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succeed him in all his rights, active and passive. Poth. Tr. dcs Donations testamentaires, c. 2, s. 1, § 1; Civ. Code of Lo. art. 1598 ; Dig. lib. 28, tit. 5, 1. 1; and lib. 28, tit. 6, 1. 2. §4.
INSTRUCTIONS, comm. law, contracts. Orders given by a principal to his agent, in relation to the business of his agency. The agent is bound to obey the instructions he has received, and when he neglects so to do, he is responsible for the consequences, unless he is justified by matter of necessity. 4 Binn. R. 361; 1 Liverm. Agency, 368. Instructions differ materially from authority, as regards third persons. When a written authority is known to exist, or, by the nature of the transaction, it is presupposed, it is the duty of persons dealing with an agent to ascertain the nature and extent of his authority; but they are not required to make inquiry of the agent as to any private instructions from his principal, for the obvious reason that they may be presumed to be secret and of a confidential nature, and therefore not to be communicated to third persons. 5 Bing. R. 442. As to the construction of letters of instruction, see 3 Wash. C. C. R. 151; 4 Wash. C. C. R. 551; 1 Liv. on Ag. 403; Story on Ag. § 74; 2 Wash. C. C. R. 132; 2 Crompt. & J. 244; 1 Knapp, R. 381.
INSTRUCTIONS, in practice. The statements of a cause of action, given by a client to his attorney, and, which, where such is the practice, are sent to his pleader to put into legal form of a declaration. Warr. Law Stud. 284. Instructions to counsel are their indemnity for any aspersions they may make on the opposite party, but attorneys who have a just regard to their own reputation will be cautious, even under instructions, not to make any unnecessary attack upon a party or witness. For such
an unjustifiable conduct the counsel will be held responsible. Eunom. Dial. 2, § 43, p. 132. For a form of instructions, see 3 Chit. Pr. 117, and 120 n.
INSTRUMENT, contracts, is the writing which contains some agreement, and is so called because it is calculated to instruct of what has taken place or been agreed upon. The agreement and the instrument in which it is contained are very different things, the latter being only evidence of the existence of the former. The instrument or form of the contract may be valid, but the contract itself may be void on account of fraud. Vide Ayl. Parerg. 305; Dunl. Ad. Pr. 220.
INSUPER, Engl, law, is the balance due by an accountant in the exchequer, as apparent by his account: the auditors in settling his account say there remains so much insuper to such accountant.
INSURANCE, contracts, is defined to be a contract of indemnity from loss or damage arising upon an uncertain event. 1 Marsh. Ins. 104. It is more fully defined to be a contract by which one of the parties, called the insurer, binds himself to the other, called the insured, to pay him a sum of money or otherwise if indemnify him, in case of the happening of a fortuitous event provided for in a general or special manner in the contract, in consideration of a premium which the latter pays or binds himself to pay him. Pardess. part 3, t. 8, n. 598. The instrument by which the contract is made is denominated a policy; the events or causes to be insured against, risks or perils; and the thing insured, the subject or insurable interest. Marine insurance relates to property and risks at sea; insurance of property on shore against fire, is called fire insurance; and the various contracts in such cases, are fire policies.
Insurance of the lives of individuals are called insurances on lives Vide Double Insurance; Re-insurance.
INSURANCE AGAINST FIRE, is a contract by which the insurer, in consequence of a certain premium received by him, either in a gross sum or by annual payments, undertakes to indemnify the insured against all loss or damage which he may sustain to a certain amount, in his houses or other buildings, stock, goods or merchandise, mentioned in the policy, by fire, during the time agreed upon. 2 Marsh. Ins. B. 4, p. 784; 1 Stuart's (L. C.) R. 174; Park. Ins. ch. 2:i, p. 441.
The risks and losses insured against, are "all losses or damage by fire" during the term of the policy, to the houses or things insured.
1. There must be an actual fire or ignition to entitle the insured to recover; it is not sufficient that there has been a great and injurious increase of heat, while nothing has taken fire, which ought not to be on fire. 4 Campb. R. 360.
2. The loss must be within the policy, that is, within the time insured. 5 T. R. 695; 1 Bos. dc P. 470; 6 East, R. 571.
3. The insurers are liable not only for loss by burning, but for all damages and injuries, and reasonable charges attending the removal of articles though never touched by the fire. 1 Bell's Com. 626, 7, 5th ed.
Generally there is an exception in the policy as to fire occasioned "by invasion, foreign enemy, or any military or usurped power whatsoever," and in some there is a further exception of riot, tumult or civil commotion. For the construction of these provisoes, see the articles Civil Commotion and Usurped Pmter.
