DAM. A construction of wood, stone, or other materials, made
across a stream of water for the purpose of confining it; a mole.
2. The owner of a stream not navigable, may erect a dam across it, and
employ the water in any reasonable manner, either for his use or pleasure, so
as not to destroy or render useless, materially diminish, or affect the
application of the water by the proprietors below on the stream. He must not
shut the gates of his dams and detain the water unreasonably, nor let it off in
unusual quantities to the annoyance of his neighbors. 4 Dall. 211; 3 Caines,
207; 13 Mass. 420; 3 Pick, 268; 2 N. H. Rep. 532; 17 John. 306; 3 John. Ch.
Rep. 282; 3 Rawle, 256; 2 Conn. Rep. 584; 5 Pick. 199; 20 John. 90; 1 Pick.
180; 4 Id. 460; 2 Binn. 475; 14 Srrg. & Rawle, 71; Id. 9; 13 John. 212; 1
McCord, 580; 3 N. H. Rep. 321; 1 Halst. R. 1; 3 Kents Com. 354.
3. When one side of the stream is owned by one person and the other by
another, neither, without the eonsent of the other, can build a dam which
extends beyond the filum aqua, thread of the river, without committing a
trespass. Cro. Eliz. 269; 12 Mass. 211; Ang. on W. C. 14, 104, 141; vide Lois
des Bat. P. 1, c. 3, s. 1, a. 3; Poth. Traite du Contrat de Societe, second
app. 236; Hill. Ab. Index, h. t.; 7 Cowen, R. 266; 2 Watts, R. 327; 3 Rawle, R.
90; 17 Mass. R. 289; 5 Pick. R. 175; 4 Mass. R. 401. Vide Inundation.
DAMAGE, torts. The loss caused by one person to another, or to
his property, either with the design of injuring him, with negligence and
carelessness, or by inevitable accident.
2. He who has caused the damage is bound to repair it and, if he has
done it maliciousiy, he may be. compelled to pay beyond the actual loss. When
damage occurs by accident, without blame to anyone, the loss is borne by the
owner of the thing injured; as, if a horse run away with his rider, without any
fault of the latter, and injure the property of another person, the injury is
the loss of the owner of the thing. When the damage happens by the act of God,
or inevitable accident, as by tempest, earthquake or other natural cause, the
loss must be borne by the owner. Vide Com. Dig. h. t.; Sayer on Damages.
3. Pothier defines damage (dommiges et interets) to be the loss which
some one has sustained, and the gain which he has failed of making. Obl. n.
DAMAGE FEASANT, torts. This is a corruption of the French words
faisant dommage, and signifies doing damage. This term is usually applied to
the injury which animals belonging to one person do upon the land of another,
by feeding there, treading down his grass, corn, or other production of the
earth. 3 Bl. Com. 6; Co. Litt. 142, 161; Com. Dig. Pleader, 3 M 26. By the
common law, a distress of animals or things damage feasant is allowed. Cow.
Inst. 230; Gilb. on Distress and Replevin, 21. It was also allowed by the
ancient customs of France. 11 Toull. 402 Repertoire de Jurisprudence, Merlin,
au mot Fourriere; 1 Fournel, Traits de Voisinage, au mot Abandon. Vide
DAMAGED GOODS. In the language of the customs, are goods subject
to duties, which have received some injury either in the voyage home, or while
bonded in warehouses. See Abatement, merc. law.
DAMAGES, practice. The indemnity given by law, to be recovered
from a wrong doer by the person who has sustained an injury, either in his
person, property, or relative rights, in consequence of the acts of
2. Damages are given either for breaches of contracts, or for tortious
3. Damages for breach of contract may be given, for example, for the
non-performance of a written or verbal agreement; or of a covenant to do or not
to do a particular thing.
4. As to the measure of damages the general rule is that the delinquent
shall answer for all the injury which results from the immediate and direct
breach of his agreement, but not from secondary and remote consequences.
5. In cases of an eviction, on covenant of seisin and warranty, the rule
seems to be to allow the consideration money, withinterest and costs. 6 Watts
& Serg. 527; 2 Dev. R. 30; 3 Brev. R. 458. See 7 Shepl. 260; 4 Dev. 46. But
in Massachusetts, on the covenant of warranty, the measure of damages is the
value of the land at the time of eviction. 4 Kent's Com. 462, 3, and the cases
there cited; 3 Mass. 523; 4 Mass. 108; 1 Bay, 19, 265; 3 Desaus. Eq. R. 247; 4
Penn. St. R. 168.
6. In estimating the measure of damages sustained in consequence of the
acts of a common carrier, it frequently becomes a question whether the value of
the goods at the place of embarkation or the port of destination is the rule to
establish the damages sustained. It has been ruled that the value at the port
of destination is the proper criterion. 12 S. & R. 186;. 8 John. R. 213; 10
John. R. 1; 14 John. R. 170; 15 John. R. 24. But contrary decisions have taken
place. 3 Caines, R. 219 4 Hayw. R. 112; and see 4 Mass. R. 115; 1 T. R. 31; 4
T. R. 582.
7. Damages for tortious acts are given for acts against the person, as
an assault and battery against the reputation, as libels and slander, against
the property, as trespass, when force is used; or for the consequential acts of
the tort-feasor, as, when a man, in consequence of building a dam on his own
premises, overflows his neighbor's land; or against the relative rights of the
party injured, as for criminal conversation with his wife.
8. No settled rule or line of distinction can be marked out when a
possibility of damages shall be accounted too remote to entitle a party to
claim a recompense: each case must be ruled by its own circumstances. Ham. N.
P. 40; Kames on Eq. 73, 74. Vide 7 Vin. Ab. 247; Yelv. 45, a; Id. 176, a; Bac.
Ab. h. t.; 1 Lilly's Reg. 525; Domat, liv. 3, t. 5, s. 2, n. 4; Toull. liv. 3,
n. 286; 2 Saund. 107, note; 1 Rawle's Rep. 27; Coop. Just. 606; Com. Dig. 11.
t.; Bouv. Inst. Index, h. t. See, Cause; Remote.
9. Damages for torts are either compensatory or vindictive. By
compensatory damages is meant such as are given morely to recompense a party
who has sustained a loss in consequence of the acts of the defendant, and where
there are no circumstances to aggravate the act, for the purpose of
compensating the plaintiff for his loss; as, for example, Where the defendant
had caused to be seized, property of A for the debt of B, when such property
was out of A's possession, and there appeared reason to believe it was B's.
Vindictive damages are such as are given against a defendant, who, in addition
to the trespass, has been guilty of acts of outrage and wrong which cannot well
be measured by a compensation in money; as, for example, where the defendant
went to A's bouse, and with insult and outrage seized upon A's property, for a
debt due by B, and carried it away, leaving A's family in distress. Sedgw. on
Dam. 39; 2 Greenl. Ev. §253; 1 GIllis. 483; 12 Conn. 580; 2 M. & S.
77; 4 S. & R. 19; 5 Watts, 375; 5 Watts & S. 524; 1 P. S. R. 190,
10. In cases of loss of which have been insured from maritime dangers,
when an adjustment is made, the damages are settled by valuing the property,
not according to prime cost, but at the price at which it may be sold at the
time of settlling the average. Marsh. Inst. B. 1, c. 14, s. 2, p. 621. See
DAMAGES, EXCESSIVE. Such damages as are unreasonably great, and
not warranted by law.
2. The damages are excessive in the following cases: 1. When they are
gre-ater than is demanded by the writ and declaration. 6 Call 85; 7 Wend. 330.
2. When they are greater than is authorized by the rules and principles of law,
as in the case of actions upon contracts, or for torts done to property, the
value of which may be ascertained by evidence. 4 Mass. 14; 5 Mass. 435; 6
3. But in actions for torts to the person or reputation of the
plaintiff, the damages will not be considered excessive unless they are
outrageous. 2 A. K. Marsh 365; Hard. 586; 3 Dana, 464; 2 Pick. 113; 7 Pick. 82;
9 John. 45; 10 John. 443; 4 Mass. 1; 9 Pick. 11; 2 Penn. 578.
4. When the damages are excessive, a new trial will be granted on that
DAMAGES INADEQUATE. Such as are unreasonably low, and less than
is required by law.
2. Damages are inadequate, when the plaintiff sues for a breach of
contract, and the damages given are less than the amount proved. 9 Pick.
3. In actions for torts, the smallness of damages cannot be considered
by the court. 3 Bibb, 34. See 11 Mass. 150.
4. In a proper case, a new trial will be granted on the ground of
DAMAGES ON BILLS OF EXCHANGE, contracts. A penalty affixed by
law to the non-payment of a bill of exchange when it is not paid at maturity,
which the parties to it are obliged to pay to the holder.
2. The discordant and shifting regulaaions on this subject which have
been enacted in the several states, render it almost impossible to give a
correct view of this subject. The drawer of a bill of exchange may limit the
amount of damages by making a memorandum in the bill, that they shall be a
definite sum; as, for example, "In case of non-acceptance or non-payment,
reexchange and expenses not to exceed ___________ dollars. 1 Bouv. Inst. n.
1133. The following abstract of the laws of several of the United States, will
be acceptable to the commercial lawyer.
3. - Alabama. 1. When drawn on a person in the United States. By the Act
of January 15, 1828, the damages on a protested bill of exchange drawn on a
person, either in this or any other of the United States, are ten per cent. By
the Act of December 21, 1832, the damages on such bills drawn on any person in
this state, or upon any person payable in New Orleans, and purchased by the
Bank of Alabama or its branches, are five per cent.
4. - 2. Damages on protested bills drawn on on person out of the United
States are twenty per cent.
5. - Arkansus. 1. It is provided by the Act of February 28, 1838, s. 7,
Ark. Rev. Stat. 150, that "every bill of exchange expressed to be for value
received, drawn or negotiated within this state, payable after date, to order
or bearer, which shall be duly presented for acceptance or payment, and
protested for non-acceptance or non-payment, shall be subject to damages in the
following cases: first, if the bill have been drawn on any person at any place
within this state, at the rate of two per centum on the principal sum specified
in the bill; second, if the bill shall be drawn on any person, and payable in
any of the states of Alabama, Louisiana, Mississippi, Tennessee, Kentucky,
Ohio, Indiana, Illinois, and Missouri, or any point on the Ohio river, at the
rate of four per centum on the principal sum in such bill specified: third, if
the bill shall have been drawn on auy person, and payable at any place within
the Iimits of the United States, not hereinbefore expressed, at the rate of
five per centum on the principal sum specified in the bill: fourth, if the bill
shall have been drawn on any person, and payable at any point or place beyond
the limits of the United States, at the rate of ten per centum on the sum
specified in the bill.
6. - 2. And by the 8th section of the same act, if any bill of exchange
expressed to be for value received, and made payable to order or bearer, shall
be drawn on any person at any place within this state, and accepted and
protested for non-payment, there shall be allowed and paid to the holder, by
the acceptor, damages in the following cases: first, if the bill be drawn by
any person at any place within this sate, at the rate of two per centum on the
principal sum therein specified: second, if the bill be drawn at any place
without this state, but within the limits of the United States, at teh rate of
six per centum on the sum therein specified: third, if the bill be drawn on any
person at any place without the limites of the United Sates, at the rate of ten
per centum on the sum therein specified. And, by sect 9, in addition to the
damages allowed inthe two preceding sections to the holder of any bill of
exchange protested for non-payment or nonacceptance, he shall be entitled to
costs of protest, and interest at the rate of ten per centum per annum, on the
amount specified in the bill, from the date of teh protest until the amount of
the bill shall be paid."
7. - Connecticut. 1. When drawn on another place in the United States.
When drawn upon persons in the city of New York, two per cent. When in other
parts of the state of New York, or the New England states (other than this,)
New Jersey, Pennsylvania, Delaware, maryland, Virginia, or the District of
Columbia, three per cent. When on persons in North or South Carolina, Georgia,
or Ohio, five per cent. On other states, territories or districts, in the
United States, eight per cent, on the principal sum in each case, with interest
on the amount of such sum, with the damage after notice and demand. Stat. tit.
71, Notes and Bills, 413, 414. When drawn on persons residing in Connecticut no
damages are allowed.
8. - 2. When the bill is drawn on person out of the United States,
twenty per cent is said to be the amount which ought reasonably to be allowed.
Swift's Ev. 336. There is no statutory provision on the subject.
9. - Delaware. If any person shall draw or endorse any bill of exchange
upon any person in Europe, or beyond seas, and the same shall be returned back
unpaid, with a legal protest, the drawer there and all others concerned shall
pay and discharge the contents of the said bill, together with twenty per cent
advance f or the damage thereof; and so proportionably for a greater or less
sum, in the sam specie as the same bill was drawn, or current money of this
government equivalent to that which was first paid to the drawer or
10. - Georgia. 1. Bills on persons in the United States. First, in the
state. No damages are allonved on protested bills of exchange drawn in the
state, on a person in the state, except bank bills, on which the damages are
ten per cent for refusal to pay in specie. 4 Laws of Geo. 75. Secondly, upon
bills drawn or negotiated in the state on persons out of the state, but within
the United States, five per cent, and interest. Act of 1823, Prince's Dig. 454;
4 Laws of Geo. 212.
11. - 2. When drawn upon a person out of the United States, ten per
cent. damages and postage, protest and necessary expenses; also the premium, if
any, on the face of the bill; but if at a discount, the discount must be
deducted. Act of 1827, Prince's Dig. 462; 4 Laws of Geo. 221.
12. - Indiana. 1. When drawn by a person in the state on another person
in Indiana, no damages are allowed.
13. - 2. When drawn on a person in another state, territory, or
district, five per cent. 3. When drawn on a person out of the United States,
ten percent. Rev. Code, c. 13, Feb. 17, 1838.
14. - Kentucky. 1. When drawn by a person in Kentucky on a person in the
state, or in any other state, territory, or district of the United Stateg, no
damages are allowed. See, Acts, Sessions of 1820, p. 823.
15. - 2. When on a person in a foreign country, damages are given at the
rate of ten per cent. per ann. from the date of the bill until paid, but not
more than eighteen months interest to be collected. 2 Litt. 101.
16. - Louisiana. The rate of damages to be allowed and paid upon the
usual protest for non-acceptance, or for non-payment of bills of exchange,
drawn or negotiated within this state in the following cases, is as follows: on
all bills of exchange drawn on or payable in foreign countries, ten dollars
upon the hundred upon the principal sum specified in such bills; on all bills
of exchange, drawn on and payable in other states in the United States, five
dollars upon the hundred upon the principal sum specified in such bill. Act of
March 7, 1838, s. 1.
17. By the second section of the same act it is provided that such
damages shall be in lieu of interest, charge of protest, and all other charges,
incurred previous to the time of giving notice of non-acceptance or
non-payment; but the principal and damages shall bear interest thereafter.
18. By section 3, it is enacted, that if the contents of such bill be
expressed in the money of account of the United States, the amount of the
principal and of the damages herein allowed for the non-acceptance or
non-payment shall be ascertained and determined, without any reference to the
rate of exchange existing between this state and the place on which such bill
shall have been drawn, at the time of the payment, on notice of non-acceptance
or non- payment.
19. - Maine. 1. When drawn payable in the United States. The damages in
addition to the interest are as follows: if for one hundred dollars or more,
and drawn, accepted, or endorsed in the state, at a place, seventy-five miles
distant from the place where drawn, one per cent.; if, for any sum drawn,
accepted, and endorsed in this state, and payable in New Hampshire, Vermont,
Connecticut, Rhode Island, or New York, three per cent; if payable in New
Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, Georgia, or
the District of Columbia, six per cent.; if payable in any other state, nine
per cent. Rev. St. tit. 10 c. 115, §§110, 111.
20. - 2. Out of the United States, no statutory provision. It is the
usage to allow the holder of the bill the money for which it was drawn, reduced
to the currency of the state, at par, and also the charges of protest with
American interest upon those sums from the time when the bill should have been
paid and the further sum of one-tenth of the money for which the bill was
drawn, with interest upon it from the time payment of the dishonored bill was
demanded of the drawer. But nothing has been allowed for re-exchange, whether
it is below or above par. Per Parsons, Ch. J. 6 Mass. 157, 161 see 6 Mass.
21. Maryland. 1. No damages are allowed when the bill is drawn in the
state on another person in Maryland.
22. - 2. When it is drawn on any "person, company, or society, or
corporation in any other of the United States," eight per cent. damages on the
amount of the bill are allowed, and an amount to purchase another bill, at the
current exchange, and interest and losses of protest.
24. - 3. If the bill be drawn on a "foreign country," fifteen per cent.
damages are allowed, and the expense of purchasing a new bill as above, besides
interest and costs of protest. See Act of 1785, c. 88.
25. - Michigan. 1. When a bill is drawn in the state on a person in the
state, no damages are allowed.
26. - 2. When drawn or endorsed within the state and payable out of it,
within the United States, the rule is as follows: in addition to the contents
of the bill, with interest and costs, if payable within the states of
Wisconsin, Illinois, Indiana, Ohio, and New York, three per cent. on the
contents of the bill if payable within the states of Missouri, Kentucky, Maine,
New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey,
Pennsylvania, Delaware, Maryland, Virginia, or the District of Columbia, five
per centum; if payable elsewhere in the United States, out of Michigan, ten per
cent. Rev. St. 156, S. 10.
27. - 3. When the bill is drawn within this state, and payable out of
the United States, the party liable must pay the same at the current rate of
exchange at the time of demand of payment, and damages at the rate of five per
cent. on the contents thereof, together with interest on the said contents,
which must be computed, from the date of the protest, and are in full of all
damages and charges and expenses. Rev. Stat. 156, s. 9.
28. - Mississippi. 1. When drawn on a person in the state, five per
cent. damages are allowed. How. & Hutch. 376, ch. 35, s. 20, L. 1827; How.
Rep. 3. 195.
29. - 2. When drawn on a person in another state or territory, no
damages are given. Id. 3. When drawn on a person out of the United States, ten
per cent. damages are given, and all charges incideutal thereto, with lawful
interest. How. & Hutch. 376, ch. 35, s. 19, L. 1837.
30. - Missouri. 1. When drawn on a person within the state, four per
cent. damages on the sum specified in the bill are given. Rev. Code, 1835,
§8, cl. 1, p. 120.
31. - 2. When on another state or territory, ten per cent. Rev. Code,
1835, §8, cl. 2, p. 120. 3. When on a person out of the Unted States,
twenty per cent. Rev. Code, 1835, §8, cl. 3, p. 120.
32. - New York. By the Revised Statutes, Laws of N. Y. sess. 42, ch. 34,
it is provided that upon bills drawn or negotiated within the state upon any
person, at any place within the six states east of New York, or in New Jersey,
Pennsylvania, Ohio, Delaware, Maryland, Virginia, or the District of Columbia,
the damages to be allowed and paid upon the usual protest for non-acceptance or
non-payment, to the holder of the bill, as purchase thereof, or of some
interest therin, for a valuable consideration, shall be three per cent. upon
the principal sum specified in the bill; and upon any person at any place
within the states of North Carolina, South Carolina, Georgia, Kentucky, and
Tennessee, five percent; and upon any person in any other state or territory of
the United States, or at any other place on, or adjacent to, this continent,
and north of the equator, or in any British or foreign possessions in the West
Indies, or elsewhere in the Western Atlantic Ocean, or in Europe, ten per cent.
The damages are to be in lieu of interest, charges of protest, and all other
charges incurred previous to, and at the time of, giving notice of
non-acceptance or non-payment. But the holder will be entitled to demand and
recover interest upon the aggregate amount of the principal sum specified in
the bill, and the damages from time of notice of the protest for
non-acceptance, or notice of a demand and protest for non-payment. If the
contents of the bill be expressed in the money of account of the United States,
the amount due thereon, and the damages allowed for the non-payment, are to be
ascertained and determined, without reference to the rate of exchange existing
between New York and the place on which the bill is drawn. But if the contents
of the bills be expressed in the money of account or currency of any foreign.
country, then the amount due, exclusive of the damages, is to be ascertained
and determined by the rate of exchange, or the value of such foreign currency,
at the time of the demand of payment.
33. - Pennsylvania. The Act of March 30, 1821, entitled an act
concerning bills of exchange, enacts, that, §1, "whenever any bill of
exchange hereafter be drawn and endorsed within this commonwealth, upon any
person or persons, or body corporate, of, or in any other state, territory, or
place, shall be returned unpaid with a legal protest, the person or persons to
whom the same shall or may be payable, shall be entitled to recover and receive
of and from the drawer or drawers, or the endorser or endorsers of such bill of
exchange, the damages hereinafter specified, over and above the principal sum
for which such bill of exchange shall have been drawn, and the charges of
protest, together with lawful interest on the amount of such principal sum,
damages and charges of protest, from the time at which notice of said protest
shall have been given, and the payment of said principal sum and damages, and
charges of protest demanded; that is to say, if such bill shall have been drawn
upon any person or persons, or body corporate, of, or in any of the United
States or territories thereof, excepting the state of Louisiana, five per cent.
upon such principal sum; if upon any person or persons, or body corporate, of,
or in Louisiana, or of, or in any other state or place in North America, or the
islands thereof, excepting the northwest coast of America and Mexico, or of, or
in any of the West India or Bahama Islands, ten per cent. upon such principal
sum; if upon any person or persons, or body corporate, of, or in the island of
Madeira, the Canaries, the Azores, the Cape de Verde Islands, the Spanish Main,
or Mexico, fifteen per cent. upon such principal sum; if upon any person or
persons, or body corporate, of, or in any state or place in Europe, or any of
the island's thereof, twenty per cent. upon such principal sum; if upon any
person or persons, or body corporate, of, or in any other part of the world,
twenty-five per cent. upon such principal sum.
34. - §2. "The damages, which, by this act, are to be recovered
upon any bill of exchange, shall be in lieu of interest and all other charges,
except the charges of protest, to the time when notice of the protest and
demand of psyment shall have been given and made, aforesaid; and the amount of
such bill and of the damages payable thereon, as specified in this act, shall
be ascertained and determined by the rate, of exchange, or value of the money
or currency mentioned in such bill, at the time of notice of protest and demand
of payment as before mentioned."
35. - Tennessee. 1. On a bill drawn or endorsed within the state upon
any person or persons, or body corporate, of, or in, any other state,
territory, or place, which shall be returned unpaid, with a legal protest, the
holder shall be entitled to the damages hereinafter specified, over and above
the principal sum for which such bill of exchange shall have been drawn, and
the charge of protest, together with lawful interest on the amount of such
principal sum, damages, and charges of protest, from the time at which notice
of such protest shall have been given, and the payment of said principal sum,
damages, and charges of protest demanded; that is to say, if such bill shall
have been drawn on any person or persons, or body corporate, of, or in any of
these United States, or the territories thereof, three per cent. upon such
principal sum: if upon any other person or persons, or body corporate, of, or
in, any other state or place in North America, bordering upon the Gulf of
Mexico, or of, or in, any of the West India Islands, fifteen per cent. upon
such principal sum; if upon any person or persons, or body corporate, of, or
in, any other part of the world, twenty per ceut. upon such principal sum.
36. - 2. The damages which, by this act, are to be recovered upon any
bill of exchange, shall be in lieu of interest and all other charges, except
charges of protest, to the time when notice of the protest and demand of
payment shall have been given and made as aforresaid. Carr. & Nich. Comp.
125; Act of 1827, c. 14.
DAMAGES, DOUBLE or TREBLE, practice. In cases where a statute
gives a party double or treble damages, the jury are to find single damages,
and the court to enhance them, according to the statute Bro. Ab. Damages, pl.
70; 2 Inst. 416; 1 Wils. 126; 1 Mass. 155. In Sayer on Damages, p. 244, it is
said, the jury may assess the statute damages and it would seem from some of
the modern cases, that either the jury or the court may assess. Say. R. 214; 1
DAMAGES, GENERAL, torts. General damages are such as the law
implies to have accrued from the act of a tort-feasor. To call a man a thief,
or commit an assault and battery upon his person, are examples of this kind. In
the first case the law presumes that calling a man a thief must be injurious to
him, with showing that it is so. Sir W. Jones, 196; 1 Saund. 243, b. n. 5; and
in the latter case, the law imples that his person has been more or less
deteriorated, and that the injured party is not required to specify what inury
he has sustained, nor to prove it. Ham. N. P. 40; 1 Chit. Pl. 386; 2 L.R. 76; 4
Bouv. Inst. n. 3584.
DAMAGES, LAYING, pleading. In personal and mixed actions, (but
not in penal actions, for obvious reason,) the declaration must allege, in
conclusion, that the injury is to the damage of the plaintiff; and must specify
the amount of damages. Com. Dig. Pleader, C 84; 10 Rep. 116, b.
2. In personal actions there is a distinction between actions that sound
in damages, and those that do not; but in either of these cases, it is equally
the practice to lay damages. There is, however, this difference: that, in the
former case, damages are the main object of the suit, and are, therefore,
always laid high enough to cover the whole demand; but in the latter, the
liquidated debt, or the chattel demanded, being the main object, damages are
claimed in respect of the detention only, of such debt or chattel; and are,
therefore, usually laid at a small sum. The plaintiff cannot recover greater
damages than he has laid in theconclusion of his declaration. Com. Dig.Pleader,
C 84; 10 Rep. 117, a, b; Vin. Ab. Damages, R.
3. In real actions, no damages are to be laid, because, in these, the
demand is specially for the land withheld, and damages are in no degree the
object of the suit. Steph. Pl. 426; 1 Chit. Pl. 397 to 400.
DAMAGES, LIQUIDATED, contracts. When the parties to a contract
stipulate for the payment of a certain su, as a satisfaction fixed and agreed
upon by them, for the not doing of certain things particularly mentioned in the
agreement, the sum so fixed upon is called liquidated damages. (q.v.) It differ
from a penalty, becasue the latter is a forfeiture from which the defaulting
party can be relieved. An agreement for liquidated damages can only be when
there is an engagement for the performance of certain acts, the not doing of
which would be an injury to one of the parties; or to guard against the
performance of acts which, if done, would also be injurious. In such cases an
estimate of the damages may be made by a jury, or by a previous agreement
between the parties, who may foresee the consequences of a breach of the
engagement, and stipulate accordingly. 1 H. Bl. 232; and vide 2 Bos. & Pul.
335, 350-355; 2 Bro. P. C. 431; 4 Burr, 2225; 2 T. R. 32. The civil law appears
to agree with these principles. lnst. 3, 16, 7; Toull. liv. 3, n. 809; Civil
Code of Louis. art. 1928, n. 5; Code Civil, 1152, 1153.
2. It is to be observed, that the sum fixed upon will be considered as
liquidated damages, or a penalty, according to the intent of the parties, and
the more use of the words - "penalty," &c "forfeiture," or "liquidated
damages," will not be regarded is at all decisive of the question, if the
instrument discloses, upon the whole, a different intent. 2 Story, Eq.
§1318; 6 B.& C. 224; 6 Bing. 141; 6 Iredell, 186; 3 Shepl. 273; 2 Ala.
425; 8 Misso. 467.
3. Rules have been adopted to ascertain whether such sum so agreed upon
shall be considered a penalty or liquidated damages, which will be here
enumerated by considering, first, those cases where it has been considered as a
penalty - and, secondly, where it has been considered as liquidated
4. - 1. It has been treated as penalty, 1st. where the parties in the
agreement have expressly declared the sum intended as a forfeiture or a
penalty, and no other intent can be collected from the instrument. 2 B. &
P, 340, 350, 630; 1 McMullan, 106; 2 Ala. 425; 5 Metc. 61; 1 H. Bl. 227; 1
Campb. 78; 7 Wheat. 14; 1 Pick. 451; 4 Pick. 179; 3 Johns. Cas. 297. 2d. Where
it is doubtful whether it was intended as a penalty or not, and a certain debt
or damages, less than the penalty, is made payable on the face of the
instrument. 3 C. & P. 240; 6 Humph. 186. 3d. Where the agreement was made,
evidently, for the attainment of another objeet, to which the sum specified is
wholly collateral. 11 Mass. 76; 15 Mass. 488; 1 Bro. C. C. 418. 4th. Where the
agreement contains several matters, of different degrees of importance, and yet
the sum named is payable for the breach of any, even the least. 6 Bing. 141; 5
Bing. N. C. 390; 7 Scott, 364; sed vide, 7 John. 72; 15 John. 200. 5th. Where
the contract is not under seal, and the damages are capable of being certainly
known and estimated. 2 B. & Al. 704; 6 B. & C. 216; 1 M. & Malk.
41; 4 Dall. 150; 5 Cowen, 144.
