HYPOTHECA-continued. might be either express or implied: (1.) Express, where the parties upon the occasion of a loan enter into an express agreement to that effect; or (2.) Implied, as, e.g., in the case of the stock and utensils of a farmer (colonus), which were subject to the landlord's right as a creditor for rent ; whence the Scotch law of hypothec. The word has suggested the term hypothecate, as used in the mercantile and maritime law of England. Thus, under the Factors Act (see that title), goods are frequently said to be hypothecated; and a captain is said to have a right to hypothecate his vessel for necessary repairs. See Kay's Law of Shipmasters and Seamen. See also next title. HYPOTHÈQUE. In French Law is the mortgage of real property in English Law, and is a real charge, following the property into whosesoever hands it comes. charge may be either (1) Légale; or (2) Such a Judiciaire; or (3) Conventionnelle. It is legale, as in the case of the charge which the state has over the lands of its accountants, or which a married woman has over those of her husband; it is judiciaire, when it is the result of the judgment of a Court of Justice; and it is conventionnelle, when it is the result of an agreement (which must be express) of the parties. I. IDEM SONANTIA. Where two words (usually surnames) sound the same, although spelt differently. In criminal indictments a mistake in spelling the surname is immaterial, so long as the sound is the same, and there is no mistake as to the party, e.g., Segrave for Seagrave. Williams v. Ogle, 2 Str. 889. IDENTITY. In conveyances of land it is necessary to identify the property sold with that described by the parcels in the title-deeds. This is usually done by a comparison of all maps and the successive descriptions in the successive deeds, coupled with a declaration of identity by some old credible person. And in actions and suits it is often necessary to establish the identity of parties and of deponents; but such evidence need not be strict, as the similarity of name throws the onus of disproving the identity on the party affirming the negative. An affidavit of identity is also required of the names in certificates of births, baptisms, marriages, and burials; otherwise the question of identity is for the jury to determine. Hubbard v. Lees, L. R. 1 Ex. 255. IGNORAMUS (We are ignorant). For IGNORAMUS-continued. 181 merly the grand jury used to write this word on bills of indictment when, after having heard the evidence, they thought the accusation against the prisoner was groundless, intimating that, though the facts might possibly be true, the truth did not appear to them; but now they usually write in English the words "not a true bill," or not found," if that is their verdict; whereupon the party is forthwith discharged; and the jury are in so doing said to ignore or throw out the bill. A notable instance of the finding an ignoramus was the Earl of Shaftesbury's Case, 8 St. Tr. 759, temp. Charles II. IMMEUBLES. These Law, the immoveables of English Law. are, in French Things are immeubles from any one of three causes: (1.) From their own nature,-e.g., lands and houses; (2.) From their destination,-e.g., animals and instruments of agriculture when supplied by the landlord; or (3.) By the object to which they are annexed, e.g., easements. IMPANEL. To impanel a jury signifies the entering by the sheriff upon a piece of parchment termed a panel the names of the jurors who have been summoned to appear in Court on a certain day to form a jury of the country to hear such matters as may be brought before them. IMPARLANCE. An indulgence formerly granted to a defendant to defer pleading to the action until a subsequent term. It is said that the reason of allowing imparlance was to give the plaintiff an opportunity of settling the matter amicably with the defendant without further prosecuting his suit, a practice which is supposed to have originated from a religious principle founded on the text of Scripture, "Agree with thine adversary quickly, whiles thou art in the way with him."Matt. v. 25. Since the 2 Will. 4, c. 39, in actions commenced by the process prescribed by that Act, these imparlances are abolished; and more recently, under r. 31 T. T. 1853, no entry or continuance by way of imparlance or otherwise shall be made on any record or roll whatever, or in the pleadings. See also title CONTINUANCE. IMPLICATION. This word signifies The natural meaning of the word is also IMPLICATION-continued. life; and although that particular implication is now expressly discontinued by statute, yet similar implications hold good in other matters; also, a subsequent ratification by A. of the contract of B. amounts in law by implication to a previous command on the part of A. to B. to enter into the contract. IMPOUND. The placing-i.e., confining-cattle, goods, or chattels taken under distress in a lawful pound, which may be either open or close. An open pound is any place in which the owner of the cattle may give them to eat and drink without trespass, and by the Common Law he was in fact bound to do so at his own peril. A pound close is some private place, selected by the impounder, where the owner has no right to enter to them, but the impounder must sustain them, and that without any allowance for it. But now, by 12 & 13 Vict. c. 92, it is enacted that every person who shall impound or confine any animal in any common pound or inclosed place shall proIvide it with food and water; and by the 17 & 18 Vict. c. 60, it is further enacted that the impounder may, in the manner directed by the Act, sell the cattle impounded, or any of them, openly in the public market, and apply the produce of the sale in discharge of the expenses of food and nourishment, rendering the overplus (if any) to the owner of the cattle. See also titles POUND; POUND-BREACH; and POUND-KEEPER. By the IMPRISONMENT FOR DEBT. stat. 32 & 33 Vict. c. 62 (The Debtors' Act, 1869), s. 4, it is enacted that no person shall, after the 1st of January, 1870, be arrested or imprisoned for making default in payment of a sum of money, with the following exceptions: (1.) Persons making default in the payment of a penalty, not being a penalty in respect of any contract; (2.) Persons making default in the payment of any sum recoverable summarily before a justice of the peace; (3.) Persons being trustees or quasi trustees making default in the payment of a sum in their possession or under their control, after they were ordered by a Court of Equity to pay the same; (4.) Persons being attorneys or solicitors making default in the payment of costs ordered to be paid for misconduct, or in the payment of a sum of money ordered to be paid by them as officers of the Court; (5.) Persons being bankrupts or liqui IMPRISONMENT FOR DEBT-contd. dating or compounding debtors, making default in the payment of any portion of a salary ordered by any Court of Bankruptcy to be paid; and (6.) Persons making default in the payment of sums in respect of the payment of which orders are in the Debtors Act, 1869, authorized to be made, being principally a debt or the instalment of any debt due from such persons in pursuance of any order or judgment of the Court which inflicts the imprisonment; s. 5. IMPROPRIATE RECTOR. Commonly signifies a lay rector as opposed to a spiritual rector, just as impropriate tithes are tithes in the hands of a lay owner, as opposed to appropriate tithes, which are tithes in the hands of a spiritual owner. See titles IMPROPRIATION; TITHES. IMPROPRIATION. The annexing of an ecclesiastical benefice to the use of a lay person, whether individual or corporate, in the same way as appropriation is the annexing of any such benefice to the proper and perpetual use of some spiritual corporation, whether sole or aggregate, to enjoy for ever. The origin of appropriations is commonly attributed to the policy of the monastic orders, and is explained in this manner: At the first establishment of the parochial clergy, the tithes of the parish were distributed in four parts-one part being assigned to the bishop, one other part for the maintenance of the fabric of the church, a third part for the support and relief of the poor, and the remaining fourth part for the support of the incumbent. The bishops having afterwards received ample endowment from other sources, the tithes were freed of their liability in that respect; and the monasteries by gradually obtaining possession of the tithes, by grant or otherwise, retained the entirety of them to their own use, subject only to maintaining the fabric of the church, supporting and relieving the poor, and discharging by themselves or their deputy (the vicar) the duties of the incumbent. In this manner the tithes became appropriated to the monastic bodies; and upon such appropriation being made, the appropriators, and their successors, for ever became the perpetual parsons (persona) of the church, and as such might sue and be sued. Upon the dissolution of the monasteries by stat. 27 Hen. 8, c. 28, and 31 Hen. 8, c. 13, all these various appropriations were given to the king by clauses contained in IMPROPRIATION-continued. these statutes; and the king having since granted out from time to time to his subjects the tithes so given to himself, there have thence arisen the impropriations, or lay parsonages, of the present day. The appropriation may become disappropriate in either of two ways: (1.) By the dissolution of the corporation to which the tithes belonged,-an effect which was expressly excluded by the statutes of Henry 8 upon the dissolution of the monastic houses; or (2.) By the patron's presentment of a clerk, and the subsequent institution and induction of the presentee to the parsonage. If such presentee had a vicar under him, the parsonage was what used to be called a sine-cure. IN AUTRE DROIT. In another's right. Thus, when an executor or administrator sues a person for a debt due to the testator or the intestate, he is said to do so in autre droit, that is, in right of another, viz., in the right of the testator or intestate, whom he represents. So also a husband, in right of his wife, acquires certain interests in her estates, both real and personal, and may also in her right sue on the contracts of his wife made before marriage, and on all obligations coming to her as the meritorious cause of action during the coverture. The circumstance that any estate or right is held in autre droit, while another is held in son droit, or in a person's own right, is one of the chief causes which prevent the merger of the two estates or rights in one. INCENDIARISM: See title ARSON. INCIDENT. This phrase is properly used to denote anything which is inseparably belonging to, connected with, or inherent in, another thing which is called the principal. Thus, a Court Baron is incident to a manor, and also inseparably incident, so much so that it cannot be severed from it by grant; for a Court is an essential ingredient in every manor, without