injury without damage. Injury without
damage or loss will not bear an action. The following, cases
illustrate this principle. 6 Mod. Rep. 46, 47, 49; 1 Shower, 64;
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Willes, Rep. 74, note; 1 Lord Ray. 940, 948; 2 Bos. & Pull. 86;
9 Rep. 113; 5 Rep. B. N. P. 120. 72
INJURIOUS WORDS. This phrase is used, in Louisiana, to signify
slander, or libelous words. Code, art. 3501.
INJURY. A wrong or tort. Injuries are divided into public and
private; and they affect the. person, personal property, or real
property.
3. - 1. They affect the person absolutely or relatively. The
absolute injuries are, threats and menaces, assaults, batteries,
wounding, mayhems; injuries to health, by nuisances or medical
malpractices. Those affecting reputation are, verbal slander,
libels, and malicious prosecutions; and those affecting personal
liberty are, false imprisonment and malicious prosecutions. The
relative injuries are those which affect the rights of a hushand;
these are, abduction of the wife, or harboring her, adultery and
battery those which affect the rights of a parent, as,
abduction, seduction, or battery of a child; and of a master,
seduction, harboring and battery of his apprentice or servant.
Those which conflict with the rights of the inferior relation,
namely, the wife, child, apprentice, or servant, are, withholding
conjugal rights, maintenance, wages, &c.
4. - 2. Injuries to personal property, are, the unlawful taking
and detention thereof from the owner; and other injuries are,
some damage affecting the same while in the claimant's
possession, or that of a third person, or injuries to his
reversionary interests.
5. - 3. Injuries to real property are, ousters, trespasses
nuisances, waste, subtraction of rent, disturbance of right of
way, and the like.
6. Injuries arise in three ways. 1. By nonfeasance, or the not
doing what was a legal obligation, or. duty, or contract, to
perform. 2. Misfeasance, or the performance, in an improper
manner, of an act which it was either the party's duty, or his
contract, to perform. 3. Malfeasance, or the unjust performance
of some act which the party had no right, or which he had
contracted not to do.
7. The remedies are different, as the injury affects private
individuals, or the public. 1. When the injuries affect a private
right and a private individual, although often also affecting the
public, there are three descriptions of remedies: 1st. The
preveative, such as defence, resistance, recaption, abatement of
nuisance, surety of the peace, injunction, &c. 2d. Remedies for
compensation, which may be by arbitration, suit, action, or
summary proceedings before a justice of the peace. 3d.
Proceedings for punishment, as by indictment, or summary
Proceedings before a justice. 2. When the injury is such as to
affect the public, it becomes a crime, misdemeanor, or offence,
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and the party may be punished by indictment or summary
conviction, for the public injury; and by civil action at the
suit of the party, for the private wrong. But in cases of felony,
the remedy by action for the private injury is generally
suspendid until the party particularly injured has fulfilled his
duty to the public by prosecuting the offender for the public
crime; and in cases of homicide the remedy is merged in the
felony. 1 Chit. Pr. 10; Ayl. Pand. 592. See 1 Miles' Rep. 316,
17; and article Civil Remedy.
8. There are many injuries for which the law affords no remedy.
In general, it interferes only when there has been a visible
bodily injury inflicted by force or poison, while it leaves
almost totally unprotected the whole class of the most malignant
mental injuries and sufferings unless in a few cases, where, by
descending to a fiction, it sordidly supposes some pecuniary
loss, and sometimes, under a mask, and contrary to its own legal
principles, affords compensation to wounded feelings. A parent,
for example, cannot sue, in that character, for an injury
inflicted on his child and when his own domestic happiness has
been destroyed, unless the fact will sustain the allegation that
the daughter was the servant of her father, and that, by, reason
of such seduction, he lost the benefit of her services. Another
instance may be mentioned: A party cannot recover damages for
verbal slander in many cases; as, when the facts published are
true, for the defendant would justify and the party injured must
fail. A case of this kind, remarkably bard, occurred in England.
A young nobleman had seduced a young woman, who, after living
with him some time, became sensible of the impropriety of her
conduct. She left him secretly, and removed to an obscure place
in the kingdom, where she obtained a situation, and became highly
respected in consequence of her good conduct she was even
promoted to a better and more public employment when she was
unfortunately discovered by her seducer. He made proposals to her
to renew their illicit intercourse, which were rejected; in
order to, force her to accept them, he published the history of
her early life, and she was discharged from her employment, and
lost the good opinion of those on whom she depended for her
livelihood. For this outrage the culprit could not be made
answerable, civilly or criminally. Nor will the law punish
criminally the author of verbal slander, imputing even the most
infamous crimes, unless done with intent to extort a chattel,
money, or valuable thing. The law presumes, perhaps unnaturally
enough, that a man is incapable of being alarmed or affected by
such injuries to his feelings. Vide 1 Chit. Med. Jur. 320. See,
generally, Bouv. Inst. Index, h. t.
INJURY, civil law, In the technical sense of the term it is a
delict committed in contempt, or outrage of any one, whereby his
body, his dignity, or his reputation, is. maliciously injured.
Voet, Com. ad Pand. lib. 47, t. 10, n. 1.
2. Injuries may be divided into two classes, With reference to
the means used by the wrong doer, namely, by words and by acts.
The first are called verbal injuries, the latter real.
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3. A verbal injury, when directed against a private person,
consists in the uttering contumelious words, which tend to expose
his character, by making him little or ridiculous. Where the
offensive words are uttered in the beat of a dispute, and spoken
to the person's face, the law does not presume any malicious
intention in the utterer, whose resentment generally subsides
with his passion;, and yet, even in that case, the truth of the
injurious words seldom absolves entirely from punishment. Where
the injurious expressions have a tendency to blacken one's moral
character, or fix some particular guilt upon him, and are
deliberately repeated in different companies, or banded about in
whispers to confidants, it then grows up to the crime of slander,
agreeably to the distinction of the Roman law, 1. 15, §12, de
injur.
4. A reat injury is inflicted by any fact by which a person's
honor or dignity is affected; as striking one with a cane, or
even aiming a blow without striking; spitting in one's face;
assuming a coat of arms, or any other mark of distinction proper
to another, &c. The composing and publish in defamatory libels
maybe reckoned of this kind. Ersk. Pr. L. Scot. 4, 4, 45.
INJUSTICE. That which is opposed to justice.
2. It is either natural or civil. 1. Natural injustice is the
act of doing harm to mankind, by violating natural rights. 2.
Civil injustice, is the unlawful violation of civil rights.
INLAGARE. To admit or restore to the benefit of law.
INLAGATION. The restitution of one outlawed to the protection
of the law. Bract. lib. 2, c. 14.
INLAND. Within the same country.
2. It seems not to be agreed whether the term inland applies to
all the United States or only to one state. It has been holden in
Now York that a bill of exchange by one person in one state, on
another person in another, is an inland bill of exchange; 5
John. Rep. 375; but a contrary opinion seems to have been held
in the circuit court of the United States for Pennsylvania.
Whart. Dig. tit. Bills of Exchange, E, pl. 78. Vide 2 Phil. Ev.
36, and Bills of Exchange.
INMATE. One who dwells in a part of another's house, the latter
dwelling, at the same time, in the said house. Kitch. 45, b;
Com. Dig. Justices of the Peace, B 85; 1 B. & Cr. 578; 8 E. C.
L. R. 153; 2 Dowl. & Ryl. 743; 8 B. & Cr. 71; 15 E. C. L. R.
154; 2 Mann. & Ryl. 227; 9 B. & Cr. 176; 17 E. C. L. R. 385;
4 Mann. & Ryl. 151; 2 Russ. on Cr. 937; 1 Deac. Cr. L. 185; 2
East, P. Cr. 499, 505; 1 Leach's Cr. L. 90, 237, 427; Alcock's
Registration Cases, 21; 1 Mann. & Gran. 83; 39 E. C. L. R. 365.
Vide Lodger.
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INN. A house where a traveller is furnished with every thing he
has occasion for while on his way. Bac. Ab. Inns. B; 12 Mod.
255; 3 B. & A. 283; 4 Campb. 77; 2 Chit. Rep. 484; 3 Chit.
Com. Law, 365, n. 6.
2. All travellers have a lawful right to enter an inn for the
purpose of being accommodated. It has been held that an innkeeper
in a town'through which lines of stages pass, has no right to,
exclude the driver of one of these lines from his yard and the
common public rooms, where travellers are usually placed, who
comes there at proper hours, and in a proper manner, to solicit
passengers for his coach, and without doing any injury to the
innkeeper. 8 N. H. R. 523; Hamm. N. P. 170. Vide Entry; Guest.
INNAVIGABLE. Not capable of being navigated.
INNINGS, estates. Lands gained from the sea by draining. Cunn.
L. Dict. h. t.; Law of Sewers, 31.
INNKEEPER. He is defined to be the keeper of a common inn for
the lodging and entertainment of travellers and passengers, their
horses and attendants, for a reasonable compensation. Bac. Ab.
Inns, &c.; Story, Bailm. §475. But one who entertains strangers
occasionally, although he may receive compensation for it, is not
an innkeeper. 2 Dev. & Bat. 424.
2. His duties will be first considered and, secondly, his
rights.
3. - 1. He is bound to take in and receive all travellers and
wayfaring persons, and to entertain them, if he can accommodate
them, for a reasonable compensation; and he must guard their
goods with proper diligence. He is liable only for the goods
which are brought within the inn. 8 Co. 32; Jones' Bailm. 91. A
delivery of the goods into the custody of the innkeeper is not,
however, necessary, in order to make him responsible; for
although he may not know anything of such goods, he is bound to
pay for them if they are stolen or carried away, even by an
unknown person; 8 Co. 32; Hayw. N. C. R. 41; 14 John. R. 175;
1 Bell's Com. 469; and if he receive the guest, the custody of
the goods may be considered as an* accessory to the principal
contract; and the money paid for the apartments as extending to
the care of the box and portmanteau. Jones' Bailm. 94; Story,
Bailm. §470; 1 Bl. Com. 430; 2 Kent, Com. 458 to 463. The
degree of care which the innkeeper is bound to take is uncommon
care, and he will be liable for a slight negligence. He is
responsible for the acts of his domestics and servants, as well
as for the acts of his other guests, if the goods are stolen or
lost; but he is not responsible for any tort or injury done by
his servants or others, to the, person of his guest, without his
own cooperation or consent. 8 Co. 32. The innkeeper will be
excused whenever the loss has occurred through the fault of the
guest. Story, Bailm. §483: 4 M. & S. 306; S. C. 1 Stark. R.
251, note 2 Kent, Com. 461; 1 Yeates' R. 34.
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4. - 2. The innkeeper is entitled to a just compensation for
his care and trouble in taking care of his guest and his
property; and to enable him to obtain this, the law invests him
with some peculiar privileges, giving him alien upon the goods,
of the guest, brought into the inn, and, it is said, upon the
person of his guest, for his compensation. 3 B. & Ald. 287; 8
Mod. 172; 1 Shower, Rep. 270; Bac. Ab. Inns, &c., D. But the
horse of the guest can be detained only for his own keeping, and
not for the boarding and personal expenses of the guest. Bac. Ab.
h. t. The landlord may also bring an action for the recovery of
his compensation.
Vide, generally, 1 Vin. Ab. 224; 14 Vin. Ab. 436; Bac. Ab. h.
t.; Yelv. 67, a, 162, a; 2 Kent, Com. 458; Ayl. Pand. 266; 9
Pick. 280; 21 Wend. 285; 1 Yeates, 35: Oliph. on the Law of
Horses, 125; Bouv. Inst. Index, h. t.
INNOCENCE, The absence of guilt.
2. The law presumes in favor of innocence, even against another
presumption of law: for example, when a woman marries a second
hushand within the space of twelve months after her hushand had
left the country, the presumption of innocence preponderates over
the presumption of the continuance of life. 2 B. & A. 386 3
Stark. Ev. 1249. An exception to this rule respecting the
presumption of innocence has been made in the case of the
publication of a libel, the principal being presumed to have
authorized the sale, when a libel is sold by his agent in his
usual place of doing business. 1 Russ. on Cr. 341; 10 Johns. R.
443; Bull. N. P. 6; Greenl. Ev. §36. See 4 Nev. & M. 341; 2
Ad. & Ell. 540; 5 Barn. & Ad. 86; 1 Stark. N. P. C. 21; 2 Nov.
& M. 219.
INNOCENT CONVEYANCES. This term is used in England,
technically, to signify those conveyances made by a tenant of his
leasehold, which do not occasion a forfeiture these are
conveyances by lease and release, bargain and sale, and a
covenant to stand seised by a tenant for life. 1 Chit. Pr. 243,
244.
2. In this country forfeitures for alienation of a greater
right than the tenant possesses, are almost unknown. The more
just principle prevails that the conveyance by the tenant,
whatever be its form, operates only on his interest. Vide
Forfeiture,
INNOMINATE CONTRACTS, civil law. Contracts which have no
particular names, as permutation and transaction, are so called.
Inst. 2, 10, 13. There are many innominate contracts, but the
Roman lawyers reduced thein to four classes, namely, do ut des,
do ut facias, facio ut des, and facio ut facias. (q. v.) Dig. 2,
14, 7, 2.
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INNOTESCIMUS, English law. An epithet used for letters-patent,
which are always of a charter of feoffment, or some other
instrument not of record, concluding with the words Innotescimus
per praesentes, &c. Tech. Dict. h. t.
INNOVATION. Change of a thing established for something new.
2. Innovations are said to be dangerous, as likely to unsettle
the common law. Co. Litt. 370, b; Id. 282, b. Certainly no
innovations ought to be made by the courts, but as every thing
human, is mutable, no legislation can be, or ought to be
immutable; changes are required by the alteration of
circumstances; amendments, by the imperfections of all human
institutions but laws ought never to be changed without great
deliberation, and a due consideration of the reasons on which
they were founded, as of the circumstances under which they were
enacted. Many innovations have been made. in the common law,
which philosophy, philanthropy and common sense approve. The
destruction of the benefit of clergy; of appeal, in felony; of
trial by battle and ordeal; of the right of sanctuary; of the
privilege to abjure the realm; of approvement, by which any
criminal who could, in a judicial combat, by skill, force or
fraud kill his accomplice, secured his own pardon of corruption
of blood; of constructive treason; will be sanctioned; by all
wise men, and none will desire a return to these barbarisms. The
reader is referred to the case of James v. the Commo wealth, 12
Serg. & R. 220, and 225 to 2 Duncan, J., exposes the absurdity of
some ancient laws, with much sarcasm.
INNOVATION, Scotch law. The exchange of one obligation for
another, so that the second shall come in the place of the first.
Bell's Scotch Law Dict. h. t. The same as Novation. (q. v.)
INNS OF COURT, Engl. law. The name given to the colleges of the
English professors and students of the common law. 2. The four
principal Inns of Court are the Inner Temple and Middle Temple,
(formerly belonging to the Knights Templars) Lincoln's Inn, and
Gray's Inn, (ancient belonging to the earls of Lincoln and ray.)
The other inns are the two Sergeants' Inns. The Inns of Chancery
were probably so called because they were once inhabited by such
clerks, as chiefly studied the forming of writs, which regularly
belonged to the cursitors, who are officers of chancery. These
are Thavie's Inn, the New Inn, Symond's Inn, Clement's Inn,
Clifford's Inn,' Staple's Inn, Lion's Inn, Furnival's Inn and
Barnard's Inn. Before being called to the bar, it is necessary to
be admitted to one of the Inns of Court.
INNUENDO, pleading. An averment which explains the defendoant's
meaning by reference to antecedent matter. Salk. 513; 1 Ld.
Raym. 256; 12 Mod. 139; 1 Saund. 243. The innuendo is mostly
used in actions for slander. An innuendo, as, "he the said
plaintiff meaning," is only explanatory of some matter expressed;
it serves to apply the slander to the precedent matter, but
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cannot add or enlarge, extend, or change the sense of the
previous words, and the matter to which it alludes must always
appear from the antecedent parts of the declaration or
indictment. 1 Chit. Pl. 383; 3 Caines' Rep. 76; 7 Johns. R.
271; 5 Johns. R. 211; 8 Johns. R. 109; 8 N. H. Rep. 256.
3. It is necessary only when the intent may be mistaken, or
when it cannot be collected from the libel or slander itself.
Cowp. 679; 5 East, 463.
4. If the innuendo materially enlarge the sense of the words it
will vitiate the declaration or indictment. 6 T. R. 691; 5 Binn.
218; 5 Johns. R. 220; 6 Johns. R. 83; 7 Johns. Rep. 271. But
when the new matter stated in an innuendo is not necessary to
support the action, it may be rejected as surplusage. 9 East, R.
95; 7 Johns. R. 272. Vide, generally, Stark. on Slan. 293; 1
Chit. Pl. 383; 3 Chit. Cr. Law, 873; Bac. Ab. Slander, R; 1
Saund. 243, n. 4; 4 Com. Dig. 712; 14 Vin. Ab. 442; Dane's Ab.
Index, h. t.; 4 Co. 17.
INOFFICIOUS, civil law. This word is frequently used with
others; as, inofficious testament, inofficiosum testamentum;
inofficious gift, donatio inofficiosa. An inofficious testament
is one not made according to the rules of piety; that is, one
made by which the testator has unlawfully omitted or disinherited
one of his heirs. Such a disposition is void by the Roman civil
law. Dig. 5, 2, 5; see Code, 3, 29; Nov. 115; Ayl. Pand. 405;
Civil Code of Lo. art. 3522, n. 21.
INOPS CONSILII. Destitute or without counsel. In the
construction of wills a greater latitude is given, because the
testator is supposed to have been inops consilii.
INQUEST. A body of men appointed by law to inquire into certain
matters; as, the inquest examined into the facts connected with
the alleged murder; the grand jury, is sometimes called the
grand inquest. The judicial inquiry itself is also called an
inquest. The finding of such men, upon an investigation, is also
called an inquest or an inquisition.
2. An inquest of office was bound to find for the king upon the
direction of the court. The reason given is that the inquest
coucluded no man of his right, but only gave the king an
opportunity to enter so that he could have his right tried.
Moore, 730; Vaughan, 135; 3 H. VII. 10; 2 H. IV. 5; 3 Leon.
196.
