Legal Terms: Letter G-I

 
 
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General Issue

In the English law of pleading, the form in which the defendant traverses or meets with a simple denial the whole allegation, or the principal fact on which the plaintiff relies in his declaration. Thus, in actions founded on wrongs the general issue is 'not guilty'; in actions of debt, that the defendant never was indebted; in actions on a deed or bond, non est factum, i.e. it is not the deed of the defendant. Under this issue, the defendant may prove that he never executed the deed, but not that it is bad in point of law.

In criminal proceedings the general issue is 'not guilty,' by which plea, without further form, every person not having the privilege of peerage, upon being arraigned upon any i8ndictment for treason, felony, or piracy, is deemed to have put himself upon the country for trial. Where a prisoner refuses to plead, a plea, of not guilty may be entered for him, 7 and 8 Geo. IV., c. 28. Under the plea of not guilty, the prisoner is entitled to give in evidence not only everything which negatives the charge, but also all matter of excuse or justification.

This form of plea survives and retains its principal characteristics even under the reformed systems of pleading which, in England and many of the United States, have supplanted the common-law system.

Garnishment

A process by which chattels, rights, or credits belonging to the defendant in an action, but which are in the possession of a third person, are seized and applied to the plaintiff's claim. The peculiarity of the process is indicated by the etymology of the term; garnishment meaning a warning or notice given to the third person not to pay money or turn over property to the defendant. It has been called an equitable attachment of the claims or assets of a defendant in the hands of a third person. It is not a common-law process, and is regulated by statute in the States where it exists. Such statutes are, as a rule, strictly construed, and their requirements must be fully and fairly complied with by a plaintiff who would take advantage of them. It is held that only such property in the hands of the third party, the garnishee is liable to this process as is not encumbered with trusts, and such as may be handed over or paid by the officer executing the process, under the order of the court and free from encumbrances, which can be properly determined and adjusted only by equity tribunals. Garnishment proceedings reach only such debts as are owing to the defendant at the time the process is served. A judgment obtained in a Federal court cannot be garnisheed in an action in a State court. Such garnishment would operate to oust the Federal court of its proper control over its own judgments. Debts owing by a public corporation to the defendant are not garnishable. If they were, municipal authorities might be compelled to occupy their time over contests in which the public had no interest. It may be laid down as a general rule that a person deriving his authority from the law to receive and hold property cannot be garnisheed for the same while holding it in that capacity.

As soon as the process of garnishment is duly served, the garnishee holds the property as a stakeholder or trustee. Accordingly, garnishment is known in some States as 'trustee process.' Consult Rood, Garnishment (1896), and the authorities referred to under Attachment.

H

Hilary Term

In English law, one of the four terms held for the administration of justice by the courts of common law, and named from the saints' days nearest to the date of beginning the terms. Hilary term was formerly appointed to commence on January 11th and to end on January 31st. It is now, by statute, a movable term, ending on the Wednesday before Easter.

I

Injury


In the legal sense of the term, an actionable wrong; that is, any act in violation of the rights of another of which the law will take cognizance by allowing the injured party an action against the wrongdoer to recover specific property or damage, or both. In the practical sense the term may also be said to embrace actionable wrongs against the State, in which case the result sough by the action brought by or on behalf of the State is the punishment of the offender. Injury, in the legal sense, is to be distinguished from wrongs which are damnum absque injuria, that is, acts resulting in harm to another for which the law gives no remedy.

An injury may also be injuria absque damno; that is, an injury which, although a technical invasion of a right, is without actual damage to the injured party. The principles governing the law of civil or private injury are discussed at length under the subject of Tort and under Equity, which exercised its preventive jurisdiction over torts.

In Personam

In the classification of legal rights, a right in personam is one available against a particular person as distinguished from one maintainable against the whole world, known as a right in rem. Rights in personam arise out of specific engagements entered into by individuals or out of duties imposed on individuals by the policy of the law. They thus comprehend all contract rights, the rights that arise out of the domestic relations or out of fiduciary or official position. Thus, the right tot he performance of a contract, the right of a husband to the society of his wife, the right of a beneficiary against a trustee, in each case asserted against a determinate person, are all rights in personam. But by far the largest class of these rights is that which springs from the violation of other rights, whether rights in rem or in personam. A right once violated whether a right of property by a trespass, or the right of personal security by an assault, or a contract right by a breach of contract a right of action arises, and this right of action, being limited to the person or persons committing the act complained of is necessarily a right in personam.

The expression in personam is also commonly employed to describe the action instituted for the violation of any right, whether in rem or in personam. Wherever an action is brought against an individual, whether for damages or for the restitution of money or specific property, it is properly described, as an action in personam. The action in rem is in our law limited to a narrow range of cases. The phrase in personam is also employed in a narrower sense to describe the mode in which a legal obligation is enforced against an individual. The courts of chancery are said to act in personam, i.e. by ordering a person to do or to refrain from doing a certain thing, while courts of law, whose function is not to command, but to adjudicate controversies, are said to act in rem.

Inquiry, Writ of

A common-law writ or process directed to a sheriff commanding him to empanel a jury for the purpose of assessing damages. It is employed against a defaulting defendant. The proceedings under such a writ are termed an inquest.