5. - 2. The sum agreed upon has been considered as liquidated damages,
1st. Where the damages are uncertain, and are not capable of being ascertained
by any satisfactory and known rule. 2 T. R. 32; 1 Alc. & Nap. 389; 2 Burr,
2225; 10 Ves. 429; 3 M. & W. 545; 8 Mass. 223; 3 C. & P. 240; 7 Cowen
307; 4 Wend. 468. 2d. Where, from the tenor of the agreement, or from the
nature of the case, it appears that the parties have ascertained the amount of
damages by fair calculation and adjustment. 2 Story, Eq. Juris. §1318; 10
Mass. 459; 7 John. 72; 15 John. 200; 1 Bing. 302; 7 Conn. 291; 13 Wend. 507; 2
Greenl. Ev. §259; 11 N. H. Rep. 234; 6 Blackf. 206; 26 Wend. 630; 17 Wend.
447; 22 Wend. 201; 7 Metc. 583; 2 Ala. 425; 2 Shepl. 250. Vide, generally, 7
Vin. Ab. 247; 16 Vin. Ab. 58; 2 W. Bl. Rep. 1190;. Coop. Just. 606; 1 Chit. Pr.
872; 2 Atk. 194; Finch. 117; Prec. in Ch. 102; 2 Bro. P. C. 436; Fonbl. 151, 2,
note; Chit. Contr. 836; 11 N. Hamp. Rep. 234.
DAMAGES, SPECIAL, torts. Special damages are such as are in fact
sustained, and are not implied by law; these are either superadded to general
damages, arising from an act injurious in itself, as when some particular loss
arises. from the uttering of slanderous words, actionable in themselves, or are
such as arise from an act indifferent and not actionable in itself, but
injurious only in its consequences, as when the words become actionable only by
reason of special damage ensuing. To constitute special damage the legal and
natural consequence must arise from the tort, and not be a mere wrongful act of
a third person, or a remote consequence. 1 Camp. 58; Ham. N. P. 40; 1 Chit. Pl.
DAMAGES, SPECIAL, pleading. As distinguished from the gist of
the action, signify that special damage which is stated to result from the
gist; as, if a plaintiff in an action of trespass for breaking his close,
entering his house, and tossing his goods about, were to state that by means of
the damage done to his house, he was obliged to seek lodging elsewhere.
2. Sometimes the special damage is said to constitute the gist of the
action itself; for example, in an action wherein the plaintiff declares for
slanderous words, which of themselves are not a sufficient ground or foundation
for the suit, if any particular damage result to the plaintiff from the
speaking of them, that damage is properly said to be the gist of the
3. But whether special damage be the gist of the action, or only
collatercal to it, it must be particularly stated in the declaration, as the
plaintiff will not otherwise be permitted to go into evidence of it at the
trial, because the defendant cannot also be prepared to answer it. Willes, 23.
DAMAGES, UNLIQUIDATED. The unascertained amount which is due to
a person by another for an injury to the person, property, or relative rights
of the party injured. These damages, being unknown, cannot be set off against
the claim which the tort feasor has against the party injured. 2 Dall. 237; S.
C. 1 Yeates, 571; 10 Serg. & Rawle 14; 5 Serg. & Rawle 122.
DAMNIFICATION. That which causes a loss or damage to a society,
or to one who has indemnified another. For example, when a society has entered
into an obligation to pay the debt of the principal, and the principal has
become bound in a bond to indemuify the surety, the latter has suffered a
damnification the moment he becomes liable to be sued for the debt of the
principal - and it has been held in an action brought by the surety, upon a
bond of indemnity, that the terror of suit, so that the surety dare not go
about his business, is a damnification. Ow. 19; 2 Chit. R. 487; 1 Saund. 116; 8
East, 593; Cary, 26.
2. A judgment fairly obtained against a party for a cause against which
another person is bound to indemnify him, with timely notice to that person of
the bringing of the action, is admissible as evidence in an action brought
against the guarantor on the indemnity. 7 Cranch, 300, 322. See F. N. B.
Warrantia Chartae; Lib. Int. Index, Warrantia Chartae; 2 S. & R. 12,
DAMNIFY. To cause damage, injury or loss.
DAMNOSA HAEREDITAS. A name given by Lord Kenyon to that species
of property of a bankrupt, which, so far from being valuable, would be a charge
to the creditors for example, a term of years, where the rent would exceed the
2. The assignees are not bound to take such property, but they must
make their election, and, having once entered into possession, they cannot
afterwards abandon the property. 7 East, R. 342; 3 Campb. 340.
DAMNUM ABSQUE INJURIA. A loss or damage without injury.
2. There are cases when the act of one man may cause a damage or loss
to another, and for which the latter has no remedy; he is then said to have
received damnum absque injuria; as, for example, if a man should set up a
school in the neighborhood of another school,and, by that means, deprive the
former of its patronage; or if a man should build a mill along side of another,
and consequently reduce his custom. 9 Pick. 59, 528.
3. Another instance may be given of the case where a man using proper
care and diligence, while excavating for a foundation, injures the adjoining
house, owing to the unsuitable materials used in such house; here the injury is
damnum absque injuria.
4. When a man slanders another by publishing the truth, the person
slandered is said to have sustained loss without injury. Bac. Ab. Actions on
the Case, C Dane's Ab. Index, h. t.
DAMNUM FATALE, civil law. Damages caused by a fortuitous event,
or inevitable accident; damages arising from the act of God. Among these were
included losses by shipwreck, lightning, or other casualty; also losses by
pirates or by vis major, by fire, robbery, and burglary; but theft was not
numbered among these casualties.
2. In general, bailees are not liable for such damages. Story, Bailm. p.
DANE-LAGE, Eng. law. That system of laws which was maintained in
England while the Danes had possession of the country.
DANGERS OF THE SEA, mar. law. This phrase is sometimes put in
bills of lading, the master of the ship agreeing to deliver the goods therein
mentioned to the consignee, who is named, the dangers of the sea excepted.
Sometimes the phrase is "Perils of the Sea." (q. v.) See 1 Brock. R. 187.
DARREIN. A corruption of the French word "dernier," the last. It
is sometimes used as, "darrein continuance," the last continuance. When any
matter has arisen in discharge of the defendant in action, he may take
advantage of it, provided he pleads itpuis darrein continuance; for if he
neglect to do so, he waives his right. Vide article darrein continuance.
DARREIN SEISIN. The name of a plea to a writ of entry or a writ
of right. 3 Met. 175.
DATE. The designation or indication in an instrument of writing,
of the time, and usually of the time and place, when and where it was made.
When the place is mentioned in the date of a deed, the law intends, unless the
contrary appears, that it was executed at the place of the date. Plowd. 7 b.,
31 H. VI. This word is derived from the Latin datum, because when deeds and
agreements were written in that language, immediately before the day, month and
year in which they were made, was set down, it was usual to put the word datum,
2. All writings ought to bear a date, and in some it is indispensable in
order to make them valid, as in policies of insurance; but the date in these
instruments is not inserted in the body of the writing because as each
subscription makes a separate contract, each underwriter sets down the day,
month and year he makes his subscription. Marsh. Ins. 336.
3. Deeds, and other writings, when the date is an impossible one, take
effect from the time of deliver; the presumption of law is, that the deed was
dated on the day it bears date, unless, as just mentioned, the time is
impossible; for example, the 32d day of January.
4. The proper way of dating, is to put the day, month, and year of our
Lord; the hour need not be mentioned, unless specially required; an instance of
which may be taken from the Pennsylvania Act of the 16th June, 1836, sect. 40,
which requires the sheriff, on receiving a writ of fieri facias, or other writ
of execution, to endorse thereon the day of the month, the year, and the hour
of the day whereon he received the same.
5. In public documents, it is usual to give not only the day, the month,
and the year of our Lord, but also the year of the United States, when issued
by authority of the general government; or of the commonwealth, when issued
under its authority. Vide, generally, Bac. Ab. Obligations, C; Com. Dig, Fait,
B 3; Cruise, Dig. tit, 32, c. 20, s. 1-6; 1 Burr. 60; 2 Rol. Ab. 27, 1. 22; 13
Vin. Ab. 34; Dane's Ab. lndex, h. t. See Almanac.
DATION, civil law, contracts. The act of giving something. It
differs from donation, which is a gift; dation, on the contrary, is giving
something without any liberality; as, the giving of an office.
2. Dation in payment, datio in solutionem, which was the giving one
thing in payment of another which was due, corresponds nearly to the accord and
satisfaction of the common law.
DATION EN PAIEMFNT, civil law. This term is used in Louisiana;
it signifies that, when instead of paying a sum of money due on a pre-existing
debt, the debtor gives and the creditor agrees to receive a movable or
2. It is somewhat like the accord and satisfaction of the common law. 16
Toull. n. 45 Poth. Vente, U. 601. Dation en paiement resembles in some respects
the contract of sale; dare in solutum, est quasi vendere. There is, however, a
very marked difference between a sale and a dation en paiement. 1st. The
contract of sale is complete by the mere agreement of the parties the dation en
paiement requires a delivery of the thing given. 2d. When the debtor pays a
certain sum which he supposed he was owing, and be discovers he did not owe so
much, he may recover back the excess, not so when property other than money has
been given in payment. 3d. He who has in good faith sold a thing of which he
believed himself to be the owner, is not precisely required to transfer the
property of it to the buyer and, while he is not troubled in the possession of
the thing, he cannot pretend that the seller has not fulfilled his obligations.
On the contrary, the dation en paiement is good only when the debtor transfers
to the creditor the property in the thing which he has agreed to take in,
payment and if the thing thus delivered be the property of another, it will not
operate as a payment. Poth. Vente, n. 602, 603, 604.
DATIVE. That which may be given or disposed of at will and
pleasure. It sometimes means that which is not cast upon the party by the law,
or by a testator, but which is given by the magistrate; in this sense it is
that tutorship is dative, when the tutor is appointed by the malistrate. Lec.
Elem. §239; Civ. Code of L. art. 288, 1671.
DAUGHTER. An immediate female descendant. See Son.
DAUGHTER-IN-LAW. In Latin, nurus, is the wife of one's son.
DAY. A division of time. It is natural, and then it consists of
twenty-four hours, or the space of time which elapses while the earth makes a
complete revolution on its axis; or artificial, which contains the time, from
the rising until the setting of the sun, and a short time before rising and
after setting. Vide Night; and Co. Lit. 135, a.
2. Days are sometimes calculated exclusively, as when an act required
that an appeal should be made within twenty days after a decision. 3 Penna.
200; 3 B. & A. 581; 15 Serg. & Rawle, 43. In general, if a thing is to
be done within such a time after such a fact, the day of the fact shall be
taken inclusively. Hob. 139; Doug. 463; 3 T. R. 623; Com. Dig. Temps, A; 3
3. The law, generally, rejects fractions of days, but in some cases it
takes notice of such parts. 2 B. & A. 586. Vide Date.
4. By the custom of some places, the word day's is understood to be
working days, and not including Sundays. 3 Espin. N. P. C. 121. Vide,
generally, 2 Chit. Bl. 141, note 3; 1 Chit. Pr. 774, 775; 3 Chit. Pr. 110;
Lill. Reg. h. t; 1 Rop. Leg. 518; 15 Vin. Ab. 554; Dig. 33, 1, 2; Dig. 50, 16,
2, 1; Id. 2, 12, 8; and articles Hour; Month; Year.
DAY BOOK, mer. law. An account book, in which merchants and
others make entries of their daily transactions. This is generally a book of
original entries, and as such may be given in evidence to prove the sale and
delivery, of merchandise or of work done.
DAY RULE, or DAY WRIT, English practice. A rule or order of the
court, by which a prisoner on civil process, and not committed, is enabled, in
term time, to go out of the prison, and its rule or bounds; a prisoner is
enabled to quit the prison, for more or less time, by three kinds of rules,
namely: 1. The day-rule. 2. The term-rule; and 3. The rules. See 9 East, R.
DAYS IN BANK, Eng. practice. Days of appearance in the court of
common pleas, usually called bancum. They are at the distance of about a week
from each other, and are regulated by some festival of the church. 8 Bl. Com.
DAYS OF GRACE. Certain days after the time limited by the bill
or note, which the acceptor or drawer has a right to demand for payment of the
bill or note; these days were so called because they were formerly gratuitously
allowed, but now, by the custom of merchants, sanctioned by decisions of courts
of justice, they are demandable of right. 6 Watts & Serg. 179. The number
of these in the United States is generally three. - Chitty on Bills, h. t. But
where the established usage of the where the instrument is payable, or of the
bank at which it is payable, or deposited for collection, be to make the demand
on the fourth or other day, the parties to the note will be bound by such
usage. 5 How. U. S. Rep. 317; 1 Smith, Lead. Cas. 417. When the last day of
grace happens on the 4th of July; 2 Caines Cas. in Err. 195; or on Sunday; 2
Caines' R. 343; 7 Wend. 460; the demand must be made on the day previous. 13
John. 470; 7 Wend. 460; 12 Mass. 89; 6 Pick. 80; 2 Caines, 343: 2 McCord, 436.
But see 2 Conn. 69. See 20 Wend. 205; 1 Metc. R. 43; 2 Cain. Cas. 195; 7 How.
Miss. R. 129; 4 J. J. Marsh. 332.
2. In Louisiana, the days of grace are no obstacle to a set off, the
bill being due, for this purpose before the expiration of those days. Louis.
Code, art. 2206.
3. In France all days of grace, of favor, of usage, or of local custom,
for thne payment of bills of exchange, are abolished. Code de Com. art. 185.
See 8 Verm. 833; 2 Port. 286; 1 Conn. 329; 1 Pick. 401; 2 Pick. 125; 3 Pick.
414; 1 N. & M. 83.
DAYS OF THE WEEK. These are Sunday, Monday, Tuesday, Wednesday,
Thursday, Friday, Saturday. See Week.
2. The court will take judicial notice of the days of the week - for
example, when a writ of inquiry was stated in the pleadings to have been
executed on the fifteenth of June, and, upon an examination, it was found to be
Sunday, the proceeding was held to be defective. Forteso. 373; S. C. Str.
DE. A preposition used in many Latin phrases - as, de bone esse,
de bonis non.
DE ARBITRATIONE FACTA, WRIT. In the ancient English law, when an
action was brought for the same cause of action which had been before settled
by arbitration, this writ was brought. Wats. on Arb. 256.
DE BENE ESSE, practice. A technical phrase applied to certain
proceedings which are deemed to be well done for the present, or until an
exception or other avoidance, that is, conditionally, and in that meaning the
phrase is usually accepted. For example, a declaration is filed or delivered,
special bail put in, witness examined, &c. de bene esse, or conditionally;
good for the present.
2. When a judge has a doubt as to the propriety of finding a verdict,
h(, may direct the jury to find one de bene esse; which verdict, if the court
shall afterwards be of opinion it ought to have been found, shall stand. Bac.
Ab. Verdict, A. Vide 11 S. & R. 84.
DE BONIS NON. This phrase is used in cases where the goods of a
deceased person have not all been administered. When an executor or
administrator has been appointed, and the estate is not fully settled, and the
executor or administrator is dead, has absconded, or from any cause has been
removed, a second administrator is appointed to to perform the duty remaining
to be done, who is called an administrator de bonis non, an administrator of
the goods not administered and he becomes by the appointment the only
representative of the deceased. 11 Vin. Ab. 111; 2 P. Wms. 340; Com. Dig.
Administration, B I; 1 Root's 11. 425. And it seems that though the estate has
been distributed, an administrator de nonis non may be appointed, if debts
remain unsatisfied. 1 Root's R. 174.
DE BONIS PROPRIIS. Of his own goods. When an executor or
administrator has been guilty of a devastavit, (q. v.) he is responsible for
the loss which the estate has sustained, de bonis propriis. He may also subject
himself to the payment of a debt of the deceased, de bonis propriis, by his
false plea, when sued in a representative as, if he plead plene administravit,
and it be found against him, or a release to himself, when false. In this
latter case the judgment is de bonis testatoris si, et si non de bonis
propriis. 1 Saund. 336 b, n. 10 Bac. Ab. Executor, B 8.
DE CONTUMACE CAPIENDO. The name of a writ issued for the arrest
of a defendant who is in contempt of the ecclesiastical court. 1 Nev. &
Per. 680, 685, 689; 5 Dowl. 213, 646.
DE DOMO REPARANDA. The name of an ancient common law writ, by
which one tenant in common might compel his co-tenant to concur in the expense
of repairing the property held in common. 8 B. & C. 269; 1 Tho. Co. Litt.
216, note 17, and p. 787.
DE DONIS, STATUTE. The name of an English statute passed the 13
Edwd. I. c. 1, the real design of which was to introduce perpetuities, and to
strengthen the power of the barons. 6 Co. 40 a; Co. Litt. 21; Bac. Ab. Estates
in tail, in prin.
DE FACTO, i. e. in deed. A term used to denote a thing actually
done; a president of the United States de facto is one in the exercise of the
executive power, and is distinguished from one, who being legally entitled to
such power is ejected from it; the latter would be a president de jure. An
officer de facto is frequently considered as an officer de jure, and his
official acts are of equal validity. 10 S. & R. 250; 4 Binn. R. 371; 11 S.
& R. 411, 414; Coxe, 318; 9 Mass. 231; 10 Mass. 290; 15 Mass. 180; 5 Pick.
DE HOMINE REPLEGIANDO. The name of a writ which is used to
replevy a man out of prison, or out of the custody of a private person. See
Homine replegiando; Writ de homine replegiando.
DE INJURIA, pleading. The name of a replication in an action for
a tort, that the defendant committed the trespasses or crrievances of his own
wrong, without the cause by,him in his plea alleged.
2. The import of this replication is to insist that the defendant
committed the act complained of, from a motive and impulse altogether different
from that insisted on by the plea. For example, if the defendant has justified
a battery under a writ of capias, having averred, as he must do, that the
arrest was made by virtue of the writ; the plaintiff may rely de injuria sua
propria absque tali causa, that the defendant did the act of his own wrong,
without the cause by him alleged. This replication, then, has the effect of
denying the alleged, motive contained in the plea, and to insist that the
defendant acted from another, which was unlawful, and not in, consequence of
the one insisted upon in his plea. Steph. Pl. 186; 2 Chit. Pl. 523,.642; Hamm.
N. P. 120, 121; Arch. Civ. Pl. 264; Com. Dig. Pleader, F 19.
3. The form of this replication is, "precludi non, because he says that
the said defendant at the same time when, &c., of his own wrong, and
without the cause by him in his said second plea alleged, committed the said
trespass in the introductory part of that plea, in manner and form as the said
plaintiff hath above in his said declaration complained against the said
defendant, and this the said plaintiff prays, may be inquired of by the
country," &c. This is the uniform conclusion of such a replication. 1 Chit.
4. The replication de injuria is only allowed when an excuse is offered
for personal injuries. 1 B. & P. 76; 5 Johns. R. 112; 4 Johns. 150; 12
Johns. 491. Vide 7 Vin. Ab. 503; 3 Saund. 295, note; 1 Lilly's Reg. 587.
5. In England, where the extent of the general issues has been confined
in actions on contracts, and special pleas have become common in assumpsit, it
has become desirable, that the plaintiff, who hss but one replication, should
put in issue the several numerous allegations which the special pleas were
found to contain; for, unless he could do this, he would labor under the
hardship of being frequently compelled to admit the greater part of an entirely
false story. It became, therefore, important to ascertain whether de injuria
could not be replied to cases of this description and, after numerous cases
which were presented for adjudication, it was finally settled that de injuria
may be replied in assumpsit, when the plea consists of matters of excuse. 3
C.M. &,R. 65; 2 Bing. N. C. 579 4 Dowl. 647.
6. The improper use of de injuria is ground of general demurrer. 2 Lev.
65; 4 Tyrw. 771. But if the defendant do not demur, the objection will not
avail after verdict. Hob. 76: Sir T. Raym. 50.
7. De injuria puts in issue the whole of the defence contained in the
plea. 5 B. & A. 420; 11 East, 451; 10 Bing. 157. But if the plea state some
authority in law, which, prima facie, would be a justification of the act
complained of, the plaintiff will not be allowed under the plea of de injuria
to show an abuse of that authority so as to convert the defendant into a tort
feasor ab initio. 1 Bing. 317; 1 Bing. N. S. 387. See 1 Smith's L. C. 53 to 61;
8 Co. 66.
DE JUDAISMO, STATUTUM. The name of a statute passed in the reign
of Edw. I., which enacted severe and absurd penalties against the Jews. Barr.
on Stat. 197.
2. The Jews were exceedingly oppressed during the middle ages throughout
Christendom, and, are so still in some countries. In France, a Jew was a serf,
and his person and goods belonged to the baron on whose demesnes he lived. He
could not change his domicil without permission of the baron, who could pursue
him as a fugitive even on the domains of the king. Like an article of commerce,
he might be lent or hired for a time, or mortgaged. If he became a Christian,
his conversion was considered a larceny of the lord, and his property and goods
were confiscated. They were allowed to utter their prayers only in a low voice
and without chanting. They were not allowed to appear in public without some
badge or mark of distinction. Christians were forbidden to employ Jews of
either sex as domestics, physicians or surgeons. Admission to the bar was
forbidden to Jews. They were obliged to appear in court in person, when they
demanded justice for a wrong done them, and it was deemed disgraceful to an
advocate to undertake the cause of a Jew. If a Jew appeared in court against a
Christian, he was obliged to swear by the ten names of God, and invoke a
thousand imprecations against himself, if he spoke not the truth. Sexual
intercourse between a Christian man and a Jewess was deemed a crime against
nature, and was punishable with death by burning. Quia est rem habere cum cane,
rem habere a Christiano cum Judaea quae CANIS reputatur - sic comburi debet. 1
Fournel, Hist. des Avocats, 108, 110. See Merlin, Repert. au mot Juifs.
3. - In the fifth book of the Decretals, it is provided, that if a Jew
have a servant that desireth to be a Christian, the Jew shall be compelled to
sell him to a Christian for twelve pence that it shall not be lawful for them
to take any Christian to be their servant that they may repair their old
synagogues, but not build new - that it shall not be lawful for them to open
their doors, or windows on good Friday; that their wives neither have Christian
nurses, nor themselves be nurses to Christian women - that they wear different
apparel from the Christians, whereby they may be known, &c;See Ridley's
View of the Civ. and Eccl Law, part 1, chap. 5, sect. 7 and Madox Hist. of the
Exchequer, Index, as to their condition in England.
DE JURE, by right. Vide De facto.
DE LUNATICO INQUIRENDO. The name of a writ directed to the
sheriff, directing him to inquire by good and lawful men whether the party
charged is, a lunatic or not. See 4 Rawle, 234; 1 Whart. 52; 5 Halst. 217; 6
DE MEDIETATE LINGUAE. Of half tongue. Vide Medietas linguae.
DE MELIORIBUS DAMNIS. Of the better damages. When a plaintiff
has sued several defendants, and the damages have been assessed severally
against each, he has the choice of selecting the best, as he cannot recover the
whole. This is doue by making, an election de melioribus damnis.
DE MERCATORIBUS. This is the name of a statute passed in the 11
Edw. I.; it is usually called the statute of Acton Burnell De Mercatoribus. It
was passed in consequence of the complaints of foreign merchants, who could not
recover the claims, because the lands of the debtors could not be sold for
their debts. It enacted that the chattels and devisable burgages of the debtor
might be sold for the payment of their debts. Cruise, Dig. t. 14, s. 6.
D.E NOVO. Anew. afresh. When a judgment upon an issue in part is
reversed on error, for some mistake made by the court, in the course of the
trial, a venire de novo is awarded in order that the case may again be
submitted to the jury.
DE NOVI OPERIS NUNCIATIONE, Civil law. Where a thiug is intended
to be done against another man's right, the party aggrieved may have in many
cases, according to the civilians, an interdict or injunctIion, to hinder that
which is intended to his prejudice: as where one buildeth an house contrary to
the usual and received form of building to the injury of his neighbor, there
lieth an injunction de novi operis nunciatione, which being served, the
offender is either to desist from his work or to put in sureties that he shall
pull it down, if he do not in a short time avow, i. e. show, the lawfulness
thereof. Ridley's Civ. and Eccl. Law, part 1, chap 1, sect. 8.
DE ODIO ET ATIA. These words sisignify "from hatred and ill
will." When a person was committed on a charge of a crime, from such a motive,
he could sue the writ de otio et atia, and procure his liberty on giving bail.
The object is now obtained by a writ of habeas corpus. Vide Writ de odio et
DE PARTITIONE FACIENDA. The name of a writ for making partition.
DE PROPRIETATE PROBANDA, Eng. Practice. The name of a writ which
issues in a case of replevin when the defendant claims property in the chattels
replevied, and the sheriff makes a return accordingly. The writ directs the
sheriff to summon an inquest to determine on the validity of the claim, and, if
they find for the defendant, the sheriff merely returns their finding. The
plaintiff is not concluded by such finding, he may come into the court above
and traverse it. Hamm. N. P. 456.
DE QUOTA LITIS. The name of a part or contract, in the civil
law, by which one who has a claim difficult to recover, agrees with another to
give a part for the purpose of obtaining his services to recover the rest. 1
Duv. n. 201.
2. Whenever such an agreement amounts to champerty, it is void by law. 5
Monr. 416; 5 John. Ch. 44.
3. Attorneys cannot lawfully make a bargain with their clients to
receive for their compensation, a part of the thing sued for; in New York, 2
Caines, 147; Ohio, 1 Ham. 132; Alabama, 755; and some other states - but in
some of the states such contracts are not unlawful.
DE REPARATIONE FACIENDA. The name of a writ which lies by one
tenant in common against the other, to cause him to aid in repairing the common
propert. 8 B. & C. 269.
DE RETORNO HABENDO The name of a writ issued after a judgment
has been given in replevin, that the defendant should have a return of the
goods replevied. See 3 Bouv. Inst. n. 3376.
DE SON TORT. Of his own wrong. This term is usually applied to a
person who, having no right to meddle with the affairs or estate of a deceased
person, yet undertakes to do. so, by acting as executor of the deceased. Vide
Executor de son tort.
DE SON TORT DEMESNE, Of his own wrong, pleading. The name of a
replication in an action for a wrong or injury. When the defendant pleads a
matter merely in excuse of an injury to the person or reputation of another,
the plaintiff may reply de son tort demesne sans tiel cause; that it was the
defendant's own wrong without such cause. Vide the articles, De Injuria, and
Without, and also 8 Co. 69 a; Bro. h. t.; Com. Dig. Pleader, F 18.
DE UNA PARTE. A deed de una parte, is one where only one party
grants, gives, or binds himself to do.a thing to another. It differs from a
deed inter partes. (q. v.) 2 Bouv. Inst. n. 2001.
DE WARRANTIA DIEI, WRIT, Eng. law. Where a man is required to
appear on a certain day in person, and before that day the king certifies that
the party is in the king's service, he may sue this writ, commanding the
justices not to record his default for that day for the cause before mentioned.
F. N. B. 36.
DEACON, Eccl. law. A minister or servant in the church whose
office, in some churches, is to assist the priest in divine service, and the
distribution of the sacrament.
DEAD Something which has no life; figuratively, something of no
DEAD BODY, crim. law. A corpse.
2. To take up a dead body without lawful authority, even for the
purposes of dissection, is a misdemeanor, for which the offender may be
indicted at common law. 1 Russ. on Cr. 414; 1 Dowl. & R. 13; Russ. &
Ry. 366, ii. b; 2 Chit. Cr. Law, 35. This offence is punished by statute in New
Hampshire, Laws of N. H. 339, 340 in Vermont, Laws of Vermont, 368 .c. 361; in
Massachusetts, stat. 1830, c. 51; 8 Pick. 370; 11 Pick. 350; in New York, 2
Rev. Stat. 688. Vide 1 Russ. 414, n. A.
3. The preventing a dead body from being buried, is also an indictable
offence. 2 T. R. 734; 4 East, 460; 1 Russ. on Cr. 415 and 416, note A.
4. To inter a dead body found in a river, it seems, would render the
offender liable to an indictment for a misdemeanor, unless he first sent for
the coroner. 1 Kenyon's R. 250.
DEAD-BORN, descent, persons. Children dead-born are considered,
in law, as if they had never been conceived, so that no one can claim a title,
by descent, through such dead-born child. This is the doctrine of the civil
law. Dig. 50, 16, 129. Non nasci, et natum mori, pare, sunt. Mortuus exitus,
non est exitus. Civil Code of Louis. art. 28. A child in ventre sa mere is
considered in being, only when it is for its advantage, and not for the benefit
of a third person. The rule in the common law is, probably, the same, that a
dead-born child is to be considered as if he had never been conceived or born
in other words, it is presumed he never had life. it being a maxim of the
common law, that mortuus exitus non est exitus. Co. Litt. 29 b. See 2 Paige, R.
35; Domat, liv. prel. t. 2, s. 1, n. 4, 6; 4 Ves. 334.
DEAD FREIGHT, contracts. When the charterer of a vessel has
shipped part of the goods on board, and is not ready to ship the remainder, the
master, unless restrained by his special contract, may take other goods on
board, and the amount which is not supplied, required to complete the cargo, is
called dead freight.