INQUIRY, WRIT OF. A writ of inquiry is one issued where a
judgment has been entered in a case sounding in damages, without
any particular amount being ascertained; this writ is for the
purpose of ascertaining the amount to which the plaintiff is
entitled. Vide Writ Of Inquiry.
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INQUISITION, practice. An examination of certain facts by a
jury impannelled by the sheriff for the purpose; the instrument
of writing on which their decision is made is also called an
inquisition. The sheriff or coroner and the jury who make the
inquisition, are called the inquest.
2. An inquisition on an untimely death, if omitted by the
coroner, may be taken by justices of gaol delivery and oyer and
terminer. or of the peace, but it must be done publicly and
openly, otherwise it will be quashed. Inquisitions either of the
coroner, or of the other jurisdictions, are traversable. 1 Burr.
18, 19.
INQUISITOR. A designation of sheriffs, coroners, super visum
corporis, and the like, who have power to inquire into certain
matters.
2. The name, of an officer, among ecclesiastics, who is
authorized to inquire into heresies, and the like, and to punish
them. An ecclesiastical judge.
INROLLMENT. The act of putting upon a roll. Formerly, the
record of a suit was kept on skins of parchment, which, best to
preserve them, were kept upon a roll or in the form of a roll;
what was written upon them was called the inrollment. After, when
such records came to be kept in books, the making up of the
record retained the old name of inrollment.
INSANE. One deprived of the use of reason, after he has arrived
at the age when he ought to have it, either by a natural defect
or by accident. Domat, Lois Civ. Lib. prel. tit. 2, s. 1, n. ll.
INSANITY, med. jur. A continued impetuositv of thought, which,
for the time being, totally unfitsga man for judging and acting
in relation to the matter in question, with the composure
requisite for the maintenance of the social relations of life.
Various other definitions of this state have been given, but
perhaps the subject is not susceptible of any satisfactory
definition, which shall, with, precision, include all cases of
insanity, and exclude all others. Ray, Med. Jur. §24, p. 50.
2. It may be considered in a threefold point of view: 1. A
chronic disease, manifested by deviations from the healthy and
natural state of the mind, such deviations consisting in a morbid
perversion of the feelings, affections and habits. 2.
Disturbances of the intellectual faculties, under the influence
of which the understanding becomes susceptible of hallucinations
or erroneous. impressions of a particular kind. 3. A state of
mental incoherence or constant hurry and confusion of thought.
Cyclo. Practical Medicine, h. t.; Brewster's Encyclopaedia, h.
t.; Observations on the Deranged Manifestations of the Mind, or
Insanity, 71, 72; Merl. R‚pert. mots Demenoe, Folie, Imbecilite;
6 Watts & Serg. 451.
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3. The diseases included under the name of insanity have been
arranged under two divisions, founded on two very different
conditions of the brain. Ray, Med. Jur. ch. 1, §33.
4. - 1. The want of, or a defective development of the
faculties. 1st. Idiocy, resulting from, 1. Congenital defect. 2.
An obstacle to the development of the faculties, supervening in
infancy. 2d. Imbecility, resulting from, 1. Congenital defects.
2. An obstacle to the development of the faculties, supervening
in infancy.
5. - 2. The lesion of the faculties subsequent to their
development. In this division may be classed, 1st. Mania, which
is, 1. Intellectual, and is general or partial. 2. Affective and
is general or, partial. 2d. Dementia, which is, 1. Consecutive to
mania, or injuries of the brain. 2. Senile, or peculiar to old
age.
6. - There is also a disease which has acquired the name of
Moral insanity. (q. v.)
7. Insanity is an excuse for the commission of acts which in
others would be crimes, because the insane man has no intention;
it deprives a man also from entering into any valid contract.
Vide Lunacy; Non compos mentis, and Stock on the Law of Non
Compotes Mentis; 1 Hagg. Cons. R. 417; 3 Addams, R. 90, 91,
180, 181; 3 Hagg. Eccl. R. 545, 598, 600; 2 Greenl. Ev. §369,
374; Bouv. Inst. Index, h. t.
INSCRIPTION, civil law. An engagerment which a person, who
makes a solemn accusation of a crime against another, enters
into, that he will suffer the same punishment, if he has accused,
the other falsely, which would have been inflicted upon him had
he been guilty. Code, 9, 1, 10; Id. 9, 2, 16 and 17.
INSCRIPTION, evidence. Something written or engraved.
2. Inscriptions upon tombstones and other proper places, as
rings, and the like, are held to be evidence of pedigree. Bull.
N. P. 233 Cowp. 591; 10 East, R. 120 13 Ves. 145 Vin. Ab. Ev. T.
b. 87: 3 Stark. Ev. 116.
INSCRIPTIONES. The name given by the old English law to any
written instrument by which anything was granted. Blount.
INSENSIBLE. In the language of pleading, that which is
unintelligible is said to be insensible. Stepb. Pl. 378.
INSIDIATORES VIARUM. Persons who lie in wait, in order to commi
some felony or other misdemeanor.
INSMUL. Together; jointly. This word is used in composition;
as, insimulcomputassent; non tenent insimul.
INSIMUL COMPUTASSENT, practice, actions. They accounted
together.
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2. When an account has been stated, and a balance ascertained
between the parties, they are said to have computed together, and
the amouut due may be recovered in an action of assumpsit, which
could not have been done, if the defendant had been the mere
bailiff or partner of the plaintiff, and there had been no
settlement made; for in that case, the remedy would be an action
of account render, or a bill in chancery. It is usual in actions
of assumpsit, to add a count commonly called insimul
computassent, or an account stated. (q. v.) Lawes on Pl. in Ass.
488.
INSINUATION, civil law. The transcription of an act on the
public registers, like our recording of deeds. It was not
necessary in any other alienation, but that appropriated to the
purpose of donation. Inst. 2, 7, 2; Poth. Traite des Donations,
entre vifs, sect. 2, art. 3, §3; Encyclopedie; 8 Toull. n. 198.
INSOLVENCY. The state or condition of a person who is
insolvent. (q. v.) .
2. Insolvency may be simple or notorious. Simple insolvency is
the debtor's inability to pay his debts; and is attended by no
legal badge of notoriety, or promulgation. Notorious insolvency
is that which is designated by some public act, by which it
becomes notorious and irretrievable, as applying for the benefit
of the insolvent laws, and being discharged under the same.
3. Insolvency is a term of more extensive signification than
bankruptcy, and includes all kinds of inability to pay a just
debt. 2 Bell's Commentaries, 162, 6th ed.
INSOLVENT. This word has several meanings. It signifies a
person whose estate is not sufficient to pay his debts. Civ. Code
of Louisiana, art. 1980.. A person is also said to be insolvent,
who is under a present inability to answer, in the ordinary
course of business, the responsibility which his creditors may
enforce, by recourse to legal measures, without reference to his
estate proving sufficient to pay all his debts, when ultimately
wound up. 3 Dowl. & Ryl. Rep. 218; 1 M aule & Selw. 338; 1
Campb. it. 492, n.; Sugd. Vend. 487, 488. It signifies the
situation of a person who has done some notorious act to divest
himself of all his property, as a general assignment, or an
application for relief, under bankrupt or insolvent laws. 1
Peters' R. 195; 2 Wheat. R. 396; 7 Toull. n. 45; Domat, liv.
4, t. 5, n. 1 et 2; 2 Bell's Com. 162, 5th ed.
2. When an insolvent delivers or offers to deliver up all his
property for the benefit of his creditors, he is entitled to be
discharged under the laws of the, several states from all
liability to be arrested. Vide 2 Kent, Com. 321 Ingrah. on
Insolv. 9; 9 Mass. R. 431; 16 Mass. R. 53.
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3. The reader will find the provisions made by the national
legislature on this subject, by a reference to the following acts
of congress, namely: Act of March 3, 1797, 1 Story, L. U. S.
465; Act of March 2, 1799; 1 Story, L. S. 630; Act of March 2,
1831, 4 Sharsw. Cont. of Story, L. U. S. 2236; Act of June 7,
1834, 4 Sharsw. Cont. of Story, L. U. S. 2358; Act of March 2,
1837, 4 Sharsw. Cont. of Story, L. U. S. 2536. See Bankrupt.
INSPECTION, comm. law. The examination of certain articles made
by law subject to such examination, so that they may be declared
fit for commerce. The decision of the inspectors is not final;
the object' of the law is to protect the community from fraud,
and to preserve the character of the merchandise abroad. 8 Cowen,
R. 45. See 1 John. 205; 13 John. R. 331; 2 Caines, R. 312; 3
Caines, R. 207.
INSPECTION, practice. Examination. 2. The inspection of all
public records is free to all persons who have an interest in
them, upon payment of the usual fees. 7 Mod. 129; 1 Str. 304; 2
Str. 260, 954, 1005. But it seems a mere stranger who has no such
interest, has no right, at common law. 8 T. R. 390. Vide Trial by
insection.
INSPECTOR. The name given to certain officers whose duties are
to examine and inspect things over which they have jurisdiction;
as, inspector of bark , one who is by law authorized to examine
bark for exportation, and to approve or disapprove of its
quality. Inspectors of customs are officers appointed by the
general government: as to their duties, see Story's L. U. S.
vol. 1, 590, 605, 609, 610, 612, 619, 621, 623, 650; ii. 1490,
1516; iii. 1650, 1790.
INSPEXIMUS. We have seen. A word sometimes used in
letters-patent, reciting a grant, inspeximus such former grant,
and so reciting it verbatim; it then grants such further
privileges as are thought convenient. 5 Co. 54.
INSTALLATION or INSTALMENT. The act by which an officer is put
in public possession of the place he is to fill. The president of
the United States, or a governor, is installed into office, by
being sworn agreeably to the requisition of the constitution and
laws. Vide Inavguration.
INSTALMENT, contracts. A part of a debt due by contract, and
agreed to be paid at a time different from that fixed for the,
payment of the other part. For example, if I engage to pay you
one thousand dollars, in two payments, one on the first clay of
January, and the other on the first day of July, each of these
payments or obligations to pay will be an instalment .
2. In such case each instalment is a separate debt so far that
it may be tendered at any time, or the first may be sued for
although the other shall not be due. Dane's Ab. vol. iii. ch. 93,
art. 3, s. 11, page 493, 4; 1 Esp. R. 129; Id. 226; 3 Salk. 6,
18: Esp. R. 235; 1 Maule & Selw. 706.
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3. A debtor who by failing to pay three instalments of rent due
on a lease would forfeit his estate, may, in order to save it,
tender one instalment to prevent the forfeiture, although there
may be two due at the time, and he is not bound to tender both. 6
Toull. n. 688.
INSTANCE, civil and French law. It signifies, generally, all
sorts of actions and judicial demands. Dig. 44, 7, 58.
INSTANCE COURT, Eng. law. The English court of admiralty is
divided into two distinct tribunals; the one having, generally,
all the jurisdiction of the admiralty, except in prize cases, is
called the instance court; the other, acting under a special
commission, distinct from the usual commission given to judges of
the admiralty, to enable the judge in time of war to assume the
jurisdiction of prizes, and' called Prize court.
2. In the United States, the district courts of the U. S.
possess all the powers of courts of admiralty, whether considered
as instance or prize courts. 3 Dall. R. 6. Vide 1 Gall. R. 563;
Bro. Civ. & Adm. Law, ch. 4 & 5; 1 Kent, Com. 355, 378. Vide
Courts of the United States; Prize Court.
INSTANT. An indivisible space of time.
2. Although it cannot be actually divided, yet by intendmeent
of law, it may be applied to several purposes; for example, he
who lays violent hands upon himself, commits no felony till he is
dead, and when he is dead he is not in being so as to be termed a
felon; but he is so adjudged in law, eo instante, at the very
instant this fact is done. Vin. Ab. Instant, A, pl. 2; Plowd.
258; Co. Litt. 18; Show. 415.
INSTANTER. Immediately; presently. This term, it is said,
means that the act to which it applies, shall be done within
twenty-four hours but a doubt has been suggested by whom is the
account of the hours to be kept, and whether the term instanter
as applied to the subject-matter may not be more properly taken
to mean "before, the rising of the court," when the act is to be
done in court; or, "before the shutting of the office the same
night," when the act is to be done there. 1 Taunt. R. 343; 6
East, R. 587, n. e; Tidd's Pr. 3d ed. 508, n.; 3 Chit. Pr. 112.
Vide, 3 Burr. 1809; Co. Litt. 157; Styles' Register, 452.
INSTAR. Likeness; resemblance; equivalent as, instar dentium,
like teeth; instar omnium, equivalent to all.
INSTIGATION. The act by which one incites another to do
something, as to injure a third person, or to commit some crime
or misdemeanor, to coramence a suit or to prosecute a criminal.
Vide Accomplice.
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INSTITOR, civ. law. A clerk in a store an agent.
2. He was so called because he watched over the business with
which he was charged; and it is immaterial whether he was
employed in making a sale in a store, or whether charged with any
other business. Institor appellatus est ex eo, quod negotio
gerendo instet; nec multum facit tabernae sit praepositus, an
cuilibet alii negotiationi. Dig. lib. 14, tit. 3, l. 3. Mr., Bell
says, that the charge given to a clerk to manage a store or shop,
is called institorial power. 1 Bell's Com. 479, 6th ed.; Ersk.
Inst. B. 3, t. 3, §46; 1 Stair's Inst. by Brodie, B. 1, tit. 11,
§§12, 18, 19; Story on Ag. 8.
INSTITUTE, Scotch law. The person first called in the tailzie;
the rest, or the heirs of tailzie, are called substitutes. Ersk.
Pr. L. Scot. 3, 8, 8. See Tailzie, Heir of; Substitutes.
2. In the civil law, an inastitute is one who is appointed heir
by testament, and is required to give the estate devised to
another person, who is called the substitute.
TO INSTITUTE. To name or to make an heir by testament. Dig. 28,
5, 65. To make an accusation; to commence an action.
INSTITUTES. The principles or first elements of jurisprudence.
2. Many books have borne the title of Institutes. Among the
most celebrated in the common law, are the Institutes of Lord
Coke, which, however, on account of the want of arrangement and
the diffusion with which his books are written, bear but little
the character of Institutes; in the, civil law the most
generally known are those of Caius, Justinian, and Theophilus.
3. The Institutes of Caius are an abridgment of the Roman law,
composed by the celebrated lawyer Caius or Gaius, who lived
during th e reign of Marcus Aurelius.
4. The Institutes of Justinian, so called, because they are, as
it were, masters and instructors to the. ignorant, and show an
easy way to the obtaining of the knowledge of the law, are an
abridgment of the Code and of the Digest, composed by order of
that emperor: his intention in this composition was to give a
summary knowledge of the law to those persons not versed in it,
and particularly to merchants. The lawyers employed to make this
book, were Tribonian, Theophilus, and Dorotheus. The work was
first published in the year 533, and received the sanction of
statute law, by order of the emperor. The Institutes of Justinian
are divided into four books: each book is divided into two
titles, and each title into parts. The first part is called
principium, because it is the commencement of the title; those
which follow are numbered and called paragraphs. The work treats
of the rights of persons, of things, and of actions. The first
book treats of persons; the second, third, and the first five
titles of the fourth book, of things; and the remainder of the
fourth book, of actions. This work has been much admired on
account of its order and Scientific arrangement, which presents,
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at a single glance, the whole jurisprudence of the Romans. It is
too little known and studied. The late Judge Cooper, of
Pennsylvania, published an edition with valuable notes.
5. The Institutes of Theophilus are a paraphrase of those of
Justinian, composed in Greek, by a lawyer of that name, by order
of the emperor Phocas. Vide 1 Kent, Com. 538; Profession
d'Avocat tom. ii. n. 536, page 95; Introd. a l'Etude du Droit
Romain, p. 124; Dict. de Jurisp. h. t.; Merl. R‚pert. h. t.;
Encyclop‚die de d'Alembert, h. t.
INSTITUTION, eccl. law. The act by which the ordinary commits
the cure of souls to a person presented to a benefice.
INSTITUTION, political law. That which has been established and
settled by law for the public good; as, the American
institutions guaranty to the citizens all privileges and
immunities essential to freedom.
INSTITUTION, practice. The commencement of an action; as, A B
has instituted a suit against C D, to recover damages for a
trespass.
INSTITUTION OF HEIR, civil law. The act by which a testator
nominates one or more persons to succeed him in all his rights,
active and passive. Poth. Tr. des Donations Testamentaires, c. 2,
s. 1, §1; Civ. Code of Lo. art. 1598; Dig. lib. 28, tit. 5, l.
1; and lib. 28, tit. 6, l. 2, §4.
INSTRUCTION, French law. This word signifies the meaus used and
formality employed to prepare a case for trial. it is generally
applied to criminal cases, and is then called criminal,
instruction; it is then defined the acts and proceedings which
tend to prove positively a crime or delict, in order to inflict
on the guilty person the punishment which he deserves.
INSTRUCTIONS, com. law, Contracts. Orders given by a principal
to his agent in relation to the business of his agency.
2. The agent is bound to obey the instructions he has received
and when he neglects so to do, he is responsible for the
consequences, unless he is justified by matter of necessity. 4
Binn. R. 361; 1 Liverm. Agency, 368.
3. Instructions differ materially from authority, as regards
third persons. When a written authority is known to exist, or, by
the nature of the transaction, it is presupposed, it is the duty
of persons dealing with an agent to ascertain the nature and
extent of his authority; but they are not required to make
inquiry of the agent as to any private instructions from his
principal, for the obvious reason that they may be presumed to be
secret and of a confidential nature, and therefore not to be
communicated to third persons. 5 Bing. R. 442.
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4. Instructions are given as applicable to the usual course of
things, and are subject to two qualifications which are
naturally, and perhaps necessarily implied in every mercantile
agency. 1. As instructions are applicable only to the ordinary
course of affairs, the agent will be justified, in cases of
extreme necessity and unforeseen emergency, in deviating from
them; as, for example, when goods on hand are perishable and
perishing, or when they are accidentally injured and must be sold
to prevent further loss; or if they are in imminent danger of
being lost by the capture of the port where they are, they may be
transferred to another port. Story on Ag. §85, 118, 193; 3 Chit.
Com. Law, 218; 4 Binn. 361; 1 Liverm. on Ag. 368. 2.
