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said governor may appoint, in the first instance, the aforesaid officers, who shall hold their offices until the end of the next session of the said legislative assembly.
§ 8. That no member of the legislative assembly shall hold, or be appointed to, any office created, or the salary or emoluments of which shall have been increased, whilst he was a member, during the term for which he shall have been elected, and for one year after the expiration of such term; and no person holding a commission or appointment under the United States, or any of its officers, except as a militia officer, shall be a member of the said council or house of representatives, or shall hold any office under the government of the said territory.
Vide Courts of the United States.
IPSO FACTO, by the fact itself. This phrase is frequently employed to convey the idea that something which has been done contrary to law is void; for example, if a married man, during the life of his wife, of which he had knowledge, should marry a second woman, the latter marriage would be void ipso facto; that is, on that fact being proved, the second marriage would Be declared void ah initio.
IRE AD LARGUM, to go at large; to escape, or be set at liberty. Vide Ad largum.
IRONY, in rhetoric, is a term derived from the Greek, which signifies dissimulation. It is a refined species of ridicule, which under the mask of honest simplicity or of ignorance, exposes the faults and errors of others, by seeming to adopt or defend them. In libels, irony may convey imputations more effectually than direct assertion, and render the publication libellous. Hob. 215; Hawk. B. 1, c. 73, s. 4; 3 Chit. Cr. Law, 869; Bac. Ab. Libel, A 3.
IRREGULARITY, practice, is
the doing or not doing that in the conduct of a suit at law, which, conformably with the practice of the court, ought or ought not to be done. A party entitled to complain of irregularity, should except to it previously to taking any step by him in the cause, Lofft. 323, 333, because the taking of any such step is a waiver of any irregularity. 1 Bos. & Pull. 342; 2 Smith's R. 391 ; 1 Taunt. R. 58; 2 Taunt. R. 243; 3 East, R. 547; 2 New R. 509; 2 Wils. R. 380. The court will, on motion, set aside proceedings for irregularity. On setting aside a judgment and execution for irregularity, they have power to impose terms on the defendant, and will restrain him from bringing an action of trespass, unless a strong case of damages appears. 1 Chit. R. 133, n; and see Baldw. R. 246. Vide 3 Chit. Pr. 509, and Regular and irregular Process. In the canon law, this term is used to signify any impediment which prevents a man from taking holy orders.
IRREPLEVISABLE, practice. This term is applied to those things which cannot legally be replevied; for example, in Pennsylvania, no goods seized in execution or for taxes, can be replevied.
IRRESISTIBLE FORCE. This term is applied to such an interposition of human agency, as is, from its nature and power, absolutely uncontrollable; as the inroads of a hostile army. Story on Bailm. § 25; Lois des Batim. pt. 2, c. 2, § 1. 'it differs from inevitable accident, (q. v.); the latter being the effect of physical causes, as, lightning, storms, and the like.
IRREVOCABLE. That which cannot be revoked. A will may at all times be revoked by the same person who made it, he having a disposing mind; but the moment the testator is rendered incapable to make a will he can no longer revoke a former will, because he wants a disposing mind. Letters of attorney are generally revocable; but when made for a valuable consideration they become irrevocable. 7 Ves. jr. 28; 1 Gaines's Cas. in Er. 16; Bac. Authority, E. Vide Authority; Li cense; Revocation.
IRRIGATION, the act of wetting or moistening the ground by artificial means. The owner of land over which there is a current stream, is, as such, the proprietor of the current. 4 Mason's R. 400. It seems the riparian proprietor may avail himself of the river for irrigation, provided the river be not thereby materially lessened,'and the water absorbed be imperceptible or trifling. Ang. W. C. 34; and vide 1 Root's R. 5 <5; 8 Greenl. R. 266; 2 Conn. R. 584; 2 Swift's Syst. 87; 7 Mass. R. 136; 13 Mass. R. 420; 1 Swift's Dig. I11; 5 Pick. R. 175; 9 Pick. 59; 6Bing. R. 379; 5 Esp. R. 56; 2 Conn. R. 534; Ham. N. P. 199; 2 Chit. Bl. Com. 403, n. 7; 22 Vin. Ab. 525; 1 Vin. Ab. 557; Bac. Ab. Action on the case, F. The French law coincides with our own. 1 Lois des Batimens, sect. 1, art. 3, page 21.