2. The dead freight is to be calculated according to the actual capacity
of the vessel. 3 Chit. Com. Law; 399 Stark. 450.
DEAD MAN'S PART, English law. By the custom of London, when a
deceased freeman of the city left a widow and children, after deducting what
was calledthe widow's chamber, (q.v.) his personal property was divided into
three parts; one of which belonged to the widow, another tot he children, and
the third to the administrator. When there was only a widow, or only children,
in either case they respectively took one moiety, and the administrator the
other; when there was neither widow nor child, the administrator took the whole
for his own use and this portion was called the "dead man's part." By statute
of 1 Jac. 2, c. 17, this was changed, and the dead man's part is declared to be
subject to the statute of distribution. 2 Bl. Com. 518. See Bac. Ab. Customs of
London, D 4.
DEAD LETTERS. Those which remain in the post-office, uncalled
for. By the Act of March 8, 1825, 3 Story. L. U. S. 1993, it is enacted, by
§26, "That the postmasters shall, respectively, publish, at the expiration
of every three months, or oftener, when the postmaster general shall so direct,
in one of the newspapers published at, or nearest, the place of his residence,
for three successive weeks, a list of all the letters remaining in their
respective offices; or instead thereof, shall make out a number of such lists,
and cause them to be posted at such public places, in their vicinity, as shall
appear to them best adapted for the information of the parties concerned; and,
at the expiration of the next three months, shall send such of the said letters
as then remain on hand, as dead letters, to the general post office where the
same shall be opened and inspected; and if any valuable papers, or matters of
consequence, shall be found therein, it shall be the duty of the postmaster
general to return such letter to the writer thereof, or cause a descriptive
list thereof to be inserted in one of the newspapers published at the place
most convenient to the supposed residence of the owner, if within the United
States; and such letter, and the contents, shall be preserved, to be delivered
to the person to whom the same shall be addressed, upon payment of the postage,
and the expense of publication. And if such letter contain money, the
postmaster general may appropriate it to the use of the department, keeping an
account thereof, and the amount shall be paid by the department to the claimant
as soon as he shall be found."
3. And by the Act of July 2, 1836, 4 Sharsaw. Cont. of Story, L. U. S.
2474, it is enacted by §35 that advertisements of letters remaining in the
post-offices, may, under the direction of the postmaster general, be made in
more than one newspaper: provided, that the whole cost of advertising shall not
exceed four cents for each letter.
DEAD-PLEDGE. A mortgage of lands or goods - mortuum vadium.
DEAF AND DUMB. No definition is requisite, as the words are
sufficiently known. A person deaf and dumb is doli capax but with such persons
who have not been educated, and who cannot communicate, their ideas in writing,
a difficulty sometimes arises on the trial. 2. A case occurred of a woman, deaf
and dumb, who was charged with a crime. She was brought to the bar, and the
indictment was then read to her, and the question, in the usual form, was put,
guilty or not guilty ? The counsel for the prisoner then rose, and stated that
he could not allow his client to plead to the indictment, until it was
explained to her that she was at liberty to plead guilty or not guilty. This
attempted to be done, but was found impossible, and she was discharged from the
3. A person, deaf and dumb, may be examined as a witness, provided he
can be sworn, that is, if he is capable of understanding the terms of the oath,
and assents to it and if, after he is sworn, he can convey his ideas, with or
without an interpreter, to the court and jury. Phil., Ev. 14.
DEAF, DUMB, AND BLIND. A man born deaf, dumb, and blind, is
considered an idiot. (q. v.) 1 Bl. Com. 304; F. N. B. 233; 2 Bouv. Inst. n.
DEALINGS. Traffic, trade; the transaction of business between
two or more persons.
2. The English statute 6 Geo. IV. c. 16, s. 81, declares all dealings
with a bankrupt, within a certain time immediately before his bankruptcy, to be
void. It has been held, under this statute, that payments were included under
the term "dealings." M. & M. 137; 3 Car. & P. 85; S. C. 14 Eng. C. L.
DEAN, eccl. law. An ecelesiastictl officer, who derives his name
from the fact that he presides over ten canons, or, prebondaries, at least.
There are several kinds of deans, namely: 1. Deans of chapters. 2. Deans of
peculiars. 3. Rural deans. 4. Deans in the colleges. 5. Honorary deans. 6.
Deans of provinces.
DEATH, med. jur., crim. law, evidence. The cessation of
2. It is either natural, as when it happens in the usual course, without
any violence; or violent, when it is caused either by the acts of the deceased,
or those of others. Natural death will not be here considered further than may
be requisite to illustrate the manner in which violent death occurs. A violent
death is either accidental or criminal; and the criminal act was committed by
the deceased, or by another.
3. The subject will be considered, 1. As it relates to medical
jurisprudence; and, 2. With regard to its effects upon the rights of
4. - §1. It is the office of medical jurisprudence, by the light
and information which it can bestow, to aid in the detection of crimes against
the persons of others, in order to subject them to the punishment which is
awarded by the criminal law. Medical men are very frequently called upon to
make examinations of the bodies of persons. who have been found dead, for the
purpose of ascertaining the causes of their death. When it is recollected that
the honor, the fortune, and even the life of the citizen, as well as the
distribution of impartial justice, frequently depend on these examinations, one
cannot but be struck at the responsibility which rests upon such medical men,
particularly when the numerous qualities which are indispensably requisite to
form a correct judgment, are considered. In order to form a - correct opinion,
the physician must be not only skilled in his art, but he must have made such
examinations his special study. A man may be an enlightened physician, and yet
he may find it exceedingly difficult to resolve, properly, the grave and almost
always complicated questions which arise in cases of this kind. Judiciary
annals, unfortunately, afford but too many examples of the fatal mistakes made
by physicians, and others, when considering cases of violent deaths.
5. In the examination of bodies of persons who have come to a violent
death, every precaution should be taken to ascertain the situation of the place
where the body was found; as to whether the ground appears to have been
disturbed from its natural condition; whether there are any marks of footsteps,
their size, their number, the direction to which they lead, and whence they
came -whether any traces of blood or hair can be found - and whether any, and
what weapons or instruments, which could have caused death, are found in the
vicinity; and these instruments should be carefully preserved so that they may
be identified. A case or two may here be mentioned, to show the importance of
examining the ground in order to ascertain the facts. Mr. Jeffries was murdered
at Walthamstow, in England, in 1751, by his niece and servant. The perpetrators
were suspected from the single circumstance that the dew on the ground
surrounding the house had not been disturbed on the morning of the murder. Mr.
Taylor, of Hornsey, was murdered in December, 1818, and his body thrown into
the river. It was evident he, had not gone into the river willingly, as the
hands were found clenched and contained grass, which, in the struggle, he had
torn from the bank. The marks of footsteps, particularly in the snow, bave been
found, not unfrequently, to correspond with the shoes or feet of suspected
persons, and led to their detection. Paris, Med. Jur. vol. iii. p. 38, 41.
6. In the survey of the body the following rules should be observed: 1.
It should be as thoroughly examined as possible without changing its position
or that of any of the limbs; this is particularly desirable when, from
appearances, the death has been caused by a wound, because by moving it, the
altitude of the extremities may be altered, or the state of a fracture or
luxation changed; for the internal parts vary in their position with one
another, according to the general position of the body. When it is requisite to
remove it, it should be done with great caution. 2. The clothes should be
removed, as far as necessary, and it should be noted what compresses or
bandages (if any) are applied to particular parts, and to what extent. 3. The
color of the skin, the temperature of the body, the rigidity or flexibility of
the extremities, the state of the eyes, and of the sphincter muscles, noting at
the same time whatever swellings, ecchymosis, or livid, black, or yellow spots,
wounds, ulcer, contusion, fracture, or luxation may be present. The fluids from
the nose, mouth, ears, sexual organs, &c., should be examined; and, when
the deceased is a female, it may be proper to examine the sexual organs with
care, in order to ascertain whether before death she was ravished or not. 1
Briand, Med. Leg. 2eme partio, ch. 1, art. 3, n. 5, p. 318. 4. The clothes of
the deceased should be carefully examined, and if parts are torn or defaced,
this fact should be noted. A list should also be made of the articles found on
the body, and of their state or condition, as whether the purse of the deceased
had been opened; whether he had any money, &c. 5. The state of the body as
to decomposition should be, particularly stated, as by this it may sometimes be
ascertalued when the death took place; experience proves that in general after
the expiration of fourteen days After death, decomposition has so far advanced,
that identity cannot be ascertained, excepting in some strongly developed
peculiarity; but in a drowned body, adipocire is not produced until five or six
weeks after death but this depends upon circumstance's, and varies according to
climate, seasun, &c. It is exceedingly important, however to keep this fact
in view in some judicial inquiries relative to the time of death. 1 Chit. Med.
Jur. 443. A memorandom should be made of all the facts as they are ascertained
when possible, it should be made on the ground, but when this cannot be done,
as when chemical experiments are to be made, or the body is to be dissected,
they should be made in the place where these operations are performed. 1 Beck's
Med. Jur. 5; Dr. Gordon Smith, 505; Ryan's Med. Jur. 145; Dr. Male's Elem. of
Judicial and For. Med. 101; 3 Paris & Fonbl. Med. Jur. 23 to 25; Vilanova Y
Manes, Materia Criminal Forense, Obs. 11, cap. 7, n. 7; Trebuchet, Medecine
Legale, 12, et seq; 1 Briand, Med. Leg. 2eme partie, ch. 1, art. 5. Vide
7. - §2. In examining the law as to the effect which death has upon
the rights of others, it will be proper to consider, 1. What is the presumption
of life or death. 2. The effects of a man's death.
8. - 1. It is a general rule, that persons who are proved to have been
living, will be presumed to be alive till the contrary is proved and when the
issue is upon the death of a person, the proof of the fact lies upon the party
who asserts the death. 2 East, 312; 2 Rolle's R. 461. But when a person has
been absent for a long time, unheard from, the law will presume him to be dead.
It has been adjudged, that after twenty-seven years 3 Bro. C. C. 510; twenty
years in another case; sixteen years; 5 Ves. 458; fourteen years; 3 Serg. &
Rawle, 390 twelve years; 18 John. R. 141; seven years; 6 East, 80, 85; and even
five years Finchs R. 419; the presumption of death arises. It seems that even
seven years has been agreed as the time when death may in general be presumed.
1 Phil. Ev. 159. See 24 Wend. R. 221; 4 Whart. R. 173. By the civil law, if any
woman marry again without certain intelligence of the death of her hushand, how
longsoever otherwise her hushand be absent from her, both she and he who
married her shall be punished as adulterers. Authentics, 8th Coll.; Ridley's
View of the Civ. and Ecc. Law, 82.
9. The survivorship of two or more is to be proved by facts, and not by
any settled Iegal rule, or prescribed presumption. 5 B. Adolp. 91; 27 E. C. L.
R. 45; Cro. Eliz. 503 Bac. Ab. Execution D; 2 Phillim. 261; 1 Mer. R. 308; 3
Hagg. Eccl. R. 748; But see 1 Yo. & Coll. C. N. 121; 1 Curt. R. 405, 406,
429. In the following cases, no presumption of survivor-ship was held to arise;
where two men, the father and son, were hanged about the same time, and one was
seen to struggle a little longer than the other; Cor. Eliz. 503; in the case of
General Stanwix, who perished at sea in the same vessel with his daughter; 1
Bl. R. 610; and in the case of Taylor and his wife, who also perished by being
wrecked at sea with her, to whom he had bequeathed the principal part of his
fortune. 2 Phillim. R. 261; S. C. 1 Eng. Eccl. R. 250. Vide Fearne on Rem. iv.;
Poth. Obl. by Evans, vol. ii., p. 345; 1 Beck's Med. Jur. 487 to 502. The Code
Civil of Fance has provided for most, perhaps all possible cases, art. 720, 721
and 722. The provisions have been transcribed in the Civil Code of Louisiana,
in these words:
10. Art. 930. If several persons respectively entitled to inherit from
one another, happen to perish in the same event, such as a wreck, a battle, or
a conflagration, without any possibility of ascertaining who died first, the
presumption of survivorship is determined by the circumstances of the fact.
11. Art. 931. lu defect of the circumstances of the fact, the
determination must be guided by the probabilities resulting from the strength,
ages, and-difference of sex, according to the following rules.
12. Art. 932. If those who have perished together were under the age of
fifteen years, the eldest shall be presumed to have survived. If both were of
the age of sixty-years, the youngest shall be presumed to have survived. If
some were under fifteen years, and some above sixty, the first shall be
presumed to have survived.
13. Art. 933. If those who perished together, were above the age of
fifteen years, and under sixty, the male must be presumed to have survived,
where there was an equality of age, or a difference of less than one year. If
they were of the same sex, the presumption of survivorship, by which the
succession becomes open in the order of nature, must be admitted; thus the
younger must be presumed to have survived the elder.
14. - 2. The death of a man, as to its effects on others, may be
considered with regard, 1. To his contracts. 2. Torts committed by or against
him. 3. The disposition of his estate; and, 4. To the liability or discharge of
15. - 1st. The contracts of a deceased person are in general not
affected by his death, and his executors or administrators are required to
fulfil his engagements, and may enforce those in his favor. But to this general
rule there are some exceptions; some contracts are either by the terms employed
in making them, or by implication of law, to continue only during the life of
the contracting party. Among these may be mentioned the following cases: 1. The
contract of marriage.- 2. The partnership of individuals. The contract of
partnership is dissolved by death, unless otherwise provided for. Indeed the
partnership will be dissolved by the death of one or more of the partners, and
its effects upon the other partners or third persons will be the same, whether
they have notice of the death or otherwise. 3 Mer. R. 593; Story, Partn.
§319, 336, 343; Colly. Partn. 71; 2 Bell's Com. 639, 5th ed.; 3 Kent, Com.
56, 4th ed.; Gow, Partn. 351; 1 Molloy, R. 465; 15 Ves. 218; S. C. 2 Russ. R.
325.; 3. Contracts which are altogether personal; as, for example, where the
deceased had agreed to accompany the other party to the contract, on a journey,
or to serve another; Poth. Ob. P. 3, c. 7, a. 3, §2 and 3; or to instruct
an apprentice. Bac. Ab. Executor, P; 1 Burn's Just. 82, 3; Hamm. on Part. 157;
1 Rawle's R. 61.
16. The death of either a constituent or of an attorney puts an end to
the power of attorney. To recall such power two things are necessary; 1st. The
will or intention to recall; and, 2d. Special notice or general authority.
Death is a sufficient recall of such power, answering both requisites. Either
it is, according to one hypothesis, the intended termination of the authority
or, according to the other, the cessation of that will, the existence of which
is requisite to the existence of the attorney's power; while on either
supposition, the event is, or is supposed to be, notorious. But exceptions are
admitted where the death is unknown, and the authority, in the meanwhile, is in
action, and relied on. 3 T. R. 215; Poth; Ob. n. 448.
17. - 2d. In general, when the tort feasor or the party who has received
the injury dies, the action for the recovery of the damages dies with him; but
when the deceased might have waived the tort, and maintained assumpsit arainst
the defendant, his personal representative may do the same thing. See the
article Actio Personalis moriturcum persona, where this subject is more fully
examined. When a person accused and guilty of crime dies before trial, no
proceedings can be had against his representatives or his estate.
18. - 3d. By the death of a person seised of real estate, or possessed
of personal property at the time of his death; his property vests when he has
made his will, as he has directed by that instrument; but when he dies
intestate, his real estate vests in his heirs at law by descent, and his
personal property, whether in possession or in action, belongs to his executors
19. - 4th. The death of a defendant discharges the special bail. Tidd,
Pr. 243; but when he dies after the return of the ca. sa., and before it is
filed, the bail are fixed. 6 T. R. 284; 5 Binn. R. 332, 338; 2 Mass. R. 485; 1
N. H. Rep. 172; 12 Wheat. 604; 4 John. R. 407; 3 McCord, R. 49; 4 Pick. R. 120;
4 N. H. Rep. 29.
20. Death is also divided into natural and civil.
21. Natural death is the cessation of life.
22. Civil death is the state of a person who, though possessing natural
life, has lost all his civil rights, and, as to them, is considered as dead. A
person convicted and attainted of felony, and sentenced to the state prison for
life, is, in the state of New York, in consequence of the act of 29th of March,
1799, and by virtue of the conviction and sentence of imprisonment for life, to
be considered as civilly dead. 6 Johns. C R. 118; 4 Johns. C. R. 228, 260; Laws
of N. Y. Sess. 24, ch. 49, s. 29, 30, 31; 1 N. R. L. 157, 164; Co. Litt. 130,
a; 3 Inst. 215; 1 Bl. Com. 132, 133; 4 Bl. Com. 332; 4 Vin. Ab. 152. See. Code
Civ. art. 22 a 25; 1 Toull. n. 280 and p. 254, 5, note; also, pp. 243-5, n.
272; 1 Malleville's Discussion of the Code Civil, 45, 49, 51, 57. Biret, Vocab.
au mot Effigie.
23. Death of a partner. The following effects follow the death of a
partner, namely: 1. The partnership is dissolved, unless otherwise provided for
by the articles of partnership. Gow's Partn. 429. 2. The representatives of the
deceased partner become tenants in common with the survivor in all partnership
effects in possession. 3. Choses in action so far survive that the right to
reduce them into possession vests exclusively in the survivor. 4. When
recovered, the representatives of the deceased partner have, in, equity, the
same right of sharing and participating in them that their testator or
intestate would have had had he been living. 5. It is the duty and the right of
the surviving partner to settle the affairs of the firm, for which he is not
allowed any compensation. 6. The surviving partner is alone to be sued at law
for debts of the firm, yet recourse can be had in equity against the assets of
the deceased debtor. Gow's Partn. 460. Vide Capital Crime; Dissolution; Firm;
Partners; Partnership; Punishment. See, generally, Bouv. Inst. Index, h. t.
DEATH BED, Scotch law. The incapacity to exercise the power of
disposing of one's property after being attacked with a mortal disease.
2. It commences with the beginning of such disease.
3. There are two exceptions to this general rule, namely: 1. If he
survive for sixty days after the act or, 2. If he go to kirk or market
unattended. He is then said to be in legitima potestate, or in liege poustie. 1
Bell's Com. 84, 85.
DEATH BED OR DYING DECLARATIONS. In cases of homicide, those
which are made in extremis, when the person making them is conscious of his
danger and has given up all hopes of recovery, charging some other person or
persons with the murder. See 1 Phil. Ev. 200; Stark. Ev. part 4, p 458; 15
Johns. R. 288; 1 Hawk's R. 442; 2 Hawk's R. 31; McNally's Ev. 174; Swift's Ev.
2. These declarations, contrary to the general rule that, hearsay is not
evidence, are constantly received. The principle of this exception is founded
partly on the situation of the dying person, which is considered to be as
powerful over his conscienceas the obligation of an oath, and partly on the
supposed absence of interest on the verge of the next world, which dispenses
with a necessity of a cross-examination. But before such declarations can be
ad-mitted in evidence against a prisoner, it must be satisfactorily proved,
that the deceased at the time of making them was conscious of his danger and
had given up all hopes of recovery. 1 Phil. Ev. 215, 216; Stark. Ev. part 4, p.
3. They are admissible, as such, only in cases of homicide, where the
death of the deceased is the subject of the charge, and the circumstances of
the death are the subject of the dying declarations. 2 B. & C. 605; 15
John. 286: 4 C. & P. 233.Vide. 2 M. & Rob. 53.
4. The declarant must not have been incapable of a religious sense of
accountability to his Maker; for, if it appears that such religious sense was
wanting, whether it arose from infidelity, imbecility or tender age, the
declarations are alike inadmissible. 1 Greenl. Ev. §157; 1 Phil. Ev. 289;
Phil. & Ani. Ev. 296; 2 Russ. on Cr. 688. See, in general, Bac. Abr.
Evidence, K; Addis. R. 832 East's P. C. 354, 356; 1 Stark. C. 522 2 Hayw. R.
31; 1 Hawk's R. 442; Swift's Ev. 124; Pothier, by Evans, vol. 2, p. 293; Anth.
N. P. 176, and note a; Str. 500.
DEATH'S PART, English law. That portion of the personal estate
of a deceased man which remained after his wife and children had received their
reasonable parts from his estate; which was, if he had both a wife and child or
children, one-third part; if a wife and no child, or a child or children and no
wife, one-half; if neither wife nor child, he had the whole to dispose of by
his last will and testament; and if he made no will, the same was to go to his
administrator. And within the city of London, and throughout the province of
York, in case of intestacy, the wife and children were till lately entitled to
their reasonable parts, and the residue only was distributable by, the statute
of distribution; but by the 11 G. I. c. 18, s. 17, 18, the power of devising
was thrown generally open. Burn's L. Dict., See this dict. tit. Legitime, and
DEBATE, legislation, practice. A contestation between two or
more persons, in which they take different sides of a question, and maintain
them, respectively, by facts and arguments; or it is a discussion, in writing,
of some contested point.
2. The debate should be conducted with fairness, candor and decorum, and
supported by facts and arguments founded in reason; when, in addition, it is
ornamented by learning, and decorated by the powers of rhetoric, it becomes
eloquent and persuasive. It is essential that the power of debate should be
free, in order to an energetic discharge of his duty by the debator.
3. The Constitution of the United States, art. 1, s. 6, provides, that
for any speech or debate, in either bouse, the senators and representatives
shall not be questioned in any other place.
4. It is a rule of the common law, that counsel may, in, the discharge
of professional duty, use strong epithets, however derogatory to the character
of the opponent, or his attorney, or other agent or witness, in commenting on
the facts of the case, if pertinent to the cause, and stated in his
instructions, without any liability to any action for the supposed slander,
whether the thing stated were true or false. 1 B. & Ald. 232; 3 Dow's R.
273, 277, 279; 7 Bing. R. 459; S. C. 20 E. C. L. R. 198. Respectable and
sensible counsel, however, will always refrain from the indulgence of any
unjust severity, both on their own personal account, and because browheating a
witness, or other person, will injuriously affect their case in the eyes of a
respectable court and jury. 3 Chit. Pr. 887, 8.
DEBENTURE. A certificate given, in pursuance of law, by the
collector of a port of entry, for a certain sum, due by the United States,
payable at a time therein mentioned, to an importer for drawhack of duties on
merchandise imported and exported by him, provided the duties arising on the
importation of the said merchandise shall have been discharged prior to the
time aforesaid. Vide Act of Congress of March 2, 1799, s. 80; Encyclop6die, h.
t.; Dane's Ab. Index, h. t.
DEBET ET DETINET, pleading. He owes and detains. In an action
of.debt, the form of the writ is either in the debet and detinet, that is, it
states that the defendant owes and unjustly detains the debt or thing in
question, it is so brought between the original contracting parties; or, it is
in the detinet only; that is, that the defendant unjustly detains from the
plaintiff the debt or thing for which the action is brought; this is the form
in in action by an executor, because the debt or duty is not due to him, but it
is unjustly detained from him. 1 Saund. 1.
2. There is one case in which the writ must be in the detinet between
the contracting parties. This is when the action is instituted for the recovery
of goods, as a horse, a ship, and the like, the writ must bein the detinet, for
it cannot be said a man owes another a horse, or a ship, but only that he
detains them from him. 3 Bl. Com. 153, 4; 11 Vin. Ab. 32 1; Bac. Ab. Debt, F; 1
Lilly's Reg. 543; Dane's Ab. h. t.
DEBIT, accounts, commerce. A term used in book-keeping, to
express the left-hand page of the ledger, to which are carried all the articles
supplied or paid on the subject of an account, or that are charged to that
account. It also signifies the balance of an account.
DEBITUM IN PRAESENTI, SOLVENDUM IN FUTURO. A debt due at
present, to be paid in future. There is a difference between debt payable now
and one payable at a future time. On the former an action may be brought, on
the latter no action lies until it becomes due. See Due; Owing; and 13 Pet.
494; 11 Mass. 493.
DEBT, contracts. A sum of money due by certain and express
agreement. 3 Bl. Com. 154. In a less technical sense, as in the "act to
regulate arbitrations and proceedings in courts of justice" of Pennsylvania,
passed the 21st of March, 1806, s. 5, it means an claim for money. In a still
more enlarged sense, it denotes any kind of a just demand; as, the debts of a
bankrupt. 4 S. & R. 506.
2. Debts arise or are proved by matter of record, as judgment debts; by
bonds or specialties; and by simple contracts, where the quantity is fixed and
specific, and does not depend upon any future valuation to settle it. 3 Bl.
Com. 154; 2 Hill. R. 220.
3. According to the civilians, debts are divided into active and
passive. By the former is meant what is due to us, by the latter, what we owe.
By liquid debt, they understand one, the payment of which may be immediately
enforced, and not one which is due at a future time, or is subject to a
condition; by hypothecary debt is meant, one which is a lien over an estate and
a doubtful debt, is one the payment of which is uncertain. Clef des Lois Rom.
4. Debts are discharged in various ways, but principally by payment. See
Accord and Satisfaction; Bankruptcy; Confusion Compensation; Delegation;
-Defeasance; Discharge of a contract; Extinction; Extinguishment; Former
recovery; Lapse of time; Novation; Payment; Release; Rescission; Set off.
5. In payment of debts, some are to be paid before others, in cases of
insolvent estates first, in consequence of the character of the creditor, as
debts due to the United States are generally to be first paid; and secondly, in
consequence of the nature of the debt, as funeral expenses and servants' wages,
which are generally paid in preference to other debts. See Preference;
DEBT, remedies. The name of an action used for the recovery of a
debt eo nomine and in numero though damages are generally awarded for the
detention of the debt; these are, however, in most instances, merely nominal. 1
H. Bl. 550; Bull. N. P. 167 Cowp. 588.
2. The subject will be considered with reference, 1. To the kind of
claim or obligation on which this action may be maintained. 2. The form of the
declaration. 3. The plea. 4. The judgment.
3. - §1. Debt is a more extensive remedy for the recovery of money
than assumpsit or covenant, for it lies to recover money due upon legal
liabilities, as, for money lent, paid, had and received, due on an account
stated; Com. Dig. Dett, A; for work and labor, or for the price of goods, and a
quantum valebant thereon; Com. Dig. Dett, B Holt, 206; or upon simple
contracts, express or implied, whether verbal or written, or upon contracts
under seal, or of record, or by a common informer, whenever the demand for a
sum is certain, or is capable of being reduced to certainty. Bull. N. P. 167.
It also lies to recover money due on, any specialty or contract under seal to
pay money. Str. 1089; Com. Dig. Dett, A 4; 1 T. R. 40. This action lies on a
record, or upon a judgment of a court of record; Gilb. Debt, 891; Salk. 109; 17
S. & R. 1; or upon a foreign judgment. 3 Shepl. 167; 3 Brev. 395. Debt is a
frequent remedy on statutes, either at the suit of the party grieved, or of a
common informer. Com. Dig. Action on Statute, E; Bac. Ab. Debt, A. See,
generally, Bouv. Inst. Index, h. t.; Com. Dig. h. t.; Dane's Ab. h. t.. Vin.
Ab. h. t.; Chit. Pl. 100 to 109; Selw. N. P. 553 to 682; Leigh's N. P. Index,
h. t. Debt also lies, in the detinet, for goods; which action differs from
detinue, because it is not essential in this action, as in detinue, that the
property in any specific goods should be vested in the plaintiff, at the time
the action is brought; Dy. 24 b; and debt in the debet and detinet may be
maintained on an instrument by which the defendant is bound to pay a sum of
money lent, which might have been discharged, on or before the day of payment,
in articles of merchandise. 4 Yerg. R. 171; see, Com. Dig. Dett, A 5; Bac. Ab.
Debt, F; 3 Woodd. 103, 4; 1 Dall. R. 458.
4. - §2. When the action is on a simple contract, the declaration
must show the consideration of the contract, precisely as in assumpsit; and it
should state either a legal liability or an express agrement, though not a
promise to pay the debt. 2 T. R. 28, 30. When the action is founded on a
specialty or record, no consideration need be shown, unless the performance of
the consideration constitutes a condition precedent, when performance of such
consideration must be averred. When the action is founded on a deed, it must be
declared upon, except in the case of debt for rent. 1 New R. 104.
5. - §3. The plea to an action of debt is either general or
special. 1. The plea of general issue to debt on simple contracts, or on
statutes, or when the deed is only matter of inducement, is nil debet. See Nil
debet. In general, when the action is on a specialty, the plea denying the
existence of the contract is non est factum; 2 Ld. Raym. 1500; to debt on
record, nul tiel record. 16 John. 55. Other matters must, in general, be
6.- §4. For the form of the judgment, see Judgment in debt. Vide
DEBTEE. One to whom a debt is due a creditor, as, debtee
executor. 3 Bl. Com. 18.
DEBTOR, contracts. One who owes a debt; he who may be
constrained to pay what he owes.
2. A debtor is bound to pay his debt personally, and all the estate he
possesses or may acquire, is also liable for his debt.