INSURANCE, MARINE, contracts. Marine insurance is a contract whereby one party, for a stipulated premium undertakes to indem
nify the other against certain perils, or sea risks, to which his ship, freight or cargo, or some of them may be exposed, during a certain voyage, or a fixed period of time. 3 Kent, Com. 203; Boulay-Paty, Dr. Commercial, t. 10. This contract is usually reduced to writing; the instrument is called a policy of insurance, (q. v.) All persons whether natives, citizens or aliens may be insured with the exception of alien enemies. The insurance may be of goods on a certain ship, or without naming any, as upon goods on board any ship or ships. The subject insured must be an insurable legal interest. The contract requires the most perfect good faith; if the insured make false representations to the insurer in order to procure his insurance upon better terms, it will avoid the contract, though the loss arose from a cause unconnected with the misrepresentation, or the concealment happened through mistake, neglect or accident, without any fraudulent intention. Vide Kent, Com. Lecture, 48; Marsh. Ins. ch. 4; Pardessus, Dr. Com. part 4, t. 5, n. 756, et seq.; Boulay-Paty, Dr. Com. t. 10.
INSURANCE ON LIVES, contracts. The insurance of a life is a contract whereby the insurer, in consideration of a certain premium, either in a gross sum or periodical payments, undertakes to pay the person for whose benefit the insurance is made, a stipulated sum, or annuity equivalent, upon the death of the person whose life is insured, whenever this shall happen, if the insurance be for the whole life, or in case this shall happen within a certain period, if the insurance be for a limited time. 2 Marsh. Ins. 766 ; Park on Insurance, 429. The insured is required to make a representation or declaration, previous to the policy being issued, of the age and state of health of the person whose life is insured; and the party making it is bound to the truth of it. Park, Ins. 650; Marsh. Ins. 771; 4 Taunt. R. 763. In almost every life policy there are several exceptions, some of them applicable to all cases, others to the case of insurance of one's life. The exceptions are, 1, Death abroad or at sea; 2, Entering into the naval or military service without the previous consent of the insurers; 3, Death by suicide; 4, Death by duelling; 5, Death by the hand of justice. The last three are not understood to be excepted when the insurance is on another's life. 1 Bell's Com. 631, 5th ed. See 1 Beck's Med. Jur. 518.
INSURED, contracts. The person who procures an insurance on his property. It is the duty of the insured to pay the premium, and to represent fully and fairly all the circumstances relating to the subjectmatter of the insurance, which may influence the determination of the underwriters in undertaking the risk, or estimating the premium. A concealment of such facts amounts to a fraud, which avoids the contract. 1 Marsh. Ins. 464; Park, Ins. h. t.
INSURER, contract!. One who has obliged himself to insure the safety of another's property, in consideration of a premium paid or secured to be paid to him. It is his duty to pay any loss which has arisen on the property insured. Vide Marsh. Ins. Index, h. t.; Park. Ins. Index, h. t.; Phill. Ins. h. t.; Wesk. Ins. h. t.; Pardess. Index, art. Assureur.
INSURRECTION, rebellion of citizens or subjects of a country against its government. The constitution of the United States, art. 1, s. 8, gives power to congress " to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." By the act of Congress of the 28th
February, 1795, 1 Story's L. U. S. 389, it is provided :—
§ 1. That whenever the United States shall be invaded, or be in imminent danger of invasion, from any foreign nation or Indian tribe, it shall be lawful for the president of the United States to call forth such number of the militia of the state, or states, most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his orders, for that purpose, to such officer or officers of the militia as he shall think proper. And in case of an insurrection in any state, against the government thereof, it shall be lawful for the president of the United States, on application of the legislature of such state, or of the executive, (when the legislature cannot be convened,) to call forth such number of the militia of any other state or states, as may be applied for, as he may judge sufficient to suppress such insurrection.
§ 2. That whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the president of the United States to call forth the militia of such state, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of congress.
§ 3. That whenever it may be necessary, in the judgment of the president, to use the military force hereby directed to be called forth, the president shall forthwith, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.
INTAKERS, Eng. law. The name given to receivers of goods stolen in Scotland, who take them to England. 9 H. 5, c. 27.
INTENDED TO BE RECORDED. This phrase is frequently used in conveyancing in deeds which recite other deeds which have not been recorded. In Pennsylvania it has been construed to be a covenant on the part of the grantor to procure the deed to be recorded in a reasonable time. 2 Rawle's Rep. 14.
INTENDMENT OF LAW. The true meaning, the correct understanding, or intention of the law; a presumption or inference made by the courts. Co. Litt. 78. It is an intendment of law that every man is innocent until proved guilty, vide Innocence; that every one will act for his own advantage, vide Assent; Fin. Law, 10, Max. 54; that every officer acts in his office with fidelity; that the children of a married woman, born during the coverture, are the children of the husband, vide Bastardy; many things are intended after verdict, in order to support a judgment, but intendment cannot supply the want of certainty in a charge in an indictment for a crime. 5 Co. 121 ; vide Com. Dig. Pleader, C M, and S 31; Dane's Ab. Index, h. t.; 14 Vin. Ab. 449.
