U.S. Law Dictioanry (G || H || I || J )

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GABEL. A tax, imposition, or duty. This word is said to have the same signification that gabelle formerly had in France. Cunn. Dict. h. t. But this seems to be an error for gabelle signified in that country, previously to its revolution, a duty upon salt. Merl. Rep. h. t. Lord Coke says, that gabel or gavel, gablum, gabellum, gabelletum, galbelletum, and gavillettum signify a rent, duty, or service, yielded or done to the king or any other lord. Co. Litt. 142, a.
GAGE, contracts. Personal property placed by a debtor in possession of his creditor, as a security for his debt; a pawn. (q. v.) Hence mortgage is a dead pledge.
GAGER DEL LEY. Wager of law. (q. v.)
GAIN. The word is used as synonymous with profits. (q. v.) See Fruit.
GAINAGE, old Eng. law. It signifies the draft oxen, horses, wain, plough, and furniture for carrying on the work of tillage by the baser sort of soke men and villeins, and sometimes the land itself, or the profits raised by cultivating it. Bract. lib. 1, c. 9.
GALLON, measures. A gallon is a liquid measure, containing two hundred and thirty-one cubic inches, or four quarts.
GALLOWS. An erection on which to bang criminals condemned to death.
GAME. Birds and beasts of a wild-nature, obtained by fowling and hunting. Bac. Ab. h. t.; Animals; Ferae natural.
GAMING. A contract between two or more persons by which they agree to play by certain rules at cards, dice, or other contrivance, and that one shall be the loser, and the other the winner. When considered in itself, and without regard to the end proposed by the player's, there is nothing in it contrary to natural equity, and the contract will be considered as a reciprocal gift, which the parties make of the thing played for, under certain. conditions.
2. There are some games which depend altogether upon skill, others, upon chance, and some others are of a mixed nature. Billiards is an example of the first; lottery of the second; and backgammon of the last.
3. In general, at common law all games are lawful, unless some fraud has been practiced, or such games are contrary to public policy. Each of the parties to the contract must, 1. Have a right to the money or thing played for. 2. He must have given his full and free consent, and not been entrapped by fraud. 3. There must be equality in the play. 4. The play must be conducted fairly. But even when all these rules have been observed, the courts will not countenance gaming by giving too easy a remedy for the recovery of money won at play. Bac. Ab. h. t. A.
4. But when fraud has been practiced, as in all other cases, the contract is void and in some cases, when the party has been guilty of cheating, by playing with false dice, cards and the like, he may be indicted at common law, and fined and imprisoned, according to the heinousness of the offence. 1 Russ. on Cr, 406.
5. Statutes have been passed in perhaps all the states forbidding gaining for money, at certain games, and prohibiting the recovery of money lost at such games. Vide Bac. Ab. h. t.; Dane's Ab. Index, h. t.; Poth. Traite du Jeu; Merlin, Repertoire, mot Jeu; Barbeyrac, Traite du Jeu, tome 1, p. 104, note 4; 1 P. A. Browne's Rep. 171: 1 Overt. R. 360; 3 Pick. 446; 7 Cowen, 496; 1 Bibb, 614; 1 Miss. 635; Mart. & Yerg. 262; 1 Bailey, 315; 6 Rand. 694; 8 Cowen, 139; 2 Blackf. 251; 3 Blackf. 294; and Stakeholder; Wagers.
GAMING HOUSES, crim. law. Houses kept for the purpose of pemitting persons to gamble for money or other valuable thing. They are nuisances in the eye of the law, being detrimental to the public, as they promote cheating and other corrupt practices. 1 Russ. on Cr. 299; Roscoe's Cr. Ev. 663; Hawk. B. 1, ch. 75, s. 6; 3 Denio's R. 101; 8 Cowen, 139; This offence is punished in Pennsylvania, an perhaps in most of the states, by statutory provisions.
GANANCIAL, Spanish law. A term which in Spanish signifies nearly the same as acquets. Bienes gananciales are thus defined: " Aquellos que el marido y la muger o cualquiera de los dos adquieren o aumentan durante el matrimonio por compra o otro contrato, 6 mediante su trabajo e industria, como tambien los frutos de los bienos proprios que cada uno elevo al matrimonio, et de los que subsistiendo este adquieran para si por cualquier titulo." 1 Febr. Nov. lib. 1, tit. 2, c. 8, s. 1. This is a species of community; the property of which it is formed belongs in common to the two consorts, and, on the dissolution of the marriage, is divisible between them in equal shares. It is confined to their future acquisition durante el matrimonio, and the frutos, or rents and profits of the other property. 1 Burge on Confl. of Laws, 418, 419; Aso & Man. Inst. B. 1, t. 7, c. 5, §1.
GAOL. A prison or building designated by law or used by the sheriff, for the confinement or detention of those, whose persons are judicially ordered to be kept in custody., This word, sometimes written jail, is said to be derived from the Spanish jaula, a cage, (derived from caula,) in French geole, gaol. 1 Mann. & Gran. 222, note a. Vide 6 John. R. 22; 14 Vin. Ab. 9; Bac. Ab. h. t.; Dane's Ab. Index, h. t.; 4 Com. Dig. 619; and the articles Gaoler; Prison; Prisoner.
GAOL-DELIVERYEng. law. To insure the trial, within a certain time, of all prisoners, a patent in the nature of a letter is issued from the king to certain persons, appointing them his justices, and authorizing them to deliver his goals. Cromp. Jurisd. 125; 4 Inst. 168; 4 Bl. Com. 269; 2 Hale, P. C. 22, 32; 2 Hawk. P. C. 14, 28. In the United States, the judges of the criminal courts are required to cause the accused to be tried within the times prescribed by the local statutes, and the constitutions rcqpire a speedy trial.
GAOLER. The keeper of a gaol or prison, one who has the legal custody of the placo where prisoners are kept.
2. It is his duty to keep the prisoners in safe custody, and for this, purpose he may use all necessary force. 1 Hale, P. C. 601. But any oppression of a prisoner under a pretended necessity will be punished; for the prisoner, whether he be a debtor or a criminal, is entitled to the protection of the laws from oppression.
GARDEN. A piece of ground appropriated to raising plants and flowers.
2. A garden is a parcel of a house and passes with it. Br. Feoffm. de terre, 53; 2 Co. 32; Plowd. 171; Co. Litt. 5 b, 56 a, b. But see Moore, 24; Bac. Ab. Grants, I.
GARNISHEng. law. Money paid by a prisoner to his fellow prisoners on his entrance into prison. .
TO GARNSIH. To warn; to garnish the heir, is to warn the heir. Obsolete.
GARNISHEE, practice. A person who has money or property in his possession, belonging to a defendant, which money or property has been attached in his hands, and he has had notice of such attachment; he is so called because he has had warning or notice of the attachment.
2. From the time of the notice of the attachment, the garnishee is bound to keep the property in his hands to answer the plaintiff's claim, until the attachment is dissolved, or he is otherwise discharged. Vide Serg. on Att. 88 to 110; Com. Dig. Attachment, E.
3. There are garnishees also in the action of detinue. They are persons against whom process is awarded, at the prayer of the defendant, to warn them to come in and interplead with the plaintiff. Bro. Abr. Detinue, passim.
GARNISHMENT. A warning to any one for his appearance, in a cause in which he is not a party, for the information of the court, and explaining a cause. For example, in the practice of Pennsylvania, when an attachment issues against a debtor, in order to secure to the plaintiff a claim due by a, third person to such debtor, notice is given to such third person, which notice is a garnishment, and he is called the garnishee.
2. In detinue, the defendant cannot have a sci. fac. to garnish a third person unless he confess the possession of the chattel or thing demanded. Bro. Abr. Garnishment, 1, 5. And when the garnishee comes in, he cannot vary or depart from the allegation of the defendant in his prayer of garnishment. The plaintiff does not declare de novo against the garnishee; but the garnishee, if he appears in due time, may have oyer of the original declaration to which he pleads. See Bro. Abr. Garnishee and Garnishment, pl. 8, and this title, passim.
GAUGER. An officer appointed to examine all tuns, pipes, hogsheads, barrels, and tierces of wine, oil, and other liquids, and to give them a mark of allowance, as containing lawful measure.
GAVEL. A tax, imposition or tribute; the same as gabel. (q. v.)
GAVELKIND. Given to all the kindred, or the hold or tenure of a family, not the kind of tenure. Eng. law. A tenure or custom annexed or belonging to land in Kent, by which the lands of the father are equally divided among all his sons, or the land of the brother among all his brothers, if he have no issue of his own. Litt. s. 210.
GELD, old Eng. law. It signifies a fine or compensation for an offence; also, rent, money or tribute.
GEMOTE. An assembly. Wittena gemote, during the time of the Saxons in England, signified an assembly of wise men. The parliament.
GENDER. That which designates the sexes.
2. As a general rule, when the masculine is used it includes the feminine, as, man (q. v.) sometimes includes women. This is the general rule, unless a contrary intention appears. But in penal statutes, which must be construed strictly, when the masculine is used and not the feminine, the latter is not in general included. 3 C. & P. 225. An instance to the contrary, however, may be found in the construction, 25 Ed. III, st. 5, c. 2, §1, which declares it to be high treason, "When a man doth compass or imagine the death of our lord the king," &c. These words, "our lord the king," have been construed to include a queen regnant. 2 Inst. 7, 8, 9; H. P. C. 12; 1 Hawk. P. C. c. 17; Bac. Ab. Treason, D.
3. Pothier says that the masculine often includes the feminine, but the feminine never includes the masculine; that according to this rule if a man were to bequeath to another all his horses, his mares would pass by the legacy; but if he were to give all his mares, the horses would not be included. Poth. Introd. au titre 16, des Testaments et Donations Testamentaires, n. 170; 3 Brev. R. 9. In the Louisiana code in the French language, it is provided that the word fils, sons, comprehends filles, daughters. Art. 3522, n. 1. Vide Ayl. Pand. 57; 4 Car. & Payne, 216; S. C. 19 Engl. Com. Law R. 351; Barr. on the Stat. 216, note; Feme; Feme covert; Feminine; Male; Man; Sex; Women; Worthiest of blood.
GENEALOGY. The summary history or table of a house or family, showing how the persons there named are connected together.
2. It is founded on the idea of a lineage or family. Persons descended from the common father constitute a family. Under the idea of degrees is noted the nearness or remoteness, of relationship, in which one person stands with respect to another. A series of several persons, descended from a common progenitor, is called a line. (q. v.) Children stand to each other in the relation either of full blood or half blood, according as they are descended from the same parents, or have only one parent in common. For illustrating descent and relationship, genealogical tables are constructed, the order of which depends on the end in view. In tables, the object of which is to show all the individuals embraced in a fanlily, it is usual to begin with the oldest progenitor, and to put all the persons of the male or female sex in descending, and then in collateral lines. Other tables exhibit the ancestors of a particular person in ascending lines both on the father's and mother's side. In this way 4, 8, 16, 32- &c. ancestors are exhibited, doubling at every degree. Some tables are constructed in the form of a tree, after the. model of canonical law, (arbor consanguinitatis,) in which the progenitor is placed beneath, as if for the root or stem. Vide Branch; Line.
GENER. A son-in-law. Dig. 50, 16, 156.
GENERAL. This word has several meanings, namely: 1. A principal officer, particularly in the army. 2. Something opposed to special; as, a general verdict, the general issue, which expressions are used in contradistinction to special verdict, special issue. 3. Principal, as the general post office. 4. Not select, as a general ship. (q. v.) 5. Not particular, as a general custom. 6. Not limited, as general jurisdiction. 7. This word is sometimes annexed or prefixed to other words to express or limit the extent of their signification; as Attorney General, Solicitor General, the General Assembly, &c.
GENERAL ASSEMBLY. This name is given in some of the states to the senate and house of representatives, which compose the legislative body.
GENERAL IMPARLANCE, pleading. One granted upon a prayer, in which the defendant reserves to himself no exceptions, and is always from one term to another. Gould on Pl. c. 2, §17.
2. After such imparlance, the defendant cannot plead to the jurisdiction nor in abatement, but only to the action or merits. See Imparlance.
GENERAL ISSUE, pleading. A plea which traverses or denies at once the whole indictment or declaration, without offering any special matter, to evade it. It is called the general issue, because, by importing an absolute and general denial of what is alleged in the indictment or declaration, it amounts at once to an issue. 2 Bl. Com. 305.
2. The general issue in criminal cases, is, not guilty. In civil cases, the general issues are almost as various as the forms of action; in assumpsit, the general issue is non-assumpsit; in debt, nil debet; in detinue, non detinet; in trespass, non cul. or not guilty; in replevin, non cevit, &c.
3. Any matter going to show that a deed or contract, or other instrument is void, may be given in evidevce under the general issue; 10 Mass. 267, 274; 14 Pick. 303, 305; such as usury. 2 Mass. 540; 12 Mass. 26; 15 Mass. 48, 54. See 4 N. Hamp. R. 40; 2 Wend. 246; 6 Mass. 460; 10 Mass. 281. But a right to give evidence under the general issue, any matter which would avail under a special plea does not extend to matters in abatement. 9 Mass. 366: 14 Mass. 273; Gould on Pl. c. 4, pt. 1, §9, et seq.; Special Issue.
GENERAL LAND OFFICE. One of the departments of government of the United St
ates. 2. It was established by the Act of April 25,1812, 2 Story's Laws U. S. 1238; another act was passed March 24, 1824, 3 Story, 1938, which authorized the employment of additional officers. And it was reorganized by the following act, entitled "An act to reorganize the General Land Office," approved July 4, 1836.
3. - §1. Be it enacted, &c. That from and after the passage of this act, the executive duties now prescribed, or which may hereafter be prescribed by law, appertaining to the surveying and sale of the public lands of the United States, or in anywise respecting such public lands, and, also, such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the government of the United States, shall be subject to the supervision and control of the commissioner of the general land office, under the direction of the president of the United States.
4. - §2. That there shall be appointed in said office, by the president, by and with the advice and consent of the senate, two subordinate officers, one of whom shall be called principal clerk of the public lands, and the other principal clerk on private land claims, who shall perform such duties as may be assigned to them by the commissioners of the general land office; and in case of vacancy in the office of the commissioner of the general land office, or of the absence or sickness of the commissioner, the duties of said office shall devolve upon. and be performed, ad interim, by the principal clerk of the public lands.
5. - §3. That there shall be appointed by the president, by and with the advice and consent of the senate, an officer to be styled the principal clerk of the surveys, whose duty it shall be to direct and superintend the making of surveys, the returns thereof, and all matters relating thereto, which are done through the officers of the surveyor general; and he shall perform such other duties as may be assigned to him by the commissioner of thegeneral land office.
6. - §4. That there shall be appointed by the president, by and with the consent of the senate, a recorder of the general land office, whose duty it shall be, in pursuance of instructions from the commissioner, to certify and affix the seal of the general land office to all patents for public lands, and he shall attend to the correct engrossing and recording and transmission of such patents. He shall prepare alphabetical indexes of the names of patentees, and of persons entitled to patents and he shall. prepare such copies and exemplifications of matters on file, or recorded in the general land office, as the commissioner may from time to time direct.
7.- §5. That there shall be appointed by the president, by and with the advice and consent of the senate, an officer to be called the solicitor of the general land office, with an annual salary of two thousand dollars, whose duty it shall be to examine and present a report to the commissioner, of the state of facts in all cases referred by the commissioner to his attention which shall involve questions of law, or where the facts are in controversy between the agents of government and, individuals, or there are conflicting claims of parties before the department, with his opinion thereon; and, also, to advise the commissioner, when required thereto, on all questions growing out of the management of the public lands, or the title thereto, private land claims, Virginia military scrip, bounty lands, and preemption claims and to render such farther professional services in the business of the department as may be required, and shall be connected with the discharge of the duties theroof.
8.- §6. That it shall be lawful for the president of the United States, by and with the advice and consent of the senate, to appoint a secretary, with a salary of fifteen hundred dollars per annum, whose duty it shall be, under the direction of the president, to sign in his name, and for him, all patents for land sold or granted under the authority of the United States.
9. - §7. That it shall be the duty of the commissioner, to cause to be prepared, and to certify, under the seal of the general land office, such copies of records, books, and papers on file in his office, as may be applied for, to be used in evidence in courts of justice.
10. - §8. That whenever the office of recorder shall become vacant, or in case of the sickness or absence of the recorder, the duties of his office shill be performed, ad interim, by the principal clerk on private land claims.
11. - §9. That the receivers of the land offices shall make to the secretary of the treasury mouthly returns of the moneys received in their several offices, and pay over such money, pursuant to his instructions. And they shall also make to the commissioner of the general land office, like monthly returns, and transmit to him quarterly accounts current of the debits and credits of their several offices with the United States.
12. - §10. That the commissioner of the general land office shall be entitled to receive an annual salary of three thousand dollars; the recorder of the general land office an annual salary of fifteen hundred dollars; the principal clerk of the surveys, an annual salary of eighteen hundred dollars; and each of the said principal clerks an annual salary of eighteen hundred dollars from and: after the date of their respective commissions; and that the said commissioner be authorized to employ, for the service of the general land office, one clerk, whose annual salary shall not exceed fifteen hundred dollars; four clerks, whose annual salary Shall not exceed fourteen hundred dollars each; sixteen clerks, whose annual salary shall not exceed thirteen hundred dollars each; twenty clerks, whose annual salary shall not exceed twelve hundred dollars each; five clerks, whose annual salary shall not exceed eleven hundred dollars each; thirty-five clerks, whose annual salary shall not exceed one thousand dollars each; one principal draughtsman, whose annual salary shall not exceed fifteen hundred dollars;, one assistant draughtsman, whose annual salary shall not exceed twelve hundred dollars; two messengers, whose annual salary shall not exceed seven hundred dollars each; three assistant messengers, whose annual salary shall not exceed three hundred and fifty dollars each and two packers, to make up packages of patents, blank forms, and other things necessary to be transmitted to the district land offices, at a salary of four hundred and fifty dollars each.
13. - §11. That such provisions of the Act of the 25th of April, in the year one thousand eight hundred and twelve, entitled An act for the establishment of a general land office in the department of the treasury, and of all acts amendatory thereof, as are inconsistent with the provisions of this act, be, and the same are hereby repealed.
14. - §12. That from the first day of the month of October, until the first day of the month of April, in each and every ear, the general land office and all the bureaus and offices therein, as well as those in the departments of the treasury, war, navy, state, and general post-office, shall be open for the transaction of the public business at least eight hours in each and every day, except Sundays and the twenty-fifth day of December; and from the first day of April until the first day of October, in each year, Ill the aforesaid offices and bureaus shall be kept open for the transaction of the public business at least ten hours, in each and every day, except Sundays and the fourth day of July.
15. - §13. That if any person shall apply to any register of any land office to enter any land whatever, and the said register shall knowingly and falsely inform the person so applying that the same has already been entered, and refuse to permit the person so applying to enter the same, such register shall be liable therefor, to the person so applying, for five dollars for each acre of land which the person so applying offered to enter, to be recovered by action of debt, in any court of record having jurisdiction of the amount.
16. - §14. That all and every of the officers whose salaries are hereinbefore provided for, are hereby prohibited from directly or indirectly purchasing, or in any way becoming interested in the purchase, of, any of the public land; and in case of a violation of this section by such officer, and on proof thereof being made to the president of the United States, such officer, so offending, shall be, forthwith, removed from office.
GENERAL SHIP. One which is employed by the master or owners, on a particular voyage, and is hired by a number of persons, unconnected with each other, to convey their respective goods to the place of destination.
2. This contract, although usually made with the master, and not with the owners, is considered in law to be made with them also, and that both he and they are separately bound to the performance of it. Abbott on Ship. 112, 215, 216.
GENERAL SPECIAL IMPARLANCE, pleading. One in which the defendant reserves to himself " all advantages and exceptions whatsoever." 2 Chit. Pl. 408.
2. This kind of imparlance allows the defendant not only to plead in abatement and to the action, but also to the jurisdiction of the court. Gould on Pl. c. 2, §19. See Imparlance.
GENERAL TRAVERSE, pleading. One preceded by a general inducement, and denying, in general terms, all that is last before alleged on the opposite side, instead of pursuing the words of the allegations, which it denies. Gould on Pl. vii. 5, 6.
2. Of this sort of traverse, the replication de injuria sua propria, absque tali causa, in answer to a justification, is a familiar example. Bac. Ab. Pleas, H 1 Steph. Pl. 171; Gould, Pl. c. 7, §5 Archb. Civ. Pl. 194. Vide T?-averse; Special Traverse.
GENS. A word used by the Romans to represent race and nation. 1 Tho. Co. Litt. 259, n. 13. In the French law, it is used to signify people or nations, as Droit des Gens, the law of nations.
GENTLEMAN. In the English law, according to Sir Edward Coke, is one who bears a coat of armor. 2 Inst. 667. In the United States, this word is unknown to the law, but in many places it is applied, by courtesy, to all men. See Poth. Proc. Crim. sect. 1, App. §3.
GENTLEWOMAN. This word is unknown to the law in the United States, and is but little used. In England. it was, formerly, a good addition of the state or degree of a woman. 2 Inst. 667.
GENUS. It denotes the number of beings, or objects, which agree in certain general properties, common to them all, so that genus is, in fact, only an abstract idea, expressed by some general name or term; or rather a name or term, to signify what is called au abstract idea. Thus, goods is the generic name, and includes, generally, all personal property; but this word may be restrained, particularly in bequests to such goods as are of the same kind as those previously enumerated. Vide 3 Ves. 311 11 Ves. 657; 1 Eq. Cas. Ab. 201, pl. 14; 2 Ves. sen. 278, 280; Dig. 50, 17, 80; Id. 12, 1, 2, 3.
GEORGIA. The name of one of the original states of the United States of America. George the Second granted a charter to Lord Percival, and twenty others, for the government of the province of Georgia. It was governed under this charter till the year 1751, when it was surrendered to the crown. From that period to the time of the American revolution, the colony was governed as other royal provinces.
2. The constitution of the state, as revised, amended, and compiled by the convention of the state, was adopted at Louisville, on the 30th day of May, 1798. It directs, art. 1, s. 1, that the legislative, executive, and judiciary departments of government shall be distinct, and each department shall be confided to a separate body of magistracy.
3.-1. The legislative power is vested in two separate and distinct branches, to wit, a senate and house of representatives, styled the General Assembly." 1st. The senate is elected annually, and is composed of one member from each county, chosen by the electors thereof. The senate elect, by ballot, a president out of their own body. 2d. The house of representatives is composed of members from all the counties, according to their respective numbers of free white persons, and including three-fifths of all the people of color. The enumeration is made once in seven years, and any county containing three thousand persons, according to the foregoing plan of enumeration, is entitled to two members; seven thousand to three members; and twelve thousand to four members; but each county shall have at least one, and not more than four members. The representatives are chosen annually. The house of representatives choose their speaker and other officers.
4. - 2. The executive power is vested in a governor, elected by the general assembly, who holds his office for the term of two years. In case of vacancy in his office, the president of the senate acts as governor, until the disability is removed, or until the next meeting of the general assembly.
5. - 3. The judicial powers of the state are, by the 3d article of the constitution, distributed as follows:
§1. The judicial powers of this state shall be vested in a superior court, and in such inferior jurisdictions as the legislature shall, from time to time, ordain and establish. The judges of the superior courts shall be elected for the term of three years, removable by the governor, on the address of two-thirds of both houses for that purpose, or by impeachment and conviction thereon. The superior court shall have exclusive and final jurisdiction in all criminal cases which shall be tried in the county wherein the crime was committed; and in all cases respecting titles to land, which shall be tried in the county where the land lies; and shall have power to correct errors in inferior judicatories by writs of certiorari, as well as errors in the superior courts, and to order new trials on proper and legal grounds Provided, That such new trials shall be determined, and such errors corrected, in the superior court of the county in which such action originated. And the said court shall also have appellative jurisdiction in such other cases as the legislature may by law direct, which shall in no case tend to remove the cause from the county in which the action originated; and the judges thereof, in all cases of application for new trials, or correction of error, shall enter their opinions on the minutes of the court. The inferior courts shall have cognizance of all civil cases, which shall be tried in the county wherein the defendant resides, except in cases of joint obligors, residing in different counties, which may be commenced in either county; and a copy of the petition and process served on the party or parties residing out of the county in which the suit may be commenced, shall be deemed sufficient service, under such rules and regulations as the legislature may direct; but the legislature may, by law, to which two-thirds of each branch shall concur, give concurrent jurisdiction to the superior courts. The superior and inferior courts shall sit in each county twice in every year, at such stated times as the legislature shall appoint.
6. - §2. The judges shall have salaries adequate to their services, established by law, which shall not be increased or diminished during their continuance in office; but shall not receive any other perquisites or emoluments whatever, from parties or others, on account of any duty required of them.
7. - §3. There shall be a state's attorney and solicitors appointed by the legislature, and commissioned by the governor, who shall hold their offices for the term of three years, unless removed by sentence on impeachment, or by the governor, on the address of each branch of the general assembly. They shall have salaries adequate to their services, established by law, which shall not be increased or diminished during their continuance in office.
8. - §4. Justices of the inferior courts shall be appointed by the general assembly, and be commissioned by the governor, and shall hold their commissions during good behaviour, or as long a they respectively reside in the county for which they shall be appointed, unless revoved by sentence on impeachment, or by the governor, on the address of two-thirds of each branch of the general assembly. They may be compensated for their services in such manner as the legislature may by law direct.
9. - §5. The justices of the peace shall be nominated by the inferior courts of the several counties, and commissioned by the governor; and there shall be two justices of the peace in each captain's district, either or both of whom shall have power to try all cases of a civil nature within their district, where the debt or litigated demand does not exceed thirty dollars, in such manner as the legislature may by law direct. They shall hold their appointments during good behaviour, or until they shall be removed by conviction, on indictment in the superior court, for malpractice in office, or for any felonious or infamous crime, or by the governor, on the address of two-thirds of each branch of the legislature.
10. - §6. The powers of a court of ordinary or register of probates, shall, be invested in the inferior courts of each county; from whose decision there may be an appeal to the superior court, under such restrictions and regulations as the general assembly may by law direct; but the inferior court shall have power to vest the care of the records, and other proceedings therein, in the clerk, or such other person as they may appoint; and any one or more justices of the said court, with such clerk or other person, may issue citations and grant temporary letters in time of vacation, to hold until the next meeting of the said court; and such clerk or other person may grant marriage licenses.
11. - §7. The judges of the superior courts, or any one of them, shall have power to issue writs of mandamus. prohibi tion, scire facias, and all other writ's which may be necessary for carrying their powers fully into effect.
GERMAN, relations, germanus. Whole or entire, as respects genealogy or descent; thus, "brother-german," denotes one who is brother both by the father and mother's side cousins-germane" those in the first and nearest degree, i. e., children of brothers or sisters. Tech. Dict.; 4 M. & C. 56.
GERONTOCOMI, civil law.. Officers appointed to manage hospitals for poor old persons. Clef des Lois Rom. mot Administrateurs.
GESTATION, med. jur. The time during which a female, who has conceived, carries the embryo or foetus in her uterus. By the common consent of mankind, the term of gestation is considered to be ten lunar months, or forty weeks, equal to nine calendar months and a week. This period has been adopted, because general observation, when it could be correctly made, has proved its correctness. Cyclop. of Pract. Med. vol. 4, p. 87, art. Succession of inheritance. But this may vary one, two, or three weeks. Co. Litt. 123 b, Harg. & Butler's, note 190*; Ryan's Med. Jurisp. 121; Coop. Med. Jur: 18; Civ. Code of Louis. art. 203-211; 1 Beck's Med. Jur. 478. See Pregnancy.
GIFT, conveyancing. A voluntary conveyance; that is, a conveyance not founded on the consideration of money or blood. The word denotes rather the motive of the conveyance; so that a feoffment or grant may be called a gift when gratuitous. A gift is of the same nature as a settlement; neither denotes a form of assurance, but the nature of the transaction. Watk. Prin. 199, by Preston. The operative words of this conveyance are do or dedi. The maker of this instrument is called the donor, and he to whom it is made, the donee. 2 B. Com. 316 Litt. 69; Touchs. ch. 11.
GIFT, contracts. The act by which the owner of a thing, voluntarily transfers the title and possession of the same, from himself to another person who accepts it, without any consideration. It differs from a grant, sale, or barter in this, that in each of these cases there must be a consideration, and a gift, as the definitionstates, must be without consideration.
2. The manner of making the gift may be in writing, or verbally, and, as far as personal chattels are concerned, they are equally binding. Perk. §57; 2 Bl. Com. 441. But real estate must be transferred by deed.
3. There must be a transfer made with an intention of passing the title, and delivering the possession of the thing given, and it must be accepted by the donee. 1 Madd. Ch. R. 176, Am. ed. p. 104; sed vide 2 Barn. & Ald. 551; Noy's Rep. 67.
4. The transfer must be without consideration, for if there be the least consideration, it will change the contract into a sale or barter, if possession be delivered; or if not, into an executory contract. 2 Bl. Com. 440.
5. Gifts are divided into gifts inter vivos, and gifts causa mortis; and also' into simple or proper gifts; that is, such as are to take immediate effect, without any condition; and qualified or improper gifts, or such as derive their force upon the happening, of some condition or contingency; as, for example, a donatio causa mortis. Vide Donatio causa mortis; Gifts inter vivos; and Vin. Ab. h. t.; Com. Dig. Biens, D 2, and Grant; Bac. Ab. Grant; 14 Vin. Ab. 19 3 M. & S. 7 5 Taunt. 212 1 Miles, R. 109.
GIFT INTER Vivos. A gift made from one or more persons, without any prospect of immediate death, to one or more others.
2. These gifts are so called to distinguish them from gifts causa-mortis, (vide Donatio causa mortise,) from which they differ essentially. 1. A gift inter vivos, when completed by delivery, passes the title to the thing so that it cannot be recovered back by the giver; the gift causa mortis is always given upon the implied condition that the giver may, at any time during his life, revoke it. 7 Taunt. 231; 3 Binn. 366. 2. A gift inter vivos may be made by the giver at any time; the donatio causa mortis must be made by the donor while in peril of death. In both cases there must be a delivery. 2 Kent's Com. 354; 1 Beav. R. 605; 1 Miles, R. 109.
GIFTOMAN, Swedish law. He who has a right to dispose of a woman in marriage.
2. This right is vested in the father, if living; if dead, in the mother. They may nominate a person in their place; but for want of such nomination, the brothers german; and for want of them, the consanguine brothers; and in default of the latter, uterine brothers have the right, but they are bound to consult the paternal or maternal grandfather. Swed- Code, tit. of Marriage.
GILL. A measure of capacity, equal to one-fourth of a pint. Vide Measure.
GIRANTEM, mer. law. An Italian word,, which signifies the drawer. It is derived from, girare, to draw, in the same manner as the English verb to murder, is transformed into murdrare in our old indictments. Hall, Mar. Loans, 183, n.