3. Debtors are joint or several; joint, when they all equally owe the
debt in solido; in this case if a suit should be necessary to recover the debt,
all the debtors must be sued together or, when some are dead, the survivors
must be sued, but each is bound for the whole debt, having a right to
contribution from the others; they are several, when each promises severally to
pay the whole debt; and obligations are generall binding on both or all debtors
jointly and severally. When they are severally bound each may be sued
separately, and on the payment of debt by one, the others will be bound to
contribution, where all had participated in the money or property, which was
the cause of the debt.
4. Debtors are also principal and surety; the principal debtor is bound
as between him and his surety to pay the whole debt. and if the surety pay it,
he will be entitled to recover against the principal. Vide Bouv. Inst. Index,
h. t.; Vin. Ab. Creditor and Debtor; Id. Debt; 8 Com. Dig. 288; Dig. 50, 16,
108 Id. 50, 16, 178, 3; Toull. liv. 2, n. 250.
DECAPITATION, punishment. The punishment of putting a person to
death by taking off his head.
DECEDENT. In the acts of descent and distribution in
Pennsylvania, this word is frequently used for a deceased person, testate or
DECEIT, tort. A fraudulent. misrepresentation or contrivance, by
which one man deceives another, who has no means of detecting the fraud, to the
injury and damage of the latter.
2. Fraud, or the intention to deceive, is the very essence of this
injury, for if the party misrepresenting was himiself mistaken, no blame can
attach to him. The representation must be made malo animo, but whether or not
the party is himself to gain by it, is wholly immaterial.
3. Deceit may not only be by asserting a falsebood deliberately to the
injury of another as, that Paul is in flourishing circumstances, whereas he is
in truth insolvent; that Peter is an honest man, when he knew him to be a,
rogue; that property, real or personal, possesses certain qualities, or belongs
to the vendor, whereas he knew these things to be false; but by any act or
demeanor which would naturally impress the mind of a careful man with a
4. Therefore, if one whose manufactures are of a superior quality,
distinguishes them by a particular mark, which facts are known to Peter, and
Paul counterfeits this work, and affixes them to articles of the same
description, but not made by such person, and sells them to Peter as goods of
such manufacture, this is a deceit.
5. Again, the vendor having a knowledge of a defect in a commodity which
cannot be obvious to the buyer, does not disclose it, or, if apparent, uses an
artifice and conceals it, he has been guilty of a fraudulent misrepresentation
for there is an implied condition in every contract that the parties to it act
upon equal terms, and the seller is presumed to have assured or represented to
the vendee that he is not aware of any secret deficiencies by which the
commodity is impaired, and that he has no advantage which himself does not
6. But in all these cases the party injured must have no means of
detecting the fraud, for if he has such means his ignorance will not avail him
in that case he becomes the willing dupe of the other's artifice, and volenti
non fit injuria. For example, if a horse is sold wanting an eye, and the defect
is visible to a common observer, the purchaser cannot be said to be deceived,
for by inspection he might discover it, but if the blindness is only
discoverable by one experienced in such diseases, and the vendee is an
inexperienced person, it is a deceit, provided the seller knew of the
7. The remedy for a deceit, unless the right of action has been
suspended or discharged, is by an action of trespass on the case. The old writ
of deceit was brought for acknowledging a fine, or the like, in another name,
and this being a perversion of law to an evil purpose, and a high contempt, the
act was laid contra pacem, and a fine imposed upon the offender. See Bro. Abr.
Disceit; Vin Abr. Disceit.
8. When two or more persons unite in a deceit upon another, they may be
indicted for a conspiracy. (q. v.) Vide, generally, 2 Bouv. Inst. n. 2321-29;
Skin. 119; Sid. 375; 3 T. R. 52-65; 1 Lev. 247; 1 Strange, 583; D Roll. Abr.
106; 7 Barr, Rep. 296; 11 Serg. & R. 309, 310; Com. Dig. Action upon the
case for a deceit; Chancery, 3 F 1 and 2; 3 M 1; 3 N 1; 4 D 3; 4 H 4; 4 L 1; 4
O 2; Covin; Justices of the Peace, B 30; Pleader, 2 H; 1 Vin. Ab. 560; 8 Vin.
Ab. 490; Doct. Pl. 51; Dane's Ab. Index, h. t.; 1 Chit. Pr. 832 Ham. N. P. c.
2, s. 4; Ayl. Pand. 99 2 Day, 531; 12 Mass. 20; 3 Johns. 269; 6 Johns. 181; 2
Day, 205, 381; 4 Yeates, 522; 18 John. 395: 8 John. 23; 4 Bibb, 91; 1 N. &
M. 197. Vide, also, articles Equality; Fraud; Lie.
TO DECEIVE. To induce another either by words or actions, to
take that for true which is not so. Wolff, Inst. Nat. §356.
DECEM TALES, practice. In the English law this is a writ which
gives to the sheriff apponere decem tales; i. e. to appoint ten such men for
the supply of jurymen, when a sufficient number do not appear to make up a full
DECENNARY, Eng. law. A town or tithing, consisting originally of
ten families of freeholders. Ten tithings composed a hundred. 1 Bl. Com.
DECIES TANTUM, Eng. law. The name of an obsolete writ which
formerly lay against a juror who had taken money for giving his verdict; called
so, because it was sued out to recover from him ten times as much as he
DECMATION. The punishment of every tenth soldier by lot, was,
among the Romans, called decimation.
DECIME. A French coin, of the value of a tenth part of a franc,
or nearly two cents.
DECISION, practice. A judgment given by a competent tribunal.
The French lawyers call the opinions which they give on questions propounded to
them, decisions. Vide Inst. 1, 2, 8 Dig. 1, 2, 2.
DECLARANT. One who makes a declaration. Vide Declarationis.
DECLARATION, pleading. A declaration is a specification, in a
methodical and logical form, of the circumstances which constitute the
plaintiff's cause of action. 1 Chit. Pl. 248; Co. Litt. 17, a, 303, a; Bac.
Abr. Pleas, B; Com. Dig. Pleader, C 7; Lawes on Pl. 35; Steph Pl. 36; 6 Serg.
& Rawle, 28. In real actions, it is most properly called the count; in a
personal one, the declaration. Steph. Pl. 36 Doct. Pl. 83; Lawes, Plead. 33;
see P. N. B. 16, a, 60, d. The latter, however, is now the general term; being
that commonly used when referring to real and personal actions without
distinction. 3 Bouv. Inst. n. 2815.
2. The declaration in an action at law answers to the bill in chancery,
the libel of the civilians, and the allegation of the ecclesiastical
3. It may be considered with reference, 1st. To those general requisites
or qualities which govern the whole declaration; and 2d. To its form,
particular parts, and requisites.
4. - 1. The general requisites or quali- ties of a declaration are
first, that it correspond with the process. But, according to the present
practice of the courts, oyer of the writ cannot be craved; and a variance
between the writ and declaration cannot be pleaded in abatement. 1 Saund. 318;
5. - Secondly. The second general requisite of a declaration is, that it
contain a statement of all the facts necessary in point of law, to sustain the
action, and no more. Co. Litt. 303, a; Plowd. 84, 122. See 2 Mass. 863; Cowp.
682; 6 East, R. 422 5 T. R. 623; Vin. Ab. Declarations.
6. - Thirdly. These circumstances must be stated with certainty and
truth. The certainty necessary in a declaration is, to a certain intent in
general, which should pervade the whole declaration, and is particularly
required in setting forth, 1st. The parties; it must be stated with certainty
who are the parties to the suit, and therefore a declaration by or against "C D
and Company," not being a corporation, is insufficient. See Com. Dig. Pleader,
C I 8 1 Camp. R. 446 I T. R. 508; 3 Caines, R. 170. 2d. The time; in personal
actions the declaration must, in general, state a time when every material or
traversable fact happened; and when a venue is necessary, time must also, be
mentioned. 5 T. R. 620; Com. Dig. Plead. C 19; Plowd. 24; 14 East, R. 390.; The
precise time, however, is not material; 2 Dall. 346; 3 Johns. R. 43; 13 Johns.
R. 253; unless it constitutes a material part of the contract declared upon, or
whlere the date, &c., of a written contract or record, is averred; 4 T. R.
590 10 Mod. 313 2 Camp. R. 307, 8, n.; or, in ejectment, in which the demise
must be stated to have been made after the title of the lessor of the
plaintiff, and his right of entry, accrued. 2 East, R. 257; 1 Johns. Cas. 283.
3d. The Place. See Venue. 4th. Other circumstances necessary to maintain the
7. - 2. The parts and particular requisites of a declaration are, first,
the title of the court and term. See 1 Chit. Pl. 261, et seq.
8. - Secondly. The venue. Immediately after tñhe title of the
declaration follows the statement in the margin of the venue, or county in
which the facts are alleged to have occurred, and in which the cause is tried.
9. - Thirdly. The commencement. What is termed the commencement of the
declaration follows the venue in the margin, and precedes the more
circumstantial statement of the cause of action. It contains a statement, 1st.
Of the names of the parties to the suit, and if they sue or be sued in another
right, or in a political capacity, (as executors, assignees, qui lam, &c.)
of the character or right in respect of which they are parties to the suit. 2d.
Of the mode in which the defendant has been brought into court; and, 3d. A
brief recital of the form of action to be proceeded in. 1 Saund. 318, Id. 111,
112; 6 T. R. 130.
10. Fourthly. The statement of the cause (if action, in which all the
requisites of certainty before mentioned must be observed, necessarily varies,
according to the circumstances of each particular case, and the form of action,
whether in assumpsit, debt, covenant, detinue, case, trover, replevin or
11. Fifthly. The several counts. A declaration may consist of as many
counts as the case requires, and the jury may assess entire or distinct damages
on. all the counts; 3 Wils. R. 185; 2 Bay, R. 206; and it is usual,
particularly in actions of assumpsit, debt on simple contract, and actions on
the case, to set forth the plaintiff's cause of action in various shapes in
different counts, so that if the plaintiff fail in proof of one count, he may
succeed in another. 3 Bl. Com. 295.
12. - Sixthly. The conclusion. In personal and mixed actions the
declaration should conclude to the damage of the plaintiff; Com. Dig. Pleader,
C 84; 10 Co. 116, b. 117, a.; unless in scire facias and in penal actions at
the suit of a common informer.
13. - Seventhly. The profert and pledges. In an action at the suit of an
executor or administrator, immediately after the conclusion to the damages,
&c., and before the pledges, a profert of the letters testamentary or
letters of administration should be made. Bac. Abr. Executor, C; Dougl. 6, in
notes. At the end of the declaration, it is usual to add the plaintiff is
common pledges to prosecute, John Doe and Richard Roe.
14. A declaration may be general or special; for example, in debt or
bond, a declaration counting on the penal part only, is general; when it sets
out both the penalty and the condition, and assigns the breach, it is special.
Gould on Pl. c. 4, §50. See, generally, Bouv. Inst. Index, h. t. 1 Chit.
Pl. 248 to 402; Lawes, Pl. Index) h. t.; Arch. Civ. Pl. -index, h. t.; Steph.
Pl. h. t.; Grab. Pr. h. t.; Com. Dig. Pleader, h. t.; Dane's Ab. h. t.; United
States Dig. Pleadings ii.
DECLARATION OF INDEPENDENCE. This is a state paper issued by the
congress of the United States of America, in the name and by the authority of
the people, on the fourth day of July, 17 76, wherein are set forth:
2. - 1. Certain natural and unalienable rights of man; the uses and
purposes of governments the right of the people to institute or to abolish
them; the sufferings of the colonies, and their right to withdraw from the
tyranny of the king of Great Britain.
3. -2. The various acts of tyranny of the British Icing.
4. - 3. The petitions for redress of these injuries, and the refusal. to
redress them; the recital of an appeal to the people of "Great Britain, and of
their being deaf to the voice of justice and consanguinity.
5. - 4. An appeal to the Supreme Judge of the world for the rectitude of
the intentions of the representatives.
6. - 5. A declaration that the United Colonies are, and of right ought
to be, free and independent states; that they are absolved from all allegiance
to the British crown, and that all political connexion between them and the
state of Great Britain, is and ought to be dissolved.
7. - 6. A pledge by the representatives to each other, of their lives,
their fortunes, and their sacred honor.
8. The effect of this declaration was the establishment of the
government of the United States as free and independent) and thenceforth the
people of Great Britain have been held, as the rest of mankind, enemies in war,
in peace friends.
DECLARATION OF lNTENTION. The act of an alien, who goes before a
court of record, and in a forma manner declares that it is, bona fide, his
intention to become a citizen of the United States, and to renounce forever all
allegiance and fidelity to any foreign prince, potentate, state, or
sovereignty, whereof he may at the time be a citizen or subject. Act of
Congress of April 14, 18O2, s. 1.
2. This declaration must, in usual cases, be made at least three years
before his admission. Id. But there are numerous exceptions to this rule. See
DECLARATION OF TRUST. The act by which an individual
acknowledges that a property, the title of which he holds, does in fact belong
to another, for whose use he holds the same. The instrument in which the
acknowledgment is made, is also called a declaration of trust; but such a
declaration is not always in writing, though it is highly proper it should be
so. Will. on Trust, 49, note y; Sudg. on Pow. 200. See Merl. Rep. Declaration
au profit d'un tiers.
DECLARATION OF WAR. An act of the national legislature, in which
a state of war is declared to exist between the United States and some other
2. This power is vested in congress by the constitution, art. 1, s. 8.
There is no form or ceremony necessary, except the passage of the act. A
manifesto, stating the causes of the war, is usually publishied, but war exists
as soon as the act takes effect. It was formerly usual to precede hostilities
by a public declaration communicated to the enemy, and to send a herald to
demand satisfaction. Potter, Antiquities of Greece, b. 3, c. 7; Dig. 49, 15,
24. But that is not the practice of modern times. In some countries, as
England, the, power of declaring war is vested in the king, but he has no power
to raise men or money to carry it on, which renders the right almost
4. The public proclamation of the government of a state, by which it
declares itself to be at war with a foreign power, which is named, and which
forbids all and every one to aid or assist the common enemy, is also called a
declaration of war.
DECLARATIONS, evidence. The statements made by the parties to a
transaction, in relation to the same.
2. These declarations when proved are received in evidence, for the
purpose of illustrating the peculiar character and circumstances of the
transaction. Declarations are admitted to be proved in a variety of cases.
3. - 1. In cases of rape, the fact that the woman made declarations in
relation to it, soon after the assault took place, is evidence; but the
particulars of what she said cannot be heard. 2 Stark; N. P. C. 242; S. C. 3 E.
C. L. R. 344. But it is to be observed that these declarations can be used only
to corroborate her testimony, and cannot be received as independent evidence;
where, therefore, the prosecutrix, died, these declarations could not be
received. 9 C. & P. 420; S. C. 38 Eng. C. L. R. 173; 9 C. & P. 471; S.
C. 38 E. C. L. It. 188.
4. - 2. When more than one person is concerned in the commission of a
crime, as in cases of riots, conspiracies, and the like, the declarations of
either of the parties, made while acting in the common design, are evidence
against the whole; but the declarations of one of the rioters or conspirators,
made after the accomplishment of their object, and when they no longer acted
together, are evidence only against the party making them. 2 Stark. Ev. 235 2
Russ. on Cr. 572 Rosc. Cr. Ev. 324; 1 Breese, Rep. 269.
5. In. civil cases the declarations of an agent, made while acting for
his principal, are admitted in evidence as explanatory of his acts; but his
confessions after he has ceased to, act, are not evidence. 4. S. R. 321.
6. - 3. To prove a pedigree, the declarations of a deceased member of
the family are admissible. Vide Hearsay, and the cases there cited.
7. - 4. The dying declarations of a man who has received a mortal
injury, as to the fact itself, and the party by whom it was committed, are good
evidence; but the party making them must be under a full consciousness of
approaching death. The declarations of a boy between ten and eleven years of
age, made under a consciousness of approaching death, were received in evidence
on the trial of a person for killing him, as being declarations in articulo
mortis. 9 C. & P. 395; S. C. 38 E. C. L. R. 168. Evidence of such
declarations is admissible only when the death of the deceased is the subject
of the charge, and the circumstances of the death the subject of the dying
declarations. 2 B. & C. 605; S. C. 9 E. C. L. R. 196; 2 B. & C. 608; S.
C. 9 E. C. L. R. 198; 1 John. Rep. 159; 15 John. R. 286; 7 John. R. 95 But see
contra, 2 Car. Law Repos. 102. Vide Death bed, or Dying declarations. 3 Bouv.
Inst. n. 3071.
DECLARATORY. Something which explains, or ascertains what before
was uncertain or doubtful; as a declaratory statute, which is one passed to put
an end to a doubt as to what the law is, and which declares what it is, and
what it has been. 1 Bl. Com. 86.
TO DECLARE. To make known or publish. By tho constitution of the
United States, congress have power to declare war. In this sense the word,
declare, signifies, not merely to make it known that war exists, but also to
make war and to carry it on. 4 Dall. 37; 1 Story, Const. §428; Rawle on
the Const. 109. In pleading, to declare, is the act of filing a
DECOCTION, med. jurisp. The operation of boiling certain
ingredients in a fluid, for the purpose of extracting the parts soluble at that
temperature. Decoction also means the product of this operation.
2. In a case in which the indictment charged the prisoner with having
administered to a woman a decoction of a certain shrub called savin, it
appeared that the prisoner had administered an infusion (q. v.) and not a
decoction; the prisoner's counsel insisted that he was entitled to an
acquittal, on the ground that the medicine was misdescribed, but it was held
that infusion and decoction are ejusdem generis, and that the variance was
immaterial. 3 Camp. R. 74, 75.
DECONFES, canon law in France. Formerly those persons who died
without confession were so called; whether they refused to confess or whether
they were criminals to whom the sacrament was refused. Droit Canon, par M.
L'Abbe Andre. Dupin, Gloss. to Loisel's Institutes, says, Le deconfes est celui
qui meurt sans confession et sans testament car l'un n'alloit point sans
l'autre. See Intestate.
DECORUM. Proper behaviour; good order.
2. Decorum is requisite in public places, in order to permit all persons
to enjoy their rights; for example, decorum is indispensable in church, to
enable those assembled, to worship. If, therefore, a person were to disturb the
congregation, it would be lawful to put him out. The same might be done in case
of a funeral. 1 Mod. 168; 1 Lev. 196 2 Kebl. 124. But a request to desist
should be first made, unless, indeed," when the necessity of the case would
render such precaution impossible. In using force to restore order and decorum,
care must be taken to use no more than is necessary; for any excess will render
the party using it guilty of an assault and battery. Vide Battery.
DECOY. A pond used for the breeding and maintenance of
water-fowl. 11 Mod. 74, 130; S. C. 3 Salk. 9; Holt, 14 11 East, 571.
DECREE, practice. The judgment or sentence of a court of
2. It is either interlocutory or final. The former is given on some plea
or issue arising in the cause, which does not decide the main question; the
latter settles the matter in dispute, and a final decree has the same effect as
a judgment at law. 2 Madd. Ch. 462; 1 Chan. Cas. 27; 2 Vern. 89; 4 Bro. P. C.
287.; Vide 7r-Vin. Ab. 394; 7 Com. Dig. 445; 1 Supp. to Ves. Jr. 223 Bouv.
Inst. Index, h. t.
DECREE, legislation. In some countries as in France, some acts
of the legislature, or of the sovereign, which have the force of law, are
called decrees; as, the Berlin and Milan decrees.
DECREE ARBITRAL, Scotch law. A decree made by arbitrators chosen
by the parties; an award. 1 Bell's Com. 643.
DECREE OF REGISTRATION, Scotch law. A proceeding by which the
creditor has immediate execution; it is somewhat like a warrant of attorney to
confess judgment. 1 Bell's Com. B. 1, c. 1, p. 4.
DECRETAL ORDER. Chancery practice. An order made by the court of
chancery, upon a motion or petition, in the nature of a decree. 2 Dan. Ch. Pr.
DECRETALS. eccles. law. The decretals are canononical epistles,
written by the pope alone, or by the pope and cardinals, at the instance or
suit of some one or more persons, for the ordering and determining some matter
in. controversy, and have the authority of a law in themselves.
2. The decretals were published in three volumes. The first volume was
collected by Raymundus Barcinius, chaplain to Gregory IX., about the year 1231,
and published by him to be read in schools, and used in the ecclesiastical
courts. The second volume is the work of Boniface VIII compiled about the year
1298, with additions to and alterations of the ordinances of his predecessors.
The third volume is called the Clementines, because made by Clement V., and was
published by him in the council of Vienna, about the year 1308. To these may be
added the Extravagantes of John XXII. and other bishops of Rome, which,
relatively to the others, are called Novelle Constitutiones. Ridley's View,
&c. 99, 100,; 1 Fournel, Hist. des Avocats, 194-5.
3. The false decretals were forged. in the names of the early bishops of
Rome, and first appeared about A. D. 845-850. The author of them is not known.
They are mentioned in a letter written in the name of the council of Quiercy,
by Charles the Bald, to the bishops and lords. of France. See Van Espen Fleury,
Droit de Canon, by Andre.
DEDI, conveyancing. I have given. This word amounts to a
warranty in law, when it is in a deed; for example, if in a deed it be said, I
have given, &c., to A B, this is a warranty to him and his heirs. Brooke,
Abr. Guaranties, pl. 85. Yet the warranty wrought by this word is a special
warranty, and extendeth to the heirs of the feoffee during the life of the
donor only. Co. Litt. 884, b. Vide Concessi.
DEDICATION. Solemn appropriation. It may be expressed or
2. An express dedication of property to public use is made by a direct
appropriation of it to such use, and it will be enforced. 2 Peters, R. 566; 6
Hill, N. Y. Rep. 407.
3. But a dedication of property to public or pious uses may be implied
from the acts of the owner. A permission to the public for the space of eight
or even six years, to use a street without bar or impediment, is evidence from
which a dedication to the public may be inferred. 2 Bouv. Inst. n. 1631; 11
East, R. 376; 12 Wheat. R. 585; 10 Pet. 662; 2 Watts, 23; 1 Whart. 469; 3 Verm,
279; 6 Verm. 365; 7 Ham. part 2, 135; 12 Wend. 172; 11 Ala. R. 63, 81; 1
Spencer, 86; 8 Miss. R. 448 5 Watts & S. 141; Wright, 150; 6 Hill, 407 24
Pick. 71; 6 Pet. 431, 498 9 Port.,527; 3 Bing. 447; sed vide 5 Taunt. R . 125.
Vide Street, and the following authorities: 3 Kent, Com. 450; 5 Taunt. 125 5
Barn. & Ald. 454: 4 Barn. & Ald. 447; Math. Pres. 833. As to what shall
amount to a dedication of an invention to public use, see 1 Gallis. 482; 1
Paine's C. C. R. 345; 2. Pet. R. 1; 7 Pet. R. 292; 4 Mason, R. 1018. See
DEDIMUS, practice. The name of a writ to commission private.
persons to do some act in the place of a judge; as, to administer an oath of
office to a justice of the peace, to examine witnesses, and the like. 4 Com.
Dig. 319; 3 Com. Dig. 359; Dane's Ab. Index, h. t. Rey, in his Institutions
Judiciaires, de l'Angleterre, tom. 2, p. 214, exposes the absurdity of the name
given to this writ; he says it is applicable to every writ which emanates from
the same authority; dedimus, we have given.
DEDIMUS POTESTATEM DE ATTORNO FACIENCDO. The name of a writ
which was formerly issued by authority of the crown in England to authorize an
attorney to appear for a defendant.
2. By statute of Westminster 2, 13 Edw. I. c. 10, all persons impleaded
may make an attorney to sue for them in all pleas moved by or against them, in
the superior courts there enumerated. 3 Mann. & Gran. 184, note.
DEED, conveyancing, contracts. A writing or instrument, under
seal, containing some contract or agreement, and which has been delivered by
the parties. Co. Litt. 171; 2 Bl. Com. 295; Shep. Touch. 50. This applies to
all instruments in writing, under seal, whether they relate to the conveyance
of lands, or to any other matter; a bond, a single bill, an agreement in
writing, or any other contract whatever, when reduced to writing, which writing
is sealed and delivered, is as much a deed as any conveyance of land. 2 Serg.
& Rawle, 504; 1 Mood. Cr, Cas. 57; 5 Dana, 365; 1 How. Miss. R. 154; 1
McMullan, 373. Signing is not necessary at common law to make a deed. 2 Ev.
Poth. 165; 11 Co. Rep. 278 6 S. & R. 311.
2. Deed, in its more confined sense, signifies a writing, by which
lands, tenements, and hereditaments are conveyed, which writing is sealed and
delivered by the parties.
3. The formal parts of a deed for the conveyance of land are, 1st. The
premises, which contains all that precedes the habendum, namely, the date, the
names and descriptions of the parties, the recitals, the consideration, the
receipt of the same, the grant, the full description of the thing granted, and
the exceptions, if any.
4. - 2d. The habendum, which states that estate or interest is granted
by the deed this is sometimes, done in the premises.
5. - 3d. The tenendum. This was formerly used to express the tenure by
which the estate granted was to be held; but now that all freehold tenures have
been converted into socage, the tenendum is of no use and it is therefore
joined to the habendum, under the formula to have and to hold.
6th. The redendum is that part of the deed by which the grantor reserves
something to himself, out of the thing granted, as a rent, under the following
formula, Yielding and paying.
7. - 5th. The conditions upon which the grant is made. Vide
8. - 6th. The warranty, is that part by which the grantor warrants the
title to the grantee. This is general when the warrant is against all persons,
or special, when it is only against the grantor, his heirs, and those claiming
under him. See Warranty.
9. - 7th. The covenants, if any; these are inserted to oblige the
parties or one of them, to do something beneficial to, or to abstain from
something, which, if done, might be prejudicial to the other.
10. - 8th. The conclusion, which mentions the execution and the date,
either expressly, or by reference to the beginning.
11. The circumstances necessarily attendant upon a valid deed, are the
following: 1. It must be written or printed on parchment or paper. Litt. 229,
a; 2 Bl. Com. 297. 2. There must be sufficient parties. 3. A proper
subject-matter which is the object of the grant. 4. A. sufficient
consideration. 5. An agreement properly set forth. 6. It must be read, if
desired. 7. It must be signed and sealed. 8. It must be delivered. 9. And
attested by witnesses. 10. It should be properly acknowledged before a
11. It ought to be recorded.
12. A deed may be avoided, 1. By alterations made in it subsequent to
its execution, when made by the party himself, whether they be material or
immaterial, and by any material alteration, made even by a stranger. Vide
2. By the disagreement of those parties whose concurrence is necessary;
for instance, in the case of a married woman by the disagreement of her
hushand. 3. By the judgment of a competent tribunal.
13. According to Sir William Blackstone, 2 Com. 313, deeds may be
considered as (1), conveyanees at common law, original and derivative. 1st. The
original are, 1. Feoffment. 2. Gift. 3. Grant. 4. Lease. 5. Exchange; and 6.
Partition. 2d. Derivative, which are 7. Release. 8. Confirmation. 9. Surrender.
10. Assignment 11. Defeasance. (2). Conveyances which derive their force by
virtue of the statute of uses; namely, 12. Covenant to stand seised to uses.
13. Bargain and sale of lands. 14. Lease and release. 15. Deed to lead and
declare uses. 16. Deed of revocation of uses.
14. The deed of, bargain and sale, is the most usual in the United
States. Vide Bargain and Sale. Chancellor Kent is of opinion that a deed would
be perfectly competent in any part of the United States, to convey the fee, if
it was to the following effect: "I, A, B, in consideration of one dollar to me
paid, by C D, do bargain and sell , (or in some of the states, grant) to C D,
and his heirs, (in New York, Virginia, and some other states, the words, and
his heirs may be omitted,) the lot of land, (describing it,) witness my hand
and seal," &c. 4 Kent, Com. 452. Vide, generally, Bouv. Inst. Index, h. t.;
Vin. Abr. Fait; Com. Dig. Fait; Shep. Touch. ch. 4; Dane's Ab. Index, h. t.; 4
Cruise's Dig. passim.
15. Title deeds are considered as part of the inheritance and pass to
the heir as real estate. A tenant in tail is, therefore, entitled to them; and
chancery will, enable him to get possession of them. 1 Bro. R. 206; 1 Ves. jr.
227;11 Ves. 277; 15 Ves. 173. See Hill. Ab. c. 25; 1 Bibb, R. 333: 3 Mass. 487;
5 Mass. 472.
16. The cancellation, surrender, or destruction of a deed of conveyance,
will not divest the estate which has passed by force of it. 1 Johns. Ch. Rep.
417 2 Johns. Rep. 87. As to the effect of a redelivery of a deed, see 2 Bl.
Com. 308 2 H. Bl. 263, 264.
DEED POLL, contracts. A deed made by one party only is not
indented, but polled or shaved quite even, and is, for this reason, called a
deed poll, or single deed. Co. Litt. 299, a.