Instructions must be lawful; if they are given to perform an
unlawful act, the agent is not bound by them. 4 Campb. 183;
Story on Ag. §195. But the lawfulness of such instruction does
not relate to the laws of foreign countries. Story, Confl. of
Laws, §245; 1 Liverm. on Ag. 15-19. As to the construction of
letters of instruction, see 3 Wash. C. C. R. 151; 4 Wash. C. C.
R. 551; 1 Liv. on Ag. 403; Story on Ag. §74; 2 Wash. C. C. R.
132; 2 Crompt. & J. 244; 1 Knapp,, R. 381.
INSTRUCTIONS, practice. The statements of a cause of action,
given by a client to his attorney, and which, where such is the
practice, are sent to his pleader to put into legal form of a
declaration. Warr. Stud. 284.
2. Instructions to counsel are their indemnity for any
aspersions they may make on the opposite party; but attorneys
who have a just regard to their own reputation will be cautious,
even under instructions, not to make any unnecessary attack upon
a party or witness. For such unjustifiable conduct the counsel
will be held responsible. Eunom. Dial. 2, §43, p. 132. For a form
of instructions, see 3 Chit. Pr. 117, and 120 n.
INSTRUMENT, contracts. The writing which contains some
agreement, and is so called because it has been prepared as a
memorial of what has taken place or been agreed upon. The
agreement and the instrument in which it is contained are very
different things, the latter being only evidence of the existence
of the former. The instrument or form of the contract may be
valid, but the contract itself may be void on account of fraud.
Vide Ayl. Parerg. 305; Dunl. Ad. Pr. 220.
INSTRUMENTA. This word is properly applied to designate that
kind of evidence, which consists of writings not under seal, as
court rolls, accounts, and the like. 3 Tho. Co. Litt. 487.
INSULA, Latin. An island. In the Roman law the word is applied
to a house not connected with other houses, but separated by a
surrounding space of ground. Calvini Lex; Vicat, Vocab. ad voc.
INSUFFICIENCY. What is not competent; not enough.
INSUPER, Eng. law. The balance due by an accountant in the
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exchequer, as apparent by his account. The auditors in settling
his account say there remains so much insuper to such accountant.
INSURABLE INTEREST. That right of property which may be the
subject of an insurance.
2. The policy of commerce, and the various complicated rights
which different persons may have in the same thing, require that
not only those who have an absolute property in ships or goods,
but those also who, have a qualified property in them, may be at
liberty to insure them. For example, when a ship is mortgaged,
and the mortgage has become absolute, the owner of the legal
estate has an insurable interest, and the mortgagor, on account
of his equity, has also an insurable interest. 1 Burr. 489. See
20 Pick. 259; 1 Pet. 163.
INSURANCE, contracts. It is defined to be a contract of
indemnity from loss or damage arising upon an uncertain event. 1
Marsh. Ins. 104. It is more fully defined to be a contract by
which one of the parties, called the insurer, binds himself to
the other, called the insured, to pay him a sum of money, or
otherwise indemnify him in case of the happening of a fortuitous
event, provided for in a general or special manner in the
contract, in consideration of a premium which the latter pays, or
binds himself to pay him. Pardess. part 3, t. 8, n. 588; 1 Bouv.
Inst. n. 1174.
2. The instrument by which the contract is made is denominated
a policy; the events or causes to be insured against, risks or
perils; and the thing insured, the subject or insurable
interest.
3. Marine insurance relates to property and risks at sea;
insurance of property on shore against fire, is called fire
insurance; and the various contracts in such cases, are fire
policies. Insurance of the lives of individuals are called
insurances on lives. Vide Double Insurance; Re-Insurance.
INSURANCE AGAINST FIRE. A contract by which the insurer, in
consequence of a certain premium received by him, either in a
gross sum or by annual *payments, undertakes to indemnify the
insured against all loss or damage which he may sustain to a
certain amount, in his house or other buildings, stock, goods, or
merchandise, mentioned in the policy, by fire, during the time
agreed upon. 2 Marsh. Ins. B. 4, p. 784; 1 Stuart's L. C. R.
174; Park. Ins. c. 23, p., 441.
2. The risks and losses insured against, are "all losses or
damage by fire," during the time of the policy, to the houses or
things insured.
3. - 1. There must be an actual fire or ignition to entitle the
insured to recover; it is not sufficient that there has been a
great and injurious increase of heat, while nothing has taken
fire, which ought not to be on fire. 4 Campb. R. 360.
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4. - 2. The loss must be within the policy, that is, within the
time insured. 5 T. R. 695; 1 Bos. & P. 470; 6 East, R. 571.
5. - 3. The insurers are liable not only for loss by burning,
but for all damages and injuries, and reasonable charges
attending the removal of articles though never touched by the
fire. 1 Bell's Com. 626, 7, 5th ed.
6. Generally there is an exception in the policy, as to fire
occasioned "by invasion, foreign enemy, or any military, or
usurped power whatsoever," and in some there is a further
exception of riot, tumult, or civil commotion. For the
Construction of these provisoes, see the articles Civil Commotion
and Usurped Power.
INSURANCE, MARINE, contracts. Marine insurance is a contract
whereby one party, for a stipulated premium, undertakes to
indemnify the other against certain perils or sea risks, to which
his ship, freight, or cargo, or some of them may be exposed,
during a certain voyage, or a fixed period of time. 3 Kent, Com.
203; Boulay-Paty, Dr. Commercial, t. 10.
2. This contract is usually reduced to writing; the instrument
is called a policy of insurance. (q. v.)
3. All persons, whether natives, citizens, or aliens, may be
insured, with the exception of alien enemies.
4. The insurance may be of goods on a certain ship, or without
naming any, as upon goods on board any ship or ships. The subject
insured must be an insurable legal interest.
5. The contract requires the most perfect good faith; if the
insured make false representations to the insurer, in order to
procure his insurance upon better terms, it will avoid the
contract, though the loss arose from a cause unconnected with the
misrepresentation, or the concealment happened through mistake,
neglect, or accident, without any fraudulent intention. Vide
Kent, Com. Lecture, 48; Marsh. Ins. c. 4; Pardessus, Dr. Com.
part 4, t. 5, n. 756, et seq.; Boulay-Paty, Dr. Com. t. 10.
INSURANCE ON LIVES, contracts. The insurance of a life is a
contract whereby the insurer, in consideration of a certain
premium, either in a gross sum or periodical payments, undertakes
to pay the person for whose benefit the insurance is made, a
stipulated sum, or an annuity equivalent thereto, upon the death
of the person whose life is insured, whenever this shall happen,
if the insurance be for the whole life, or in case this shall
happen within a certain period if the insurance be for a limited
time. 2 Marsh. Ins. 766; Park on Insurance, 429.
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2. The insured is required to make a representation or
declaration, previous to the policy being issued, of the age and
state of health of the person whose life is insured and the party
making it is bound to the truth of it. Park, Ins. 650; Marsh.
Ins. 771; 4 Taunt. R. 763.
3. In almost every life policy there are several exceptions,
some of them applicable to all cases, others to the case of
insurance of one's life. The exceptions are, 1. Death abroad, or
at sea. 2. Entering into the naval or military service without
the previous consent of the insurers. 3. Death by suicide. 4.
Death by duelling. 5. Death by the hand of justice. The last
three are not understood to be excepted when the insurance is on
another's life. 1 Bell's Com. 631, 5th ed. See 1 Beck's Med. Jur.
518.
INSURED, contracts. The person who procures an insurance on his
property.
2. It is the duty of the insured to pay the premium, and to
represent fully and fairly all the circumstances relating to the
subject-matter of the insurance, which may influence the
determination of the underwriters in undertaking the risk, or
estimating the premium. A concealment of such facts amounts to a
fraud, which avoids the contract. 1 Marsh. Ins. 464; Park, Ins.
h. t.
INSURER, contracts. One who has obliged himself to insure the
safety of another's property, in consideration of a premium paid,
or secured to be paid, to hi.m. It is his duty to pay any loss
which has arisen on the property insured. Vide Marsh. Ins.
Index,.h. t.; Park. Ins. Index, h. t. Phill. Ins. h. t.; Wesk.
Ins. h. t.; Pardess. Index, art. Assureur.
INSURGENT. One who is concerned in an insurrection. He differs
from a rebel in this, that rebel is always understood in a bad
sense, or one who unjustly opposes the constituted authorities;
insurgent may be one who justly opposes the tyranny of
constituted authorities. The colonists who opposed the tyranny of
the English government were insurgents, not rebels.
INSURRECTION. A rebellion of citizens or subjects of a country
against its government.
2. The Constitution of the United States, art. 1, s. 8. gives
power to congress " to provide for calling forth the militia to
execute the laws of the Union, suppress insurrections, and repel
invasions."
3. By the act of Congress of the 28th of February, 1795, 1
Story's L. U. S. 389, it is provided: §1. That whenever the
United States shall be invaded, or be in imminent danger of
invasion, from any foreign nation or Indian tribe, it shall be
lawful for the president of the United States to call forth such
number, of the militia of the state, or states, most convenient
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to the place of danger, or scene of action, as he may judge
necessary to repel such invasion, and to issue his orders, for
that purpose, to such officer or officers of the militia as be
shall think proper. And in case of an insurrection in any state,
against the government thereof, it shall be lawful for the
president of the United States, on application of the legislature
of such state, or of the executive, (when the legislature cannot
be convened,) to call forth such number of the militia of any
other state or states, as may be applied for, as he may judge
sufficient to suppress such insurrection.
4. - §2 That, whenever the laws of the United States shall be
opposed, or the execution thereof obstructed, in any state, by
combinations too powerful to be suppressed by the ordinary course
of judicial proceedings, or by the powers vested in the marshals
by this act, it shall be lawful for the president of the United
States to call forth the militia of such state, or of any other
state or states, as may be necessary to suppress such
combinations, and to cause the laws to be duly executed; and the
use of militia so to be called forth may be continued, if
necessary, until the expiration of thirty days after the
commencement of the then next session of congress.
5. - 3. That whenever it may be necessary, in the judgment of
the president, to use the military force hereby directed to be
called forth, the president shall forthwith, by proclamation,
command such insurgents to disperse, and retire peaceably to
their respective abodes, within a limited time.
INTAKERS, Eng. law. The time given to receivers of goods stolen
in Scotland, who take them to England. 9 H. V. c. 27.
INTEGER. Whole, untouched. Res integra means a question which
is new and undecided. 2 Kent, Com. 177.
INTENDED TO BE RECORDED. This phrase is frequently used in
conveyancing, in deeds which recite other deeds which have not
been recorded. In Pennsylvania, it has been construed to be a
covenant, on the part of the grantor, to procure the deed to be
recorded in a reasonable time. 2 Rawle's Rep. 14.
INTENDANT. One who has the charge, management, or direction of
some office, department, or public business.
INTENDMENT OF LAW. The true meaning, the correct understanding,
or intention of the law; a presumption or inference made by the
courts. Co. Litt. 78. 2. It is an intendment of law that every
man is innocent until proved guilty, vide Innocence; that every
one will act for his own advantage, vide Assent; Fin. Law, 10,
Max. 54; that every officer acts in his office with fidelity
that the children of a married woman, born during the coverture,
are the children of the hushand, vide Bastardy; many things are
intended after verdict, in order to support a judgment, but
intendment cannot supply the want of certainty in a charge in an
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indictment for a crime. 5 Co. 1 21; vide Com. Dig. Pleader, C
25, and S 31; Dane's Ab. Index, h. t.; 14 Vin. Ab. 449; 1
Halst. 132; 1 Harris. 133.
INTENTION. A design, resolve, or determination of the mind.
2. Intention is required in the commission of crimes and
injuries, in making contracts, and wills.
3. - 1. Every crime must have necessarily two constituent
parts, namely, an act forbidden by law, and an intention. The act
is innocent or guilty just as there was or was not an intention
to commit a crime; for example, a man embarks on board of a
ship, at New York, for the purpose of going to New Orleans; if
he went with an intention to perform a lawfull act, he is
perfectly innocent; but if his intention was to levy war against
the United States, he is guilty of an overt act of treason. Cro.
Car. 332; Fost. 202, 203; Hale, P. C. 116. The same rule
prevails in numerous civil cases; in actions founded on
malicious injuries, for instance, it is necessary to prove that
the act was accompanied, by a wrongful and malicious intention. 2
Stark. Ev. 739. 4. The intention is to be proved, or it is
inferred by the law. The existence of the intention is usually
matter of inference; and proof of external and visible acts and
conduct serves to indicate, more or less forcibly, the particular
intention. But, in some cases, the inference of intention
necessarily arises from the facts. Exteriora acta indicant
interiora animi secreta. 8 Co. 146. It is a universal rule, that
a man shall be taken to intend that which he does, or which is
the necessary and immediate consequence of his act; 3 M. & S.
15; Hale, P. C. 229; in cases of homicide, therefore, malice
will generally be inferred by the law. Vide Malice' and Jacob's
Intr. to the Civ. Law, Reg. 70; Dig. 24, 18.
5. But a bare intention to commit a crime, without any overt
act towards its commission, although punishable in foro,
conscientiae, is not a crime or offence for which the party can
be indicted; as, for example, an intention to pass counterfeit
bank notes, knowing them to be counterfeit. 1 Car. Law Rep. 517.
6. - 2. In order to make a contract, there must, be an
intention to make it a person non compos mentis, who has no
contracting mind, cannot, therefore, enter into any engagement
which requires an intention; for to make a contract the law
requires a fair, and serious exercise of the reasoning faculty.
Vide Gift; Occupancy.
7. - 3. In wills and testaments, the intention of the testator
must be gathered from the whole instrument; 3 Ves. 105; and a
codicil ought to be taken as a part of the will; 4 Ves. 610;
and when such intention is ascertained, it must prevail, unless
it be in opposition to some unbending rule of law. 6 Cruise's
Dig. 295; Rand. on Perp. 121; Cro. Jac. 415. " It is written,"
says Swinb. p. 10, " that the will or meaning of the testator is
the queen or empress of the testament; because the will doth
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rule the testament, enlarge and restrain it, and in every respect
moderate and direct the same, and is, indeed, the very efficient
cause. thereof. The will, therefore, and meaning of the testator
ought, before all things, to be sought for diligently, and, being
found, ought to be observed faithfully." 6 Pet. R. 68. Vide,
generally, Bl. Com. Index, h. t.; 2 Stark. Ev. h. t.; A 1.
Pand. 95; Dane's Ab. Index h. t.; Rob. Fr. Conv. 30. As to
intention in changing a residence, see article Inhabitant.
INTER. Between, among; as, inter vivos, between living
persons; inter alia, among others.
INTER ALIA. Among other things; as, "the said premises, which
inter alia, Titius granted to Caius."
INTER ALIOS. Between other parties, who are strangers to the
proceeding in question.
INTERCOMMONING, Eng. law. Where the commons of two manors lie
together, and the inhabitants, or those having a right of common
of both, have time out of mind depastured their cattle, without
any distinction, this is called intercommoning.
INTER CANEM ET LUPUM. Literally, between the dog and the wolf.
Metaphorically, the twilight; because then the dog seeks his
rest, and the wolf his prey. 3 Inst. 63.
INTER PARTES. This, in a technical sense, signifies an
agreement professing in the outset, and before any stipulations
are introduced, to be made between such and such persons as, for
example, " This Indenture, made the _____ day of _____ 1848,
between A B of the one part, and C D of the other." It is true
that every contract is in one sense inter partes, because to be
valid there must be two parties at least; but the technical
sense of this expression is as above mentioned. Addis. on Contr.
9.
2. This being a solemn declaration, the effect of such
introduction. is to make all the covenants, comprised in a deed
to be covenants between the parties and none others; so that
should a stipulation be found in the body of a deed by which "the
said A B covenants with E F to pay him one hundred dollars," the
words "with E F" are inoperative, unless they have been used to
denote for whose benefit the stipulation may have been made,
being in direct contradiction with what was previously declared,
and C D alone can sue for the non-payment; it being a maxim that
where two opposite intentions are expressed in a contract, the
first in order shall prevail. 8 Mod. 116; 1 Show. 58; 3 Lev.
138; Carth. 76; Roll. R. 196; 7 M. & IV. 63; But this rule
does not 'apply to simple contracts inter partes. 2 D . & R. 277;
3 D. & R. 273 Addis. on Contr. 244, 256.
3. When there are more than two sides to a contract inter
partes, for example, a deed; as when it is made between A B, of
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the first part; C D, of the second; and E F, of the third,
there is no objection to one covenanting with another in
exclusion of the third. See 5 Co. 182; 8 Taunt. 245; 4 Ad. &
Ell. N. S. 207; Addis. on Contr. 267.
INTER SE INTER SESE. Among themselves. Story on Part §405.
INTER VIVOS. Between living persons; as, a gift inter vivos,
which is a gift made by one living person to another; see Gifts
inter vivos. It is a rule that a fee cannot pass by grant or
transfer, inter vivos, without appropriate words of inheritance.
2 Prest. on Est. 64.
INTERCOURSE. Communication; commerce; connexion by reciprocal
dealings between persons or nations, as by interchange of
commodities, treaties, contracts, or letters.
INTERCHANGEABLY. Formerly when deeds of land were made, where
there Were covenants to be performed on both sides, it was usual
to make two deeds exactly similar to each other, and to exchange
them; in the attesting clause, the words, In witness whereof the
parties have hereunto interchangeably set their hands," &c., were
constantly inserted, and the practice has continued, although the
deed is, in most cases, signed by the grantor only. 7 Penn. St.
Rep. 320.
INTERDICT, civil Among the Romans it was an ordinance of the
praetor, which forbade or enjoined the parties in a suit to do
something particularly specified, until it should be decided
definitely who had the right in relation to it. Like an
injunction, the interdict was merely personal in its effects and
it had also another similarity to it, by being temporary or
perpetual. Dig. 43, 1, 1, 3, and 4. See Story, E Jur. 865;
Halif. Civ. Law, ch. 6 Vicat, Vocab. h. v.; Hein. Elem. Pand.
Ps. 6, §285. Vide Injunction.
INTERDICT, OR INTERDICTION, eccles. law. An ecclesiastical
censure, by which divine services are prohibited either to
particular persons or particular places. These tyrannical edicts,
issued by ecclesiastical powers, have never been in force in the
United States.