GIRTH., A girth or yard is a measure of length. The word is of Saxon origin, taken from the circumference of the human body. Girth is contracted from girdeth, and signifies as much as girdle. See Ell.
GIST, pleading. Gist of the action is the essential ground or object of it, in point of law, and without which there is no cause of action. Gould on Pl. c. 4, §12. But it is observable that the substance or gist of the action is not always the principal cause of the plaintiff Is complaint in point of fact, nor that on which he recovers all or the greatest part of his damages.
2. It frequently bappens that upon that part of his declaration which contains the substance or gist of the, action, he only recovers nominal damages, and he gets his principal satisfaction on account of matter altogether collateral thereto. A familiar instance of this is the case where a father sues the defendant for a trespass for the seduction of his daughter. The gist of the action is the trespass, and the loss of his daughter's services, but the collateral cause is the injury done to his feelings, for which the principal damages are given. In stating the substance or gist of the action, every thing must be averred which is necessary to be proved at the trial. Vide 1 Vin. Ab. 598; 2 Phil. Ev. 1, note. See Bac. Abr. Pleas, B; Doct. P. 85. See Damages, special, in pleading; 1 Vin. At. 598; 2 Phil. Ev. 1, n.
GIVER, contracts. He who makes a gift. (q. v.) By his gift, the giver always impliedly agrees with the donee that he will not revoke the gift.
GIVING IN PAYMENT. This term is used in Louisiana; it signifies that a debtor, instead of paying a debt he owes in money, satisfies his creditor by giving in payment a movable or immovable. Vide Dation en paiement.
GIVING TIME, contracts. Any agreement by which a creditor gives his debtor a delay or time in paying his debt, beyond that contained in the original agreement. When other persons are responsible to him, either as drawer, endorser, or surety, if such time be given without the consent of the latter, it discharges them from responsibility to him. 1 Gall. Rep. 32; 7 John. R. 332; 10 John. Rep. 180; Id. 587 Kirby, R. 397 3 Binn. R. 523; 2 John. Ch. R. 554; 3 Desaus. Ch. Rep. 604; 2 Desaus. Ch. R. 230, 389 2 Ves. jr. 504; 6 Ves. jr. 805 3 Atk. 91; 2 Bos. & Pull,. 62; 4 M. & S. 232; Bac. Ab. Obligations, D; 6. Dow. P. C. 238; 3 Meriv. R. 272; 5 Barn., & A. 187. Vide 1 Leigh's N . P. 31; 1 B. & P. 652; 2 B. & P. 61; 3 B. & P. 363; 8 East, R. 570; 3 Price, R. 521; 2 Campb. R. 178. 12 East,.R. 38; 5 Taunt. R. 319; S. C. 1 E. C. L. R. 119; Rosc. Civ. Ev. 171; 8 Watts, R. 448; 4 Penn. St. R. 73; 10 Paige, 76; and the article Forbearance.
2. But more delay in suing, without fraud or any agreement with the principal, is not such giving time as will discharge the surety. 1 Gallis. 32; 2 Pick. 581 3 Blackf. 93 7 John. 332. See Surety.
GLADIUS. In our old Latin authors, and in the Norman laws, this word was used to signify supreme jurisdiction, jus gladii.
GLEANING. The act of gathering such grain in a field where it grew, as may, have been left by the reapers after the sheaves were gathered.
2. There is a custom in England, it is said, by which the poor are allowed to enter and glean upon another's land after harvest without being guilty of a trespass. 3 Bl. Com. 212 . But it has been decided that the community are not entitled to claim this privilege as a right. 1 Hen. Bl. 51. In the United States, it is believed, no such right exists. This right seems to have existed in some parts of France. Merl. Rep. mot Glanage. As to whether gleaning would or would not amount to larceny, vide Woodf. Landl. & Ten. 242; 2 Russ. on Cr. 99. The Jewish law may be found in the 19th chapter of Leviticus, verses 9 and 10. See Ruth, ii. 2, 3; Isaiah, xvii. 6.
GLEBE, eccl. law. The land which belongs to a church. It is the dowry of the church. Gleba est terra qua consistit dos ecclesiae. Lind. 254; 9 Cranch, Rep. 329. In the civil law it signified the soil of an inheritance; there were serfs of the glebe, called gleboe addicti. Code, 11, 47, 7 et 21; Nov. 54, c. 1.
GLOSS. Interpretation, comment, explanation, or remark, intended to illustrate the text of an author.
GLOSSATOR. A commentator or annotator of the Roman law. One of the authors of the Gloss.
GLOUCESTER, STATUTE OF. An English statute, passed 6 Edw. I., A. D., 1278; so called, because it was passed at Gloucester. There were other statutes made atGloucester, which do not bear this name. See stat. 2 Rich. II.
GO WITHOUT DAY. These words have a technical sense. When a party is dismissed the court, he is said to go without day; that is, there is no day appointed for him to appear again.
GOD. From the Saxon god, good. The source of all good; the supreme being. 1. Every man is presumed to believe in God, and he who opposes a witness on the ground of his unbelief is bound to prove it. 3 Bouv. Inst. u. 3180.
2. Blasphemy against the Almighty, by denying his being or providence, was an offence punishable at common law by fine and imprisonment, or other infamous corporal punishment. 4 Bl. Corn. 60; 1 East, P. C. 3; 1 Russ. on Crimes, 217. This offence his been enlarged in Pennsylvania, and perhaps most of the states, by statutory provision. Vide Christianity; Blasphemy; 11 Serg. & Rawle, 394.
3. By article 1, of amendments to the Constitution of the United States, it is provided that "Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof." In the United States, therefore, every one is allowed to worship God according to the dictates of his own conscience.
GOD AND MY COUNTRY. When a prisoner is arraigned, he is asked, How will you be tried? he answers, "By God and my country." This practice arose when the prisoner had the right to choose the mode of trial, namely, by ordeal or by jury, and then he elected by God or by his country, that is, by jury. It is probable that originally it was "By God or my country" for the question asked supposes an option in the prisoner, and the answer is meant to assert his innocence by declining neither sort of trial. 1 Chit. Cr. Law, 416; Barr. on the Stat. 73, note.
GOD B0TE, eccl. law. An ecclesiastical or church fine imposed upon an. offender for crimes and offences committed against God.
GOING WITNESS. One who is going out of the jurisdiction of the court, although only into a state or country under the general sovereignty; as, for example, if he is going from one to another of the United States; or, in Great Britain, from England to Scotland. 2 Dick. 454.
GOLD. A metal used in making money, or coin. It is pure when the metal is unmixed with any other. Standard gold, is gold mixed with some other metal, called alloy. Vide Money.
GOOD BEHAVIOUR. Conduct authorized by law. Surety of good behaviour may be demanded from any person who is justly suspected, upon sufficient grounds, of intending to commit a crime or misdemeanor. Surety. for good behaviour is somewhat similar to surety of the peace, but the recognizance is more easily forfeited, and it ought to be demanded with greater caution. 1 Binn. 98, n.; 2 Yeates, 437; 14 Vin. Ab. 21; Dane's Ab. Index, h. t. As to what is a breach of good behaviour, see 2 Mart. N. S. 683; Hawk. b. 1, c. 61, s. 6 Chit. Pr. 676. Vide Surdy of the peace.
GOOD AND LAWFUL MEN, probi et legales homines. The law requires that those who serve on juries shall be good. and lawful men; by which is understood those qualified to serve on juries; that is, that they be of full age, citizens, not infamous nor non compos mentis, and they must be res ident in the county where the venue is laid. Bac. Ab. Juries, A; Cro. Eliz. 654; 3 Inst. 30; 2 Rolle's R. 82; Cam. & Norw. 38.
GOOD CONSIDERATION, contracts. A good consideration is one which flows from kindred or natural love and affection alone, and is not of a pecuniary.nature. Vin. Ab. Consideration, B; 1 Bouv. Inst. n. 613. Vide Consideration.
GOOD WILL. By this term is meant the benefit which arises from the establishment of particular trades or occupations. Mr. Justice Story describes a good will to be the advantage of benefit which is acquired by an establishment, beyond the mere value of the capital, stocks, funds, or property employed therein, in consequence of the general public patronage and encouragement, which it receives from constant or habitual customers, on account of its local position, or common celebrity, or reputation for skill or affluence, or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities, or prejudices. Story, Partn. §99; see 17 Ves. 336; 1 Hoffm. R. 68; 16 Am. Jur. 87.
2. As between partners, it has been held that the good will of a partnership trade survives; 6 Ves. 539; but this appears to be doubtful; 16 Ves. 227; and a distinction, in this respect, has been suggested between commercial and professional partnerships; the advantages of established connexions in the latter being held to survive, unless the benefit is excluded by positive stipulation. 3 Madd. 79. As to the sale, of the good-will of a trade or business, see. 3 Meriv. 452; 1 Jac. & Walk. 689; 2 Swanst. 332; 1 Ves. & Beames, 505; 17 Ves. 346; 2 Madd. 220; Gow on Partn. 428; Collyer on Partn. 172, note; 2 B. & Adolph. 341; 4 Id. 592, 596; 1 Rose, 123; 5 Russ. 29; 2 Watts, 111; 1 Chit. Pr. 868; 1 Sim. & Stu. 74; 2 Russ. R. 170; 1 Jac. & W. 380; 1 Russ. R. 376; 1 P. & W. 184; 2 Mad. R. 198; l T. R. 118. Vide 5 Bos. & Pull. 67; 1 Bro. C. C. 160, as to the effect of a bankrupt's assignment on a good-will; and 16 Amer. Jur. 87.
GOODS, property. For some purposes this term includes money, valuable securities, and other mere personal effects. The term. goods and chattels, includes not only personal property in possession, but also choses in action. 12 Co. 1; 1 Atk. 182. The term chattels is more comprehensive than that of goods, and will include all animate as well as inanimate property, and also a chattel real, as a lease for years of house or land. Co. Litt. 118; 1 Russ. Rep. 376. The word goods simply and without qualification, will pass the whole personal estate when used in a will, including even stocks in the funds. But in general it will be limited by the context of the will. Vide 2 Supp. to Ves. jr. 289; 1 Chit. Pr. 89, 90; 1. Ves. jr. 63; Hamm. on Parties, 182; 3 Ves. 212; 1 Yeates, 101; 2 Dall. 142; Ayl. Pand. 296; Wesk. Ins. 260; 1 Rop. on Leg. 189; 1 Bro. C. C. 128; Sugd. Vend. 493, 497; and the articles Biens; Chattels; Furniture. 2. Goods are said to be of different kinds, as adventitious, such as are given or arise otherwise than by succession; dotal goods, or those which accrue from a dowry, or marriage portion; vacant goods, those which are abandoned or left at large.
GOODS SOLD AND DELIVERED. This phrase is frequently used in actions of assumpsit, and the sale and delivery of goods are the foundation of the action. When a plaintiff declares for goods sold and delivered, he is required to prove, first, the contract of sale; secondly, the delivery of the goods, or such disposition of them as will be equivalent to it; and, thirdly, their value. 11 . Shepl. 505. These will be separately considered.
2. - 1. The contract of sale may be express, as where the purchaser actually bought the goods on credit, and promised to pay for them at a future time; or implied, where from his acts the defendant manifested an intention to buy them; as, for example, when one takes goods by virtue of a sale made by a person who has no authority to sell, and the owner afterwards affirms the contract, he may maintain an action for goods sold and delivered. 12 Pick. 120. Again, ifthe goods come, to the hands of the defendant tortiously, and are converted by him to his own use, the plaintiff may waive the tort, and recover as for goods sold and delivered. 3 N. H. Rep. 384; 1 Miss. R. 430, 643; 3 Watts, 277; 5 Pick. 285; 4 Binn. 374; 2 Gill & John. 326; 3 Dana, 552; 5 Greenl. 323. 3. - 2. The delivery must be made in accordance with the terms of the sale, for if there has not been such delivery no action can be maintained. 2 Ired. R. 12; 15 Pick. 171; 3 John. 534.
4.- 3. The plaintiff must prove the value of the goods; where there is an express agreement as to their value, be established by evidence, but where there is no such express agreement, the value of the goods at the time of sale must be proved. Coxe, 261. And the purchaser of goods cannot defend, against an action for the purchase money, by showing that the property was of no value. 8 Port. 133.
5. To support an action for goods sold and delivered, it is indispensable that the goods should have been sold for money, and that the credit on which they were sold should have expired. But where the goods have been sold on a credit to be paid for by giving a note or bill, and the purchaser does not give it according to contract, although the seller cannot recover in assumpsit for goods sold and delivered till the credit has expired, yet he may proceed immediately for a breach of the agreement. 21 Wend. 175.
6. When goods have been sold to be paid for partly in money, and partly in goods to be delivered to the vendor, the plaintiff must declare specially, and he cannot recover on the common count for goods sold and delivered. 1 Chit. Pl. 339; 1 Leigh's N. P. 88; 1 H. Bl. 287; Holt, 179.
GOUT, med. jur. contracts. An inflammation of the fibrous and ligamentous parts of the joints.
2. In cases of insurance on lives, when there is warranty of health, it seems that a man subject to the gout, is a life capable of being, insured, if he has no sickness at the time to make it an unequal contract. 2 Park, Ins. 583.
GOVERNMENT, natural and political law. The manner in which sovereignty is exercised in each state.
2. There are three simple forms of government, the democratic, the aristocratic, and monarchical. But these three simple forms may be varied to infinity by the mixture and divisions of their different powers. Sometimes by the word government is understood the body of men, or the individual in the state, to whom is entrusted the executive power. It is taken in this sense when the government is spoken of in opposition to other bodies in the state.
3. Governments are also divided into monarchical and republican; among the monarchical states may be classed empires, kingdoms, and others; in these the sovereignty resides in, a single individual. There are some monarchical states under the name of duchies, counties, and the like. Republican states are those where the sovereignty is in several persons. These are subdivided into aristocracies, where the power is exercised by a few persons of the first rank in the state; and democracies, which are those governments where the common people may exercise the highest powers. 1 Bouv. Inst. n. 20. See Aristocracy; Democracy; Despotism; Monarchy; Theocracy.
4. It should be remembered, however, that governments, for the most part, have not been framed on models. Their parts and their powers grew out of occasional acts, prompted by some urgent expediency, or some private interest, which, in the course of time, coalesced and hardened into usages. These usages became the object of respect and the guide of conduct long before they were embodied in written laws. This subject is philosophically treated by Sir James McIntosh, in his History of England. See vol. 1, p. 71, et seq.
GOVERNOR. The title of the executive magistrate in each state and territory of the United States. Under the names of the particular states, the reader will find some of the duties of the governor of such state.
GRACE. That which a person is not entitled to by law, but which is extended to him as a favor; a pardon, for example, is an act of grace. There are-certain days allowed to a payer of a promissory note or bill of exchange, beyond the time which appears on its face, which are called days of grace. (q. v.)
GRADUS. This is a Latin word, literally signifying a step; figuratively it is used to designate a person in the ascending or descending line, in genealogy; a degree.
GRAFFER. This word is a corruption of the French word greffier, a clerk, or prothonotary. It signifies a notary or scrivener; vide stat. 5 Hen. VII 1. c. 1.
GRAFT. A figurative term in chancery practice, to designate the right of a mortgagee in premises, to which the mortgagor at the time of making the mortgage had an imperfect title, but who afterwards obtained a good title. In this case the new mortgage is considered a graft into the old stock, and, as arising in consideration of the former title. 1 Ball & Beat. 46; Id. 40; Id. 57; 1 Pow. on Mortg. 190. See 9 Mass. 34. The same principle has obtained by legislative enactment in Louisiana. If a person contracting an obligation towards another, says the Civil Code, art. 2371, grants a mortgage on property of which he is not then the owner, this mortgage shall be valid, if the debtor should ever acquire the ownership of, the property, by whatever right.
GRAIN, weight. The twenty-fourth part of a pennyweight.
2. For scientific purposes the grain only is used, and sets of weights are constructed in decimal progression, from 10,000 grains downward to one hundredth of a grain.
GRAIN, corn. It signifies wheat, rye, barley, or other corn sown in the ground In Pennsylvania, a tenant for a certain term is entitled to the way-going crop. 5 inn. 289, 258; 2 Binn. 487; 2 Serg. & Rawle, 14.
GRAINAGE, Eng. law. The name of an ancient duty collected in London, consisting of one-twentieth part of the salt imported into that city.
GRAMME. A French weight. The gramme is the weight of a cubic centimetre of distilled water, at the temperature of zero. It is equal to 15.4441 grains troy, or 5.6481 drachms avoirdupois. Vide. Measure.
GRAND. An epithet frequently used to denote that the thing. to which it is joined is of more importance and dignity, than other things of the same name; as, grand assize, a writ in a real action to determine the right of property in land; grand cape, a writ used in England, on a plea of land, when the tenant makes default in appearance at the day given for the king to take the land into his hands; grand days, among the English lawyers, are those days in term which are solemnly kept in the inns of court and chancery, namely, Candlemas day, in Hilary term; Ascension day, in Easter term; and All Saint's day, in Michaelmas term; which days are dies non juridici. Grand distress is the name of a writ so called because of its extent, namely, to all. the goods and chattels of the party distrained within the county; this writ is believed to be peculiar to England. Grand Jury. (q. v.) Grand serjeantry, the name of an ancient English military tenure.
GRAND BILL OF SALEEng. law. The name of an instrument used for the transfer of a ship, while she is at sea; it differs from a common bill of sale. (q. v.) See 7 Mart. Lo. R. 318; 1 Harr. Cond. Lo. R. 567.
GRAND COUTUMIER. Two collections of laws bore this title. The one, also called the Coutumier of France, is a collection of the customs, usages, and forms of practice, which had been used from time immemorial in France: the other, called the Coutumier de Normandie, which indeed made a part of the former, with some alterations, was composed about the fourteenth of Henry II., in 1229, and is a collection of the Norman laws not as they stood at the Conquest of England, by William the Conqueror, but some time afterwards, and contains many provisions, probably borrowed from the old:English or Saxon laws. Hale's Hist. C. L. c. 6.
GRAND JURY, practice. A body of men, consisting of not less than twelve nor more than twenty-four, respectively returned by the sheriff of every county to every session of the peace, oyer and terminer and general gaol delivery, to whom indictments are preferred. 4 Bl. Com. 302; 1 Chit. C. L. 310, 1.
2. There is just reason to believe that this institution existed among the Saxons, Crabb's C. L. 35. By the constitutions of Clarendon, enacted 10 H. II. A. D. 1164, it is provided, that "if such men were suspected, whom none wished or dared to accuse, the sheriff, being thereto required by the bishop, should swear twelve men of the neighborhood, or village, to declare the truth" respecting such supposed crime; the jurors being summoned as witnesses or accusers, rather than judges. If this institution did not exist before, it seems to be pretty certain that this statute established grand juries, or recognized them, if they existed before.
3. A view of the important duties of grand juries will be taken, by considering, 1. The organization of the grand jury. 2. The extent of its jurisdiction. 3. The mode of doing business. 4. The evidence to be received. 5. Their duty to make presentments. 6. The secrecy to be observed by the grand jury.
4. - 1. Of the organization of the grand jury. The law requires that twenty-four citizens shall be summoned to attend on the grand jury; but in practice, not more than twenty-three are sworn, because of the inconvenience which else might arise, of having twelve, who are sufficient to find a true bill, opposed to twelve others who might be against it. 6 Adolph. & Ell. 236; S. C. 33 e. C. L. R. 66; 2 Caines, R. 98. Upon being called, all who present themselves are sworn, as it scarcely ever happens that all who are summoned are in attendance. The grand jury cannot consist of less than twelve, and from fifteen to twenty are usually sworn. 2 Hale, P. C. 161; 7 Sm. & Marsh. 58. Being called into the jurybox, they are usually permitted to select a foreman whom the court appoints, but the court may exercise the right to nominate one for them. The foreman then takes the following oath or affirmation, namely: "You A B, as foreman of this inquest for the body of the ______ of _________, do swear, (or affirm) that you will diligently inquire, and true presentments make, of all such articles, matters and things as shall be given you in charge, or otherwise come to your knowledge touching the present service; the commonwealth's counsel, your fellows and yhour own, you shall keep secret; you shall present no one for envy, hatred or malice; nor shall you leave any one unpresented for fear, favor, affection, hope of reward or gain; but shall present all things truly, as they come to your knowledge, according to the best of your understanding, (so help you God.") It will be perceived that this oath contains the substance of the duties of the grand jury. The foreman having been sworn or affirmed, the other grand jurors are sworn or affirmed according to this formula: "You 'and each of you do swear (or affirm) that the same oath (or affirmation) which your foreman has taken on his part, you and every one of you shall well and truly observe on your part." Being so sworn or affirmed, and having received the charge of the court, the grand jury are organized, and may proceed to the room provided for them to transact the business which may be laid before them. 2 Burr. 1088; Bac. Ab. Juries, A. The grand jury constitute a regular body until discharged by the court, or by operation of law, as where they cannot continue by virtue of an act of assembly beyond a certain day. But although they have been formally discharged by the court, if they have not separated, they may be called back, and fresh bills submitted to them; 9 C. & P. 43; S. C. 38 E. C. L. R. 2 8.
5. - 2. The extent of the grand jury's jurisdiction. Their jurisdiction is coextensive with that of the court for which they inquire; both as to the offences triable there, and the territory over which such court has jurisdiction.
6. - 3. The mode of doing business. The foreman acts as president, and the jury usually appoint one of their number to perform the duties of secretary. No records are to be kept of the acts of the grand jury, except for their own use, because, as will be seen hereafter, their proceedings are to be secret. Being thus prepared to enter upon their duties, the grand jury are supplied with bills of indictment by the attorney-general or other officer, representing the state or commonwealth against offenders. On these bills are endorsed the names of the witnesses by whose testimony they are supported. The witnesses are in attendance in another room, and must be called when wanted. Before they are examined as to their knowledge of the matters mentioned in the indictment, care must be taken that they have been sworn or affirmed. For the sake of convenience, they are generally sworn or affirmed in open court before they are sent to be examined, and when so qualified, a mark to that effect is made opposite their names.
7. In order to save time, the best practice is to find a true bill, as soon as the jury are satisfied that the defendant ought to be put upon his trial. It is a waste of time to examine any other witness after they have arrived at that conclusion. Twelve at least must agree, in order to find a true bill; but it is not required that they should be unanimous. Unless that number consent, the bill must be ignored. When a defendant is to be put upon his trial, the foreman must write on the back of the indictment "a true bill," sign his name as foreman, and date the time of finding. On the. contrary, where there is not sufficient evidence to authorize the finding of the bill, the jury return that they are ignorant whether the person accused committed the offence charged in the bill, which is expressed by the foreman endorsing on the bill "ignoramus," signing his name as before, and dating the time.
8. - 4. Of the evidence to be received. In order to, ascertain the facts which the jury have not themselves witnessed, they must depend upon the statement of those who know them, and who will testify to them. When the witness, from his position and ability, has been in a condition to know the facts about which he testifies, he is deserving of implicit confidence; if, with such knowledge, he has no motive for telling a false or exaggerated story, has intelligence enough to tell what he knows, and give a probable account of the transaction. If, on the other hand, from his position he could not know the facts, or if knowing them, he distorts them, he is undeserving of credit. The jury are the able judges of the credit and confidence to which a witness is entitled.
9. Should any member of the jury be acquainted with any fact on which the grand jury are to act, he must, before he testifies, be sworn or affirmed, as any other witness, for the law requires this sanction in all cases.
10. As the jury are not competent to try the accused, but merely to investigate the case so far as to ascertain whether he ought to be put on his trial, they cannot hear evidence in his favor; theirs is a mere preliminary inquiry; it is when he comes to be tried in court that he may defend himself by examining witnesses in his favor, and showing the facts of the case.
11. - 5. Of presentments. The jury are required to make true presentments of all such matters which may be given to them in charge, or which have otherwise come to their knowledge. A presentment, properly speaking, is the notice taken by the grand jury of any offence from their own knowledge, as of a nuisance, a libel, or the like. In these cases, the authors of the offence should be named, so that they may be indicted,
12. - 6. Of the secrecy to be observed by the grand jury. The oath which they have taken obliges them to keep secret the commonwealth's counsel, their fellows and their own. Although contrary to the general spirit of our institutions, which do not shun daylight, this secrecy is required by law for wise purposes. It extends to the votes given in any case, to the evidence delivered by witnesses, and the communications of the jurors to each other; the disclosure of these facts, unless under the sanction of law, would render the imprudent juror who should make them public, liable to punishment. Giving intelligence toa defendant that a bill has been found against him, to enable him to escape, is so obviously wrong, that no one can for a moment doubt its being criminal. The grand juror who should be guilty of this offence might, upon conviction, be fined and imprisoned. The duration of the secrecy appears not to be definitely settled, but it seems this injunction is to remain as long as the particular circumstances of each case require. In a case, for example, where a witness swears to a fact in open court, on the trial, directly in opposition to what he swore before the grand jury, there can be no doubt the injunction of secrecy, as far as regards this evidence, would be at an end, and the grand juror might be sworn to testify what this witness swore to in the grand jury's room, in order that the witness might be prosecuted for perjury. 2 Russ. Cr.. 616; 4 Greenl. Rep. 439; but see contra, 2 Halst. R. 347; 1 Car. & K. 519. Vide, generally, 1 Chit. Cr. Law, 162; 1 Russ. Cr. 291; 2 Russ. Cr. 616 2 Stark. Ev. 232, n. 1; 1 Hawk. 65, 500 2 Hawk. ch. 25; .3 Story, Const. §1778 2 Swift's Dig. 370; 4 Bl. Com. 402; Archb. Cr. Pl. 63; 7 Sm. Laws Penna. 685.
GRANDCHILDREN, domestic relations. The children of one's children. Sometimes these may claim bequests given in a will to children, though in general they can make no such claim. 6 Co. 16.
GRANDFATHER, domestic relations. The father of one's father or mother. The father's father is called the paternal grandfather; the mother's father is the maternal grandfather.
GRANDMOTHER, domestic relations. The mother of one's father or mother. The father's mother is called the paternal grandmother; the mother's mother is the maternal grandmother.
GRANT, conveyancing, concessio. Technically speaking, grants are applicable to the conveyance of incorporeal rights, though in the largest sense, the term comprehends everything that is granted or passed from one to another, and is applied to every species of property. Grant is one of the usual words in a feoffment, and differs but little except in the subject-matter; for the operative words used in grants are dedi et concessi, "have given and granted."
2. Incorporeal rights are said to lie in grant and not in livery, for existing only in idea, in contemplation of law, they cannot be transferred by livery of possession; of course at common law, a conveyance in writing was necessary, hence they are said to be in grant, and to pass by the delivery of the deed.
3. To render the grant effectual, the common law required the consent of the tenant of the land out of which the rent, or other incorporeal interest proceeded; and this was called attornment. (q. v.) It arose from the intimate alliance between the lord and vassal existing under the feudal tenures., The tenant could not alien the feud without the consent of the lord, nor the lord part with his seigniory without the consent of the tenant. The necessity of attornment has been abolished in the United States. 4 Kent, Com. 479. He who makes the grant is called the grantor, and he to whom it is made the grantee. Vide Com. Dig. h. t.; 14 Vin. Ab. 27; Bac. Ab. h. t. 4 Kent, Com. 477; 2 Bl. Com. 317, 440; Perk. ch. 1; Touchs. c. 12; 8 Cowen's R. 36.
4. By the word grant, in a treaty, is meant not only a formal grant, but any concession, warrant, order, or permission to survey, possess or settle; whether written or parol, express, or presumed from possession. Such a grant may be made by law, as well as by a patent pursuant to a law., 12 Pet. R. 410. See, generally, 9 A. & E. 532; 5 Mass. 472; 9 Pick. 80.
GRANT, BARGAIN, AND SELL. - By the laws of the states of Pennsylvania, Delaware, Missouri, and Alabama, it is declared that the words grant, bargain, and sell) shall amount to a covenant that the grantor was seised of an estate in fee, freed from encumbrances done or suffered by him, and for quiet enjoyment as against all his acts. These words do not amount to a general warranty, but merely to a covenant that the grantor has not done any acts nor created any, encumbrance, by which the estate may be defeated. 2 Binn. R. 95 3 Penna. R. 313; 3 Penna., R. 317, note; 1 Rawle, 377; 1 Misso. 576. Vide 2 Caines R. 188; 1 Murph. R. 343; Id. 348; Ark. Rev. Stat, ch. 31, s. 1; 11 S. & R. 109.
GRANTEE. He to whom a grant is made.
GRANTOR. He by whom a grant is made.
GRASSHEARTH, old Engl. law. The name of an ancient customary service of tenants doing one day's work for their landlord.
GRATIFICATION. A reward given voluntarily for some service or benefit rendered, without being requested so to do, either expressly or by implication.
GRATIS. Without reward or consideration.
2. When a bailee undertakes to perform some act or work gratis, he is answerable for his gross negligence, if any loss should be sustained in consequence of it; but a distinction exists between non-feasance and misfeasance; between a total omission to do an act which one gratuitously promises to do, and a culpable negligence in the execution of it; in the latter case he is responsible, while in the former he would not, in general, be bound to perform his contract. 4 Johns. R. 84; 5 T. 143; 2 Ld. Raym. 913.
GRATIS DICTUM. Assaying not required; a statement voluntarily made without necessity.
GRATUITOUS CONTRACT, civ. law. One, the object of which is for the benefit of the person with whom it is made, without any profit, received or promised, as a consideration for it as, for example, a gift. 1 Bouv. Inst. n. 709.
GRAVAMEN. The grievance complained of; the substantial cause, of the action. See Greenl. Ev. §66.
GRAVE. A place where a dead body is interred.
2. The violation of the grave, by taking up the dead body, or stealing the coffin or grave clothes, is a misdemeanor at common law. 1 Russ. on. Cr. 414. A singular case, illustrative of this subject, occurred in Louisiana. A son, who inherited a large estate from his mother, buried her with all her jewels, worth $2000; he then made a sale of all he inherited from his mother, for $30,000. After this, a thief broke the grave and stole the jewels, which, after his conviction, were left with the clerk of the court, to be delivered to the owner. The son claimed them, and so did the purchaser of the inheritance; it was held that the jewels, although buried with the mother, belonged to the son, and, that they passed to the purchaser by a sale of the whole inheritance. 6 Robins. L. R. 488. See Dead Body.
3. In New York, by statutory enactment, it is provided, that every person who shall open a grave, or other place of interment, with intent, 1. To remove the dead body of any human being, for the purpose of selling the same, or for the purpose of dissection; or, 2. To steal the coffin, or any part thereof, or the vestments or other articles interred with any dead body, shall, upon conviction, be punished by imprisonment, in a state prison, not exceeding two years, or in a county gaol, not exceeding six months, or by fine not, exceeding two hundred and fifty dollars, or by both such fine and imprisonment. Rev. Stat. part 4, tit. 5, art. 3, §15.
GREAT CATTLE. By this, term, in the English law, is, meant all manner of beasts except sheep and yearlings. 2 Rolle's Rep. 173.
