I:
IBIDEM. This word is used in references when it is intended to
say that a thing is to be found in the same place, or that the
reference has for its object the same thing, case, or other
matter.
IOU, contracts. The memorandum IOU, (I owe you), given by
merchants to each other, is a mere evidence of the debt, and does
not amouut to a promissory note. Esp. Cas. N. A. 426; 4 Carr. &
Payne, 324; 19 Eng. Com. L. Rep. 405; 1 Man. & Gran. 46; 39 E.
C. L. R. 346; 1 Campb. 499; 1 Esp. R. 426; 1 Man. Gr. & So.
543; Dowl. & R. N. P. Cas. 8.
ICTUS ORBIS, med. jurisp. A maim, a bruise, or swelling; any
hurt without cutting the skin. When the skin is cut, the injury
is called a wound. (q. v.) Bract. lib. 2, tr. 2, c. 5 and 24.
2. Ictus is often used by medical authors in the sense of
percussus. It is applied to the pulsation of the arteries, to any
external lesion of the body produced by violence also to the
wound inflicted by a scorpion or venomous reptile. Orbis is used
in the sense of circlo, circuit, rotundity. It is applied also to
the eye balls. Oculi dicuntur orbes. Castelli Lexicon Medicum.
IDEM SONANS. Sounding the same.
2. In pleadings, when a name which it is material to state, is
wrongly spelled, yet if it be idem sonans with that proved, it is
sufficient, as Segrave for Seagrave, 2 Str. R. 889; Keen for
Keene, Thach. Cr. Cas. 67; Deadema for Diadema, 2 Ired. 346;
Hutson for Hudson, 7 Miss. R. 142; Coonrad for Conrad, 8 Miss.
R. 291. See 5 Pike, 72; 6 Ala. R. 679; vide also Russ. & Ry.
412; 2 Taunt. R. 401, In the following cases the variances there
mentioned were declared to be fatal. Russ. & Ry. 351; 10 East,
R. 83; 5 Taunt. R. 14; 1 Baldw. R. 83; 2 Crom. & M. 189; 6
Price, R. 2; 1 Chit. R. 659; 13 E. C. L. R. 194. See,
generally, 8 Chit. Pr. 231, 2; 4 T. R. 611; 3 B. & P. 559; 1
Stark. R. 47; 2 Stark. R. 29; 3 Camp. R. 29; 6 M. & S. 45; 2
N. H. Rep. 557; 7 S. & R. 479; 3 Caines, 219; 1 Wash. C. C. R.
285; 4 Cowen, 148 and the article Name.
IDENTITATE NOMINIS, Engl. law. The name of a writ which lies
for a person taken upon a capias or exigent and committed to
prison, for another man of the same name; this writ directs the
sheriff to inquire whether he be the same person against whom the
action was brought, and if not, then to discharge him. F. N. B.
267. In practice, a party in this condition would be relieved by
habeas corpus.
IDENTITY, evidence. Sameness.
2. It is frequently necessary to identify persons and things.
In criminal prosecutions, and in actions for torts and on
contracts, it is required to be proved that the defendants have
Bouvier's Law Dictionary : I1 : Page 1 of 129
in criminal actions, and for injuries, been guilty of the crime
or injury charged; and in an action on a contract, that the
defendant was a party to it. Sometimes, too, a party who has been
absent, and who appears to claim an inheritance, must prove his
identity and, not unfrequently, the body of a person which has
been found dead must be identified: cases occur when the body is
much disfigured, and, at other times, there is nothing left but
the skeleton. Cases of considerable difficulty arise, in
consequence of the omission to take particular notice; 2 Stark.
Car. 239 Ryan's Med. Jur. 301; and in consequence of the great
resemblance of two persons. 1 Hall's Am. Law Journ. 70; 1 Beck's
Med. Jur. 509; 1 Paris, Med. Jur, 222; 3 Id. 143; Trail. Med.
Jur. 33; Foder‚, Med. Leg. ch. 2, tome 1, p. 78-139.
3. In cases of larceny, trover, replevin, and the like, the
things in dispute must always be identified. Vide 4 Bl. Com. 396.
4. M. Briand, in his Manuel Complet de M‚dicine L‚gale, 4eme
partie, ch. 1, gives rules for the discovery of particular marks,
which an individual may have had, and also the true color of the
hair, although it may have been artificially colored. He also
gives some rules for the purpose of discovering, from the
appearance of a skeleton, the sex, the age, and the height of the
person when living, which he illustrates by various examples.
See, generally, 6 C. & P 677; 1 C. & M. 730; 3 Tyr. 806;
Shelf. on Mar. & Div. 226; 1 Hagg. Cons. R. 189; Best on Pres.
Appx. case 4; Wills on Circums. Ev. 143, et seq.
IDES, NONES and CALENDS, civil law. This mode of computing
time, formerly in use among the Romans, is yet used in several
chanceries in, Europe, particularly in that of the pope. Many
ancient instruments bear these dates; it is therefore proper to
notice them here. These three words designate all the days of the
month.
2. The calends were the first day of every month, and were
known by adding the names of the months; as calendis januarii,
calendis februarii, for the first days of the months of January
and February. They designated the following days by those before
the nones. The fifth day of each month, except those of March,
May, July, and October; in those four months the nones indicated
the seventh day; nonis martii, was therefore the seventh day of
March, and so of the rest. In those months in which the nones
indicated the fifth day, the second was called quarto nonas or 4
nonas, that is to say, quarto die ante nonas, the fourth day
before the nones. The words die and ante, being understood, were
usually suppressed. The third day of each of those eight months
was called tertio, or 3 nonas. The fourth, was pridie or 2 nonas;
and the fifth was nonas. In the months of March, May, July and
October, the second day of the months was called sexto or 6
nonas; the third, quinto, or 5 nonas; the fourth, quarto, or 4
nonas; the fifth, tertio, or 3 nonas; the sixth, pridie,
usually abridged prid. or pr. or 2 nonas; and the seventh,
nones. The word nonae is so applied, it is said, because it
indicates the ninth day before the ides of each month.
Bouvier's Law Dictionary : I1 : Page 2 of 129
3. In the months of March, May, July and October, the fifteenth
day of the months was the Ides. These are the four mouths, as
above mentioned, in which the nones were on the seventh day. In
the other eight months of the year the nones were the fifth of
the month, and the ides the thirteenth in each of them the ides
indicated the ninth day after the nones. The seven days between
the nones and the ides, which we count 8, 9, 10, 11, 12, 13, and
14, in March, May, July and October, the Romans counted octave,
or 8 idus; septimo, or 7 idus; sexto, or 6 idus; quinto, or 5
idus; quarto, or 4 idus; tertio, or 3 idus; pridie, or 2,
idus; the word ante being understood as mentioned above. As to
the other eight mouths of the year, in which the nones indicated
the fifth day of the month, instead of our 6, 7, 8, 9, 10, 11,
and 12, the Romans counted octavo idus, septimo, &c. The word is
said to be derived from the Tuscan, iduare, in Latin dividere, to
divide, because the day of ides divided the month into equal
parts. The days from the ides to the end of the month were
computed as follows; for example, the fourteenth day of January,
which was the next day after the ides, was called decimo nono, or
19 kalendas, or ante kalendas febrarii; the fifteenth, decimo
octavo, or 18 kalindas februarii, and so of the rest. Counting in
a, retrograde manner to pridie or 2 kalendas februarii, which was
the thirty-first day of January.
4. As in some months the ides indicate the thirteenth, and in
some the fifteenth of the month, and as the months have not an
equal number of days, it follows that the decimo nono or 19
kalendas did not always happen to be the next day after the Ides,
this was the case only in the months of January, August and
December. Decimo sexto or the 16th in Fedruary; decimo septimo
or 17, March, May, July and October; decimo octave or 18, in
April, June, September, and November. Merlin, R‚pertoire de
Jurisprudence, mots Ides, Nones et Calendes.
A Table of the Calends of the Nones and the Ides.
-----------------------------------------------------------------
--------
Jan., Aug., Dec. | March, May, | April, June, | February
28,
31 days. | July, Oct., | Sept., Nov., |
bissextile,
| 31 days. | 30 days. | 29
days.
-----------------------------------------------------------------
--------
1 | Calendis. | Calendis | Calendis | Calendis
Bouvier's Law Dictionary : I1 : Page 3 of 129
2 | 4 Nonas. | 6 Nonas | 4 Nonas | 4
Nonas
3 | 3 Nonas. | 5 Nonas | 3 Nonas | 3
Nonas
4 | Prid. Non. | 4 Nonas | Prid. Non. | Prid.
Non.
5 | Nonis | 3 Nonas | Nonis | Nonis
6 | 8 Idus | Prid. Non. | 8 Idus | 8 Idus
7 | 7 Idus | Nonis | 7 ]dus | 7 Idus
8 | 6 Idus | 8 Idus | 6 Idus | 6 Idus
9 | 5 Idus | 7 Idus | 5 Idus | 5 Idus
10 | 4 Idus | 6 Idus | 4 Idus | 4 Idus
11 | 3 Idus | 5 Idus | 3 Idus | 3 Idus
12 | Prid. Idus | 4 Idus | Prid. Idus | Prid. Idus
18 | Idibus | 3 Idus | Idibiis | Idibus
14 | 19 Cal. | Prid. Idus | 18 Cal. | 16
Cal.
15 | 18 Cal. | Idibus | 17 Cal. | 15 Cal.
16 | 17 Cal. | 17 Cal. | 16 Cal. | 14
Cal.
17 | 16 Cal. | 16 Cal. | 15 Cal. | 3 Cal.
18 | 15 Cal. | 15 Cal. | 14 Cal. | 12
Cal.
19 | 14 Cal. | 14 Cal. | 13 Cal. | 11
Cal.
20 | 18 Chl. | 13 Cal. | 12 Cal. | 10
Cal.
21 | 12 Cal. | 12 Cal. | 11 Cal. | 9 Cal.
22 | 11 Cal. | 11 Cal. | 10 Cal. | 8 Cal.
23 | 10 Cal. | 10 Cal. | 9 Cal. | 7 Cal.
24 | 9 Cal. | 9 Cal. | 8 Cal. | 6 Cal.*
25 | 8 Cal. | 9 Cal. | 7 Cal. | 5 Cal.
26 | 7 Cal. | 7 Cal. | 6 Cal. | 4 Cal.
27 | 6 Cal. | 6 Cal. | 5 Cal. | 3 Cal.
28 | 5 Cal. | 5 Cal. | 4 Cal. | Prid. Cal.
29 | 4 Cal. | 4 Cal. | 3 Cal. |
30 | 3 Cal. | 3 Cal. | Prid. Cal. |
31 | Prid. Cal. | Prid. Cal. | |
* If February is bissextile, Sexto Calencas (6 Cal.) it is
counted twice, viz: for the 24th and 25th of the month, Hence
the word bis-sextile.
Bouvier's Law Dictionary : I1 : Page 4 of 129
IDIOCY, med. jur. That condition of mind, in which the
reflective, or all or a part of the affective powers, are either
entirely wanting, or are manifested to the least possible extent.
2. Idiocy generally depends upon organic defects. The most
striking physical trait, and one seldom wanting, is the
diminutive size of the head, particularly of the anterior
superior portions, indicating a deficiency of the anterior lobes
of the brain. According to Gall, whose observations on this
subject are entitled to great consideration, its circumference,
measured immediately over the orbiter arch, and the most
prominent part of the occipital bone, is between 11« and 14«
inches. Gall, sur les Fonctions, p. 329. In the intelligent
adult, it usually measures from 21 to 22 inches. Chit. Med. Jur.
248. See, ou this subject, the learned work of Dr. Morton, of
Philadelphia*, entitled Crania Americana. The brain of an idiot
equals that of a new born infant; that is, about one-fourth,
one-fifth, or one-sixth of the cerebral mass of an adult's in the
enjoyment of his faculties. The above is the only constant
character. observed in the heads of idiots. In other respects
their forms are as various as those of other persons. When idiocy
supervenes in early infancy, the head is sometime remarkable for
immense size. This unnatural enlargement arises from some kind of
morbid action preventing the development of the cerebral mass,
and producing serous cysts, dropsical effusions, and the like.
3. In idiocy the features are irregular; the forehead low,
retreating, and narrowed to a point; the eyes are unsteady, and
often squint the lips are. thick, and the mouth is generally
open; the gums are spongy, and the teeth are defective; the
limbs are crooked and feeble. The senses are usually entirely
wanting; many are deaf and dumb, or blind and others are
incapable of perceiving odors, and show little or no
discrimination in their food for want of taste. Their movements
are constrained and awkward, they walk badly, and easily fall,
and are not less awkward with their hands, dropping generally
what is given to them. They are seldom able to articulate beyond
a few sounds. They are generally affected with rickets, epilepsy,
scrofula, or paralysis. Its subjects seldom live beyond the
twenty-fifth year, and are incurable, as there is natural
deformity which cannot be remedied. Vide Chit. Med. Jur. 345;
Ray's Med. Jur. c. 2; 1 Beck's Med. Jur. 571 Shelf. on Lun.
Index, h. t.; and Idiot.
IDIOT, Persons. A person who has been without understanding
from his nativity, and whom the law, therefore, presumes never
likely to attain any. Shelf. on Lun. 2.
2. It is an imbecility or sterility of mind, and not a
perversion of the understanding. Chit. Med. Jur. 345, 327, note
s; 1 Russ. on Cr. 6; Bac. Ab. h. t. A; Bro. Ab. h. t.; Co.
Litt. 246, 247; 3 Mod. 44; 1 Vern. 16; 4 Rep. 126; 1 Bl. Com.