INTTERDICTED OF FIRE AND WATER. Formerly those persons who were
banished for some crime, were interdicted of fire and water;
that is, by the judgment order was given that no man should
receive them into his house, but should deny them fire and water,
the two necessary elements of life.
INTERDICTION, civil law. A legal restraint upon a person
incapable of managing his estate, because of mental incapacity,
from signing any deed or doing any act to his own prejudice,
without the consent of his curator or interdictor.
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2. Interdictions are of two kinds, voluntary or judicial. The
first is usually executed in the form of an obligation by which
the obligor binds himself to do no act which may affect his
estate without the consent of certain friends or other persons
therein mentioned. The latter, or judicial interdiction, is
imposed by a sentence of a competent tribunal, which disqualifies
the party on account of imbecility, madness, or prodigality, and
deprives the person interdicted of the right to manage his
affairs and receive the rents and profits of his estate.
3. The Civil Code of Louisiana makes the following provisions
on this subject: Art. 382. No person above the age of majority,
who is subject to an habitual state of madness or insanity, shall
be allowed to take charge of his own person or to administer his
estate, although such person shall, at times, appear to have the
possession of his reason.
4. - 383. Every relation has a right to petition for the
interdiction of a relation; and so has every hushand a right to
petition for the interdiction of his wife, and every wife of her
hushand.
5.- 384. If the insane person has no relations and is not
married, or if his relations or consort do not act, the
interdiction may be solicited by any stranger, or pronounced ex
officio by the judge, after having heard the counsel of the
person whose interdiction is prayed for, whom it shall be the,
duty of the judge to name, if one be not already named, by the
party.
385. Every interdiction shall be pronounced by the judge of the
parish of the domicil or residence of the person to be
interdicted.
386. The acts of madness, insanity or fury, must be proved to
the satisfaction of the judge, that he may be enabled to
pronounce the interdiction, and this proof may be established, as
well by written as by parol evidence and the judge may moreover
interrogate or cause to be interrogated by any other person
commissioned by him for that purpose, the person whose
interdiction is petitioned for, or cause such person to be
examined by pbysicians, or other skilful persons, in order to
obtain their report upon oath on the real situation of him who is
stated to be of unsound mind.
387. Pending the issue of the petition for interdiction the
judge may, if he deems it proper, appoint for the preservation of
the movable, and for the administration of the immovable estate
of the defendant, an administrator pro tempore.
388. Every judgment, by which an interdiction is renounced,
shall be provisionally executed, notwithstanding the appeal.
389. In case of appeal, the appellate court may, if they deem
it necessary, proceed to the hearing of new proofs, and question
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or cause to be questioned, as above provided, the person whose
interdiction is petitioned for, in order to ascertain the state
of his mind.
390. On every petition for interdiction, the cost shall be paid
out of the estate of the defendant, if he shall be interdicted,
and by the petitioner, if the interdiction prayed for shall not
be pronounced.
391. Every sentence of interdiction shall be published three
times, in at least two of the newspapers printed in New Orleans,
or made known by advertisements at the door of the court-house of
the parish of the domicil of the person interdicted, both in the
French and English languages; and this duty is imposed upon him
who shall be appointed curator of the person interdicted, and
shall be performed within a month after the date of the
interdiction, under the penalty of being answerable for all
damages to such persons as may, through ignorance, have
contracted with the person interdicted.
392. No petition for interdiction, if the same shall have once
been rejected, shall be acted upon again, unless new facts,
happening posterior to the sentence, shall be alleged.
393. The interdiction takes place from the day of presenting
the petition for the same.
394. All acts done by the person interdicted, from the date of
the filing the petition for interdiction until the day when the
same is pronounced, are null.
395. No act anterior to the petition for the interdiction,
shall be annulled except where it shall be proved that the cause
of such interdiction notoriously existed at the time when the
deeds, the validity of which is contested, were made, or that the
party who contracted with the lunatic or insane person, could not
have been deceived as to the situation of his mind. Notoriously,
in this article, meaus that the insanity was generally known by
the persons who saw and conversed with the party.
396. After the death of a person, the validity of acts done by
him cannot be contested for cause of insanity, unless his
interdiction was pronounced or petitioned for, previous to the
death of such person, except in cases in which mental alienation
manifested itself within ten days previous to the decease, or in
which the proof of the want of reason results from the act itself
which is contested.
397. Within a month, to reckon from the date of the judgment of
interdiction, if there has been no appeal from the same, or if
there has been an appeal, then within a month from the
confirmative sentence, it shall be the duty of the judge of the
palish of the doimcil or residence of the person interdicted, to
appoint a curator to his person and estate.
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398. This appointment is made according to the same forms as
the appointment to the tutorship of minors. After the appointment
of the curator to the person interdicted, the duties of the
administrator, pro tempore, if he shall not have been appointed
curator, are at an end and he shall give an account of his
administration to the curator.
399. The married woman, who is interdicted, is of course under
the curatorship of her hushand. Nevertheless, it is the duty of
the hushand, in such case, to cause to be appointed by the judge,
a curator ad litem; who may appear for the wife in every case
when she may have an interest in opposition to the interest of
her hushand, or one of a nature to be pursued or defended jointly
with his.
400. The wife may be appointed curatrix to her hushand, if she
has, in other respects, the necessary qualifications. She is not
bound to give security.
401. No one, except the hushand, with respect to his wife, or
wife with respect to her hushand, the relations in the ascending
line with respect to the relations in the descending line, and
vice versa, the relations in the descending line with respect to
the relations in the ascending line, can be compelled to act as
curator to a person interdicted more than ten years, after which
time the curator may petition for his discharge.
402. The person interdicted is, in every respect, like the
minor who has not arrived at the age of puberty, both as it
respects his person and estate; and the rules respecting the
guardianship of the minor, concerning the oath, the inventory and
the security, the mode of administering the sale of the estate,
the commission on the revenues, the excuses, the exclusion or
deprivation of the guardianship, mode of rendering the accounts,
and the other obligations, apply with respect to the person
interdicted.
403. When any of the children of the person interdicted is to
be married, the dowry or advance of money to be drawn from his
estate is to be regulated by the judge, with the advice of a
family meeting.
404. According to the symptons of the disease, under which the
person interdicted labors, and according to the amount of his
estate, the judge may order that the interdicted person he
attended in his own house, or that he be placed in a
bettering-house, or indeed, if he be so deranged as to be
dangerous, he may order him to be confined in safe custody.
405. The income of the person interdicted shall be employed in
mitigating his sufferings, and in accelerating his cure, under
the penalty against the curator of being removed in case of
neglect.
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406. He who petitions for the interdiction of any person, and
fails in obtaining such interdiction, may be prosecuted for and
sentenced to pay damages, if he shall have acted from motives of
interest or passion.
407. Interdiction ends with the cause which gave rise to it.
Nevertheless, the person interdicted cannot resume the exercise
of his rights, until after the definite judgment by which a
repeal of the interdiction is pronounced.
408. Interdiction can only be revoked by the same solemnities
which were observed in pronouncing it.
6. - 409. Not only lunatics and idiots are liable to be
interdicted, but likewise all persons who, owing to certain
infirmities, are incapable of taking care of their persons and
administering their estates.
7. Such persons shall be placed under the care of a curator,
who shall be appointed and shall administer in conformity with
the rules contained in the present chapter.
8. - 410. The person interdicted cannot be taken out of the
state without a judicial order, given on the recommendation of a
a family meeting, and on the opinion delivered under oath of at
least two physicians, that they believe the departure necessary
to the health of the person interdicted .
9. - 411. There shall be appointed by the judge a
superintendent to the person interdicted whose duty it shall be
to inform the judge, at least once in three months, of the state
of the health of the person interdicted, and of the manner in
which he is treated.
10. To this end, the superintendent shall have free access to
the person interdicted, whenever he wishes to see him.
11. - 412. It is the duty of the judge to visit the person
interdicted, whenever, from the information he receives, he shall
deem it expedient.
12. This visit shall be made at times when the curator is not
present.
13. - 413. Interdiction is not allowed on account of profligacy
or prodigality. Vide Ray's Med. Jur. chap. 25; 1 Hagg. Eccl.
Rep. 401; Committee; Habitual Drunkard.
INTERESSE TERMINI, estates. An interest in the term. The demise
of a term in land does not vest any estate in the lessee, but
gives him a mere right of entry on the land, which right is
called his interest in the term, or interesse termini. Vide Co.
Litt. 46; 2 Bl. Com. 144; 10 Vin. Ab. 348; Dane's Ab. Index,
h. t.; Watk. Prin. Com. 15.
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INTEREST, estates. The right which a man has in a chattel real,
and more particularly in a future term. It is a word of less
efficacy and extent than estates, though, in legal understanding,
an interest extends to estates, rights and titles which a man has
in or out of lands, so that by a grant of his whole interest in
land, a reversion as well as the fee simple shall pass. Co. Litt.
345.
INTEREST, contracts. The right of property which a man has in a
thing, commonly called insurable interest. It is not easy to give
all accurate definition of insurable interest. 1 Burr. 480; 1
Pet. R. 163; 12 Wend. 507 16 Wend. 385; 16 Pick. 397; 13 Mass.
61, 96; 3 Day, 108; 1 Wash. C. C. Rep. 409.
2. The policy of commerce and the various complicated. rights
which different persons may have in the same thing, require that
not only those who have an absolute property in ships and goods,
but those also who have a qualified property therein, may be at
liberty to insure them. For example, when a ship is mortgaged,
after, the mortgage becomes absolute, the owner of the legal
estate has an insurable interest, and the mortgagor, on account
of his equity, has also an insurable interest. 2 T. R. 188 1
Burr. 489; 13 Mass. 96; 10 Pick. 40 and see 1 T. R. 745;
Marsh. Ins. h. t.; 6 Meeson & Welshy, 224.
3. A man may not only insure his own life for the benefit of
his heirs or creditors, and assign the benefit of this insurance
to others having thus or otherwise an interest in his life, but
be may insure the life of another in which he may be interested.
Marsh. Ins. Index, h. t.; Park, Ins. Index, h. t.; 1 Bell's
Com. 629, 5th ed.; 9 East, R. 72. Vide Insurance.
INTEREST, evidence. The benefit which a person has in the
matter about to be decided and which is in issue between the
parties. By the term benefit is here understood some pecuniary or
other advantage, which if obtained, would increase the, witness
estate, or some loss, which would decrease it.
2. It is a general rule that a party who has an interest in the
cause cannot be a witness. It will be proper to consider this
matter by taking a brief view of the thing or subject in dispute,
which is the object of the interest; the quantity of interest;
the quality of interest; when an interested witness can be
examined; when the interest must exist; how an interested
witness can be rendered competent.
3. - 1. To be disqualified on the ground of interest, the
witness must gain or lose by the event of the cause, or the
verdict must be lawful evidence for or against him in another
suit, or the record must be an instrument of evidence for or
against him. 3 John. Cas. 83; 1 Phil. Ev. 36; Stark. Ev. pt. 4,
p. 744. But an interest in the question does not disqualify the
witness. 1 Caines, 171; 4 John. 302; 5 John. 255; 1 Serg. & R.
82, 36; 6 Binn. 266; 1 H. & M. 165, 168.
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4. - 2. The magnitude of the interest is altogether immaterial,
even a liability for the most trifling costs will be sufficient.
5 T. R. 174; 2 Vern. 317; 2 Greenl. 194; 11 John. 57.
5. - 3. With regard to the quality, the interest must be legal,
as contradistinguished from mere prejudice or bias, arising from
relationship, friendship, or any of the numerous motives by which
a witness may be supposed to be influenced. Leach, 154; 2 St.
Tr. 334, 891; 2 Hawk. ch. 46, s. 25. It must be a present,
certain, vested interest, and not uncertain and contingent.
Dougl. 134; 2 P. Wms. 287; 3 S. & R. 132; 4 Binn. 83; 2
Yeates, 200; 5 John. 256; 7 Mass. 25. And it must have been
acquired without fraud. 3 Camp. 380; l M. & S. 9; 1 T. R. 37.
6. - 4. To the general rule that interest renders a witness
incompetent, there are some exceptions. First. Although the
witness may have an interest, yet if his interest is equally
strong on the other side, and no more, the witness is reduced to
a state of neutrality by an equipoise of interest, and the
objection to his testimony ceases. 7 T. R. 480, 481, n.; 1 Bibb,
R. 298; 2 Mass. R. 108; 2 S. & R. 119; 6 Penn. St. Rep. 322.
7. Secondly. In some instances the law admits the testimony of
one interested, from the extreme necessity of the case; upon
this ground the servant of a tradesman is admitted to prove the
delivery of goods and the payment of money, without any release
from the master. 4 T. R. 490; 2 Litt. R. 27.
8. - 5. The interest, to render the witness disqualified, must
exist at the time of his examination. A deposition made at a time
when the witness had no interest, may be read in evidence,
although he has afterwards acquired an interest. 1 Hoff. R. 21.
9. - 6. The objection to incompetency on the ground of interest
may be removed by an extinguishment of that interest by means of
a release, executed either by the witness, when he would receive
an advantage by his testimony, or by those who have a claim upon
him when his testimony would be evidence of his liability. The
objection may also be removed by payment. Stark. Ev. pt. 4, p.
757. See Benth. Rationale of Jud. Ev. 628-692, where he combats
the established doctrines of the law, as to the exclusion on the
ground of interest; and Balance.
INTEREST FOR MONEY, contracts. The compensation which is paid
by the borrower to the lender or the debtor to the creditor for
its use.
2. It is proposed to consider, 1. Who is bound to pay interest.
2. Who is entitled to receive it. 3. On what claim it is allowed.
4. What interest is allowed. 5. How it is computed. 6. When it
will be barred. 7. Rate of interest in the different states.
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3. §1. Who is bound to pay interest 1. The contractor himself,
who has agreed, either expressly or by implication, to pay
interest, is of course bound to do so.
4. - 2. Executors, administrators, assignees of bankrupts or of
insolvents, and trustees, who have kept money an unreasonable
length of time, and have made or who might have made it
productive, are chargeable with interest. 2 Ves. 85; 1 Bro. C.
C. 359; Id. 375; 2 Ch. Co. 235; Chan. Rep. 389; 1 Vern. 197;
2 Vern. 548; 3 Bro. C. C. 73; Id. 433; 4 Ves. 620; 1 Johns.
Ch. R. 508; Id. 527, 535, 6; Id. 620; 1 Desaus. Ch. R. 193, n;
Id. 208; 1 Wash. 2; 1 Binn. R. 194; 3 Munf. 198, Pl. 3: Id.
289, pl. 16; 1 Serg. & Rawle, 241, 4 Desaus. Ch. Rep. 463; 5
Munf. 223, pl. 7, 8; 1 Ves. jr. 236; Id. 452; Id. 89; 1 Atk.
90; see 1 Supp. to Ves. jr. 30; 11 Ves. 61; 15 Ves. 470; 1
Ball & Beat. 230; 1 Supp. to Ves. jr. 127, n. 3; 1 Jac. & Wall.
140; 3 Meriv. 43; 2 Bro. C.C. 156: 5 Ves. 839; 7 Ves. 152; 1
Jac. & Walk. 122; 1 Pick. 530; 13 Mass. R. 232; 3 Call, 538;
4 Hen. & Munf. 415; 2 Esp. N. P. C. 702; 2 Atk. 106; 2 Dall.
182; 4 Serg. & Rawle, 116; 1 Dall. 349; 3 Binn. 121. As to the
distinction between executors and trustees, see Mr. Coxes note to
Fellows v. Mitchell, 1 P. Wms. 241; 1 Eden, 857, and the cases
there collected.
5. - 3. Tenant for life must pay interest on encumbrances on
the estate. 4 Ves. 33; 1 Vern. 404, n. by Raithby. In
Pennsylvania the heir at law is not bound to pay interest on a
mortgage given by his ancestor.
6. - 4. In Massachusetts a bank is liable, independently of the
statute of 1809, c. 87, to pay interest on their bills, if not
paid when presented for payment. 8 Mass. 445.
7. - 5. Revenue officers must pay interest to the United States
from the time of receiving the money. 6 Binney's Rep. 266.
8. - §1 Who are entitled to receive interest. 1. The lender
upon an express or implied contract.
9. - 2. An executor was not allowed interest in a case where
money due to his testatrix was out at interest, and before money
came to his hands, he advanced his own in payment of debts of the
testatrix. Vin. Ab. tit. Interest, C. pl. 13.
10. In Massachusetts a trustee of property placed in his hands
for security, who was obliged to advance money to protect it, was
allowed interest at the compound rate. 16 Mass. 228.
11. - §3. On what claims allowed. First. On express contracts.
Secondly. On implied contracts. And, thirdly. On legacies.
12. First. On express contracts. 1. When the debtor expressly
undertakes to pay interest, he or his personal representatives
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having assets are bound to pay it. But if a party has accepted
the principal, it has been determined that he cannot recover
interest in a separate action. 1 Esp. N. P. C. 110; 3 Johns.
220. See 1 Camp. 50; 1 Dall. 315; Stark. Ev. pt. iv. 787; 1
Hare & Wall. Sel. Dec. 345.
13. Secondly. On implied contracts. 1. On money lent, or laid
out for another's use. Bunb. 119; 2 Bl. Rep. 761; S. C. 3 Wils.
205; 2 Burr. 1077; 5 Bro. Parl. Ca 71; 1 Ves. jr. 63; 1 Dall.
349; 1 Binn. 488; 2 Call, 102; 2 Hen. & Munf. 381; 1 Hayw. 4;
3 Caines' Rep. 226, 234, 238, 245; see 3 Johns. Cas. 303; 9
Johns. 71; 3 Caines' Rep. 266; 1 Conn. Rep. 32; 7 Mass. 14; 1
Dall. 849; 6 Binn. R. 163; Stark. Ev. pt. iv. 789, n. (y), and
(z); 11 Mass. 504; 1 Hare & Wall. Sel. Dec. 346.
14. - 2. For goods sold and delivered, after the customary or
stipulated term of credit has expired. Doug. 376; 2 B. & P. 337;
4 Dall. 289; 2 Dall. 193; 6 Binn. 162; 1 Dall. 265, 349.
15. - 3. On bills and notes. If payable at a future day
certain, after due; if payable on demand, after. a demand made.
