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ed to be born while in ventre sa mere. 5 T. R. 49; Co. Litt. 36;
1 P. Wms. 329; Civ. Code of Lo. art. 948.—2. He is enabled to have an estate limited to his use. 1 Bl. Com. 130.—3. May have a distributive share of intestate property. 1 Ves. 81.—4. Is capable of taking a devise of lands. 2 Atk. 117; I Freem. 244, 293.—5. Takes under a marriage settlement a provision made for children living at the death of the father. 1 Ves. 85.-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. jun. 673; ] Sim. & Stu. 181; 1 B. & P. 243; 5 T. R. 49. See also, 1 Ves. sen. 85; Id. I11;
1 P. Wms. 244, 341 ; 2 Bro. C. C. 63; Amb. 703, 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.—7. May be appointed executor. Bac. Ab. Infancy, B.—S. A bill may be brought in its behalf, and the court will grant an injunction to stay waste, 2 Vern. 710; Pre. Ch. 50.—9. The mother of a child in ventre sa mere may detain writings on its behalf. 2 Vern. 710.—10. May have a guardian assigned to it. 1 Bl. Com. 130.—11. The destruction of such a child is a heinous misdemeanor. 1 Bl. Com. 129, 130.—12. And the birth of a posthumous child amounts in Pennsylvania to a 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 Fmtus.
INADEQUATE PRICE. This term is applied to indicate the want of a sufficient consideration for a
thing sold, or such price as under ordinary circumstances would be considered insufficient. Inadequacy of price is frequently connected with fraud, gross misrepresentation, 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. III ; 1 Bro. P. C. 187; 6 John. R. 110; 3 Cranch, 270; 4 Dall. R. 250; 3 Atk. 283; 1 Bro. C. C. 440. In general, however, inadequacy of price is not sufficient j ground to avoid a contract, particularly when the property has been sold by auction. 7 Ves. Jr. 30; 3 Bro. C. C. 228; 7 Ves. Jr. 35, note. But if an uncertain consideration (as a life annuity) be given for an estate, and the contract be executory, equity, it seems, will enter into the adequacy of the consideration. 7 Bro. P. C. 184; 1 Bro. C. C. 156. Vide 1 Teates, 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.
INADMISSIBLE. 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, is the want of a quality legally to do, give, transmit or receive something. 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. In general the incapacity ceases with the cause which produces it. If the idiot should obtain his senses, or the married woman's husband die, their incapacity would be at an end. 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. This offence is punished by the statute laws of the different states according to their several provisions. The civil law punished him with death, Dig. 47, 9, 12, 1, by being cast into the fire. Ib. 48, 19, 28, 12; Code, 9, 1, 11 ; vide Dane's Ab. Index, h. t.
INCEPTION. The commencement; the beginning. In making a will, for example, the writing is its inception. 3 Co. 31 b; Plowd. 343. Vide Consummation; Progression.
INCEST, is the carnal copulation of two persons 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.
INCH, a measure of length, containing one-twelfth part of a foot.
INCHOATE. That which is not yet completed; what is not 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 triparte, and it is executed by only two of the parties, is incomplete, and no one is bound by it. 2 Halst. 142. Vide Locus pamitentiat.
INCIDENT, is a thing necessarily depending upon, appertaining to, or following another, called the principal. The power of punishing for contempt is incident to a court of record; rent is incident to a reversion; distress to rent; estovers of wood to a tenancy for 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.; Rolle'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, -is that which is taken in the computation of any thing. 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.
INCOMPATIBILITY, offices, rights; this term is used to show that two or more things ought not to be 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 devisee of the same thing; trustee and cestui que trust of the same property. There are offices which are incompatible with each other by constitutional provision; the vice-president of the 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." 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 liJth 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. 6c R. 219; and the article Office.
INCOMPETENCY, in the French law, is the state of a judge who cannot take cognizance of a dispute brought before him; a want of jurisdiction. 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. 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; 8 Cowen, Rep. 7^4; 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. 4«9; 5 Cranch, 288; 1 Pet. R. 449; 4 W. C. C. R. 84; 8 Wheat. 699; Merl. Rep. mot Incompetence. It is a maxim in the common law, aliquis non debet esse judex in propria' 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. 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. 195; 4 Yeates, R. 446; 3 Cowen, R. 725; Salk. 396; Bac. Ab. Courts, B; and the articles Competency; Credibility ,• Interest; Judge; Witness
INCOMPETENCY, evidence, is the want of legal ability in a witness to be heard as such on the trial of a cause. The objections to the competency (q. v.) of a witness are fourfold. 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.
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 reunion of one domain to another.
INCORPOREAL, is that which has no body. Things incorporeal are those which are not the object of sense, which cannot be seen nor felt, but which we can easily conceive in the understanding, as rights, actions, successions, easements, and the like. Dig. lib. 6, t. 1; lb. lib. 41, t. 1, L 43, § 1; Poth. Traite des chocs, §2.
INCORPOREAL HEREDITAMENT, title, estates, is a right issuing out of, or annexed unto, a thing corporeal. 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; Polh. Traite des choses, § 2. According to Sir William Blackstone, there are ten kinds of incorporeal hereditaments; namely, 1, advowsons; 2, titles; 3, commons; 4, ways; 5, offices; 6, dignities; 7, franchises; 8, corodies; 9, annuities; 10, rents. 2 Blacks. Com. 20.
INCORPOREAL PROPERTY, civil law, is 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, codes, 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. In cases of sales of real estate, the vendor is re
quired 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. 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; 5 Ves. 99; 4 Ves. 24. See, generally, 14 Vin. Ab. 352; Com. Dig. Chancery, 4 A 10, 4 I 3; 9 Watts, R. 152.
INDEBITATUS ASSUMPSIT, remedies, pleadings, is 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. PI. 334; Steph. PI. 318; Yelv. 21; 4 Co. 92 b. For the history of this form of action, see 3 Reeve's Hist. Com. Law; 2 Comyn on Contr. 549 to 556; 1 H. Bl. 550, 551 ; 3 Black. Com. 154; Yelv. 70. Vide Pactum Constituta Pecunia.
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.
INDECENCY. Obscenity calculated to promote the violation of the law, or that which tends to the general corruption of morals. 2 Serg. & Rawle, 91. The following are examples of such indecency, namely, 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. 3(12; 1 Hawk. P. C. c. 5, s. 4; 4 Bl. Com. 65, n.; 1 East, P. C. c. 1, 8. 1; Burn's Just. Lewdness.
INDEFEASIBLE, what cannot be defeated; what cannot be undone. This epithet is usually applied to an estate or right which cannot be defeated.
INDEFENSIS. One sued or impleaded, who refuses to answer.
INDEFINITE NUMBER. See Definite number.
INDEFINITE PAYMENT, contracts, is 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. What 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.
INDENTURE, conveyancing, is 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. 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 cut 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. 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 dispositions 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 Declaration of Inde. pendence.
INDEPENDENT CONTRACT, is one in which the mutual acts or promises have no relation to each other, either as equivalents or consi. derations. Civil Code of Lo. art. 1762.
INDIAN TRIBE, a body of the aboriginal Indian race of men found in the United States. 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 sclf-government; but 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 pupillage; and its relation to the United States