ISLAND. A piece of land surrounded by water. Islands are in the sea or in rivers. Those in the sea are either in the open sea, or within the boundary of some country. When new islands arise in the open sea, they belong to the first occupant; when they are newly formed so near the shore as to be within the boundary of some state, they belong to that state. Islands which arise in rivers when in the middle of the stream, belong in equal parts to the riparian proprietors; when they arise mostly on one side, they will belong to the riparian owners up to the middle of the stream. Bract. lib. 2, c. 2; Fies ta, lib. 3, c. 2, s. 6; 2 Bl. 261; 1 Swift's Dig. I11; Schultz, M. R.
117 ; Woolr. on Waters, 38 ; 4 Pick. R. 268; Dougl. R. 441; 10 Wend. 260; 14 S. & R. 1. For the law of of Louisiana, see Civil Code, art. 505-507. The doctrine of the common law on this subject, founded on reason, seems to have been borrowed from the civil law. Vide Inst. 2, 1, 22; Dig. 41, 1, 7; Code, 7, 41, 1.
ISSUE, kindred. This term is of very extensive import, in its most enlarged signification, and includes all persons who have descended from a common ancestor. 17 Ves. 481; 19 Ves. 547; 3 Ves. 257; 1 Rop. Leg. 88; and see Wilmot's Notes, 314, 321. But when this word is used in a will, in order to give effect to the testator's intention it will be construed in a more restricted sense than its legal import conveys. 7 Ves. 522; 19 Ves. 73; 1 Rop. Leg. 90. Vide Bac. Ab. Curtesy of England, D; 8 Com. Dig. 473; and article Legatee, II. § 4.
ISSUE, pleading. An issue is defined to be a single, certain, and material point, issuing out of the allegations or pleadings of the plaintiff or defendant. Co. Litt. 126, a; Bac. Abr. Pleas, G; though in common acceptance it signifies the entry of the pleadings. 1 Chit. PI. 630. An issue should be upon a single and certain point, Com. Dig. Pleader, R 4; but it is not necessary that such point should consist of a single fact. 1 Burr. 316. And that point must be a material one. Com. Dig. Pleader, R 8. The issue also should not be on a negative pregnant, but it may be upon a disjunctive. Com. Dig. Pleader, R 7. There are several kinds of issues in pleading, which are enumerated below.
ISSUE IN FACT, pleading, takes place when the parties are at issue in their pleadings as to a matter of fact. This issue is to be tried by a jury. Issues in fact are general or special.
ISSUE IN LAW, pleading, takes place when one of the parties demurs to the pleadings of the other, and there is a joinder in the demurrer; in such case the facts being admitted, the court decide the law of the case, which is the matter in dispute between the parties.
ISSUE, SPECIAL, pleading. When the defendant takes issue upon any one substantial part of the declaration, and rests the weight of his cause upon it, he is said to take a special issue, in contradiction to the general issue, which denies and puts in issue the whole of the declaration. Com. Dig. Pleader, R 1, 2.
ISSUE, FEIGNED, practice. When in a court of equity any matter of fact is strongly contested, the court usually directs the matter to be tried by a jury, especially such important facts as the validity of a will, or whether A is the heir at law of B. But as no jury is summoned to attend this court, the fact is usually directed to be tried in a court of law upon a feigned issue. For this purpose an action is brought in which the plaintiff by a fiction declares that he laid a wager for a sum of money with the defendant, for example, that a certain paper is the last will and testament of A; then avers it is his will, and therefore demands the money; the defendant admits the wager but avers that it is not the will of A, and thereupon that issue is joined, which is directed out of chancery to be tried; and thus the verdict of the jurors at law determines the fact in the court of equity. These feigned issues are frequently used in the courts of law, by consent of the parties, to determine some disputed rights without the formality of pleading, and by this practice much time and expenses are saved in the decision of a cause. 3 Bl. Com. 452. The consent of the court must also
be previously obtained, for the trial of a feigned issue; without such consent it is a contempt, which will authorise the court to order the proceeding to be stayed, 4 T. R. 402, and punish the parties engaged. See Fictitious action.