2. A deed poll is not, strictly speaking, an agreement between two
persons; but a declaration of some one particular person, respecting an
agreement made by him with some other person. For example, a feoffment from A
to B by deed poll, is not an agreement between A and B, but rather a
declaration by A addressed to all mankind, informing them that he thereby gives
and enfeoffs B of certain land therein described.
3. It was formerly called charta de una parte, and, usually began with
these words, Sciant praesentes et futuri quod ego A, &c.; and now begins,
"Know all men by these presents, that I, A B, have given, granted, and
enfeoffed, and by these presents do give, grant and enfeoff," &c. Cruise,
Real Prop. tit. 32, c. 1, s. 23.
DEFALCATION, practice, contracts. The reduction of the claim of
one of the contracting parties against the other, by deducting from it a
smaller claim due from the former to the latter.
2. The law operates this reduction , in certain cases, for, if the
parties die or are insolvent, the balance between them is the only claim; but
if they are solvent and alive, the defendant may or may not defalcate at his
choice. See Set off. For the etymology of this word, see Bracken. Law Misc.
186; 1 Rawle's R. 291; 3 Binn. R. 135.
3. Defalcation also signifies the act of a defaulter. The bankrupt act
of August 19, 1841, (now repealed), declares that a person who owes debts which
have been created in consequence of a defalcation as a public officer, or as
executor, administrator, guardian or trustee, or while acting in any other
fiduciary capacity, shall not have the benefit of that law.
DEFAMATION, tort. The speaking slanderous words of a person so
as, de bona fama aliquid detrahere, to hurt his good fame. Vide Slander.
2. In the United States, the remedy for defamation is by an action on
the case, where the words are slanderous.
3. In England, besides the remedy by action, proceedings may be
instituted in the ecclesiastical court for redress of the injury. The
punishment for defamation, in this court, is payment of costs and penance
enjoined at the discretion of the judge. When the slander has been privately
uttered, the penance may be ordered to be performed in a private place; when
publicly uttered, the sentence must be public, as in the church of the parish
of the defamed party, in time of divine service,, and the defamer may be
required publicly to pronounce that by such words, naming them, as set forth in
the sentence, he had defamed the plaintiff, and, therefore, that he begs
pardon, first, of God, and then of the party defamed, for uttering such words.
Clerk's Assist. 225; 3 Burn's Eccl. Law, Defamation, pl. 14; 2 Chit. Pr. 471
Cooke on Def.
DEFAULT. The neglect to perform a legal obligation or duty; but
in technical language by default is often understood the non-appearance of the
defendant within the time prescribed by law, to defend himself; it also
signifies the non-appearance of the plaintiff to prosecute his claim.
2. When the plaintiff makes default, he may be nonsuited; and when the
defendant makes default, judgment by default is rendered against him. Com. Dig.
Pleader, E 42 Id. B 11. Vide article Judgment by Default, and 7 Vin. Ab. 429;
Doct. Pl. 208 Grah. Pr. 631. See, as to what will excuse or save a default, Co.
Litt. 259 b.
DEFAULT, contracts, torts. By the 4th section of the English
statute of frauds, 29 Car. H., c. 3, it is enacted that "no action shall be
brought to charge the defendant upon any special promise to answer for the
debt, default, or miscarriage of another person, unless the agreement,"
&c., "shall be in writing," &c. By default under this statute is
understood the non-performance of duty, though the same be not founded on a
contract. 2 B. & A. 516.
DEFAULTER, com. law. One who is deficient in his accounts, or
falls in making his accounts correct.
DEFEASANCE, contracts, conveyancing. An instrument which defeats
the force or operation of some other deed or estate. That, which in the same
deed is called a condition, in another deed is a defeasance.
2. Every defeasance must contain proper words, as that the thing shall
be void. 2 Salk. 575 Willes, 108; and vide Carth. 64. A defeasance must be made
in eodem modo, and by, matter as high as the thing to be defeated; so that if
one be by deed) the other must also be by deed. Touchs. 397.
3. It is a general rule, that the defeasance shall be a part, of the
same transaction with the conveyance; though the defeasance may be dated after
the deed. 12 Mass. R. 13 Pie P. 413 1 N. 11. Rep. 41; but see 4 Yerg. 57,
contra. Vide Bouv. Inst. Index, h. t.; Vin. Ab. h. t.; Com. Dig. h. t.; Id.
Pleader, 2 W 35, 2 W 37; Lilly's Reg. h. t.; Nels. Ab. h. t.; 2 Saund. 47 n,
note 1; Cruise, Dig. tit. 32, c. 7,, s. 25; 18 John. R. 45; 9 Wend. R. 538; 2
Mass. R. 493.
DEFEASIBLE. What may be undone or annulled.
DEFECT. The want of something required by law.
2. It is a general rule that pleadings shall have these two requisites;
1. A matter sufficient in law. 2. That it be deduced and expressed according to
the forms of law. The want of either of these is a defect.
3. Defects in matters of substance cannot be cured, because it does not
appear that the plaintiff is entitled to recover; but when the defects are in
matter of form, they are cured by a verdict in favor of the party who committed
them. 3 Bouv. Inst. n. 3292; 2 Wash. 1; 1 Hen. & Munf. 153; 16 Pick. 128,
541; 1 Day, 315; 4 Conn, 190; 5 Conn. 416; 6 Conn. 176; 12 Conn. 455; 1 P. C.
C. R. 76; 2 Green, 133; 4 Blackf. 107; 2 M'Lean, 35; Bac. Ab. Verdict, X.
DEFENCE, torts. A forcible resistance of an attack by force.
2. A man is justified, in defending his person, that of his wife,
children, and servants, and for this purpose he may use as much force as may be
necessary, even to killing the assailant, remembering that the means used must
always be proportioned to the occasion, and an excess becomes, itself, an
3. A man may also repel force by force in defence of his personal
property, and even justify homicide against one Who manifestly intends or
endeavors by violence or surprise to commit a known felony, as robbery.
4. With respect to the defence or protection of the possession of real
property, although it is justifiable even to kill a person in the act of
attempting to commit a forcible felony, as burglary or arson, yet this
justification can only take place when the party in possession is wholly
without fault. 1 Hale, 440, 444; 1 East, P. C. 259, 277. When a forcible attack
is made upon the dwelling-house of another, without any felonious intent, but
barely to commit a trespass, it is in general lawful to oppose force by force,
when the former was clearly illegal. 7 Bing. 305; S. C. 20 Eng. C. L. Rep. 139.
Vide, generally, Ham. N. P. 136, 151 1 Chit. Pr. 589, 616; Grot. lib. 2, c. 1
Rutherf. Inst. B. 1, c. 16.
DEFENCE, pleading, practice. It is defined to be the denial of
the truth or validity of the complaint, and does not signify a justification.
It is a general assertion that the plaintiff has no ground of action, which
assertion is afterwards extended and maintained in the plea. 3 Bl. Com. 296;
Co. Litt. 127. It is similar to the contestatio litis of the civilians.
2. Defence is of two descriptions; first half defence, which is as
follows, "venit et defendit vim et injuriam, et dicit," &c.; or secondly,
full defence, "venit et defendit vim et injuriam, quando," &c. meaning
"quando et ubi curia consideravit," (or when and where it shall behoove him,) "
et damna et quicquid quod ipse defendere debet et dicit," &c. Co. Litt.
127, b; Bac. Abr. Pleas, D Willis, 41.
3. In strictness, the words quando, &c. ought not to be added when
only half defence is to be made; and after the words "venit et defendit vim et
injuriam," the subject matter of the plea should immediately be stated. Gilb.
C. P. 188; 8 T. R. 6 3 2; 3 B. & P. 9, n. a.
4. It has, however, now become the practice in all cases, whether half
or full defence be intended, to, state it a's follows: "And the said C D, by M
N, his attorney, comes and defends the wrong, (or in trespass, force) and
injury, when, &c. and says," which will be considered only as half defence
in cases where such defence should be made, and as full defence where the
latter is necessary. 8 T. R. 633; Willis, 41 3 B. & P. 9; 2 Saund. 209,
5. If full defence were made expressly by the words "when and where it
shall behoove him," and "the damages and whatever else he ought to defend," the
defendant would be precluded from pleading to the jurisdiction or in abatement,
for by defending when and where it shall behoove him, the defendant
acknowledges the jurisdiction of the court and by defending the damages he
waives all. exception to the person of the plaintiff. 2 Saund. 209, c.; 3 Bl.
Com. 297 Co. Litt. 127, b Bac. Abr. Pleas, D.
6. Want of defence being only matter of form, the omission is aided by
general demurrer. 3 Salk. 271. See further, 7 Vin. Abr. 497; 1 Chit. Pl. 410;
Com. Dig. Abatement, I 16; Gould. on Pl. c. 2, s. 6-15; Steph. Pl. 430.
7. In another sense, defence signifies a justification; as, the
defendant has made a successful defence to the charge laid in the
8. The Act of Congress of April 30, 1790, 1 Story, L. U. S. 89, acting
upon the principles adopted in perhaps all the states, enacts, §28, that
every person accused and indicted of the crime of treason, or other capital
offence, shall "be allowed and admitted to make his full defence by counsel
learned in the law; and the court before whom such person shall be tried, or
some judge thereof, shall, and they are hereby authorized and requited,
immediately upon his request, to assign to such person such counsel, not
exceeding two, as such person shall desire, to whom such counsel shall have
free access, at all seasonable hours; and every such person or persons, accused
or indicted of the crimes aforesaid, shall be allowed and admitted in his said
defence, to make any proof that he or they can produce, by lawful witness or
witnesses, and shall have the like process of the court where he or they shall
be tried, to compel his or their witnesses to appear at his or their trial, as
is usually granted to compel witnesses to appear on the prosecution against
9. Defences in equity may be classed in two divisions, namely into
dilator defences, (q. v.) and into those which are peremptory. Matters of
peremptory or permanent defences may be also divided into two sorts, first,
those where the plaintiff never had any right to institute the suit; for
example: 1. That the plaintiff had not a superior right to the defendant. 2.
That the defendant has no interest. 3. That there is no privity between the
plaintiff and defendant, or any right to sustain the suit. Secondly, those that
insist that the original right, if any, is extinguished or determined; as, 1.
When the right is determined by the act of the parties; or, 2. When it is
determined by operation of law. 4 Bouv. Inst. n. 4199, et seq.; 1 Montag. Eq.
Pl. 89. See Dilatory Defence; Merits.
TO DEFEND. To forbid. This word is used in some old English
statutes in the sense it has in French, namely, to forbid. 5 Pic. 2, c. Lord
Coke uses the word in this sense: it is defended by law to distrain on the
highway." Co Litt. 160, b. 161 a. In an old work entitled , Legends, printed by
Winkin de Worde, in 1527, fo. 96, we find examples of the use of the word in
this sense, " He defended," (forbade) " to pay the wage," (tribute,) " for he
said he was a king." " She wrote the obligation when she put her hand to the
tree against the defence." (prohibition of God.)
2. In pleading, to defend is to deny; and the effect of the word
"defends" is, that the defendant denies the right of the plaintiff, or the
force and wrong charged. Steph. Pl. 432.
3. In contracts, to defend is to guaranty; to agree to indemnify. In
most conveyances of land the grantor covenants to warrant and defend. It is his
duty, then, to prevent all persons against whom he defends, from doing any act
which would evict him; when there is a mortgage upon the land, and the
mortgagee demands possession or payment of the covenantee, and threatens suit,
this is a breach of the covenant to defend, and for quiet enjoyment. 17 Mass.
DEFENDANT. A party who is sued in a personal action. Vide
Demandant; Par- ties to Actions; Pursuer; and Com. Dig. Abatement, F; Action
upon the case upon assumpsit, E, b; Bouv. Inst. Index, h. t.
2. At common law a defendant cannot have judgment to recoyer a sum of
money of the plaintiff. But this rule is, in some cases, altered by the act of
assembly in Pennsylvania, as by the. Act of 1705, for defalcation, by which he
may sue out a sci. fac. on the record of a verdict for a sum found in his
favor. 6 Binn. Rep. 175. See Account 6.
DEFENDANT IN ERROR. A party against whom a writ of error is sued
DEFENDER, canon law. The name by which the defendant or
respondent is known in the ecclesiastical courts.
DEFENSIVE ALLEGATION. The defence or mode of propounding a
defence in the spiritual courts, is so called.
DEFICIT. This Latin term signifies that something is wanting. It
is used to express the deficiency which is discovered in the accounts of an
accountant, or in the money in which he has received.
DEFINITE NUMBER. An ascertained number; the term is usually
applied in opposition to an indefinite number.
2. When there is a definite number of corporators, in order to do a
lawful act, a majority of the whole must be present; but it is not necessary
they should, be unanimous; a majority of those present can, in general, perform
the act. But when the corporators consist of an indefinite number, any number,
consisting of a majority of those present, may do the act. 7 Cowen, R. 402 9 B.
& Cr. 648, 851; 7 S. & 11. 517; Ang. & Am. on Corp. 281.
DEFINITION. An enumerition of the principal ideas of which a
compound idea is formed, to ascertain and explain its nature and character; or
it is that which denotes and points out the substance of a thing, to us.
Ayliffe's Pand. 59.
2. A definition ought to contain every idea which belongs to the thing
defined, and exclude all others.
3. A definition should be, 1st. Universal, that is, such that it will
apply equally to all individuals of, the same kind. 2d. Proper, that is, such
that it will not apply to any other individual of any other kind. 3d. Clear,
that is, without any equivocal, vague, or unknown word. 4th. Short, that is,
without any useless word, or any foreign to the idea intended to be
4. Definitions are always dangerous, because it is always difficult to
prevent their being inaccurate, or their becoming so; omnis definitio injure
civili periculosa est, parum est enim, ut non subvertipossit.
5. All ideas are not susceptible of definitions, and many words cannot
be defined. This inability is frequently supplied, in a considerable degree, by
descriptions. (q. v.)
DEFINITIVE. That which terminates a suit a definitive sentence
or judgment is put in opposition to an interlocutory judgment; final. (q.
DEFLORATION. The act by which a woman is deprived of her
2. When this is done unlawfully, and against her will, it bears the name
of rape, (q. v.) when she consents, it is fornication. (q. v.)
DE FORCIANT. One who wrongfully keeps the owner of lands and
tenements out of the possession of them. 2 Bl. Com. 350.
DEFORCIARE. To withhold lands or tenements from the right owner.
This is a word of art which cannot be supplied by any other word. Co. Litt. 331
b; 3 Tho. Co. Litt. 3; Bract. lib. 4, 238; Fleta, lib. c.
DEFORCEMENT, tort. In its most extensive sense it signifies the
holding of any lands or tenements to which another person has a right; Co .
Litt. 277; so that this includes, as well, an abatement, an intrusion, a
disseisin, or a discontinuance, as any other species of wrong whatsoever, by
which the owner of the freehold is kept out of possession. But, as
contradistinguished from the former, it is only such a detainer, of the
freehold, from him who has the right of property, as falls within none of the
injuries above mentioned. 3 Bl. Com. 173; Archb. Civ. Pl. 13; Dane's Ab. Index,
DEFORCEMENT, Scotch law. The opposition given, or resistance
made, to messengers or other officers, while they are employed in executing the
2. This crime is punished by confiscation of movables, the one half to
the king, and the other to the creditor at whose suit the diligence is used.
Ersk. Pr. L. Scot. 4,4,32.
DEFUNCT. A term used for one that is deceased or dead. In some
acts of assembly in Pennsylvania, such deceased person is called a decedent.
DEGRADATION, punishment, ecclesiastical law. A censure by which
a clergy man is deprived of his holy orders, which he had as a priest or
TO DEGRADE, DEGRADING. To, sink or lower a person in the
estimation of the public.
2. As a man's character is of great importance to him, and it is his
interest to retain the good opinion of all mankind, when he is a witness, he
cannot be compelled to disclose any matter which would tend to disgrace or
degrade him, 13 How. St. Tr. 17, 334, 16 How. St. Tr. 161. A question having
that tendency, however, may be asked, and, in such case, when the witness
chooses to answer it, the answer is conclusive. 1 Phil. Ev. 269; R. & M.
DEGREE, descents. This word is derived from the French degre,
which is itself taken from the Latin gradus, and signifies literally, a step in
a stairway, or the round of a ladder.
2. Figuratively applied, and as it is understood in law, it is the
distance between those who are allied by blood; it means the relations
descending from a common ancestor, from generation to generation, as by so many
steps. Hence, according to some Lexicographers, we obtain the word, pedigree
(q. v.) Par degrez, by degree, the descent being reckoned par degrez. Minshew.
Each generation lengthens the line of descent one degree, for the degrees are
only the generations marked in a line by small circles or squares, in which the
names of the persons forming it are written. Vide Consanguinity;, Line; and
also Ayliffe's Parergon, 209; Toull. Dr. Civ. Frau. liv. 3, t. 1, c. 3, n. 158;
Aso & Man. Inst. B. 2, t. 4, c. 3, §1.
DEGREE, measures. In angular measures, a degree is equal to
sixty minutes, or the thirtieth part of a sine. Vide Measure.
DEGREE, persons. By. degree, is understood the state or
condition of a person. The ancient English statute of additions, for example,
requires that in process, for the better description of a defendant, his state,
degree, or mystery, shall be mentioned.
DEGREES, academical. Marks of distinction conferred on students,
in testimony of their proficiency in arts and sciences. They are of pontifical
origin. See 1 Schmidt's Thesaurus, 144; Vicat, ad voc. Doctores Minshew, Dict.
ad voc Bacheler; Merl. Rep ad voc Universite; Van Espen, p. 1, tit. 10, c.
Giaunone Istoria, di Napoli, lib. xi. c. 2, for a full account of this
DEHORS. Out of; without. By this word is understood something
out of the record, agreement, will, or other thing spoken of; something foreign
to the matter in question.
DEI JUDICIUM. The judgment of God. This name was given to the
barbarous and superstitious trial by ordeal.
DEL CREDERE, contracts. A del credere commission is one under
which the agent, in consideration of an additional premium, engages to insure
to his principal not only the solvency of the debtor, but the punctual
discharge of the debt; and he is liable, in the first instance, without any
demand from the debtor. 6 Bro. P. C. 287; Beawes, 429; 1 T. Rep. 112; Paley on
2. If the agent receive the amount of sales, and remit the amount to the
principal by a bill of exchange, he is not liable if it should be protested. 2
W. C. C. R. 378. See, also, Com. Dig. Merchant, B; 4 M. & S. 574.
DELAWARE. The name of one of the original states of the United
States of America. For a time the counties of this state were connected with
Pennsylvania, under the name of territories annexed to the latter. In 1703, a
separation between them took place, and from that period clown to the
Revolution, the territories were governed by a separate legislature of their
own, pursuant to the liberty reserved to them by a clause of their original
charter. 1 Story, Constitution, §127; 1 Votes of Assembly, 131, and part
2, p. 4, of Pennsylvania.
2. The constitution of this state was amended and adopted December 2,
1831. The powers of the government are divided into three branches, the
legislative, the executive, and the judicial.
3. - 1st. The legislative power of the state is vested in a general
assembly, which consists of a senate and house of representatives.
4. - 1. The senate is composed of three senators from each county; the
number may be increased by the general assembly, two-thirds of each branch
concurring, but the number of senators shall never be greater than one-half,
nor less than two-thirds of the number of representatives. Art. 2, s. 3. The
senators are chosen for four years by the citizens residing in the several
5. - 2. The house of representatives is composed of seven members from
each county, but the general assembly, two-thirds of each branch concurring,
may increase the number. The representatives are chosen for two years by the
citizens residing in the several counties. Art. 2, s. 2.
6. - 2d. The supreme executive power of the state is vested in a
governor, who is chosen by the citizens of the state. He holds his office
during four years, from the third Tuesday in January next ensuing his election;
and is not eligible a second time to the said office. Art. 3. Upon the
happening of a vacancy, the speaker of the senate exercises the office, until a
governor elected by the people shall be duly qualified. Art. 3, s. 14.
7. - 3d. The judicial power is vested in a court of errors and appeals,,
a superior court, a court of chancery, an orphan's court, a court of oyer and
terminer, a Court of general sessions of the peace and jail delivery, a
register's court, justices of the peace, and such other courts as the general
assembly, with the concurrence of two-thirds of all the members of both houses
shall, from time to time, establish. Art. 6.
DELAY, civil law. The time allowed either by law or by agreement
of the parties to do something.
2. The law allows a delay, for a party who has been summoned to appear,
to make defence, to appeal; it admits of a delay during which and action may be
brought, certain rights exercised, and the like.
3. By the agreement of the parties there may be a delay in the payment
of a debt, the fulfilment of a contract, &c. Vide Code, 3, 11, 4; Nov. 69,
c. 2 Merl. Rep. h
DELECTUS PERSONAE. This phrase, which literally signifies the
choice of a person, is applied to show that partners have the right to select
their copartners; and that no set of partners can take another person into the
partnership, without the consent of each of the partners. Story on Partn. 6
Colly. on Partn. 4; 1 Swanst. 508; 2 Bouv. Inst. n. 1443.
DELEGATE. A person elected by the people of a territory of the
United States, to congress, who has a seat in congress, and a right of
debating, but not of voting. Ordinance of July, 13, 1787, 3 Story's L. U. S.
2. The delegates from the territories of the United States are entitled
to send and receive letters, free of postage, on the same terms and conditions
as members of the senate and house of representatives of the United States; and
also to the same compensation as is allowed to members of the senate and house
of representatives. Act of February 18, 1802, 2 Story, L. U. S. 828.
3. A delegate is also a person elected to some deliberative assembly,
usually one for the nomination of officers.
4. In contracts, a delegate is one who is authorized by another in the
name of the latter; an attorney.
DELEGATION, civil law. It is a kind of novation, (q. v.) by
which the original debtor, in order to be liberated from his creditor, gives
him a third person, who becomes obliged in his stead to the creditor, or to the
person appointed by him.
2. It results from this definition that a delegation is made by the
concurrence of three parties, and that there may be a fourth. There must be a
concurrence, 1. Of the party delegating, that is, the ancient debtor, who
procures another debtor in his stead. 2. Of the party delegated, who enters
into the obligation in the place of the ancient debtor, either to the creditor
of to some other person appointed by him. 3. Of the creditor, who, in
consequence of the obligation contracted by the party delegated, discharges the
party delegating. Sometimes there intervenes a fourth party namely, the person
indicated by the creditor in whose favor the person delegated becomes obliged,
upon the indication of the creditor, and by the order of the person delegating.
Poth. Ob. part. 3, c. 2, art. 6. See Louis. Code, 2188, 2189; 3 Wend. 66; 5 N.
H. Rep. 410; 20 John. R. 76; 1 Wend. 164; 14 Wend. 116; 11 Serg. & Rawle,
3. Delegation is either perfect or imperfect. It is perfect, When the
debtor who makes the delegation, is discharged by the creditor. It is imperfect
when the creditor retains his rigbts against the original debtor. 2 Duverg. n.
169. See Novation.
DELEGATION, contracts. The transfer of authority from one or
more persons to one or more others.
2. In general, all persons sui juris may delegate to another authority
to act for them, but to this rule there are exceptions; 1st. On account of the
thing to be done; and 2d. Because the act is of a personal nature, and
incapable of being delegated. 1. The thing to be done must be lawful; for an
authority to do a thing unlawful, is absolutely void. 5 Co. 80. 2. Sometimes,
when the thing to be done is lawful, it must be performed by the person
obligated himself. Com. Dig. Attorney, C 3; Story, on Ag. §12.
3. When a bare power or authority has been given to another, the latter
cannot in general delegate that authority or any part of it to a third person,
for the obvious reason that the principal relied upon the intelligence, skill
and ability of his agent, and he cannot have the same confidence in a stranger.
Bac. Ab. Authority, D; Com. Dig. Authority, C 3; 12. Mass. 241; 4 Mass. 597; 1
Roll. Ab. Authority, C 1, 15; 4 Camp. 183; 2 M. & Selw. 298, 301; 6 Taunt.
146; 2 Inst. 507.
4. To this general rule that one appointed as agent, trustee, and the
like, cannot delegate his authority, there are exceptions: 1. When the agent is
expressly authorized to make a substitution. 1 Liverm. on Ag. 54. 2. When the
authority is implied, as in the following: cases: 1st. When by the laws such
power is indispensable in order to accomplish the end proposed, as, for
example, when goods are directed to be sold at auction, and the laws forbid
such sales except by licensed auctioneers. 6 S. & R. 386. 2d. When the
employment of such substitute is in the ordinary course of trade, as where it
is the custom of trade to employ a ship broker or other agent for the purpose
of procuring freight and the like . 2 M. & S. 301; 3 John. Ch. R. 167, 178;
6 S. & R. 386. 3d. When it is understood by the parties to be the mode in
which the particular thing would be done. 9 Ves. 234; 3 Chit. Com Law, 206.
4th. When the powers thus delegated are merely mechanical in their nature. 1
Hill, (N. Y.) R. 501 Bunb. 166; Sugd. on Pow. 176.
5. As to the form of the delegation, it may be for general purposes, by
a verbal or by a written declaration not under seal, or by acts and
implications. 3 Chit. Com. Law, 5, 194, 195; 7 T. R. 350. But when the act to
be done must be under seal, the delegation must also be under seal. Co. Litt.
48 b; 5 Binn. 613; 14 S. & R. 331 See Authority.
DELEGATION, legislation. It signifies the whole number of the
persons who represent a district, a state, and the like, in a deliberative
assembly; as, the delegation from Ohio, the delegation from the city of
TO DELIBERATE. To examine, to consult, in order to form an
opinion. Thus, a jury deliberate as to their verdict.
DELIBERATION, contracts, crimes. The act of the understanding,
by which the party examines whether a thing proposed ought to be done or not to
be done, or whether it ought to be done in one manner or another. The
deliberation relates to the end proposed, to the means of accomplishing that
end, or to both.
2. It is a presumption of law that all acts committed, are do-ne with
due deliberation, that the party intended to do what he has done. But he may,
show the contrary; in contracts, for example, he may show he has been taken by
surprise; (q. v.) and when a criminal act is charged, he may prove that it Was
an accident, and not with deliberation, that in fact there was no intention or
will. See Intention; Will.
DELIBERATION. legislation. The council which is held touching
some business, in an assembly having the power to act in relation to it.
2. In deliberative assemblies, it is presumed that each member will
listen to the opinions and arguments of the others before he arrives at a
DELICT, civil law. The act by which one person, by fraud or
malignity, causes some damage or tort to some other. In its most enlarged
sense, this term includes all kinds of crimes and misdemeanors, and even the
injury which has been caused by another, either voluntarily or accidentally
without evil intention; but more commonly by delicts are understood those small
offences which are punislied by a small fine or a short imprisonment.
2. Delicts are either public or private; the public are those which
affect the whole community by their hurtful consequences; the private is that
which is directly injurious to a private individual. Inst. 4, 18; Id. 4, 1 Dig.
47, 1; Id. 48, 1.
3. A quasi-delict, quasi delictum, is the act of a person, who without
malignity, but by an inexcusable imprudence, causes an injury to another. Poth.
Ob. n. 116; Ersk. Pr. Laws of Scotl. B. 4, t. 4, s. 1.
DELINQUENT, civil law. He who has been guilty of some crime,
offence or failure of duty.
DELIRIUM, med.jur. A disease of the mind produced by
inflammations, particularly in fevers, and other bodily diseases.
2. It is also occasioned by intoxicating agents.
3. Delirium manifests its first appearance "by a propensity of the
patient to talk during sleep, and a momentary forgetfulness of his situation,
and of things about him, on waking from it. And after being fully aroused,
however, and his senses collected, the mind is comparitively clear and
tranquil, till the next slumber, when the same scene is repeated. Gradually the
mental disorder becomes more intense, and the intervals between its returns of
shorter duration, until they are scarcely, or not at all perceptible. The
patient lies on his back, his eyes, if open, presenting a dull and listless
look, and is almost constantly talking to himself in a low, muttering tone.
Regardless of persons or things around him and scarcely capable of recognizing
them when aroused by his attendants, his mind retires within itself to dwell
upon the scenes and events of the past, which pass before it in wild and
disorderly array, while the tongue feebly records the varying impressions, in
the form of disjointed, incoherent discourse, or of senseless rhapsody. In the
delirium which occurs towards the end of chrome diseases, the discourse is
often more coherent and continuous, though the mind is no less absorbed in its
own reveries. As the disorder advances, the voice becomes more indistinct, the
fingers are constantly picking at the bed-clothes, the evacuations are passed
insensibly, and the patient is incapable of being aroused to any further effort
of attention. In some cases, delirium is attended with a greater degree of
nervous and vascular excitement, which more or less modifies the
above-mentioned symptoms. The eyes are open, dry, and bloodshot, intently
gazing into vacancy, as if fixed on some object which is really present to the
mind of the patient; the skin is hotter and dryer; and he is more restless and
intractable. He talks more loudly, occasionally breaking out into cries and
vociferation, and tosses about in bed, frequently endeavoring to get up, though
without any particular object in view." Ray, Med. Jur. §213.