Bunb. 119; 6 Mod. 138; 1 Str. 649; 2 Ld. Raym. 733; 2 Burr.
1081; 5 Ves. jr. 133; 15 Serg. & R. 264. Where the terms of a
promissory note are, that it shall be payable by instalments, and
on the failure of any instalment, the whole is to become due,
interest on the whole becomes payable from the first default. 4
Esp. 147. Where, by the terms of a bond, or a promissory note,
interest is to be paid annually, and the principal at a distant
day, the interest may be recovered before the principal is due. 1
Binn. 165; 2 Mass. 568; 3 Mass. 221.
16. - 4. On an account stated, or other liquidated sum, whenever
the debtor knows precisely what he is to pay, and when he is to
pay it. 2 Black. Rep. 761; S. C. Wils. 205; 2 Ves. 365; 8 Bro.
Parl. C. 561; 2 Burr. 1085; 5 Esp. N. P. C. 114; 2 Com. Contr.
207; Treat. Eq. lib. 5, c. 1, s. 4; 2 Fonb. 438; 1 Hayw. 173;
2 Cox, 219; 1 V. & B. 345; 1 Supp. to Ves. jr. 194; Stark. Ev.
pt. iv. 789, n. (a). But interest is not due for unliquidated
damages, or on a running account where the items are all on one
side, unless otherwise agreed upon. 1 Dall. 265; 4 Cowen, 496;
6 Cowen, 193; 5 Verm. 177; 2 Wend. 501; 1 Spears, 209; Rice,
21; 2 Blackf. 313; 1 Bibb, 443.
17. - 5. On the arrears of an annuity secured by a specially.
14 Vin. Ab. 458, pl. 8; 3 Atk. 579; 9 Watts, R. 530.
18. - 6. On a deposit by a purchaser, which he is entitled to
recover back, paid either to a principal, or an auctioneer. Sugd.
Vend. 327.; 3 Campb. 258; 5 Taunt. 625. Sed vide 4 Taunt. 334,
341.
19. - 7. On purchase money, which has lain dead, where the
vendor cannot make a title. Sugd. Vend. 327.
20. - 8. On purchase money remaining in purchaser's hands to
pay off encumbrances. 1 Sch. & Lef 134. See 1 Wash. 125; 5 Munf.
342; 6 Binn. 435.
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21. - 9. On judgment debts. 14 Vin. Abr. 458, pl. 15; 4 Dall.
251; 2 Ves. 162; 5 Binn. R. 61; Id. 220; 1 Harr. & John. 754;
3 Wend. 496; 4 Metc. 317; 1 Hare & Wall. Sel. Dec. 350. In
Massachusetts the principal of a judgment is recovered by
execution; for the interest the plaintiff must bring an action.
14 Mass. 239.
22. - 10. On judgments affirmed in a higher court. 2 Burr.
1097; 2 Str. 931; 4 Burr. 2128; Dougl. 752, n. 3; 2 H. Bl.
267; Id. 284; 2 Camp. 428, n.; 3 Taunt. 503; 4 Taunt. 30.
23. - 11. On money obtained by fraud, or where it has been
wrongfully detained. 9 Mass. 504; 1 Camp. 129; 3 Cowen, 426.
24. - 12. On money paid by mistake, or recovered on a void
execution. 1 Pick. 212; 9 Berg. & Rawle, 409
25. - 13. Rent in arrear due by covenant bears interest, unless
under special circumstances, which may be recovered in action; 1
Yeates, 72; 6 Binn. 159; 4 Yeates, 264; but no distress can be
made for such interest. 2 Binn. 246. Interest cannot, however, be
recovered for arrears of rent payable. in wheat. 1 Johns. 276.
See 2 Call, 249; Id. 253; 3 Hen. & Munf. 463; 4 Hen. & Munf.
470; 5 Munf. 21.
26. - 14. Where, from the course of dealing between the
parties, a promise to pay interest is implied. 1 Campb. 50; Id.
52 3 Bro. C. C. 436; Kirby, 207.
27. Thirdly, Of interest on legacies. 1. On specific legacies.
Interest on specific legacies is to be calculated from the date
of the death of testator. 2 Ves. sen. 563; 6 Ves. 345 5 Binn.
475; 3 Munf. 10.
28. - 2. A general legacy, when the time of payment is not
named by the testator, is not payable till the end of one year
after testator's death, at which time the interest commences to
run. 1 Ves. jr. 366; 1 Sch. & Lef. 10; 5 Binn. 475; 13 Ves.
333; 1 Ves. 308 3 Ves. & Bea. 183. But where only the interest
is given, no payment will be due till the end of the second year,
when the interest will begin to run. 7 Ves. 89.
29. - 3. Where a general legacy is given, and the time of
payment is named by the testator, interest is not allowed before
the arrival of the appointed period of payment, and that
notwithstanding the legacies are vested. Prec. in Chan. 837. But
when that period arrives, the legatee will be entitled, although
the legacy be charged upon a dry reversion. 2 Atk. 108. See also
Daniel's Rep. in Exch. 84; 3 Atk. 101; 3 Ves. 10; 4 Ves. 1; 4
Bro. C. C. 149, n.; S. C. 1 Cox, l33. Where a legacy is given
payable at a future day with interest, and the legatee dies
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before it becomes payable, the arrears of the interest up to the
time of his death must be paid to his personal representatives.
McClel. Exch. Rep. 141. And a bequest of a sum to be paid
annually for life bears interest from the death of testator. 5
Binn. 475.
30. - 4. Where the legatee is a child of the testator, or one
towards whom he has placed himself in loco parentis, the legacy
bears interest from the testator's death, whether it be
particular or residuary; vested, but payable It a future time,
or contingent, if the child have no maintenance. In that case the
court will do what, in common presumption, the father would have
done, provide necessaries for the child. 2 P. Wms. 31; 3 Ves.
287; Id. 13; Bac. Abr. Legacies, K 3; Fonb. Eq. 431, n. j.; 1
Eq. Cas. Ab. 301, pl. 3; 3 Atk. 432; 1 Dick. Rep. 310; 2 Bro.
C. C. 59; 2 Rand. Rep. 409. In case of a child in ventre sa
mire, at the time of the father's decease, interest is allowed
only from its birth. 2 Cox, 425. Where maintenance or interest is
given by the will, and the rate specified, the legatee will not,
in general, be entitled to claim more than the maintenance or
rate specifled. 3 Atk. 697, 716 3 Ves. 286, n. and see further,
as to interest in cases of legacies to children, 15 Ves. 363; 1
Bro. C. C,. 267: 4 Madd. R. 275; 1 Swanst. 553; 1 P. Wms. 783;
1 Vern. 251; 3 Vesey & Beames, 183.
81. - 5. Interest is not allowed by way of maintenance to any
other person than the legitimate children of the testator; 3
Ves. 10; 4 Ves. 1; unless the testator has put himself in loco
parentis. 1. Sch. & Lef. 5, 6. A wife; 15 Ves. 301; a niece; 3
Ves. 10; a grandchild; 15 Ves. 301; 6 Ves. 546; 12 Ves. 3; 1
Cox, 133; are therefore not entitled to interest by way of
maintenance. Nor is a legitimate child entitled to such interest
if he have a maintenance; although it may be less than the
amount of the interest of the legacy. 1 Scho. & Lef. 5: 3 Ves.
17. Sed vide 4 John. Ch. Rep. 103; 2 Rop. Leg. 202.
32. - 6. Where an intention though not expressed is fairly
inferable from the will, interest will be allowed. 1 Swanst. 561,
note; Coop. 143.
33. - 7. Interest is not allowed for maintenance, although
given by immediate bequest for maintenance, if the parent of the
legatee, who is under moral obligation to provide for him, be of
sufficient ability, so that the interest will accumulate for the
child's benefit, until the principal becomes payable. 3 Atk. 399;
3 Bro. C. C. 416; 1 Bro. C. C. 386; 3 Bro. C. C. 60. But to
this rule there are some exceptions. 3 Ves. 730; 4 Bro. C. C.
223; 4 Madd. 275, 289; 4 Ves. 498.
34. - 8. Where a fund, particular or residuary, is given upon a
contingency, the intermediate interest undisposed of, that is to
say, the intermediate interest between the testator's death, if
there be no previous legatee for life, or, if there be, between
the death of the previous taker and the happening of the
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contingency, will sink into the residue for the benefit of the
next of kin or executor of the testator, if not bequeathed by
him; but if not disposed of, for the benefit of his residuary
legatee. 1 Bro. C. C. 57; 4 Bro. C. C. 114; Meriv. 384; 2 Atk.
329; Forr. 145; 2 Rop. Leg. 224.
85. - 9. Where a legacy is given by immediate bequest whether
such legacy be particular or residuary, and there is a condition
to divest it upon the death of the legatee under twenty-one, or
upon the happening of some other event, with a limitation over,
and the legatee dies before twenty-one, or before such other
event happens, which nevertheless does take place, yet as the
legacy was payable at the end, of a year after the testator's
death, the legatee's representatives, and not the legatee over,
will be entitled to the interest which accrued during the
legatee's life, until the happening of the event which was to
divest the legacy. 1 P. Wms. 500; 2 P. Wms. 504; Ambl. 448; 5
Ves. 335; Id. 522.
36. - 10. Where a residue is given, so as to be vested but not
payable at the end of the year from the testator's death, but
upon the legatee's attaining twenty-one, or upon any other
contingency, and with a bequest over divesting the legacy, upon
the legatee's dying under age, or upon the happening of the
contingency, then the legatee's representatives in the former
case, and the legatee himself in the latter, shall be entitled to
the interest that became due, during the legatee's life, or until
the happening of the contingency; 2 P. Wms. 419; 1 Bro. C. C.
81; Id. 335; 3 Meriv. 335.
37. - 11. Where a residue of personal estate is given,
generally, to one for life with remainder over, and no mention is
made by the testator respecting the interest, nor any intention
to the contrary to be collected from the will, the rule appears
to be now settled that the person taking for life is entitled to
interest from the death of the testator, on such part of the
residue, bearing interest, as is not necessary for, the payment
of debts. And it is immaterial whether the residue is only given
generally, or directely to be laid out, with all convenient
speed, in funds or securities, or to be laid out in lands. See 6
Ves. 520; 9 Ves. 549, 553; 2 Rop. Leg. 234; 9 Ves. 89.
38. - 12. But where a residue is directed to be laid out in
land, to be settled on one for life, with remainder over, and the
testator directs the interest to accumulate in the meantime,
until the money is laid out in lands, or otherwise invested on
security, the accumulation shall cease at the end of one year
from the testator's death, and from that period. the tenant for
life shall be to the interest. 6 Ves. 520; 7 Ves. 95; 6 Ves.
528; Id. 529; 2 Sim. & Stu. 396.
39. - 13. Where no time of payment is mentioned by the
testator, annuities are considered as commencing from the death
of the testator; and consequently the first payment will be due
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at the end of the year from that event if, therefore, it be not
made then, interest, in those cases wherein it is allowed at all,
must be computed from that period. 2 Rop. Leg. 249; 5 Binn. 475.
See 6 Mass. 37; 1 Hare & Wall. Sel. Dec. 356.
40. - §4. As to the quantum or amount of interest allowed. 1.
During what time. 2. Simple interest. 3. Compound interest. 4. In
what cases given beyond the penalty of a bond. 5. When foreign
interest is allowed.
41. First. During what time. 1. In actions for money had and
received, interest is allowed, in Massachusetts, from the time of
serving the writ. 1 Mass. 436. On debts payable on demand,
interest is payable only from the demand. Addis. 137. See 12
Mass. 4. The words "with interest for the same," bear interest
from date. Addis. 323-4; 1 Stark. N. P. C. 452; Id. 507.
42. - 2. The mere circumstance of war existing between two
nations, is not a sufficient reason for abating interest on debts
due by the subjects of one belligerent to another. 1 Peters' C.
C. R. 524. But a prohibition of all intercourse with an enemy,
during war, furnishes a sound reason for the abatement of
interest until the return of peace. Id. See,, on this subject, 2
Dall. 132; 2 Dall. 102; 4 Dall. 286; 1 Wash. 172; 1 Call 194;
3 Wash. C. C. R. 396; 8 Serg. & Rawle, 103; Post. §7.
43. Secondly. Simple interest. 1. Interest upon interest is not
allowed except in special cases 1 Eq. Cas. Ab. 287; Fonbl. Eq.
b. 1, c. §4, note a; U. S. Dig. tit. Accounts, IV.; and the
uniform current of decisions is against it, as being a hard,
oppressive exaction, and tending to usury. 1 Johns. Ch. R. 14;
Cam. & Norw. Rep. 361. By the civil law, interest could not be
demanded beyond the principal sum, and payments exceeding that
amount, were applied to the extinguishment of the principal.
Ridley's View of the Civil, &c. Law, 84; Authentics, 9th Coll.
44. Thirdly. Compound interest. 1. Where a partner has
overdrawn the part nership funds, and refuses, when called upon
to account, to disclose the profits, recourse would be had to
compound interest as a substitute for the profits he might
reasonably be supposed to have made. 2 Johns. Ch. R. 213.
45. - 2. When executors, administrators, or trustees, convert
the trust money to their own use, or employ it in business or
trade, they are chargeable with compound interest. 1 Johns. Ch.
R. 620.
46. - 3. In an action to recover the annual interest due on a
promissory note, interest will be allowed on each year's interest
until paid. 2 Mass. 568; 8 Mass. 455. See, as to charging
compound interest, the following cases: 1 Johns. Ch. Rep. 550;
Cam. & Norw. 361; 1 Binn. 165; 4 Yeates' 220; 1 Hen. & Munf.
4; 1 Vin. Abr. 457, tit. Interest, C; Com. Dig. Chancery, 3 S
3; 3 Hen. & Munf. 89; 1 Hare & Wall. Sel. Dec. 371. An infant's
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contract to pay interest on interest, after it has accrued, will
be binding upon him, when it is for his benefit. 1 Eq. Cas. Ab.
286; 1 Atk. 489; 3 Atk. 613. Newl. Contr. 2.
47. Fourthly. When given beyond the Penalty of a bond. 1. It is
a general rule that the penalty of a bond limits the amount of
the recovery. 2 T. R. 388. But, in some cases, the interest is
recoverable beyond the amount of the penalty. The recovery
depends on principles of law, and not on the arbitrary discretion
of a jury. 3 Caines' Rep. 49.
48. - 2. The exceptions are, where the bond is to account for
moneys to be received 2 T. R. 388; where the plaintiff is kept
out of his money by writs of error; 2 Burr. 1094; 2 Evans'
Poth. 101-2 or delayed by injunction; 1 Vern. 349; 16 Vin. Abr.
303; if the recovery of the debt be delayed by the obligor; 6
Ves. 92; 1 Vern. 349; Show. P. C. 15; if extraordinary
emoluments are derived from holding the money; 2 Bro. P. C. 251;
or the bond is taken only as a collateral security; 2 Bro. P. C.
333; or the action be on a judgment recovered on a bond. 1 East,
R. 486. See, also, 4 Day's Cas. 30; 3 Caines' R. 49; 1 Taunt.
218; 1 Mass. 308; Com. Dig. Chancery, 3 S 2; Vin. Abr.
Interest, E.
49. - 3. But these exceptions do not obtain in the
administration of the debtor's assets, where his other creditors
might be injured by allowing the bond to be rated beyond the
penalty. 5 Ves. 329; See Vin. Abr. Interest, C, pl. 5.
50. Fifthly. When foreign interest is allowed. 1. The rate of
interest allowed by law where the contract is made, may, in
general, be recovered; hence, where a note was given in China,
payable eighteen months after date, without any stipulation
respecting interest, the court allowed the Chinese interest of
one per cent. per mouth from the expiration of the eighteen
months. 1 Wash. C. C. R. 253.
51. - 2. If a citizen of another state advance money there, for
the benefit of a citizen of the state of Massachusetts, which the
latter is liable to reimburse, the former shall recover interest,
at the rate established by the laws of the place where he lives.
12 Mass. 4. See, further, 1 Eq. Cas. Ab. 289; 1 P. Wms. 395; 2
Bro. C. C. 3; 14 Vin. Abr. 460, tit. Interest, F.
52. - §5. How computed. 1. In casting interest on notes, bonds,
&c., upon which partial payments have been made, every payment is
to be first applied to keep down the interest, but the interest
is: never allowed to form a part of the principal so as to carry
interest. 17 Mass. R. 417; 1 Dall. 378.
53. - 2. When a partial payment exceeds the amount of interest
due when it is made, it is correct to compute the interest to the
time of the first, payment, add it to the principal, subtract the
payment, cast interest on the remainder to the time of the second
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payment, add it to the remainder, and subtract the second
payment, and in like manner from one payment to another, until
the time of judgment. 1 Pick. 194; 4 Hen. & Munf. 431; 8 Serg.
& Rawle' 458; 2 Wash. C. C. R. 167. See 3 Wash. C. C. R. 350;
Id. 396.
54. - 3. Where a partial payment is made before the debt is
due, it cannot be apportioned, part to the debt and part to the
interest. As, if there be a bond for one hundred dollars, payable
in one year, and, at the expiration of six months fifty dollars
be paid in. This payment shall not be apportioned part to the
principal and part to the interest, but at the end of the year,
interest shall be charged on the whole sum, and the obligor shall
receive credit for the interest of fifty dollars for six mouths.
1 Dall. 124.
55.- §6. When interest will be barred. 1. When the money due is
tendered to the person entitled to it, and he refuses to receive
it, the interest ceases. 3 Campb. 296. Vide 8 East, 168; 3 Binn.
295.
56. - 2. Where the plaintiff was absent in foreign parts,
beyond seas, evidence of that fact may be given in evidence to
the jury on the plea of payment, in order to extinguish the
interest during such absence. 1 Call, 133. But see 9 Serg. &
Rawle, 263.
57. - 3. Whenever the law prohibits the payment of the
principal, interest, during the prohibition, is not demandable. 2
Dall. 102; 1 Peters' C. C. R. 524. See, also, 2 Dall. 132; 4
Dall. 286.