GREAT CHARTER. The name of the charter granted by the English King John, securing to the English people their principal liberties; magna charta. (q. v.)
GREAT LAW. The name of an act of the legislature of Pennsylvania, passed at Chester, immediately after the arrival of William Penn, December 7th, 1682. Serg. Land Laws of Penn. 24, 230.
GREE, obsolete. It signified satisfaction; as, to make gree to the parties, is, to agree with, or satisfy them for, an offence done.
GREEN WAXEng. law. The name of the estreats of fines, issues, and amerce ments in the exchequer, delivered to the sheriff under the seal of that court, which is made with green wax.
GROS BOIS, or GROSSE BOIS. Such wood as, by the common law or custom, is reputed timber. 2 hist. 642.
GROSS. Absolute; entire, not depending on another. Vide Common.
GROSS ADVENTURE. By this term the French lay writers signify a maritime loan, or bottomry. (q, v.) It is so called because the lender exposes his money to the perils of the sea; and contributes to the gross or general average. Poth. h. t.; Pard. Dr. Com . h. t.
GROSS AVERAGE, mar. law. That kind of average which falls on the ship, cargo, and freight, and. is distinguished from particular average. See Average.
GROSS NEGLIGENCE. Lata culpa, or, as the Roman lawyers most accurately call it) dolo proxima, is, in practice, considered as equivalent to dolus or fraud itself, and consists, according to the best interpreters, in the omission of that care which even inattentive and thoughtless men never fail to take of their own property. Jones on Bailments, 20. It must not be confounded, however, with fraud, for it may exist consistently with good faith and honesty of intention, according to common law authorities.
GROSS WEIGHT. The total weight of goods or merchandise, with the chests, bags, and the like, from which. are to be deducted tare and tret.
GROUND RENT, estates. In Pennsylvania, this term is used to signify a perpetual rent issuing out of some real estate. This rent is redeemable where there is a covenant in the deed that, before the expiration of a period therein named, it may be redeemed by the payment of a certain sum of money; or it is irredeemable, when there is no such agreement; and, in the latter case, it cannot be redeemed without the consent of both parties. See 1 Whart. R. 837; 4 Watts, R. 98; Cro. Jac. 510; 6 Halst. 262; 7 Wend. 463; 7 Pet. 596; 2 Bouv. Inst. n. 1659, and note, and Emphyteosis.
GROUNDAGE, mar. law. The consideration paid for standing a ship in a port. Jacobs, Dict. h. t., Vide Demurrage.
GUARANTEE, contracts. He lo whom a guaranty is made.
2. The guarantee is entitled to receive payment, in the first place, from the debtor, and, secondly, from the guarantor. He must be careful not to give time beyond that stipulated in the original agreement, to the debtor, without the consent of the guarantor; the guarantee should, at the instance of the guarantor, bring an action against the principal for the recovery of the debt. 2 Johns. Oh. R. 554; 17 Johns. R. 384; 8 Serg. & Rawle, 116; 10 Serg. & Rawle, 33; 2 Bro. C. C. 579, 582; 2 Ves. jr. 542. But the mere omission of the guarantee to sue the principal debtor will not, in general, discharge the guarantor. 8 Serg. & Rawle, 112; 3 Yeates, R. 157; 6 Binn. R. 292, 300.
GUARANTOR, contracts. He who makes a guaranty.
2. The guarantor is bound to fulfil the engagement he has entered into, provided the principal debtor does not. He is bound only to the extent that the debtor is, and any payment made by the latter, or release of him by the creditor, will operate as a release of the guarantor; 3 Penna. R. 19; or even if the guarantee should give time to the debtor beyond that contained in the agreement, or substitute a new agreement, or do any other act by which the guarantor's situation would be worse, the obligation of the latter would be discharged. Smith on Mer. Law, 285.
3. A guarantor differs from a surety in this, that the former cannot be sued until a failure on the part of the principal, when sued; while the latter may be sued at the same time with the principal. 10 Watts, 258.
GUARANTY, contracts. A promise made upon a good consideration, to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person, who is, in the first instance, liable to such payment or performance. 1 Miles' Rep. 277.
2. The English statute of frauds, 29 Car. II. c. 3, which, with modification, has been adopted in most of the states; 3 Kent's Com. 86 requires, that "upon any special promise to answer for the debt, default, or miscarriage of another person, the agreement, Or some memorandum, or note thereof, must be in writing, and signed by the party to be charged therewith, or some other thereunto by him lawfully authorized." This clause of the statute is not in force in Pennsylvania. To render this statute valid, under the statute, its form must be in writing; it must be made upon a sufficient consideration; and it must be to fulfil the engagement of another.
3. - 1. The agreement must be in writing, and signed by the party to be bound, or some one authorized by him. It should substantially contain the names of the party promising, and of the person on whose behalf the promise is made; the promise itself, and the consideration for it.
4. - 2. The word agreement in the statute includes the consideration for the promise, as well as the promise itself; if, therefore, the guaranty be for a subsisting, debt, or engagement of another person, not only the engagement, but the consideration for it, must appear in the writing. 5 East, R. 10. This has been the construction which has been given in Eugland, and which has been followed in New York and South Carolina, though it has been rejected in several other states. 3 John. R. 210; 8 John. R. 29; 2 Nott & McCord, 372, note; 4 Greenl. R. 180, 387; 6 Conn..R. 81; 17 Mass. R. 122. The decisions have all turned upon the force of the word agreement; and where by statute the word promise has been introduced, by requiring the promise or agreement to be in writing, as in Virginia, the construction has not been so strict. 5 Cranch's R. 151, 2.
5. - 3. The guaranty must be to answer for the debt or default of another. The term debt implies, that the liability of the principal debtor had been previously incurred; but a default may arise upon an executory contract, and a promise to pay for goods to be furnished to another, is a collateral promise to pay on the other's default, provided the credit was given, in the first instance, solely to the other. It is a general rule, that when a promise is made by a third person, previous to the sale of goods, or other credit given, or other liability incurred, it conies within the statute, when it is conditional upon the default of another, who is solely liable in the first instance, otherwise not; the only inquiry to ascertain this, is, to whom was it agreed, that the vendor or creditor should look in. the first instance ? Many nice distinctions have been made on this subject. 1st. When a party actually purchases goods himself, which are to be delivered to a third person, for, his sole use, and the latter was not to be responsible, this is not a case of guaranty, because the person to whom the goods were furnished, never was liable. 8 T. R. 80. 2d. Where a person buys goods, or incurs any other liability, jointly with another, but for the use of that other, and this fact is known to the creditor, the guaranty must be in writing. 8 John. R. 89. 3d. A person may make himself liable, in the third place, by adding his credit to that of another, but conditionally only, in case of the other's default. This species of promise comes immediately within the meaning of the statute, and in the cases is sometimes termed a collateral promise.
6. Guaranties are either special or for a particular transaction, or they are continuing guaranties; that is, they are to be valid for other transactions, though not particularly mentioned. 2 How. U. S. 426; 1 Metc. 24; 7 Pet. 113; 12 East, 227; 6 M. & W. 612; 6 Sc. N. S. 549; 2 Campb. 413; 3 Campb. 220,; 3 M. & P. 573; S, C. 6 Bing. 244 2 M. & Sc. 768; S. C. 9 Bing. 618 3 B. & Ald. 593; 1 C. & M. 48; S. C. 1 Tyr. 164. Vide, generally, Fell on Mercantile Guaranties; Bouv. Inst. Index, h. t.; 3 Kent's Com. 86; Theob. P. & S. c. 2 & 3; Smith on Mer. Law, c. 10; 3 Saund. 414, n., 5; Wheat. Dig. 182 14 Wend. 231. The following authorities refer to cases of special guaranties of notes. 6 Conn. 81; 20 John. 367; 1 Mason 368; 8 Pick. 423; 2 Dev. & Bat. 470; 14 Wend. 231. Of absolute guaranties. 2 Har. & J. 186; 3 Fairf. 193 1 Mason, 323; 12 Pick. 123. Conditional guaranties. 12 Conn. 438. To promises to guaranty. 8 Greenl. 234; 16 John. 67.
GUARDIANS, domestic relations. Guardians are divided into, guardians of the person, in the civil law called tutors; and guardians of the estate, in the sam law are known by the name of curators. For the distinction between them, vide article Curatorship; 2 Kent, Com. 186 1 Bouv. Inst. n. 336, et. seq.
2. - 1. A guardian of the person is one who has been lawfully invested with the care of the person of an infant, whose father is dead.
3. The guardian must be properly appointed he must be capable of serving; he must be appointed guardian of an infant; and after his appointment he must perform the duties imposed on him by his office.
4. - 1st. In England, and in some of the states where the English law has been adopted in this respect, as in Pennsylvania; Rob. Dig. 312, by Stat. 12 Car. If. c. 24; power is given to the father to appoint a testamentary guardian for his children, whether born or unborn. According to Chancellor Kent, this statute has been adopted in the state of New York, and probably throughout this country. 2 Kent, Com. 184. The statute of Connecticut, however, is an exception; there the father cannot appoint a testamentary guardian. 1 Swift's Dig. 48.
5. All other kinds of guardians, to be hereafter noticed, have been superseded in practice by guardians appointed by courts having jurisdiction of such matters. Courts of chancery, orphans courts, and courts of a similar character having jurisdiction of testamentary matters in the several states, are, generally, speaking, invested with the power of appointing guardians.
6. - 2d. The person appointed must be capable of performing the duties; an idiot, therefore, cannot be appointed guardian.
7. - 3d. The person over whom a guardian is appointed, must be an infant; for after the party has attained his full age, he is entitled to all his rights, if of sound mind, and, if not, the person appointed to take care of him is called a committee. (q. v.) No guardian of the person can be appointed over an infant whose father is alive, unless the latter be non compos mentis, in which case one may be appointed, as if the latter were dead.
8. - 4th. After his appointment, the guardian of the person is considered as standing in the place of the father, and of course the relative powers and duties of guardian and ward correspond, in a great measure, to those of parent and child; in one prominent matter they are different. The father is entitled to the services of his child, and is bound to support him; the guardian is not entitled to the ward's services, and is not bound to maintain him out of his own estate.
9. - 2. A guardian of the estate is one who has been lawfully invested with the power of taking care and managing the estate of an infant. 1 John. R. 561; 7 John. Ch. R. 150. His appointment is made in the same manner, as that of a guardian of a person. It is the duty of the guardian to take reasonable and prudent care of the estate of the ward, and manage it in the most advantageous manner; and when the guardianship shall expire, to account with the ward for the administration of the estate.
10. Guardians have also been divided into guardians by nature; guardian's by nurture; guardians in socage; testamentary guardians; statutory guardians; and guardians ad litem.
11. - 1. Guardian by nature, is the father, and, on his death, the mother; this guardianship extends only to the custody of the person; 3 Bro. C. C. 186; 1 John. Ch. R. 3; 3 Pick. R. 213; and continues till the child shall acquire the age of twenty one years. Co. Litt. 84 a.
12. - 2. Guardian by nurture, occurs only when the ifant is without any other guardian, and the right belongs exclusively to the parents, first to the father, and then to the mother. It extends only to the person, and determines, in males and females, at the age of fourteen. This species of guardianship has become obsolete.
13. - 3. Guardian in socage, has the custody of the infant's lands as well as his person. The common law gave this guardianship to the next of blood to the child to whom the inheritance could not possibly descend. This species of guardianship has become obsolete, and does not perhaps exist in this country; for the guardian must be a relation by blood who cannot possibly inherit, and such a case can rarely exist. 2 Wend. 153: 15 Wend. 631; 6 Paige, 390; 7 Cowen, 36; 5 John.66.
14. - 4. Testamentary guardians; these are appointed under the stat. 12 Car. II., above mentioned; they supersede the claims of any other guardian, and extend to the person, an real and personal estate of the child, and continue till the ward arrives at full age.
15. - 5. Guardians appointed by the courts, by virtue of statutory authority. The distinction of guardians by nature, and by socage, appear to have become obsolete, and have been essentially superseded in practice by the appointment of guardians by courts of chancery, orphans' courts, probate courts, and such other courts as have jurisdiction to, make such appointments. Testamentary guardians might, as those of this class, be considered as statutory guardians, inasmuch as their appointment is authorized by a statute.
16. - 6. Guardian ad litem, is pointed for the infant to defend him in an action brought against him. Every court, when an infant is sued in a civil action, has power to appoint a guardian ad litem when he has no guardian, for as the infant cannot appoint an attorney, he would be without assistance if such a guardian-were not appointed. The powers and duties of a guardian ad litem are confined to the defence of the suit. F. N. B. 27; Co. Litt. 88 b, note 16; Id. 135 b, note 1; see generally Bouv. Inst. Index, h. t.; Coop. Inst. 445 to 455.
GUARDIANS OF THE POOR. The name given to officers whose duties are very similar to those of overseers of the poor, (q. v.) that is, generally to relieve the distresses of such poor persons who are unable to take care of themselves.
GUARDIANSHIP, persons. The power or protective authority given by law, and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of his age, renders him unable to protect himself. Vide Tutor.
GUBERNATOR, civil law. A pilot or steersman of a ship. 2 Pet. Adm. Dec. Appx. lxxxiii.
GUEST. A traveller who stays at an inn or tavern-with the consent of the keeper: Bac. Ab. Inns, C 5; 8 Co. 32. And if, after having taken lodgings at an inn, he leaves his horse there, and goes elsewhere to lodge, he is still to be considered a guest. But not if he merely leaves goods for which the landlord receives no compensation. 1 Salk. 888; 2 Lord Raym. 866; Cro. Jac. 188. The length of time a man is at an inn makes no difference, whether he stays a day, or a week, or a month, or longer, so always, that, though not strictly transiens, he retains his character as a traveller. But if a person comes upon a special contract to board and sojourn at an inn, he is not in the sense of the law a guest, but a boarder. Bac. Ab. Inns, C. 5; Story, Bailm. §477.
2. Inkeepers are generally liable for all goods belonging to the guest, brought within the inn. It is not necessary that the goods should have been in the special keeping of the innkeeper to make him liable. This rule is founded on principles of public utility, to which all private considerations ought to yield. 2 Kent, Com. 459; 1 Hayw. N. C. Rep. 40; 14 John. R. 175; Dig. 4, 9, 1. Vide 8 Barb. & Ald. 283; 4 Maule & Selw. 306; 1 Holt's N. P. 209; 1 Salk. 387; S. C. Carth. 417; 1 Bell's Com. 469 Dane's Ab. Index, h. t.; Yelv. 67, a; Smith's Leading Cases, 47; 8 Co. 32.
GUIDON DE LA MER, (LE). The name of a treatise on maritime law, written in Rouen, then Normandy, in 1671, as is supposed. it was received on the continent of Europealmost as equal in authority to one of the ancient codes of maritime law. The author of this work is unknown. This tract or treatise is contained in the Collection de Lois Maritimes," by J. M. Pardessus. vol. 2, p. 371, et seq.
GUILD. A fraternity or company. Guild hall, the place of meeting of guilds. Beame's, Glanville, 108 (n).
GUILT, crim. law. That quality which renders criminal and liable to punishment; or it is that disposition to violate the law, which has manifested itself by some act already done. The opposite of innocence. Vide Rutherf. Inst. B. 1, c. 18, s. 10.
2. In general everyone is presumed innocent until guilt has been proved; but in some cases the presumption of guilt overthrows that of innocence; as, for example, where a party destroys evidence to which the opposite party is entitled. The spoliation of papers, material to show the neutral character of a vessel, furnishes strong presumption against the neutrality of the ship. 2 Wheat. 227. Vide Spoliation.
GUILTY. The state or condition of a person who has committed a crime, misdemeanor or offence.
2. This word implies a malicious intent, and must be applied to something universally allowed to be a crime. Cowp. 275.
3. In pleading, it is a plea by which a defendant who is charged with a crime, misdemeanor or tort, admits or confesses it. In criminal proceedings, when the accused is arraigned, the clerk asks him,: How say you, A B, are you guilty or not guilty?" His answer, which is given ore tenus, is called his plea; and when he admits the charge in the indictment he answers or pleads guilty.
H
HABEAS CORPORA, English practice. A writ issued out of the C. P. commending the sheriff to compel the appearance of a jury in the cause between the parties. It answers the same purpose in that court as the Distringas juratores answers in the K. B. For a form, see Bootes Suit at Law, 151.
HABEAS CORPUS, remedies A writ of habeas corpus is an order in writing, signed by the judge who grants the same, and sealed with the seal of the court of he is a judge, issued in the name of the sovereign power where it is granted, by such a court or a judge thereof, having lawful authority to issue the same, directed to any one having a person in his custody or under his restraint, commanding him to produce, such person at a certain time and place, and to state the reasons why he is held in custody, or under restraint.
2. This writ was it common law considered as a remedy to remove the illegal restraint on a freeman. But anterior to the 31 Charles II. its benefit was, in a great degree, eluded by time-serving judges, who awarded it only in term time, and who assumed a discretionary power of awarding or refusing it. 3 Bulstr. 23. Three or four years before that statute was passed there had been two very great cases much agitated in Westminster Hall, upon writs of habeas corpus for private custody, viz: the cases of Lord Lei-ah: 2 Lev; 128; and Sir Robert Viner, Lord Mayor.of London. 3 Keble, 434, 447, 470, 504; 2 Lev. 128; Freem. 389. But the court has wisely drew the line of distinction between civil constitutional liberty, as opposed to the power of the crown, and liberty as opposed to the violence and power of private persons. Wilmot's Opinions, 85, 86.
3. To secure the full benefit of it to the subject the statute 81 Car. II. c. 2, commonly calfed the habeas corpus act, was passed. This gave to the. writ the vigor, life, and efficacy requisite for the due protection of the liberty of the subject. In England this. is considered as a high prerogative writ, issuing out of the court of king's bench, in term time or vacation, and running into every part of the king's dominions. It is also grantable as a matter of right, ex debito justitae, upon the application of any person.
4. The interdict De homine libero exhibendo of the Roman law, was a remedy very similar to the writ of habeas corpus. When a freeman was restrained by another, contrary to good faith, the praetor ordered that such person should be brought before him that he might be liberated. Dig.43, 29, 1.
5. The habeas corpus act has been substantially incorporated into the jurisprudance of every state in the Union, and the right to the writ has been secured by most of the constitutions of the states, and of the United States. The statute of 31 Car. II. c. 2, provides that the person imprisoned, if he be not a prisoner convict, or in execution of legal process, or committed for treason or felony, plainly expressed in the warrant, or has not neglected wilfully, by the space of two whole terms after his imprisonment, to pray a habeas corpus for his enlargement, may apply by any one in his behalf, in vacation time, to a judicial officer for the writ of habeas corpus, and the officer, upon view of the copy of the warrant of commitment, or upon proof of denial of it after due demand, must allow the writ to be directed to the person in whose custody the party is detained, and made returnable immediately before him. And, in term time, any of the said prisoners may obtain his writ of habeas corpus, by applying to the proper court.
6. By the habeas corpus law of Pennsylvania, (the Act of February 18, 1785,) the benefit of the writ of habeas corpus is given in "all cases where any person, not being committed or detained for any criminal, or supposed criminal matter," Who "shall be confined or restrained of his or her liberty, under any color or pretence whatsoever." A similar provision is contained in the habeas corpus act of New York. Act of April 21, 1818, sect. 41, ch. 277.
7. The Constitution of the United State art. 1, s. 9, n. 2, provides, that " the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it and the same principle is contained in many of the state constitutions. In order still more to secure the citizen the benefit of this great writ, a heavy penalty is inflicted upon the judges who are bound to grant it, in case of refusal.
8. It is proper to consider, 1. When it is to be granted. 2. How it is to be served. 3. What return is to be made to it. 4. The bearing. 5. The effect of the judgment upon it.
9. - 1. The writ is to be granted whenever a person is in actual confinement, committed or detained as aforesaid, either for a criminal charge, or, as in Pennsylvania and New York, in all cases where he is confined or restrained of his liberty, under any color or pretence whatsoever. But persons discharged on bail will not be considered as restrained of their liberty so as to be entitled to, a writ of habeas corpus, directed to their bail. 3 Yeates, R. 263; 1 Serg & Rawle, 356.
10. - 2. The writ may be served by any free person, by leaving it with the person to whom it is directed, or left at the gaol or prison with any of the under officers, under keepers, or deputy of the said officers or keepers. In Louisiana, it is provided, that if the person to whom it is addressed shall refuse to receive the writ, he who is charged to serve it, shall inform him of its contents; if he to whom the writ is addressed conceal himself, or refuse admittance to the person charged to serve it on him, the latlat shall affix the order on the exterior of the place where the person resides, or in which the petitioner is so confined. Lo. Code of Pract. art. 803. The service is proved by the oath of the party making it.
11. - 3. The person to whom the writ is addressed or directed, is required to make a return to it, within the time prescribed; he either complies, or he does not. If, he complies, he must positively answer, 1. Whether he has or has not in his power or custody the person to be set at liberty, or whether that person is confined by him; if he return that he has not and has not had him in his power or custody, and the return is true, it is evident that a mistake was made in issuing the writ; if the return is false, he is liable to a penalty, and other punishment, for making such a, false return. If he return that he has such person in his custody, then he must show by his return, further, by what authority, and for what cause, he arrested or detained him. If he does not comply, he is to be considered in contempt of the court under whose seal the writ has been issued, and liable to a severe penalty, to be recovered by the party aggrieved.
12. - 4. When the prisoner is brought, before the judge, his judicial discretion commences, and he acts under no other responsibility than that which belongs to the exercise of ordinary judicial power. The judge or court before whom the prisoner is brought on a habeas corpus, examines the return and Papers, if any, referred to in it, and if no legal cause be shown for the imprisonment or restraint; or if it appear, although legally committed, he has not been prosecuted or tried within the periods required by law, or that, for any other cause, the imprisonment cannot be legally continued, the prisoner is discharged from custody. In the case of wives, children, and wards, all the court does, is to see that they ire under no illegal restraint. 1 Strange, 445; 2. Strange, 982; Wilmot's Opinions, 120.
13. For those offences which are bailable, when the prisoner offers sufficient bail, he is to be bailed.
14. He is to be remanded in the following cases: 1. When it appears he, is detained upon legal process, out of some court having jurisdiction of criminal matters, 2. When he is detained by warrant, under the hand and seal of a magistrate, for some offence for which, by law, the prisoner is not bailable. 3. When he is a convict in execution, or detained in execution by legal civil process. 4. When he is detained fora contempt, specially and plainly charged in the commitment, by some existing court, having authority to commit for contempt. 5. When he refuses or neglects to give the requisite bail in a case bailable of right. The judge is not confined to the return, but he is to examine into the causes of the imprisonment, and then he is to discharge, bail, or remand, as justice shall require. 2 Kent, Com. 26; Lo. Code of Prac. art. 819.
15. - 5. It is provided by the habeas corpus act, that a person set at liberty by the writ, shall not again be imprisoned for the same offence, by any person whomsoever, other than by the legal order and process of such court wherein he shall be bound by recognizance to appear, or other court having jurisdiction of the cause. 4 Johns. R. 318; 1 Binn. 374; 5 John. R.282.
16. The habeas corpus can be suspended only by authority of the legislature. The constitution of the United States provides, that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of invasion and rebellion, the public safety may require it. Whether this writ ought to be suspended depends on political considerations, of which the legislature, is to decide. 4 Cranch, 101. The proclamation of a military chief, declaring martial law, cannot, therefore, suspend the operation of the law. 1 Harr. Cond. Rep. Lo. 157, 159 3 Mart. Lo. R. 531.
17. There are various kinds of this writ; the principal of which are explained below.
18. Habeas corpus ad deliberandum et recipiendum, is a writ which lies to remove a prisoner to take his trial in the county where the offence was committed. Bac. Ab. Habeas Corpus, A.
19. Habeas corpus ad faciendum et recipiendum, is a writ which issues out of a court of competent jurisdiction, when a person is sued in an inferior court, commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer, (whence this writ is frequently denominated habeas corpus cum causa) to do and receive whatever the court or the judge issuing the writ shall consider in that behalf. This writ may also be issued by the bail of a prisoner, who has been taken upon a criminal accusation, in order to surrender him in his own discharge; upon. the return of this writ, the court will cause an exoneretur to be entered on the bail piece, and remand the prisoner to his former custody. Tidd's Pr. 405; 1 Chit. Cr. Law, 182.
20. Habeas corpus ad prosequendum, is a writ which issues for the purpose of removing a prisoner in order to prosecute. 3 Bl. Com. 130.
21. Habeas corpus ad respondendum, is a writ which issues at the instance of a creditor, or one who has a cause of action against a person who is confined by the process of some inferior court, in order to remove the prisoner and charge him with this new action in the court above. 2 Mod.198; 3 Bl. Com. 107.
22. Habeas corpus ad satisfaciendum, is a writ issued at the instance of a plaintiff for the purpose of bringing up a prisoner, against whom a judgment has been rendered, in a superior court to charge him with the process of execution. 2 Lill. Pr. Reg. 4; 3 Bl. Com. 129, 130.
23. Habeas corpus ad subjiciendum, by way of eminence called the writ of habeas corpus, (q. v.) is a writ directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive, whatsoever the judge or court awarding such writ shall consider in that behalf. 3 Bl. Com. 131; 3 Story, Const. §1333.
24. Habeas corpus ad testificandum, a writ issued for the purpose of bringing a prisoner, in order that he may testify, before the court. 3 Bl. Com. 130.
25. Habeas corpus cum causa, is a writ which may be issued by the bail of a prisoner, who has been taken upon a criminal accusation, in order to render him in their own discharge. Tidd's Pr. 405. Upon the return of this writ the court will cause an exoneretur to be entered on the bail piece, and remand the defendant to his former custody. Id. ibid.; 1 Chit. Cr. Law132. Vide, generally, Bac. Ab. h. t.; Vin. Ab. h. t.; Com. Dig. h. t.; Nels. Ab. h. t.; the various American Digests, h. t.; Lo. Code of Prac. art. 791 to 827; Dane's Ab. Index, h. t.; Bouv. Inst. Index, h. t.
HABENDUM, conveyancing. This is a Latin word, which signifies to have.
2. In conveyancing, it is that part of a deed which usually declares what estate or interest is granted by it, its certainty, duration, and to what use. It sometimes qualifies the estate, so that the general implication of the estate, which, by construction of law, passes in the premises, may by the habendum be controlled; in which case the habendum may enlarge the estate, but not totally contradict, or be repugnant to it. It may abridge the premises. Perk. §170 , 176; Br. Estate, 36 Cont. Co. Litt. 299. It may explain the premises. More, 43; 2 Jones, 4. It may enlarge the premises Co. Litt. 299; 2 Jones, 4. It may be frustrated by the premises, when they are general; Skin. 544 but it cannot frustrate the premises, though it may restrain them. Skin. 543. Its proper office is not to give anything, but to limit or define the certainty of the estate to the feoffee or grantee, who should be previously named in the premises of the deed, or it is void. Cro. Eliz. 903. In deeds and devises it is sometimes construed distributively, reddendo singula singulis. 1 Saund. 183-4, notes 3 and 4; Yelv. 183, and note 1.
3. The habendum commences in our common deeds, with the words "to have and to hold." 2 Bl. Com. 298.; 14 Vin. Ab. 143; Com. Dig. Fait, E 9; 2 Co.55 a; 8 Mass. R. 175; 1 Litt. R. 220; Cruise, Dig. tit. 32, c. 20, s. 69 to93; 5 Serg. & Rawle, 375; 2 Rolle, Ab. 65; Plowd. 153; Co. Litt. 183; Martin's N. C. Rep. 28; 4 Kent, Com. 456; 3 Prest. on Abstr. 206 to 210; 5 Barnw. & Cres. 709; 7 Greenl. R. 455; 6 Conn. R. 289; 6 Har. & J. l32; 3 Wend. 99.
HABERDASHER. A dealer in miscellaneous goods and merchandise.
HABERE. To have. This word is used in composition.
HABERE FACIAS POSSESSIONEM, Practice, remedies. The name of a writ of execution in the action of ejectment.
2. The sheriff, is commanded by this writ that, without delay, he cause the plaintiff to have possession of the land in dispute which is therein described; a fi. fa. or ca. sa. for costs may be included in the writ. The duty of the sheriff in the execution and return of that part of the writ, is the same as on a common fi. fa. or ca. sa. The sheriff is to execute this writ by delivering a full and, actual possession of the premises to the plaintiff. For this purpose he may break an outer or inner door of the house, and, should he be violently opposed, he may raise the posse comitatus. Wats. on Sher. 60, 215; 5 Co. 91 b.; 1 Leon. 145; 3 Bouv. Inst. n. 3375.
3. The name of this writ is abbreviated hab. fa. poss. Vide 10 Vin. Ab.14; Tidd's Pr. 1081, 8th Engl. edit.; 2 Arch. Pr. 58; 3 Bl. Com. 412; Bing. on Execut. 115, 252; Bac. Ab. h. t.
HABERE FACIAS SEISINAM, practice, remedies. The name of a writ of execution, used in most real actions, by which the sheriff is directed that he cause the demandant to have seisin of the lands which he has recovered.3 Bouv. Inst. n. 3374.
2. This writ may be taken out at any time within a year and day after judgment. It is to be executed nearly in the same manner as the writ of habere facias possessionem, and, for this purpose, the officer may break open the outer door of a house to deliver seisin to the demandant. 5 Co. 91 b; Com. Dig. Execution, E; Wats. Off. of Sheriff, 238. The name of this writ is abbreviated hab. fac. seis. Vide Bingh. on Exec. 115, 252; Bac. Ab. h. t.
HABERE FACIAS VISUM, practice. The name of a writ which lies when a view is to be taken of lands and tenements., F. N. B. Index, verbo View.
HABIT. A disposition or condition of the body or mind acquired by custom or a frequent repetition of the same act. See 2 Mart. Lo. Rep. N. S. 622.
2. The habit of dealing has always an important bearing upon the construction of commercial contracts. A ratification will be inferred from the mere habit of dealing between the parties; as, if a broker has been accustomed to settle losses on policies in a particular manner, without any objection being made, or with the silent approbation of his principal, and he should afterward settle other policies in the same manner, to which no objection should be made within a reasonable time, a just presumption would arise of an implied ratification; for if the principal did not agree to such settlement he should have declared his dissent. 2 Bouv. Inst. 1313-14.
HABITATION, civil law. It was the right of a person to live in the house of another without prejudice to the property.
2. It differed from a usufruct in this, that the usufructuary might have applied the house to any purpose, as, a store or manufactory; whereas the party having the right of habitation. could only use it for the residence of himself and family. 1 Bro. Civ. Law, 184 Domat. l. 1, t. 11, s. 2, n. 7.
HABITATION, estates. A dwelling-house, a home-stall. 2 Bl. Com. 4;4 Bl. Com. 220. Vide House.
HABITUAL DRUNKARD. A person given to ebriety or the excessive use of intoxicating drink, who has lost the power or the will, by frequent indulgence, to control his appetite for it.