Inquisition

The formal instrument in writing setting forth the verdict or decision of a sheriff's or coroner's jury as a result of their inquiry into the facts of the matter referred to them. It is certified and signed by each of the jurors, and is usually required to be filed in some public office as a record of the inquest. It does not operate as a judgment, but is sometimes the basis of further proceedings in the matter. For example, if a coroner's jury summoned to inquire into the cause of the death of A find that he was killed by B under circumstances not justifiable by law, the proper authorities will cause the latter to be indicted. The inquisition is not evidence against him, being merely for the information of the public prosecutor.

The word is less frequently used to describe the proceedings at an inquest, but his leads to confusion, and is not sanctioned by the best authorities.

In Rem

In the classification of legal rights, a right in rem is a right of a general character, available against the whole world, as distinguished from a right in personam, which is a right against a determinate person (in personam certam). Rights in rem are not limited to things, i.e. to property, as the phrase might indicate, but comprehend all rights, whether in respect to person or property, which are claimed or asserted against all persons whatsoever, and not against any particular individual. Thus the right not to be assaulted, the right to personal liberty and security, are rights in rem, as well as the right to be free from trespass or other invasion of a property right.

The expression is also employed to designate a form of action in which the remedy sought is not damages against an individual, but the seizure and detention of specific articles. In such cases the thing sought to be recovered or charged with the claim of the plaintiff is personified for the purpose of making it the defendant in the action. Such proceedings are not common in our legal system, the ordinary process for the recovery of land or goods being really an action in personam against the person wrongfully withholding the property. But in admiralty practice such actions are common. They are brought for the enforcement of maritime liens against a vessel or cargo, for the recovery of salvage, to procure the forfeiture of property for a violation of the revenue laws, or to obtain possession of a prize in time of war.

Interpleader

An equitable remedy, available to a person against whom two or more persons claim the same thing, debt, or duty, and who is, without his own fault, ignorant or in doubt as to which is the rightful claimant. It was first used in England to enable a depositary or bailer of deed in escrow of whom the grantor and grantee each demanded delivery of the deeds to himself (one affirming and the other denying that the terms or conditions had been complied with) when sued by either to recover possession of the deeds, to apply to the court for an order compelling the other claimant to appear and be substituted as defendant in his stead. This relief was all that could be granted by a court of law, and was originally confined to the above class of cases.

The idea was taken up by the courts of equity, and was extended to cover claims of every nature, where the demands were identical. It became the practice to permit one who was harassed by two claimants demanding the same thing, debt, or duty, to file a bill or pleading in equity setting forth the facts and praying that the parties be compelled to interplead, that is, to contest their claims before the court between themselves, and that the court decree which of them was justly entitled to the matter in controversy. This was permitted irrespective of whether actions had been commenced or not. In this form the remedy exists in modern practice. The pleading by which the complainant brings the matter before the court must set forth the following facts: (1) That two or more persons make a claim against him; (2) that they claim the same thing, debt, or duty; (3) that he has no beneficial interest in the thing or obligation claimed; and (4) that he cannot determine without hazard to himself which is the rightful claimant. He must also show by affidavit that he is not in collusion with either party, and must allege his willingness to perform his obligation to the proper party. He must, therefore, he entirely indifferent, as to which claimant succeeds; in other words, be in the position of a stakeholder. Very abstruse questions of law often arise as to whether the parties are demanding the performance of the same obligation. For example, if a landlord and a person claiming title from an entirely different and independent source, both demand rent from a tenant, he cannot compel them to interplead, as he is under a duty to his landlord not to dispute his title. However, if a person claiming to have derived his title from or through the landlord by purchase or otherwise and the landlord himself both demand rent, the tenant has grounds for relief, as they demand the same obligation, and he does not thereby dispute his landlord's original title.

The relief will not be granted where it appears that the applicant knows or should know which of the claims is just, but if there is a reasonable doubt, and he would be running a personal risk to decide between them, with the means of knowledge at his command, it is the settled practice to allow the remedy.

Interrogatories

To question, from inter, between + rogare, to ask). Questions in writing prepared for the examination of one or more witnesses in a judicial proceeding, to be taken out of court.

In the English and American law interrogatories are commonly employed in the following classes of eases: Where the testimony of an aged or infirm witness is to be taken before trial, in order that it may be available in case of his death; where a witness is out of the jurisdiction, and it is desirable to obtain his testimony or deposition, as it is called; and in connection with a bill of discovery in equity. In the first two classes of cases the practice is for the counsel desiring the testimony to obtain an order, or commission, from the court, directing that the examination be taken before some officer competent to administer an oath, and then to prepare his interrogatories and submit them to the opposite party or his counsel, who may prepare cross-interrogatories. In some jurisdictions the legal competency of the questions is settled by the court before the examination, and in others the objections of counsel are noted at the time of the examination and ruled upon at the trial. The commission and the interrogatories are then forwarded to the designated officer, who summons the witnesses on the day fixed, administers the cath, propounds the questions, reduces the answers to writing and transmits them, together with the order and interrogatories, to the court out of which the commission issued. Such examinations are subject to all the rules of evidence.

Interrogatories are sometimes annexed to a libel in an action in admiralty, but this is not common practice.

 

Website: The History Box.com
Article Name: Legal Terms: Letter G-I
Researcher/Transcriber Miriam Medina

Source:

BIBLIOGRAPHY: From my Collection of Books: The New International Encyclopedia; 1902-1905 Dodd, Mead and Company-New York Total of 21 Volumes
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