58. - 4. If the plaintiff has accepted the principal, he cannot
recover the interest in a separate action. 1 Esp. N. P. C. 110;
3 Johns. 229. See 14 Wend. 116.
59.- §7. Rate of interest allowed by law in the different
states. Alabama. Eight per centum per annum is allowed. Notes not
exceeding one dollar bear interest at the rate of one hundred per
centum per annum. Some of the bank charters prohibit certain
banks from charging more than six per cent. upon bills of
exchange, and notes negotiable at the bank, not having more than
six months to run; and, over six and under nine, not more than
seven per cent. and over nine months, to charge not more than
eight per cent. Aikin's Dig. 236.
60. Arkansas. Six per centum per annum is the legal rate of
interest; but the parties may agree in writing for the payment
of interest not exceeding ten per centum per annum, on money due
and to become due on any contract, whether under seal or not.
Rev. St. c. 80, s. 1, 2. Contracts where a greater amount is
reserved are declared to be void. Id. s. 7. But this provision
will not affect an innocent endorsee for a valuable
consideration. Id. s. 8.
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61. Connecticut. Six per centum is the amount allowed by law.
62. Delaware. The legal amount of interest allowed in this
state is at the rate of six per centum per annum. Laws of Del.
314.
63. Georgia. Eight per centum per annum interest is allowed on
all liquidated demands. 1 Laws of Geo. 270; 4 Id. 488; Prince's
Dig. 294, 295.
64. Illinois. Six per centum per annum is the legal interest
allowed when there is no contract, but by agreenment the parties
may fix a greater rate. 3 Griff. L. Reg. 423.
65. Indiana. Six per centum per annum is the rate fixed by law,
except in Union county. On the following funds loaned out by the
state, namely, Sinking, Surplus, Revenue, Saline, and College
funds, seven per cent.; on the Common School Fund, eight per
cent. Act of January 31, 1842.
66. Kentucky. Six per centum per annum is allowed by law. There
is no provision in favor of any kind of loan. See Sessions Acts,
1818, p. 707.
67. Louisiana. The Civil Code provides, art. 2895, as follows:
Interest is either legal or conventional. Legal interest is fixed
at the following, rates, to wit: at five per cent. on all sums
which are the object of a judicial demand, whence this is called
judicial interest; and Rums discounted by banks, at the rate
established by their charters. The amount of conventional
interest cannot exceed ten per cent. The same must be fixed in
writing, and the testimonial proof of it is not admitted. See,
also, art. 1930 to 1939.
68. Maine. Six per centum per annum is the legal interest, and
any contract for more is voidable as to the excess, except in
case of letting cattle, and other usages of a like nature, in
practice among farmers, or maritime contracts among merchants, as
bottomry, insurance, or course of exchange, as has been
heretofore practiced. Rev. St. 4, c. 69, §§1, 4.
69. Maryland. Six per centum per annum, is the. amount limited
by law, in all cases.
70. Massachusetts. The interest of money shall continue to be
at the rate of dollars, and no more, upon one hundred dollars for
a year; and at the same rate for a greater or less sum, and for
a longer or shorter time. Rev. Stat. c. 35, s. 1.
71. Michigan. Seven per centum is the legal rate of interest;
but on stipulation in writing, interest is allowed to any amount
not exceeding ten per cent. on loans of money, but only on such
loans. Rev. St. 160, 161.
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72. Mississippi. The legal interest is six per centum; but on
all bonds, notes, or contracts in writing, signed by the debtor
for the bona fide loan of money, expressing therein the rate of
interest fairly agreed on between the parties for the use of
money so loaned, eight per cent. interest is allowed. Laws of
1842.
73. Missouri. When no contract is made as to interest, six per
centum per annum is allowed. But the parties may agree to pay any
higher rate, not exceeding ten per cent. Rev. Code, §1, p. 383.
74. New Hampshire. No person shall take interest for the loan
of money, wares, or merchandise, or any other personal estate
whatsoever, above the value of six pounds for the use or
forbearance of one hundred pounds for a year, and after that rate
for a greater or lesser sum, or for a longer or shorter time. Act
of February 12, 1791, s. 1. Provided, that nothing in this act
shall extend to the letting of cattle, or other usages of a like
nature, in practice among farmers, or to maritime contracts among
merchants as bottomry, insurance, or course of exchange, as hath
been heretofore used. Id. s. 2.
75. New Jersey. Six per centum per annum is the interest
allowed by law for the loan of money, without any exception.
Statute of December 5, 1823, Harr. Comp. 45.
76. New York. The rate is fixed at seven per centum per annum.
Rev. Stat. part 2, c. 4, t. 3, s. 1. Moneyed institutions,
subject to the safety-fund act, are entitled to receive the legal
interest established, or which may thereafter be established by
the laws of this state, on all loans made by them, or notes, or
bills, by them severally discounted or received in the ordinary
course of business; but on all notes or bills by them discounted
or received in the ordinary course of business, which shall be
matured in sixty-three days from the time of such discount, the
said moneyed corporations shall not take or receive more than at
the rate of six per centum per annum in advance. 2 Rev. Stat. p.
612.
77. North Carolina. Six per centum per annum is the interest
allowed by law. The banks are allowed to take the interest off at
the time of making a discount.
78. Ohio. The legal rate of interest on all contracts,
judgments or decrees in chancery, is six per centum. per annum,
and no more. 29 Ohio Stat. 451; Swan's Coll. Laws, 465. A
contract to pay a higher rate is good for principal and interest,
and void for the excess. Banks are bound to pay twelve per cent.
interest on all their notes during a suspension of specie
payment. 37 Acts 30, Act of February 25, 183,9, Swan's Coll. 129.
79. Pennsylvania. Interest is allowed at the rate of six per
centum per annum for the loan or use of money or other
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commodities. Act of March 2, 1723. And lawful interest is allowed
on judgments. Act of 1700, 1 Smith's L. of Penn. 12. See 6 Watts,
53; 12 S. & R. 47; 13 S. & R. 221; 4 Whart. 221; 6 Binn. 435;
1 Dall. 378; 1 Dall. 407; 2 Dall. 92; 1 S. & R. 176; 1 Binn.
488; 2 Pet. 538; 8 Wheat. 355.
80. Rhode Island. Six per centum is allowed for interest on
loans of money. 3 Griff. Law Reg. 116.
81. South Carolina. Seven per centum per annum, or at that
rate, is allowed for interest. 4 Cooper's Stat. of S. C. 364.
When more is reserved, the amount lent and interest may be
recovered. 6 Id. 409.
82. Tennessee. The interest allowed by law is six per centum
per annum. When more is charged it is not recoverable, but the
principal and legal interest may be recovered. Act of 1835, c.
50, Car. & Nich. Comp. 406, 407.
83. Vermont. Six per centum per annum is the legal interest. If
more be charged and paid, it may be recovered back in an action
of assumpsit. But these provisions do not extend "to the letting
of cattle and other, usages of a like nature among farmers, or
maritime contracts, bottomry or course of exchange, as has been
customary." Rev. St. c. 72, ss. 3, 4, 5.
84. Virginia. Interest is allowed at the rate of six per centum
per annum. Act of Nov. 22 1796, 1 Rev. Code. ch. 209. Vide 1 Hare
& Wall. Sel. Dec. 344, 373.
INTEREST, MARITIME. By maritime interest is understood the
profit of money lent on bottomry or respondentia, which is
allowed to be greater than simple interest because the capital of
the lender is put in jeopardy. There is no limit by law as to the
amount which may be charged for maritime interest. It is fixed
generally by the agreement of the parties.
2. The French writers employ a variety of terms in order to
distinguish if according to the nature of the case. They call it
interest, when it is stipulated to be paid by the month, or at
other stated periods. It is a premium, when a gross sum is to be
paid at the end of the voyage, and here the risk is the principal
object they have in view. When the sum is a per centage on the
money lent, they call it exchange, considering it in the light of
money lent at one place to be returned in another, with a
difference in amount between the sum borrowed and that which is
paid, arising from the difference of time and place. When they
intend to combine these various shades into one general
denomination, they make use of the term maritime profit, to
convey their meaning. Hall on Mar. Loans, 56, n.
INTERIM. In the mean time; in the meanwhile. For example, one
appointed between the time that a person is made bankrupt, to act
in the place of the assignee until the assignee shall be
appointed, is an assignee ad interim. 2 Bell's Com. 355.
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INTERLINEATION, contracts, evidence. Writing between two lines.
2. Interlineations are made either before or after the
execution of an instrument. Those made before should be noted
previously to its execution; those made after are made either by
the party in whose favor they are, or by strangers.
3. When made by the party himself, whether the interlineation
be material or immaterial, they render the deed void; 1 Gall.
Rep. 71; unless made with the consent of the opposite party.
Vide 11 Co. 27 a: 9 Mass. Rep. 307; 15 Johns. R. 293; 1 Dall.
R. 57; 1 Halst. R. 215; but see 1 Pet. C. C. R. 364; 5 Har. &
John; 41; 2 L. R. 290; 2 Ch. R. 410; 4 Bing. R. 123; Fitzg.
207, 223; Cov. on Conv. Ev. 22; 2 Barr. 191.
4. When the interlineation is made by a stranger, if it be
immaterial, it will not vitiate the instrument, but if it be
material, it will in general avoid it. Vide Cruise, Dig. tit. 32,
c. 26, s. 8; Com. Dig. Fait, F 1.
5. The ancient rule, which is still said to be in force, is,
that an alteration shall be presumed to have been made before the
execution of the instrument. Vin. Ab. Evidence, Q, a 2; Id.
Faits, U; 1 Swift's Syst. 310; 6 Wheat. R. 481; 1 Halst. 215.
But other cases hold the presumption to be that a material
interlineation was made after the execution of an instrument,
unless the contrary be proved. 1 Dall. 67. This doctrine
corresponds nearly with the rules of the canon law on this
subject. The canonists have examined it with care. Vide 18 Pick.
R. 172; Toull. Dr. Civ. Fr. liv. 3, t. 3, c. 4, n. 115, and
article Erasure.
INTERLOCUTORY. This word is applied to signify something which
is done between the commencement and the end of a suit or action
which decides some point or matter, which however is not a final
decision of the matter in issue; as, interlocutory judgments, or
decrees or orders. Vide Judgment, interlocutory.
INTERLOPERS. Persons who interrupt the trade of a company of
merchants, by pursuing the same business with them in the same
place, without lawful authority.
INTERNATIONAL. That which pertains to intercourse between
nations. International law is that which regulates the
intercourse between, or the relative rights of nations.
INTERNUNCIO. A minister of a second order, charged with the
affairs of the court of Rome, where that court has no nuncio
under that title.
INTERRELATION, civil law. The act by which, in consequence of
an agreement, the party bound declares that he will not be bound
beyond a certain time. Wolff, Inst. Nat. §752.
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2. In the case of a lease from year to year, or to continue as
long as both parties please, a notice given by one of them to the
other of a determination to put an end to the contract, would
bear the name of interpelation.
INTERPLEADER, practice. Interpleaders may be had at law and in
equity.
2. An interpleader at law a proceeding in the action of
detinue, by which the defendant states the fact that the thing
sued for is in his hands, and that it is claimed by a third
person, and that whether such person or the plaintiff is entitled
to it, is unknown to the defendant, and thereupon the defendant
prays, that a process of garnishment may be issued to compel such
third person, so claiming, to become defendant in his stead. 3
Reeves, Hist. of the Eng. Law, ch. 23; Mitford, Eq. Pl. by
Jeremy, 141; Story, Eq. Jur. §§800, 801, 802. Interpleader is
allowed to avoid inconvenience; for two parties claiming
adversely to each other, cannot be entitled to the same thing.
Bro. Abr. Interpleader, 4. Hence the rule which requires the
defendant to allege that different parties demand the same thing.
Id. pl. 22.
3. If two persons sue the same person in detinue for the thing,
and both action; are depending in the same court at the same
time, the defendant may plead that fact, produce the thing (e. g.
a deed or charter in court, and aver his readiness to deliver it
to either as the court shall adjudge; and thereupon pray that
they may interplead. In such a case it has been settled that the
plaintiff whose writ bears the earliest teste has the right to
begin the interpleading, and the other will be compelled to
answer. Bro. Abr. Interpl. 2.
4. In equity, interpleaders are common. Vide Bill of
Interpleader, and 8 Vin. Ab. 419; Doct. Pl. 247; 3 Bl. Com.
448; Com. Dig. Chancery, 3 T; 2 Story, Eq. Jur. §800.
INTERPRETATION. The explication of a law, agreement, will, or
other instrument, which appears obscure or ambiguous.
2. The object of interpretation is to find out or collect the
intention of the maker of the instrument, either from his own
words, or from other conjectures, or both. It may then be divided
into three sorts, according to the different means it makes use
of for obtaining its end.
3. These three sorts of interpretations are either literal,
rational, or mixed. When we collect the intention of the writer
from his words only, as they lie before us, this is a literal
interpretation. When his words do not express his intention
perfectly, but either exceed it, or fall short of it, so that we
are to collect it from probable or rational conjectures only,
this is rational interpretation and when his words, though they
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do express his intention, when rightly understood, are in
themselves. of doubtful meaning, and we are forced to have
recourse to like conjectures to find out in what sense he used
them this sort of interpretation is mixed; it is partly literal,
and partly rational.
4. According to the civilians there are three sorts of
interpretations, the authentic, the usual, and the doctrinal.
5. - 1. The authentic interpretation is that which refers to
the legislator himself, in order to fix the sense of the law.
6. - 2. When the judge interprets the law so as to accord with
prior decisions, the interpretation is called usual.
7. - 3. It is doctrinal when it is made agreeably to rules of
science. The Commentaries of learned lawyers in this case furnish
the greatest assistance. This last kind of interpretation is
itself divided into, three distinct classes. Doctrinal
interpretation is extensive, restrictive, or declaratory. 1st. It
is extensive whenever the reason of the law has a more enlarged
sense than its terms, and it is consequently applied to a case
which had not been explained. 2d. On the contrary, it is
restrictive when the expressions of the law have a greater
latitude than its reasons, so that by a restricted
interpretation, an exception is made in a case which the law does
not seem to have embraced. 3d. When the reason of the law and the
terms in which it is conceived agree, and it is only necessary to
explain them to have the sense complete, the interpretation is
declaratory. 8. The term interpretation is used by foreign
jurists in nearly the same sense that we use the word
construction. (q. v.)
9. Pothier, in his excellent treatise on Obligations, lays down
the following rules for the interpretation of contracts:
10. - 1. We ought to examine what was the common, intention of
the contracting parties rather than the grammatical sense of the
terms.
11. - 2. When a clause is capable of two significations, it
should be understood in that which will have some operation
rather than, that in which it will have none.
12. - 3. Where the terms of a contract are capable of two
significations, we ought to understand them in the sense which is
most agreeable to the nature of the contract.
13. - 4. Any thing, which may appear ambiguous in the terms of
a contract, may be explained by the common use of those terms in
the country where it is made.
14. - 5. Usage is of so much authority in the interpretation of
agreements, that a contract is understood to contain the
customary clauses although they are not expressed; in
contractibus tacite veniunt ea quae sunt moris et consuetudinis.
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15. - 6. We ought to interpret one clause by the others
contained in the same act, whether they precede or follow it.
16. - 7. In case of doubt, a clause ought to be interpreted
against the person who stipulates anything, and in discharge of
the person who contracts the obligation.
17. - 8. However general the terms may be in which an agreement
is conceived, it only comprises those things respecting which it
appears that the contracting parties proposed to coutract, and
not others which they never thought of.
18. - 9. When the object of the agreement is to include
universally everything of a given nature, (une universalite de
choses) the general description will comprise all particular
articles, although they may not have been in the knowledge, of
the parties. We may state, as an example of this rule, an
engagement which I make with you to abandon my share in a
succession for a certain sum. This agreement includes everything
which makes part of the succession, whether known or not; our
intention was to contract for the whole. Therefore it is decided,
that I cannot object to the agreement, under pretence that
considerable property has been found to belong to the succession
of which we had not any knowledge.
19. - 10. When a case is expressed in a contract on account of
any doubt which there may be whether the engagement resulting
from the contract would. extend to such case, the parties are not
thereby understood to restrain the extent which the engagement
has of right, in respect to all cases not expressed.
20. - 11. In contracts as well as in testaments, a clause
conceived in the plural may be frequently distributed into
several particular classes.
21. - 12. That which is at the end of a phrase commonly refers
to the whole phrase, and not only to that which immediately
precedes it, provided it agrees in gender and number with the
whole phrase.
22. For instance, if in the contract for sale of a farm, it is
said to be sold with all the corn, small grain, fruits and wine
that have been got this year, the terms, that have been got this
year, refer to the whole phrase, and not to the wine only, and
consequently the old corn is not less excepted than the old wine;
it would be otherwise if it had been said, all the wine that has
been got this year, for the expression is in the singular, and
only refers to the wine and not to the rest of the phrase, with
which it does not agree in number. Vide 1 Bouv. Inst. n. 86, et
seq.
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INTERPRETER. One employed to make a translation. (q v.)
2. An interpreter should be sworn before he translates the
testimony of a witness. 4 Mass. 81; 5 Mass. 219; 2 Caines' Rep.
155.
3. A person employed between an attorney and client to act as
interpreter, is considered merely as the organ between them, and
is not bound to testify as to what be has acquired in those
confidential communications. 1 Pet. C. C. R.. 356; 4 Munf. R.
273; 1 Wend. R. 337. Vide Confidential Communications.
INTERREGNUM, polit. law. In an established government, the
period which elapses between the death of a sovereign and the
election of another is called interregnum. It is also understood
for the vacancy created in the executive power, and for any
vacancy which occurs when there is no government.
INTERROGATOIRE, French law. An act, or instrument, which
contains the interrogatories made by the judge to the person
accused, on the facts which are the object of the accasation, and
the answers of the accused. Poth. Proc. Crim. s. 4, art. 2, §1.
Vide Information.
INTERROGATORIES. Material and pertinent questions, in writing,
to necessary points, not confessed, exhibited for the examination
of witnesses or persons who are to give testimony in the cause.
2. They are either original and direct on the part, of him who
produces the witnesses, or cross and counter, on behalf of the
adverse party, to examine witnesses produced on the other side.
Either party, plaintiff or defendant, may exhibit original or
cross interrogatories.