4. "So closely does delirium resemble mania to the casual observer, and
so important is it that they should be distinguished from each other, that it
may be well to indicate some of the most common and prominent features of each.
In mania, the patient recognizes persons and things, and is perfectly conscious
of, and remembers what is passing around him. In delirium, he can seldom
distinguish one person or thing from another, and, as if fully occupied with
the images that crowd upon his memory, gives no attention to those that are
presented from without. In delirium, there is an entire abolition of the
reasoning power; there is no attempt at reasoning at all; the ideas are all and
equally insane; no single train of thought escapes the morbid influence, nor
does a single operation of the mind reveal a glimpse of its natural vigor and
acuteness. In mania, however false and absurd the ideas may be, we are never at
a loss to discover patches of coherence, and some semblance of logical sequence
in the discourse. The patient still reasons, but he reasons incorrectly. In
mania, the muscular power is not perceptibly diminished, and the individual
moves about with his ordinary ability. Delirium is invariably attended with
great muscular debility; and the patient is confined to bed, and is capable of
only a momentary effort of exertion. In mania, sensation is not necessarily
impaired and, in most instances, the maniac sees, bears, and feels with all his
natural acuteness. In delirium, sensation is greatly impaired, and this avenue
to the understanding seems to be entirely closed. In mania, many of the bodily
functions are undisturbed, and the appearance of the patient might not, at
first sight, convey the impression of disease. In delirium, every function
suffers, and the whole aspect of the patient is indicative of discase. Mania
exists alone and independent of any other disorder, while delirium is only a
symptom or attendant of some other disease. Being a symptom only, the latter
maintains certain relations with the -discase on which it depends; it is
relieved when that is relieved, and is aggravated when that increases in
severity. Mannia, though it undoubtedly tends to shorten life, is not
immediately dangerous; whereas the disease on which delirium depends, speedily
terminates in death, or restoration to health. Mania never occurs till after
the age of puberty; delirium attacks all periods alike, from early childhood to
extreme old age." Id. §216.
5. In the inquiry as to the validity of testamentary dispositions, it is
of great importance, in many cases, to ascertain whether the testator labored
under delirium, or whether he was of sound mind. Vide Sound mind; Unsound mind;
2 Addams, R. 441; 1 Addams, Rep. 229, 383; 1 Hagg. R. 577; 2 Hagg. R. 142; 1
Lee, Eccl. R. 130; 2 Lee, Eccl. R. 229; 1 Hag . Eccl. Rep. 256.
DELIRIUM TREMENS, med. jur. A species of insanity which has
obtained this name, in consequence of the tremor experienced by the delirious
person, when under a fit of the disorder.
2. The disease called delirium tremens or mania a potu, is well
described in the learned work on the Medical Jurisprudence of Insanity, by Dr.
Ray, §315, 316, of which the following is an extract: "it may be the
immediate effect of an excess, or series of excesses, in those who are not
habitually intemperate, as well as in those who are; but it most commonly
occurs in habitual drinkers, after a few days of total abstinence from
spirituous liquors. It is also very iable to occur in this latter class when
laboring under other diseases, or severe external injuries that give rise to
any degree of constitutional disturbance. The approach ofthe disease is
generally indicated by a slight tremor and faltering of the hands and lower
extremities, a tremulousness of the voice, a certain restlessness and sense of
anxiety which the patient knows not how to describe or to account for,
disturbed sleep, and impaired appetite. These symptoms having continued two or
three days, at the end, of which time they have obviously increased in
severity, the patient ceases to sleep altogether, and soon becomes delirious.
At first, the delirium is not constant, the mind wandering during the night,
but during the day, when its attention is fixed, capable of rational discourse.
It is not long, however, before it becomes constant, and constitutes the most
prominent feature of the disease. This state, of watchfullness and delirium
continues three or four days, when, if the patient recover, it is succeeded by
sleep, which, at first appears in uneasy and irregular naps, and lastly in
long, sound, and refreshing slumbers. When sleep does not supervene about this
period, the, disease is fatal; and whether subjected to medical treatment, or
left to itself, neither its symptoms nor duration are materially modified.
3. "The character of the delirium in this disease is peculiar, bearing a
stronger resemblance to dreaming, than any other form of mental derangement. It
would seem as if the dreams which disturb and harass the mind during the
imperfect sleep that precedes the explosion of the disease, continue to occupy
it when awake, being then viewed as realities, instead of dreams. The patient
imagines himself, for instance, to be in some particular situation, or engaged
in certain occupations according to each individuals habits and profession, and
his discourse and conduct will be conformed to this delusion, with this
striking peculiarity, however, that he is thwarted at every step, and is
constantly meeting with obstacles that defy his utmost efforts to remove.
Almost invariably, the patient manifests, more or less, feelings of suspicion
and fear, laboring under continual apprehension of being made the victim of
sinister designs and practices. He imagines that certain people have conspired
to rob or murder him, and insists that he can hear them in an adjoining
apartment, arranging their plans and preparing to rush into his room; or that
he is in a strange place where he is forcibly detained and prevented from going
to his own home. One of the most common hallucinations is, to be constantly
seeing devils, snakes, vermin, and all manner of unclean things around him and
about him, and peopling every nook and corner of his apartment with these
loathsome objects. The extreme terror which these delusions often inspire,
produces in the countenance, an unutterable expression of anguish; and, in the
hope of escaping from his, fancied tormentors, the wretched patient endeavors
to cut his throat, or jump from the window. Under the influence of these
terrible apprehensions, he sometimes murders his wife or attendant, whom his
disordered imagination identifies with his enemies, though he is generally
tractable and not inclined to be mischievous. After perpetrating an act of this
kind, he generally gives some illusive reason for his conduct, rejoices in his
success, and expresses his regret at not having done it before. So complete and
obvious is the mental derangement in this disease, so entirely are, the
thoughts and actions governed by the most unfounded and absurd delusions, that
if any form of insanity absolves from criminal responsibility, this certainly
must have that effect. 3 Am. Jur. 5-20.
DELIVERANCE, Practice. A term used by the clerk in court to
every prisoner who is arraigned and pleads not guilty to whom he wishes a good
deliverance. In modern practice this is seldom used.
DELIVERY, conveyancing. The transferring of a deed from the
grantor to the grantee, in such a manner as to deprive him of the right to
recall it; Dev. Eq. R. 14 or the delivery may be made and accepted by an
attorney. This is indispensably necessary to the validity of a deed; 9 Shepl.
569 2 Harring. 197; 16 Verm. 563; except it be the deed of a corporation,
which, however, must be executed under their common seal. Watkin's Prin. Con.
300. But although, as a general rule, the delivery of a deed is essential to
its perfection, it is never averred in pleading. 1 Wms. Saund. Rep. 291, note
Arch. Dig. of Civ. Pl. 138.
2. As to the form, the delivery may be by words without acts; as, if the
deed be lying upon a table, and the grantor says to the grantee, "take that as
my deed," it will be a sufficient delivery; or it may be by acts without words,
and therefore a dumb man may deliver a deed. Co. Litt. 36 a, note; 6 Sim. Rep.
31; Gresl. Eq. Ev. 120; Wood. B. 2, c. 3; 6 Miss. R. 326; 5 Shepl. 391; 11
Verm. 621; 6 Watts & S. 329; 23 Wend. 43; 3 Hill, 513; 2 Barr, 191, 193 2
Ev. Poth. 165-6.
3. A delivery may be either absolute, Is when it is delivered to the
grantor himself; or it may be conditional, that is, to a third person to keep
until some condition shall have been performed by the grantee, and then it is
called an escrow. (q. v.) See 2 Bl. Com. 306 4 Kent. Coin. 446 2 Bouv. Inst. n.
2018, et seq.; Cruise, Dig. tit. 32, c. 2, s. 87; 5 Serg. & Rawle, 523; 8
Watts, R. 1; and articles Assent; Deed.
4. The formula, "I deliver this as my act and deed," which means the
actual delivery of the deed by the grantor into the hands or for the use of the
grantee, is incongruous, not to say absurd, when applied to deeds which cannot
in their nature be delivered to any person; as deeds of revocation,
appointment, &c., under a power where uses to unborn children and the like,
if in fact such instruments, though sealed, can be properly called deeds, i. e.
writings sealed and delivered. Ritson's Practical Points, 146.
DELIVERY, contracts. The transmitting the possession of a thing
from one person into the power and possession of another.
2. Originally, delivery was a clear and unequivocal act of giving
possession, accomplished by placing the subject to be transferred in the hands
of the buyer or his avowed agent, or in their respective warehouses, vessels,
carts, and the like. This delivery was properly considered as the true badge of
transferred property, as importing full evidence of consent to transfer;
preventing the appearance of possession in the transferrer from continuing the
credit of property unduly; and avoiding uncertainty and risk in the title of
3. The complicated transactions of modern trade, however, render
impossible a strict adherence to this simple rule. It often happens that the
purchaser of a commodity cannot take immediate possession and receive the
delivery. The bulk of the goods; their peculiar situation, as when they are
deposited in public custody for duties, or in the hands of a manufacturer for
the purpose of having some operation of his art performed upon them, to fit
them for the market the distance they are from the house; the frequency of
bargains concluded by correspondence between distant countries, and many other
obstructions, frequently render it impracticable to give or to receive actual
delivery. In these and such like cases, something short of actual delivery has
been considered sufficient to transfer the property.
4. In sales, gifts, and other contracts, where the party intends to
transfer the property, the delivery must be made with the intent to enable the
receiver to obtain dominion over it. 3 Serg. & Rawle, 20; 4 Rawle, 260; 5
Serg. & Rawle, 275 9 John. 337. The delivery may be actual, by putting the
thing sold in the hands or possession of the purchaser; or it may be
symbolical, as where a man buys goods which are in a room, the receipt of the
keys will be sufficient. 1 Yeates, 529; 5 Johns. R. 335; 1 East, R. 192.; 3
Bos. & Pull. 233; 10 Mass. 308; 6 Watts & Serg. 94. As to what will
amount to a delivery of goods and merchandise, vide 1 Holt, 18; 4 Mass. 661; 8
Mass. 287; 14 Johns. R. 167; 15 Johns. R. 849; 1 Taunt. R. 318 H. Black. R.
316, 504; 1 New R. 69; 6 East, R. 614.
5. There is sometimes considerable difficulty in ascertaining the
particular period when the property in the goods sold passes from the vendor to
the vendee; and what facts amount to an actual delivery of the goods. Certain
rules have been established, and the difficulty is to apply the facts of the
6. - 1. Where goods are sold, if nothing remains to be done on the part
of the seller as between him and the buyer, before the article is to be
deliver-ed, the property has passed. East, R. 614; 4 Mass. 661; 8 Mass. 287 14
Johns. 167; 15 Johns. 349; 1 Holt's R. 18; 3 Eng. C. L. r. 9.
7. - 2. Where a chattel is made to order, the property therein is not
vested in the quasi vendee, until finished and delivered, though he has paid
for it. 1 Taunt. 318.
8. - 3. The criterion to determine whether there has been a delivery on
a sale, is to consider whether the vendor still retains, in that character, a
right over. the property. 2 H. Blackst, R. 316.
9. - 4. Where a part of the goods sold by an entire contract, has been
taken possession of by the vendee, that shall be deemed a taking possession of
the whole. 2 H. Bl. R. 504; 1 New Rep. 69. Such partial delivery is not a
delivery of the whole, so as to vest in the vendee the entire property in the
whole, where some act, other than the payment of the price, is necessary to be
performed in order to vest the property. 6 East, R. 614.
10. - 5. Where goods are sent by order to a carrier the carrier receives
them as the vendee's agent. Cowp. 294; 3 Bos. & Pull. 582; 2 N. R. 119.
11. - 6. A delivery may be made in a very slight manner; as where one
buys goods which are in a room, the receipt of the key is sufficient. 1 Yeates,
529; 5 Johns. 335; 1 East, R. 192. See, also, 3. B. & P. 233 7 East, Rep.
558; 1 Camp. 235.
12. - 7. The vendor. of bulky articles is not bound to, deliver them,
unless he stipulated to do so; be must give notice to the buyer that he is
ready to deliver them. 5 Serg. & Rawle, 19; 12. Mass. 300; 4 Shepl. Rep.
49; and see 3 Johns. 399; 13 Johns. 294; 19 Johns. 218; 1 Dall. 171.
13. - 8. A sale of bricks in a brick-yard, accompanied with a lease of
the yard until the bricks should be sold and removed, was held to be valid
against the creditors of the vendor, without an actual removal. 10 Mass.
14. - 9. Where goods were contracted to be sold upon condition that the
vendee should give security for the price, and they are delivered without
security being given, but with the declaration on the part of the vendor that
the transaction should not be deemed a sale, until the security should be
furnished; it was held that the goods remained the property of the vendor,
notwithstanding the delivery. But it seems that in such cases the goods would
be liable for the debts of, the vendee's creditors, originating after the
delivery; and that the vendee may, for a bona fide consideration, sell the
goods while in his possession. 4 Mass. 405.
15. - 10. Where goods are sold to be paid for on delivery, if, on
delivery, the vendee refuses to pay for them, the property is not divested from
the vendor. 13 Johns. 434; 1 Yeates, 529.
16. - 11. If the vendor rely on the promises of the vendee to perform
the conditions of the sale, and deliver the goods accordingly, the right of
property. is changed; but where, performance and delivery are understood to be
simultaneous, possession, obtained by artifice, will not vest a title in the
vendee. 3 Serg. & Rawle, 20.
17. - 12. Where, on the sale of a chattel, the purchase money is paid,
the property is vested in the vendee, and if he permit it to remain in the
custody of the vendor, he cannot call upon the latter for any subsequent loss
or deterioration not arising from negligence. 2 Johns. 13; 2 Caines, R. 38 3
18. In order to make a good donatio mortis causa, it is requisite that
there should be a delivery of the subject to or for the donee, where such
delivery can be made. 3 Binn. R. 370; 1 Miles, Rep. 109, 110; 2 Ves. Jr. 120; 9
Ves. Jr. 1.
19. The delivery of the key of the place where bulky goods are
deposited, is, however, a sufficient delivery of such goods. 2 Ves. Sen. 445.
Vide 3 P. Wms. 357; 2 Bro. C. C. 612; 4 Barn. & A. 1; 3 Barn. & C. 45
Bouv. Inst. Index, h. t. See Sale; Stoppage in transitu; Tender; and Domat,
Lois Civiles, Liv. 1, tit. 2, s. 2 Harr. Dig. Sale, II. 3.
DELIVERY, child-birth, med. jur. The act of a woman giving birth
to her offspring.
2. It is frequently of great importance to ascertain whether or not a
delivery has taken place, and the time when it took place. Delivery may be
considered with regard, 1. To pretended delivery. 2. To concealed delivery and,
3. To the usual signs of delivery.
3. - 1. In pretended delivery, the female declares herself to be a
mother, without being so in reality; an act always prompted by folly or
4. Pretended delivery may present itself in three points of view, 1.
When the female who feigns has never been pregnant. When thoroughly
investigated, this may always be detected. There are signs which must be
present, and cannot be feigned. An enlargement of the orifice of the uterus,
and a tumefaction of the organs of generation, should always be present, and if
absent, are conclusive against the' fact. Annales d'Hygiene, tome ii. p. 227.
2. When the pretended pregnancy and delivery have been preceded by one or more
deliveries. In this case, attention should be given to the following
circumstances: the mystery, if any, which has been affected with regard to the
situation of the female; her age; that of her hushand and particularly whether
aged or decrepid. 3. When the woman has been actually delivered, and
substitutes a living for a dead child. But little evidence can be obtained on
this subject from a physical examination.
5. - 2. Concealed delivery generally takes place when the woman either
has destroyed her offspring, or it was born dead. In suspected cases, the
following circumstances should be attended to: 1. The proofs of pregnancy which
arise in consequence of the examination of the mother. When she has been
pregnant, and has been delivered, the usual signs of delivery, mentioned below,
will be present. A careful investigation as to the woman's appearance, before
and since the delivery, will have some weight, though such evidence is not
always to be relied upon, as such appearances are not unfrequently deceptive.
2. The proofs of recent delivery. 3. The connexion between the supposed state
of parturition, and the state of the child that is found; for if the age of the
child do not correspond to that time, it will be a strong circumstance in favor
of the mother's innocence. A redness of the shin and an attachment of the
umbilical cord to the navel, indicate a recent birth. Whether the child was
living at its birth, belongs to the subject of infanticide. (q. v.)
6. - 3. The usual signs of delivery are very well collected in Beck's
excellent treatise on Medical Jurisprudence, and are here extracted: If the
female be examined within three or four days after the occurrence of delivery,
the following circumstances will generally be observed: greater or less
weakness, a slight paleness of the face, the eye a little sunken, and
surrounded by a purplish or dark brown colored ring, and a whiteness of the
skin, like a person convalescing from disease. The belly is soft, the skin of
the abdomen is lax, lies in folds, and is traversed in various directions by
shining reddish and whitish lines, which especially extend from the groins and
pubis to the naval. These lines have sometimes been termed linecae albicantes,
and are particularly observed near the umbilical region, where the abdomen has
experienced the greatest distention. The breasts become tumid and hard, and on
pressure emit a fluid, which at first is serous, and afterwards gradually
becomes whiter; and the presence of this secretion is generally accompanied
with a full pulse and soft skin, covered with a moisture of a peculiar and
somewhat acid odor. The areolae round the nipples are dark colored. The
external genital organs and vagina are dilated and tumefied throughout the
whole of their extent, from the pressure of the foetus. The uterus may be felt
through the abdominal parietes, voluminous, firm, and globular, and rising
nearly as high as the umbilicus. Its orifice is soft and tumid, and dilated so
as to admit two or more fingers. The fourchette; or anterior margin of the
perinaeum, is sometimes torn, or it is lax, and appears to have suffered
considerable distention. A discharge (termed the lochial) commences from the
uterus, which is distinguished from the menses by its pale color, its peculiar
and well-known smell, and its duration. The lochia are at first of a red color,
and gradually become lighter until they cease.
7. These signs may generally be relied upon as indicating the state of
pregnancy, yet it requires much experience in order not to be deceived by
8. - 1. The lochial discharge might be mistaken for menstruation, or
fluor albus, were it not for its peculiar smell; and this it has been found
impossible, by any artifice, to destroy.
9. - 2. Relaxation of the soft parts arises as frequently from
menstruation as from delivery; but in these cases the os uteri and vagina are
not so much tumefied, nor is there that tenderness and swelling. The parts are
found pale and flabby, when all signs of contusion disappear, after delivery;
and this circumstance does not follow menstruation.
10. - 3. The presence of milk, though a usual sign of delivery, is not
always to be relied upon, for this secretion may take place independent of
11.-4. The wrinkles and relaxations of the abdomen which follow
delivery, may be the consequence of dropsy, or of lankness following great
obesity. This state of the parts is also seldom striking after the birth of the
first child, as they shortly resume their natural state. Vide, generally, 1
Beck's Med. Jur. c. 7, p. 206; 1 Chit. Med. Jur. 411; Ryan's Med. Jur. ch. 10,
p. 133; 1 Briand, Med. Leg. lere partie, c. 5.
DELUSION, med. jurisp. A diseased state of the mind, in which
persons believe things to exist, which exist only, or in the degree they are
conceived of only in their own imaginations, with a persuasion so fixed and
firm, that neither evidence nor argument can convince them to the contrary.
2. The individual is, of course, insane. For example, should a parent
unjustly persist without the least ground in attributing to his daughter a
course of vice, and use her with uniform unkindness, there not being the
slightest pretence or color of reason for the supposition, a just inference of
insanity, or delusion, would arise in the minds of a jury: because a
supposition long entertained and persisted in, after argument to the contrary,
and against the natural affections of a parent, suggests that he must labor
under some morbid mental delusion. 3 Addams' R. 90, 91; Id. 180; Hagg. R. 27
and see Dr. Connolly's Inquiry into Insanity, 384; Ray, Med. Jur. Prel. Views.,
§20, p. 41, and §22, p. 47; 3 Addams, R. 79; 1 Litt. R. 371 Annales
d'Hygiene Publique, tom. 3, p. 370; 8 Watts, 70; 13 Ves. 89; 1 Pow. Dev. by
Jarman, 130, note Shelf. on Lun. 296; 2 Bouv. Inst. n. 2104-10.
DEMAND, contracts. A claim; a legal obligation.
2. Lord Coke says, that demand is a word of art, and of an extent, in
its signification, greater than any other word except claim. Litt. sect. 508;
Co. Litt. 291; 2 Hill, R. 220; 9 S. & R. 124; 6 Watts and S. 226. Hence a
release of all demands is, in general, a release of all covenants, real and
personal, conditions, whether broken or not, annuities, recognizances,
obligations, contracts, and the like. 3 Tho. Co. Litt. 427; 3 Penna, 120; 2
Hill, R. 228.
3. But a release of all demands does not discharge rent before it is
due, if it be a rent incident to the reversion; for the rent was not only not
due, but the consideration - the future enjoyment of the lands - for which the
rent was to be given, was not executed. 1 Sid. 141; 1 Lev. 99 3 Lev. 274; Bac.
Ab. Release, I.
DEMAND, practice. A requisition or a request by one individual
to another to do a particular thing.
2. Demands are either express or implied. In many cases, an express
demand must be made before the commencement of an action, some of whichwil l be
considered below; in other cases an implied demand is all that the law
requires, and the bringing of an action is a sufficient demand in those cases.
1 Saund. 33, note 2.
3. A demand is frequently necessary to secure to a man all his rights,
both in actions arising on contracts and those which are founded on some tort.
It is requisite also, when it is intended to bring the party into contempt for
not performing an order which has been made a rule of court.
4. - 1. Whether a demand is requisite before the plaintiff can commence
an action arising on contract, depends upon express or implied stipulations of
the parties. In case of the sale of property, for example, to be paid for on
delivery, a demand of it must be made before the commencement of an action for
non-delivery, and proved on the trial, unless it can be shown that the seller
has incapacitated himself by a resale and delivery of the property to another
person, or otherwise. 1 East, R. 204 5 T. R. 409; 10 East, R. 359; 5 B. &
Ald. 712 2 Bibb, 280 Hardin, 79; 1 Verm. 25; 5 Cowen, 516. 16 Mass. 453; 6
Mass. 61 4 Mass. 474; 3 Bibb, 85; 3 Wend. 556; 5 Munf. R. 1; 2 Greenl. 308; 9
John. 361; 6 Hill, N. Y. Rep. 297.
5. On the same principles, a request on a general promise to marry is
requisite, unless it be dispensed with by the party's marrying another person,
which puts it out of his power to fulfil his contract, or that he refuses to
marry at any time. 2 Dow. & Ry. 55; 1 Chit. Pr. 57, note (n), and 438, note
6. A demand of rent must always be made before a re-entry for the
non-payment of rent. Vide Re-entry.
7. When a note is given and no time of payment is mentioned, it is
payable immediately. 8 John. R. 374; 5 Cowen, R. 516 1 Conn. R. 404; 1 Bibb, R.
164; 1 Blackf. R. 233.
8. There are cases where, a demand is not originally necessary, but
becomes so by the act of the obligor. On a promissory note no express demand of
payment is requisite before bringing an action, but if the debtor tenders the
amount due to the creditor on the note, it becomes necessary before bringing.
an action, to make a demand of the debtor for payment; and this should be of
the very sum tendered. 1 Campb. 181 Id. 474; 1 Stark. R. 323; 2 E. C. L. R.
9. When a debt or obligation is payable, and no day of payment is fixed,
it is payable, on demand. In omnibus obligationibus in quibus dies non ponitur,
presenti die debitur. Jac. Introd. 62; 7 T. R. 427 Barn. & Cr. 157. The
demand must, however, be made in a reasonable time, for after the lapse of
twenty years, a presumption will arise that the note has been paid; but, like
some other presumptions, it may be rebutted, by showing the fact that the note
remains unpaid. 5 Esp. R. 52 1 D. & R. 16 Byles on Bills, 169.
10. When demand of the payment of a debt, secured by note or other
instrument, is made, the party making it should be ready to deliver up such
note or instrument, on payment. If it has been lost or destroyed, an indemnity
should be offered. 2 Taunt. 61; 3 Taunt. 397; 5 Taunt. 30; 6 Mass. R. 524; 7
Mass. R. 483; 13 Mass. R. 557; 11 Wheat. R. 171; 4 Verm. R. 313; 7 Gill &
Johns. 78 3 Whart. R. 116; 12 Pick. R. 132 17 Mass. 449.
11.-2. It is requisite in some cases arising ex delicto, to make a
demand of restoration of the right before the commencement of an action.
12. The following are examples 1. When the wife, apprentice, or servant
of one person, has been harbored by another, the proper course is to make a
demand of restoration before an action brought, in order to constitute the
party a wilful wrongdoer, unless the plaintiff can prove an original illegal
enticing away. 2 Lev. 63: Willes, 582; 1 Peake's C. N. P. 55; 5 East, 39; 6 T.
R. 652; 4 Moore's R. 12 16 E. C. L. R. 3 5 7.
13. - 2. In cases where the taking of goods is lawful, but their
subsequent detention becomes illegal, it is absolutely necessary, in order to
secure sufficient evidence of a conversion on the trial, to give a formal
notice of the owner's right to the property and possession, and to make a
formal demand in writing of thedelivery of such possession to the owner. The
refusal to comply with such a demand, unless justified by some right which the
possessor may have in the thing detained, will in general afford sufficient
evidence of a conversion. 2 Saund. 47, note (e); 1 Chit. Pr. 566.
14. - 3. When a nuisance has been erected or continued by a man on his
own land) it is advisable, particularly in the case of a private nuisance, to
give the party notice and request him to remove it, either before an entry is
made for the purpose of abating it, or an action is commenced against the wrong
doer and a demand is always indispensable in cases of a continuance of a
nuisance originally created by another person. 2 B. & C. 302; S. C. 9 E. C.
L. R. 96 Cro. Jac. 555; 5 Co. 100, 101; 2 Phil. Ev. 8, 18, n. 119; 1 East, 111;
7 Vin. Ab. 506; 1 Ayl. Pand. 497; Bac. Ab. Rent, 1. Vide articles Abatement of
Nuisance, and if Nuisance. For the allegation of a demand or request in a
declaration, see article Licet scoepius requisitus; and Com. Dig. Pleader, C 70
2 Chit. Pl. 84; 1 Saund. 33, note 2; 1 Chit. Pl. 322.
15. - 4. When an order to pay money, or to do any other thing, has been
made a rule of court, a demand for the payment of the money, or performance of
the thing, must be made before an attachment will be issued for a contempt. 2
Dowl. P. C. 338, 448: 1 C. M. & R. 88, 459; 4 Tyr. 369; 2 Scott, 193; 4
Dowl. P. C. 114; 1 Hodges 197; 1 Har. & Woll. 216; 1 Hodges, 157; Id. 337;
4 Dowl. P. C. 86.
DEMAND IN RECONVENTION. In Louisiana, this term is used to
signify the demand which the defendant institutes in consequence of that which
the plaintiff has brought against him. Code of Pr. art. 374. Vide Cross
DEFANDANT, practice. The plaintiff or party who brings a real
action, is called the demandant. Co. Litt. 127; 1 Com. Dig. 85.
DEMENCY, dementia, med. jur. A defect, hebetude, or imbecility
of the under standing, general or partial, but confined to individual faculties
of the mind, particularly those concerned in associating and comparing ideas,
whence proceeds great, confusion and incapacity in arranging the thoughts. 1
Chit. Med. Jur. 351; Cyclop. Practical Med. tit. Insanity; Ray, Med. Jur. ch.
9; 1 -Beck's Med. Jur. 547.
2. Demency is attended with a general enfeeblement of the moral and
intellectual faculties, consequence of age or disease, which were originally
well developed and sound. It is characterised by forgetfulness of the past;
indifference to the present and future, and a childish disposition. It differs
from idiocy and imbecility. In these latter, the powers of the mind were never
possessed, while in demency, they have been lost.
3. Demency may also be distinguished from mania, with which it is
sometimes confounded. In the former, the mind has lost its strength, and
thereby the reasoning faculty is impaired; while in the latter, the madness
arises from an exaltation of vital power, or from a morbid excess of
4. Demency is divided into acute and chronic. The former is a
consequence of temporary errors of regimen, fevers, hemorrhages, &c., and
is susceptible of cure the latter, or chronic demency, may succeed mania,
apoplexy, epilepsy, masturbation, and drunkenness, but is generally that
incurable decay of the mind which occurs in old age.
5. When demency has been fully established in its last stages, the acts
of the individual of a civil nature will be void, because the party had no
consenting mind. Vide Contracts; Wills; 2 Phillim. R. 449. Having no legal will
or intention, he cannot of course commit a crime. Vide Insanity; Mania.