2. By the laws of Pennsylvania an habitual drunkard is put nearly upon the same footing with a lunatic; he is deprived of his property, and a committee is appointed by the court to take care of his person and estate. Act of June 13, 1836, Pamph. p. 589. Vide 6 Watts' Rep. 139; 1 Ashm. R. 71.
3. Habitual drunkenness, by statutory provisions in some of the states, is a sufficient cause for divorce. 1 Bouv. Inst. n. 296.
HABITUALLY. Customarily, by habit. or frequent use or practice, or so frequently, as to show a design of repeating the same act. 2 N. S. 622: 1 Mart. Lo. R. 149.
2. In order to found proceedings in lunacy, it is requisite that the insanity should be habitual, yet it is not necessary that it should be continued. 1 Bouv. Inst. n. 379.
HAD BOTE, Engl. law. A recompense or amends made for violence offered to a person in holy olders.
HAEREDES PROXIMI. The children or descendants of the deceased. Dalr. Feud. Pr. 110; Spellm. Remains.
HAEREDES REMOTIORES. The kinsmen other than children or descendants; Dalr. Feud. Pr. 110; Spellm. Remains.
HAEREDITAS. An inheritance, or an estate which descends to one by succession. At common law an inheritance never ascends, haereditas nunquam ascendit. But in many of the states of the Union provision is made by statute in favor of ascendants.
HAEREDITAS JACENS. This is said of an inheritance which is not taken by the heirs, but remains in abeyance.
HAERES civil law. An heir, one who succeeds to the whole inheritance.
2. These are of various kinds. 1. Haeres natus, an heir born; the heir at law: he is distinguished from, 2. Haeres factus, or an heir created by will, a testamentary heir, to whom the whole estate of the testator is given. 3. Haeres fiduciarius, an heir to whom the estate is given in trust for another. Just. 2, 23, 1, 2. Haeres-legitimus, a lawful heir; this is one who is manifested by the marriage of his parents; haeres legitimus est quem nuptiae demonstrant; haeres suus, one's own heir, a proper heir; descendants. Just. 3, 1, 4, 5.
HALF. One equal part of a thing divided into two parts, either in fact or in contemplation. A moiety. This word is used in composition; as, half cent, half dime, &c.
HALF-BLOOD, parentage, kindred. When persons have only one parent in common, they are of the half-blood. For example, if John marry Sarah and has a son by that marriage, and after Sarah's death he marry Maria, and has by her another son, these children are of the half-blood; whereas two of the children of John and Sarah would be of the whole blood.
2. By the English common law, one related to an intestate of the half-blood only, could never inherit, upon the presumption that he is not of the blood of the original purchaser; but this rule has been greatly modified by the 3 and 4 Wm. IV. c. 106.
3. In this country the common law principle on this subject may be considered as not in force, though in some states some distinction is still preserved between the whole and the half-blood. 4 Kent, Com. 403, n.; 2 Yerg. 115; 1 M'Cord, 456; Dane's Ab. Index, h. t.; Reeves on Descents, passim. Vide Descents.
HALF-BROTHER AND HALF-SISTER. Persons who have the same father but different mothers; or the same mother but different fathers.
HALF CENT, money. A copper coin of the United States, of the value of one two-hundredth part of a dollar, or five mills. It weighs eighty-four grains. Act of January 18, 1837, s. 12, 4 Sharswood's cont. of Story's L. U. S. 2523, 4. Vide Money.
HALF DEFENCE, pleading. It is the peculiar form of a defence, which is as follows, "venit et defendit vim et injuriam, et dicit," &c. It differs from full defence. Vide Defence; Et cetera;
HALF DIME, money. A silver coin of the United States, of the value of one- twentieth part of a dollar, or five cents. It weighs twenty grains and five-eighths of a grain. Of one thousand parts, nine hundred are of pure silver, and one hundred are of alloy. Act of January 18, 1837, s. 8 and 9,4 Sharswood's cont. of Story's L. U. S. 2523, 4. Vide Money.
HALF DOLLAR, money. A silver coin of the United States of the value of fifty cents. It weighs two hundred and six and one-fourth grains. Of one thousand parts, nine hundred are of pure silver, and one hundred of alloy. Act of January 18, 1837, S. 8 and 9, 4 Sharsw. cont. of Story's L. U. S.2523, 4. Vide Money.
HALF EAGLE, money. A gold coin of the United States, of the value of five dollars. It weighs one hundred and twenty-nine grains. Of one thousand parts, nine hundred are of pure gold, and one hundred of alloy. Act of January 18, 1837, 4 Sharsw. cont. of Story's L. U. S. 2523, 4. Vide Money.
HALF PROOF, semiplena probatio, civil law. Full proof is that which is sufficient to end the controversy, while half proof is that which is insufficient, as the foundation of a sentence or decree, although in itself entitled to some credit. Vicat, voc. Probatio.
HALF SEAL. A seal used in the English chancery for the sealing of commissions to delegates appointed upon any appeal, either in ecclesiastioal or marine causes.
HALF YEAR, In the computation of time, a half year consists of one hundred and eighty-two days. Co. Litt. 135 b; Rev. Stat., of N. Y. part 1, c. 19, t. 1. §3.
HALL. A public building used either for the meetings of corporations, courts, or employed to some public uses; as the city hall, the town hall. Formerly this word denoted the chief mansion or habitation.
HALLUCINATION, med. jur. It is a species of mania, by which "an idea reproduced by the memory is associated and embodied by the imagination." This state of mind is sometimes called delusion or waking dreams.
2. An attempt has been made to distinguish hallucinations from illusions; the former are said to be dependent on the state of the intellectual organs and, the latter, on that of those of sense. Ray, Med. Jur. §99; 1 Beck, med. Jur. 538, note. An instance is given of a temporary hallucination in the celebrated Ben Johnson, the poet. He told a friend of his that he had spent many a night in looking at his great toe, about which he had seen Turks and Tartars, Romans and Carthagenians, fight, in his imagination. 1 Coll. on Lun. 34. If, instead of being temporary, this affection of his mind had been permanent, he would doubtless have been considered insane. See, on the subject of spectral illusions, Hibbert, Alderson and Farrar's Essays; Scott on Demonology, &c.; Bostock's Physiology, vol. 3, p. 91, 161;1 Esquirol, Maladies Mentales, 159.
HALMOTE. The name of a court among the Saxons. It had civil and criminal jurisdiction.
HAMESUCKEN, Scotch law. The crime of hamesucken consists in "the felonious seeking and invasion of a person in his dwelling house." 1 Hume,312; Burnett, 86; Alison's Princ. of the Cr. Law of Scotl. 199.
2. The mere breaking into a house, without personal violence, does not constitute the offence, nor does the violence without an entry with intent to, commit an assault. It is the combination of both which completes the crime. 1. It is necessary that the invasion of the house should have proceeded from forethought malice; but it is sufficient, if, from any illegal motive, the violence has been meditated, although it may not have proceeded from the desire of wreaking personal revenge, properly so called.2. The place where the assault was committed must have been the proper dwelling house of the party injured, and not a place of business, visit, or occasional residence. 3. the offence maybe committed equally in the day as in the night, and not only by effraction of the building by actual force but by an entry obtained by fraud, with the intention of inflicting personal violence, followed by its perpetration. 4. But unless the injury to the person be of a grievous and material, character, it is not hamesucken, though the other requisites to the crime have occurred. When this is the case, it is immaterial whether the violence be done lucri causä, or from personal spite. 5. The punishment of hamesucken in aggravated cases of injury, is death in cases of inferior atrocity, an arbitrary punishment. Alison's Pr. of Cr. Law of Scotl. ch. 6; Ersk. Pr. L. Scotl. 4, 9, 23. This term wag formerly used in England instead of the now modern term burglary. 4 Bl. Com. 223.
HAMLET, Eng. law. A small village; a part or member of a vill.
HANAPER OFFICE, Eng.law. This is the name of one of the offices belonging to the English court of chancery. 3 Bl. Com. 49.
HAND. That part of the human body at the end of the arm.
2. Formerly the hand was considered as the symbol of good faith, and some contracts derive their names from the fact that the hand was used in making them; as handsale, (q. v.) mandatum, (q. v.) which comes from ä manu datä. The hand is still used for various legal or forensic purposes. When a person is accused of a crime and he is arraigned, and he is asked to hold up his right hand; and when one is sworn as a witness, he is required to lay his right hand on the Bible, or to hold it up.
3. Hand is also the name of a measure of length used in ascertaining the height of horses. It is four inches long. See Measure: Ell.
4. In a figurative sense, by hand is understood a particular form of writing; as if B writes a good hand. Various kinds of hand have been used, as, the secretary hand, the Roman hand, the court hand, &c. Wills and contracts may be written in any of these, or any other which is intelligible.
HANDBILL. A printed or written notice put up on walls, &c., in order to inform those concerned of something to be done.
HANDSALE, contracts. Anciently, among all the northern nations, shaking of hands was held necessary to bind a bargain; a custom still retained in verbal contracts; a sale thus made was called handsale, venditio per mutuam manum complexionem. In process of time the same word was used to signify the price or earnest which was given immediately after the shaking of hands, or instead thereof. In some parts of the country it is usual to speak of hand money as the part of the consideration paid or to be paid at the execution of a contract of sale. 2 Bl. Com. 448. Heineccius, de Antique Jure Germanico, lib. 2, §335; Toull. Dr. Civ. Fr. liv. 3, t. 3, c. 2, n.33.
HANDWRITING, evidence. Almost every person's handwriting has something whereby it may be distinguished from the writing of others, and this difference is sometimes intended by the term.
2. It is sometimes necessary to prove that a certain instrument or name is in the handwriting of a particular person; that is done either by the testimony of a witness, who saw the paper or signature actually written, or by one who has by sufficient means, acquired such a knowledge of the general character of the handwriting of the party, as will enable him to swear to his belief, that the handwriting of the person is the handwriting in question. 1 Phil. Ev. 422; Stark. Ev. h. t.; 2 John. Cas. 211; 5 John. R. 144; 1 Dall. 14; 2 Greenl. R. 33; 6 Serg. & Rawle, 668; 1 Nott & M'Cord,554; 19 Johns. R. 134; Anthon's N. P. 77; 1 Ruffin's R. 6; 2 Nott & M'Cord,400; 7 Com. Dig. 447; Bac. Ab. Evidence, M; Dane's Ab. Index, h. t.
HANGING, punishment. Death by the halter, or the suspending of a criminal, condemned to suffer death, by the neck, until life is extinct. A mode of capital punishment.
HANGMAN. The name usually given to a man employed by the sheriff to put a man to death, according to law, in pursuance of a judgment of a competent court, and lawful warrant. The same as executioner. (q. v.)
HAP. An old word which signifies to catch; as, "to hap the rent," to hap the deed poll." Techn. Dict. h. t.
HARBOR. A place where ships may ride with safety; any navigable water protected by the surrounding country; a haven. (q. v.) It is public property. 1. Bouv. Inst. n. 435.
To HARBOR, torts. To receive clandestinely or without lawful authority a person for the purpose of so concealing him that another having a right to the lawful custody of such person, shall be deprived of the same; for example, the harboring of a wife or an apprentice, in order to deprive the hushand or the master of them; or in a less technical sense, it is the reception of persons improperly. 10 N. H. Rep. 247; 4 Scam. 498.
2. The harboring of such persons will subject the barborer to an, action for the injury; but in order to put him completely in the wrong, a demand should be made for their restoration, for in cases where the harborer has not committed any other wrong than merely receiving the plaintiff's wife, child, or apprentice, he may be under no obligation to return them without a demand. 1 Chit. Pr. 564; Dane's Ab. Index, h. t.; 2 N. Car. Law Repos.249; 5 How. U. S. Rep. 215, 227.
HARD LABOR, punishment. In those states where the penitentiary system has been adopted, convicts who are to be imprisoned, as part of their punishment, are sentenced to perform hard labor. This labor is not greater than many freemen perform voluntarily, and the quantity required to be performed is not at all unreasonable. In the penitentiaries of Pennsylvania it consists in being employed in weaving, shoemaking, and such like employments.
HART. A stag or male deer of the forest five years old complete.
HAT MONEY, mar. law. The name of a small duty paid to the captain and mariners of a ship, usually called primage. (q. v.)
TO HAVE. These words are used in deeds for the conveyance of land, in that clause which usually declared for what estate the land is granted. The same as Habendum. (q. v.) Vide Habendum; Tenendum.
HAVEN. A place calculated for the reception of ships, and so situated, in regard to the surrounding land, that the vessel may ride at anchor in it in safety. Hale, de Port. Mar. c. 2; 2 Chit. Com. Law, 2; 15 East, R. 304, 5. Vide Creek; Port; Road.
HAWKERS. Persons going from place to place with goods and merchandise for sale. To prevent impositions they are generally required to take out licenses, under regulations established by the local laws of the states.
HAZARDOUS CONTRACT, civil law. When the performance of that which is one of its objects, depends on an uncertain event, the contract is said to be hazardous. Civ. Co. of Lo. art. 1769 1 Bouv. Inst. n. 707.
2. When a contract is hazardous, and the lender may lose all or some part of his principal, it is lawful for him to charge more than lawful interest for the use of his money. Bac. Ab. Usury D; 1 J. J. Marsh, 596; 3 J. J. Marsh, 84.
HEAD BOROUGH, English law. Formerly he was a chief officer of a borough, but now he is an officer subordinate to constable. St. Armand, Hist. Essay on the Legisl. Power of Eng. 88.
HEALTH. Freedom from pain or sickness; the most perfect state of animal life. It may be defined, the natural agreement and concordant dispositions of the parts of the living body.
2. Public health is an object of the utmost importance and has attracted the attention of the national and state legislatures.
3. By the act of Congress of the 25th of February, 1799, 1 Story's L. U. S. 564, it is enacted: 1. That the quarantines and other restraints, which shall be established by the laws of any state, respecting any vessels arriving in or bound to any port or district thereof, whether coming from a foreign port or some other part of the United States, shall be observed and enforced by all officers of the United States, in such place. Sect. 1. 2. In times of contagion the collectors of the revenue may remove, under the provisions of the act, into another district. Sect. 4. 3. The judge of any district court may, when a contagious disorder prevails in his district, cause the removal of persons confined in prison under the laws of the United States, into another district. Sect. 5. 4. In case of the prevalence of a contagious disease at the seat of government, the president of the United States may direct the removal of any or all public offices to a place of safety. Sect. 6. 5. In case of such contagious disease, at the seat of government, the chief justice, or in case of his death or inability, the senior associate justice of the supreme court of the United States, may issue his warrant to the marshal of the district court within which the supreme court is by law to be holden, directing him to adjourn the said session of the said court to such other place within the same or adjoining district as he may deem convenient. And the district judges may, under the same circumstances, have the same power to adjourn to some other part of their several districts. Sect. 7.
3. Offences against the provisions of the health laws are generally punished by fine and imprisonment. These are offences against public health, punishable by the common law by fine and imprisonment, such for example, as selling unwholesome provisions. 4 Bl. Com. 162; 2 East's P. C.822; 6 East, R.133 to 141; 3 M. & S. 10; 4 Campb. R. 10.
4. Private injuries affecting a man's health arise upon a breach of contract, express or implied; or in consequence of some tortions act unconnected with a contract.
5. - 1. Those injuries to health which arise upon contract are, 1st. The misconduct of medical men, when, through neglect, ignorance, or wanton experiments, they injure their patients. 1 Saund. 312, n. 2. 2d. By the sale of unwholesome food; though the law does not consider a sale to be a warranty as to the goodness or quality of a personal chattel, it is otherwise with regard to food and liquors. 1 Rolle's Ab. 90, pl. 1, 2.
6.-2. Those injuries which affect a man's health, and which arise from tortious acts unconnected with contracts, are, 1st. Private nuisances. 2d. Public nuisances. 3d. Breaking quarantine. 4th. By sudden alarms, and frightening; as by raising a pretended ghost. 4 Bl. Com. 197, 201, note 25;1 Hale, 429; Smith's Forens. Med. 37 to 39; 1 Paris & Fonbl. 351, 352. For private injuries affecting his health a man may generally have an action on the case.
HEALTH OFFICER. The name of an officer invested with power to enforce the health laws. The powers and duties of health officers are regulated by local laws.
HEARING, chwncery practice. The term, hearing is given to the trial of a chancery suit.
2. The hearing is conducted as follows. When the cause is called on in court, the pleadings on each side are opened in a brief manner to the court by the junior counsel for the plaintiff; after which the plaintiff's leading counsel states the plaintiff's case, and the points in issue, and submits to the court his arguments upon them. Then the depositions (if any) of the plaintiff's witnesses, and such parts of the defendant's answer as support the plaintiff's case are read by the plaintiff's solicitor; after which the rest of the plaintiff's counsel address the court; then the same course of proceedings is observed on the other side, excepting that no part of the defendant's answer can be read in his favor, if it be replied to; the leading counsel for the plaintiff is then heard in reply; after which the court pronounces the decree, Newl. Pr. 153, 4; 14 Vin. Ab. 233; Com. Dig. Chancery, T. 1, 2, 3.
HEARING, crim. law. The examination of a prisoner charged with a crime or misdemeanor, and of the witnesses for the accuser.
2. The magistrate should examine with care all the witnesses for the prosecution, or so many of them as will satisfy his mind that there is sufficient ground to believe the prisoner guilty, and that the case ought to be examined in court and the prisoner ought to be tried. If, after the hearing of all such witnesses, the offence charged is not made out, or, if made out, the matter charged is not criminal, the magistrate is bound to discharge the prisoner.
3. When the magistrate cannot for want of time, or on account of the absence of a witness, close the hearing at one sitting, he may adjourn the case to -another day, and, in bailable offences, either take bail from the prisoner for his appearance on that day, or commit him for a further hearing. See Further hearing.
4. After a final hearing, unless the magistrate discharge the prisoner, it is his duty to take bail in bailable offences, and he is the sole judge of the amount of bail to be demanded this, however, must not be excessive. He is the sole judge, also, whether the offence be bailable or not. When the defendant can give the bail required, he must be discharged; when not, he must be committed to the county prison, to take his trial, or to be otherwise disposed of according, to law. See 1 Chit. Cr. Law, 72, ch. 2.
HEARSAY EVIDENCE. The evidence of those who relate, not what they know themselves, but what they have heard from others.
2. As a general rule, hearsay evidence of a fact is not admissible. If any fact is to be substantiated against a person, it ought to be proved in his presence by the testimony of a witness sworn or affirmed to speak the truth.
3. There are, however, exceptions to the rule. 1. Hearsay is admissible when it is introduced, not as a medium of proof in order to establish a distinct fact, but as being in itself a part of the transaction in question, when it is a part of the res gestae. 1 Phil. Ev. 218; 4 Wash. C. C. R. 729; 14 Serg. & Rawle, 275; 21 How. St. Tr. 535; 6 East, 193.
4. - 2. What a witness swore on a former trial, between the same parties, and where the same point was in issue as in the second action, and he is since dead, what he swore to is in general, evidence. 2 Show. 47; 11 John. R. 446; 2 Hen. & Munf. 193; 17 John. R. 176; But see 14 Mass. 234; 2 Russ. on Cr. 683, and the notes.
5. - 3. The dying declarations of a person who has received a mortal injury, as to the fact itself, and the party by whom it was committed, are good evidence under certain circumstances. Vide Declarations, and 15 John. R. 286; 1 Phil. Ev. 215; 2 Russ. on Cr. 683.
6. - 4. In questions concerning public rights, common reputation is admitted to be evidence.
7. - 5. The declarations of deceased persons in cases where they appear to have been made against their interest, have been admitted.
8. - 6. Declarations in cases of birth and pedigree are also to be received in evidence.
9. - 7. Boundaries may be proved by hearsay evidence, but, it seems, it must amount to common tradition or repute. 6 Litt. 7; 6 Pet. 341; Cooke, R142; 4 Dev. 342; 1 Hawks 45; 4 Hawks, 116; 4 Day, 265. See 3 Ham. 283; 3 Bouv. Inst. n. 3065, et seq. 10. There are perhaps a few more exceptions which will be found in the books referred to below. 2 Russ. on Cr. B. 6, c.3; Phil. Ev. ch. 7, s. 7; 1 Stark. Ev. 40; Rosc. Cr. Ev. 20; Rosc. Civ. Ev.19 to 24; Bac. Ab. Evidence, K; Dane's Ab. Index, h. t. Vide also, Dig. 39,3, 2, 8; Id. 22, 3, 28. see Gresl. Eq. Ev. pt. 2, c. 3, s. 3, p. 218, for the rules in courts of equity, as to receiving hearsay evidence 20 Am. Jur.68.
HEDGE-BOTE. Wood used for repairing hedges or fences. 2 Bl. Com. 35; 16 John. 15.
HEIFER. A young cow, which has not had a calf. A beast of this kind two years and a half old, was held to be improperly described in the indictment as a cow. 2 East, P. C. 616; 1 Leach, 105.
HEIR. One born in lawful matrimony, who succeeds by descent, and right of blood, to lands, tenements or hereditaments, being an estate of inheritance. It is an established rule oflaw, that God alone can make an heir. Beame's Glanville, 143; 1 Thomas, Co. Lit. 931; and Butler's note, p.938. Under the word heirs are comprehended the heirs of heirs in infinitum.1 Co. Litt. 7 b, 9 a, 237 b; Wood's Inst. 69. According to many authorities, heir may be nomen collectivuum, as well in a deed as in a will, and operate in both in the same mannar, as heirs in the plural number. 1 Roll. Abr. 253; Ambl. 453; Godb. 155; T. Jones, 111; Cro, Eliz.313; 1 Burr. 38; 10 Vin. Abr. 233, pl. 1; 8 Vin. Abr. 233; sed vide 2 Prest. on, Est. 9, 10. In wills, in order to effectuate the intention of the testator, the word heirs is sometimes construed to mean next of kin; 1 Jac. & Walk. 388; and children, Ambl. 273. See further, as to the force and import of this word, 2 Vent. 311; 1 P. Wms. 229; 3 Bro. P. C. 60, 454; 2 P. Wms. 1, 369; 2 Black. R. 1010; 4 Ves. 26, 766, 794; 2 Atk. 89, 580; 5 East Rep. 533; 5 Burr. 2615; 11 Mod. 189; 8 Vin. Abr. 317; 1 T. R. 630; Bac. Abr. Estates in fee simple, B.
2. There are several kinds of heirs specified below.
3. By the civil law, heirs are divided into testamentary or instituted heirs legal heirs, or heirs of the blood; to which the Civil Code of Louisiana has added irregular heirs. They are also divided into unconditional and beneficiary heirs.
4. It is proper here to notice a difference in the meaning of the word heir, as it is understood by the common and by, the civil law. By the civil law, the term heirs was applied to all persons who were called to the succession, whether by the act of the party or by operation of law. The person who was created universal successor by a will, was called the testamentary heir; and the next of kin by blood was, in cases of intestaby, called the heir at law, or heir by intestacy. The executor of the common law is, in many respects, not unlike the testamentary heir of the civil law. Again, the administrator ln many respects corresponds with the heir by intestacy. By the common law, executors unless expressly authorized by the will and administrators, have no right, except to the personal estate of the deceased; whereas, the heir by the civil law was authorized to administer both the personal and real estate. 1 Brown's Civ. Law, 344; Story, Confl. of Laws, §508.
5. All free persons, even minors, lunatics, persons of insane mind or the like, may transmit their estates as intestate ab intestato, and inherit from others. Civ. Code of Lo., 945; Accord, Co. Lit. 8 a.
6. The child in its mother's womb, is considered as born for all purposes of its own interest; it takes all successions opened in its favor, after its conception, provided it be capable of succeeding at the moment of its birth. Civ. Code of Lo. 948. Nevertheless, if the child conceived is reputed born, it is only in the hope of its birth; it is necessary then that the child be born alive, for it cannot be said that those who are born dead ever inherited. Id. 949. See In ventre sa mere.
HEIR. APPARENT. One who has an indefeasible right to the inheritance, provided he outlive the ancestor. 2 Bl. Com. 208.
HEIR, BENEFICIARY. A term used in the civil law. Beneficiary heirs are those who have accepted the succession under the benefit of an inventory regularly made. Civ. Code of Lo. art. 879. If the heir apprehend that the succession-will be burdened with debts beyond its value, he accepts with benefit of inventory, and in that case he is responsible only for the value of the succession. See inventory, benefit of.
HEIR, COLLATERAL. A collateral heir is one who is not of the direct line of the deceased, but comes from a collateral line; as, a brother, sister, an uncle and aunt, a nephew, niece, or cousin of the deceased.
HEIR, CONVENTIONAL, civil law. A conventional heir is one who takes a succession by virtue of a contract; for example, a marriage contract, which entitles the heir to the succession.
HEIR, FORCED. Forced heirs are those who cannot be disinherited. This term is used among the civilians. Vide Forced heirs
HEIR, GENERAL. Heir at common in the English law. The heir at common law is he who, after his father or ancestor's death has a right to, and is introduced into all his lands, tenements and hereditaments. He must be of the whole blood, not a bastard, alien, &c. Bac. Abr. Heir, B 2; Coparceners; Descent.
HEIR, IRREGULAR. In Louisiana, irregular heirs are those who are neither testamentary nor legal, and who have been established by law to take the succession. See Civ. Code of Lo. art. 874. When the deceased has left neither lawful descendants nor ascendants, nor collateral relations, the law calls to his inheritance either the surviving hushand or wife, or his or her natural children, or the state. Id. art., 911. This is called an irregular succession.
HEIR AT LAW. He who, after his ancestor's death intestate, has a right to all lands, tenements, and hereditaments, which belonged to him, or of which he was seised. The same as heir general. (q. v.)
HEIR, LEGAL, civil law. A legal heir is one who is of the same blood of the deceased, and who takes the succession by force of law; this is different from a testamentary or conventional heir, who takes the succession in virtue of the disposition of man. See Civil, Code of Louis. art. 873, 875; Dict. de Jurisp., Heritier legitime. There are three classes of legal heirs, to wit; the children and other lawful descendants; the fathers and mothers and other lawful ascendants; and the collateral kindred. Civ. Code of Lo. art. 883.
HEIR LOOM, estates. This word seems to be compounded of heir and loom, that is, a frame, viz. to weave in. Some derive the word loom from the Saxon loma, or geloma, which signifies utensils or vessels generally. However this may be, the word loom, by time, is drawn to a more general signification, than it, at the first, did bear, comprehending all implements of household; as, tables, presses, cupboards, bedsteads, wainscots, and which, by the custom of some countries, having belonged to a house, are never inventoried after the decease of the owner, as chattels, but accrue to the heir, with the house itself minsheu. The term heir looms is applied to those chattels which are considered as annexed and necessary to the enjoyment of an inheritance.
2. They are chattels which, contrary to the nature of chattels, descend to the heir, along with the inheritance, and do not pass to the executor of the last proprietor. Charters, deeds, and other evidences of the title of the land, together with the box or chest in which they are contained; the keys of a house, and fish in a fish pond, are all heir looms. 1 Inst. 3 a; Id. 185 b; 7 Rep. 17 b; Cro. Eliz. 372; Bro. Ab. Charters, pl. 13; 2 Bl. Com. 28; 14 Vin. Ab. 291.
HEIR PRESUMPTIVE. A presumptive heir is one who, in the present circumstances, would be entitled to the inheritance, but whose rights may be defeated by the contingency of some nearer heir being born. 2 B1 Com.208. In Louisiana, the presumptive heir is he who is the nearest relation of the deceased, capable of inheriting. This quality is given to him before the decease of the person from whom he is to inherit, as well as after the opening of the succession, until he has accepted or renounced it. Civ. Code of Lo. art. 876.
HEIR, TESTAMENTARY, civil law. A testamentary heir is one who is constituted heir by testament executed in the form prescribed by law. He is so called to distinguish him from the legal heirs, who are called to the succession by the law; and from conventional heirs, who are so constituted by a contract inter vivos. See Haeres factus; Devisee.
HEIR, UNCONDITIONAL. A term used in the civil law, adopted by the Civil Code of Louisiana. Unconditional heirs are those who inherit without any reservation, or without making an inventory, whether their acceptance be express or tacit. Civ. Code of Lo. art. 878.
HEIRESS. A female heir to a person having an estate of inheritance. When there is more than one, they are called co-heiresses, or co-heirs. HEPTARCHY, Eng. law. The name of the kingdom or government established by the Saxons, on their establishment in Britain so called because it was composed of seven kingdoms, namely, Kent, Essex, Sussex, Wessex, East Anglia, Mercia, and Northumberland.
HERALDRY, civil and canon law. The art or office of a herald. It is the art, practice, or science of recording genealogies, and blazoning arms or ensigns armorial. It also teaches whatever relates to the marshaling of cavalcades, processions, and other public ceremonies. Encyc.; Ridley's View of the Civil and Canon Law, pt. 2, c. 1, §6.
HERBAGE, English Law, A species of easement, which consists in the right to feed one's cattle on another man's ground.
HEREDITAMENTS, estates. Anything capable of being inherited, be it corporeal or incorporeal, real, personal, or mixed and including not only lands and everything thereon, but also heir looms, and certain furniture which, by custom, may descend to the heir, together with the land. Co. Litt. 5 b; 1 Tho. Co. Litt. 219; 2 Bl. Com. 17. By this term such things are denoted, as may be the subject-matter of inheritance, but not the inheritance itself; it cannot therefore, by its own intrinsic force, enlarge an estate, prima facie a life estate, into a fee. 2 B. & P. 251; 8 T. R. 503; 1 Tho. Co. Litt. 219, note T.
2. Hereditaments are divided into corporeal and incorporeal. Corporeal hereditaments are confined to lands. (q. v.) Vide Incorporeal hereditaments, and Shep. To. 91; Cruise's Dig. tit. 1, s. 1; Wood's Inst.221; 3 Kent, Com. 321; Dane's Ab. Index, h.t.; 1 Chit. Pr. 203-229; 2 Bouv. Inst. n. 1595, et seq.
HEREDITARY. That which is inherited.
HERESY, Eng. law. The adoption of any erroneous religious tenet, not warranted by the established church.
2. This is punished by the deprivation of certain civil rights, and by fine and imprisonment. 1 East, P. C. 4.
3. In other countries than England, by heresy is meant the profession, by Christians, of religious opinions contrary to the dogmas approved by the established church of the respective countries. For an account of the origin and progress of the laws against heresy, see Giannoni's Istoria di Napoli, vol. 3, pp, 250, 251, &c.
4. in the United State, happily, we have no established religion; there can, therefore, be no legal heresy. Vide Apostacy; Christianity.
HERISCHILD. A species of English military service, or knight's fee.
HERIOTS, Eng. law. A render of the best beast or other goods, as the custom may be, to the lord, on the death of the tenant. 2 Bl. Com. 97.