3. The form which interrogatories assume, is as various as the
minds of the persons who propound them. They should be as
distinct as possible, and capable of a definite answer; and they
should leave no loop-holes for evasion to an unwilling witness.
Care must be observed to put no leading questions in original
interrogatories, for these always lead to inconvenience; and for
scandal or impertinence, interrogatories will, under certain
Circumstances, be suppressed. Vide Will. on Interrogatories,
passim; Gresl. Ea. Ev pt. 1, c. 3, s. 1; Vin. Ab. h. t.;
Hind's Pr. 317; 4 Bouv. Inst. n. 4419, et seq.
INTERRUPTION. The effect of some act or circumstance which
stops the course of a prescription or act of limitation's.
2. Interruption of the use of a thing is natural or civil.
Natural interruption is an interruption in fact, which takes
place whenever by some act we cease truly to possess what we
formerly possessed. Vide 4 Mason's Rep. 404; 2 Y. & Jarv. 285. A
right is not interrupted by: mere trespassers, if the
trespasser's were unknown; but if they were known, and the
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trespasses frequent, and no legal proceeding instituted in
consequence of them, they then become legitimae interruptiones,
of which Bracton speaks, and are converted into adverse
assertions of right, and if not promptly and effectually
litigated, they defeat the claim of rightful prescription; and
mere threats of action for the trespasses, without following them
up, will have no effect to preserve the right. Knapp, R. 70, 71;
3 Bar. & Ad. 863; 2 Saund. 175, n. e; 1 Camp. 260; 4 Camp. 16;
5 Taunt. 125 11 East, 376.
3. Civil interruption is that which takes place by some
judicial act, as the commencement of a suit to recover the thing
in dispute, which gives notice to the possessor that the thing
which he possesses does not belong to him. When the title has
once been gained by prescription, it will not be lost by
interruption of it for ten or twenty years. 1 Inst. 113 b. A
simple acknowledgment of a debt by the debtor, is a sufficient
interruption to prevent the statute from running. Indeed,
whenever an agreement, express or implied, takes place between
the creditor and the debtor, between the possessor and the owner,
which admits the indebtedness or the right to the thing in
dispute, it is considered a civil conventional interruption which
prevents the statute or the right of prescription from running.
Vide 3 Burge on the Confl. of Lalys, 63.
INTERVAL. A space of time between two periods. When a person is
unable to perform an act at any two given periods, but in the
interval he has performed such act, as when a man is found to be
insane in the months of January and March, and he enters into a
contract or makes a will in the interval, in February, he will be
presumed to have been insane at that time; and the onus will lie
to show his sanity, on the person who affirms such act. See Lucid
interval.
INTERVENTION, civil law. The act by which a third party becomes
a party in a suit pending between other persons.
2. The intervention is made either to be joined to the
plaintiff, and to claim the same thing he does, or some other
thing connected with it or, to join the defendant, and with him
to oppose the claim of the plaintiff, which it-is his interest to
defeat. Poth. Proced. Civ. lere part. ch. 2, s. 6, §3. In the
English ecclesiastical courts, the same term is used in the same
sense.
3. When a third person, not originally a party to the suit or
proceeding, but claiming an interest in the subject-matter in
dispute, may, in order the better to protect such interest,
interpose his claim, which proceeding is termed intervention. 2
Chit. Pr. 492; 3 Chit. Com. Law, 633; 2 Hagg. Cons. R. 137; 3
Phillim. R. 586; 1 Addams, R. 5; Ought. tit. 14; 4 Hagg. Eccl.
R. 67 Dual. Ad. Pr. 74. The intervener may come in at any stage
of the cause, and even after judgment, if an appeal can be
allowed on such judgment. 2 Hagg. Cons. R. 137: 1 Eng. feel. R.
480; 2 E.g. Eccl. R. 13.
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INTESTACY. The state or condition of dying without a will.
INTESTABLE. One who cannot law fully make a testament.
2. An infant, an insane person, or one civilly dead, cannot
make a will, for want of capacity or understanding; a married
woman cannot make such a will without some special authority,
because she is under the power of her hushand. They are all
intestable.
INTESTATE. One who, having lawful power to make a will, has
made none, or one which is defective in form. In that case, he is
said to die intestate, and his estate descends to his heir at
law. See Testate.
2. This term comes from the Latin intestatus. Formerly, it was
used in France indiscriminately with de-confess; that is,
without confession. It was regarded as a crime, on account of the
omission of the deceased person to give something to the church,
and was punished by privation of burial in consecrated ground.
This omission, according to Fournel, Hist. des Avocats, vol. 1,
p. 116, could be repaired by making an ampliative testament in
the name of the deceased. See Vely, tom. 6, page 145; Henrion De
Pansey, Authorite Judiciare, 129 and note. Also, 3 Mod. Rep. 59,
60, for the Law of Intestacy in England.
INTIMATION, civil law. The name of any judicial act by which a
notice of a legal proceeding. is given to some one; but it is
more usually understood to mean the notice or summons which an
appellant causes to be given to the opposite party, that the
sentence will be reviewed by the superior judge.
2. In the Scotch law, it is an instrument, of writing, made
under the hand of a notary, and notified to a party, to inform
him of a right which a third person had acquired; for example,
when a creditor assigns a claim against his debtor, the assignee
or cedent must give an intimation of this to the debtor, who,
till then, is justified in making payment to the original
creditor. Kames' Eq. B. 1, p. 1, s. 1.
1NTRODUCTION. That part of a writing in which are detailed
those facts which elucidate the subject. In chancery pleading,
the introduction is that part of a bill which contains the names
and description of the persons exhibiting the bill. In this part
of the bill are also given the places of abode, title, or office,
or business, and the character in which they sue, if it is in
autre droit, and such other description as is required to show
the jurisdiction of the court. 4 Bouv. Inst. n. 4156.
INTROMISSION Scotch law. The assuming possession of property
belonging to another, either on legal grounds, or without any
authority; in the latter case, it is called vicious
intromission. Bell's S. L. Dict. h. t.
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INTRONISATION, French eccl. law. The installation of a hishop
in his episcopal see. Clef des Lois Row. h. t. Andre.
INTRUDER. One who, on the death of the ancestor, enters on the
land, unlawfully, before the heir can enter.
INTRUSION, estates, torts. When an ancestor dies seised of an
estate of inheritance expectant upon an estate for life, and then
the tenant dies, and between his death and the entry of the heir,
a stranger unlawfully enters upon the estate, this is called an
intrusion. It differs from an abatement, for the latter is an
entry into lands void by the death of a tenant in fee, and an
intrusion, as already stated, is an entry into land void by the
death of a tenant for years. F. N. B. 203 3 Bl. Com. 169 Archb.
Civ. Pl. 12; Dane's Ab. Index, h. t.
INTRUSION, remedies. The name of a writ, brought by the owner
of a fee simple, &c., against an intruder. New Nat. Br. 453.
INUNDATION. The overflow of waters by coming out of their bed.
2. Inundations may arise from three causes; from public
necessity, as in defence of a place it may be necessary to dam
the current of a stream, which will cause an inundation to the
upper lands; they may be occasioned by an invincible force, as
by the accidental fall of a rock in the stream; or they may
result from the erections of works on the stream. In the first
case, the injury caused by the inundation is to be compensated as
other injuries done in war; in the second, as there was no fault
of any one, the loss is to be borne by the unfortunate owner of
the estate; in the last, when the riparian. proprietor is
injured by such works as alter the level of the water where it
enters or where it leaves the property on which they are erected,
the person injured may recover damages for the injury thus caused
to his property by the innundation. 9 Co. 59; 4 Day's R. 244;
17 Serg. & Rawle, 383; 3 Mason's R. 172; 7 Pick. R. 198; 7
Cowen, R. 266; 1 B. & Ald. 258; 1 Rawle's R. 218; 5 N. H. Rep.
232; 9 Mass. R. 316; 4 Mason's R. 400; 1 Sim. & Stu. 203; 1
Come's R. 460. Vide Schult. Aq. R. 122; Ang. W. C. 101; 5 Ohio,
R. 322, 421; and art. Dam.
TO INURE. To take effect; as, the pardon inures.
INVALID. In a physical sense, it is that which is wanting
force; in a figurative sense, it signifies that which has no
effect.
INVASION. The entry of a country by a public enemy, making war.
2. The Constitution of the United States, art. 1, s. 8, gives
power to congress "to provide for calling the militia to execute
the laws of the Union, suppress insurrections, and repel
invasions." Vide Insurrection.
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INVENTION. A contrivance; a discovery. It is in this sense
this word is used in the patent laws of the United States. 17
Pet. 228; S. C. 1 How. U. S. 202. It signifies not something
which has been found ready made, but something which, in
consequence of art or accident, has been formed; for the
invention must relate ot some new or useful art, machine,
manufacture, or composition of matter, not before known or used
by others. Act of July 4, 1836, 4 Sharsw. continuation of Story's
L. U.S. 2506; 1 Mason, R. 302; 4 Wash. C. C. R. 9. Vide Patent.
By invention, the civilians understand the finding of some things
which had not been lost; they must either have abandoned, or
they must have never belonged to any one, as a pearl found on the
sea shore. Lec. Elem § 350.
INVENTIONES. This word is used in some ancient English charters
to signify treasure-trove.
INVENTOR. One who invents or finds out something.
2. The patent laws of the United States authorize a patent to
be issued to the original inventor; if the invention is
suggested by another, he is not the inventor within the meaning
of those laws; but in that case the suggestion must be of the
specific process or machine; for a general theoretical
suggestion, as that steam might be applied to the navigation of
the air or water, without pointing out by what specific process
or machine that could be accomplished, would not be such a
suggestion as to deprive the person to whom it had been made from
being considered as the inventor. Dav. Pat. Cas. 429; 1 C. & P.
558; 1 Russ. & M. 187; 4 Taunt. 770; B ut see 1 M. G. & S.
551; 3 Man. Gr. & Sc. 97.
3. The applicant for a patent must be both the first and
original inventor. 4 Law Report. 342.
INVENTORY. A list, schedule, or enumeration in writing,
containing, article by article, the goods and chattels, rights
and credits, and, in some cases, the lands and tenements, of a
person or persons. In its most common acceptation, an inventory
is a conservatory act, which is made to ascertain the situation
of an intestate's estate, the estate of an insolvent, and the
like, for the purpose of securing it to those entitled to it.
2. When the inventory is made of goods and estates assigned or
conveyed in trust, it must include all the property conveyed.
3. In case of intestate estates, it is required to contain only
the personal property, or that to which the administrator is
entitled. The claims due to the estate ought to be separated;
those which are desperate or had ought to be so returned. The
articles ought to be set down separately, as already mentioned,
and separately valued.
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4. The inventory is to be made in the presence of at least two
of the creditors of the deceased, or legatees or next of kin,
and, in their default and absence, of two honest persons. The
appraisers must sign it, and make oath or affirmation that the
appraisement is just to the best of their knowledge. Vide,
generally, 14 Vin. Ab. 465; Bac. Ab. Executors, &c., E 11; 4
Com. Dig. 14; Ayliffe's Pand. 414; Ayliffe's Parerg. 305; Com.
Dig. Administration, B 7; 3 Burr. 1922; 2 Addams' Rep. 319; S.
C. 2 Eccles. R. 322; Lovel. on Wills; 38; 2 Bl. Com. 514; 8
Serg. & Rawle, 128; Godolph. 150, and the article Benefit of
Inventory.
TO INVEST, contracts. To lay out money in such a manner that it
may bring a revenue; as, to invest money in houses or stocks;
to give possession.
2. This word, which occurs frequently in the canon law, comes
from the Latin word investire, which signifies to clothe or adorn
and is used, in that system of jurisprudence, synonymously with
enfeoff. Both words signify to put one into the possession of, or
to invest with a fief, upon his taking the oath of fealty or
fidelity to the prince or superior lord.
INVESTITURE, estates. The act of giving possession of lands by
actual seisin When livery of seisin was made to a person by the
common law he was invested with the whole fee; this, the foreign
feudists and sometimes 'our own law writers call investiture, but
generally speaking, it is termed by the common law writers, the
seisin of the fee. 2 Bl. Com. 209, 313; Feame on Rem. 223, n.
(z).
2. By the canon law investiture was made per baculum et
annulum, by the ring and crosier, which were regarded as symbols
of the episcopal jurisdiction. Ecclesiastical and secular fiefs
were governed by the same rule in this respect that previously to
investiture, neither a hishop, abbey or lay lord could take
possession of a fief. conferred upon them previously to
investiture by the prince.
3. Pope Gregory VI. first disputed the right of sovereigns to
give investiture of ecclesiastical fiefs, A. D. 1045, but Pope
Gregory VII. carried. on the dispute with much more vigor, A. D.
1073. He excommunicated the emperor, Henry IV. The Popes Victor
III., Urban II. and Paul II., continued the contest. This
dispute, it is said, cost Christendom sixty-three battles, and
the lives of many millions of men. De Pradt.
INVIOLABILITY. That which is not to be violated. The persons of
ambassadors are inviolable. See Ambassador.
INVITO DOMINO, crim. law. Without the consent of the owner.
2. In order to constitute larceny, the property stolen must be
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taken invito domino; this is the very essence of the crime.
Cases of considerable difficulty arise when the owner has, for
the purpose of detecting thieves, by himself or his agents,
delivered the property taken, as to whether they are larcenies or
not; the distinction seems to be this, that when the owner
procures the property to be taken it is not larceny; and when he
merely leaves it in the power of the defendant to execute his
original purpose of taking it, in the latter case it will be
considered as taken invito domino. 2 Bailey's Rep. 569; Fost.
123; 2 Russ. on Cr. 66, 105; 2 Leach, 913; 2 East, P. C. 666;
Bac. Ab. Felony, C.; Alis. Prin. 273; 2 Bos. & Pull. 508; 1
Carr. & Marsh. 217; article, Taking.
INVOICE, commerce. An account of goods or merchandise sent by
merchants to their correspondents at home or abroad, in which the
marks of each package, with other particulars, are set forth.
Marsh. Ins. 408; Dane's Ab. Index, h. t. An invoice ought to
contain a detailed statement, which should indicate the nature,
quantity, quality, and price of the things sold, deposited, &c. 1
Pardess. Dr. Com. n. 248. Vide Bill of Lading; and 2 Wash. C. C.
R. 113; Id. 155.
INVOICE BOOK, commerce, accounts. One in which invoices are
copied.
INVOLUNTARY. An involuntary act is that which is performed with
constraint, (q. v.) or with repugnance, or without the will to do
it. An action is involuntary then, which is performed under
duress. Wolff, §5. Vide Duress.
IOWA. The name of one of the new states of the United States of
America.
2. This state was admitted into the Union by the act of
congress, approved the 3d day of March, 1845.
3. The powers of the government are divided into three separate
departments, the legislative, the executive, and judicial and no
person charged with the exercise of power properly belonging to
one of these departments, shall exercise any function
appertaining to either of the others, except in cases provided
for in the constitution.
4. - I. The legislative authority of this state is vested in a
senate and house of representatives , which are designated the
general assembly of the state of Iowa.
5. - §1. Of the senate. This will be considered with reference,
1. To the qualifications of the electors. 2. The qualifications
of the members. 3. The length of time for which they are elected.
4. The time of their election. 5. The number of senators.
6. - 1. Every white. male citizen of the United States, of the
age of twenty-one years, who shall have been a resident of the
state six months next preceding the election, and the county, in
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which he claims his vote twenty days, shall be entitled to vote
at all elections which are how or hereafter may be authorized by
law. But with this exception, that no person in the military,
naval, or marine service of the United States, shall be
considered a resident of this state, by being stationed in any
garrison, barrack, military or naval place or station within this
state. And no idiot or insane person, or person convicted of any
infamous crime, shall be entitled to the privilege of an elector.
Art. 3.
7. - 2. Senators must be twenty-five years of age, be free
white male citizens of the United States, and have been
inhabitants of the state or territory one, year next preceding
their election; and, at the time of their elections have an
actual residence of thirty days in the county or district they
may be chosen to represent. Art. 4, s. 5.
8. - 3. The senators are elected for four years. They are so
classed that one-half are renewed every two years. Art. 4, s. 5.
9.-4. They are chosen every second year, on the first Monday in
August. Art. 4, B. 3.
10. - 5. The number of senators; is not less than one-third,
nor more than one-half the representative body. Art. 4, s. 6.
11.- §2. Of the house of representatives. This will be
considered in the same order which has been observed with regard
to the senate.
12. - 1. The electors qualified to vote for senators are
electors of members of the house of representatives.
13. - 2. No person shall be a member of the house of
representatives who shall not have attained the age of twenty-one
years; be a free male white citizen of the United States, and
have been an inhabitant of the state or territory one year next
preceding his election; and at the time of his election have an
actual residence of thirty days in the county or district he may
be chosen to represent. Art. 4, s. 4.
14. - 3. Members of the house of representatives are chosen,
for two years. Art. 4, s. 3.
15.-4. They are elected at the same time that senators are
elected.
16.-5. The number of representatives is not limited.
17. The two houses have respectively the following power's.
Each house has power - To choose its own officers, and judge of
the qualification of its members. To sit upon its adjournments;
keep a journal of its proceedings and publish the same; punish
members for disorderly behaviour, and, with the consent of
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two-thirds, expel a member but not a second time for the same
offence; and shall have all other power necessary for a branch
of the general assembly of a free and independent state.
18. The house of representatives has the power of impeachment,
and the senate is a court for the trial of persons impeached.
19. - II. The supreme executive power is vested in a chief
magistrate, who is called the governor of the state of Iowa. Art.
5, s. 1.
20. The governor shall be elected by the qualified electors, at
the time and place of voting for members of the general assembly,
and hold his office for four years from the time of his
installation, and until his successor shall be duly qualified.
Art. 5, s. 2.
21. No person shall be eligible to the office of governor, who
is not a citizen of the United States, a resident of the state
two years next preceding his election, and attained the age of
thirty-five years at the time of holding said election. Art. 5,
s. 3.
22. Various powers are conferred on the governor among others,
he shall be commander-in-chief of the militia, army, and navy of
the state; transact executive business with the officers of the
government; see that the laws are faithfully executed; fill
vacancies by granting temporary commissions on extraordinary
occasions convene the general assembly by proclamation;
communicate by message with the general assembly at every session
adjourn the two houses when they cannot agree upon the time of an
adjournment; may grant reprieves and pardons, and commute
punishments after conviction, except in cases of impeachment
shall be keeper of the great seal; and sign all commissions. He
is also invested with the veto power.