302. When a man cannot count or number twenty, nor tell his
father's or mother's name, nor how old he is, having been
frequently told of it, it is a fair presumption that, he is
devoid of understanding. F. N. B. 233. Vide 1 Dow, P. C. now
series, 392; S. C. 3 Bligh, R. new series, 1. Persons born deaf,
dumb, and blind, are, presumed to be idiots, for the senses being
Bouvier's Law Dictionary : I1 : Page 5 of 129
the only inlets of knowledge, and these, the most important of
them, being closed, all ideas and associations belonging to them
are totally excluded from their minds. Co. Litt. 42 Shelf. on
Lun. 3. But this is a mere presumption, which, like most others,
may be rebutted; and doubtless a person born deaf, dumb, and
blind, who could be taught to read and write, would not be
considered an idiot. A remarkable instance of such an one may be
found in the person of Laura Bridgman, who has been taught how to
converse and even to write. This young woman was, in the year
1848, at school at South Boston. Vide Locke on Human
Understanding, B. 2 c. 11, §12, 13; Ayliffe's Pand. 234; 4 Com.
Dig. 610; 8 Com. Dig. 644.
3. Idiots are incapable of committing crimes, or entering into
contracts. They cannot of course make a will; but they may
acquire property by descent.
Vide, generally, 1 Dow's Parl. Cas. new series, 392; 3 Bligh's
R. 1; 19 Ves. 286, 352, 353; Stock ou the Law of Non Compotes
Mentis; Bouv. Inst. Index, h. t.
IDIOTA INQUIRENDO, WRIT DE. This is the name of an old writ
which directs the sheriff to inquire whether a man be an idiot or
not. The inquisition is to be made by a jury of twelve men. Fitz.
N. B. 232.
IDLENESS. The refusal or neglect to engage in any lawful
employment, in order to gain a livelihood.
2. The vagrant act of 17 G. II. c. 5, which, with some
modifications, has been adopted, in perhaps most of the states,
describes idle persons to be those who, not having wherewith to
maintain themselves, live idle, without employment, and refuse to
work for the usual and common, wages. These are punishable
according to the difrerent police regulations, with fine and
imprisonment. In Pennsylvania, vagrancy is punished, on a
conviction before a magistrate, with imprisonment for one mouth.
IGNIS JUDICIUM, Eng. law. The name of the old judicial trial by
fire.
IGNOMINY. Public disgrace, infamy, reproach, dishonor. Ignominy
is the opposite of esteem. Wolff, §145. See Infamy.
IGNORAMUS, practice. We are ignorant. This word, which in law
means we are uninformed, is written on a bill by a grand jury,
when they find that there is not sufficient evidence to authorize
their finding it a true bill. Sometimes, instead of using this
word, the grand jury endorse on the bill, "Not found." 4 Bl. Com.
305. Vide Grand Jury.
IGNORANCE. The want of knowledge.
2. Ignorance is distinguishable from error. Ignorance is want
of knowledge; error is the non-conformity or opposition of our
ideas to the truth. Considered as a motive of our actions,
ignorance differs but little from error. They are generally found
together, and what is said of one is said of both.
Bouvier's Law Dictionary : I1 : Page 6 of 129
3. Ignorance and error, are of several kinds. 1. When
considered as to their object, they are of law and of fact. 2.
When examined as to their origin, they are voluntary or
involuntary, 3. When viewed with regard to their influence on the
affairs of men, they are essential or non-essential.
4. - §1. Ignorance of law and fact. 1. Ignorance of law,
consists in the want of knowledge of those laws which it is our
duty to understand, and which every man is presumed to know. The
law forbids any one to marry a woman whose hushand is living. If
any man, then, imagined he could marry such a woman, he would be
ignorant of the law; and, if he married her, he would commit an
error as to a matter of law. How far a party is bound to fulfil a
promise to pay, upon a supposed liability, and in ignorance of
the law, see 12 East, R. 38; 2 Jac. & Walk. 263; 5 Taunt. R.
143; 3 B. & Cresw. R. 280; 1 John. Ch. R. 512, 516; 6 John.
Ch. R. 166; 9 Cowen's R. 674; 4 Mass. R. 342; 7 Mass. R. 452;
7 Mass. R. 488; 9 Pick. R. 112; 1 Binn. R. 27. And whether he
can be relieved from a contract entered into in ignorance or
mistake of the law. 1 Atk. 591; 1 Ves. & Bea. 23, 30; 1 Chan.
Cas. 84; 2 Vern. 243; 1 John. Ch. R. 512; 2 John. Ch. R. 51;
1 Pet. S. C. R. 1; 6 John. Ch. R. 169, 170; 8 Wheat. R. 174; 2
Mason, R. 244, 342.
5. - 2. Ignorance of fact, is the want of knowledge as to the
fact in question. It would be an error resulting from ignorance
of a fact, if a man believed a certain woman to be unmarried and
free, when in fact, she was a married woman; and were he to
marry her under that belief, he would not be criminally
responsible. Ignorance of the laws of a foreign government, or of
another state; is ignorance of a fact. 9 Pick. 112. Vide, for
the difference between ignorance of law and ignorance of fact, 9
Pick. R. 112; Clef. des Lois Rom. mot Fait; Dig. 22, 6, 7.
6. - §2. Ignorance is either voluntary or involuntary. 1. It is
voluntary when a party might, by taking reasonable pains, have
acquired the necessary knowledge. For example, every man might
acquire a knowledge of the laws which have been promulgated, a
neglect to become acquainted with them is therefore voluntary
ignorance. Doct. & St. 1, 46; Plowd. 343.
7. - 2. Involuntary ignorance is that which does not proceed
from choice, and which cannot be overcome by the use of any means
of knowledge known to him
and within his power; as, the ignorance of a law which has not
yet been promulgated.
Bouvier's Law Dictionary : I1 : Page 7 of 129
8. - §3. Ignorance is either essential or non-essential. 1. By
essential ignorance is understood that which has for its object
some essential circumstance so intimately connected with the:
matter in question, and which so influences the parties that it
induces them to act in the business. For example, if A should
sell his horse to B, and at the time of the sale the horse was
dead, unknown to the parties, the fact of the death would render
the sale void. Poth. Vente, n. 3 and 4; 2 Kent, Com. 367.
9. - 2. Non-essential or accidental ignorance is that which has
not of itself any necessary connexion with the business in
question, and which is not the true consideration for enteting
into the contract; as, if a man should marry a woman whom he
believed to be rich, and she proved to be poor, this fact would
not be essential, and the marriage would therefore be good. Vide,
generally, Ed. Inj. 7; 1 Johns. h. R. 512; 2 Johns. Ch. R. 41;
S. C. 14 Johns. R 501; Dougl. 467; 2 East, R. 469; 1 Campb.
134: 5 Taunt. 379; 3 M. & S. 378; 12 East, R. 38; 1 Vern.
243; 3 P. Wms. 127, n.; 1 Bro. C. C. 92; 10 Ves. 406; 2 Madd.
R. 163; 1 V. & B. 80; 2 Atk. 112, 591; 3 P. Wms. 315; Mos.
364; Doct. & Stud. Dial. 1, c. 26, p. 92; Id. Dial. 2, ch. 46,
p. 303; 2 East, R. 469; 12 East, R. 38; 1 Fonbl. Eq. B. 1, ch.
2, §7, note v; 8 Wheat. R. 174; S. C. 1 Pet. S. C. R. 1; 1
Chan. Cas. 84; 1 Story, Eq. Jur. §137, note 1; Dig. 22, 6;
Code, 1, 16; Clef des Lois Rom. h. t.; Merl. R‚pert. h. t.; 3
Sav. Dr. Rom. Appendice viii., pp. 337 to 444.
ILL FAME. This is a technical expression, that which means not
only bad character as generally understood, but every person,
whatever may be his conduct and character in life, who visits
bawdy houses, gaming houses, and other places which are of ill
fame, is a person of ill fame. 1 Rogers' Recorder, 67; Ayl. Par.
276; 2 Hill, 558; 17 Pick. 80; 1 Hagg. Eccl. R. 720; 2 Hagg.
Cons. R. 24; 1 Hagg. Cons. R. 302, 303; 1 Hagg. Eccl. R. 767;
2 Greenl. Ev. §44.
ILLEGAL. Contrary to law; unlawful.
2. It is a general rule, that the law will never give its aid
to a party who has entered into an illegal contract, whether the
same be in direct violation of a statute, against public policy,
or opposed to public morals. .Nor to a contract which is
fraudulent, which affects the defendant or a third person.
3. A contract in violation of a statute is absolutely void,
and, however disguised, it will be set aside, for no form of
expression can remove the substantial defect inherent in the
nature of the transaction; the courts will investigate the real
object of the contracting parties, and if that be repugnant to
the law, it will vitiate the transaction.
4. Contracts against the public policy of the law, are equally
void as if they were in violation of a public statute; a
contract not to marry any one, is therefore illegal and void. See
Void.
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5. A contract against the purity of manners is also illegal;
as, for example, a agreement to cohabit unlawfully with another,
is therefore void; but a bond given for past cohabitation, being
considered as remuneration for past injury, is binding. 4 Bouv.
Inst. n. 3853.
6. All contracts which have for their object, or which may in
their consequences, be injurious to third persons, altogether
unconnected with them, are in general illegal and void. Of the
first, an example may be found in the case where a sheriff's
officer received a sum of money from a defendant for admitting to
bail, and agreed to pay the bail, part of the money which was so
exacted. 2 Burr. 924. The case of a wager between two persons, as
to the character of a third, is an example of the second class.
Cowp. 729; 4 Camp. 152; 1 Rawle, 42; 1 B. & A. 683. Vide
lllicit; Unlawful.
ILLEGITIMATE. That which is contrary to law; it is usually
applied to children born out of lawful wedlock. A bastard is
sometimes called an illegitimate child.
ILLEVIABLE. A debt or duty that cannot or ought not to be
levied. Nihil set upon a debt is a mark for illeviable.
ILLICIT. What is unlawful what is forbidden by the law. Vide
Unlawful.
2. This word is frequently used in policies of insurance, where
the assured warrants against illicit trade. By illicit trade is
understood that "which is made unlawful by the laws of the
country to which the object is bound." The assured having entered
into this warranty, is required to do no act which will expose
the vessel to be legally condemned. 2 L. R. 337, 338. Vide
Insurance; Trade; Warranty.
ILLICITE. Unlawfully.
2. This word has a technical meaning, and is requisite in an
indictment where the act charged is unlawful; as, in the case of
a riot. 2 Hawk. P. C. 25, §96.
ILLINOIS. The name of one of the United States of America. This
state was admitted into the Union by virtue of a "Resolution
declaring the admission of the state of Illinois into the Union,"
passed December 3, 1818, in the following words: Resolved, &c.
That, whereas, in pursuance of an Act of Congress, passed on the
eighteenth day of April, one thousand eight hundred and eighteen,
entitled "An act to enable the people of the Illinois territory
to form a constitution and state government, and for the
admission of such state into the Union, on an equal footing with
the original states," the people of said territory did, on the
twenty-sixth day of August, in the present year, by a convention
called for that purpose, form for themselves a constitution and
state government, which constitution and state government, so
Bouvier's Law Dictionary : I1 : Page 9 of 129
formed, is republican, and in conformity to the principles of the
articles of compact between the original states and the people
and States in the territory northwest of the river Ohio, passed
on the thirteenth day of July, one thousand seven hundred and
eighty-seven: Resolved, &c. That the state of Illinois shall be
one, and is hereby declared to be one, of the United States of
America, and admitted into the Union on an equal footing with the
original states, in all respects whatever.
2. A constitution for this state, was adopted in convention
held at Kaskaskia, on the 26th day of August, 1818, which
continued in force until the first day of April; 1848. A
convention to revise the constitution assembled at Springfield,
June 7, 1847, in pursuance of an act of the general assembly of
the state of Illinois, entitled "An act to provide for the call
of a convention: On the first day of August, 1848, this
convention adopted a constitution of the state of Illinois, and
by the 13th section of the schedule thereof it provided that this
constitution shall be the supreme law of the land from and after
the first day of April, A. D. 1848.
3. It will be proper to consider, 1. The rights of citizens to
vote at elections. 2. The distribution of the powers of
government.
4. - 1. The sixth article directs that, §1. In all elections,
every white male citizen above the age of twenty-one years,
having resided in the state one year next preceding any election,
shall be entitled to vote at such election; and every white male
inhabitant of the age aforesaid, who may be a resident of the
state' at the time of the adoption of this constitution, shall
have the right of voting as aforesaid; but no such citizen or
inhabitant shall be entititled to vote, except in the district or
county in which he Shall actually reside lit the time of such
election.
§2. All votes shall be given by ballot.
§5. No elector loses his residence in the state by reason of
his absence on business of the United States, or this state.
§6. No soldier, seaman or mariner of the United States, is
deemed a resident of the state, in consequence of being stationed
within the state.
5. The second article distributes the powers of the government
as follows:
§1. The powers of the government of the state of Illinois shall
be divided into three distinct departments, and each of them be
confided to a separate body of magistracy, to wit: Those which
are legislative, to one; those which are executive, to another;
and those which are judicial, to another.
Bouvier's Law Dictionary : I1 : Page 10 of 129
2. No person, or collection of persons, being one of these
departments, shall exercise any power properly belonging to
either of, the others, except as hereinafter expressly directed
or permitted; and all acts in contravention of this section
shall be void. These will be separately considered.
6. The legislative department will be considered by taking a
view, 1. Of those parts of the constitution which relate to the
general assembly. 2. Of the senate. 3. Of the house of
representatives.
7. - 1st. Of the general assembly. The third article of the
constitution provides as follows
§1. The legislative authority of this state shall be vested in
a general assembly; which shall consist of a senate and house of
representatives, both to be elected by the people.
§2. The first election for senators and representatives shall
be held on the Tuesday after the first Monday in November, one
thousand eight hundred and forty-eight; and thereafter,
elections for members of the general assembly shall be held once
in two years, on the Tuesday next after the first Monday in
November, in each and every county, at such places therein as may
be provided by law.
§7. No person elected to the general sembly shall receive any
civil appointment within this state, or to the senate of the
United States, from the governor, the governor and senate, or
from the general assembly, during the term for which he shall
have been elected; and all such appointments, and all votes
given for any such member for any such office or appointment,
shall be void; nor shall any member of the general assembly be
interested, either directly or indirectly, in any contract with
the state, or any county thereof, authorized by any law passed
during the time for which he shall have been elected, or during
one year after the expiration thereof.