ISSUE, INFORMAL, pleading. An informal issue is where a material allegation is traversed in an improper or inartificial manner; and this and the other preceding mistakes are aided by verdict by the 32 Hen. 8, c. 30; Gilb. C. B. 147; 2 Saund. 319.
ISSUE, IMMATERIAL, pleading. An immaterial issue is where a material allegation in the pleadings is not traversed, but an issue is taken on some other point, which, though found by the verdict will not determine the merits of the cause, and would leave the court at a loss for which of the parties to give judgment. 2 Saund. 319, n. 6 ; Gilb. C. P. 147; 1 Lev. 32; Com. Dig. Pleader, R 18.
ISSUE, GENERAL, pleading. The general issue denies in direct terms the whole declaration; as in personal actions, where the defendant pleads nil debet, that he owes the plaintiff nothing; or non culpabilis, that he is not guilty of the facts alleged in the declaration; or in real actions, where the defendant pleads nul tort, no wrong done, or nul disseisin, no disseisin committed. These pleas and the like are called general issues because by importing an absolute and general denial of all the matters alleged in the declaration, they at once put them all in issue. Formerly the general issue was seldom pleaded, except where the defendant meant wholly to deny the charge alleged against him; for when he meant to avoid and justify the charge, it was usual for him to set forth the particular ground of his defence as a special plea, which appears to have been necessary to apprize the court and the plaintiff of the particular nature and circumstances of the defendant's case, and was originally intended to keep the law and the fact distinct. And even now it is an invariable rule that every defence which cannot be specially pleaded, may be given in evidence at the trial upon the general issue, so the defendant is in many cases obliged to plead the particular circumstances of his defence specially, and cannot give them in evidence on that general plea. But the science of special pleading having been frequently perverted to the purposes of chicane and delay, the courts have in some instances, and the legislature in others, permitted the general issue to be pleaded, and special matter to be given in evidence under it at the trial, which at once includes the facts, the equity, and the law of the case. 3 Bl. Com. 305, 6,
ISSUES, Eng. law. The goods and profits of the lands of a defendant against whom a writ of distringas or distress infinite has been issued, taken by virtue of such writ,
are called issues. 3 Bl. Com. 280; 1 Chit. Cr. Law, 351.
ISTHMUS. A tongue or strip of land between two seas. Glos. on Law, 37, book 2, tit. 3, Dig.
ITEM, also; likewise; in like manner; again; a second time. These are the various meanings of this Latin adverb. V. Construction. In law it is to be construed conjunctively, in the sense of and, or also, in such a manner as to connect sentences: if therefore a testator bequeath a legacy to Peter payable out of a particular fund, or charged upon a particular estate, item a legacy to James, James's legacy as well as Peter's will be a charge upon the same property. 1 Alk. 436; 3 Atk. 256; 1 Bro. C. C. 482; 1 Rolle's Ab. 844; 1 Mod. 100; Cro. Car. 368; Vaugh. 262; 2 Rop. on Leg. 349; 1 Salk. 234. Vide Z>i«junctive.
ITER. A foot way. Vide Way.
ITINERANT, travelling or taking a journey. In England there were formerly judges called Justices itinerant, who were sent with commissions into certain counties to try
JACTITATION OF MARRIAGE, Eng. etcl. law, is the boasting by an individual that he or she has married another, from which it may happen that they will acquire the reputation of being married to each other. The ecclesiastical courts may in such cases entertain a libel by the party injured; and, on proof of the facts, enjoin the wrongdoer to perpetual silence; and, as a punishment, make him pay the costs. 3 Bl. Com. 93; 2 Hagg. Cons. R. 423; Id. 285; 2 Chit. Pr. 459.