DEMESNE, Eng. law. The name given to that portion of the Iands
of a manor which the lord retained in his own hands for the use of himself and
family. These lands were called terra dominicales or demesne lands, because
they were occupied by the lord, or dominus manerii, and his servants, &c. 2
Bl. Com. 90. Vide Ancient Demesne; Demesne as of fee; and Soil assault
DEMESNE AS OF FEE. A man is said to be seised in his demesne as
of fee of a corporeal inheritance, because he has a property dominicum or
demesne in the thing itself. 2 Bl. Com. 106. But when he has no dominion in the
thing itself, as in the case of an incorporeal hereditament, he is said to be
seised as of fee, and not in his demesne as of fee. Liit. s. 10; 17 S. & R.
196; Jones on Land Titles, i66.
2. Formerly it was the practice in an action on the case, e. g. for a
nuisance to real estate, to aver in the declaration the seisin of the plaintiff
in demesne as of fee; and this is still necessary, in order to estop the record
with the land; so that it may run with or attend the title. Arch. Civ. Pl. 104;
Co. Ent. 9, pl. 8 Lill. Ent. 62; 1 Saund. Rep. 346; Willes, Rep. 508. But such
an action may be maintained on the possession as well as on the seisin,
although the effect of the record in this case upon the title would not be the
same. Steph. on Pl. 322 Arch. Dig. 104; 1 Lutw. 12; 2 Mod. 71; 4 T. R. 718; 2
Saund. 1 Arch. Dig. 105; Cro. Car. 500. 575
DEMIDIETAS. This word is used in ancient records for a moiety,
or one half. DEMIES. In some universities and colleges this term is synonymous
with scholars. Boyle on Charities, 129.
DEMISE, contracts. In its most extended signification, it is a
conveyance either in fee, for life, or for years. In its more technical
meaning, it is a lease or conveyance for a term of years. Vide Cow. L. & T.
Index, h. t.; Ad. Eject. Index, h. t.; 2 Hill. Ab. 130; Com. Dig. h. t., and
the heads there referred to. According to Chief Justice Gibson, the term demise
strictly denotes a posthumous grant, and no more. 5 1 Whart. R. 278. See 4
Bing. N. C. 678; S. C. 33 Eng. C. L. R. 492; 2 Bouv. Inst. n. 1774, et seq.
DEMISE, persons. A term nearly synonymous with death. It is
usually applied in England to the death of the king or queen.
DEMOCRACY, government. That form of government in which the
sovereign power is exercised by the people in a body, as was the practice in
some of the states of Ancient Greece; the term representative democracy has
been given to a republican government like that of the United States.
DEMONSTRATION. Whatever is said or written to designate a thing
or person. For example, a gift of so much money, with a fund particularly
referred to for its payment, so that if the fund be not the testator's property
at his death, the legacy will fail; this is called a demonstrative legacy. 4
Ves. 751; Lownd. Leg. 85; Swinb. 485.
2. A legacy given to James, who married my cousin, is demonstrative;
these expressions present the idea of a demonstration; there are many James,
but only one who married my cousin. Vide Ayl. Pand. 130; Dig. 12, 1, 6; Id. 35,
1, 34 Inst. 2, 20, 30.
3. By demonstration is also understood that proof which excludes all
possibility of error; for example, mathematical deductions.
DEMURRAGE, mar. law. The freighter of a ship is bound not to
detain it, beyond the stipulated or usual time, to load, or to deliver the
cargo, or to sail. The extra days beyond the lay days (being the days allowed
to load and unload the cargo), are called the days of demurrage; and that term
is likewise applied to the payment for such delay, and it may become due,
either by the ship's detention, for the purpose of loading or unloading the
cargo, either before, or during, or after the voyage, or in waiting for convoy.
3 Kent, Com. 159; 2 Marsh, 721; Abbott on Ship. 192 5 Com. Dig. 94, n., 505; 4
Taunt. 54, 55; 3 Chit. Com. Law, 426; Harr. Dig. Ship and Shipping, VII.
DEMURRER. (From the Latin demorari, or old French demorrer, to
wait or stay.) In pleading, imports, according to its etymology, that the
objecting party will not proceed with the pleading, because no sufficient
statement has been made on the other side; but will wait the judgment of the
court whether he is bound to answer. 5 Mod. 232; Co. Litt. 71, b; Steph. Pl.
2. A demurrer may be for insufficiency either in substance or in form
that is, it may be either on the ground that the case shown by the opposite
party is essentially insufficient, or on the ground that it is stated in an
inartificial manner; for the law requires in every pleading, two thing's; the
one, that it be in matter sufficient; the other, that it be deduced and
expressed according to the forms of law; and if either the one or the other of
these be wanting, it is cause of demurrer. Hob. 164. A demurrer, as in its
nature, so also in its form, is of two kinds; it is either general or
3. With respect to the effect of a demurrer, it is, first, a rule, that
a demurrer admits all such matters of fact as are sufficiently pleaded. Bac.
Abr. Pleas, N 3; Com. Dig. Pleader, Q 5. Again, it is it rule that, on a
demurrer, the court will consider the whole record, and give judgment for the
party who, on the whole, appears to be entitled to it. Com. Dig. Pleader, M. 1,
M 2; Bad. Abr. Pleas. N 3; 5 Rep. 29 a: Hob. 56; 2 Wils. 150; 4 East, 502 1
Saund. 285 n. 5. For example, on a demurrer to the replication, if the court
think the replication bad, but perceive a substantial fault in the plea, they
will give judgment, not for the defendant, but for the plaintiff; 2 Wils. R.
1&0; provided the declaration be good; but if the declaration also be bad
in substance, then upon the same principle, judgment would be given for the
defendant. 5 Rep. 29 a. For when judgment is to be given, whether the issue be
in law or fact, and whether the cause have proceeded to issue or not, the court
is always to examine the whole record, and adjudge for the plaintiff or
defendant, according to the legal right, as it may on the whole appear.
4. It is, however, subject to, the following exceptions; first, if the
plaintiff demur to a plea in abatement, and the court decide against the plea,
they will give judgment of respondeat ouster, without regard to any defect in
the declaration. Lutw. 1592, 1667; 1 Salk. 212; Carth. 172 Secondly, the court
will not look back into the record, to adjudge in favor of an apparent right in
the plaintiff, unless the plaintiff have himself put his action upon that
ground. 5 Barn. & Ald 507. Lastly, the court, in examining the whole
record, to adjudge according to the apparent right, will consider the right in
matter of substance, and not in respect of mere form, such as should have been
the subject of a special demurrer. 2 Vent. 198-222.
5. There can be no demurrer to a demurrer: for a demurrer upon a
demurrer, or pleading over when an issue in fact is offered, is a
discontinuance. Salk. 219; Bac. Abr. Pleas, N 2.
6. Demurrers are general and special, and demurrers to evidence, and to
7. - 1. A general demurrer is one which excepts to the sufficiency of a
previous pleading in general terms, without showing specifically the nature of
the objection; and such demurrer is sufficient, when the objection is on matter
of substance. Steph. Pl. 159; 1 Chit. Pl. 639; Lawes, Civ. Pl. 167; Bac. Abr.
Pleas, N 5; Co. Lit. 72 a.
8. - 2. A special demurrer is one which excepts to the sufficiency of
the pleadings on the,opposite side, and shows specifically the nature of the
objection and the particuIar ground of exception. Co. Litt. 72, a.; Bac. Abr.
Pleas, N 5.
9. A special demurrer is necessary, where it turns on matter of form
only; that is, where, notwithstanding such objections, enough appears to
entitle the opposite party to judgment, as far as relates to the merits of the
cause. For, by two statutes, 27 Eliz. ch. 5, and 4 Ann. ch. 16, passed with a
view to the discouragement of merely formal objections, it is provided in
nearly the same terms, that the judges "shall give judgment according to the
very right of the cause and matter in law as it shall appear unto them, without
regarding any imperfection, omission, defect or want of form, except those only
'Which the party demurring shall, specifically. and particularly set down and
express, together with his demurrer, as the causes of the same." Since these
statutes, therefore, no mere matter of form can be objected to on a general
demurrer; but the demurrer must be in the special form, and the objection
specifically stated. But, on the other hand, it is to be observed, that, under
a special demurrer, the party may, on the argument, not only take advantage of
the particular faults which his demurrer specifies, but also of all objections
in substance, or regarding the very right of the cause, (as the statute
expresses it.) as under those statutes, need not be particularly set down. It
follows, therefore, that unless the objection be clearly of the substantial
kind, it is the safer course, in all cases, to demur specially. Yet, where a
general demurrer is plainly efficient, it is more usually adopted in prctice;
because the effect of the special form being to apprise the opposite party more
distinctly of the nature of the objection, it is attended with the
inconvenience, of enabling him to prepare to maintain his pleading by argument,
or of leading him to apply the earlier to amend. With respect to the degree of
particularity, with which, under these statutes, the special demurrer must
assign the ground of objection, it may be observed, that it is not sufficient
to object, in general terms, that the pleading is "uncertain, defective, and
informal," or the like, but if is necessarily to show in what, it respect,
uncertain, defective, and informal. 1 Saund. 161, n. 1, 337 b, n. 3; Steph. Pl.
159, 161; 1 Chit. Pl. 642.
10.- 3. A demurrer to evidence is analogous to a demurrer in pleading;
the party from whom it comes declaring that he will not proceed, because the
evidence offered on the other side, is not sufficient to maintain the issue.
Upon joinder in demurrer, by the opposite party, the jury are, in general,
discharged from giving any verdict; 1 Arch. Pr. 186; and the demurrer being
entered on record, is afterwards argued and decided by the court in banc; and
the judgment there given upon it, may ultimately be brought before a court of
error. See 2 H. Bl. 187 4 Chit. Pr. 15 Gould on Pl. c. 9, part 2, §47
United States Dig. Pleading, Viii.
11. - 4. Demurrer to interrogatories. By this phrase is understood the
reasons which a witness tenders for not answering a particular question in
interrogatories. 2 Swanst. R. 194. Strictly speaking, this is not a demurrer,
which admits the facts stated, for the purpose of taking the. opinion of the
court but by an abuse of the term, the witness objection to answer is called a
demurrer, in the popular sense. Gresl. Eq. Ev. 61.
12. The court are judicially to determine their validity. The witness
must state his objection very carefully, for these demurrers are held to strict
rules, and are readily overruled if they cover too much. 2 Atk. 524; 1 Y. &
J. 32. See, in general, as to demurrers,, Bac. Abr. Pleas, N; Com. Dig.
Pleader, Q; Saund. Rep. Index, tit. Demurrers; Lawes Civ. Pl. ch. 8; 1 Chit.
Pl. 639-649 Bouv. Inst. Index, h. t.
DEMURRER BOOK Eng. law. When an issue in law is formed, a
transcript is made upon paper of all the pleadings that have been filed or
delivered between the parties, which transcript is called the demurrer book.
Steph. Pl. 95. See Paper book.
DEMY SANKE or SANGUE. This is a barbarous corruption of, demi
sang, half-blood. (q. v.)
DENARII. An ancient general term for any sort of pecunia
numerata, or ready money. The French use the word denier in the same sense:
payer de ses propres deniers.
DENARIUS DEI. A term used in some countries to signify a certain
sum of money which is given by one of the contracting parties to the other, as
a sign of the completion of the contract.
2. It does not however bind the parties he who received it may return it
in a limited time, or the other may abandon it, and avoid the engagement.
3. It differs from arrhae in this, that the latter is a part of the
consideration, while the denarius dei is no part of it. 1 Duverg. n. 132 3
Duverg. n. 49; Repert. de Jur. verbo Denier a Dieu.
DENIAL, pleading. To traverse the statement of the opposite
party a defence. See Defence; Traverse.
DENIER A DIEU, French law. It is a sum of money which the hirer
of a thing gives to the other party as evidence, or for the consideration of
the * contract, which either party may annul, within twenty-four hours, the one
who, giving the denier a dieu, by demanding, and the other by returning it. It
differs from arrhae. Vide Arrhae; Denarius Dei.
DENIZATION, Eng. law.. The act by which a foreigner becomes a
subject of England; but he has not the rights either of a natural born subject,
nor of one who has become naturalized. Bac. Ab. Aliens, B.
DENIZEN, English law. An alien born, who has obtained, ex
donatione legis, letters patent to make him au English subject.
2. He is intermediate between a natural born subject and an alien. He
may. take lands by purchase or devise, which an alien cannot, but he is
incapable of taking by inheritance. 1 Bl. Com. 374. In the United States there
is no such civil condition.
DENUNCIATION, crim. law. This term is used by the civilians to
signify the act by which au individual informs a public officer, whose duty it
is to prosecute offenders, that a crime has been committed. It differs from a
complaint. (q. v.) Vide 1 Bro. C. L. 447; 2 Id. 389; Ayl. Parer. 210, Poth.
Proc. Cr. sect. 2, §2.
DEODAND, English law. This word is derived from Deo dandum, to
be given to God; and is used to designate the instrument, whether it be an
animal or inanimate thing, which has caused the death of a man. 3 Inst. 57;
Hawk. bk. 1, c. 8.
2. The deodand is forfeited to the king, and was formerly applied to
pious uses. But the presentment of a deodand by a grand jury, under their
general charge from the judge of assize, is void. 1 Burr. Rep. 17.
DEPARTMENT. A portion of a country. In France, the country is
divided into departments, which are somewhat similar to the counties in this
country. The United States have been divided into military departments,
including certain portions of the country. 1 Pet. 293.
2. By department is also meant the division of authority, as, the
department of state, of the navy, &c.
DEPARTMENT OF THE NAVY, government. The Act of April 80, 1798, 1
Story's Laws, 498, establishes an executive department, under the denomination
of the department of the navy, the chief officer of which shall be called the
secretary of the navy. (q. v.)
2. A principal clerk, and such other clerks as he shall think necessary,
shall be appointed by the secretary of the navy, who shall be employed in such
manner as he shall deem most expedient. In case of vacancy in the office of the
secretary, by removal or otherwise, it shall be the duty of the principal clerk
to take charge and custody of all books, records, and documents of said office.
Id. s. 2
DEPARTMENT OF STATE, government. The laws of the United States
provide that there shall be an executive department, denominated the department
of state; and a principal officer therein, called the secretary of state. (q.
v.) Acts of July 27, 1789; September 15, 1789, s. 1. There shall be in such
department an inferior officer, to be appointed by the Secretary, and employed
therein, as he shall deem proper, to be called the chief clerk of the
department of state. (q. v.) Act of July 27, 1789, s. 2.
2. He may employ, besides, one chief clerk, whose compensation shall not
exceed two thousand dollars. per annum; two clerks, whose compensation shall
not exceed one thousand six hundred dollars; four clerks, whose compensation
shall not exceed one thousand four hundred dollars each; one clerk, whose
compensation shall not exceed one thousand dollars; two clerks, whose
compensation shall not exceed eight hundred dollars each; one, messenger and
assistant, at a compensation not exceeding one thousand and fifty dollars per
annum; one superintendent of the patent office, whose compensation shall not
exceed one thousand five hundred dollars; and, in the patent office, one clerk,
whose compensation shall not exceed one thousand dollars; one machinist, at a
compensation not exceeding seven hundred dollars; and one messenger, at a
compensation not exceeding four hundred dollars per annum. Act of May 26, 1824;
Act of April 20, 1818, s. 2.
3. By the Act of March 2, 1827, 3 Story's Laws, 2061, he is authorized
to employ, in the state department, one additional clerk, whose compensationsh
all not exceed sixteen hundred dollars; two additional clerks, whose
compensation shall not exceed one thousand dollars each; and one additional
clerk for the patent office, whose compensation shall not exceed eight hundred
DEPARTMENT OF THE TREASURY OF THE UNITED STATES, government. The
department of the treasury is constituted of the following officers, namely:
the secretary of the treasury, (q. v.) the head of the department, two
comptrollers, five auditors, a treasurer, a register, and a commissioner of the
2. Each of these officers is required to perform certain appropriate
duties, in which they are assisted by numerous clerks. They are prohibited from
carrying on the business of trade or commerce, from being the owners or part
owners of any sea vessel, from buying any public lands, from disposing or
purchasing any securities of any state, or of the United States, from receiving
or applying to their own use any emolument or gain in transacting business in
this department, other than what shall be allowed by law, under the penalty of
three thousand dollars, and of being removed from office, and of being
thereafter incapable of holding any office under the United States. Gord. Dig.
228 to 248
DEPARTMENT OF WAR, government. The act of August 7, 1789, 1
Story's Laws, 31, creates an executive department, to be denominated the
department of war; and there shall be a principal officer therein, to be called
the secretary for the department of war. (q. v.) .
2. There shall be in the said department, an inferior officer, to be
appointed by the secretary, to be employed therein, and to be called the chief
clerk in the department of war, and who, whenever the said principal officer
shall be removed by the president, or in any other case of vacancy, shall,
during such vacancy, have the charge and custody of all records, books, and
papers, appertaining to the said department. Id.
DEPARTURE, pleading. Said to be when a party quits or departs
from the case, or defence, which he has first made, and has recourse to
another; it is when his replication or rejoinder contains matter not pursuant
to the declaration, or plea, and which does not support and fortify it. Co.
Litt. 304, a; 2 Saund. 84, a, n. (1); 2 Wils. 98; 1 Chit. Pl. 619. The
following example will illustrate what is a departure: if to assumpsit, the
defendant plead infancy, and to a replication of necessaries, rejoin, duress,
payment, release, &c., the rejoinder is a departure , and a good cause of
demurrer, because the defendant quits or departs from the case or defence which
he first made, though either of these matters, newly pleaded, would have been a
good bar, if first pleaded as such.
2. A departure in pleading is never allowed, for the record would, by
such means, be spun out into endless prolixity; for he who has departed from
and relinquished his first plea, might resort to a second, third, fourth, or
even fortieth defence; pleading would, by such means, become infinite. He who
had a bad cause, would never be brought to issue, and he who had a good one,
would never obtain the end of his suit. Summary on Pleading, 92; 2 Saund. 84,
a. n. (l); 16 East, R. 39; 1 M. & S. 395 Coin. Dig. Pleader, F 7, 11; Bac.
Abr. Pleas, L; Vin. Abr. Departure; 1 Archb. Civ. Pl. 247, 253; 1 Chit. Pl.
3. A departure is cured by a verdict in favor of him who makes it, if
the matter pleaded by way of departure is a sufficient answer, in substance, to
what is before pleaded by the opposite party; that is, if it would have been
sufficient, if pleaded in the first instance. 2 Saund. 84 1 Lill. Ab. 444.
DEPARTURE, maritime law. A deviation from the course of the
voyage insured. 2. A departure is justifiable or not justifiable it is
justifiable ill consequence of the stress of weather, to make necessary
repairs, to succor a ship in distress, to avoid capture, of inability to
navigate the ship, mutiny of the crew, or other compulsion. 1 Bouv. Inst. n.
DEPENDENCY. A territory distinct from the country in which the
supreme sovereign, power resides, but belonging rightfully to it, and subject
to the laws and regulations which the sovereign may think proper to prescribe.
It differs from a colony, because it is not settled by the citizens of the
sovereign or mother state; and from possession, because it is held by other
title than that of mere conquest: for example, Malta was considered a
dependency of Great Britain in the year 1813. 3 Wash. C. C. R. 286. Vide act of
congress, March 1, 1809, commonly called the non-importation law.
DEPENDENT CONTRACT. One which it is not the duty of the
contractor to perform, until some obligation contained in the same agreement
has been performed by the other party. Ham. on Part. 17, 29, 30, 109.
DEPONENT, witness. One who gives information, on oath or
affirmation, respecting some facts known to him, before a magistrate he who
makes a deposition.
DEPOPULATION. In its most proper signification, is the
destruction of the people of a country or place. This word is, however, taken
rather in a passive than an active one; we say depopulation, to designate a
diminution of inhabitants, arising either from violent causes, or the want of
multiplication. Vide 12 Co. 30.
DEPORTATION, civil law. Among the Romans a perpetual banishment,
depriving the banished of his rights as a citizen; it differed from relegation
(q. v.) and exile. (q. v.). 1 Bro. Civ. Law, 125 note; Inst. 1, 12, 1 and 2;
-Dig. 48, 22, 14, 1.
TO DEPOSE, practice. To make a deposition; to give testimony as
TO DEPOSE, rights. The act of depriving an individual of a
public employment or office, against his will. Wolff, §1063. The term is
usually applied to the deprivation of all authority of a sovereign.
DEPOSIT, contracts. Usually defined to be a naked bailment of
goods to be kept for the bailor, without reward, and to be returned when he
shall require it. Jones' Bailm. 36, 117; 1 Bell's Com. 257. See also Dane's
Abr. ch. 17, aft. 1, §3; Story on Bailm. c. 2, §41. Pothier defines
it to be a contract, by which one of the contracting parties gives a thing to
another to keep, who is to do so gratuitously, and obliges himself to return it
when he shall be requested. Traite du Depot. See Code Civ. tit. 11, c. 1, art.
1915; Louisiana Code, tit. 13, c. 1, art. 2897.
2. Deposits, in the civil law, are divisible into two kinds; necessary
and voluntary. A necessary deposit is such as arises from pressing necessity;
as, for instance, in case of a fire, a shipwreck, or other overwhelming
calamity; and thence it is called miserabile depositum. Louis. Code 2935. A
voluntary deposit is such as arises without any such calamity, from the mere
consent or agreement of the parties. Dig. lib. 16, tit. 3, §2.
3. This distinction was material in the civil law, in respect to the
remedy, for in voluntary deposits @ the action was only in simplum; in the
other in duplum, or two-fold, whenever the depositary was guilty of any
default. The common law has made no such distinction, and, therefore, in a
necessary deposit, the remedy is limited to damages co-extensive with the
wrong. Jones, Bailm. 48.
4. Deposits are again divided by the civil law into simple deposits, and
sequestrations; the former is when there is but one party depositor (of
whatever number composed), having a common interest; the latter is where there
are two or more depositors, having each a different and adverse interest. See
5. These distinctions give rise to very different considerations in
point of responsibility and rights. Hitherto they do not seem to have been
incorporated in the common law; though if cases should arise, the principles
applicable to them would scarcely fail of receiving general approbation, at
least, so far as they affect the rights and responsibilities of the parties.
Cases of judicial sequestration and deposits, especially in courts of chancery
and admiralty, may hereafter require the subject to be fully investigated. At
present, there have been few cases in which it has been necessary to consider
upon whom the loss should fall when the property has perished in the custody of
the law. Story on Bailm. §41-46.
6. There is another class of deposits noticed by Pothier, and called by
him irregular deposits. This arises when a party having a sum of money which he
doe's not think safe in his own hands; confides it to another, who is to return
him, not the same money , but a like sum when he shall demand it. Poth. Traite
du Depot, ch. 3, §3. The usual deposit made by a person dealing with a
bank is of this nature. The depositor, in such case, becomes merely a creditor
of the depositary for the money or other thing which he binds himself to
7. This species of deposit is also called an improper deposit, to
distinguish it from one that is regular and proper, and which latter is
sometimes called a special deposit. 1 Bell's Com. 257-8. See 4 Blackf. R.
8. There is a kind of deposit which may, for distinction's sake, be
called a quasi deposit, which is governed, by the same general rule as common
deposits. It is when a party comes lawfully to the possession of another
person's property by finding. Under such circumstances, the finder seems bound
to the same reasonable care of it as any voluntary depositary ex contractu.
Doct. & Stu. Dial. 2, ch. 38; Story on Bailm. §85; and see Bac. Abr.
Bailm. D. See further, on the subject of deposits, Louis. Code, tit. 13; Bac.
Abr. Bailment; Digest, depositi vel contra; Code, lib. 4, tit. 34; Inst. lib.
3, tit. 15, §3; Nov. 73 and 78; Domat, liv. 1, tit. 7, et tom. 2, liv. 3,
tit. 1, s. 5, n. 26; 1 Bouv. Inst. n. 1053, et seq.
DEPOSITARY, contracts. He with whom a deposit is confided or
2. It is, the essence of the contract of deposits that it should be
gratuitous on the part 'of the depositary. 9 M. R. 470. Being a bailee without
reward, the depositary is bound to slight diligence only, and he is not
therefore answerable except for gross neglect. 1 Dane's Abr. c. 17, art. 2. But
in every case good faith requires that he should take reasonable care; and what
is reasonable care, must materially depend upon the nature and quality of the
thing, the circumstances under which it is deposited, and sometimes upon the
character and confidence, and particular dealing of the parties. See 14 Serg.
& Rawle, 275. The degree of care and diligence is not altered by the fact,
that the depositary is the joint owner of the goods with the depositor; for in
such a case, if the possessor is guilty of gross negligence, he will still be
responsible, in the same manner as a common depositary, having no interest in
the thing. Jones' Bailm. 82, 83. As to the care which. a depositary is bound to
use, see 2 Ld. Raym. 900, 914; 1 Ld. Raym. 655; 2 Kent's Com. 438; 17 Mass. R.
479, 499; 4 Burr.. 2298; 14 Serg. & Rawle, 275; Jonees' Bailm. 8; Story on
Bailm. §63, 64.
3. The depositary is bound to return the deposit in individuo, and in
the same state in which he received it; if it is lost, or injured, or spoiled,
by his fraud or gross negligence, he is responsible to the extent of the loss
or injury. Jones' Bailm. 36, 46, 120; 17 Mass. R. 479; 2 Hawk. N. Car. R. 145;
1 Dane's Abr. c. 17, art. 1 and 2. He is also bound to restore, not only the
thing deposited, but any increase or profits which may have accrued from it; if
an animal deposited bear young, the latter are to be delivered to the owner.
Story on Bailm. §99.
4. In general it may be laid down that a depositary has no, right to use
the thing deposited. Bac. Abr. Bailm. D; Jones' Bailm. 81, 82; 1 Dane's Abr. c.
17, art. 11, §2. But this proposition must be received with many
qualifications. There are certain cases, in which the use of the thing may be
necessary for the due preservation of the deposit. There are others, again,
where it would be mischievous; and others again, where it would be, if not
beneficial, at least indifferent. Jones' Bailm. 81, 82; Owen's R. 123, 124; 2
Salk. 522; 2 Kent's Com. 450. The best general rule on the subject, is to
consider whether there may or may not be an implied consent, on the part of the
owner, to the use. If the use would be for the benefit of the deposit, the
assent of the owner may well be presumed; if to his injury, or perilous, it
ought not to be presumed; if the use would be indifferent, and other
circumstances, do not incline either way, the use may be deemed not allowable.
Jones' Bailm. 80, 81; Story on Bailm. §90; 1 Bouv. Inst. n. 1008, et
DEPOSITION, evidence. The testimony of a witness reduced to
writing, in due form of law, taken by virtue of a commission or other authority
of a competent tribunal.
2. Before it is taken, the witness ought to be sworn or affirmed to
declare the truth, the whole truth, and nothing but the truth. It should
properly be written by the commissioner appointed to take it, or by the witness
himself; 3 Penna. R. 41; or by one not interested in the matter in dispute, who
is properly authorized by the commissioner. 8 Watts, R. 406, 524. It ought to
answer all the interrogatories, and be signed by the witness, when he can
write, and by the commissioner. When the witness cannot write, it ought to be
so stated, and he should make his mark or cross.
3. Depositions in criminal cases cannot be taken without the consent of
the defendant. Vide, generally, 1 Phil. Ev. 286; 1 Vern. 413, note; Ayl. Pand.
206; 2 Supp. to Ves. jr. 309; 7 Vin. Ab. 553; 12 Vin. Ab. 107; Dane's Ab.
Index, h. t.; Com. Dig. Chancery, P 8, T 4, T 5; Com. Dig. Testmoigne, C 4.