§12. The senate and house of representatives, when assembled,
shall each choose a speaker and other officers, (the speaker of
the senate excepted.) Each house shall judge of the
qualifications and election of its own members, and sit upon its
own adjournments. Two-thirds of each house shall constitute a
quorum but a smaller number may adjourn from day to day, and
compel the attendance of absent members.
§13. Each house shall keep a journal of its proceedings, and
publish them. The yeas and nays of the members on any question
shall, at the desire of any two of them, be entered on the
journals.
§14. Any two members of either house shall have liberty to
dissent and protest against any act or resolution which they may
think injurious to the public, or to any individual, and have the
reasons of their dissent entered on the journals.
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§15. Each house may determine the rules of its proceedings,
punish its members for disorderly behaviour, and, with the
concurrence of two-thirds of all the members elected, expel a
member, but not a second time for the same cause; and the reason
for such expulsion shall be entered upon the journal, with the
names of the members voting on the question.
§16. When vacancies shall happen in either house, the govenor,
or the person exercising the powers of governor, shall issue
writs of election to fill such vacancies.
§17. Senators and representatives shall, in all cases, except
treason, felony or breach of the peace, be privileged from arrest
during the session of the general assembly, and in going to and
returning from the same and for any speech or debate in either
house, they shall not be questioned in any other place.
§18. Each house may punish, by imprisonment during its session,
any person, not a member, who shall be guilty of disrespect to
the house, by any disorderly or contemptuous behaviour in their
presence: Provided, such imprisonment shall not, at any one
time, exceed twenty-four hours.
§19. The doors of each house, and of committees of the whole,
shall be kept open, except in such cases as in the opinion of the
house require secrecy. Neither house shall, without the consent
of the other, adjourn for more than two days, nor to any other
place than that in which the two houses shall be sitting.
8. - 2d Of the senate. The senate will be considered by taking
a view of, 1. The qualification of senators. 2. Their election.
3. By whom elected. 4. When elected. 5. Number of senators. 6.
The duration of their office.
9. First. Art. 3, s. 4, of the Constitution, directs that "No
person shall be a senator who shall not have attained the age of
thirty years; who shall not be a citizen of the United States,
five years an inhabitant of this state, and one year in the
county or district in which he shall be chosen, immediately
preceding his election, if such county or district shall have
been so long erected; but if not, then within the Iimits of the
county or counties, district or districts, out of which the same
shall have been taken unless he shall have been absent on the
public business of the United States, or of this state, and shall
not, moreover, have paid a state or county tax."
10. Secondly. The senators at their first session herein
provided for, shall be divided by lot, as near as can be, into
two classes. The seats of the first class shall be vacated at the
expiration of the second year, and those of the second class at
the expiration of the fourth year; so that one-half thereof, as
near as possible, may be biennially chosen forever thereafter.
Art. 31 s. 5.
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11. Thirdly. The senators are elected by the people.
12. Fourthly. The first election shall be held on the Tuesday
after the first Monday in November, 1848; and thereafter the
elections shall be on the Tuesday after the first Monday in
November, once in two years. Art. 3, s. 2.
13. Fifthly. The senate shall consist of twenty-five members,
and the house of representatives shall consist of seventy-five
members, until the population of the state shall amount to one
million. of souls, when five members may be added to the house,
and five additional members for every five hundred thousand
inhabitants thereafter, until the whole number of representatives
shall amount to one hundred; after which, the number shall
neither be increased nor diminished; to be apportioned among the
several counties according to the number of white inhabitants. In
all future apportionments, where more than one county shall be
thrown into a representative district, all the representatives to
which said counties may be entitled shall be elected by the
entire district. Art. 3, s. 6.
14. Sixthly. The senators at their first session herein
provided for shall be divided by lot, as near as can be, into two
classes. The seats of the first class shall be vacated at the
expiration of the second year, and those of the second class at
the expiration of the fourth year, so that one-half thereof, as
near as possible, may be biennially chosen forever thereafter.
Art. 3, s. 5.
15. - 3. The house of representatives. This will be considered
in the same order which has been observed in relation to the
senate.
16. First. No person shall be a representative who shall not
have attained the age of twenty-five years; who shall not be a
citizen of the United States, and three years an inhabitant of
this state; who shall not have resided within the limits of the
county or district in which he shall be chosen twelve months next
preceding his election, if such county or district shall have
been so long erected; but if not, then within the limits of the
county or counties, district or districts, out of which the same
shall have been taken, unless he shall have been absent on the
public business of the United States, or of this state; and who,
moreover, shall not have paid a state or county tax. Art. 3, s.
3.
17. Secondly. They are elected biennially.
18. Thirdly. Representatives are elected by the people.
19. Fourthly. Representatives are elected at the same time that
senators are elected.
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20. Fifthly. The house of representatives shall consist of
seventy-five members. See ante, No. 16.
21. Sixthly. Their office continues for two years.
22. - 2. The executive department. The executive power is
vested in a governor. Art. 4, s. 1. It will be proper to
consider, 1. His qualifications. 2. His election: 3. The
duration of his office. 4. His authority and duty.
23. First. No person except a citizen of the United States
shall be eligible to the office of governor, nor shall any person
be eligible to that office who shall not have attained the age of
thirty-five years, and been ten years a resident of this state;
and fourteen years a citizen of the United States. Art. 4 s. 4.
24. Secondly. His election is to be on the Tuesday next after
the first Monday in November. The first election in 1848, and
every fourth year afterwards.
25. Thirdly. He remains in office for four years. The first
governor is to be installed on the first Monday of January, 1849,
and the others every fourth; year thereafter.
26. Fourthly. His authority and duty. He may give information
and recommend measures to the legislature, grant reprieves,
commutations and pardons, except in cases of treason and
impeachment, but in these cases he may suspend execution of the
sentence until the meeting of the legislature - require
information from the officers of the executive department, and
take care that the laws be faithfully executed - on extraordinary
occasions, convene the general assembly by proclamation be
commander-in-chief of the army and navy of the state, except when
they shall be called into the service of the United States -
nominate, and, by and with the consent and advice of the senate,
appoint all officers whose offices are established by the
constitution, or which may be created by law, and whose
appointments - are not otherwise provided for - in case of
disagreement between the two houses with respect to the time of
adjournment, adjourn the general assembly to such time as he
thinks proper, provided it be not to a period beyond a
constitutional meeting of the same. Art. 4. He has also the veto
power.
27. A lieutenant governor shall be chosen at every election of
governor, in the same manner, continue in office for the same
time, and possess the same qualifications. In voting for governor
and lieutenant governor, the electors shall distinguish whom they
vote for as governor, and whom as lieutenant-governor. Art. 4, s.
14. The following are his principal powers and duties
§15. The lieutenant governor shall, by virtue of his office, be
speaker of the senate, have a right, when in committee of the
whole, to debate and vote on all subjects, and, whenever the
senate are equally divided, to give the casting vote.
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§16. Whenever the government shall be administered by the
lieutenant- governor, or he shall be unable to attend as speaker
of the senate, the senators shall elect one of their own, number
as speaker for that occasion; and if, during the vacancy of the
office of governor, the lieutenant governor shall be impeached,
removed from his office, refuse to qualify, or resign, or die, or
be absent from the state, the speaker of the senate shall, in
like manner, administer the government.
§17. The lieutenant governor, while he acts as speaker of the
senate, shall receive for his service the same compensation
which, shall, for the same period, be allowed to the speaker of
the house of representatives, and no more.
§18. If the lieutenant governor shall be called upon to
administer the government, and shall, while in such
administration, resign, die, or be absent from the state, during
the recess of the general assembly, it shall be the duty of the
secretary of state, for the time being, to convene the senate for
the purpose of choosing a speaker.
§19. In case of the impeachment of the governor, his absence
from the, state, or inability to discharge the duties of his
office, the powers, duties, and emoluments of the office shall
devolve upon the lieutenant governor and in case of his death,
resignation, or removal, then upon the speaker of the senate for
the time being, until the governor, absent or impeached, shall
return or be acquitted; or until the disqualification or
inability shall cease; or until a new governor shall be elected
and qualified.
§20. In case of a vacancy in the office of governor, for any
other cause than those herein enumerated, or in case of the death
of the governor elect before he is qualified, the powers, duties,
and emoluments of the office devolve upon the lieutenant
governor, or speaker of the senate, as above provided, until a
new governor be elected and qualified.
28. - 3. The judiciary department. The judicial power is vested
in one supreme court, in circuit courts, in county courts, and in
justices of the peace; but inferior local courts, of civil and
criminal jurisdiction, may be established by the general assembly
in the cities of the state but such courts shall have a uniform
organization and jurisdiction in such cities. Art. 5, s. 1. These
will be separately considered.
29. - 1st. Of the supreme court, its organization and
jurisdiction. 1. Of its organization. 1st. The judges must be
citizens of the United States; have resided in the state five
years previous to their respective elections; and two years next
preceding their election in the division, circuit, or county in
which they shall respectively be elected; and not be less than
thirty-five years of age at the time of their election. 2d. The
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judges are elected each one in a particular district, by the
people. But the legislature may change the mode of election. 3d.
The supreme court consists of a chief justice and three
associates, any two of whom form a quorum; and a concurrence of
two of said judges is necessary to a decision. 4th. They hold
their office for nine years. After the first election, the judges
are to draw by lot, and one is to go out of office in three, one
in six, and the other in nine years. And one judge is to be
elected every third year. 2. Of thejurisdiction of the supreme
court. This court has original jurisdiction in cases relative to
the, revenue, in cases of mandamus, habeas corpus, and in such
cases of impeachment as may be by law directed to be tried before
it, and it has appellate jurisdiction in all other cases.
30. - 2d. Of the circuit courts, their organization and
jurisdiction. 1st. Of their organization. The state is divided
into nine judicial districts, in each of which a circuit judge,
having the same qualifications as the supreme judges, except that
he may be appointed at the age of thirty years, is elected by the
qualified electors, who holds his office for six years and until
his successor shall be commissioned and qualified; but the
legislature may increase the number of circuits. 2d. Of their
jurisdiction. The circuit courts have jurisdiction in all cases
at law and equity, and in all cases of appeals from all inferior
courts.
31. - 3d. Of the county courts. There is in each county a court
to be called a county court. It is composed of one judge, elected
by the people, who holds his office for four years. Its
jurisdiction extends to all probate and such other jurisdiction
as the general assembly may confer in civil cases, and in such
criminal eases as may be prescribed by law, when the punishment
is by fine only, not exeeeding one hundred dollars. The county
judge, with such justices of the peace in each county as may be
designated by law, shall hold terms for the transaction of county
business, and shall perform such other duties as the general
assembly shall prescribe; Provided, the general assembly may
require that two justices, to be chosen by the qualified electors
of each county, shall sit with the county judge in all cases;
and there shall be elected, quadrennially, in each county, a
clerk of the county court, who shall be ex officio recorder,
whose compensation shall be fees; Provided, the general assembly
may, by law, make the clerk of the circuit court ex officio
recorder, in lieu of the county clerk.
32. - 4th. Of justices of the peace. There shall be elected in
each county in this state, in such districts as the general
assembly may direct, by the qualified electors thereof, a
competent number of justices of the peace, who shall hold their
offices for the term of four years, and until their successors
shall have been elected and qualified, and who shall perform such
duties, receive such compensation, and exercise such jurisdiction
as may be prescribed by law.
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ILLITERATE. This term is applied to one unacquainted with
letters.
2. When an ignorant man, unable to read, signs a deed or
agreement, or makes his mark instead of a signature, and he
alleges, and can provide that it was falsely read to him, he is
not bound by it, in consequence of the fraud. And the same effect
would result, if the deed or agreement were falsely read to a
blind man, who could have read before he lost his sight, or to a
foreigner who did not understand the language. For a plea of
"laymen and unlettered," see Bauer v. Roth, 4 Rawle, Rep. 85 and
pp. 94, 95.
3. To induce an illiterate man, by false representations and
false reading, to sign a note for a greater amount than that
agreed on, is indictable as a cheat. 1 Yerg. 76. Vide, generally,
2 Nels. Ab. 946; 2 Co. 3; 11 Co. 28; Moor, 148.
ILLUSION. A species of mania in which the sensibility of the
nervous system is altered, excited, weakened or perverted. The
patient is deceived by the false appearance of things, and his
reason is not sufficiently active and powerful to correct the
error, and this last particular is what distinguishes the sane
from the insane. Illusions are not unfrequent in a state of
health, but reason corrects the errors and dissipates them. A
square tower seen from a distance may appear round, but on
approaching it, the error is corrected. A distant mountain may be
taken for a cloud, but as we approach, we discover the truth. To
a person in the cabin of a vessel under sail, the shore appears
to move; but reflection and a closer examination soon destroy
this illusion. An insane individual is mistaken on the qualities,
connexions, and causes of the impressions he actually receives,
and he forms wrong judgments as to his internal and external
sensations; and his reason does not correct the error. 1 Beck's
Med. Jur. 538; Esquirol, Maladies Mentales, pr‚m. partie, III.,
tome 1, p. 202. Dict. des Sciences M‚dicales, Hallucination, tome
20, p. 64. See Hallucination.
ILLUSORY APPOINTMENT, chancery practice. Such an appointment or
disposition of property under a power as is merely nominal and
not substantial.
2. Illusory appointments are void in equity. Sugd. Pow. 489; 1
Vern. 67; 1 T. R. 438, note; 4 Ves. 785; 16 Ves. 26; 1 Taunt.
289; and the article Appointment.
TO IMAGINE, Eng. law. In cases of treason the law makes it a
crime to imagine the death of the king. In order to complete the
offence there must, however, be an overt act the terms compassing
and imagining being synonymous. It. has been justly remarked that
the words to compass and imagine are too vague for a statute
whose penalty affects the life of a subject. Barr. on the Stat.