INTENTION, a design, resolve, or determination of the mind. Intention is required in the commission of crimes and injuries; in making contracts; and wills.
1. Every crime must have necessarily two constituent parts, namely, an act forbidden by law, and an intention. The act is innocent or guilty just as there was or was not an intention to commit a crime; for example, a man embarks on board of a ship at New York, for the pur
pose of going to New Orleans; if he went with an intention to perform a lawful act, he is perfectly innocent; but if his intention was to levy war against the United States, he is guilty of an overt act of treason. Cro. Car. 332; Fost. 20J, 203; Hale, P. C. 116. The same rule prevails in numerous civil cases; in actions founded on malicious injuries, for instance, it is necessary to prove that the act was accompanied by a wrongful and malicious intention. 2 . Stark. Ev. 739.
The intention is to be proved, or it is inferred by the law. The existence of the intention is usually matter of inference; and proof of external and visible acts and conduct serves to indicate more or less forcibly the particular intention. But in some cases the inference of intention necessarily arises from the facts. Exteriora acta indicant interiora animi secreta. 8 Co. 146. It is a universal rule that a man shall be taken to intend that which he does, or is the necessary and immediate consequence of his act, 3 M. & S. 15; Hale, P. C. 229; in cases of homicide, therefore, malice will generally be inferred by the law. Vide Malice, and Jacob's Intr. to the Civ. Law, Reg. 70; Dig. 24, 18.
2. In order to make a contract, there must be an intention to make it; a person non compos mentis, who has no contracting mind, cannot therefore enter into any engagement which requires an intention; for to make a contract the law requires a fair and serious exercise of the reasoning faculty. Vide Gift; Occupancy.
3. In wills and testaments the intention of the testator must be gathered from the whole instrument, 3 Ves. 105; and a codocil ought to be taken as a part of the will, 4 Ves. 610; and when such intention is ascertained, it must prevail, unless it be in opposition to some unbending rule of law. 6 Cruise's Dig. 295; Rand, on Perp. 121 ; Cro. Jac. 415. "It is written," says Swinb. p. 10, "that the will or meaning of the testator, is the queen or empress of the testament; because the will doth rule the testament, enlarge and restrain it, and in every respect moderate and direct the same, and is indeed the very efficient cause thereof. The will therefore and meaning of the testator ought before all things to be sought for diligently, and, being found, ought to be observed faithfully." 6 Pet. R. 68.
Vide, generally, Bl. Com. Index, h. t.; 2 Stark. Ev. h. t.; Ayl. Pand. 95; Dane's Ab. Index, h. t.; Rob. Fr. Conv. 30. As to intention in changing a residence, see article Inhabitant.
INTER CANEM ET LUPUM. Literally, between the dog and the wolf. Metaphorically, the twilight; because then the dog seeks his rest, and the wolf his prey. 3 Inst. 63.
INTERDICT, civil law, among the Romans was an ordinance of the pnetor which forbade or enjoined the parties in a suit to do something particularly specified, until it should be decided definitely who had the right in relation to it. Vide Injunction.
INTERDICT or INTERDIC TION, eccles. law, is an ecclesiastical censure by which divine services are prohibited either to particular persons or particular places. These tyrannical edicts, issued by ecclesiastical powers, have never been in force in the United States.
INTERDICTED OF FIRE AND WATER. Formerly those persons who were banished for some crime, were interdicted of fire and water; that is by the judgment order was given that no man should receive them into his house, but
should deny them fire and water, the two necessary elements of life.
INTERDICTION, civil law, is a legal restraint upon a person' incapable of managing his estate, because of mental incapacity, from signing any deed or doing any act to his own prejudice, without the consent of his curator or interdictor. Interdictions are of two kinds, voluntary or judicial. The first is usually executed in the form of an obligation by which the obligor binds himself to do no act which may affect his estate without the consent of certain friends or other persons therein mentioned. The latter, or judicial interdiction is imposed by a sentence of a competent tribunal, which disqualifies the party on account of imbecility, madness, or prodigality, and deprives the person interdicted of the right to manage his affairs and receive the rents and profits of his estate.
The Civil Code of Louisiana makes the following provisions on this subject:
Art. 382. No person above the age of majority, who is subject to an habitual state of madness or insanity, shall be allowed to take charge of his own person or to administer his estate, although such person shall, at times, appear to have the possession of his reason.
383. Every relation has a right to petition for the interdiction of a relation; and so has every husband a right to petition for the interdiction of his wife, and every wife of her husband.
384. If the insane person has no relations and is not married, or if his relations or consort do not act, the interdiction may be solicited by any stranger, or pronounced ex officio by the judge, after having heard the counsel of the person whose interdiction is prayed for, whom it shall be the duty of the judge to name, if