23. When there is a vacancy in the office of governor, or in
case of his impeachment, the duties of his office shall devolve
on the secretary of state; on his default, on the president of
the senate and if the president cannot act, on the speaker of the
house of representatives.
24. - III. The judicial power shall be vested in a supreme
court, district courts, and such inferior courts as the general
assembly may, from time to time, establish. Art. 6, s. 1.
25. - §1. The supreme court shall consist of a chief justice
and two associates, two of whom shall be a quorum to hold court.
Art. 6, s. 2.
26. The judges of the supreme court shall be elected by joint
ballot of both branches of the general assembly, and shall hold
their courts at such time and place as the general assembly may
direct, and hold their office for six years, and until their
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successors are elected and qualified, and shall be ineligible to
any other office during the term for which they may be elected
Art. 6, s. 3.
27. The supreme court shall have appellate jurisdiction only in
all eases in chancery, and shall constitute a court for the
correction of errors at law, under such restrictions as tho
general assembly may by law prescribe. It shall have power to
issue all writs and process necessary to do justice to parties,
and exercise a supervisory control over all inferior judicial
tribunals, and the judges of the supreme court shall be
conservators of the peace throughout the state. Art. 6, s. 3.
28. - §2. The district court shall consist of a judge who shall
be elected by the qualified electors of the district in which he
resides, at the township election, and hold his office for the
term of five years, and until his successor is duly elected and
qualified, and shall be ineligible to any other office during the
term for which he may be elected.
29. The district court shall be a court of law and equity, and
have jurisdiction in all civil and criminal matters arising in
their respective districts, in such manner as shall be prescribed
by law. The judges of the district courts shall be conservators
of the peace in their respective districts. The first general
assembly shall divide the state into four districts, which may be
increased as the exigencies require. Art. 6, s. 4.
IPSE. He, himself; the very man.
IPSO FACTO. By the fact itself.
2. This phrase is frequently employed to convey the idea that
something which has been done contrary to law is void. For
example, if a married man, during the life of his wife, of which
he had knowledge, should marry another woman, the latter marriage
would be void ipsofacto; that is, on that fact being proved, the
second marriage would be declared void ab initio.
IPSO JURE. By the act of the law itself, or by mere operation
of law.
IRE AD LARGUM. To go at large; to escape, or be set at
liberty. Vide Ad largum.
IRONY, rhetoric. A term derived from the Greek, which signifies
dissimulation. It is a refined species of ridicule, which, under
the mask of honest simplicity or ignorance, exposes the faults
and errors of others, by seeming to adopt or defend them.
2. In libels, irony may convey imputations more effectually
than direct assertion, and render the publication libelous. Hob.
215; Hawk. B. 1, c. 73, s. 4; 3 Chit. Cr. Law, 869, Bac. Ab.
Libel, A 3.
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IRREGULAR. That which is done contrary to the common rules of
law; as, irregular process, which is that issued contrary to law
and the common practice of the court. Vide Regular and. Irregular
Process.
IRREGULAR DEPOSIT. This name is given to that kind of deposit,
where the thing deposited need not be returned; as, where a man
deposits, in the usual way, money in bank for safe keeping, for
in this case the title to the identical money becomes vested in
the bank, and he receives in its place other money.
IRREGULARITY, practice. The doing or not doing that in the
conduct of a suit at law, which, conformably with the practice of
the court, ought or ought not to be done.
2. A party entitled to complain of irregularity, should except
to it previously to taking any step by him in the cause; Lofft.
323, 333; because the taking of any such step is a waiver of any
irregularity. 1 Bos. k Pbil. 342; 2 Smith's R. 391; 1 Taunt. R.
58; 2 Taunt. R. 243; 3 East, R. 547; 2 New R. 509; 2 Wils. R.
380.
3. The court will, on motion, set aside proceedings for
irregularity. On setting aside a judgment and execution for
irregularity, they have power to impose terms on the defendant,
and will restrain him from bringing an action of trespass, unless
a strong case of damage appears. 1 Chit. R. 133, n.; and see
Baldw. R. 246. Vide 3 Chit. Pr. 509; and Regular and Irregular
Process.
4. In the canon law, this term is used to signify any
impediment which prevents a man from taking holy orders.
IRRELEVANT EVIDENCE. That which does not support the issue, and
which) of course, must be excluded. See Relevant.
IRREPLEVISABLE, practice. This term is applied to those things
which cannot legally be replevied. For example, in Pennsylvania
no goods seized in execution or for taxes, can be replevied.
IRRESISTIBLE FORCE. This term is applied to such an
interposition of human agency, as is, from its nature and power,
absolutely uncontrollable; as the inroads of a hostile army.
Story on Bailm. §25; Lois des Batim. pt. 2. c. 2, §1. It differs
from inevitable accident; (q. v.) the latter being the effect of
physical causes, as, lightning, storms, and the like.
IREVOCABLE. That which cannot be revoked.
2. A will may at all times be revoked by the same person who
made it, he having a disposing mind; but the moment the testator
is rendered incapable to make a will he can no longer revoke a
former will, because he wants a disposing mind. Letters of
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attorney are generally revocable; but when made for a valuable
consideration they become irrevocable. 7 Ves. jr. 28; 1 Caines'
Cas. in Er. 16; Bac. Ab. Authority, E. Vide duthority; License;
Revocation.
IRRIGATION. The act of wetting or moist ening the ground by
artificial means.
2. The owner of land over which there is a current stream, is,
as such, the proprietor of the current. 4 Mason's R. 400. It
seems the riparian proprietor may avail himself of the river for
irrigation, provided the river be not thereby materially
lessened, and the water absorbed be imperceptible or trifling.
Ang. W. C. 34; and vide 1 Root's R. 535; 8 Greenl. R. 266; 2
Conn. R. 584; 2 Swift's Syst. 87; 7 Mass. R. 136; 13 Mass. R.
420; 1 Swift's Dig. 111; 5 Pick. R. 175; 9 Pick. 59; 6 Bing.
R. 379; 5 Esp. R. 56; 2 Conn. R. 584; Ham. N. P. 199; 2 Chit.
Bl. Com. 403, n. 7; 22 Vin. Ab. 525; 1 Vin. Ab. 657; Bac. Ab.
Action on the case, F. The French law coincides with our own. 1
Lois des Bƒtimens, sect. 1, art. 3, page 21.
IRRITANCY. In Scotland, it is the happening of a condition or
event by which a charter, contract or other deed, to which a
clause irritant is annexed, becomes void. Ersk. Inst. B. 2, t. 5,
n. 25. Irritancy is a kind of forfeiture. It is legal or
conventional. Burt. Man. P. R. 29 8.
ISLAND. A piece of land surrounded by water.
2. Islands are in the sea or in rivers. Those in the sea are
either in the open sea, or within the boundary of some country.
3. When new islands arise in the open sea, they belong to the
first occupant: but when they are newly formed so near the shore
as to be within the boundary of some state, they belong to that
state.
4. Islands which arise in rivets when in the middle of the
stream, belong in equal parts to the riparian proprietors when
they arise. mostly on one side, they will belong to the riparian
owners up to the middle of the stream. Bract. lib. 2, c. 2;
Fleta, lib. 3, c. 2, s. 6; 2 Bl. 261; 1 Swift's Dig. 111;
Schult. Aq. R. 117; Woolr. on Waters: 38; 4 Pick. R. 268;
Dougl. R. 441; 10 Wend. 260; 14 S. & R. 1. For the law of
Louisiana, see Civil Code, art. 505, 507.
5. The doctrine of the common law on this subject, founded on
reason, seems to have been borrowed from the civil law. Vide
Inst. 2, 1, 22; Dig. 41, 1, 7; Code, 7; 41, 1.
ISSINT. This is a Norman French word which signifies thus, so.
It has given the name to a part of a plea, because when pleas
were in that language this word was used. In actions founded on
deeds, the defendant may, instead of pleading non est factum in
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the common form, allege any special matter which admits the
execution of the writing in question, but which, nevertheless,
shows that it is not in law his deed; and may conclude with and
so it is not his deed; as that the writing was delivered to A B
as an escrow, to be de-livered over on certain conditions, which
have not been complied with, "and so it is not his act;" or that
at, the time of making the writing, the defendant was a feme
covert,: and so it is not her act." Bac. Ab. Pleas, H 3, I 2;
Gould on Pl. c. 6, part 1, §64.
2. An example of this form of plea which is sometimes called
the special general issue, occurs in 4 Rawle, Rep. 83, 84.
ISSUABLE, practice. Leading or tending to an issue. An issuable
plea is one upon which the plaintiff can take issue and proceed
to trial.
ISSUE, kindred. This term is of very extensive import, in its
most enlarged signification, and includes all persons who have
descended from a common ancestor. 17 Ves. 481; 19. Ves. 547; 3
Ves. 257; 1 Rop. Leg. 88 and see Wilmot's Notes, 314, 321. But
when this word is used in a will, in order to give effect to the
testator's intention it will be construed in a more restricted
sense than its legal import conveys. 7 Ves. 522; 19 Ves. 73; 1
Rop. Leg. 90. Vide Bac. Ab. Curtesy of England, D; 8 Com. Dig.
473; and article Legatee, II. §4.
ISSUE, pleading. An issue, in pleading, is defined to be a
single, certain and material point issuing out of the allegations
of the parties, and consisting, regularly, of an affirmative and
negative. In common parlance, issue also signifies the entry of
the pleadings. 1 Chit. Pl. 630.
2. Issues are material when properly formed on some material
point, which will decide the question in dispute between the
parties; and immaterial, when formed on some immaterial fact,
which though found by the verdict will not determine the merits
of the cause, and would leave the court at a loss how to give
judgment. 2 Saund. 319, n. 6.
3. Issues are also divided into issues in law and issues in
fact. 1. An issue in law admits all the facts and rests simply
upon a question of, law. It is said to consist of a single point,
but by this it must be understood that such issue involves,
necessarily, only a single rule or principle of law, or that it
brings into question the legal sufficiency of a single fact only.
It is meant that such an issue reduces the whole controversy to
the single question, whether the facts confessed by the issue are
sufficient in law to maintain the action or defence of the party
who alleged them. 2. An issue in fact, is one in which the
parties disagree as to their existence, one affirming they exist,
and the other denying it. By the common law, every issue in fact,
subject to some exceptions, which are noticed below, must consist
of a direct affirmative allegation on the one side, and of a
Bouvier's Law Dictionary : I1 : Page 125 of 129
direct negative on the other. Co. Litt. 126, a; Bac. Ab. Pleas,
&c. G 1; 5 Pet. 149; 2 Black. R. 1312; 8 T. R. 278. But it has
been holden that when the defendant pleaded that he was born in
France, and the plaintiff replied that he was born in England, it
was sufficient to form a good issue. 1 Wils. 6; 2 Str. 1177. In
this case, it will be observed, there were two affirmatives, and
the ground upon which the issue was holden to be good is that the
second affirmative is so contrary to the first, that the first
cannot in any degree be true. The exceptions above mentioned to
the rule that a direct affirmative and a direct negative are
required, are the following: 1st. The general issue upon a writ
of right is formed by two affirmatives: the demandant, on one
side, avers that he has greater right than the tenant; and, on
the other, that the tenant has a greater right than the
demandant. This issue is called the mise. (q. v.) Lawes, Pl. 232;
3 Chit. Pl. 652: 3 Bl. Com. 195, 305. 2d. In an action of dower,
the court merely demands the third part of acres of land, &c., as
the dower of the demandant of the endowment of A B, heretofore
the hushand, &c., and the general issue is, that A B was not
seised of such estate, &c., and that he could not endow the
demandant thereof, &c. 2 Saund. 329, 330. This mode of negation,
instead of being direct, is merely argumentative, and
argumentativeness is not generally allowed in pleading.
4. Issues in fact are divided into general issues, special
issues, and common issues.
5. The general issue denies in direct terms the whole
declaration; as in personal actions, where the defendant pleads
nil debet, that he owes the plaintiff nothing; or non
culpabilis, that he is not guilty of the facts alleged in the
declaration; or in real actions, where the defendant pleads nul
tort, no wrong done - or nul disseisin, no disseisin committed.
These pleas, and the like, are called general issues, because, by
importing an absolute and general denial of all the matters
alleged in the declaration, they at once put them all in issue.
6. Formerly the general issue was seldom pleaded, except where
the defendant meant wholly to deny the charge alleged against him
for when he meant to avoid and justify the charge, it was usual
for him to set forth the particular ground of his defence as, a
special plea, which appears to have been necessary' to apprize
the court and the plaintiff of the particular nature and
circumstances of the defendant's case, and was originally
intended to keep the law and the fact distinct. And even now it
is an invariable rule, that every defence which cannot be,
specially pleaded, may be given in evidence at the trial upon the
general issue, so the defendant is in many cases obliged to plead
the particular circumstances of his defence specially, and cannot
give them in evidence on that general plea. But the science of
special pleading having been frequently perverted to the purposes
of chicane and delay, the courts have in some instances, and the
legislature in others, permitted the general issue to be pleaded,
and special matter to be given in evidence under it at the trial,
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which at once includes the facts, the equity, and the law of the
case. 3 Bl. Com. 305, 6; 3 Green. Ev. §9.
7. The special issue is when the defendant takes issue upon
anly one substantial part of the declaration, and rests the
weight of his case upon it; he is then said to take a special
issue, in contradistinction to tho general issue, which denies
and puts in issue the whole of the declaration. Com. Dig.
Pleader, R 1, 2.
8. Common issue is the name given to that which is formed on
the single plea of non est factum, when pleaded to an action of
covenant broken. This is so called, because to an action of
covenant broken there can properly be no general issue, since the
plea of non est fadum, which denies the deed only, and not the
breach, does not put the whole declaration in issue. 1 Chit. Pl.
482; Lawes on Pl. 113; Gould, Pl. c. 6, part 1, §7 and §10, 2.
9. Issues are formal and informal.
10. A formal issue is one which is formed according to the
rules required by law, in a proper and artificial manner.
11. An informal issue is one which arises when a material
allegation is traversed in an improper or artificial manner. Ab.
Pleas, &c., G 2, N 5; 2 Saund. 319, a, n. 6. The defect is cured
by verdict., by the statute of 32 H. VIII. c. 30.
12. Issues are also divided into actual and feigned issues.
13. An actual issue is one formed in an action brought in the
regular manner, for the purpose of trying a question of right
between the parties.
14. A feigned issue is one directed by a court, generally by a
court exercising equitable powers, for the purpose of trying
before a jury a matter in dispute between the parties. When in a
court of equity any matter of fact is strongly contested, the
court usually directs the matter to be tried by a jury,
especially such important facts as the validity of a will, or
whether A is the heir at law of B.
15. But as no jury is summoned to attend this court, the fact
is usually directed to be tried in a court of law upon a feigned
issue. For this purpose an action is brought in which the
plaintiff by a fiction dares that he laid a wager for a sum of
money with the defendant, for example, that a certain paper is
the last will and testament of A; then avers it is his will, and
therefore demands the money; the defendant admits the wager but
avers that, it is not the will of A, and thereupon that. issue is
joined, which is directed out of chancery to be tried; and thus
the verdict of the jurors at law determines the fact in the court
of equity.
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16. These feigned issues are frequently used in the courts of
law, by consent of the parties, to determine some disputed rights
without the formality of pleading, and by this practice much time
and expense are saved in the decision of a cause. 3 Bl. Com. 452.
The consent of the court must also be previously obtained; for
the trial of a feigned issue without such consent is a contempt,
which will authorize the court to order the proceeding to be
stayed, and punish the parties engaged. 4 T. R. 402. See
Fictitious action. See, generally Bouv. Inst. Index, h. t.
ISSUE ROLL, Eng. law. The name of a record which contains an
entry of the term of which the demurrer book, issue or paper book
is entitled, and the, warrants of attorney supposed to have been
given by the parties at the commencement of the cause, and then
proceeds with the transcript of the declaration and subsequent
pleadings, continuances, and award of the mode of the decision as
contained in the demurrer, issue or paper book. Steph. Pl. 98,
99. After final judgment, the issue roll is no longer called by
that name, but assumes that of judgment roll. 2 Arch. Pr. 206.
ISSUES, Eng. law. The goods and profits of the lands of a
defendant against whom a writ of distringas or distress infinite
has been issued, taken by virtue of such writ, are called issues.
3 Bl. Com. 280; 1 Chit. Cr. Law, 351.
ISTHMUS. A tongue or strip of land between two seas. Glos. on
Law, 37, book 2, tit. 3, of the Dig.
ITA EST. These words signify so it is. Among the civilians when
a notary dies, leaving his register, an officer who is authorized
to make official copies of his notarial acts, writes instead of
the deceased notary's name, which is required, when he is living,
ita est,
ITA QUOD. The name or condition in a submission which is
usually introduced by these words "so as the award be made of and
upon the premises," which from the first word is called the ita
quod.
2. When the submission is with an ita guod, the arbitrator must
make an award of all matters. submitted to him of which he had
notice, or the award will be entirely void. 7 East, 81; Cro.
Jac. 200; 2 Vern. 109; 1 Ca. Chan. 86; Roll. Ab. Arbitr. L. 9.
ITEM. Also; likewise; in like manner.; again; a second
time. These are the various meanings of this Latin adverb. Vide
Construction.
2. In law it is to be construed conjunctively, in the sense. of
and, or also, in such a manner as to connect sentences. If
therefore a testator bequeath a legacy to Peter payable out of a
particular fund, or charged upon a particular estate, item a
legacy to James, James' legacy as well as Peter's will be a
charge upon the same property. 1 Atk. 436; 3 Atk. 256 1 Bro. C.
Bouvier's Law Dictionary : I1 : Page 128 of 129
C. 482; 1 Rolle's Ab. 844; 1 Mod. 100; Cro. Car. 368; Vaugh.
262; 2 Rop. on Leg. 849; 1 Salk. 234. Vide Disjunctive.
ITER. A foot way. Vide Way.
ITINERANT. Travelling or taking a journey. In England there
were formerly judges called Justices itinerant, who were sent
with commissions into certain counties to try causes.
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