243, 4. Vide Fiction.
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IMBECILITY, med. jur. A weakness of the mind, caused by the
absence or obliteration of natural or acquired ideas; or it is
described to be an abnormal deficiency either in those faculties
which acquaint us with the qualities and ordinary relations of
things, or in those which furnish us with the moral motives that
regulate our relations and conduct towards our fellow men. It is
frequently attended with excessive activity. of one or more of
the animal propensities.
2. Imbecility differs from idiocy in this, that the subjects of
the former possess some intellectual capacity, though inferior in
degree to that possessed by the great mass of mankind; while
those of the latter are utterly destitute of reason. Imbecility
differs also from stupidity. (q. v.) The former consists in a
defect of the mind, which renders it unable to examine the data
presented to it by the senses, and therefrom to deduce the
correct judgment; that is, a defect of intensity, or reflective
power. The latter is occasioned by a want of intensity, or
perceptive power.
3. There are various degrees of this disease. It has been
attempted to classify the degrees of imbecility, but the careful
observer of nature will perhaps be soon satisfied that the shades
of difference between one species and another, are almost
imperceptible. Ray, Med. Jur. ch. 3; 2 Beck, Med. Jur. 550, 542;
1 Hagg. Ecc. R. 384; 2 Philm. R. 449; 1 Litt. R. 252, 5 John.
Ch. R. 161; 1 Litt. R. 101; Des Maladies mentales, consider‚es
dans leurs rapports avec la legislation civille et criminelle, 8;
Georget, Discussion medico-l‚gale sur la folie, 140.
IMMATERIAL. What is not essential; unimportant what is not
requisite; what is informal; as, an immaterial averment, an
immaterial issue.
2. When a witness deposes to something immaterial, which is
false, although he is guilty of perjury in foro conscientiae, he
cannot be punished for perjury. 2 Russ. on Cr. 521; 1 Hawk. b.
1, c. 69, s. 8; Bac. Ab. Perjury, A.
IMMATERIAL AVERMENT. One alleging with needless particularity
or unnecessary circumstances, what is material and requisite, and
which, properly, might have been stated more generally, or
without such circumstances or particulars; or, in other words,
it, is a statement of unnecessary particulars, in connexion with,
and as descriptive of, what is material. Gould on Pl. c. 3, §186.
2. It is highly improper to introduce immaterial averments,
because, when they are made, they must be proved; as, if, a
plaintiff declare for rent on a demise which is described as
reserving a certain annual rent, payable "by four even and equal
quarterly payments," &c.; and on the trial it appears that there
was no stipulation with regard to the time or times of payment of
the rents, the plaintiff cannot recover. The averment as to the
time, though it need not have been made, yet it must be proved,
and the plaintiff having failed in this, he cannot recover; as
there is a variance between the contract declared upon and the
contract proved. Dougl. 665.
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3. But when the immaterial averment is such that it may be
struck out of the declaration, without striking out at the same
time the cause of action, and when there is no variance between
the contract as, laid in the declaration and that proved,
immaterial averments then need not be proved. Gould on Pl. C. 3,
§188.
lMMATERIAL ISSUE. One taken on a point not proper to decide the
action; for example, if in an action of debt on bond,
conditioned for the payment of ten dollars and fifty cents at a
certain day, the defend ant pleads the payment of ten dollars
according to the form of the condition, and the plaintiff,
instead of demurring, tenders issue upon the payment, it is
manifest that, whether this issue be found for the plaintiff or
the defendant, it will remain equally uncertain whether the
plaintiff is entitled to maintain his action, or not; for, in an
action for the penalty of a bond, conditioned to pay a certain
sum, the only material question is, whether the exact sum were
paid or not, and the question of payment of a part is a question
quite beside the legal merits. Hob. 113; 5 Taunt. 386.
IMMEDIATE. That which is produced directly by the act to which
it is ascribed, without the intervention or agency of any
distinct intermediate cause.
2. For immediate injuries the remedy is trespass; for those
which are consequential, an action on the case. 11 Mass. R. 59,
137, 525; 1 & 2 Ohio R. 342; 6 S. & R. 348; 18 John. 257; 19
John. 381; 2 H. & M. 423; 1 Yeates, R. 586; 12 S & R. 210;
Coxe, R. 339; Harper's R. 113; 6 Call's R . 44; 1 Marsh. R.
194.
3. When an immediate injury is caused by negligence, the
injured party may elect to regard the negligence as the immediate
cause of action, and declare in case; or to consider the act
itself as the immediate injury, and sue in trespass. 14 John.
432; 6 Cowen, 342; 3 N. H. Rep. 465; sed vide 3 Conn. 64; 2
Bos. & Pull. New Rep. by Day, 448, note. See Cause.
IMMEMORIAL. That which commences beyond the time of memory.
Vide Memory, time of.
IMMEMORIAL POSSESSION. In Louisiana, by this term is understood
that of which no man living has seen the beginning, and the
existence of which he has learned from his elders. Civ. Code of
Lo. art. 762; 2 M. R. 214; 7 L. R. 46; 3 Toull. p. 410; Poth.
Contr. de Societ‚, n. 244; 3 Bouv. Inst. n. 3069, note.
IMMIGRATION. The removing into one place from another. It
differs from emigration, which is the moving from one place into
another. Vide Emigration.
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IMMORAL CONSIDERATION. One contrary to good morals, and
therefore invalid. See Moral obligation.
IMMORALITY. that which is contra bonos mores. In England, it is
not punishable in some cases, at the common law, on, account of
the ecclesiastical jurisdictions: e. g. adultery. But except in
cases belonging to the ecclesiastical courts, the court of king's
bench is the custom morum, and may punish delicto contra bonos
mores. 3 Burr. Rep. 1438; 1 Bl. Rep. 94; 2 Strange, 788. In
Pennsylvania, and most, if not all the United States, all such
cases come under one and the same jurisdiction.
2. Immoral contracts are generally void; an agreement in
consideration of future illicit cohabitation between the parties;
3 Burr. 1568; S. C. 1 Bl. Rep. 517; 1 Esp. R. 13; 1 B. & P.
340, 341; an agreement for the value of libelous and immoral
pictures, 4 Esp. R. 97; or for printing a libel, 2 Stark. R.
107; or for an immoral wager, Chit. Contr. 156, cannot,
therefore, be enforced. For whatever arises from an immoral or
illegal consideration, is void: quid turpi ex causa promissum
est non valet. Inst. 3, 20, 24.
3. It is a general rule, that whenever an agreement appears to
be illegal, immoral, or against public policy, a court of justice
leaves the parties where it finds them; when the agreement has
been executed, the court will not rescind it; when executory,
the count will not help the execution. 4 Ohio R. 419; 4 John. R.
419; 11 John. R. 388; 12 John. R. 306; 19 John. R. 341; 3
Cowen's R. 213; 2 Wils. R. 341.
IMMOVABLES, civil law. Things are movable or immovable.
Immovables, res immobiles, are things in general, such as cannot
move themselves or be removed from one place to another. But this
definition, strictly speaking, is applicable only to such things
as are immovable by their own nature, and not to such as are so
only by the destination of the law.
2. There are things immovable by their nature, others by their
destination, and others by the objects to which they are applied.
3. - 1. Lands and buildings or other constructions, whether
they have their foundations in the soil or not, are immovable by
their nature. By the common law, buildings erected on the land
are not considered real estate, unless they have been let into,
or united to the land, or to substances previously connected
therewith. Ferard on Fixt. 2.
4. - 2. Things, which the owner of the land has placed upon it
for its service and improvement, are immovables by destination,
as seeds, plants, fodder, manure, pigeons in a pigeon-house,
bee-hives, and the like. By the common. law, erections with or
without a foundation, when made for the purpose of trade, are
considered personal estate. 2 Pet. S. C. Rep. 137; 3 Atk. 13;
Ambl. 113
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5. - 3. A servitude established on real estate, is an instance
of an immovable, which is so considered in consequence of the
object to which it is applied. Vide Civil Code of Louis. B. 2, t.
1, c. 2, art. 453-463; Poth. Des Choses, §1; Poth. de la
Communante, n. 25, et seq; Clef des Lois Romaines, mot
Immeubles.
IMMUNITY. An exemption from serving in an office, or performing
duties which the law generally requires other citizens to
perform. Vide Dig. lib. 50, t. 6; 1 Chit. Cr. L. 821; 4 Har. &
M'Hen. 341.
IMMUTABLE. What cannot be removed, what is unchangeable. The
laws of God being perfect, are immutable, but no human law can be
so considered.
IMPAIRING THE OBLIGATION OF CONTRACTS. The Constitution of the
United States, art. 1, s. 9, cl. 1, declares that no state shall
"pass any bill of attainder, ex post facto law, or law impairing
the obligation of contracts."
2. Contracts, when considered in relation to their effects, are
executed, that is, by transfer of the possession of the thing
contracted for; or they are executory, which gives only a right
of action for the subject of the contract. Contracts are also
express or implied. The constitution makes no distinction between
one class of contracts and the other. 6 Cranch, 135; 7 Cranch,
164.
3. The obligation of a contract here spoken of is a legal, not
a mere moral obligation; it is the law which binds the party to
perform his undertaking. The obligation does not inhere or
subsist in the contract itself, proprio vigore, but in the law
appli- cable to the contract. 4 Wheat. R. 197; 12 Wheat. R. 318;
and. this law is not the universal law of nations, but it is the
law of the state where the contract is made. 12 Wheat. R. 213.
Any law which enlarges, abridges, or in any manner changes the
intention of the parties, resulting from the stipulations in the
contract, necessarily impairs it. 12 Wheat. 256; Id. 327; 3
Wash. C. C. Rep. 319; 8 Wheat. 84; 4 Wheat. 197.
4. The constitution forbids the states to pass any law
impairing the obligation of contracts, but there is nothing in
that instrument which prohibits Congress from passing such a law.
Pet. C. C. R. 322. Vide, generally, Story on the Const. §1368 to
1891 Serg. Const. Law, 356; Rawle on the Const. h. t.; Dane's
Ab. Index, h. t.; 10 Am. Jur. 273-297.
TO IMPANEL, practice. The writing the names of a jury on a
schedule, by the sheriff or other officer lawfully authorized.
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IMPARLANCE, pleading and practice. Imparlance, from the French,
parler, to speak, or licentia loquendi, in its most general
signification, means time given by the court to either party to
answer the pleading of his opponent, as either, to plead, reply,
rejoin, &c., and is said to be nothing else but the continuance
of the cause till a further day. Bac. Abr. Pleas, C. But the more
common signification of the term is time to plead. 2 Saund. 1, n.
2; 2 Show. 3 10; Barnes, 346; Lawes, Civ. Pl. 93, 94.
2. Imparlances are of three descriptions: First. A common or
general imparlance. Secondly. A special imparlance. Thirdly. A
general special imparlance.
3. - 1. A general imparlance is the entry of a general prayer.
and allowance of time to plead till the next term, without
reserving to the defendant the benefit of any exception; so
that, after such an imparlance, the defendant cannot object to
the jurisdiction of the court, or plead any matter in abatement.
This kind of imparlance is always from one term to another.
4.-2. A special imparlance reserves to the defendant all
exception to the writ, bill, or count; and, therefore, after it,
the defendant may plead in abatement, though not to the
jurisdiction of the court.
5. - 3. A general special imparlance contains a saving of all
exceptions whatsoever, so that the defendant, after this, may
plead, not only in abatement, but he may also plead a plea which
affects the jurisdiction of the court, as privilege. He cannot,
however, plead a tender, and that he was always ready to pay,
because, by craving time, he admits he is not ready, and so
falsifies his plea. Tidd's Pr. 418, 419. The last two kinds of
imparlances are, it seems, sometimes from one day to another in
the same term. See, in general, Com. Dig Abatement, I 19, 20, 21;
1 Chit. Pl. 420; Bac. Abr. Pleas, C; 14 Vin. Abr. 335; Com.
Dig. Pleader, D; 1 Sell. Pr. 265; Doct. Pl. 291; Encycl. de M.
D'Alembert, art. Delai (Jurisp.)
IMPEACHMENT, const. law, punishments. Under the constitution
and laws of the United States, an impeachment may be described to
be a written accusation, by the house of representatives of the
United States, to the senate of the United States, against an
officer. The presentment, written accusation, is called articles
of impeachment.
2. The constitution declares that the house of representatives
shall have the sole power of impeachment art. 1, s. 2, cl. 5 and
that the senate shall have the sole power to try all
impeachments. Art. 1, s. 3, cl. 6.
3. The persons liable to impeachment are the president,
vice-president, and all civil officers of the United States. Art.
2, s. 4. A question arose upon an impeachment before the senate,
in 1799, whether a senator was a civil officer of the United
States, within the purview of this section of the constitution,
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and it was decided by the senate, by a vote of fourteen against
eleven, that he was not. Senate Journ., January 10th, 1799;
Story on Const. §791; Rawle on Const. 213, 214 Serg. Const. Law,
376.
4. The offences for which a guilty officer may be impeached
are, treason, bribery, and other high crimes and misdemeanors.
Art. 2, s. 4. The constitution defines the crime of treason. Art.
3, s. 3. Recourse must be had to the common law for a definition
of bribery. Not having particularly mentioned what is to be
understood by "other high crimes and misdemeanors," resort, it is
presumed, must be had to parliamentary practice, and the common
law, in order to ascertain what they are. Story, §795.