which it will cease to be a manor. Again, rent is said to be incident to a reversion; i.e., one of the inseparable qualities, or one of the necessary characteristics of a reversion. Les Permes de la Ley. But the word is also used less properly to denote anything which is connected with another thing, even separably. Thus, in the common phrase, "costs of and incidental to" any suit or legal proceeding, the word can only be taken as meaning INCIDENT-continued. properly incurred in connection therewith. Also, the incidents of property may be either inseparable or separable, e.g., the right of alienation is separable in Equity, although, semble, inseparable at Law, from a fee simple or fee tail estate in lands, or an absolute interest in personal estate. INCIPITUR (from the Lat. incipioto begin). The beginning or commencement of pleadings, or sometimes of other proceedings. The phrase entering the incipitur on the roll may be thus explained. When the contending parties in an action have come to an issue, the plaintiff, in strictness, should enter the same, together with all the pleadings prior thereto, on a roll of parchment called the issue-roll; but this is now seldom done, the commencement of the pleadings only being entered thereon, which is termed entering the incipitur (i.e., the beginning) on the roll (1 Arch. Pract. 350; Tidd's Pract.). The entry even of the incipitur is now, however, by a recent rule of Court rendered unnecessary. See 1 Pl. R. H. T., 4 Will. 4. See also title ISSUE ROLL. INCLOSURE. Provision has been made by numerous Acts in the present reign, following the principal Act, 41 Geo. 3, c. 109 (General Inclosure Act), for the inclosure, exchange, and improvement of commons and other lands, subject to commonable rights and incidents in England and Wales. A board of commissioners is constituted by the Act 14 & 15 Vict. c. 53, and their continuance in office is regulated by the Act 25 & 26 Vict. c. 73. The usual method of procedure is for the commissioners to make an order for allotment, which, in the first instance, is provisional only, but which is afterwards made absolute upon a proper valuation and adjustment of the rights of all the parties concerned. The Court of Chancery has no power, in general, to restrain the commissioners. Harris v. Jose, L. R. 1 Eq. 34. See also titles COMMONS; ROADS; INCORPOREAL HEREDITAMENTS continued. The definitions of these varieties of incorporeal hereditaments are the following: (1.) A reversion is that estate of the tenant which remains undisposed of, after he has granted a particular estate, or particular estates, out of his own original estate; (2) A remainder is that part of the grantor's own original estate which remains in him after he has granted thereout one or more particular estate or estates, and which he afterwards by the same instrument whereby he creates the particular estate or estates which precede it grants out also, so as to take effect (if at all) subsequently to and upon the determination of the lastmentioned particular estate or estates. And such a remainder is either (a.) A vested remainder, if (be it ever so small) it is always ready from its creation to its close to come into possession the moment the prior estate or estates (be they what they may) happen to determine; or (b.) A contingent remainder, if (be it what it may) it is not always ready from its creation to its close to come into possession the moment the prior estate or estates (be they what they may) happen to determine. (3.) An executory interest is a future estate which in its own nature is indestructible, and which arises when its time comes of its own inherent strength, not waiting for, or depending on, the determination of the prior estate or estates (as the remainder does), but, on the contrary, putting an end to any prior estate or estates which may at the time be subsisting. There are certain rules which regulate the creation of contingent remainders and executory interests respectively. Firstly, the rules which regulate the creation of the contingent remainder are the following: (a.) The seisin, or feudal possession, must never be without an owner; in other words, every contingent remainder of an estate of freehold must have a particular estate of freehold to support it; and as a corollary to this first rule, there is also the following rule, viz., every contingent remainder must vest, i.e., become transmuted into a vested remainder or actual estate, during the continuance of the particular estate which supports it, or eo instanti that such particular estate determines; and (b.) An estate cannot be given to an unborn person for life, followed by an estate to the child of such unborn person. Secondly, the rules which regulate the creation of the executory interest are the following: (a.) An executory interest (not being INCORPOREAL HEREDITAMENTS continued. subsequent to an estate tail) must be made to commence (if at all) within the period of any fixed number of lives existing at the date of the instrument creating it and an additional term of twenty-one years, allowing further for the period of gestation, should gestation actually exist; but if no lives are fixed on, then the term of twentyone years only is allowed (see title PERPETUITIES); and (b.) The income of real or personal estate cannot be directed to be accumulated for any longer term than one or other singly (but not two or more together) of the following periods, so as to be given over with or without the corpus of the