2. They are usually divided into two sorts, heriot service, and heriot custom; the former are such as are due upon a special reservation in the grant or lease of lands, and therefore amount to little more than a mere rent; the latter arise upon no special reservation whatsoever, but depend merely upon immemorial usage and custom. These are defined to be a customary tribute of goods and chattels, payable to the lord of the fee, on the decease of the owner of the land. 2 Bl. Com. 422. Vide Com. Dig. Copyhold, K 18; Bac. Ab. h. t.; 2 Saund. lndex, h. t.; 1 Vern. 441.
HERITAGE. By this word is understood, among the civilians, every species of immovable which can be the subject of property, such as lands, houses, orchards, woods, marshes, ponds, &c., in whatever mode they may have been acquired, either by descent or purchase. 3 Toull. 472. It is something that can be inherited. Co. Litt. s. 731.
HERMAPHRODITES. Persons who have in the sexual organs the appearance of both sexes. They are adjudged to belong to that which prevails in them. Co. Litt. 2, 7; Domat, Lois Civ. liv. 1, t. 2, s. 1, n.. 9.
2. The sexual characteristics in the human species are widely separated, and the two sexes are never, perhaps, united in the same individual. 2 Dunglison's Hum. Physiol. 304; 1 Beck's Med. Jur. 94 to 110.
3. Dr. William Harris, in a lecture delivered to the Philadelphia Medical Institute, gives an interesting account of a supposed hermaphrodite who came under his own observation in Chester county, Pennsylvania. The individual was called Elizabeth, and till the age of eighteen, wore the female dress, when she threw it off, and assumed the name of Rees, with the dress and habits of a man; at twenty-five, she married a woman, but had no children. Her clitoris was five or six inches long, and in coition, which she greatly enjoyed, she used this instead of the male organ. She lived till she was sixty years of age, and died in possession of a large estate, which she had acquired by her industry and enterprise. Medical Examiner, vol. ii. p, 314. Vide 1 Briand, M´d. L´g. c. 2, art. 2 , §2, n. 2; Dict. des Sciences M´d. art. Hypospadias, et art. Impuissance; Guy, Med. Jur. 42,47.
HIDE, measures. In England, a hide of land, according to some ancient-manuscripts, contained one hundred and twenty acres. Co. Litt. 5; Plowd. 167; Touchst. 93.
HIERARCHY, eccl. law. A hierarchy signified, originally, power of the priest; for in the beginning of societies, the priests were entrusted with all the power but, among the priests themselves, there were different degrees of power and authority, at the summit of which was the sovereign pontiff, and this was called the hierarchy. Now it signifies, not so much the power of the priests as the border of power.
HIGH. This word has various signifcations: 1. Principal or chief, as high constable, high sheriff. 2. Prominent, in a bad sense, as high treason. 3. Open, not confined, as high seas.
HIGH CONSTABLE. An officer appointed in some cities bears this name. His powers are generally Iimited to matters of police, and are not more extensive in these respects than those of constables. (q. v.)
HIGH COURT OF DELEGATES, English law. The name of a court esthlished by stat. 25 Hen. VIII. c. 19, s. 4. No permanent judges are appointed, but in every case of appeal to this court, there issues a special commission, under the great seal of Great Britain, directed to such persons as the lord chancellor, lord keeper, or lords commissioners of the great seal, for the time being, shall think fit to appoint to bear and determine the same. The persons usually appointed, are three puisne judges, one from each court of common law, and three or more civilians; but in special cases, a fuller commission is sometimes issued, consisting of spiritual and temporal peers, judges of the common law, and civilians, three of each description. In case of the court being equally divided, or no common law judge forming part of the majority, a commission of adjuncts issues, appointing additional judges of the same description. 1 Hagg. Eccl. R. 384; 2 Hagg. Eccl. R. 84; 3 Hagg. Ecel. R. 471; 4 Burr. 2251.
HIGH SEAS. This term, which is frequently used in the laws of the United States signifies the unenclosed waters of the ocean, and also those waters on the sea coast which are without the boundaries of low water mark. 1 Gall. R. 624; 5 Mason's R. 290; 1 Bl. Com. 110; 2 Haze. Adm. R. 398; Dunl. Adm. Pr. 32, 33.
2. The Act of Congress of April 30 1790, s. 8, 1 Story'S L. U. S. 84, enacts, that if any person shall commit upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state, murder, &c., which, if committed within the body of a county, would, by the laws of the United States, be punishable with death, every such offender, being thereof convicted, shall suffer death and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may first be brought. See 4 Dall. R. 426; 3 Wheat. R. 336; 5 Wheat 184, 412; 3 W. C. C. R. 515; Serg. Const. Law, 334;13 Am. Jur. 279 1 Mason, 147, 152; 1 Gallis. 624.
HIGH TREASON, English law. Treason against the king, in contradistinction with petit treason, which is the treason of a servant towards his master; a wife towards her hushand; a secular or religious man against his prelate. See Petit treason; Treason.
HIGH WATER MARK. That part of the shore of the sea to which the waves ordinarily reach when he tide is at its highest. 6 Mass. R. 435; 1 Pick. R.180; 1 Halst. R. 1; 1 Russ. on Cr. 107; 2 East, P. C. 803. Vide Sea shore; Tide.
HIGHEST BIDDER, contracts. He who, at an auction, offers the greatest price for the property sold.
2. The highest bidder is entitled to have the article sold at his bid, provided there has been no unfairness on his part. A distinction has been made between the highest and the best bidder. In judicial sales, where the highest bidder is unable to pay, it is said the sheriff may offer the property to the next highest, who will pay, and he is considered the highest best bidder. 1 Dall. R. 419.
HIGHWAY. A passage or road through the country, or some parts of it, for the use of the people. 1 Bouv. Inst. n. 442. The term highway is said to be a generic name for all kinds of public ways. 6 Mod R, 255.
2. Highways are universally laid out by public authority and repaired at the public expense, by direction of law. 4 Burr. Rep. 2511.
3. The public have an easement over a highway, of which the owner of the land cannot deprive them; but the soil and freehold still remain in the owner, and he may use the land above and below consistently with the easement. He may, therefore, work a mine, sink a drain or water course, under the highway, if the easement remains unimpaired. Vide Road; Street; Way; and 4 Vin. Ab. 502; Bac. Ab. h. t.; Com. Dig. Chemin; Dane's Ab. Index, h. t.; Egremont on Highways; Wellbeloved on Highways; Woolrych on Ways; 1 N. H. Rep. 16; 1 Conn. R. 103; 1 Pick. R. 122; 1 M'Cord's R. 67; 2 Mass. R. 127; 1 Pick. R. 122; 3 Rawle, R. 495; 15 John. R. 483; 16 Mass. R.33; 1 Shepl. R. 250; 4 Day, R. 330; 2 Bail. R. 271; 1 Yeates, Rep. 167.
4. The owners of lots on opposite sides of a highway, are prima facie owners, each of one half of the highway,, 9 Serg. & Rawle, 33; Ham. Parties, 275; Bro. Abr. Nuisance, pl. 18 and the owner may recover the possession in ejectment, and have it delivered to him, subject to the public easement. Adams on Eject. 19, 18; 2 Johns. Rep. 357; 15 Johns. Rep.447; 6 Mass. 454; 2 Mass. 125.
5. If the highway is impassable, the public have the right to pass over the adjacent soil; but this rule does not extend to private ways, without an express grant. Morg. Vad. Mec. 456-7; 1 Tho. Co. Lit. 275; note 1 Barton, Elem. Conv. 271; Yelv. 142, note 1.
HIGHWAYMAN. A robber on the highway.
HILARY TERM, Eng. law. One of the four terms of the courts, beginning the11th and ending the 31st day of January in each year.
HIGLER, Eng. law. A person who carries from door to door, and sells by retail, small articles of provisions, and the like.
HIRE, contracts. A bailment, where a compensation is to be given for the use of a thing, or for labor or services about it. 2 Kent's Com. 456; 1 Bell's Com. 451; Story on Bailim. §369; see 1 Bouv. Inst. n. 980, et seq; Pothier, Contrat de Louage, ch. 1, n. 1; Domat, B. 1, tit. 4 §1, n. 1 Code Civ. art.. 1709, 1710; Civ. Code of Lo., art. 2644, 2645. See this Dict. Hirer; Letter.
2. The contract of letting and hiring is usually divided into two kinds; first, Locatio, or Locatio conductio rei, the bailment of a thing to be used by the hirer, for a compensation to be paid by him.
3. Secondly, Locatio operis, or the hire of the labor and services of the hirer, for a compensation to be paid by the letter.
4. And this last kind is again subdivided into two classes: 1. Locatio operis faciendi, or the hire of labor and work to be done, or care and attention to be bestowed on the goods let by the hirer, for a compensation; or,
5. - 2. Locatio operis mercium vehendarum, or the hire and carriage of goods from one place to another, for a compensation. Jones' Bailm. 85, 86,90, 103, 118; 2 Kent's Com. 456; Code Civ. art. 1709, 1710, 1711.
6. This contract arises from the principles of natural law; it is voluntary, and founded in consent; it involves mutual and reciprocal obligations; and it is for mutual benefit. In some respects it bears a strong resemblance to the contract of sale, the principal difference between them being, that in cases of sale, the owner, parts with the whole proprietary interest in the thing; and in cases of hire, the owner parts with it only for a temporary use and purpose. In a sale, the thing itself is the object of the contract; in hiring, the use of the thing is its object. Vinnius, lib. 3, tit. 25, in pr.; Pothier, Louage, n. 2, 3, 4; Jones Bdilm. 86; Story on Bailm. §371.
7. Three things are of the essence of the contract: 1. That there should be a thing to be let. 2. A price for the hire. 3. A contract possessing a legal obligation. Pothier, Louage, n. 6; Civ. Code of Lo. art. 2640.
8. There is a species of contract in which, though no price in money be paid, and which, strictly speaking, is not the contract of hiring, yet partakes of its nature. According to Pothier, it is an agreement which must be classed with contracts do ut des. (q. v.) It frequently takes place among poor people in the country. He gives the following example: two poor neighbors, each owning a horse, and desirous to plough their respective fields, to do which two horses are required, one agrees that he will let the other have his horse for a particular time, on condition that the latter will let the former have his horse for the same length of time. Du Louage n. 458. This contract is not a hiring, strictly speaking, for want of a price; nor is it a loan for use, because there is to be a recompense. It has been supposed to be a partnership; but it is different from that contract, because there is no community of profits. This contract is, in general, ruled by, the same principles which govern the contract of hiring.19 Toull. n. 247.
9. Hire also, means the price given for the use of the thing hired; as, the hirer is bound to pay the hire or recompense. Vide Domat. liv. 1, tit.4; Poth. Contrat de Louage; Toull. tomes 18, 19, 20; Merl. R´pert. mot Louage; Dalloz, Dict. mot Louage; Argou, Inst. liv. 3, c. 27.
HIRER, contracts. Called, in the civil law, conductor, and, in the French law conducteur, procureur, locataire, is he who takes a thing from another, to use it, and pays a compensation therefor. Wood's Inst. B. 3, c. 5, p.236; Pothier, Louage, n. 1; Domat, B. 1, tit. 4, §1, n. 2; Jones' Bailm. 70; see this Dict. Letter.
2. There is, on the part of the hirer, an implied obligation, not only to use the thing with due care and moderation but not to apply it to any other use than that for which it is hired; for example, if a horse is hired as a saddle, horse; the hirer has no right to use the horse in a cart, or to carry loads, or as a beast of burden. Pothier Louage, n. 189; Domat, B.1, tit. 4, §2, art. 2, 3; Jones' Bailm. 68, 88; 2 Saund. 47 g, and note; 1 Bell's Com. 454; 1 Cowen's R. 322; 1 Meigs, R. 459. If a carriage and horses are hired to go from Philadelphia to New York, the hirer has no right to go with them on a journey to Boston. Jones' Bailm. 68; 2 Ld. Raym.915. So, if they are hired for a week, he has no right to use them for a month, Jones' Bailm. 68; 2 Ld. Raym. 915; 5 Mass. 104. And if the thing be used for a different purpose from that which was intended by the parties, or in a different manner, or for a longer period, the hirer is not only responsible for all damages, but if a loss occur, although by inevitable casualty, he will be responsible therefor. 1 Rep. Const. C. So. Car. 121; Jones' Bailm. 68, 121; 2 Ld. Raym. 909, 917. In short, such a misuser is deemed a conversion of the property, for which the hirer is deemed responsible. Bac. Abr. Bailment, C; Id. Trover, C, D, E; 2 Saund. 47 g; 2 Bulst. 306, 309.
3. The above rules apply to cases where the hirer has the possession as well as the use of the thing hired when the owner or his agents retain the possession, the hirer is not in general responsible for an injury done to it. For example, when the letter of a carriage and a pair of horses sent his driver with them and an injury occurred, the hirer was held not to be responsible. 9 Watts, R. 556, 562; 5 Esp. R. 263; Poth. Louage n. 196; Jones, Bailm. 88; Story., Bailm. §403. But see 1 Bos. & P. 404, 409; 5 Esp. N. P. c 35; 10 Am. Jur. 256.
4. Another implied obligation of the hirer is to restore the thing hired, when the bailment, is determined. 4 T. R. 260; 3 Camp. 5, n.; 13 Johns. R.211.
5. The time, the place, and the mode of restitution of the thing hired, are governed by the circumstances of each case depend and depend upon rules of presumption of the intention of the parties, like those in other cases of bailment. Story on Bailm. §415
6. There is also an implied obligation on the part of the hirer, to pay the hire or recompense. Pothier, Louage, n. 134; Domat, B. 2, tit. 2, §2, n. 11 Code Civ; art. 1728. See, generally, Bouv. Inst. Index, h. t.; Employer; Letter.
HIS EXCELLENCY. A title given by the constitution of Massaebusetts to the governor of that commonwealth. Const. part 2, c. 2, s. 1, art. 1. This title is customarily given to the governors of the other states, whether it be the official designation in their constitutions and laws or not.
HIS HONOR. A title given by the constitution of Massachusetts to the lieu- tenant governor of that commonwealth. Const. part 2, c. 2, s. 2, art.1. It, is also customarily given to some inferior magistrates, as the mayor of a city.
HISTORY, evidence. The recital of facts written and given out for true.
2. Facts stated in histories may be read in evidence, on the ground of their notoriety. Skin. R. 14; 1 Ventr. R. 149. But these facts must be of a public nature, and the general usages and customs of the country. Bull. P.248; 7 Pet. R. 554; 1 Phil. & Am. Ev. 606; 30 Howell's St. Tr. 492. Histories are not admissible in relation to matters not of a public nature, such as the custom of a particular town, a descent, the boundaries of a county, and the like. 1 Salk. 281; S. C. Skin. 623; T. Jones, 164; 6 C. & P. 586, note. See 9 Ves. 347; 10 Ves. 354; 3 John. 385; 1 Binn. 399; and Notoriety.
HODGE-PODGE ACT. A name given to a legislative act which embraces many subjects. Such acts, besides being evident proofs of the ignorance of the makers of them, or of their want of good faith, are calculated to create a confusion which is highly prejudicial to the interests of justice. Instances of this wretched legislation are everywhere to be found. See Barring on the Stat. 449. Vide Title; Legislation.
HOERES FACTUS, civil law. An heir instituted by testament; one made an heir by the testator. Vide Heir.
HOERES NATUS, civil law. An heir by intestacy; he on whom an estate descends by operation of law. Vide Heir.
HOGSHEAD. A measure of wine, oil, and the like, containing half a pipe; the fourth part of a tun, or sixty-three gallons.
TO HOLD. These words are now used in a deed to express by what tenure the grantee is to have the land. The clause which commences with these words is called the tenendum. Vide Habendum; Tenendum.
2. To hold, also means to decide, to adjudge, to decree; as, the court in that case held that the hushand was not liable for the contract of the wife, made without his express or implied authority.
3. It also signifies to bind under a contract, as the obligor is held and firmly bound. In the constitution of the United States, it is provided, that no person held to service or labor in one state under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on the claim of the party to whom such service or labor may be due. Art. 4, sec. 3, §3; 2 Serg. & R. 306; 3 Id. 4; 5 Id. 52; 1 Wash. C. C. R. 500; 2 Pick. 11; 16 Pet. 539, 674.
HOLDER. The holder of a bill of exchange is the person who is legally in the possession of it, either by endorsement or delivery, or both, and entitled to receive payment either from the drawee or acceptor, and is considered as an assignee. 4 Dall. 53. And one who endorses a promissory note for collection, as an agent, will be considered the holder for the purpose of transmitting notices. 2 Hall, R. 112; 6 How. U. S. 248; 20 John.372. Vide Bill of Exchange.
HOLDING OVER. The act of keeping possession by the tenant, without the consent of the landlord of premises which the latter, or those under whom he claims, had leased to the former, after the term has expired.
2. When a proper notice has been given, this injury is remedied by, ejectment, or, under local regulations, by summary proceedings. Vide 2 Yeates' R. 523; 2 Serg. & Rawle, 486; 5 Binn. 228; 8 Serg. & Rawle, 459; 1 Binn. 334, a.; 5 Serg. & Rawle 174; 2 Serg. & Rawle, *50; 44 Rawle, 123.
HOLOGRAPH. What is written by one's own hand. The same as Olograph. Vide Olograph.
HOMAGE, Eng. law. An acknowledgment made by the vassal in the presence of his lord, that he is his man, that is, his subject or vassal. The form in law French was, Jeo deveigne vostre home.
2. Homage was liege and feudal. The former was paid to the king, the latter to the lord. Liege, was borrowed from the French, as Thaumas informs us, and seems to have meant a service that was personal and inevitable. Houard, Cout. Anglo Norman, tom. 1, p. 511; Beames; Glanville, 215, 216,218, notes.
HOME PORT. The port where the owner of a ship resides; this is a relative term.
HOMESTALL. The mansion-house.
HOMESTEAD. The place of the house or home place. Homestead farm does not necessarily include all the parcels of land owned by the grantor, though lying and occupied together. This depends upon the intention of the parties when the term is mentioned in a deed, and is to be gathered from the context. 7 N. H. Rep. 241; 15 John. R. 471. See Manor; Mansion.
HOMICIDE, crim. law. According to Blackstone, it is the killing of any human creature. 4 Com. 177. This is the most extensive sense of this word, in which the intention is not considered. But in a more limited sense, it is always understood that the killing is by human agency, and Hawkins defines it to be the killing of a man by a man. 1 Hawk. c. 8, s. 2. See Dalloz, Dict. h. t. Homicide may perhaps be described to be the destruction of the life of one human being, either by himself, or by the act, procurement, or culpable omission of another. When the death has been intentionally caused by the deceased himself, the offender is called felo de se; when it is caused by another, it is justifiable, excusable, or felonious.
2. The person killed must have been born; the killing before birth is balled foeticide. (q. v.)
3. The destruction of human life at any period after birth, is homicide, however near it may be to extinction, from any other cause.
4. - 1. Justifiable homicide is such as arises, 1st. From unavoidable necessity, without any will, intention or desire, and without any inadvertence in the party killing, and therefore without blame; as, for instance, the execution, according to law, of a criminal who has been lawully sentenced to be hanged; or, 2d. It is committed for the advancement of public justice; as if an officer, in the lawful execution of his office, either in a civil or criminal case, should kill a person who assaults and resists him. 4 Bl. Com. 178-1 80. See Justifiable Homicide.
5. - 2. Excusable homicide is of two kinds 1st. Homicide per infortunium. (q. v.) or, 2d. Se defendendo, or self defence. (q. v.) 4 Bl. Com. 182, 3.
6. - 3. Felonious homicide, which includes, 1. Self-murder, or suicide;2. Man-slaughter, (q. v.); and , 3. Murder. (q. v.) Vide, generally, 3 Inst. 47 to 57; 1 Hale P. C. 411 to 602; 1 Hawk. c. 8; Fost. 255 to 837; 1 East, P. C. 214 to 391; Com. Dig. Justices, L. M.; Bac. Ab. Murder and Homicide; Burn's Just. h. t.; Williams' Just. h. t.; 2 Chit. Cr. Law, ch.9; Cro. C. C. 285 to 300; 4 Bl. Com. to 204; 1 Russ. Cr. 421 to 553; 2 Swift's Dig. 267 to 292.
HOMINE CAPTO IN WITHERNAM, Engl. law.. The name of a writ directed to the sheriff, and commanding him to take one who has taken any bondsman, and conveyed him out of the country, so that he cannot be replevied. Vide Withernam; Thesaurus, Brev. 63.
HOMINE ELIGENDO, English law. The name of a writ directed to a corporation, requiring the members to make choice of a new man, to keep the one part of a seal appointed for statutes merchant. Techn. Dict. h. t.
HOMINE REPLEGIANDO. When a man is unlawfully in custody, he may be restored to his liberty by writ de hominereplegiando, upon giving bail; or by a writ of habeas, corpus, which is the more usual remedy. Vide Writ de homine replegiando.
HOMO. This Latin word, in its most enlarged sense, includes both man and woman. 2 Inst. 45. Vide Man.
HOMOLOGATION, civil law. Approbation, confirmation by a court of justice, a judgment which orders the execution of some act; as, the approbation of an award, and ordering execution on the same. Merl. Rep´rt. h. t.; Civil Code of Louis. Index, h. t.; Dig. 4, 8; 7 Toull. n. 224. To homologate, is to say the like, similiter dicere. 9 Mart. L. R. 324.
HONESTY. That principle which requires us to give every one his due. Nul ne doit slenrichir aux de ens du droit d'autrui.
2. The very object of social order is to promote honesty, and to restrain dishonesty; to do justice and to prevent injustice. It is no less a maxim of law than of religion, do unto others as you wish to be done by.
HONOR. High estimation. A testimony of high estimation. Dignity. Reputation. Dignified respect of character springing from probity, principle, or moral rectitude. A duel is not justified by any insult to our honor. Honor is also employed to signify integrity in a judge, courage in a soldier, and chastity in a woman. To deprive a woman of her honor is, in some cases, punished as a public wrong, and by an action for the recovery of damages done to the relative rights of a hushand or a father. Vide Criminal conversation.
2. In England, when a peer of parliament is sitting judicially in that body, his pledge of honor is received instead of an oath; and in courts of equity, peers, peeresses, and lords of parliament, answer on their honor only. But the courts of common law know no such distinction. It is needless to add, that as we are not encumbered by a nobility, there is no such distinction in the United States, all persons being equal in the eye of the law.
HONOR, Eng. law. The seigniory of a lord paramount. 2 Bl. Com. 9f.
TO HONOR, contr. To accept a bill of exchange; to pay a bill accepted, or a promissory note, on the day it becomes due. 7 Taunt. 164; 1 T. R. 172. Vide To Dishonor.
HONORARIUM. A recompense for services rendered. It is usually applied only to the recompense given to persons whose business is connected with science; as the fee paid to counsel.
2. It is said this honorarium is purely voluntary, and differs from a fee, which may be recovered by action. 5 Serg. & Rawle, 412; 3 Bl. Com. 28;1 Chit. Rep. 38; 2 Atk. 332; but see 2 Penna. R. 75; 4 Watts' R. 334. Vide Dalloz, Dict. h. t., and Salary. See Counsellor at law.
HORS DE SON FEE, pleading in the ancient English law. These words signify out of his fee. A plea which was pleaded, when a person who pretended to be the lord, brought an action for rent services, as issuing out of his land: because if the defendant could prove the land was out of his fee, the action failed. Vide 9 Rep. 30; 2 Mod. 104; 1 Danvers' Ab. 655; Vin. Ab. h. t.
HORSE. Until a horse has attained the age of four years, he is called a colt. (q. v.) Russ. & Ry. 416. This word is sometimes used as a generic name for all animals of the horse kind. 3 Brev. 9. Vide Colt; Gender; and Yelv. 67, a.
HOSTAGE. A person delivered into the possession of a public enemy in the time of war, as a security for the performance of a contract entered into between the belligerents.
2. Hostages are frequently given as a security for the payment of a ransom bill, and if they should die, their death would not discharge the contract. 3 Burr. 1734; 1 Kent, Com. 106; Dane's Ab. Index, h. t.
HOSTELLAGIUM, Engl. law. A right reserved to the lords to be lodged and entertained in the houses of their tenants.
HOSTILITY. A state of open enmity; open war. Wolff, Dr. de la Rat. §1191. Hostility, as it regards individuals, may be permanent or temporary; it is permanent when the individual is a citizen or subject of the government at war, and temporary when he happens to be domiciliated or resident in the country of one of the belligerents; in this latter case the individual may throw off the national character he has thus acquired by residence, when he puts himself in motion, bona fide, to quit the country sine animo revertendi. 3 Rob. Adm. Rep. 12; 3 Wheat. R. 14.
2. There may be a hostile character merely as to commercial purposes, and hostility may attach only to the person as a temporary enemy, or it may attach only to the property of a particular description. This hostile character in a commercial view, or one limited to certain intents and purposes only, will attach in, consequence of having possessions in the territory of the enemy, or by maintaining a commercial establishment there, or by a personal residence, or, by particular modes of traffic, as by sailing under the enemy's flag of passport. 9 Cranch, 191 5 Rob. Adm. Rep.21, 161; 1 Kent Com. 73; Wesk. on Ins. h. t.; Chit. Law of Nat. Index, h. t.
HOTCHPOT, estates. This homely term is used figuratively to signify the blending and mixing property belonging to different persons, in order to divide it equally among those entitled to it. For example, if a man seised of thirty acres of land, and having two children, should, on the marriage of one of them, give him ten acres of it, and then die intestate seised of the remaining twenty; now, in order to obtain his portion of the latter, the married child, must bring back the ten acres he received, and add it to his father's estate, when an equal division of the whole will take place, and each be entitled to fifteen acres. 2 Bl. Com. 190. The term hotchpot is also applied to bringing together all the personal estate of the deceased, with the advancements he has made to his children, in order that the same may be divided agreeably to the provisions of the statute for the distribution of intestate's estates. In bringing an advancement into hotchpot, the donee is not required to account for the profits of the thing given; for example, he is not required to bring into hotchpot the produce of negroes, nor the interest of money. The property must be accounted for at its value when given. 1 Wash. R. 224; 17 Mass. 358; 2 Desaus. 127.; 3 Rand. R. 117; 3 Pick. R. 450; 3 Rand. 559; Coop. Justin. 575.
2. In Louisiana the term collation is used instead of hotchpot. The collation of goods is the supposed or real return to the mass of the succession, which an heir makes of property which he received in advance of his share or otherwise, in order that such property maybe divided, together with the other effects of the succession. Civ. Code of Lo. art. 1305; and vide from that article to article 1367. Vide, generally, Bac. Ab. Coparceners, E; Bac. Ab. Executors, &c., K; Com. Dig. Guardian, G 2, Parcener, C 4; 8 Com. Dig. App. tit. Distribution, Statute of, III. For the French law, see Merl. Rep´rt. mots Rapport a succession.
HOUR measure of time. The space of sixty minutes, or the twenty-fourth part of a natural day. Vide Date; Fraction; and Co. Litt. 135; 3 Chit. Pr.110.
HOUSE, estates. A place for the habitation and dwelling of man. This word has several significations, as it is applied to different things. In a grant or demise of a house, the curtilage and garden will pass, even without the words "with the appurtenances," being added. Cro. Eliz. 89; S. C.; 3 Leon. 214; 1 Plowd. 171; 2 Saund. 401 note 2; 4 Penn. St. R; 93.
2. In a grant or demise of a house with the appurtenaces, no more, will pass, although other lands have been occupied with the house. 1 P. Wms.603; Cro. Jac. 526; 2 Co. 32; Co. Litt. 5 d.; Id. 36 a. b.; 2 Saund. 401, note 2.
3. If a house, originally entire, be divided into several apartments, with an outer door to each apartment and no communication with each other subsists, in such case the several apartments are considered as distinct houses. 6 Mod. 214; Woodf. Land. & Ten. 178.
4. In cases of burglary, the mansion or dwelling-house in which the burglary might be committed, at common law includes the outhouses, though not under the same roof or adjoining to the dwelling-house provided they were within the curtilage, or common fence, as the dwelling or mansion house. 3 Inst. 64;1 Hale, 558; 4 Bl. Com. 225; 2 East, P. C. 493; 1 Hayw. N. C. Rep. 102, 142; 2 Russ. on Cr. 14.
5. The term house, in case of arson, includes not only the dwelling but all the outhouses, as in the case of burglary. It is a maxim in law that every man's house is his castle, and there he is entitled to perfect security; this asylum cannot therefore be legally invaded, unless by an officer duly authorized by legal process; and this process must be of a criminal nature to authorize the breaking of an outer door; and even with it, this cannot be done, until after demand of admittance and refusal. 5 Co. 93; 4 Leon. 41; T. Jones, 234. The house may be also broken for the purpose of executing a writ of habere facias. 5 Co. 93; Bac. Ab. Sheriff, N3.
6. The house protects the owner from the service of all civil process in the first instance, but not if he is once lawfully arrested and he takes refuge in his own house; in that case, the officer may pursue him and break open any door for the purpose. Foster, 320; 1 Rolle, R. 138; Cro. Jac. 555; Bac. Ab. ubi sup. In the civil law the rule was nemo de domo sua extrahi debet. Dig. 50, 17, 103. Vide, generally, 14 Vin. Ab. 315; Yelv. 29 a, n.1; 4 Rawle, R. 342; Arch. Cr. Pl. 251; and Burglary.
7. House is used figuratively to signify a collection of persons, as the house of representatives; or an institution, as the house of refuge; or a commercial firm, as the house of A B & Co. of New Orleans; or a family, as, the house of Lancaster, the house of York.
HOUSE OF COMMONS, Eng. law. The representatives of the people, in contradistinction to the nobles, taken collectively are called the house of commons.
2. This house must give its consent to all bills before they acquire the authority of law, and all laws for raising revenue must originate there.
HOUSE OF CORRECTIONS. A prison where offenders of a particular class are confined. The term is more common in England than in the United States.
HOUSE OF LORDS. Eng. law. The English lords, temporal and spiritual, when taken collectively and forming a branch of the parliament, are called the House of Lords.
2. Its assent is required to all laws. As a court of justice, it tries all impeachments.
HOUSE OF REFUGE, punishment. The name given to a prison for juvenile delinquents. These houses are regulated in the United Statees on the most humane principles, by special local laws.
HOUSE OF REPRESENTATIVES, government. The popular branch of the legislature.
2. The Constitution of the United States, art. 1, s. 2, 1, provides, that "the house of representatives shall be composed of members chosen every second year by the people of, the several states; and the electors of each state, shall have the qualifications requisite for electors of the most numerous branch of the state legislature."
3. The general qualifications of electors of the assembly, or most numerous branch of the legislature, in the several state governments, are, that they be of the age of twenty-one years and upwards, and free resident citizens of the state in which they vote, and have paid taxes: several of the state constitutions have prescribed the same or higher qualifications, as to property, in the elected, than in the electors.
4. The constitution of the United States, however, requires no evidence of property in the representatives, nor any declarations as to his religious belief. He must be free from undue bias or dependence, by not holding any office under the United States. Art. 1, s. 6, 2.