5. The mode of proceeding, in the institution and trial of
impeachments, is as follows: When a person who may be legally
impeached has been guilty, or is supposed to have been guilty, of
some malversation in office, a resolution is generally brought
forward by a member of the house of representatives, either to
accuse the party, or for a committee of inquiry. If the committee
report adversely to the party accused, they give a statement of
the charges, and recommend that he be impeached; when the
resolution is adopted by the house, a committee is appointed to
impeach the party at the bar of the senate, and to state that the
articles of impeachment against him will be exhibited in due
time, and made good before the senate, and to demand that the
senate take order for the appearance of the party to answer to
the impeachment. The house then agree upon the articles of
impeachment, and they are presented to the senate by a committee
appointed by the house to prosecute the impeachment; the senate
then issues process, summoning the party to appear at a given day
before them, to answer to the articles. The process is served by
the sergeant-at-arms of the senate, and a return is made of it to
the senate, under oath. On the return-day of the process, the
senate resolves itself into a court of impeacmment, and the
senators are sworn to do justice, according to the constitution
and laws. The person impeached is called to answer, and either
appears or does not appear. If he does not appear, his default is
recorded, and the senate may proceed ex parte. If he does appear,
either by himself or attorney, the parties are required to form
an issue, and a time is then assigned for the trial. The
proceedings on the trial are conducted substantially as they are
upon common judicial trials. If any debates arise among the
senators, they are conducted in secret, and the final decision is
given by yeas and nays; but no person can be convicted without
the concurrence of two-thirds of the members present. Const. art.
1, s. 2, cl. 6.
6. When the president is tried, the chief justice shall
preside. The judgment, in cases of impeachment shall not extend
further than to removal from office, and disqualification to hold
and enjoy any office of honor, trust, or profit under the United
States. Proceedings on impeachments under the state constitutions
are somewhat similar. Vide Courts of the United States.
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IMPEACHMENT, evidence. An allegation, supported by proof, that
a witness who has been examined is unworthy of credit.
2. Every witness is liable to be impeached as to his character
for truth; and, if his general character is good, he is
presumed, at all times, to be ready to support it. 3 Bouv. Inst.
n. 3224, et seq.
IMPEACHMENT OF WASTE. It signifies a restraint from committing
waste upon lands or tenements; or a demand of compensation for
waste done by a tenant who has but a particular estate in the
land granted, and, therefore, no right to commit waste.
2. All tenants for life, or any less estate, are liable to be
impeached for waste, unless they hold without impeachment of
waste; in the latter case, they may commit waste without being
questioned, or any demand for compensation for the waste done. 11
Co. 82.
IMPEDIMENTS, contracts. Legal objections to the making of a
contract. Impediments which relate to the person are those of
minority, want of reason, coverture, and the like; they are
sometimes called disabilities. Vide Incapacity.
2. In the civil law, this term is used to signify bars to a
marriage. These impediments are classed, as they are applied to
particular persons, into absolute and relative; as they relate
to the contract and its validity, they are dirimant (q. v.) and
prohibitive. (q. v.) 1. The absolute impediments are those which
prevent the person subject to them from marrying at, all, without
either the nullity of marriage, or, its being punishable. 2. The
relative impediments are those which regard only certain persons
with regard to each other; as, the marriage of a brother to a
sister. 3. The dirimant impediments are those which render a
marriage void; as, where one of the contracting parties is
already married to another person. 4. Prohibitive impediments are
those which do not render the marriage null, but subject the
parties to a punishment. Bowy. Mod. Civ. Law, 44, 45.
IMPERFECT. That which is incomplete.
2. This term is applied to rights and obligations. A man has a
right to be relieved by his fellow-creatures, when in distress;
but this right he cannot enforce by law; hence it is called an
imperfect right. On the other hand, we are bound to be grateful
for favors received, but we cannot be compelled to perform such
imperfect obligations. Vide Poth. Ob. arc. Pr‚liminaire; Vattel,
Dr. des Gens, Prel. notes, §17; and Obligations.
IMPERIUM. The right to command, which includes the right to
employ the force of the state to enforce the laws; this is one
of the principal attributes of the power of the executive. 1
Toull. n. 58.
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IMPERTINENT, practice, pleading. What does not appertain, or
belong to; id est, qui ad rem non pertinet.
2. Evidence of facts which do not belong to the matter in
question, is impertinent and inadmissible. In general, what is
immaterial is impertinent, and what is material is, in general,
not impertinent. 1 McC. & Y. 337. See Gresl. Ev. Ch. 3, s. 1, p.
229. Impertinent matter, in a declaration or other pleading is
that which does not belong to the subject; in such case it is
considered as mere surplusage, (q. v.) and is rejected. Ham. N.
P. 25. Vide 2 Ves. 24; 5 Madd. R. 450; Newl. Pr. 38; 2 Ves.
631; 5 Ves. 656; 18 Eng. Com. Law R. 201; Eden on Inj. 71.
3. There is a difference between matter merely impertinent and
that which is scandalous; matter may be impertinent, without
being scandalous; but if it is scandalous, it must be
impertinent.
4. In equity a bill cannot, according to the general practice,
be referred for impertinence after the defendant has answered or
submitted to answer, but it may be referred for scandal at any
time, and even upon the application of a stranger to the suit.
Coop. Eq. Pl. 19; 2 Ves. 631; 6 Ves. 514; Story, Eq. Pl. §270.
Vide Gresl. Eq. Ev. p. 2, c. 3, s, 1; 1 John. Ch. R. 103; 1
Paige's R. 555; I Edw. R. 350; 11 Price, R. 111; 5 Paige's R.
522; 1 Russ. & My. 28; Bouv. Inst. Index, h. t.; Scandal.
IMPETRATION. The obtaining anything by prayer or petition. In
the ancient English statutes, it signifies a pre-obtaining of
church benefices in England from the church of Rome, which
belonged to the gift of the king, or other lay patrons.
TO IMPLEAD, practice. To sue or prosecute by due course of law.
9 Watts, 47.
IMPLEMENTS. Such things as are used or employed for a trade, or
furniture of a house.
IMIPLICATA, mar. law. In order to avoid the risk of making
fruitless voyages, merchants have been in the habit of receiving
small adventures on freight at so much per cent, to which they
are entitled at all events, even if the adventure be lost. This
is what the Italians call implicata. Targa, chap. 34 Emer. Mar.
Loans, s. 5.
IMPLICATION. An inference of something not directly declared,
but arising from what is admitted or expressed.
2. It is a rule that when the law gives anything to a man, it
gives him by implication all that is necessary for its enjoyment.
It is also a rule that when a man accepts an office, he
undertakes by implication to use it according to law, and by
non-user he may forfeit it. 2 B1. Com. 152.
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3. An estate in fee simple will pass by implication; 6 John..
R. 185; IS John. R. 31; 2 Binn. R. 464, 532; such implication
must not only be a possible or probable one, but it must be plain
and necessary that is, so strong a probability of intention that
an intention contrary to that imputed to the testator cannot be
supposed. 1 Ves. & B. 466; Willes, 141; 1 Ves. jr. 564; 14
John. R. 198. Vide, generally, Com. Dig. Estates by Devise, N 12,
13; 2 Rop. Leg. 342; 14 Vin. Ab. 341; 5 Ves. 805; 5 Ves. 582;
3 Ves. 676.
IMPORTATION, comm. law. The act of bringing goods and
merchandise into the United States from a foreign country. 9
Cranch, 104, 120; 5 Cranch, 368; 2 Mann. & Gr. 155, note a.
2. To prevent the mischievous interference of the several
states with the national commerce, the constitution of the United
States, art. 1, s. 10, provides as follows: "No state shall,
without the consent of the congress, lay any imposts or duties on
imports or exports, except what may be absolutely necessary for
executing its inspection laws, and the net produce of all duties
and imposts, laid by any state on imports or exports, shall be
for the use of the treasury of the United States; and all such
laws shall be subject to the revision and control of the
congress."
3. This apparently plain provision has received a judicial
construction. In the year 1821, the legislature of Maryland
passed an act requiring that all importers of foreign articles,
commodities, &c., by the bale or package, of wine, rum, &c., and
other persons selling the same by wholesale, bale or package,
hogshead, barrel or tierce, should, before they were authorized
to sell, take out a license for which they were to pay fifty
dollars, under certain penalties. A question arose whether this
act was or was not a violation of the constitution of the United
States, and particularly of the above clause, and the supreme
court decided against the constitutionality of the law. 12 Wheat.
419.
4. The act of congress of March 1, 1817, 3 Story, L. U. S.
1622, provides:
5. - §1. That, after the 30th day of September next, no goods,
wares, or merchandise, shall be imported into the United States
from any foreign port or place, except in vessels of the United
States, or in such foreign vessels as truly or wholly belong to
the citizens or subjects of that country of which the goods are
the growth, production or manufacture; or from which such goods,
wares or merchandise, can only be or most usually are, first
shipped for transportation: Provided, nevertheless, That this
regulation shall not extend to the vessels of any foreign nation
which has not adopted, and which shall not adopt a similar
regulation.
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6. - §2. That all goods, wares or merchandise, imported into
the United States contrary to the true intent and meaning of this
act, and the ship or vessel wherein the same shall be imported,
together with her cargo, tackle, apparel, and furniture, shall be
forfeited to the United States and such goods, wares, or
merchandise, ship, or vessel, and cargo, shall be liable to be
seized, prosecuted, and condemned, in like manner, and under the
same regulations, restrictions, and provisions, as have been
heretofore established for the recovery, collection,
distribution, and remission, of forfeitures to the United States
by the several revenue laws.
7. - §4. That no goods, wares, or merchandise, shall, be
imported, under penalty of forfeiture thereof, from one port of
the United States to another port of the United States, in a
vessel belonging wholly or in part to a subject of any foreign
power; but this clause shall not be construed to prohibit the
sailing of any foreign vessel from one to another port of the
United States, provided no goods, wares, or mere other than those
imported in such vessel from some foreign port, and which shall
not have been unladen, shall be carried from one port or place to
another in the United States.
8. - §6. That after the 30th day of September next, there shall
be paid upon every ship or vessel of the United States, which
shall be entered in the United States from any foreign port or
place, unless the officers, and at least two-thirds of the crew
thereof, shall be proved citizens of the United States, or
persons not the Subjects of any foreign prince or state, to the
satisfaction of the collector, fifty cents per ton: And provided
also, that this section shall not extend to ships or vessels of
the United States, which are now on foreign voyages, or which may
depart from the United States prior to the first day of May next,
until after their return to some port of the United States.
9.- §7. That the several bounties and remissions, or abatements
of duty, allowed by this act, in the case of vessels having a
certain proportion of seamen who are American citizens, or
persons not the subjects of any foreign power, shall be allowed
only, in the case of vessels having such proportion of American
seamen during their whole voyage, unless in case of sickness,
death or desertion, or where the whole or part of the crew shall
have been taken prisoners in the voyage. Vide article Entry of
goods at the Custom-house.
IMPORTS. Importations; as no state shall lay any duties on
imports or exports. Const. U. S. Art. 1, s. 10; 7 How. U. S.
Rep. 477.
IMPORTUNITY. Urgent solicitation, with troublesome frequency
and pertinacity.
2. Wills and devises are sometimes set aside in consequence of
the importunity of those who have procured them. Whenever the
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importunity is such as to deprive the devisor of the freedom, of
his will, the devise becomes fraudulent and void. Dane's Ab. ch.
127, a. 14, s. 5, 6, 7; 2 Phillim. R. 551, 2.
IMPOSITIONS. Imposts, taxes, or contributions.
IMPOSSIBILITY. The character of that which. cannot be done
agreeably to the accustomed order of nature.
2. It is a maxim that no one is bound to perform an
impossibility. A l'impossible nul n'est tenu. 1 Swift's Dig. 93;
6 Toull. n. 121, 481.
3. As to impossible conditions in contracts, see Bac. Ab.
Conditions, M; Co. Litt. 206; Roll. Ab. 420; 6 Toull. n. 486,
686; Dig. 2, 14, 39; Id. 44, 7, 31; Id. 50, 17, 185; Id. 45,
1, 69. On the subject of impossible conditions in wills, vide 1
Rop. Leg. 505; Swinb. pt. 4, s. 6; 6 Toull. 614. Vide,
generally, Dane's Ab. Index, h. t.; Clef des Lois Rom. par
Fieff‚ Lacroix, h. t.; Com. Dig. Conditions, D 1 & 2; Vin. Ab.
Conditions, C a, D a, E a.
IMPOSTS. This word is sometimes used to signify taxes, or
duties, or impositions; and, sometimes, in the more restrained
sense of a duty on imported goods and merchandise . The
Federalist, No. 30; 3 Elliott's Debates, 289; Story, Const.
§949.
2. The Constitution of the United States, art. 1, s. 8, n. 1,
gives power to congress "to lay and collect taxes, duties,
imposts and excises." And art. 1, s. 10, n. 2, directs that "no
state shall, without the consent of congress, lay any imposts, or
duties on imports or exports, except what may be absolutely
necessary for executing its inspection laws." See Bac. Ab.
Smuggling, B; 2 Inst. 62; Dy. 165 n.; Sir John Davis on
Imposition.
IMPOTENCE, med. jur. The incapacity for copulation or
propagating the species. It has also been used synonymously with
sterility.
2. Impotence may be considered as incurable, ourable,
accidental or temporary. Absolute or incurable impotence, is that
for which there is no known relief, principally originating in
some malformation or defect of the genital organs. Where this
defect existed at the time of the marriage, and was incurable, by
the ecclesiastical law and the law of several of the American
states, the marriage may be declared void ab initio. Com. Dig.
Baron and Feme, C 3; Bac. Ab. Marriage, &c., E 3; 1 Bl. Com.
440; Beck's Med. Jur. 67; Code, lib. 5, t. 17, l. 10; Poynt.
on Marr. and Div. ch. 8; 5 Paige, 554; Merl. R‚p. mot
Impuissance. But it seems the party naturally impotent cannot
allege that fact for the purpose of obtaining a divorce. 3
Phillim. R. 147; S. C. 1 Eng. Eccl. R. 384. See 3 Phillim. R.
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325; S. C. 1 Eng. Eccl. R. 408; 1 Chit. Med. Jur. 877; 1 Par.
& Fonbl. 172, 173. note d; Ryan's Med. Jur. 95. to 111; 1 Bl.