JAIL. A prison; a place appoint
ed by law for the detention of prisoners. A jail is an inhabited dwellinghouse within the statute of New York, which makes the malicious burning of an inhabited dwelling-house to be arson, 8 John. 115; see 4 Call, 109. Vide Gaol; Prison.
JEOFAILE, this is a law French phrase, which signifies, I am in an error; I have failed. There are certain statutes, called statutes of amendment and jeofails, because where a pleader perceives any slip in the form of his proceedings, and acknowledges the error, (jeofaile,) he is at liberty by those statutes to amend it. The amendment, however, is seldom made, but the benefit is attained by the court's overlooking the exception. 3 Bl. Com. 407; 1 Saund. 228, n 1; Doct. PI. 287; Dane's Ab. h. t.
JEOPARDY, peril, danger. This is the meaning attached to this word used in the act establishing and regulating the post office department. The words of the act are, "or if, in effecting such robbery of the mail the first time, the offender shall wound the person having the custody thereof, or put his life in jeopardy by the use of dangerous weapons, such offender shall suffer death." 3 Story's L. U. S. 1992. Vide Baldw. R. 93-95. The constitution declares that no person shall "for the same offence, be twice put in jeopardy of life and limb." The meaning of this is, that the party shall not be tried a second time for the same offence after he has once been convicted or acquitted of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him; but it does not mean that he shall not be tried for the offence, if the jury have been discharged from necessity or by consent, without giving any verdict; or, if having given a verdict, judgment has been arrested upon it, or a new trial has been granted in his favour; for, in such a case, his life and limb cannot judicially be said to have been put in jeopardy. 4 Wash. C. C. R. 410; 9 Wheat." R. 579 ; 6 Serg. & Rawle, 577; 3 Rawle, R. 498; 3 Story on the Const. § 1781. Vide 2 Sumn. R. 19. This great privilege is secured by the common law. Hawk. P. C, B. 2, c. 35; 4 Bl. Com. 335. This was the Roman law, from which it has been probably engrafted on the common law. Vide Merl. Rep. art. Non bis in idem. Qui de crimine publico ac
cusatiouem deductus est, says the Code, 9, 2, 9, ab alio super eodem crimine deferri non potest. Vide article Non bis in idem.
JERGUER, Engl. lata. An officer of the custom-house, who oversees the waiters. Techn. Diet. h. t.
JETTISON or JETSAM, is the casting out of a vessel, from necessity, a part of the lading; the thing cast out also bears the same name; it differs from flotsam in this, that in the latter the goods float, while in the former they sink, and remain under water; it differs also from ligan, (q. v.) The jettison must be made for sufficient cause, and not from groundless timidity. It must be made in a case of extremity, when the ship is in danger of perishing by the fury of a storm, or is labouring upon rocks or shallows, or is closely pursued by pirates or enemies. If the residue of the cargo be saved by such sacrifice, the property saved is bound to pay a proportion of the loss. In ascertaining such average loss, the goods lost and saved are both to be valued at the price they would have fetched at the place of delivery, on the ship's arrival there, freight, duties and other charges being deducted. Marsh. Ins. 546; 3 Kent, Com. 185 to 187; Park, Ins. 123; Poth. Charte-partie, n. 108, et suiv; Boulay-Paty, Dr. Com. tit. 13; Pardessus, Dr. Com. n. 734; 1 Ware's R. 9.
JOB. By this term is understood among workmen, the whole of a thing which is to be done. In this sense it is employed in the civil code of Louisiana, art. 2727, "to build by a plot, or to work by the job," says that article, "is to undertake a building for a certain stipulated price." See Durant. du Contr. de Louage, liv. 3, t. 8, n. 248, 2fi3; Poth. Contr. de Louage, n. 393,394; and Deviation.
JOBBER, commerce. One who