5. By the constitutions of the several states, the most numerous branch of the legislature generally bears the name of the house of representatives. Vide Story on Constitution of the United States, chap. 9 1 Kent's Com. 228.
6. By the Act of June 22, 1842, c. 47, it is provided, §1. That from and after the third day of March, one thousand eight hundred and forty-three, the house of representatives shall be composed of members elected agreeably to a ratio of one representative for every seventy thousand six hundred and eighty persons in each state, and ofone additional representative for each state having a fraction greater than one moiety of the said ratio, computed according to the rule prescribed by the constitution of the United States; that is to say: within the state of Maine, seven; within the state of New Hampshire, four; within the state of Massachusetts, ten; within the state of Rhode Island, two within the state of Connecticut, four; within the state of Vermont, four; within the state of New York, thirty-four; within the state of New Jersey, five; within the state of Pennsylvania, twenty-four; within the state of Delaware, one; within the state of Maryland, six; within the state of Virginia, fifteen; within the state of North Carolina, nine; within the state of South Carolina, seven; within the state of Georgia, eight; within the state of Alabama, seven; within state of Louisiana, four; within the state of Mississippi, four; within the state of Tennessee, eleven; within the state of Kentucky, ten; within the state of Ohio, twenty-one; within the state of Indiana, ten; within the state of Illinois, seven; within the state of Missouri, five; within the state of Arkansas, one; within the State of Michigan, three.
7.- §2. That in every case where a state is entitled to more than one representative, the number to which each state shall be entitled under this apportionment shall be elected by districts. composed of contiguous territory, equal in number to the number of representatives to which said state may be entitled, no one district electing more than one representative.
8. For the constitutions of the houses of representatives in the several states, the reader is referred to the names of the states in this work. Vide Congress.
HOUSE-BOTE. An allowance of necessary timber out of the landlord's woods, for the repairing and support of a house or tenement. This belongs of common-right to any lessee for years or for life. House-bote is said to be of two kinds, estoveriam aedificandi et ardendi. Co. Litt. 41.
HOUSEKEEPER. One who occupies a house.
2. A person who occupies every room in the house, under a lease, except one, which is reserved for his landlord, who pays all the taxes, is not a housekeeper. 1 Chit. Rep. 502. Nor is a person a housekeeper, who takes a house, which be afterwards underlets to another, whom the landlord refuses to accept as his tenant; in this case, the under-tenant aid the, taxes and let to the tenant the, first floor of the house, and the rent was paid for the whole house to the tenant, who paid it to the landlord. Id. note.
3. In order to make the party a house-keeper, he must be in actual possession of the house; 1 Chit. Rep. 288 and must occupy a whole house. 1 Chit. Rep. 316. See 1 Barn. & Cresw. 178; 2 T. R. 406; 1 Bott, 5; 3 Petersd, Ab. 103, note; 2 Mart. Lo. R. 313.
HOVEL. A place used by hushandmen to set their ploughs, carts, and other farming utensils, out of the rain and sun. Law Latin Dict. A shed; a cottage; a mean house.
HOYMAN. The master or captain of a hoy.
2. Hoymen are liable as common carriers. Story, Bailm. §496.
HUE AND CRY, Eng. law. A mode of pursuing felons, or such as have dangerously wounded any person, or assaulted any one with intent to rob him, by the constable, for the purpose of arresting the offender. 2 Hale, P. C. 100.
HUEBRA, Spanish law. An acre of land or as much as can be ploughed in a day by two oxen. Sp. Dict.; 2 White's Coll. 49.
HUISSIER. An usher of a court. In France, an officer of this name performs many of the duties which in this country devolve on the sheriff or constable. Dalloz, Dict. h. t. See 3 Wend. 173.
HUNDRED, Eng. law. A district of country originally comprehending one hundred families. In many cases, when an offence is committed within the -hundred, the inhabitants tire civilly responsible to the party injured.
2. This rule was probably borrowed from the nations of German origin, where it was known. Montesq. Esp. des Lois, ]iv. 30, c. 17. It was established by Clotaire, among the Franks. 11 Toull. n. 237.
3. To make the innocent pay for the guilty, seems to be contrary to the first principles of justice, and can be justified only by necessity. In some of the United States laws have been passed making cities or counties responsible for, the destruction of property by a mob. This can be justified only on the ground that it is the interest of every one that property should be protected, and that it is for the general good such laws should exist.
HUNDRED GEMOTE. The name of a court among the Saxons. It was holden every month, for the benefit of the inhabitants of the hundred.
HUNDREDORS. In England they are inhabitants of a local division of a county, who, by several statutes, are held to be liable in the cases therein specified, to make good the loss sustained by persons within the hundred, by robbery or other violence, therein also specified. The principal of these statutes are, 13 Edw. I. st. 2, c. 1, s. 4; 28 Edw. III. c. 11; 27 Eliz. c. 13; 29 Car. II. c. 7; 8 Geo. II. c. 16; 22 Geo. II. c.24.
HUNGER. The desire for taking food. Hunger is no excuse for larceny. 1 Hale, P. C. 54; 4 Bl. Com. 31. But it is a matter which applies itself strongly to the consciences of the judges in mitigation of the punishment.
2. When a person has died, and it is suspected he has been starved to death, an examination of his body ought to be made, to ascertain whether or not he died of hunger. The signs which usually attend death from hunger are the following: The body is much emaciated, and a foetid, acrid odor exhales from it, although death may have been very recent. The eyes are red and open, which is not usual in other causes of death. The tongue and throat are dry, even to aridity, and the stomach and intestines are contracted and empty. The gall bladder is pressed with bile, and this fluid is found scattered over the stomach and intestines, so as to tinge them very extensively. The lungs are withered, but all the other organs are generally in a healthy state. The blood vessels are usually empty. Foder´, tom. ii. p. 276, tom. iii. p. 231; 2 Beck's Med. Jur. 52; see Eunom. Dial. 2, §47, p. 142, and the note at p. 384.
HUNTING. The act of pursuing and taking wild animals; the chase.
2. The chase gives a kind of title by occupancy, by which the hunter acquires a right or property in the game which he captures. In the United States, the right of hunting is universal, and limited only so far as to exclude hunters from committing injuries to private property or to the public; as, by shooting on public roads. Vide Feroe naturae; Occupancy.
HURDLE, Eng. law. A species of sledge, used to draw traitors to execution.
HUshAND, domestic relations. A man who has a wife.
2. The hushand, as such, is liable to certain obligations, and entitled to certain rights, which will be here briefly considered.
3. First, of his obligations. He is bound to receive his wife at his home, and should furnish her with all the necessaries and conveniences which his fortune enables him to do, and which her situation requires; but this does not include such luxuries as, according to her fancy, she deems necessaries; vide article Cruelty, where this matter is considered. He is bound to love his wife, and to bear with her faults, and, if possible, by mild means to correct them and he is required to fulfil towards her his marital promise of fidelity, and can, therefore, have no carnal connexion with any other woman, without a violation of his obligations. As he is bound to govern his house properly, he is liable for its misgovernment, and he may be punished for keeping a disorderly house, even where his wife had the principal agency, and he is liable for her torts, as for her slander or trespass. He is also liable for the wife's debts, incurred before coverture, provided they are recovered from him during their joint lives; and generally for such as are contracted by her after coverture, for necessaries, or by his authority, express or implied. See 5 Whart. 395; 5 Binn. 235; 1 Mod. 138; 5 Taunt. 356; 7 T. R. 166; 3 Camp. 27; 3 B. & Cr. 631; 5 W. & S. 164.
4. Secondly, of his rights. Being the head of the family, the hushand has a right to establish himself wherever he may please, and in this he cannot be controlled by his wife; he may manage his affairs his own way; buy and sell all kinds of personal property, without any control, and he may buy any real estate he may deem proper, but, as the wife acquires a right in the latter, he cannot sell it, discharged of her dower, except by her consent, expressed in the manner prescribed by the laws of the state where such lands lie. At common law, all her personal property, in possession, is vested in him, and he may dispose of it as if he had acquired it by his own contract this arises from the principle that they are considered one person in law; 2 Bl. Com. 433 and he is entitled to all her property in action, provided he reduces it to possession during her life. Id. 484. He is also entitled to her chattels real, but these vest in him not absolutely, but sub modo; as, in the case of a lease for years, the hushand is entitled to receive the rents and profits of it, and may, if he pleases, sell, surrender, or dispose of it during the coverture, and it is liable to be taken in execution for his debts and, if he survives her, it is, to all intents and purposes, his own. In case his wife survives him, it is considered as if it had never been transferred from her, and it belongs to her alone. In his wife's freehold estate, he has a life estate, during the joint lives of himself and wife; and, at common law, when he has a child by her who could inherit, he has an estate by the curtesy. But the rights of a hushand over the wife's property, are very much abridged in some of the United States, by statutes. See Act of Pennsylvania, passed April 11, 1848.
5. The laws of Louisiana differ essentially from those of the other states, as to the rights and duties of hushand and wife, particularly as it regards their property. Those readers, desirous of knowing, the legislative regulations on this subject, in that state, are referred to the Civil Code of Louis. B. 1, tit. 4; B. 3, tit. 6. Vide, generally, articles Divorce; Marrriage; Wife; and Bac. Ab. Baron and Feme; Rop. H. & W.; Prater ou H. & W.; Clancy on the Rights, Duties and Liabilities of Hushand and Wife Canning on the Interest of Hushand and Wife, &c.; 1 Phil. Ev. 63; Woodf. L. & T. 75; 2 Kent, Com. 109; 1 Salk. 113 to 119ù; Yelv. 106a, 156a, 166a; Vern. by Raithby, 7, 17, 48, 261; Chit. Pr. Index, h. t. Poth. du Contr. de Mar. n. 379; Bouv. Inst. Index, h. t.
HUshAND, mar. law. The name of an agent who is authorized to make the necessary repairs to a ship, and to act in relation to the ship, generally, for the owner. He is usually called ship's hushand. Vide Ship's Hushand.
HUshRECE, old Eng. law. The, ancient name of the offence now called burglary.
HUSTINGS, Engl. law. The name of a court held before the lord mayor and aldermen of London; it is the principal and supreme court of the city., See 2 Inst. 327; St. Armand, Hist. Essay on the Legisl. Power of England, 75.
HYDROMETER. An instrument for measuring the density of fluids; being immersed in fluids, as in water, brine, beer, brandy, &c., it determines the proportion of their densities, or their specific gravities, and thence their qualities.
2. By, the Act of Congress of January 12, 1825, 3 Story's' Laws U. S. 1976, the secretary of the treasury is authorized, under the direction of the president of the United States, to adopt and substitute such hydrometer as he may deem best calculated to promote the public interest, in lieu of that now prescribed by law, for the purpose of ascertaining the proof of liquors; and that after such adoption and substitution, the duties imposed by law upon distilled spirits shall be levied, collected and paid, according to the proof ascertained by any hydrometer so substituted and adopted.
HYPOBOLUM, civ. law. The name of the bequest or legacy given by the hushand to his wife, at his death, above her dowry. Techn. Dict. h. t.
HYPOTHECATION, civil law. This term is used principally in the civil law; it is defined to be a right which a creditor has over a thing belonging to another, and which consists in the power to cause it to be sold, in order to be paid his claim out of the proceeds.
2. There are two species of hypothecation, one called pledge, pignus, and, the other properly denominated hypothecation. Pledge is that species , of hypothecation which is contracted by the delivery of the debtor to the creditor, of the thing hypothecated. Hypothecation, properly so called, is that which is contracted without delivery of the thing hypothecated. 2 Bell's Com. 25, 5th ed.
3. Hypothecation is further divided into general and special when the debtor hypothecates to his creditor all his estate and property, which he has, or may have, the hypothecation is general; when the hypothecation is confined to a particular estate, it is special.
4. Hypothecations are also distinguished into conventional, legal, and tacit. 1. Conventional hypothecations are those which arise by the agreement of the parties. Dig. 20, 1, 5.
5. - 2. Legal hypothecation is that which has not been agreed upon by any contract, express or implied; such as arises from the effect of judgments and executions.
6. - 3. A tacit, which is also a legal hypothecation, is that which the law gives in certain cases, without the consent of the parties, to secure the creditor; such as, 1st. The lien which the public treasury has over the property of public debtors. Code, 8, 15, 1. 2d. The landlord has a lien on the goods in the house leased, for the payment of his rent. Dig. 20, 2, 2; Code, 8, 15, 7, 3d. The builder has a lien, for his bill, on the house he has built. Dig. 20, 1. 4th, The pupil has a lien on the property of the guardian for the balance of his account. Dig. 46, 6, 22; Code, 6, 37, 20. 5th. There is hypothecation of the goods of a testator for the security of a legacy he has given. Code, 6, 43, 1.
7. In the common law, cases of hypothecation, in the strict sense of the civil law, that is, of a pledge of a chattel, without possession by the pledgee, are scarcely to be found; cases of bottomry bonds and claims for seamen's wages, against ships are the nearest approach to it; but these are liens and privileges rather than hypothecations. Story, Bailm. §288. It seems that chattels not in existence, though they cannot be pledged, can be hypothecated, so that the lien will attach, as soon as the chattel has been prodced. 14 Pick. R. 497. Vide, generally, Poth. de l'Hypoth´que; Poth. Mar. Contr. translated by Cushing, note. 26, p. 145; Commercial Code of France, translated by Rodman, note 52, p. 351; Merl. R´pertoire, mot Hypoth´que, where the subject is fully considered; 2 Bro. Civ. Law, 195; Ayl. Pand. 524; 1 Law Tracts, 224; Dane's Ab. h. t.; Abbott on Ship. Index, h. t.; 13 Ves. 599; Bac. Ab. Merchant, &c. G; Civil Code of Louis. tit. 22, where this sort of security bears the name of mortgage. (q. v.)
HYPOTHEQUE, French law. Properly, the right acquired by the creditor over the immovable property which has been assigned to him by his debtor, as security for his debt, although he be not placed in possession of it. The hypotheque might arise in two was. 1. By the express agreement of the debtor, which was the conventional hypotheque. 2. By disposition of law, which was the implied or Iegal hypotheque. This was nothing but a lien or privilege which the creditor enjoyed of being first paid out of the land subjected to this incumbrance. For example, the landlord had hypotheque on the goods of his tenant or others, while on the premises let. A mason had the same on the house he built. A pupil or a minor on the land of his tutor or curator, who had received his money. Domat, Loix Civiles, 1. 3, & 1; 2 Bouv. Inst. 1817.
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 amount 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 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.
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.
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 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.
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.
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.
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 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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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
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.
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, 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.
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.
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.
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.
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 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. 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 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 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 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.
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 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.
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.
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.
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. 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.
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.
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 propriŠ 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 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, 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.
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.
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.
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 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.
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 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.
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 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 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 natue 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, 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.
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.
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.
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.
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; 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 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 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.
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.
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.
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.
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 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.
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.
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 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 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. 18; 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 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; 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, 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 presume, 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.
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.
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.
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.
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 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.
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.
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.
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.
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. 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.
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, 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.
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 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.
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.
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 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 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 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 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.
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 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.
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.
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.
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.
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 b the debtor to the creditor for its use.
2. It is proposed to consider, 1. Who is bound to pay iuterest. 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.
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 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.
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 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 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 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 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 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.
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.
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 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.
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.
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 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.
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.
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 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.
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.
INTRODUCTION. 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.
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.
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.
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 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 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 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 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.
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 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 BŠtimens, 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 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 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 hushad, &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, 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. 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.
ISSUESEng. 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. 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.
J
JACTITATION. OF MARRIAGE, Eng. eccl. law. The boasting by an individual that he or she has married another, from which it may happen that they will acquire the reputation of being married to each other.
2. The ecclesiastical courts may in such cases entertain a libel by the party injured; and, on proof of the facts, enjoin the wrong-doer to perpetual silence; and, as a punishment, make him pay the costs. 3 Bl. Com. 93; 2 Hagg. Cons. R. 423 Id. 285; 2 Chit. Pr. 459.
JACTURA. The same as jettison. (q. v.) 1 Bell's Com. 586, 5th ed.
JAIL. A prison; a place appointed by law for the detention of prisoners. A jail is an inhabited dwelling-house within the statute of New York, which makes the malicious burning of an inhabited dwelling-house to be arson. 8 John. 115; see 4 Call, 109. Vide Gaol; Prison.
JEOFAILE. This is a law French phrase, which signifies, "I am in an error; I have failed." There are certain statutes called statutes of amendment and jeofails because, where a pleader perceives any slip in the form of his proceedings, and acknowledges the error, (jeofaile,) he is at liberty by those statutes to amend it. The amendment, however, is seldom made, but the benefit is attained by the court's overlooking the exception. 3 Bl. Com. 407; 1 Saund. 228, n. 1; Doct. Pl. 287; Dane's Ab. h. t.
JEOPARDY. Peril, danger. 2. This is the meaning attached to this word used in the act establishing and regulating the post office department. The words of the act are, "or if, in effecting such robbery of the mail the first time, the offender shall wound the person having the custody thereof, or put his life in jeopardy by the use of dangerous weapons, such offender shall suffer death." 3 Story's L. U. S. 1992. Vide Baldw. R. 93-95.
3. The constitution declares that no person shall "for the same offence, be twice put in jeopardy of life and limb." The meaning of this is, that the party shall, not be tried a second time for the same offence after he has once been convicted or acquitted of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him; but it does not mean that he shall not be tried for the offence, if the jury have been discharged from necessity or by consent, without giving any verdict; or, if having given a verdict, judgement has been arrested upon it, or a new trial has been granted in his favor; for, in such a case, his life and limb cannot judicially be said to have been put in jeopardy. 4 Wash. C. C. R. 410; 9 Wheat. R. 579; 6 Serg. & Rawle, 577; 3. Rawle, R. 498; 3 Story on the Const. §1781. Vide 2 Sumn. R. 19. This great privilege is secured by the common law. Hawk. P. C., B. 2, 35; 4 Bl. Com. 335.
4. This was the Roman law, from which it has been probably engrafted upon the common law. Vide Merl. Rep. art. Non bis in idem. Qui de crimine publico accusationem deductus est, says the Code, 9, 2, 9, ab alio super eodem crimine deferri non potest. Vide article Non bis in idem.
JERGUER, Engl. law. An officer of the custom-house, who oversees the waiters. Techn. Dict. h. t.
JETTISON, or JETSAM. The casting out of a vessel, from necessity, a part of the lading; the thing cast out also bears the same name; it differs from flotsam in this, that in the latter the goods float, while in the former they sink, and remain under water; it differ; also from ligan. (q. v.)
2. The jettson must be made for sufficient cause, and not from groundless timidity. In must be made in a case of extremity, when the ship is in danger of perishing by the fury of a storm, or is laboring upon rocks or shallows, or is closely pursued by pirates or enemies.
3. If the residue of the cargo be saved by such sacrifice, the property saved is bound to pay a: proportion of, the loss. In ascertaining such average. loss, the goods lost and saved are both to be valued at the price they would have brought at the place of delivery, on the ship's arrival there, freight, duties and other charges being deducted. Marsh. Ins. 246; 3 Kent, Com. 185 to 187; Park. Ins., 123; Poth. Chartepartie, n. 108, et suiv; Boulay-Paty, Dr. Com. tit. 13; Pardessus, Dr. Com. n. 734; 1 Ware's R. 9.
JEUX DE BOURSE, French law. This is a kind of gambling or speculation, which consists of sales and purchase's, which bind neither of the parties to deliver the things which are the object of the sale, and which are settled by paying the difference in the value of the things sold between the day of the sale, and that appointed for delivery of such things. 1 Pard. Dr. Com. n. 162.
JEWS. See De Judaismo Statutum.
JOB. By this term is understood among workmen, the whole of a thing which is to be done. In this sense it is employed in the Civil Code of Louisiana, art. 2727; "to build by plot, or to work by the job," says that article, "is to undertake a building for a certain stipulated price." See Durant. du Contr. de Louage, liv. 8, t. 8, n. 248, 263; Poth. Contr. de Louage, n. 392, 394 and Deviation.
JOBBER, commerce. One who buys end sells articles for others. Stock jobbers are those who buy, and sell stocks for others; this term is also applied to those who speculate in stocks on their own account.
JOCALIA. Jewels; this term was formerly more properly applied to those ornaments which women, although married, call their own. When these jocalia are not suitable to her degree, they are assets for the payment of debts. 1 Roll. Ab. 911. Vide Paraphernalia.
JOINDER OF ACTIONS, practice. The putting two or more causes of action in the same declaration.
2. It is a general rule, that in real actions there can never be but one count. 8 Co. 86, 87; Bac. Ab. Action, C; Com. Dig. Action, G. A count in a real, and a count in a mixed action, cannot be joined in the same declaration; nor a count in a mixed action, and a count in a personal action; nor a count in a mixed action with a count in another, as ejectment and trespass.
3. In mixed actions, there may be two counts in the same declaration; for example, waste lies upon several leases, and ejectment upon several demises and ousters. 8 Co. 87 b Poph. 24; Cro. Eliz. 290; Ow. 11. Strictly, however, ejectment at common law, is a personal action, and a count in trespass for an assault and battery, may be joined with it; for both sound in trespass, and the same judgment is applicable to both.
4. In personal actions, the use of several counts in the same declaration is quite common. Sometimes they are applied to distinct causes of actions, as upon several promissory notes; but it more frequently happens that the various counts introduced, do not really relate to different claims, but are adopted merely as so many different forms of propounding the same demand. The joinder in action depends on the form of action, rather than on the subject-matter of it; in an action against a carrier, for example, if the plaintiff declare in assumpsit, he cannot join a count in trover, as he may if he declare against him in case. 1 T. R. 277 but see 2 Caines' R. 216; 3 East, R. 70. The rule as to joinder is, that when the same plea may be pleaded, and the same judgment given on all the counts of the declaration, or when the counts are all of the same nature, and the same judgment is to be given upon them all, though the pleas be different, as in the case of debt upon bond and simple contract, they may be joined. 2 Saund. 117, c. When the same form of action may be adopted, th may join as many causes of action as he may choose, though he acquired the rights affected by different titles; but the rights of the plaintiffs, and the liabilities of the defendant, must be in his own character, or in his representative capacity, exclusively. A, plaintiff cannot sue, therefore, for a cause of, action in his own right, and another cause in his character as executor, and join them; nor can he sue the defendant for a debt due by himself, and another due, by him as executor.
5. In criminal case s, different offences may be joined in the same indictment, if of the same nature, but an indictment may be quashed, at the discretion of the court, when the counts are joined in such a manner as will confound the evidence. 1 Chit. Cr. Law, 253-255. In Pennsylvania, it has been decided that when a defendant was indicted at one session of the court for a conspiracy to cheat a third person, and at another session of the same court he was indicted for another conspiracy to cheat another person, the two bills might be tried by the same jury against the will of the defendant, provided he was not thereby deprived of any material right, as the right to challenge; whether he should be so tried or not seems to be a matter of discretion with the court. 5 S. & R. 59 12 S. R. 69. Vide Separate Trial. Vide, generally, 2 Saund. 117, b. to 117, c.; Com. Dig. Action, G; 2 Vin. Ab. 38; Bac. Ab. Actions in General, C; 13 John. R. 462; 10 John. R. 240; 11 John. R. 479; 1 John. R. 503; 3 Binn. 555; 1 Chit Pl. 196 to 205; Arch. Civ. Pl. 172 to 176; Steph. Pl. Index, h. t. Dane's Ab. h. t.
JOINDER IN DEMURRER. When a demurrer is offered by one party, the adverse party joins with him in demurrer, and the answer which he makes is called a joinder in demurrer. Co. Litt. 71 b. But this is a mere formality.
JOINDER OF ISSUE, pleadings. The act by which the parties to a cause arrive at that stage of it in their pleadings, that one asserts a fact to be so, and the other denies it. For example, when one party denies the fact pleaded by his antagonist, who has tendered the issue thus, "And this he prays may be inquired of by the country," or, "And of this he puts himself upon the country," the party denying the fact may immediately subjoin, "And the said A B does the like;" when the issue is said to be joined.
JOINDER OF PARTIES TO ACTIONS. It is a rule in actions ex contractu that all who have a legal interest in the contract, and no others, must join in action founded on a breach of such contract; whether the parties are too many or too few, it is equally fatal. 8 S. & R. 308: 4 Watts, 456; 1 Breese, 286; 6 Pick. 359. 6 Mass. 460; 2 Conn. 697; 6 Wend. 629; 2 N. & M. 70; 1 Bailey, 13; 5 Verm. 116; 3 J. J. Marsh. 165; 16 John. 34; 19 John. 213; 2 Greenl. 117; 2 Penn. 817.
2. In actions ex contractu all obligors jointly and not severally liable, and no others, must be made defendants. 1 Saund. 153, note 1; 1 Breese, 128; 11 John. 101; J. J. Marsh. 38; 2 John. 213.
3. In actions ex. delicto, when an injury is done to the property of two or more joint owners, they must join in the action. 1 Saund. 291, g; 11 Pick. 269; 12 Pick. 120; 7 Mass. 135; 13 John. 286.
4. When a tort is of such a nature that it may be committed by several, they may all be joined in an action ex delicto, or they may be sued severally. But when the tort cannot be committed jointly, as, for example, slander, two or more persons cannot be sued jointly, although they may have uttered the same words. 6 John. 32. See, generally, 3 Bouv. Inst. n. 2648, et seq.
JOINT. United, not separate; as, joint action, or one which is brought by several persons acting together; joint bond, a bond given by two or more obligors.
JOINT CONTRACT. One in which the contractors are jointly bound to perform the promise or obligation therein contained, or entitled to receive the benefit of such promise or obligation.
2. It is a general rule that a joint contract survives, whatever may be the beneficial interests of the parties under it; where a partner, covenantor, or other person entitled, having a joint interest in a contract not running with the land, dies, the right to sue survives in the other partner, &c. 1 Dall. 65, 248; Addis. on Contr. 285. And when the obligation or promise is to perform something jointly by the obligor or promissors, and one dies, the action must be brought against the survivor. Ham. on Part. 156.
3. When all the parties interested in a joint contract die, the action must be brought by the executors or administrators of the last surviving, obligee, against the executors or administrators of the last surviving obligor. Addis. on Contr. 285. See Contracts; Parties to Actions; Co-obligor.
JOINT EXECUTORS. It is proposed to consider, 1. The interest which they have in the estate of the deceased. 2. How far they are liable for each other's acts. 3. The rights of the survivor.
2. - §1. Joint executors are considered in law as but one person, representing the testator, and, therefore, the acts of any one of them, which relate either to the delivery, gift, sale, payment, possession or release of the testator's goods, are deemed, as regards the persons with whom they contract, the acts of all. Bac. Abr. h. t.; 11 Vin. Abr. 358; Com. Dig. Administration, B 12; 1 Dane's Abr. 583; 2 Litt. (Kentucky) R. 315; Godolph. 314; Dyer, 23, in marg. 16 Serg. & Rawle, 337. But an executor cannot, without the knowledge of his co-executor, confess a judgment for a claim, part of which was barred by the act of limitations, so as to bind the estate of the testator. 6 Penn. St. Rep. 267.
3. - §2. As a general rule, it may be laid down that each, executor is liable for his own wrong, or devastavit only, and not for that of his colleague. He may be rendered liable, however, for the misplaced confidence which he may have reposed in his coexecutor. As, if he signs a receipt for money, in conjunction with another executor, and he receives no part of the money, but agrees that the other, executor shall retain it, and apply it to his own use, this is his own misapplication, for which he is responsible. 1 P. Wms. 241, n. 1; 1 Sch. & Lef. 341; 2 Sch. & Lef. 231; 7 East, R. 256; 11 John. R. 16; 11 Serg. & Rawle, 71; Hardr. 314; 5 Johns. Ch. R. 283; and see 2 Bro. C. C. 116; 3 Bro. C. C. 112; 2 Penn. R. 421; Fonb. Eq. B. 2, c. 7, s. 5, n. k.
4. - §3. Upon the death of one of several joint executors, the right of administering the estate of the testator devolves upon the survivor. 3 Atk. 509 Com. Dig. Administration, B 12; Hamm. on Parties, 148.
5. In Pennsylvania, by legislative enactment, it is provided, "that where testators may devise their estates to their executors to be sold, or direct such executors to sell and convey such estates, or direct such real estate to be sold, without naming, or declaring who shall sell the same, if one or more of the executors die, it shall or may be lawful for the surviving executor to bring actions for the recovery of the possession thereof, and against trespassers thereon; to sell and "convey such real estate, or manage the same for the benefit of the persons interested therein." Act of March 12, 1800, 3 Sm. L. 433.
JOINT STOCK BANKS. In England they are a species of quasi corporations, or companies regulated by deeds of settlement; and, in this respect, the stand in the same situation as other unincorporated bodies. But they differ from the latter in this, that they are invested by certain statutes with powers and privileges usually incident to corporations. These enactments provide for the continuance of the partnership, notwithstanding a change of partners. The death, bankruptcy, or the sale by a partner of his share, does not affect the identity of the partnership; it, continues the same body, under the same name, by virtue of the act of parliament, notwithstanding these changes. 7 Geo. IV., c. 46, s. 9.
JOINT TENANTS, estates. Two or more persons to whom are granted land's or tenements to hold in fee simple, fee tail, for life, for years, or at will. 2 Black. Com. 179. The estate which they, thus hold is called an estate in joint tenancy. Vide Estate in joint tenancy; Jus accrescendi; Survivor.
JOINT TRUSTEES. Two or more persons who are entrusted with property for the benefit of one or more others.
2. Unlike joint executors, joint trustees cannot act separately, but must join both in conveyances and receipts, for one cannot sell without the others, or receive more of the consideration money, or be more a trustee than his partner. The trust having been given to the whole, it requires their joint act to do anything under it. They are not responsible for money received by their co-trustees, if the receipt be given for the mere purposes of form. But if receipts be given under circumstances purporting that, the money, though not received by both, was under the control of both, such a receipt shall charge, and the consent that the other shall misapply the money, particularly where he has it in his power to secure it, renders him responsible. 11 Serg. & Rawle, 71. See 1 Sch. & Lef. 341; 5 Johns. Ch. R. 283; Fonbl. Eq. B. 2, c. 7, s. 5; Bac. Abr. Uses and Trusts, K; 2 Bro. Ch. R. 116; 3 Bro. Ch. R. 112. In the case of the Attorney General v. Randall, a different doctrine was held. Id. pl. 9.
JOINTRESS or JOINTURESS. A woman who has an estate settled on her by her hushand, to hold during her life, if she survive him. Co. Litt. 46.
JOINTURE, estates.. A competent livelihood of freehold for the wife, of lands and tenements; to take effect in profit or possession, presently after the death of the hushand, for the life of the wife at least.