estate to a grantee, or devisee, or legatee, that is to say, (aa.) For the life of the grantor or settlor (in the case of a deed); (bb.) For twenty-one years from the death of such grantor or settlor (in the case of a deed), or of the devisor or testator (in the case of a will); (cc.) For the minority of any person living or in ventre sa mère at the death of the grantor or testa ments; (b.) Appurtenant incorporeal hereditaments; and (c.) Incorporeal hereditaments in gross. Firstly, (a.) Appendant incorporeal hereditaments are such hereditaments of an incorporeal character as are necessarily, and have therefore from the earliest of times, been attached to some corporeal hereditament, and never been separated therefrom. They comprise the following three varieties, viz. : (1.) A seigniory appendant (see that title). (2.) A right of common appendant (see title COMMON); and (3.) An advowson appendant (see that title). Secondly, appurtenant incorporeal hereditaments are such hereditaments of an incorporeal character as are not necessarily or originally attached to some corporeal hereditament, but have been attached thereto either by some express deed of grant, or by Thirdly, incorporeal hereditaments in gross are such hereditaments of an incorporeal character as are not attached to any corporeal hereditament, but stand separate and alone. They comprise the following six (among other) varieties: (1.) A seigniory in gross (see that title); (5.) An advowson in gross (see that (6.) Tithes (see that title.) Many of these incorporeal hereditaments in gross may have been at one time incorporeal hereditaments either appendant or appurtenant to some corporeal hereditament, from which in some manner or other they have been separated; and it is a rule of law that when an appendant incorporeal hereditament (e.g., an advowson) is once separated from the corporeal hereditament to which it was theretofore attached, it can never become appendant again, but must always for the future either remain in gross or become appurtenant by some grant, express or presumed. INCREASE, COST OF. In strictness it is within the province of the jury upon any trial to assess or ascertain the amount of and to award the costs of the action to the successful party; but as the Courts have power ex officio to assess the damages against the defendant, it has become the practice for the jury to award to the successful party the nominal sum of 40s. only, and for the Court to assess by their own officer the actual amount; and the amount so assessed, over and above the nominal sum awarded by the jury, is thence called "costs of increase." Lush's Pr. 775. INCUMBENT (from incumbere, signifying, as well to possess and keep safely, as to endeavour earnestly, obnixè operam dare). Is a clerk duly possessed of or resident on his benefice with cure. It is said there are four things necessary to the being a complete incumbent. 1st. Presentation. That is, the patron's free gift or commendation of his clerk to the parsonage or vicarage, by presenting or offering him to the bishop. 2ndly. Admission of such clerk by the bishop by his allowance or approbation of him after due examination, and by making record of his name INCUMBENT-continued. accordingly. 3rdly. Institution of such clerk to such benefice by the bishop or collation. 4thly. Introduction, whereby the clerk takes actual possession of the benefice, by taking the keys of the church door, by the ringing of a bell or the like. INDEBITATUS ASSUMPSIT. That species of the action of assumpsit in which the plaintiff first alleged a debt, and then a promise in consideration of the debt; such promise, however, was not usually an express, but an implied one, the law always implying a promise to do that which the party is legally liable to perform. Now by the C. L. P. Act, 1852, s. 49, all statements which need not be proved, such as the statement of time, quantity, quality, and value, where these are immaterial; the statement of losing, and finding, and bailment in actions for goods and their value; the statement of acts of trespass having been committed with force of arms and against the peace of our lady the queen; the statement of promises which need not be proved, as promises in indebitatus counts, and mutual promises to perform agreements; and all statements of a like kind, shall be omitted. For forms of indebitatus counts, see Day, C. L. Pract. pp. 237-239. INDECENT ASSAULT. These are offences under the Criminal Law, 24 & 25 Vict. c. 100, s. 52, and other statutes, punishable respectively with imprisonment or fine, or both, and with or without hard labour. See Greenwood and Martin's Magisterial and Police Guide, 1874. INDEMNITY. It is usual to insert in settlements and wills a clause of indemnity for the protection of the trustees acting in the trusts created therein. And where (as not infrequently happens) the trustees at the urgent request of their cestuis que trust commit what is technically a breach of trust, but the act is done bonâ fide, and for a present advantage, it is not unusual to give, and the trustees have a right to demand, from the cestuis que trust requiring them so to act an express deed of indemnity. Such deed may either consist in the personal covenant of the parties, or not only in such personal covenant, but also in the setting apart a fund, called an indemnity fund, to recoup the trustees any outlay which they may have to incur or be put unto in consequence of their having so acted. See also title GUARANTEE. |