Com. 440; 2 Phillm. R. 10; 1 Hagg. R. 725. See, as to the signs
of impotence, 1 Briand, M‚d. L‚g. c. 2, art. 2, §2, n. 1;
Dictionnaire des Sciences M‚dicales, art. Impuissance; and,
generally, Trebuchet, Jur. de la. Med. 100, 101, 102; 1 State
Tr. 315; 8 State Tr. App. No. 1, p. 23; 3 Phillm. R. 147; 1
Hagg. Eccl. R. 523; Foder‚, M‚d. L‚g. §237.
IMPRESCRIPTIBILITY. The state of being incapable of
prescription.
2. A property which is held in trust is imprescriptible; that
is the trustee cannot acquire a title to it by prescription; nor
can the borrower of a thing get a right to it by any lapse of
time, unless he claims an adverse right to it during the time
required by law.
IMPRIMATUR. A license or allowance to one to print.
2. At one time, before a book could be printed in England, it
was requisite that a permission should be obtained that
permission was called an imprimatur. In some countries where the
press is liable to censure, an imprimatur is required.
IMPRIMERY. In some of the ancient English statutes this word is
used to signify a printing-office, the art of printing, a print
or impression.
IMPRIMIS. In the first place; as, imprimis, I direct my just
debts to be paid. See Item.
IMPRISONMENT. The restraint of a person contrary to his will. 2
Inst. 589; Baldw. Rep. 239, 600. Imprisonment is either lawful
or unlawful; lawful imprisonment is used either for crimes or
for the appearance of a party in a civil suit, or on arrest in
execution.
2. Imprisonment for crimes is either for the appearance of a
person accused, as when he cannot give bail; or it is the effect
of a sentence, and then it is a part of the punishnient.
3. Imprisonment in civil cases takes place when a defendant on
being sued on bailable process refuses or cannot give the bail
legally demanded, or is under a capias ad satisfaciendum, when he
is taken in execution under a judgment. An unlawful imprisonment,
commonly called false imprisonment, (q. v.) meaus any illegal
imprisonment whatever, either with or without process, or under
color of process wholly illegal, without regard to any question
whether any crime has been committed or a debt due.
4. As to what will amount to an imprisonment, the most obvious
modes are confinement in a prison or a private house, but a
forcible detention in the street, or the touching of a person by
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a peace officer by way of arrest, are also imprisonments. Bac.
Ab. Trespass, D 3; 1 Esp. R. 431, 526. It has been decided that
lifting up a person in his chair, and carrying him out of the
room in which he was sitting with others, and excluding him from
the room, was not an imprisonment; 1 Chit. Pr. 48; and the
merely giving charge of a person to a peace officer, not followed
by any actual apprehension of the person, does not amount to an
imprisonment, though the party to avoid it, next day attend at a
police; 1 Esp. R. 431; New Rep. 211; 1 Carr. & Pavn. 153; S.
C. II Eng. Com. Law, R. 351; and if, in consequence of a message
from a sheriff's officer holding a writ, the defendant execute
and send him a bail bond, such submission to the process will not
constitute an arrest. 6 Bar. & Cres. 528; S. C. 13 Eng. Com. Law
Rep. 245; Dowl. & R. 233. Vide, generally, 14 Vin. Ab. 342; 4
Com. Dig. 618; 1 Chit. Pr. 47; Merl. R‚pert. mot Emprisonment;
17 Eng. Com. L. R. 246, n.
IMPROBATION. The act by which perjury or falsehood is proved.
Techn. Dict. h. t.
IMPROPRIATION, eccl. law. The act, of employing the revenues of
a church living to one's own use; it is also a parsonage or
ecclesiastical living in the hands of a layman, or which descends
by inheritance. Techn. Dict. h. t.
IMPROVEMENT, estates. This term is of doubtful meaning It would
seem to apply principally to buildings, though generally it
extends to amelioration of every description of property, whether
real or personal; it is generally explained by other words.
2. Where, by the terms of a lease, the covenant was to 1eave at
the end of the term a water-mill with all the fixtures,
fastenings, and improvements, during the demise fixed, fastened,
or set up on or upon the premises, in good plight and condition,
it was held to include a pair of new millstones set up by the
lessee during the term, although the custom of the country in
general authorized the tenant to remove them. 9 Bing. 24; 3 Sim.
450; 2 Ves. & Bea. 349. Vide 3 Yeates, 71; Addis. R. 335; 4
Binn. R. 418; 5 Binn. R. 77; 5 S. & R. 266; 1 Binn. R. 495; 1
John. Ch. R. 450; 15 Pick. R. 471. Vide Profits. 2 Man. & Gra.
729, 757; S. C. 40 Eng. C. L. R. 598, 612.
3. Tenants in common are not bound to pay for permanent
improvements, made on the common property, by one of the tenants
in common without their consent. 2 Bouv. Inst. n. 1881.
IMPROVEMENT, rights. An addition of some useful thing to a
machine, manufacture or composition of matter.
2. The patent law of July 4, 1836, authorizes the granting of a
patent for any new and useful improvement on any art, machine
manufacture or composition of matter. Sect. 6. It is often very
difficult to say what is a new and useful improvement, the cases
often approach very near to each other. In the present improved
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state of machinery, it is almost impracticable not to employ the
same elements of motion, and in some particulars, the same manner
of operation, to produce any new effect. 1 Gallis. 478; 2
Gallis. 51. See 4 B. & Ald. 540; 2 Kent, Com. 370.
IMPUBER, civil law. One who is more than seven years old, or
out of infancy, and who has not attained the age of an adult, (q.
v.) and who is not yet in his puberty that is, if a boy, till he
has attained his full age of fourteen years, and, if a girl, her
full age of twelve years. Domat, Liv. Prel. t. 2, s. 2, n. 8.
IMPUNITY. Not being punished for a crime or misdemeanor
committed. The impunity of crimes is one of the most prolific
sources whence they arise. lmpunitas continuum affectum tribuit
delinquenti. 4 Co. 45, a; 5 Co. 109, a.
IMPUTATION. The judgment by which we declare that an agent is
the cause of his free action, or of the result of it, whether
good or ill. Wolff, §3.
IMPUTATION OF PAYMENT. This term is used in Louisiana to
signify the appropriation which is made of a payment, when the
debtor owes two debts to the creditor. Civ. Code of Lo. art. 2159
to 2262. See 3 N. S. 483; 6 N. S. 28; Id. 113: Poth. Ob. n.
539, 565, 570; Durant. Des Contr. Liv. 3, t. 3, §3, n. 191; 10
L. R. 232, 352; 7 Toull. n. 173, p. 246.
IN ALIO LOCO. In another place. Vide Cepit in alio loco.
IN ARTICULO MORTIS. In the article of death; at the point of
death. As to the effect of this condition on wills, see
Nuncupative; as to the testimony of such person, see Dying
declarations.
IN AUTRE DROIT. In another's right. An executor, administrator
or trustee, is said to have the property confided to him in such
character, in autre droit.
IN BLANK. This is generally applied to indorsements, as,
indorsements in blank, which is one not restricted, made by the
indorser simply writing his name. See Indorsement.
IN CHIEF. Evidence is said to be in chief when it is given in
support of the case opened by the leading counsel. Vide To Open -
Opening. The term is used to distinguish evidence of this nature
from evidence obtained on a cross-examination. (q. v.) 3 Chit.
890. By evidence in chief is sometimes meant that evidence, which
is given in contradistinction to evidence which is obtained on
the witness voir dire.
2. Evidence in chief should be confined to such matters as the
pleadings and the opening warrant, and a departure from this
rule, will be sometimes highly inconvenient, if not fatal.
Suppose, for example, that two assaults have been committed, one
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in January and the other. in February, and the plaintiff prove
his cause of action to have been the assault in January, he
cannot abandon that, and afterwards prove another committed in
February unless the pleadings and openings extend to both. 1
Campb R. 473. See also, 6 Carr. & P. 73; S. C. 25 E. C. L. R.
288; 1 Mood. & R. 282.
IN COMMENDAM. The state or condition of a church living, which
is void or vacant, and it is commended to the care of some one.
In, Louisiana, there is a species of partnership called a
partnership in commendam. Vide Commendam.
IN CUSTODIA LEGIS. In the custody of the law. In general, when
things are in custodia legis, they cannot be distrained, nor
otherwise interfered with by a private person.
IN ESSE. In being. A thing in existence. It is used in
opposition to enposse. A child in ventre sa mere is a thing in
posse; after he is born, he is in esse. Vide 1 Supp. to Ves. jr.
466; 2 Suppl. to Ves. jr. 155, 191. Vide Posse.
IN EXTREMIS. This phrase is used to denote the end of life;
as, a marriage in extremis, is one made at the end of life. Vide
Extremis.
IN FACIENDO. In doing, or in feasance. 2 Story, Eq. Jurisp.
§1308.
IN FAVOREM LIBERTATIS. In favor of liberty.
IN FAVOREM VITAE. In favor of life.
IN FIERI. In the course of execution; a thing commenced but
not completed. A record is said to be in fieri during the term of
the court, and, during that time, it may be amended or altered at
the sound discretion of the court. See 2 B. & Adol. 971.
IN FORMA PAUPERIS. In the character or form of a pauper. In
England, in some cases, when a poor person cannot afford to pay
the costs of a suit as it proceeds, he is exempted from such
payment, having obtained leave to sue in forma pauperis.
IN FORO CONSCIENTIAE. Before the tribunal of conscience;
conscientiously. This term is applied in opposition, to the
obligations which the law enforces.
2. In the sale of property, for example, the concealment of
facts by the vendee which may enhance the price, is wrong in foro
conscientiae, but there is no legal obligation on the part of the
vendee to disclose them, and the contract will be good if not
vitiated by fraud. Poth. Vent. part 2, c. 2, n. 233; 2 Wheat.
185, note c.
20 IN FRAUDEM LEGIS. In fraud of the law. Every thing done in
fraudem legis is void in law. 2 Ves. sen. 155, 156 Bouv. Inst. n.
585, 3834.
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IN GREMIO LEGIS. In the bosom of the law. This is a figurative
expression, by which is meant, that the subject is under the
protection of the law; as, where land is in abeyance.
IN GROSS. At large; not appurtenant or appendant, but annexed
to a man's per son: e. g. Common granted to a man and his heirs
by deed, is common in gross; or common in gross may be claimed
by prescriptive right. 2 Bl. Com. 34.
IN INVITUM. Against an unwilling party; against one who has
not given his consent. See Invito domino.
IN JUDICIO. In the course of trial; a course of legal
proceedings.
IN JURE. In law; according to law, rightfully. Bract. fol.
169, b.
IN LIMINE. In or at the beginning. This phrase is frequently
used; as, the courts are anxious to check crimes in limine.
IN LITEM, ad litem. For a suit; to the suit. Greenl. Ev. §348.
IN LOCO PARENTIS. In the place of a parent; as, the master
stands towards his apprentice in loco parentis.
IN MITIORI SENSU, construction. Formerly in actions of slander
it was a rule to take the expression used in mitiori sensu, in
the mildest acceptation; and ingenuity was, upon these
occasions, continually exercised to devise or discover a meaning
which by some remote possibility the speaker might have intended;
and some ludicrous examples of this ingenuity may be found. To
say of a man who was making his livelihood by buying and selling
merchandise, he is a base, broken rascal, he has broken twice,
and I'll make him break a third time, was gravely asserted not to
be actionable - "ne poet dar porter action, car poet estre intend
de burstness de belly," Latch, 114. And to call a man a thief was
declared to be no slander for this reason, "perhaps the speaker
might mean he had stolen a lady's heart."
2. The rule now is to construe words agreeably to the meaning
usually attached to them. 1 Nott & McCord, 217; 2 Nott & McCord,
511; 8 Mass. R. 248; 1 Wash. R. 152; Kirby, R. 12; 7 Serg. &
Rawle, 451; 2 Binn. 34; 3 Binn. 515.
IN MORA. In default. Vide mora, in.
IN NUBIBUS. In the clouds. This is a figurative expression to
signify a state of suspension or abeyance. 1 Co. 137.
IN NULLO EST ERRATUM, pleading. A plea to errors assigned on
proceedings in error, by which the defendant in error affirms
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there is no error in the record. As to the effect of, such plea,
see 1 Vent. 252; 1 Str. 684; 9 Mass. R. 532; 1 Burr. 410; T.
Ray. 231. It is a general rule that the plea in nullo est erratum
confesses the fact assigned for error; Yelv. 57; Dane's Ab.
Index, h. t.; but not a matter assigned contrary to the record.
7 Wend. 55; Bac. Ab. Error; G.
IN ODIUM SPOLIATORIS. In hatred of a despoiler. All things are
presumed against a despoiler or wrong doer in odium spoliatoris
omnia praesumuntur.
IN PARI CAUSA. In an equal cause. It is a rule that when two
persons have equal rights in relation to a particular thing, the
party in possession is considered as having the better right: in
pari causa possessor potior est. Dig. 50; 17, 128; 1 Bouv.
Inst. n. 952.
IN PARI DELICTO. In equal fault; equal in guilt. Neither
courts of law nor equity will interpose to grant relief to the
parties, when an illegal agreement has been made, and both
parties stand in pari delicto. The law leaves them where it finds
them, according to the maxim, in pari delicto potior est conditio
defendentis et possidendis. 1 Bouv. Inst. n. 769.
IN PARI MATERIA. Upon the same matter or subject. Statutes in
pari materia are to be construed together.
IN PERPETUAM REI MEMORIAM. For the perpetual memory or
remembrance of a thing. Gilb. For. Rom. 118.
IN PERSONAM, remedies. A remedy in personam, is one where the
proceedings are against the person, in contradistinction to those
which are against specific things, or in rem. (q. v.) 3 Bouv.
Inst. n. 2646.
IN POSSE. In possibility; not in actual existence; used in
contradistinction to in esse.
IN PRAESENTI. At the present time; used in opposition to in
futuro. A marriage contracted in words de praesenti is good; as,
I take Paul to be my hushand, is a good marriage, but words de
futuro would not be sufficient, unless the ceremony was followed
by consummation. 1 Bouv. Inst. n. 258.