2. Jointures are regulated by the statute of 27 Hen. VIII. o. 10, commonly called the statute of uses.
3. To make a good jointure, the following circumstances must concur, namely; 1. It must take effect, in possession or profit, immediately from the death of the hushand. 2. It must be for the wife's life, or for some greater estate. 3. It must be limited to the wife herself, and not to any other person in trust for her. 4. It must be made in satisfaction for the wife's whole dower, and not of part of it only. 5. The estate limited to the wife must be expressed or averred to be, in satisfaction of her whole dower. 6. It must be made before marriage. A jointure attended with all these circumstances is binding on the widow, and is a complete bar to the claim of dower; or rather it prevents its ever arising. But there are other. modes of limiting an estate to a wife, which, Lord Coke says, are good jointures within the statute, provided the wife accepts of them after the death of the hushand. She may, however, reject them, and claim her dower. Cruise, Dig. tit. 7; 2 Bl. Com. 137; Perk. h. t. In its more enlarged sense, a jointure signifies a joint estate, limited to both hushand and. wife. 2 131. Com. 137. Vide 14 Vin. Ab. 540; Bac. Ab. h. t.; 2 Bouv. Inst. n. 1761, et seq.
JOUR. A French word, signifying day. It is used in our old law books, as, tout jours, for ever. It is also frequently employed in the composition of words, as, journal, a day book; journeyman, a man 'who works by the day; journeys account. (q. v.)
JOURNAL, mar. law. The book kept on board of a ship or other vessel, which contains an account of the ship's course, with a short history of every occurrence during the voyage. Another name for logbook. (q. v.) Chit. Law of Nat. 199. JOURNAL, common law. A book used among merchants, in which the contents of the waste-book are separated every month, and entered on the debtor and creditor side, for more convenient posting in the ledger.
JOURNAL, legislation. An account of the proceedings of a legislative body.
2. The Constitution of the United States, art. 1, s. 5, directs that "each house shall keep a journal of its proceedings; and from time to time publish the same, excepting such parts as may, in their judgment, require secrecy." Vide 2 Story, Const., 301.
3. The constitutions of the several states contain similar provisions.
4. The journal of either house is evidence of the action of that house upon all matters before it. 7 Cowen, R. 613 Cowp. 17.
JOURNEYS ACCOUNT, Eng. practice. When a writ abated without any fault of the plaintiff, he was permitted to sue out a new writ, within as little time as he possibly could after abatement of the first writ, which was quasi a continuance of the first writ, and placed him in a situation in which he would have been, supposing he had still, proceeded on that writ. This was called journeys account.
2. This mode of proceeding has fallen into disuse, the practice now being to permit that writ to be quashed, and torque out another. Vide Termes de la Ley, h. t.; Bac. Ab. Abatement, Q; 14 Vin. Ab. 558; 4 Com. Dig. 714; 7 Mann. & Gr. 762.
JUDEX. This word has several significations: 1. The judge, one who declares the law, quijus dicit; one who administers justice between the parties to a cause, when lawfully submitted to him. 2. The judicial power, or the court. 3. Anciently, by judex was also understood a juror. Vide Judge.
JUDEX A Quo. A judge from whom an appeal may be taken; a judge of a court below. See A quo; 6 Mart. Lo. Rep. 520.
JUDEX AD OUEM. A judge to whom an appeal may be taken: a superior judge.
JUDGE. A public officer, lawfully appointed to decide litigated questions according to law. This, in its most extensive sense, includes all officers who are appointed to decide such questions, and not only judges properly so called, but also justices of the peace, and jurors, who are judges of the facts in issue. See 4 Dall. 229; 3 Yeates, IR. 300. In a more limited sense, the term judge signifies an officer who is so named in his commission, and who presides in some court.
2. Judges are appointed or elected, in a variety of ways, in the United States they are appointed by the president, by and with the consent of the senate; in some of the states they are appointed by the governor, the governor and senate, or by the legislature. In the United States, and some of the states, they hold their offices during good behaviour; in others, as in New York, during, good behaviour, or until they shall attain a certain age and in others for a limited term of years.
3. Impartiality is the first duty of a judge; before he gives an opinion, or sits in judgment in a cause, he ought to be certain that he has no bias for or against either of the parties; and if he has any (the slightest) interest in the cause, he is disqualified from sitting as judge; aliquis non debet esse judex in propria causa; 8 Co. 118; 21 Pick. Rep. 101; 5 Mass. 92; 13 Mass. 340; 6 Pick. R. 109; 14 S. & R. 157-8; and when he is aware of such interest, he ought himself to refuse to sit on the case. It seems it is discretionary with him whether he will sit in a cause in which he has been of counsel. 2 Marsh. 517; Coxe, 164; see 2 Binn. 454. But the delicacy which characterizes the judges in this country, generally, forbids their sitting in such a cause.
4. He must not only be impartial, but he must follow and enforce the law, whether good or bad. He is bound to declare what the law is , and not to make it; he is not an arbitrator, but an interpreter of the law. It is his duty to be patient in the investigation of the case, careful in considering it, and firm in his judgment. He ought, according to Cicero, "never to lose sight that he is a man, and that he cannot exceed the power given him by his commission; that not only power, but public confidence has been given to him; that he ought always seriously to attend not to his wishes but to the requisitions of law, of justice and religion." Cic. pro. Cluentius. A curious case of judicial casuistry is stated by Aulus Gellius Att. Noct. lib: 14, cap. 2, which may be interesting to the reader.
5. While acting within the bounds of his jurisdiction, the judge is hot responsible for any error of judgment, nor mistake he may commit as a judge. Co. Litt. 294; 2 Inst. 422; 2 Dall. R. 160; 1 Yeates, R. 443; N. & M'C. 168; 1 Day, R. 315; 1 Root, R. 211; 3 Caines, R. 170; 5 John. R. 282; 9 John. R. 395; 11 John. R. 150; 3 Marsh. R. 76; 1 South. R. 74; 1 N. H. Rep. 374; 2 Bay, 1, 69; 8 Wend. 468; 3 Marsh. R. 76,. When he acts corruptly, he may be impeached. 5 John. R. 282; 8 Cowen, R. 178; 4 Dall. R. 225.
6. A judge is not competent as a witness in a cause trying before him, for this, among other reasons, that he can hardly be deemed capable of impartially deciding on the admissibility of his own testimony, or of weighing. it against that of another. a Martln's R, N. S. 312. Vide, Com. Dig. Courts, B 4, C 2, E 1, P 16 justices, 1 1, 2, and 3; 14 Vin. Ab. 573; Bac. Ab. Courts, &c., B; 1 Kent, Com. 291; Ayl. Parerg. 309; Story, Const. Index, h. t. See U. S. Dig. Courts, I, where will be found an abstract of various decisions relating to the appointment and powers of judges in different states. Vide Eguality; Incompetency.;
JUDGE ADVOCATE. An officer who, is a member of a court martial. 2. His duties are to prosecute in the name of the United States, but he shall so far consider himself as counsel for the prisoner, after the prisoner shall have made his plea, as to object to leading questions to any of the witnesses, or any question to the prisoner, the answer to which might tend to criminate himself. He is further to swear the members of the court before they proceed upon any trial. Rules and Articles of War, art. 69, 2 Story, L. U. S. 1001; Lid. Jud. Adv. passim.
JUDGE'S NOTES. They are short statements, made by a judge on the trial of a cause, of what transpires in the course of such trial. They usually contain a statement of the testimony of witnesses; of documents offered or admitted in evidence; of offers of evidence and whether it has been received or rejected, and the like matters.
2. In general judge's notes are not evidence of what transpired at a former trial, nor can they be read to prove what a deceased witness swore to on such former trial, for they are no part of the record, and he is not officially bound to make them. But in chancery, when a new trial is ordered of an issue sent out of chancery to a court of law, and it is suggested that some of the witnesses in the former trial are of an advanced age, an order may be made that, in the event of death or inability to attend, their testimony may be read from the judge's notes. 1 Greenl. Ev. §166.
JUDGMENT, practice. The decision or sentence of the law, given by a court of justice or other competent tribunal, as the result of proceedings instituted therein, for the redress of an injury.
2. The language of judgments, therefore, is not that "it is decreed," or " resolved," by the court; but " it is considered," (consideratum est per curiam) that the plaintiff recover his debt, damages, or possession, as the case may require, or that the defendant do go without day. This implies that the judgment is not so much the decision of the court, as the sentence of the law pronounced and decreed by the court, after due deliberation and inquiry.
3. To be valid, a judicial judgment must be given by a competent judge or court, at a time and place appointed by law, and in the form it requires. A judgment would be null, if the judge had not jurisdiction of the matter; or, having such jurisdiction, he exercised it when there was no court held, or but of his district; or if be rendered a judgment before the cause was prepared for a hearing.
4. The judgment must confine itself to the question raised before the court, and cannot extend beyond it. For example, where the plaintiff sued for an injury committed on his lands by animals owned and kept carelessly by defendant, the judgment may be for damages, but it cannot command the defendant for the future to keep his cattle out of the plaintiff's land. That would be to usurp the power of the legislature. A judgment declares the rights which belong to the citizen, the law alone rules future actions. The law commands all men, it is the same for all, because it is general; judgments are particular decisions, which apply only to particular persons, and bind no others; they vary like the circumstances on which they are founded.
5. Litigious contests present to the courts facts to appreciate, agreements to be construed, and points of law to be resolved. The judgment is the result of the full examination of all these.
6. There are four kinds of judgments in civil cases, namely: 1. When the facts are admitted by the parties, but the law is disputed; as in case of judgment upon demurrer. 2. When the law is admitted, but the facts are disputed; as in, case of judgment upon a verdict. 3. When both the law and the facts are admitted by confession; as, in the case of cognovit actionem, on the part of the defendant; or nolle prosequi, on the part of the plaintiff. 4. By default of either party in the course of legal proceedings, as in the case of judgment by nihil disit, or non sum informatus, when the defendant has omitted to plead or instruct his attorney to do so, after a proper notice or in cases of judgment by non pros; or, as in case of nonsuit, when the plaintiff omits to follow up his proceedings.
7. These four species of judgments, again, are either interlocutory or final. Vide 3 Black. Com. 396; Bingh. on Judgm. 1. For the lien of judgment in the several estates, vide Lien.
8. A list of the various judgments is here given.
9. Judgment in assumpsit is either in favor of the plaintiff or defendant; when in favor of the plaintiff, it is that he recover a specified sum, assessed by a jury, or on reference to the prothonotary, or other proper officer, for the damages which he has sustained, by reason of the defendant's non-performance of his promises and undertakings, and for full costs of suit. 1 Chit. Pl. 100. When the judgment is for the defendant, it is that he recover his costs.
10. Judgment in actions on the case for torts, when for the plaintiff, is that he recover a sum of money ascertained by a jury for his damages occasioned by the committing of the grievances complained of, and the costs of suit. 1 Ch. Pl. 147. When for the defendant, it is for costs.
11. Judgment of cassetur breve, or billa, is in cases of pleas in abatement where the plaintiff prays that his "writ" or " bill" "may be quashed, that he may sue or exhibit a better one." Steph. Pl. 130, 131, 128 Lawes, Civ. PI.
12. Judgment by confession. When instead of entering a plea, the defendant chooses to confess the action; or, after pleading; he does, at any time before trial, both confess the action and withdraw his plea or other allegations; the judgment against him, in these two cases, is called a judgment by confession or by confession relicta verificatione. Steph. Pl. 130.
13. Contradictory judgment. By this term is understood, in the state of Louisiana, a judgment which has been given after the parties have been heard, either in support of their claims, or in their defence. Code of Pract. art. 535; 11 L. R. 366, 569. A judgment is called contradictory to distinguish it from one which is rendered by default.
14. Judgment in covenant; when for the plaintiff, is that he recover an ascertained sum for his damages, which he has sustained by reason of the breach or breaches of the defendant's covenant, together with costs of suit. 1 Chitty's Plead. 116, 117. When for the defendant, the judgment, is for costs.
15. Judgment in the action of debt; when for the plaintiff, is that he recover his debt, and in general, nominal damages for the detention thereof; and in cases under the 8 and 9 Wm. III. c. 11, it is also awarded, that the plaintiff have execution for the damages sustained by the breach of a bond, conditioned for the performance of covenants; and that plaintiff recover full costs of suit. 1 Chitty's Pl. 108, 9.
16. In some penal and other particular actions the plaintiff does not, however, always recover costs. Espinasse on Pen. Act. 154: Hull. on Costs, 200; Bull. N. P. 333; 5 Johns. R. 251.
17. When the judgment is for the defendant, it is generally for costs. In some penal actions, however, neither party can recover costs, 5 Johns. R. 251.
18. Judgment by default, is a judgment rendered in consequence of tho non-appearance of the defendant, and is either by nil dicit; vide Judgment by nil dicit, or by non sum informatus; vide Judgment by non sum informatus.
19. This judgment is interlocutory in assumpsit, covenant, trespass, case, and replevin, where the sole object of the action is damages; but in debt, damages not being the principal object of the action, the plaintiff usually signs final judgment in the first instance. Vide Com. Dig. Pleader, B 11 and 12, E 42; 7 Vin. Ab. 429; Doct. Pl. 208; Grah. Pr, 631 Dane's Ab. Index, h. t.; 3 Chit. Pr. 671 to 680; Tidd's Pr. 563; 1 Lillv's Reg. 585; and article Default.
20. Judgment in the action of detinue; when for the plaintiff, is in the alternative, that he recover the goods, or the value thereof, if he cannot have the goods themselves, and his damage for the detention and costs. 1 Ch. Pl. l21, 2; 1 Dall. R. 458.
2l. Judgment in error, is a judgment rendered by a court ot error, on a record sent up, from an inferior court. These judgments are of two kinds, of affirmance and reversal. When the judgment is for the defendant in error, whether the errors assigned be in law or in fact, it is "that the former judgment be affirmed, and stand in full force and effect, the said causes and matters assigned for error notwithstanding, and that the defendant in error recover $____ for his damages, charges and costs which he hath sustained," &c. 2 Tidd's Pr. 1126; Arch. Forms, 221. When it is for the plaintiff in error, the judgment is that it be reversed or recalled. It is to be reversed for error in law, in this form, that it be reversed, annulled and altogether holden for nought." Arch. Forms, 224. For error in fact the, judgment is recalled, revocatur. 2 Tidd, Pr. 1126.
22. A final judgment is one which puts an end to the suit.
23. When the issue is one in fact, and is tried by a jury, the jury at the time that they try the issue, assess the damages, and the judgment is final in the first instance, and is that the plaintiff do recover the damages assessed.
24. When an interlocutory judgment has been rendered, and a writ of inquiry has issued to ascertain the damages, on the return of the inquisition the plaintiff is entitled to a final judgment, namely, that he recover the amount of damages so assessed. Steph. Pl. 127, 128.
25. An interlocutory judgment, is one given in the course of a cause, before final judgment. When the action sounds in damages, and the issue is an issue in law, or when any issue in fact not tried by a jury is decided in favor of the plaintiff, then the judgment is that the plaintiff ought to recover his damages without specifying their amount; for, as there has been no trial by jury in the case, the amount of damages is not yet ascertained. The judgment is then said to be interlocutory.
26. To ascertain such damages it is the practice to issue a writ of inquiry. Steph. Pl. 127. When the action is founded on a promissory note, bond, or other writing, or any other contract by which the amount due may be readily computed, the practice is, in some courts, to refer it to the prothonotary or clerk to assess the damages.
27. There is one species of interlocutory judgment which establishes nothing but the inadequacy of the defence set up this is the judgment for the plaintiff on demurrer to a plea in abatement, by which it appears that the defendant has mistaken the law on a point which does not affect the merits of his case; and it being but reasonable that he should offer, if he can, a further defence, that judgment is that he do answer over, in technical language, judgment of respondeat ouster. (q. v.) Steph. Plead, 126; Bac. Ab. Pleas, N. 4; 2 Arch. Pr. 3.
28. Judgment of nil capiat per breve or per billam. When an issue arises upon a declaration or peremptory plea, and it is decided in favor of the defendant, the judgment is, in general, that, the plaintiff take nothing by his writ, (or bill,) and that the defendant go thereof without day, &c. This is called a judgment of nil capiat per breve, or per billam. Steph. Pl. 128.
29. Judgment by nil dicit, is one rendered against a defendant for want of a plea. The plaintiff obtains a rule on the defendant to plead within a time specified, of which he serves a notice on the defendant or his attorney; if the defendant neglect to enter a plea within the time specified, the plaintiff may sign judgment against him.
30. Judgment of nolle prosequi, is a judgment entered against the plaintiff, where, after appearance and before judgment, he says, "he will not further prosecute his suit." Steph. Pl. 130 Lawes Civ. Pl. 166.
31. Judgment of non obstante veredicto, is a judgment rendered in favor of the plaintiff, without regard to the verdict obtained by the defendant.
32. The motion for such judgment is made where after a pleading by the defendant in confession and avoidance, as, for example, a plea in bar, and issue joined thereon, and verdict found for, the defendant, the plaintiff on retrospective examination of the record, conceives that such plea was bad in substance, and might have been made the subject of demurrer on that ground. If the plea was itself substantially bad in law, of course the verdict, which merely shows it to be true in point of fact, cannot avail to entitle the defendant to judgment; while on the other hand the plea being in confession and avoidance, involves a confession of the plaintiff's declaration, and shows that he was entitled. to maintain his action. In such case, therefore, this court will give judgment for the plaintiff, without regard to the verdict; and this, for the reasons above explained, is called a judgment upon confession. Sometimes it may be expedient for the plaintiff to move for judgment non obstante, &c., even though the verdict be in his own favor; for, if in such case as above described, he takes judgment as upon the verdict, it seems that such judgment would be erroneous, and that the only safe course is to take it as upon confession. 1 Wils. 63; Cro. Eliz, 778 2 Roll. Ab. 99. See also, Cro. Eliz. 2 1 4 6 Mod. 1 0; Str. 394; 1 Ld. Raym. 641; 8 Taunt. 413; Rast. Ent. 622; 1 Wend. 307; 2 Wend. 624; 5 Wend. 513; 4 Wend. 468; 6 Cowen, R. 225. See this Dict. Repleader, for the difference between a repleader and a judgment non obstante veredicto.
33. Judgment by non sum informatus, is one which is rendered, when instead of entering a plea, the defendant's attorney says he is not informed of any answer to be given to the action. Steph. Pl. 130.
34. Judgment of non pros. (from non prosequitur,) is one given against the plaintiff, in any class of actions, for not declaring, or replying, or surrejoining, &c., or for not entering the issue.
35. Judgment of nonsuit, Practice, is one against the plaintiff, which happens when, on trial by jury, the plaintiff, on being called or demanded, at the instance of the defendant, to be present while the jury give their verdict, fails to make his appearance.
36. In this case, no verdict is given, but the judgment of nonsuit passes against the plaintiff. So if, after issue be joined, the plaintiff neglect to bring such issue on to be tried in due time, as limited by the practice of the court, in the particular case, judgment will be also given against him for this default; and it is called judgment as in case of nonsuit. Stepb. Pl. 131.
37. After suffering a nonsuit, the plaintiff may commence another action for the same cause for which the first had been instituted.
38. In some cases, plaintiffs having obtained information in what manner the jury had agreed upon their verdict before it was delivered in court, have, when the jury were ready to give in such verdict against them, suffered a nonsuit for the purpose of commencing another action and obtaining another trial. To prevent this abuse, the legislature of Pennsylvania have provided, by the Act of March 28, 1814, 6:Reed's L. 208, that "whenever on the trial of any cause, the jury shall be ready to give in their verdict, the plaintiff shall not be called, nor shall he then be permitted to suffer a nonsuit."
39. Judgment quod computet. The name of an interlocutory judgment in an action of account render that the defendant do account, quod computet. Vide 4 Wash. C. C. R. 84; 2 Watts, R. 95; 1 Penn. R. 138.
40. Judgment quod recuperet. When an issue in law, other than one arising on a dilatory plea, or an issue in fact, is decided in favor of the plaintiff, the judgment is, that the plaintiff do recover, which is called a judgment guod recuperet. Steph. Pl. 126; Com. Dig. Abatement, I 14, I 15; 2 Arch. Pr. 3. This judgment is of two kinds, namely, interlocutory or final.
41. Judgment in replevin, is either for the plaintiff or defendant.
42. - §1. For the plaintiff. 1. When the declaration is in the detinuit, that is, where the plaintiff declares, that the chattels "were detained until replevied by the sheriff," the judgment is that he recover the damages assessed by the jury for the taking and unjust detention, or for the latter only, where the former was justifiable, as also his costs. 5 Serg. & Rawle, 133 Ham. N. P. 488.
43. - 2. If the replevin is in the detinet, that is, where the plaintiff declares that the chattels taken are " yet detained," the jury must find, 'in addition to the above, the value of the chattels, (assuming that they are still detained,) not in a gross sum, but each separate article; for tho defendant, perhaps, will restore some, in which case the plaintiff is to recover the value of the remainder. Ham. N. P. 489; Fitz. N. B. 159, b; 5 Serg. & Rawle, 130.
44. - §2. For the defendant. 1. If the replevin be abated, the judgment is, that the writ or plaint abate, and that the defendant (having avowed) have a return of the chattels.
46. - 2. When the plaintiff is nonsuited) the judgment for the defendant, at common law, is, that the chattels be restored to him, and this without his first assigning the purpose for which they were taken, because, by abandoning his suit, the plaintiff admits that he had no right to dispossess the defendant by prosecuting the replevin. The form of this judgment. is simply " to have a return, " without adding the words " to hold irreplevisable." Ham. N. P. 490.
46. As to the form of judgments in cases of nonsuit, under the 21 Hen. VIII. c. 19, and 17 Car. II. c. 7, see Ham. N. P. 490, 491; 2 Ch. Pleacd. 161; 8 Wentw. Pl. 116; 5 Serg. & Rawle, 132; 1 Saund. 195, n. 3; 2 Saund. 286, n. 5. It is still in the defendant's option in these cases, to take his judgment pro retorno habendo at common law. 5 Serg. & Rawle, 132; 1 Lev. 265; 3 T. R. 349.
47. - 3. When tho avowant succeeds upon the merits of his case, the common law judgment is, that he "have return irreplevisable," for it is apparent that he is by law entitled to keep possession of the goods. 5 Serg. & Rawle, 135; Ham. N. P. 493; 1 Chit. Pl. 162. For the form of judgments in favor of the avowant, under the last mentioned statutes, gee Ham. N. P. 494-5.
48. Judgment of respondeat ouster. When there is an issue in law, arising on a dilatory plea, and it is decided in favor of the plaintiff, the judgment is only that the defendant answer over, which is called a judgment of respondeat ouster. The pleading is accordingly resumed, and the action proceeds. Steph. Pl. 126; see Bac. Abr. Pleas, N 4; 2 Arch. Pr. 3.
49. Judgment of retraxit, is one where, after appearance and before judgment, the, plaintiff enters upon the record that he "withdraws his suit;" in such case judgment is given against him. Stepb. Pl. 130.
50. Judgment in an action on trespass, when for the plaintiff, is, that he recover the damages assessed by the jury, and the costs. For the defendant, that he recover the costs.
51. Judgment in action on the case for trover, when for the plaintiff, is, that he recover damages and costs. 1 Ch. Pl. 157, For the defendant, the judgment is, that he recover his costs.
52. Judgment of capiatur. At common law, on conviction, in a civil action, of a forcible wrong, alleged to have been committed vi et armis, &c., the defendant was obliged to pay a fine to the king, for the breach of the peace implied in the act, and a judgment of capiatur pro fine was rendered against him, under which he was liable to be arrested, and imprisoned till the fine was paid. But by the 5 W. & M. c. 12, the judgment of capiatur pro fine was abolished. Gould on Pl. §38, 82; Bac. Ab. Fines and Amercements, C 1; 1 Ld. Raym. 273, 4; Style, 346. See Judgment of misericordia,
53. Judgment of misericordia. At common law, the party to, a suit who did not prevail was punished for his unjust vexation, and therefore judgment was given against him, quod sit in misericordia pro falso clamore. Hence, when the plaintiff sued out a writ, the sheriff was obliged to take pledges of prosecution before he returned it, which when fines and amercements were considerable, were real and responsible persons, and answerable for those amercements; but now they are never levied, and the pledges are merely formal, namely, John Doe and Richard Roe. Bac. Ab. Fines, &c., C 1 1 Lord Ray. 273, 4.
54. In actions where the judgment was against the defendant, it was entered at common law, with a misericordia or a capiatur. With a misericordia in actions on contracts, with a capiatur in actions of trespass, or other forcible wrong, alleged to have been committed vi et armis. See Judgment of capiatur; Gould on Pl. c. 4, §§38, 82, 83.
55. Judgment quod partitio fiat, is a judgment, in a writ of partition, that partition be made; this is not a final judgment. The final judgment is, quod partitio facta firma et stabilis in perpetuum teneatur. Co. Litt. 169; 2 Bl. Rep. 1159.
56. Judgment quod partes replacitent. The name of a judgment given when the court award a repleader.
57. When issue is joined on an immaterial point, or a point on which the court cannot give a judgment determining the right, they award a repleader or judgment quod partes replacitent. See Bac. Ab. Pleas, &c., M; 3 Hayw. 159; Peck's R. 325. See, generally, Bouv. Inst. Index, h. t.
JUDGMENT, ARREST OF, practice. This takes place when the court withhold judgment from the plaintiff on the ground that there is some error appearing on the face of the record, which vitiates the proceedings. In consequence of such error, on whatever part of the record it may arise, from the commencement of the suit to the time when the motion in arrest of judgment is made, the court are bound to arrest the judgment.
2. It is, however, only with respect to objections apparent on the record, that such motions can be made. They cannot, in general, be made in respect to formal objections. This was formerly otherwise, and judgments were constantly arrested for matters of mere form; 3 Bl. Corn. 407; 2 Reeves, 448; but this abuse has been long remedied by certain statutes passed at different periods, called the statutes of amendment and jeofails, by the effect of which, judgments, cannot, in general, now be arrested for any objection of form. Steph. Pl. 117; see 3 Bl. Com. 393; 21 Vin. Ab. 457; 1 Sell. Pr. 496.
JUDGMENT POLL, Eng. law. A record made of the issue roll, (q. v.) which, after final judgment has been given in the cause, assumes this name. Steph. Pl. 133. Vide Issue Roll.
JUDICATURE. The state of those employed in the administration of justice, and in this sense it is nearly synonymous with judiciary. This term is also used to signify a tribunal; and sometimes it is employed to show the extent of jurisdiction, as, the judicature is upon writs of error, &c. Com. Dig. Parliament, L 1; and see Com. Dig. Courts, A.
JUDICES PEDANEOS. Among the Romans, the praetors, and other great magistrates, did not themselves decide the actions which arose between private individuals these were submitted to judges chosen by the parties, and these judges were called judices pedaneos. In choosing them, the plaintiff had the right to nominate, and the defendant to accept or reject those nominated. Heinnee. Antiq. lib. 4, tit. b, n. 40 7 Toull. n. 353.
JUDICIAL. Belonging, or emanating from a judge, as such.
2. Judicial sales, are such as are ordered by virtue of the process of courts. 1 Supp. to Ves. jr., 129, 160; 2 Ves. jr., 50.
3. A judicial writ is one issued in the progress of the cause, in contradistinction to an original writ. 3 Bl. Com. 282.
4. Judicial decisions, are the opinions or determinations of the judges in causes before them. Hale, H. C. L. 68; Willes' R. 666; 3 Barn. & Ald. 122 4 Barn. & Adol. 207 1 H. B1. 63; 5 M. & S. 185.
5. Judicial power, the authority vested in the judges. The constitution of the United States declares, that "the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish." Art. 3, s. 1. 6. By the constitutions of the several states, the judicial power is vested in such courts as are enumerated in each respectively. See the names Of, the several states. There is nothing in the constitution of the United States to forbid or prevent the legislature of a state from exercising judicial functions; 2 Pet. R. 413; and judicial acts have occasionally been performed by the legislatures. 2 Root, R. 350; 3 Greenl. R. 334; 3 Dall. R. 386; 2 Pet. R. 660; 16 Mass. R. 328; Walk. R. 258; 1 New H. Rep. 199; 10 Yerg. R. 59; 4 Greenl. R. 140; 2 Chip., R. 77; 1 Aik. R. 314. But a state legislature cannot annul the judgments, nor determine the jurisdiction of the courts of the United States; 5 Cranch, It. 116; 2 Dall. R. 410; nor authoritatively declare what the law is, or has been, but what it shall be. 2 Cranch, R. 272; 4 Pick. R. 23. Vide Ayl. Parerg. 27; 3 M. R. 248; 4 M. R. 451; 9 M. R. 325; 6 M. R. 668; 12 M. R. 349; 3 N. S. 551; 5 N. S. 519; 1 L. R. 438 7 M. R. 325; 9 M. R. 204; 10 M. R. 1.
JUDICIAL ADMISSIONS. Those which are generally made in writing in court by the attorney of the party; they appear upon the record, as in the pleadings and the like.
JUDICIAL CONFESSIONS, criminal law. Those voluntarily made before a magistrate, or in a court, in the due course of legal proceedings. A preliminary examination, taken in writing, by a magistrate lawfully authorized, pursuant to a statute, or the plea of guilty, made in open court to an indictment, are sufficient to found a conviction upon them.
JUDICIAL CONVENTIONS. Agreements entered into in consequence of an order of court; as, for example, entering into a bond on taking out a writ of sequestration. 6 N. S. 494.
JUDICIAL MORTGAGE. In Louisiana, it is the lien resulting from judgments, whether these be rendered on contested cases, or by default, whether they be final or provisional, in favor of the person obtaining them. Civ. Code of Lo. art. 3289.
JUDICIAL SALE. A sale by authority of some competent tribunal, by an officer authorized by law for the purpose.
2. The officer who makes the sale, conveys all the rights of the defendant, or other person against whom the process has been issued, in the property sold. Under such a sale there is no warranty, either express or implied, of the thing sold. 9 Wheat. 616. When real estate is sold by the sheriff or marshal, the sale is subject to the confirmation of the court, or it may be set aside. See 4 Wash. C. C. R. 45 Wallace, 128; 4 Wash. C. C. R. 322.
JUDICIAL WRITS, Eng. practice. The capias and all other writs subsequent to the original writ not issuing out of chancery, but from the court into which the original was returnable, and being grounded on what had passed in that court in consequence of the sheriff's return, were called judicial writs, in contradistinction to the writs issued out of chancery, which were called original writs. 3 Bl. Com. 282.
JUDICIARY. That which is done while administering justice; the judges taken collectively; as, the liberties of the people are secured by a wise and independent judiciary. See Courts; and 3 Story, Const. B. 3, c. 3 8.
JUDICIUM DEI. The judgment of God. The English law formerly impiously called the judgments on trials by ordeal, by battle, and the like, the judgments of God.
JUICIO DE CONCURSO. This term is Spanish, and is used in Louisiana. It is the name of an action brought for the purpose of making a distribution of an insolvent's estate. It differs from all other actions in this important particular, that all the parties to it except the insolvent, are at once plaintiffs and defendant. Each creditor is plaintiff against the failing debtor, to recover the amount due by him, and against the co-creditors, to diminish the amount they demand from his estate, and each is, of necessity, defendant against the opposition made by the other creditors against his demand. From the peculiar situation in which the parties are thus placed, many distinct and separate suits arise, and are decided during the pendancy of the main one, by the insolvent in which they originate. 4 N. S. 601, 3 Harr. Cond. Lo. R. 409.