IN PRINCIPIO. At the beginning this is frequently used in
citations; as Bac. Ab. Legacies, in pr.
IN PROPRIA PERSONA. In his own person; himself; as the
defendant appeared in propria persona; the plaintiff argued the
cause in propria persona.
IN RE. In the matter; as in re A B, in the matter of A B.
IN REBUS. In things, cases or matters.
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IN REM, remedies. This technical term is used to designate
proceedings or actions instituted against the thing, in
contradistinction to personal actions which are said to be in
personam. Proceedings in rem include not only judgments of
property as forfeited, or as prize in the admiralty, or the
English exchequer, but also the decisions of other courts upon
the personal status, or relations of the party, such as marriage,
divorce, bastardy, settlement, or the like. 1 Greenl. Ev. §§525,
541.
2. Courts of admiralty enforce the performance of a contract by
seizing into their custody the very subject of hypothecation;
for in these case's the parties are not personally bound, and the
proceedings are confined to the thing in specie. Bro. Civ. and
Adm. Law, 98; and see 2 Gall. R. 200; 3 T. R. 269, 270.
3. There are cases, however, where the remedy is either in
personam or in rem. Seamen, for example, may proceed against the
ship or cargo for their wages, and this is the most expeditious
mode; or they may proceed against the master or owners. 4 Burr.
1944; 2 Bro. C. & A. Law, 396. Vide, generally, 1 Phil. Ev. 254;
1 Stark. Ev. 228; Dane's Ab. h. t.; Serg. Const. Law, 202, 203,
212.
IN RERUM NATURA. In the nature of things; in existence.
IN SOLIDO. A term used in the civil law, to signify that a
contract is joint.
2. Obligations are in solido, first, between several creditors;
secondly, between several debters. 1. When a person contracts the
obligation of one and the same thing, in favor of several others,
each of these is only creditor for his own share, but he may
contract with each of them for the whole when such is the
intention of the parties, so that each of the persons in whose
favor the obligation is contracted, is creditor for the whole,
but that a payment made to any one liberates the debtor against
them all. This is called solidity of obligation. Poth. Obl. pt.
2, c. 3, art. 7. The common law is exactly the reverse of this,
for a general obligation in favor of several persons, is a joint
obligation to them all, unless the nature of the subject, or the
particularity of the expression lead to a different conclusion.
Evans' Poth. vol. 2, p. 56. See tit. Joint and Several; Parties
to action.
3. - 2. An obligation is contracted in solido on the part of
the debtors, when each of them is obliged for the whole, but so
that a payment made by one liberates them all. Poth. Obli. pt. 2,
c. 3, art. 7, s 1. See 9 M. R. 322; 5 L. R. 287; 2 N. S. 140;
3 L. R. 352; 4 N. S. 317; 5 L. R. 122; 12 M. R. 216; Burge on
Sur. 398-420.
IN STATU QUO. In the same situation; in the same place; as,
between the time of the submission and the time when the award
was rendered, things remained in statu quo.
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IN TERROREM. By way of threat, terror, or warning. For example,
when a legacy is given to a person upo condition not to dispute
the validity or the dispositions in wills and testaments, the
conditions are not in general obligatory, but only in terrorem;
if, therefore, there exist probabilis causa litigandi, the
non-observance of the conditions will not be a forfeiture. 2
Vern. 90; 1 Hill. Ab. 253; 3 P. Wms. 344; 1 Atk. 404. But when
the acquiescence of the legatee appears to be a material
ingredient in the gift, the bequest is only quousque the legatee
shall refrain from disturbing the will. 2 P. Wms. 52; 2 Ventr.
352. For cases of legacies given to a wife while she shall
continue unmarried, see 1 Madd. R. 590; 1 Rop. Leg. 558.
IN TERROREM POPULI. To the terror of the people. An indictment
for a riot is bad, unless it conclude in terrorem populi. 4 Carr.
& Payne, 373.
IN TOTIDEM VERhis. In just so many words; as, the legislature
has declared this to be a crime in totidem verhis.
IN TOTO. In the whole; wholly; completely; as, the award is
void in toto. In the whole the part is contained: in toto et
pars continetur. Dig. 50, 17, 123.
IN TRANSITU. During the transit, or removal from one place to
another.
2. The transit continues until the goods have arrived at their
place of destination, and nothing remains to be done to complete
the delivery; or until the goods have been delivered, before
reaching their place of destination, and the person entitled
takes an actual or symbolical possession. Vide Stoppage in
transitu; Transitus.
IN VADIO. In pledge; in gage.
IN VENTRE SA MERE. In his mother's womb.
2. - 1. In law a child is for all beneficial purposes
considered as born while in ventre sa mere. 5 T. R. 49; Co.
Litt. 36; 1 P. Wms. 329; Civ. Code of Lo. art. 948. But a
stranger can acquire no title by descent through a child in
ventre sa mere, who is not subsequently born alive. See Birth;
Dead Born.
3. - 2. Such a child is enabled to have an estate limited to
his use. 1. Bl. Com. 130.
4. - 3. May have a distributive share of intestate property. 1
Ves. 81.
5. - 4. Is capable of taking a devise of lands. 2 Atk. 117; 1
Freem. 224, 298.
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6. - 5. Takes under a marriage settlement a provision made for
children living at the death of the father. 1 Ves. 85.
7. - 6. Is capable of taking a legacy, and is entitled to a
share in a fund bequeathed to children under a general
description, of "children," or of "children living at the
testator's death." 2 H. Bl. 399; 2 Bro. C. C. 320; S. C. 2 Ves.
jr. 673; 1 Sim. & Stu. 181; 1 B. & P. 243; 5 T. R. 49. See,
also, 1 Ves. sr. 85; Id. 111; 1 P. Wms. 244, 341; 2 Bro. C. C.
63; Amb. 708, 711; 1 Salk. 229; 2 P. Wms. 446; 2 Atk. 114;
Pre. Ch. 50; 2 Vern. 710; 3 Ves. 486; 7 T. R. 100; 4 Ves.
322; Bac. Ab. Legacies, &c., A; 1 Rop. Leg. 52, 3; 5 Serg. &
Rawle, 40.
8. - 7. May be appointed executor. Bac. Ab. Infancy, B.
9. - 8. A bill may be brought in its behalf, and the court will
grant an injunction to stay waste. 2 Vern. 710 Pr. Ch. 50.
10. - 9. The mother, of a child in ventre sa mere may detain
writings on its behalf. 2 Vern. 710.
11. - 10. May have a guardian assigned to it. 1 Bl. Com. 130.
12. - 11. The destruction of such a child is a high
misdemeanor. 1 Bl. Com. 129, 130.
13. - 12. And the birth of a posthumous child amounts, in
Pennsylvania, to the revocation of a will previously executed, so
far as regards such child. 3 Binn. 498. See Coop. Just. 496. See,
as to the law of Virginia on this subject, 3 Munf. 20. Vide
Foetus.
IN WITNESS WHEREOF. These words, which, when conveyancing was
in the Latin language, were in cujus rei testimonium, are the
initial words of the concluding clause in deeds. " In witness
whereof the said parties have hereunto set their hands," &c.
INADEQUATE PRICE. This term is applied to indicate the want of
a sufficient consideration for a thing sold,or such a price as,
under ordinary circumstances, would be considered insufficient.
2. Inadequacy of price is frequently connected with fraud,
gross misrepresentations, or an intentional concealment of the
defects in the thing sold. In these cases it is clear the. vendor
cannot compel the buyer to fulfil the contract. 1 Lev. 111; 1
Bro. P. C. 187; 6 John. R. 110; 3 Cranch, 270; 4 Dall. R. 250;
3 Atk. 283; 1 Bro. C. C. 440.
3. In general, however, inadequacy of price is not sufficient
ground to avoid a contract, particularly' when the property has
been sold by auction. 7 Ves. jr. 30; 3 Bro. C. C. 228; 7 Ves.
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jr. 35, note. But if an uncertain consideration, as a life
annuity, be given for an estate, and the contract be executory,
equity, it seems, will enter into the adequacy of the
consideration. 7 Bro. P. C. 184; 1 Bro. C. C. 156. Vide. 1
Yeates, R. 312; Sugd. Vend. 189 to 199; 1 B. & B. 165; 1
M'Cord's Ch. R. 383, 389, 390; 4 Desaus. R. 651. Vide Price.
INADMIISSIBLE. What cannot be received. Parol evidence, for
example, is inadmissible to contradict a written agreement.
INALIENABLE. This word is applied to those things, the property
of which cannot be lawfully transferred from one person to
another. Public highways and rivers are of this kind; there are
also many rights which are inalienable, as the rights of liberty,
or of speech.
INAUGURATION. This word was applied by the Romans to the
ceremony of dedicating some temple, or raising some man to the
priesthood, after the augurs had been consulted. It was
afterwards applied to the installation (q. v.) of the emperors,
kings, and prelates, in imitation of the ceremonies of the Romans
when they entered into the temple of the augurs. It is applied in
the United States to the installation of the chief magistrate of
the republic, and of the governors of the several states.
INCAPACITY. The want of a quality legally to do, give,
transmit, or receive something.
2. It arises from nature, from the law, or from both. From
nature, when the party has not his senses, as, in the case of an
idiot; from the law, as, in the case of a bastard who cannot
inherit from nature and the law; as, in the case of a married
woman, who cannot make contracts or a will.
3. In general, the incapacity ceases with the cause which
produces it. If the idiot should obtain his senses, or the
married woman's hushand die, their incapacity would be at an end.
4. When a cause of action arises during the incapacity of a
person having the right to sue, the act of limitation does not,
in general, commence to run till the incapacity has been removed.
But two incapacities cannot be joined in order to come within the
statute.
INCENDIARY, crim. law. One who maliciously and wilfully sets
another person's house on fire; one guilty of the crime of
arson.
2. This offence is punished by the statute laws of the
different states according to their several provisions. The civil
law punished it with death, Dig. 47, 9, 12, 1, by the offender
being cast into the fire. Id. 48, 19, 28, 12; Code, 9, 1, 11.
Vide Dane's Ab. Index, h. t.
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INCEPTION. The commencement; the beginning. In making a will,
for example, the writing is its inception. 3 Co. 31 b; Plowd.
343. Vide Consummation; Progression.
INCEST. The carnal copulation of a man and a woman related to
each other in any of the degrees within which marriage is
prohibited by law. Vide Marriage. It is punished by fine and
imprisonment, under the laws of the respective states., Vide 1
Smith's Laws of Pennsylv. 26; Dane's Ab. Index, h. t.; Dig. 23,
2, 68; 6 Conn. R. 446; Penal Laws of China, B. 1, s. 2, §10;
Sw. part 2 §17, p. 103.
INCH. From the Latin uncia. A measure of length, containing
one-twelfth part of a foot.
INCHOATE. That which is not yet completed or finished.
Contracts are considered inchoate until they are executed by all
the parties who ought to have executed them. For example, a
covenant which purports to be tripartite, and is executed by only
two of the parties, is incomplete, and no one is bound by it. 2
Halst. 142. Vide Locus paenitentiae.
INCIDENT. A thing depending upon, appertaining to, or following
another, called the princinal.
2. The power of punishing for contempt is incident to a court
of record; rent is incident to a reversion; distress to rent;
estovers of woods to a tenancy for a life or years. 1 Inst. 151;
Noy's Max. n. 13; Vin. Ab. h.. t.; Dane's Ab. h. t.; Com. Dig.
h. t., and the references there; Bro. Ab. h. t.; Roll's Ab. 75.
INCIPITUR, practice. This word, which means "it is begun,"
signifies the commencement of the entry on the roll. on signing
judgment, &c.
INCLUSIVE. Comprehended in computation. In computing time, as
ten days from a particular time, one day is generally to be
included and one excluded. Vide article Exclusive, and the
authorities there cited.
INCOME. The gain which proceeds from property, labor, or
business; it is applied particularly to individuals; the income
of the government is usually called revenue.
2. It has been holden that a devise of the income of land, is
in effect the same as a devise of the land itself. 9 Mass. 372;
1 Ashm. 136.
INCOMPATIBILITY. offices, rights. This term is used to show
that two or more things ought not to exist at the same time in
the same person; for example, a man cannot at the same time be
landlord and tenant of the same land; heir and devise of the
same thing; trustee and cestui que trust of the same property.
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2. There are offices which are incompatible with each other by
constitutional provision; the vice-president of tho United
States cannot act as such when filling the office of president;
Const. art. 1, s. 3, n. 5; and by the same instrument, art . 1,
s. 6, n. 2, it is directed that "no senator or representative
shall, during the time for which he was elected, be appointed to
any civil office under the authority of the United States, which
shall have been created or the emoluments whereof shall have been
increased, during such time; and no person holding any office
under the United States, shall be a member of either house,
during his continuance in office."
3. Provisions rendering offices incompatible are to be found in
most of the, constitutions of the states, and in some of their
laws. In Pennsylvania, the acts of the 12th of February, 1802, 3
Smith's Laws of Pa. 485; and 6th of March, 1812, 5 Sm. L. Pa.
309, contain various provisions, making certain offices
incompatible, with each other. At common law, offices subordinate
and interfering with each other have been considered
incompatible; for example, a man cannot be at once a judge and
prothonotary or clerk of the same court. 4 Inst. 100. Vide 4 S. &
R. 277; 17 S. & R. 219; and the article Office.
INCOMPETENCY, French law. The state of a judge who cannot take
cognizance of a dispute brought before him; it implies a want of
jurisdiction.
2. Incompetency is material, ratione materia, or personal,
ratione personae. The first takes place when a judge takes
cognizance of a matter over which another judge has the sole
jurisdiction, and this cannot be cured by the appearance or
agreement of the parties.
3. The second is, when the matter in dispute is within the
jurisdiction of the judge, but the parties in the case are not;
in which case they make the judge competent, unless they make
their objection before they. take defence. See Peck, 374; 17
John. 13; 12 Conn. 88; 3 Cowen, Rep. 724; 1 Penn. 195; 4
Yeates, 446. When a party has a privilege which exempts him from
the jurisdiction, he may waive the privilege. 4 McCord, 79;
Wright, 484; 4 Mass. 593; Pet. C. C. R. 489; 5 Cranch, 288; 1
Pet. R. 449; 4 W. C. C. R. 84; 8 Wheat. 699; Merl. R‚p. mot
Incompet‚nce.
4. It is a maxim in the common law, aliquis non debet esse
judex in propriƒ causa. Co. Litt. 141, a; see 14 Vin. Abr. 573;
4 Com. Dig. 6. The greatest delicacy, is constantly observed on
the part of judges, so that they never act when there could be
the possibility of doubt whether they could be free from bias,
and even a distant degree of relationship has induced a judge to
decline interfering. 1 Knapp's Rep. 376. The slightest degree of
pecuniary interest is considered as an insuperable objection. But
at common law, interest forms the only ground for challenging a
judge. It is not a ground of challenge that he has given his
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opinion before. 4 Bin. 349; 2 Bin. 454. See 4 Mod. 226; Comb.
218; Hard. 44; Hob. 87; 2 Binn. R. 454; 13 Mass. R. 340; 5
Mass. R. 92; 6 Pick. 109; Peck, R. 374; Coxe, Rep. 190; 3
Ham. R. 289; 17 John. Rep. 133; 12 Conn. R. 88; 1 Penning R.
185; 4 Yeates, R. 466; 3 Cowen, R. 725; Salk. 396; Bac. Ab.
Courts, B; and the articles Competency; Credibility; Interest;
Judge; Witness.
INCOMPETENCY, evidence. The want of legal fitness, or ability
in a witness to be heard as such on the trial of a cause.
2. The objections to the competency (q. v.) of a witness are
four-fold. The first ground is the want of understanding; a
second is defect of religious principles; a third arises from
the conviction of certain crimes, or infamy of character; the
fourth is on account of interest. (q. v.) 1 Phil. Ev. 15.
INCONCLUSIVE. What does not put an end to a thing. Inconclusive
presumptions are those which may be overcome by opposing proof;
for example, the law presumes that he who possesses personal
property is the owner of it, but evidence is allowed to
contradict this presumption, and show who is the true owner. 3
Bouv. Inst. in. 3063.
INCONTINENCE Impudicity, the indulgence in unlawful carnal
connexions. Wolff, Dr. de la Nat. §862.
INCORPORATION. This term is frequently confounded, particularly
in the old books, with corporation. The distinction between them
is this, that by incorporation is understood the act by which a
corporation is created; by corporation is meant the body thus
created. Vide Corporation.
INCORPORATION, civil law. The union of one domain to another.
INCORPOREAL. Not consisting of matter.
2. Things incorporeal. are those which are not the object of
sense, which cannot be seen or felt, but which we can easily,
conceive in the understanding, as rights, actions, successions,
easements, and the like. Dig. lib. 6, t. 1; Id. lib. 41, t. 1,
l. 43, §1; Poth. Traite des Choses, §2.
INCORPOREAL HEREDITAMENT, title, estates. A right issuing out
of, or annexed unto a thing corporeal.
2. Their existence is merely in idea and abstracted
contemplation, though their effects and profits may be frequently
the objects of our bodily senses. Co Litt. 9 a; Poth. Traite des
Choses, §2. According to Sir William Blackstone, there are ten
kinds of incorporeal hereditamenta; namely, 1. Advowsons. 2.
Tithes. 3. Commons. 4. Ways. 5. Offices. 6. Dignities. 7.
Franchises. 8. Corodies. 9. Annuities. 10. Rents. 2 Bl. Com. 20.
3. But, in the United States, there, are no advowsons, tithes,
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dignities, nor corodies. The other's have no necessary connexion
with real estate, and are not hereditary, and, with the exception
of annuities, in some cases, cannot be transferred, and do not
descend.
INCORPOREAL PROPERTY, civil law. That which consists in legal
right merely; or, as the term is, in the common law, of choses
in actions. Vide Corporeal property.
TO INCULPATE. To accuse one of a crime or misdemeanor.
INCUMBENT, eccles. law. A clerk resident on his benefice with
cure; he is so called because he does, or ought to, bend the
whole of his studies to his duties. In common parlance, it
signifies one who is in the possession of an office, as, the
present incumbent.
INCUMBRANCE. Whatever is a lien upon an estate.
2. The right of a third person in the land in question to the
diminution of the value of the land, though consistent with the
passing of the fee by the deed of conveyance, is an incumbrance;
as, a public highway over the land. 1 Appl. R. 313; 2 Mass. 97;
10 Conn. 431. A private right of way. 15 Pick. 68; 5 Conn. 497.
A claim of dower. 22 Pick. 477; 2 Greenl. 22. Alien by judgment
or mortgage. 5 Greenl. 94; 15 Verm. 683. Or any outstanding,
elder, and better title, will be considered as incumbrances,
although in strictness some of them are rather estates than
incumbrances. 4 Mass. 630; 2 Greenl. 22; 22 Pick. 447; 5 Conn.
497; 8 Pick. 346; 15 Pick. 68; 13 John. 105; 5 Greenl. 94; 2
N. H. Rep. 458; 11 S. & R. 109; 4 Halst. 139; 7 Halst. 261;
Verm. 676; 2 Greenl. Ev. §242.
3. In cases of sales of real estate, the vendor is required to
disclose the incumbrances, and to deliver to the purchaser the
instruments by which they were created, or on which the defects
arise; and the neglect of this will be considered as a fraud.
Sugd. Vend, 6; 1 Ves. 96; and see 6 Ves. jr. 193; 10 Ves. jr.
470; 1 Sch. & Lef. 227; 7 Serg. & Rawle, 73.
4. Whether the tenant for life, or the remainder-man, is to
keep. down the interest on incumbrances, see Turn. R. 174; 3
Mer. R. 566; 6 Ves. 99; 4 Ves. 24. See, generally, 14 Vin. Ab.
352; Com. Dig. Chancery, 4 A 10, 4 I. 3; 9 Watts, R. 162.
INDEBITATUS ASSUMPSIT, remedies, pleadings. That species of
action of assumpsit, in which the plaintiff alleges in his
declaration, first a debt, and then a promise in consideration of
the debt, that the defendant, being indebted, he promised the
plaintiff to pay him. The promise so laid is, generally, an
implied one only. Vide 1 Chit. Pl. 334; Steph. Pl. 318; Yelv.
21; 4 Co. 92 b. For the history of this form of action, see 3
Reeves' Hist. Com. Law; 2 Comyn on Contr. 549 to 556; 1 H. Bl.
550, 551; 3 Black Com. 154; Yelv. 70. Vide Pactum Constituae
Pecuniae.
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INDEBITI SOLUTIO, civil law. The payment to one of what is not
due to him. If the payment was made by mistake, the civilians
recovered it back by an action called condictio indebiti; with
us, such money may be recovered by an action of assumpsit.
INDEBTEDNESS. The state, of being in debt, without regard to
the ability or inability of the party to pay the same. See 1
Story, Eq. 343; 2 Hill. Ab. 421.
2. But in order to create an indebtedness, there must be an
actual liability at the time, either to pay then or at a future
time. If, for example, a person were to enter and become surety
for another, who enters into a rule of reference, he does not
thereby become a debtor to the opposite party until the rendition
of the judgment on the award. 1 Mass. 134. See Creditor; Debt;
Debtor.
INDECENCY. An act against good behaviour and a just delicacy. 2
Serg. & R. 91.
2. The law, in general, will repress indecency as being
contrary to good morals, but, when the public good requires it,
the mere indecency of disclosures does not suffice to exclude
them from being given in evidence. 3 Bouv. Inst. n. 3216.
3. The following are examples of indecency: the exposure by a
man of his naked person on a balcony, to public view, or bathing
in public; 2 Campb. 89; or the exhibition of bawdy pictures. 2
Chit. Cr. Law, 42; 2 Serg. & Rawle, 91. This indecency is
punishable by indictment. Vide 1 Sid. 168; S. C. 1 Keb. 620; 2
Yerg. R. 482, 589; 1 Mass. Rep. 8; 2 Chan. Cas. 110; 1 Russ.
Cr. 302; 1 Hawk. P. C. c. 5, s. 4; 4 Bl. Com. 65, n.; 1 East,
P. C. c. 1, s. 1; Burn's Just. Lewdness.
INDEFEASIBLE. That which cannot be defeated or undone. This
epithet is usually applied to an estate or right which cannot be
defeated.
INDEFENSUS. One sued or impleaded, who refuses or has nothing
to answer.
INDEFINITE. That which is undefined; uncertain.
INDEFINITE FAILURE OF ISSUE, executory devise. A general
failure of issue, whenever it may happen, without fixing a time,
or certain or definite period, within which it must take place.
The issue of the first taker must be extinct, and the issue of
the issue ad infinitum, without regard to the time or any
particular event. 2. Bouv. Inst. n. 1849.
INDEFINITE, NUMBER. A number which may be increased or
diminished at pleasure.
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2. When a corporation is composed of an indefinite number of
persons, any number of them consisting of a majority of those
present may do any act unless it be otherwise regulated by the
charter or by-laws. See Definite number.
INDEFINITE PAYMENT, contracts. That which a debtor who owes
several debts to a creditor, makes without making an
appropriation; (q. v.) in that case the creditor has a right to
make such appropriation.
INDEMNITY. That which is given to a person to prevent his
suffering damage. 2 McCord, 279. Sometimes it signifies
diminution; a tenant who has been interrupted in the enjoyment
of his lease may require an indemnity from the lessor, that is, a
reduction of his rent.
2. It is a rule established in all just governments that, when
private property is required for public, use, indemnity shall be
given by the public to the owner. This is the case in the United
States. See Code Civil, art. 545. See Damnification.
3. Contracts made for the purpose of indemnifying a person for
doing an act for which he could be indicted, or an agreement to,
compensate a public officer for doing an act which is forbidden
by law, or omitting to do one which the law commands, are
absolutely void. But when the agreement with an officer was not
to induce him to neglect his duty, but to test a legal right, as
to indemnify him for not executing an execution, it was held to
be good. 1 Bouv. Inst. n. 780.
INDENTURE, conveyancing. An instrument of writing containing a
conveyance or contract between two or more persons, usually
indented or cut unevenly, or in and out, on the top or, side.
2. Formerly it was common to make two instruments exactly
alike, and it was then usual to write both on the same parchment,
with some words or letters written between them, through which
the parchment was cut, either in a straight or indented line, in
such a manner as to leave one-half of the word on one part, and
half on the other. The instrument usually commences with these
words, "This indenture," which were not formerly sufficient,
unless the parchment or paper was actually indented to make an
indenture 5 Co. 20; but now, if the form of indenting the
parchment be wanting, it may be supplied by being done in court,
this being mere form. Besides, it would be exceedingly difficult
with even the most perfect instruments, to out parchment or paper
without indenting it. Vide Bac. Ab. Leases, &c. E 2; Com. Dig.
Fait, C, and note d; Litt. sec. 370; Co. Litt. 143 b, 229 a;
Cruise, Dig t. 32, c. 1, s. 24; 2 Bl. Com. 294; 1 Sess. Cas.
222.
INDEPENDENCE. A state of perfect irresponsibility to any
superior; the United States are free and independent of all
earthly power.
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2. Independence may be divided into political and natural
independence. By the former is to be understood that we have
contracted no tie except those which flow from the three great
natural rights of safety, liberty and property. The latter
consists in the power of being able to enjoy a permanent
well-being, whatever may be the disposition of those from whom we
call ourselves independent. In that sense a nation may be
independent with regard to most people, but not independent of
the whole world. Vide on of Independence.
INDEPENDENT CONTRACT. One in which the mutual acts or promises
have no relation to each other, either as equivalents or
considerations. Civil Code of Lo. art. 1762; 1 Bouv. Inst. n.
699.
INDETERMINATE. That which is uncertain or not particularly
designated; as, if I sell you one hundred bushels of wheat,
without stating what wheat. 1 Bouv. Inst. n. 950.
INDIAN TRIBE. A separate and distinct community or body of the
aboriginal Indian race of men found in the United States.
2. Such a tribe, situated within the boundaries of a state, and
exercising the powers of government and, sovereignty, under the
national government, is deemed politically a state; that is, a
distinct political society, capable of self-government; but it
is not deemed a foreign state, in the sense of the constitution.
It is rather a domestic dependent nation. Such a tribe may
properly be deemed in a state of pupilage and its relation to the
United States resembles that of a ward to a guardian. 5 Pet. R.
1, 16, 17; 20 John. R. 193; 3 Kent, Com. 308 to 318; Story on
Const. §1096; 4 How. U. S. 567; 1 McLean, 254; 6 Hill, 546; 8
Ala. R. 48.
INDIANS. The aborigines of this country are so called.
2. In general, Indians have no political rights in the United
States; they cannot vote at the general elections for officers,
nor hold office. In New York they are considered as citizens and
not as aliens, owing allegiance to the government and entitled to
its protection. 20 John. 188, 633. But it was ruled that the
Cherokee nation in Georgia was a distinct community. 6 Pet. 515.
See 8 Cowen, 189; 9 Wheat. 673; 14 John. 181, 332 18 John. 506.
INDIANA. The name of one of the new states of the United
States. This state was admitted into the Union by virtue of the
"Resolution for admitting the state of Indiana into the Union,"
approved December 11, 1816, in the following words: Whereas, in
pursuance of an act of congress, passed on the nineteenth day of
April, one thousand eight hundred and sixteen, entitled "An act
to enable the people of the Indiana territory to from a
constitution and state government, and for the admission of that
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state into the Union," the people of the said territory did, on
the twenty-ninth day of June, in the present year, by a
convention called for that purpose, form for themselves a
constitution and state government, which constitution and state
government, so formed, is republican, and in conformity with the
principles of the articles of compact between the origina