JUNIOR. Younger.
2. This has been held to be no part of a man's name, but an addition by use, and a convenient distinction between a father and son of the same name. 10 Mass. R. 203 10 Paige, 170; 1 Pick. R. 388; 7 John . It. 549; 2 Caines, 164 1 Pick. 388 15 Pick. 7; 17 Pick. 200 3 Metc. 330.
3. Any matter that distinguishes persons renders the addition of junior or senior unnecessary. 1 Mod. Ent. 35; Salk. 7. But if father and son have both the same name, the father shall be, prima facie, intended, if junior be not added, or some other matter of distinction. Salk, 7; 6 Rep. 20 11 Rep. 39; Hob. 330. If father and son have the same name and addition, and the former sue the latter, the writ is abateable unless the son have the further addition of junior, or the younger. But if the father be the defendant and the son the plaintiff, there is no need of the further addition of senior, or the elder, to the name of the father. 2 Hawk. 187; Laws of Women, 380.
JUNIPERUS SABINA, med. jur. This plant is commonly called savine.
2. It is used for lawful purposes in medicine, but too frequently for the criminal intent of producing abortion, generally endangering the life of the woman. It is usually administered in powder or oil. The dose of oil for lawful purposes, for a grown person, is from two to four drops. Parr's Med. Dictionary, article Sabina. Fodere mentions a case where a large dose of powdered savine had been administered to an ignorant girl, in the seventh month of her pregnancy, which had no effect on the foetus. It was, however, near taking the life of the girl. Fodere, tome iv. p. 431. Given in sufficiently large doses, four or six grains in the form of powder, kills a dog in a few hours, and even its insertion into a wound has tho same effect. Orfila, Traite des Poisons, tome iii. p. 42. For or a form of indictment for administering savine to a woman quick with child, see 3 Chit. Cr. Law, 798. Vide 1 Beck's Med. Jur. 316,
JURA PERSONARUM. The rights and duties of persons are so called.
JURA RERUM. The rights which a man may acquire in and to such external things as are unconnected with. his person, are called jura rerum. 2 Bl. Com. 1.
JURA SUMMA IMPERII. Rights of sovereignty or supreme dominion.
JURAMENTAE CORPORALIA. Corporal oaths. These oaths are so called, because the party making oath must touch the Bible, or other thing by which he swears.
JURAMENTUM JUDICIALE. A term in the civil law. The oath called juramentum judiciale is that which the judge, of his wwn accord, defers to either of the parties.
2. It is of two kinds. 1st. That which the judge defers for the decision of the cause, and which is understood by the general name juramentum judiciale, and is sometimes called suppletory oath, juramentum suppletorium.
3. - 2d. That which the judge defers in order to fix and determine the amount of the condemnation which he ought to pronounce, and which is called juramentum in litem. Poth. on Oblig. P. 4, s. 3, art. 3.
JURAT Practice. That part of an affidavit where the officer certifies that the same was "sworn" before him.
2. The jurat is usually in the following form, namely "Sworn and subscribed before me, on the ____ day of _______, 1842, J. P. justice of the peace."
3. In some cases it has been holden that it was essential that the officer should sign the jurat, and that it should contain his addition and official description. 3 Caines, 128. But see 6 Wend. 543; 12 Wend. 223; 2 Cowen. 552 2 Wend. 283; 2 John. 479; Harr. Dig. h. t.; Am. Eq. Dig.
JURATA. A certificate placed at the bottom of an affidavit, declaring that the witness has been sworn or affirmed to the truth of the facts therein alleged. Its usual form is,: Sworn (or affirmed) before me, the ____ day of ____, 10 __." The Jurat. (q. v.)
JURATS, officers. In some English corporations, jurats are officers who have much the same power as aldermen in others. Stat. 1 Ed. IV. Stat. 2 & 3 Ed. VI. c. 30; 13 Ed. I., c. 26.
JURE. By law; by right; in right; as, jure civilis, by the civil law; jure gentium, by the law of nations; jure representationis, by right of representation; jure uxoris, in right of a wife.
JURIDICAL. Signifies used in courts of law; done in conformity to the laws of the country, and the practice which is there observed.
JURIDICAL DAYS. Dies juridici. Days in court on which the law is administered.
JURIS ET DE JURE. A phrase employed to denote conclusive presumptions of law, which cannot be rebutted by evidence. The words signify of law and from law. Best on Presumption, §17.
JURISCONSULT. One well versed in jurisprudence; a jurist: one whose profession it is to give counsel on questions of law.
JURISDICTION, Practice. A power constitutionally conferred upon a judge or magistrate, to take cognizance of, and decide causes according to law, and to carry his sentence into execution. 6 Pet. 591; 9 John. 239. The tract of land or district within which a judge or magistrate has jurisdiction, is called his territory, and his power in relation to his territory is called his territorial jurisdiction.
2. Every act of jurisdiction exercised by a judge without his territory, either by pronouncing sentence or carrying it into execution, is null. An inferior court has no jurisdiction beyond what is expressly delegated. 1 Salk. 404, n.; Gilb. C. P. 188; 1 Saund. 73; 2 Lord Raym. 1311; and see Bac. Ab. Courts, &c., C, et seq; Bac. Ab. Pleas, E 2.
3. Jurisdiction is original, when it is conferred on the court in the first instance, which is called original jurisdiction; (q. v.) or it is appellate, which is when an appeal is given from the judgment of another court. Jurisdiction is also civil, where the subject-matter to be tried is not of a criminal nature; or criminal, where the court is to punish crimes. Some courts and magistrates have both civil and criminal jurisdiction. Jurisdiction is also concurrent, exclusive, or assistant. Concurrent jurisdiction is that which may be entertained by several courts. It is a rule that in cases of concurrent jurisdictions, that which is first seized of the case shall try it to the exclusion of the other. Exclusive jurisdiction is that which has alone the power to try or determine the Suit, action, or matter in dispute. assistant jurisdiction is that which is afforded by a court of chancery, in aid of a court of law; as, for example, by a bill of discovery, by the examination of witnesses de bene esse, or out of the jurisdiction of the court; by the perpetuation of the testimony of witnesses, and the like.
4. It is the law which gives jurisdiction; the consent of, parties, cannot, therefore, confer it, in a matter which the law excludes. 1 N. & M. 192; 3 M'Cord, 280; 1 Call. 55; 1 J. S. Marsh. 476; 1 Bibb, 263; Cooke, 27; Minor, 65; 3 Litt. 332; 6 Litt. 303; Kirby, 111; 1 Breese, 32; 2 Yerg. 441; 1 Const. R. 478. But where the court has jurisdiction of the matter, and the defendant has some privilege which exempts him from the jurisdiction, he may wave the privilege. 5 Cranch, 288; 1 Pet. 449; 8 Wheat. 699; 4 W. C. C. R. 84; 4 M'Cord, 79; 4 Mass. 593; Wright, 484. See Hardin, 448; 2 Wash. 213.
5. Courts of inferior jurisdiction must act within their jurisdiction, and so it must appear upon the record. 5 Cranch, 172 Pet. C. C. R. 36; 4 Dall. 11; 2 Mass. 213; 4 Mass. 122; 8 Mass. 86; 11 Mass. 513; Pr. Dec. 380; 2 Verm. 329; 3 Verm. 114; 10 Conn. 514; 4 John. 292; 3 Yerg. 355; Walker, 75; 9 Cowen, 227; 5 Har. & John. 36; 1 Bailey, 459; 2 Bailey, 267. But the legislature may, by a general or special law, provide otherwise. Pet. C. C. R. 36. Vide 1 Salk. 414; Bac. Ab. Courts, &c., C. D; Id. Prerogative, E 6; Merlin, Rep. h. t.; Ayl. Pat. 317, and the art. Competency. As to the force of municipal law beyond the territorial jurisdiction of the state, see Wheat. Intern. Law, part a, c. 2, §7, et seq.; Story, Confl. of Laws, c. 2; Huberus, lib. 1, t. 3; 13 Mass. R. 4 Pard. Dr. Com. part. 6, t. 7, c. 2, §1; and the articles Conflict of Laws; Courts of the United States. See generally, Bouv. Inst. Index, h. t.
JURISDICTION CLAUSE. That part of a bill in chancery which is intended to give jnrisdiction of the suit to, the court, by a general averment that the' acts complained of are contrary to equity, and tend to the injury of the plaintiff, and that. he has no remedy, or not a complete remedy, without the assistance of a court of equity, is called the jurisdiction clause. Mitf. Eq. Pl. by Jeremy, 43.
2. This clause is unnecessary, for if the court appear from the bill, to have jurisdiction, the bill will be sustained without this clause; and if the court have not jurisdiction, the bill will be dismissed though the clause may be inserted. Story, Eq. Pl. §34.
JURISPRUDENCE. The science of the law. By science here, is understood that connexion of truths which is founded on principles either evident in themselves, or capable of demonstration; a collection of truths of the same kind, arranged in methodical order. In a more confined sense, jurisprudence is the practical science of giving a wise interpretation to the laws, and making a just application of them to all cases as they arise. In this sense, it is the habit of judging the same questions in the same manner, and by this course of judgments forming precedents. 1 Ayl. Pand. 3 Toull. Dr. Civ. Fr. tit. prel. s. 1, n. 1, 12, 99; Merl. Rep. h. t.; 19 Amer. Jurist, 3.
JURIST. One well versed in the science of the law. The term i's usually applied to students and practitioners of law.
JUROR, practice. From juro, to swear; a man who is sworn or affirmed to serve on a jury.
2. Jurors are selected from citizens, and may be compelled to serve by fine; they generally receive a compensation for their services while attending court they are privileged from arrest in civil cases.
JURY. A body of men selected according to law, for the purpose of deciding some controversy.
2. This mode of trial by jury was adopted soon after the conquest of England, by William, and was fully established for the trial of civil suits in the reign of Henry II. Crabb's C. L. 50, 61. In the old French law they are called inquests or tourbes of ten men. 2 Loisel's Instit. 238, 246, 248.
3. Juries are either grand juries, (q. v.) or petit juries. The former having been treated of elsewhere, it will only be necessary to consider the latter. A petit jury consists of twelve citizens duly qualified to serve on juries, impanneled and sworn to try one or more issues of facts submitted to them, and to give a judgment respecting the same, which is called a verdict.
4. Each one of the citizens so impanneled and sworn is called a juror. Vide Trial.
5. The constitution of the United States directs, that "the trial of all crimes, except in cases of impeachment, shall be by jury;" and this invaluable institution is also, secured by the several state constitutions. The constitution of the United States also provides that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. Amendm. VII.
6. It is scarcely practicable to give the rules established in the different states to secure impartial juries; it may, however, be stated that in all, the selection of persons who are to serve on the jury is made by disinterested officers, and that out of -the lists thus made out, the jurors are selected by lot.
JURY BOX. A place set apart for the jury to sit in during the trial of a cause. JURY LIST. A paper containing the names of jurors impanneled to try a cause, or it contains the names of all the jurors summoned to attend court.
JUS. Law or right. This term is applied in many modern phrases. It is also used to signify equity. Story, Eq. Jur. §1; Bract, lib. 1, c. 4, p. 3; Tayl. Civ. Law, 147; Dig. 1, 1, 1.
2. The English law, like the Roman, has its jus antiquum and jus novum and jus novissimum. The jus novum may be supposed to have taken its origin about the end of the reign of Henry VII. A. D. 1509. It assumed a regular form towards the end of the reign of Charles II. A. D. 1685, and from that period the jus novissimum may be dated. Lord Coke, who was born 40 years after the death of Henry VII. is most advantageously considered as the connecting link of the jus antiquum and jus novissimum of English law. Butler's Remin.
JUS ABUTENDI. The right to abuse. By this phrase is understood the right to abuse property, or having full dominion over property. 3 Toull. n. 86.
JUS ACCRESCENDI. The right of survivorship.
2. At common law, when one of several joint tenants died, the entire tenancy or estate went to the survivors, and so on to the last survivor, who took an estate of inheritance. This right, except in estates held in trust, has been abolished by statute in Alabama, Delaware, Georgia, Illinois, Indiana, Kentucky, Michigan, Missouri Mississippi, New York, North Carolina, Pennsylvania, South-Carolina, Tennessee, and Virginia. Griff. Reg. h. t.; 1 Hill. Ab. 439, 440. In Connecticut, 1 Root, Rep. 48; 1 Swift's Dig. 102. In Louisiana, this right was never recognized. See 11 Serg. & R. 192; 2 Caines, Cas. Err. 326; 3 Verm. 543; 6 Monr. R. 15; Estate in common; Estate in joint tenancy.
JUS AD REM. property, title. This phrase is applied to designate the right a man has in relation to a thing; it is not the right in the thing itself, but only against the person who has contracted to deliver it. It is a mere imperfect or inchoate right. 2 Bl. Com. 312 Poth. Dr. de Dom. de Propriete, ch. prel. n. 1. This phrase is nearly equivalent to chose in action. 2 Wooddes. Lect. 235. See, 2 P. Wms. 491; 1 Mason, 221 1 Story, Eq. Jur. 506; 2 Story, Eq. Jur. §1215; Story, Ag. §352; and Jus in re.
JUS AQUAEDUCTUS, CIV. law. The name of a servitude which Lives to the owner of land the right to bring down water through or from the land of another, either from its source or from any other place.
2. Its privilege may be limited as to the time when it may be exercised. If the source fails, the servitude ceases, but revives when the water returns. If the water rises in, or naturally flows through the land, its proprietor cannot by any grant divert it so as to prevent it flowing to the land below. 2 Roll. Ab. 140, l. 25; Lois des Bat. part. 1, c. 3, s. 1, art. 1. But if it had been brought. into his land by artificial means, it seems it would be, strictly his property, and that it would be in his power to grant it. Dig. 8, 3, 1 & 10; 3 Burge on the Confl. of Laws, 417. Vide Rain water.; River; Water-course.
JUS CIVILE. Among the Romans by jus civile was understood the civil law, in contradistinction to the public law, or jus gentium. 1 Savigny, Dr. Rom. c. 1, §1.
JUS CIVITATIS. Among the Romans the collection of laws which are to be observed among all the members of a nation were so called. It is opposed to jus gentium, which is the law which regulates the affairs of nations among themselves. 2 Lepage, El. du Dr. ch. 5, page l.
JUS CLOACAE, civil law. The name of a servitude which requires the paity who is subject to it, to permit his neighbor to conduct the waters which fall on his grounds over those of the servient estate.
JUS DARE. To give or to make the law. Jus dare belongs to the legislature; jus dicere to the judge.
JUS DICERE. To declare the law. This word is used to explain the power which the court has to expound the law; and not to make it, jus dare.
JUS DELIBERANDI. The right of deliberating, which in some countries, where the heir may have benefit of inventory, (q. v.) is given to him to consider whether he will accept or renounce the succession.
2. In Louisiana he is allowed ten days before he is required to make his election. Civ. Code, art. 1028.
JUS DISPONENDI. The right to dispose of a thing.
JUS DUPLICATUM, property, title. When a man has the possession as well as the property of anything, he is said to have a double right, jus duplicatum. Bract. 1. 4, tr. 4, c. 4 2 Bl. Com. 199.
JUS FECIALE. Among the Romans it was that species of international law which had its foundation in the religious belief of different nations, such as the international law which now exists among the Christian people of Europe. Sav. Dr. Rom. ch. 2,
JUS FIDUCIARUM, Civil law. A right to something held in trust; for this there was a remedy in conscience. 2 Bl. Com. 328.
JUS GENTIUM. The law of nations. (q. v.) Although the Romans used these words in the sense we attach to law of nations, yet among them the sense was much more extended. Falck, Encyc. Jur. 102, n. 42.
2. Some modern writers have made a distinction between the laws of nations which have for their object the conflict between. the laws of different nations, which they call jus gentium privatum, or private international law; and those laws of nations which regulate those matters which nations, as such, have with each other, which is de nominated jus gentium publicum, or public international law. Foelix, Droit Interm. Prive, n. 14.
JUS GLADII. Supreme jurisdiction. The right to absolve from, or condemn a man to death.
JUS HABENDI. The right to have and enjoy a thing.
JUS INCOGNITUM. An unknown law. This term is applied by the civilians to obsolete laws, which, as Bacon truly observes, are unjust, for the law to be just must give warning before it strikes. Bac. Aphor. 8, s. 1: Bowy. Mod. Civ. Law, 33. But until it has become obsolete no custom can prevail against it. Vide Obsolete.
JUS LEGITIMUM, civil law. A legal right which might have been enforced by due course of law.. 2 Bl. Com. 328.
JUS MARITI, Scotch law. The right of the hushand to administer, during the marriage, his wife's goods and the rents of her heritage.
2. In the common law, by jus mariti is understood the rights of the hushand; as, jus mariti cannot attach upon a bequest to the wife, although given during coverture, until the executor has assented to the legacy. 1 Bail. Eq. R. 214.
JUS MERUM. A simple or bare right; a right to property in land, without possession, or the right of possession.
JUS PATRONATUS, eccl. law. A commission from the bishop, directed usually to his chancellor and others of competent learning, who are required to summon a jury composed of six clergymen and six laymen, to inquire into and examine who is the rightful patron. 3 Bl. Com. 246.
JUS PERSONARUM. The right of persons.
2. A branch of the law which embraces the theory of the different classes of men who exist in a state which has been formed by nature or by society; it includes particularly the theory of the ties of families, and the legal form and juridical effects of the relations subsisting between them. The Danes, the English, and the learned in this country, class under this head the relations which exist between men in a political point of view. Blackstone, among others, has adopted this classification. There seems a confusion of ideas when such matters are placed under this head. Vide Bl. Com. Book 1.
JUS PRECARIUM, civil law. A right to a thing held for another, for which there was no remedy. 2 Bl. Com. 328.
JUS POSTLIMINII, property, title. The right to claim property after re-capture. Vide, Postliminy; Marsh. Ins. 573; 1 Kent, Com. 108. Dane's Ab. Index, h. t.
JUS PROJICIENDI, Civil law. The name of a servitude; it is the right which the owner of a building has of projecting a part of his building towards the adjoining house, without resting on the latter. It is extended merely over the ground. Dig. 50, 16, 242, 1; Dig. 8, 2, 25; Dig. 8, 5, 8, 5.
JUS PROTEGENDI, civil law. The name of a servitude; it is a right by which a part of the roof or tiling of one house is made to extend over the adjoining house. Dig. 50, 16, 242, 1 Dig. 8, 2, 25; Dig. 8, 5, 8, 5.
JUS QUAESITUM. A right to ask or recover; for example, in an obligation there is a binding of the obligor, and a jus quaesitum in the obligee. 1 Bell's Com. 323, 5th ed.
JUS IN RE, property, title. The right which a man has in a thing by which it belongs to him. It is a complete and full right. Poth. Dr. de Dora. de Prop. n. 1.
2. This phrase of the civil law conveys the same idea as thing, in possession does with us. 4 Wooddes. Lect. 235; vide 2 P. Wins. 491; 1 Mason, 221; 1 Story, Eq. Jur. §506; 2 Story, Eq. Jur. §1215; Story, Ag. §352; and Jus ad rem.
JUS RELICTA, Scotch law. The right of a wife, after her hushand's death, to a third of movables, if there be children; and to one-half, if there be none.
JUS RERUM. The right of things. Its principal object is to ascertain how far a person can have a permanent dominion over things, and how that dominion is acquired. Vide Bl. Com. Book 2.
JUS STRICTUM. A Latin phrase, which signifies law interpreted without any modification, and in its utmost rigor.
JUS UTENDI. The right to use property, without destroying its substance. It is employed in contradistinction to the jus abutendi. (q. v.) 3 Toull. n. 86.
JUST. This epithet is applied to that which agrees with a given law which is the test of right and wrong. 1 Toull. prel. n. 5 Aust. Jur. 276, n. It is that which accords with the perfect rights of others. Wolff, Inst. §83; Swinb. part 1, s. 2, n. 5, and part 1, §4, n. 3. By just is also understood full and perfect, as a just weight Swinb. part 1, s. 3, U. 5.
JUSTICE. The constant and perpetual disposition to render every man his due. Just. Inst. B. 1, tit. 1. Toullier defines it to be the conformity of our actions and our will to the law. Dr. Civ. Fr. tit. prel. n. 5. In the most extensive sense of the word, it differs little from virtue, for it includes within itself the whole circle of virtues. Yet the common distinction between them is that that which considered positively and in itself, is called virtue, when considered relatively and with respect to others, has the name of justice. But justice being in itself a part of virtue, is confined to things simply good or evil, and consists in a man's taking such a proportion of them as he ought.
2. Justice is either distributive or commutative. Distributive justice is that virtue whose object is to distribute rewards and punishments to each one according to his merits, observing a just proportion by comparing one person or fact with another, so that neither equal persons have unequal things, nor unequal persons things equal. Tr. of Eq. 3, and Toullier's learned note, Dr. Civ. Fr. tit. prel. n. 7, note.
3. Commutative justice is that virtue whose object it is to render to every one what belongs to him, as nearly as may be, or that which governs contracts. To render commutative justice, the judge must make an equality between the parties, that no one may be a gainer by another's loss. Tr. Eq. 3.
4. Toullier exposes the want of utility and exactness in this division of distributive and commutative justice, adopted in the compendium or abridgments of the ancient doctors, and prefers the division of internal and external justice; the first being a conformity of our will, and the latter a conformity of our actions to the law: their union making perfect justice. Exterior justice is the object of jurisprudence; interior justice is the object of morality. Dr. Civ. Fr. tit. prel. n. 6 et 7.
5. According to the Frederician code, part 1, book 1, tit. 2, s. 27, justice consists simply in letting every one enjoy the rights which he has acquired in virtue of the laws. And as this definition includes all the other rules of right, there is properly but one single general rule of right, namely, Give every one his own. See, generally, Puffend. Law of Nature and Nations, B. 1, c. 7, s. 89; Elementorum Jurisprudentiae Universalis, lib. 1, definito, 17, 3, 1; Gro. lib. 2, c. 11, s. 3; Ld. Bac. Read. Stat. Uses, 306; Treatise of Equity, B. 1, c. 1, s. 1.
JUSTICES. Judges. Officers appointed by a competent authority to administer justice. They are so called, because, in ancient times the Latin word for judge was justicia. This term is in common parlance used to designate justices of the peace.
JUSTICES IN EYRE. They were certain judges established if not first appointed, A. D. 1176, 22 Hen. II. England was divided into certain circuits, and three justices in eyre, or justices itinerant, as they were sometimes called, were appointed to each district, and made the circuit of the kingdom once in seven years for the purpose of trying causes. They were afterwards directed by Magna Charta, c. 12, to be sent into every county once a year. The itinerant justices were sometimes mere justices of assize or dower, or of general gaol delivery, and the like. 3 Bl. Com. 58-9; Crabb's Eng. Law, 103-4. Vide Eire.
JUSTICES OF THE PEACE. Public officers invested with judicial powers for the purpose of preventing breaches of the peace, and bringing to punishment those who have violated the law.
2. These officers, under the Constitution of the United States and some of the states, are appointed by the executive in others, they are elected by the people, and commissioned by the executive. In some states they hold their office during good behaviour, in others for a limited period.
3. At common law, justices of the peace have a double power in relation to the arrest of wrong doers; when a felony or breach of the peace has been committed in their presence, they may personally arrest the offender, or command others to do so; and in order to prevent the riotous consequences of a tumultuous assembly, they may command others to arrest affrayers, when the affray has been committed in their presence. If a magistrate be not present when a crime is committed, before he can take a step to arrest the offender, an oath or affirmation must be made by some person cognizant of the fact that the offence has been committed, and that the person charged is the offender, or there is probable cause to believe that he has committed the offence.
4. The Constitution of the United States directs, that "no warrants shall issue, but upon probable cause, supported by oath or affirmation." Amendm. IV. After his arrest, the person charged is brought before the justice of the peace, and after bearing he is discharged, held to bail to answer to the complaint, or, for want of bail, committed to prison.
5. In some, perhaps all the United States, justices of the peace have jurisdiction in civil cases, given to them by local regulations. In Pennsylvania, their jurisdiction in cases of contracts, express or implied, extends to one hundred dollars. Vide, generally, Burn's Justice; Graydon's Justice Baches Manual of a Justice of the Peace Com. Dig. h. t.; 15 Vin. Ab. 3; Bac. Ab. h. t.; 2 Sell. Pr. 70; 2 Phil. Ev. 239; Chit. Pr. h. t.; Amer. Dig. h. t.
JUSTICIAR, or JUSTICIER. A judge, or justice the same as justiciary.
JUSTICIARII ITINERANTES, Eng. law. They were formerly justices, who were so called because they went from county to county to administer justice. They were usually called justices in eyre, (q. v.) to distinguish them from justices residing at Westminster, who were called justicii residentes. Co. Litt. 293. Vide Itinerant.
JUSTICIARII RESIDENTES, Eng. law. They were justices or judges, who usually resided in Westminster; they were so called to distinguish them from justices in eyre. Co. Litt. 293. Vide Justiciarii Itinerantes.
JUSTICIARY, officer. Another name for a judge. In Latin, he was called justiciciarius, and in French, justicier. Not used. Bac. Ab. Courts and their Jurisdiction, A.
JUSTICIES, Eng. law. The name of a writ which acquires its name from the mandatory words which it contains, "that you do A B justice."
2. The county court has jurisdiction in cases where damages are claimed, only to a certain amount; but sometimes suits are brought there, when greater damages are claimed. In such cases, an original writ, by this name, issues out of chancery, in order to give the court jurisdiction. See 1 Saund. 74, n. 1.
JUSTIFIABLE HOMICIDE. That which is committed with the intention to kill, or to do a grievous bodily injury, under circumstances which the law holds sufficient to exculpate the person who commits it.
2. It is justifiable, 1. When a judge or other magistrate acts in obedience to the law. 2. When a ministerial officer acts in obedience to a lawful warrant, issued by a competent tribunal. 3. When a subaltern officer, or soldier, kills in obedience to the lawful commands of his superior. 4. When the party kills in lawful self-defence.
3. - §1. A judge who, in pursuance of his duty, pronounces sentence of death, is not guilty of homicide; for it is evident, that as the law prescribes the punishment of death for certain offences, it must protect those who are entrusted with its execution. A judge, therefore, who pronounces sentence of death, in a legal manner, on a legal indictment, legally brought before him, for a capital offence committed within his jurisdiction, after a lawful trial and conviction, of the defendant, is guilty of no offence.
4. - 2. Magistrates, or other officers entrusted with the preservation of the public peace, are justified in committing homicide, or giving orders which lead to it, if the excesses of a riotous assembly cannot be otherwise be repressed.
5 - §2. An officer entrusted with a legal warrant, criminal or civil, and lawffully commanded by a competent tribunal to execute it, will be justified in committing homicide, if, in the course of advancing to discharge his duty, he be brought into such perils that, without doing so, he cannot either save his life, or discharge the duty which he is commanded by the warrant to perform. And when the warrant commands him to put a criminal to death, he is justified in obeying it.
6. - §3. A soldier on duty is justified in committing homicide, in obedience to the command of his officer, unless the command was something plainly unlawful.
7. - §4. A private individual will, in many cases, be justified in committing homicide, while acting in self-defence. See Self-defence. Vide, generally, 1 East, P. C. 219; Hawk. B. 1, c. 28, s. 1, n. 22; Allis. Prin. 126-139; 1 Russ. on Cr. 538; Bac. Ab. Murder, &c., E; 2 Wash. C. C. 515; 4 Mass. 891; 1 Hawkes, 210; 1 Coxes R. 424; 5 Yerg. 459; 9 C. & P. 22; S. C. 38 Eng. C. L. R. 20.
JUSTIFICATION. The act by which a party accused shows and maintains a good and legal reason in court, why he did the thing he is called upon to answer.
2. The subject will be considered by examining, 1. What acts are justifiable. 2. The manner of making the justification. 3. Its effects.
3. - §1. The acts to be justified are those committed with a warrant, and those committed without a warrant. 1. It is a general rule, that a warrant or execution, issued by a court haviug jurisdiction, whether the same be right or wrong, justifies the officer to whom it is directed and who is by law required to execute it, and is a complete justification to the officer for obeying its command. But when the warrant is not merely voidable, but is absolutely void, as, for want of jurisdiction in the court which issued it, or by reason of the privilege of the defendant, as in the case of the arrest of an ambassador, who cannot waive his privilege and immunities by submitting to be arrested on such warrant, the officer is no longer justified. 1 Baldw. 240; see 4 Mass. 232; 13 Mass. 286, 334; 14 Mass. 210. 2. A person may justify many acts, while acting without any authority from a court or magistrate. He may justifiably, even, take the life of an aggressor, while acting in the defence of himself, his wife, children, and servant, or for the protection of his house, when attacked with a felonious intent, or even for the protection of his personal property. See Self-defence. A man may justify what would, otherwise, have been a trespass, an entry on the land of another for various purposes; as, for example, to demand a debt due to him by the owner of the land to remove chattels which belong to him, but this entry must be peaceable; to exercise an incorporeal right; ask for lodging's at an inn. See 15 East, 615, note e; 2 Lill. Ab. 134; 15 Vin. Ab. 31; Ham. N. P. 48 to 66; Dane's Ab. Index, h. t.; Entry. It is an ancient principle of the common law, that a trespass may be justified in many cases. Thus: a man may enter on the land of another, to kill a fox or otter, which are beasts against the common profit. 11 H. VIII. 10. So, a house may be pulled down if the adjoining one be on fire, to prevent a greater destruction. 13 H. VIII. 16, b. Tua res agitur paries cum proximus ardet. So, the suburbs of a city may be demolished in time of war, for the good of the commonwealth. 8 Ed. IV. 35, b. So, a man may enter on his neighbor to make a bulwark in defence of the realm. 21 H. VIII. b. So, a house may be broken to arrest a felon. 13 Ed. IV. 9, a; Dodd. Eng. Lawy. 219, 220. In a civil action, a man may justify a libel, or slanderous words, by proving their truth, or because the defendant had a right, upon the particular occasion, either to write and publish the writing, or to utter the words; as, when slanderous words are found in a report of a committee of congress, or in an indictment, or words of a slanderous nature are uttered in the course of debate in the legislature by a member, or at the bar, by counsel, when properly instructed by his client on the subject. See Debate; Slander; Com. Dig. Pleader, 2 L 3 to 2 L 7.
4.- §2. In general, justification must be specially pleaded, and it cannot be given in evidence under the plea of the general issue.
5. - §3. When the plea of justification is supported by the evidence, it is a complete bar to the action. Vide Excuse.
JUSTIFICATORS. A kind of compurgators, or those who, by oath, justified the innocence or oaths of others, as in the case of wagers of law.
JUSTIFYING BAIL, practice. The production of bail in court, who there justify themselves Against the exception of the plaintiff.

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