4. The Act of September 24, 1789, s. 30, 1 Story's L. U. S. 64, directs
that when the testimony of any person shall be necessary in any civil cause
depending in any district, in any court of the United States, who shall live at
a greater distance from the place of trial than one hundred miles, or is bound
on a voyage to sea, or is about to go out of the United States, or out of such
district, and to a greater distance from the place of trial than as aforesaid,
before the time of trial, or is ancient, or very infirm, the deposition of such
person may be taken de bene esse, before any justice or judge of any of the
courts of the United States, or before any chancellor, justice, or judge of a
supreme or superior court, mayor, or chief magistrate of a city, or judge of a
county court or court of common pleas of any of the United States, not being of
counsel or attorney to either of the parties, or interested in the event of the
cause; provided that a notification from the magistrate before whom the
deposition is to be taken, to the adverse party, to be present at the taking of
the same, and to put interrogatories, if he think fit, be first made out and
served ou the adverse party, or his attorney, as either may be nearest, if
either is within one hundred miles of the place of such caption, allowing time
for their attendance after being notified, not less than at the rate of one
day, Sundays exclusive, for every twenty miles travel . And in causes of
admiralty and maritime jurisdiction, or other causes of seizure, when a libel
shall be filed, in which an adverse party is not named, and depositions of
persons, circumstanced as aforesaid, shall be taken before a claim be put in,
the like notification, as aforesaid, shall be given to the person having the
agency or possession of the property libelled at the time of the capture or
seizure of the same, if known to the libellant. And every person deposing as
aforesaid, shall be carefully examined and cautioned, and sworn or affirmed to
testify the whole truth, and shall subscribe the testimony by him or her given,
after the same shall be reduced to writing, which shall be done only by the
magistrate taking the deposition, or by the deponent in his presence. And the
deposition so taken shall be retained by such magistrate, until he deliver the
same with his own, hand into the court for which they are taken, or shall,
together with a certificate of the reasons as aforesaid, of their being taken,
and of the notice, if any given, to the adverse party, be by him, the said
magistrate, sealed up and directed to such court, and remain under his seal
until opened in court. And any person may be compelled to appear and depose as
aforesaid, in the same manner as to appear and testify in court. And in the
trial of any cause of admiralty or maritime jurisdiction in a district court,
the decree in which may be appealed from, if either party shall suggest to and
satisfy the court, that probably it will not be in his power to produce the
witnesses, there testifying, before the circuit court, should an appeal be had,
and shall move that their testimony shall be taken down in writing, it shall be
so done by the clerk of the court. And if an appeal be had, such testimony may
be used on the trial of the same, if it shall appear to the satisfaction of the
court, which shall try the appeal, that the witnesses are then dead, or gone
out of the United States, or to, a greater distance than as aforesaid, from the
place where the court is sitting; or that, by reason of age, sickness, bodily
infirmity, or imprisonment, they are unable to travel or, appear at court, but
not otherwise. And unless the same shall be made to appear on the trial of any
cause, with respect to witnesses whose depositions may have been taken therein,
such depositions shall not be admitted or used in the cause. Provided, that
nothing herein shall be construed to prevent any court of the United States
from granting a dedimus potestatem, to take depositions according to common
usage, when it may be necessary to prevent a failure or delay of justice; which
power they shall severally possess nor to extend to depositions taken in
perpetuam rei memoriam, which, if they relate to matters that may be cognizable
in any court of the United States, a circuit court, on application thereto made
as a court of equity, may, according to the usages in chancery, direct to be
5. The Act of January 24, 1827, 3 Story's L. U. S . 2040, authorizes the
clerk of any court of the United States within which a witness resides or where
he is found, to issue a subpoena to compel the attendance of such witness, and
a neglect of the witness to attend may be punished by the court whose clerk has
issued the subpoena, as for a contempt. And when papers are wanted by the
parties litigant, the judge of the court within which they are, may issue a
subpoena duces tecum, and enforce obedience by punishment as for a contempt.
For the form and style of depositions, see Gresl. Eq. Ev. 77.
DEPOSITION, eccl. law. The act of depriving a clergyman, by a
competent tribunal, of his clerical orders, to punish him for some offence, and
to prevent his acting in future in his clerical character. Ayl. Par. 206.
DEPOSITOR, contracts. He who makes a deposit.
2. He is generally entitled to receive the deposit from the depositary,
but to this rule there are exceptions; as. when the depositor at the time of
making the deposit had no title to the property deposited, and the owner claims
it from the depositary, the depositor cannot recover it; and for this reason,
that he can never be in a better situation than the owner. 1 Barn. & Ald.
450; 5 Taunt. 759. As to the place where the depositor is entitled to receive
his deposit, see Story on Bailm. §117-120 1 Bouv. Inst. n. 1063.
DEPREDATION, French law. The pillage which is made of the goods
of a decedent. Ferr. Mod. h. t.
DEPRIVATION, ecclesiastical Punishment. A censure by which a
clergyman is deprived of his parsonage, vicarage, or other ecclesiastical
promotion or dignity. Vide Ayliffe's Parerg. 206; 1 Bl. Com. 393.
DEPUTY. One authorized by an officer to exercise the office or
right which the officer possesses, for and in place of the latter.
2. In general, ministerial officers can appoint deputies; Com. Dig.
Officer, D 1; unless the office is to be exercised by the ministerial officer
in person; and where the office partakes of a judicial and ministerial
character, although a deputy may be made for the performance of ministerial
acts, one cannot be made for the performance of a judicial act; a sheriff
cannot therefore make a deputy to hold an inquisition, under a writ of inquiry,
though he may appoint a deputy to serve a writ.,
3. In general, a deputy has power to do every act which his principal
might do but a deputy cannot make a deputy.
4. A deputy should always act in the name of his principal. The
principal is liable for the deputy's acts performed by him as such, and for the
neglect of the deputy; Dane's Ab. vol. 3, c. 76, a. 2; and the deputy is liable
himself to the person injured for his own tortious acts. Dane's Ab. Index, h.
t.; Com. Dig. Officer, D; Viscount, B. Vide 7 Vin. Ab. 556 Arch. Civ. Pl. 68;
16 John. R. 108.
DEPUTY OF THE ATTORNEY GENERAL. An officer appointed by the
attorney general, who is to hold his office during the pleasure of the latter,
and whose duty it is to perform, within a specified district, the duties of the
attorney general. He must be a member of the bar. In Pennsylvania, by an act of
assembly, passed May 3, 1850, district attorneys are elected by the people, who
are required to perform the duties which, before that act, were performed by
deputies of the attorney general.
DEPUTY DISTRICT ATTORNEYS. The Act of Congress of March 3, 1815,
2 Story L. U. S. 1530, authorizes and directs the district attorneys of the
United States to appoint by warrant, an attorney as their substitute or deputy
in all cases when necessary to sue or prosecute for the United States, in any
of the state or county courts, by that act invested with certain jurisdiction,
within the sphere of whose jurisdiction the said district attorneys do not
themselves reside or practice; and the said substitute or deputy shall be sworn
or affirmed to the faithful execution of his duty.
DERELICT, common law. This term is applied in the common law in
a different sense from what it bears in the civil law. In the former it is
applied to lands left by the sea.
2. When so left by degrees the derelict land belongs to the owner of the
soil adjoining but when the sea retires suddenly, it belongs to the government.
2 Bl. Com. 262 1 Bro. Civ. Law, 239; 1 Sumn. 328, 490 1 Gallis. 138; Bee, R.
62, 178, 260; Ware, R. 332.
DERELICTO, civil law. Goods voluntarily abandoned by their
owner; he must, however, leave them, not only sine spe revertendi, but also
sine animzo revertendi; his intention to abandon them may be inferred by the
great length of time during which he may have been out of possession, without
any attempt to regain them. 1 Bro. Civ. Law, 239; 2 Bro. Civ. Law, 51; Wood's
Civ. Law, 156; 19 Amer. Jur. 219, 221, 222 Dane's Ab. Index, h. t.; 1 Ware's R.
DERIVATIVE. Coming from another; taken from something preceding,
secondary; as derivative title, which is that acquired from another person.
There is considerable difference between an original and a derivative title.
When the acquisition is original, the right thus acquired to the thing becomes
property, which must be unqualified and unlimited, and since no one but the
occupant has any right to the thing, he must have the whole right of disposing
of it. But with regard to derivative acquisition, it may be otherwise, for the
person from whom the thing is acquired may not have an unlimited right to it,
or he may convey or transfer it with certain reservations of right. Derivative
title must always be by contract.
2. Derivative conveyances are, those which presuppose some other
precedent conveyance, and serve only to enlarge, confirm, alter, restrain,
restore, or transfer the interest granted by such original conveyance, 3 Bl.
DERIVATIVE POWER. An authority by which one person enables
another to do an act for him. See Powers.
DEROGATION, civil law. The partial abrogation of a law; to
derogate from a law is to enact something which is contrary to it; to abrogate
a law is' to abolish it entirely. Dig. lib. 50, t. 17, 1. 102. See
DESCENDANTS. Those who have issued from an individual, and
include his children, grandchildren, and their children to the remotest degree.
Ambl. 327 2 Bro. C. C. 30; Id. 230 3 Bro. C. C. 367; 1 Rop. Leg. 115; 2 Bouv.
2. The descendants form what is called the direct descending line. Vide
Line. The term is opposed to that of ascendants. (q. v.)
3. There is a difference between the number of ascendants and
descendants which a man may have every one his the same order of ascendants,
though they may not be exactly alike as to numbers, because some may be
descended from a common ancestor. In the line of descendants they fork
differently, according to the number of children and continue longer or shorter
as generations continue or cease to exist. Many families become extinct, while
others continue; the line of descendants is therefore diversified in each
DESCENDER. In the descent; as formedon in the descender. Bac.
Ab. Formedon, A 1. Vide Formedon.
DESCENT. Hereditary succession. Descent is the title, whereby a
person, upon the death of his ancestor, acquires the estate of the latter, as
his heir at law: This manner of acquiring title is directly opposed to that of
purchase. (q. v.) 2 Bouv. Inst. n. 1952, et seq.
2. It will be proper to consider, 1. What kind of property descends;
and, 2. The general rules of descent.
3. - §1. All real estate, and all freehold of inheritance in land,
descend to the heir. And, as being accessory to the land and making a part of
the inheritance, fixtures, and emblements, and all things annexed to, or
connected with the land, descend with it to the heir. Terms for years, and
other estates less than freehold, pass to the executor, and are not subjects of
descent. It is a rule at common law that no one can inherit read estate unless
he was heir to the person last seised. This does not apply as a general rule in
the United States. Vide article Possessio fratris.
4. - §2. The general rules of the law of descent. 1. It is a
general rule in the law of inheritance, that if a person owning real estate,
dies seised, or as owner, without devising the same, the estate shall descend
to his descendants in the direct line of lineal descent, and if there be but
one person, then to him or her alone; and if more than one person, and all of
equal degree of consanguinity to the ancestor, then the inheritance shall
descend to the several persons as tenants in common in equal parts, however
remote from the intestate the common degree of consanguinity may be. This rule
is in favor of the equal claims of descending line, in the same degree, without
distinction of sex, and to the exclusion of all other claimants. The following
example will, illustrate it; it consists of three distinct cases: 1. Suppose
Paul shall die seised of real estate, leaving two sons and a daughter, in this
case the estate would descend to them in equal parts; but suppose, 2. That
instead of children, he should leave several grandchildren, two of them the
children of his son Peter, and one the son of his son John, these will inherit
the estate in equal proportions; or, 3. Instead of children and grandchildren,
suppose Paul left ten great grandchildren, one the lineal descendant of his son
John, and nine the descendants of his son Peter; these, like the others, would
partake equally of the inheritance as tenants in common. According to
'Chancellor Kent, this rule prevails in all the United States, with this
variation, that in Vermont the male descendants take double the share of
females; and in South Carolina, the widow takes one-third of the estate in fee;
and in Georgia, she tales a child's share in fee, if there be any children,
and, if none, she then takes in each of those states, a moiety of the estate.
In North and South Carolina, the claimant takes in all cases, per stirpes,
though standing in the same degree. 4 Kent, Com. 371; Reeves' Law of Desc.
passim; Griff. Law Reg., answers to the 6th interr. under the head of each
state. In Louisiana the rule is, that in all cases in which representation is
admitted, the partition is made by roots; if one root has produced several
branches, the subdivision is also made by root in each branch, and the members
of the branch take between them by heads. Civil Code, art. 895.
5. - 2. It is also a rule, that if a person dying seised, or as owner of
the land, leaves lawful issue of different degrees of consanguinity, the
inheritance shall descend to the children and grandchildren ofthe ancestor, if
any be living, and to the issue of such children and grandchildren as shall be
dead, and so on to the remotest degree, as tenants in common; but such
grandchildren and their descendants, shall inherit only such share as their
parents respectively would have inherited if living. This rule may be
illustrated by the following example: 1. Suppose Peter, the ancestor, had two
children; John, dead, (represented in the following diagram by figure 1,) and
Maria, living (fig. 2); John had two children, Joseph, living, (fig. 3,) and
Charles, dead (fig. 4); Charles had two children, Robert, living, (fig. 5,) and
James, dead (fig. 6.); James had two children, both living, Ann, (fig. 7,) and
William, (fig. 8.)
Peter (0) the ancestor. -
- - (1) John (2) Maria -
- - (3) Joseph (4) Charles -
- - (5) Robert (6) James -
- - (7) Ann (8) William
In this case Maria would inherit one-half; Joseph, the son of John,
one-half of the half, or quarter of the whole; Robert, one-eighth of the whole;
and Ann and William, each one-sixteenth of the whole, which they would hold as
tenants in common in these proportions. This is called inheritance per stirpes,
by roots, because the heirs take in such portions only as their immediate
ancestors would have inherited if living.
6. - 3. When the owner of land dies without lawful issue, leaving
parents, it is the rule in some of the states, that the inheritance shall.
ascend to them, first to the father, and then to the mother, or jointly to
both, under certain regulations prescribed by statute.
7. - 4. When the intestate dies without issue or parents, the estate
descends to his brothers and sisters and their representatives. When there are
such relations, and all of equal degree of consanguinity to the intestate, the
inheritance descends to them in equal parts, however remote from the intestate
the common degree of consanguinity may be. When all the heirs are brothers and
sisters, or all of them nephews and nieces, they take equally. When some are
dead who leave issue, and some are living, then those who are living take the
share they would have taken if all had been living, and the descendants of
those who are dead inherit only the share which their immediate parents would
have received if living. When the direct lineal descendants stand in equal
degrees, they take per capita, by the head, each one full share; when, on the
contrary, they stand in different degrees of consanguinity to the common
ancestor, they take per stirpes, by roots, by right of representation. It is
nearly a general rule, that the ascending line, after parents, is postponed to
the collateral line of brothers and sisters. Considerable difference exists in
the laws of the several states, when the next of kin are nephews and nieces,
and uncles and aunts claim as standing in the same degree. In many of the
states, all these relations take equally as being next of kin; this is the rule
in the states of New Hampshire, Vermont, (subject to the claim of the males to
a double portion as above stated,) Rhode Island, North Carolina, and Louisiana.
In Alabama, Connecticut, Delaware, Georgia, Indiana, Illinois, Kentucky, Maine,
Maryland, Massachusetts, Mississippi, Missouri, New Jersey, New York, Ohio,
Pennsylvaaia, South Carolina, Tennessee, and Virginia, on the contrary, nephews
and nieces take in exclusion of uncles and aunts, though they be of equal
degree of consanguinity to the intestate. In Alabama, Connecticut, Georgia,
Maryland, New Hampshire, Ohio, Rhode Island, and Vermont, there is no
representation among collaterals after the children of brothers and sisters in
Delaware, none after the grandchildren. of brothers and sisters. In Louisiana,
the ascending line must be exhausted before the estate passes to collaterals,
Code, art. 910. In North Carolina, claimants take per stirpes in every case,
though they stand in equal degree of consanguinity to the common ancestor. As
to the distinction between whole and half blood, vide Half blood.
8. - 5. Chancellor Kent lays it down as a general rule in the American
law of descent, that when the intestate has left no lineal descendants, nor
parents, nor brothers, nor sisters, or their descendants, that the grandfather
takes the estate, before uncles and aunts, as being nearest of kin to the
9. - 6. When the intestate dies leaving no lineal descendants, nor
parents, nor brothers, nor sisters, nor any of their descendants, nor grand
parents, as a general rule, it is presumed, the inheritance descends to the
brothers and sisters, of both the intestate's parents, and to their
descendants, equally. When they all stand in equal degree to the intestate,
they take per capita, and when in unequal degree, per stirpes. To this general
rule, however, there are sligbt variations in some of the states, as, in Now
York, grand parents do not take before collaterals.
10. - 7. When the inheritance came to the intestate on the part of the
father, then the brothers and sisters of the father and their descendant's
shall have the preference, and, in default of them, the estate shall descend to
the brothers and sisters of the mother, and their descendants and where the
inheritance comes to the intestate on the part of his mother, then her brothers
and sisters, and their descendants, have a preference, and in default of them,
the brothers and sisters on the side of the father, and their descendants,
inherit. This is the rule in Connecticut, New Jersey, New York, North Carolina,
Ohio, Rhode island, Tennessee, and Virginia. In Pennsylvania, it is provided by
act of assembly, April 8, 1833, that no person who is not of the blood of the
ancestors or other relations from whom any real estate descended, or by whom it
was given or devised to the intestate, shall in any of the cases before
mentioned, take any estate of inheritance therein, but such real estate subject
to such life estate as may be in existence by virtue of this act, shall pass to
and vest in such other persons as would be entitled by this act, if the persons
not of the blood of such ancestor, or other relation, had never existed, or
were dead at the decease of the intestate. In some of the states there is
perhaps no distinction as to the descent, whether they have been acquired by
purchase or by descent from an ancestor.
11. - 8. When there is a failure of heirs under the preceding rules, the
inheritance descends" to the remaining next of kin of the intestate, according
to the rules in the statute of distribution of the personal estate, subject to
the doctrine in the preceding rules in the different states as to the half
blood, to ancestral estates, and as to the equality of distribution. This rule
prevails in several states, subject to some peculiarities in the local laws of
descent, which extend to this rule.
12. It is proper before closing this article, to remind the reader, that
in computing the degrees of consanguinity, the civil law is followed generally
in this country, except in Norrh Carolina, where the rules of the common law in
their application to descents are adopted, to ascertain the degree of
consanguinity. Vide the articles Branch; Consanguinity; Degree; Line.
DESCRIPTIO PERSONAE. Description of the person. In wills, it
frequently happens, that the word heir is used as a descriptio personae; it is
then a sufficient designation of the person.
DESCRIPTION. A written account of the state and condition of
personal property, titles, papers, and the like. It is a kind of inventory, (q.
v.) but is more particular in ascertaining the exact condition of the property,
and is without any appraisement of it.
2. When goods are found in the possession of a person accused of
stealing them, a description ought to be made of them. Merl. Rep. h. t.
3. A description is less perfect than a definition. (q. v.) It gives
some knowledge of the accidents and qualities of a thing; for example, plants,
fruits, andanimals, are described by their shape, bulk, color, and the like
accidents. Ayl. Pand. 60.
4. Description may also be of a person, as description of a legatee. 1
Roper on Leg. chap. 2.
DESERTER. One who abandons his post; as, a soldier who abandons
the public service without leave; or a sailor who abandons a ship when he has
engaged to serve.
DESERTION, crim. law. An offence which consists in the
abandonment of the public service, in the army or navy, without leave.
2. The Act of March 16, 1802, s. 19, enacts, that if any
non-commissioned officer, musician, or private, shall desert the service of the
United Staies, he shall, in addition to the penalties mentioned in the rules
and articles of war, be liable to serve for and during such period as shall,
with the time he may have served previous to his desertion, amount to the full
term of his enlistment; and such soldier shall and may be tried by a
court-martial, and punished, although the term of his enlistment may have
elapsed previous to his being apprehended or tried.
3. By the articles of war, it is enacted, that "any non-commissioned
officer or soldier who shall, without leave from his commanding officer, absent
himself from his troop, company, or detachment, shall, upon being convicted
thereof, be punished, according to the nature of his offence, at the discretion
of a court-martial." Art. 21.
4. By the articles for the government of the navy, art. 16, it is
enacted, that "if any person in the navy shall desert to an enemy, or rebel, he
shall suffer death;" and by art. 17, "if any person in the navy shall desert,
or shall entice others to desert, he shall suffer death, or such other
punishmemt as a court-martial shall adjudge."
DESERTION, torts. The act by which a man abandons his wife and
children, or either of them.
2. On proof of desertion, the courts possess the power to grant the
'Wife, or such children as have been deserted, alimony (q. v.)
DESERTION, MALICIOUS. The act of a hushand or wife, in leaving a
consort, without just cause, for the purpose of causing a perpetual separation.
Vide Abandonment, malicious.
DESERTION OF SEAMEN, contracts. The abandonment, by a sailor, of
a ship or vessel, in which he engaged to perform a voyage, before the
expiration of his time, and without leave.
2. Desertion, without just cause, renders the sailor liable, on his
shipping articles, for damages, and will, besides, work a forfeiture of his
wages previously earned.
3 Kent, Com. 155. It has been decided, in England, that leaving the ship
before the completion of the voyage is not desertion, in the case, 1. Of the
seaman's entering into the public service, either voluntarily or by impress;
and 2. When he is compelled to leave it by the inhuman treatment of the
captain. 2 Esp. R. 269; 1 Bell's Com. 514, 5th ed.; 2 Rob. Adm. R. 232.
DESIGNATIO PERSONAE. The persons described in a contract as
being parties to it.
2. In all contracts, under seal, there must be some designatio personae.
In general, the names of the parties,appear in the body of the deed, "between A
B of, &c., of the one part, and C D of, &c., of the other part," being
the common formula. But there is a sufficient designation and description of
the party to be charged, if his name is written at the foot of the
3. A deed alleged to have been made between plaintiff and defendant
began as follows: "Tis agreed that a gray nag bought of A B by C D shall run
twenty five miles in two hours for X, In witness whereof, we have hereunto set
our hands and seals." The plaintiff and defendant subscribed their names at the
bottom of the writing, and afterwards sealed and delivered the document as
their deed. Held, that the omission to state the names of the contracting
parties in the body of the instrument, was supplied by the signatures at the
bottom, and it sufficiently appeared whose deed it was. 1 Raym. 2; 1 Salk. 214
2 B. & P. 339.
4. When a person is described in the body of the instrument by the name
of James, and he signs the name of John, on being sued by the latter name he
cannot deny it. 3 Taunt. 505; Cro. Eliz. 897, n. (a.) Vide 11 Ad. & Ell.
594; 3 P. & D. 271.
DESIGNATION, wills. The expression used by a testator, instead
of the name of the person or the thing he is desirous to name; for example, a
legacy to. the eldest son of such a person, would be a designation of the
legatee. Vide 1 Rop. Leg. ch. 2.
2. A bequest of the farm which the testator bought of such a person; or
of the picture he owns, painted by such an artist, would be a designation of
the thing devised or bequeathed.
DESPACHEURS. The name given, in some countries, to persons
appointed to settle cases of average. Ord. Hamh. t. 21, art. 10.
DESPATCHES. Official communications of official Persons, on the
affairs of government.
2. In general, the bearer of despatches is entitled to all the
facilities that can be given him, in his own country, or in a neutral state;
but a neutral cannot, in general, be the bearer of despatches of one of the
belligerent parties. 6 C. Rob. 465 see 2 Dodson, 54; Edw. 274.
DESPERATE. Of which there is no hope.
2. This term is used frequently, in making an inventory of a decedent's
effects, when a debt is considered so bad that there is no hope of recovering
it. It is then called a desperate debt, and, if it be so returned, it will be
prima facie, considered as desperate. See Toll. Ex. 248 2 Williams, Ex. 644; 1
Chit. Pr. 580. See Sperate.
DESPITUS. This word signifies, in our ancient law books, a
contemptible person. Flet. lib. 4, c. 5, §4. The English word despite is
derived from it, which signifies spite or contempt against one's will -
defiance with contempt, or contempt of opposition.
DESPOT. This word, in its most simple and original acceptation,
signifies master and supreme lord; it is synonymous with monarch; but, taken in
bad part, as it is usually employed, it signifies a tyrant. In some states,
despot is the title given to the sovereign, as king is given in others. Encyc.
DESPOTISM, government. That abuse of government, where the
sovereign power is not divided, but united in the hands of a single man,
whatever may be his official title. It is not, properly, a form of government.
Toull. Dr. Civ. Fr. tit. prel. n. 32; Rutherf Inst. b. 1, c. 20, §1. Vide
DESRENABLE, Law French. Unreasonable. Britt. c. 121.
DESTINATION. The application which the testator directs shall be
made of the legacy he gives; for example, when a testator gives to a hospital a
sum of money, to be applied in erectiug buildings, he is said to give a
destination to the legacy. Destination also signifies the intended application
of a thing. Mill stones, for example, taken out of a mill to be picked, and to
be returned, have a destination, and are considered as real estate, although
detached from the freehold. Heir looms, (q. v.) although personal chattels,
are, by their destination, considered real estate and money agreed or directed
to be laid out in land, is treated as real property. Newl. on Contr. ch. 8;
Fonbl. Eq. B. 1, c. 6, §9; 3 Wheat. R. 577; 2 Bell's Com. 2; Ersk. Inst. 2
§14. Vide Mill.
2. When the owner of two adjoining houses uses, during his life, the
property in such a manner as to make one property subject to the other, and
devises one property to one person, and the other to another, this is said not
to be an easement or servitude, but a destination by the former owner. Lois des
Bat. partie 1, c. 4, art. 3, §3; 5 Har. & John. 82. See
DESTINATION, com. law. The port at which a ship is to end her
voyage is called her port of destination. Pard. n. 600.
DESUETUDE. This term is applied to laws which have become
DETAINER. 1. The act of keeping a person against his will, or of
keeping goods or property. All illegal detainers of the person amount to false
imprisonment, and may be remedied by habeas corpus.
2. - 2. A detainer or detention of goods is either lawful or unlawful;
when lawful, the party having possession of them cannot be deprived of it. The
detention may be unlawful, although the original taking was lawful; as when
goods were distrained for rent, and the rent was -afterwards paid; or when they
'Were pledged, and the money borrowed, and interest were afterwards paid; in
these, and the like cases, the owner should make a demand, (q. v.) and if the
possessor refuse to restore them, trover, detinue, or replevin will lie, at the
option of the plaintiff.
3. - 3. There may also be a detainer of land and this is either lawful
and peaceable, or unlawful and forcible. 1. The detainer is lawful where the
entry has been lawful, and the estate is held by virtue of some right. 2. It is
unlawful and forcible, where the entry has been unlawful, and with force, and
it is retained, by force, against right; or even when the entry has been
peaceable and lawful, if the detainer be by force, and against right; as, if a
tenant at will should detain with force, after the will has determined, he will
be guilty of a forcible detainer. Hawk. P. C. ch. 64, s. 22; 2 Chit. Pr. 288;
Com. Dig, B. 2; 8 Cowen, 216; 1 Hall, 240; 4 John. 198; 4 Bibb, 501. A forcible
detainer is a distinct offence from a forcible entry. 8 Cowen, 216. See
Forcible entry and detainer.
4. - 4. A writ or instrument, issued or made by a competent officer,
authorizing the keeper of a prison to keep in his custody a person therein
named. A detainer may be lodged against. one within the walls of a prison, on
what account soever he is there. Com. Dig. Process, E 3 b.
DETENTION. The act of retaining a person or property, and
preventing the removal of such person or property.
2. The detention may be occasioned by accidents, as, the detention of a
ship by calms, or by ice; or it may, be hostile, as the detention of persons or
ships in a foreign country, by order of the government. In general, the
detention of a ship does not change the nature of the contract, and therefore,
sailors will be entitled to their wages during the time of the detention. 1
Bell's Com. 517, 519, 5th ed.; Mackel. Man. §210.
3. A detention is legal when the party has a right to the property, and
has come lawfully into possession. It is illegal when the taking was unlawful,
as is the case of forcible entry and detainer, although the party may have a
right of possession; but, in some, cases, the (retention may be lawful,
although the taking may have been unlawful. 3 Penn. St. R. 20. When the taking
was legal, the detention may be illegal; as, if one borrow a horse, to ride
from A to B, and afterwards detain him from the owner, After demand, such
detention is unlawful, and the owner may either retake his property, or have an
actiqn of replevin or detinue. 1 Chit. Pr. 135. In some cases, the detention
becomes criminal although the taking was lawful, as in embezzlement.
DETERMINABLE. What may come to an end, by the happening of a
contingency; as a determnable fee. See 2 Bouv. Inst. n. 1695.
DETERMINABLE FEE. Also called a qualified or base fee, is one
which has a quality subjoined to it, and which must be determined whenever the
qualification annexed to it is at in end. A limitation to a man and his heirs
on the part of his father, affords an example of this species of estate. Litt.
§254; Co. Litt. 27 a, 220; 1 Prest. on Estates, 449; 2 Bl. Com. 109;
Cruise, tit 1, §82; 2 Bouv. Inst; n., 1695.
DETERMINATE. That which is ascertained; what is particularly
designated; as, if I sell you my horse Napoleon, the article sold is here
determined. This is very different from a contract by which I would have sold
you a horse, without a particular designation of any horse. 1 Bouv. Inst. n.
DETERMINATION. The end, the conclusion, of a right or authority;
as, the determination of a lease. 1 Com. Dig. Estates by Grant, G 10, 11, and
12.. The determination of an authority is the end of the authority given; the
end of the return day of a writ determines the authority of the sheriff; the
death of the principal determines the authority of a mere attorney. By
determination is also understood the decision or judgment of a court of
DETINET. He detains. Vide Debet et Detinet, and Detinuit.
DETINUE, remedies. The name of an action for the recovery of a
personal chattel in specie. 3 Bl. Com. 152; 3 Bouv. Inst. n. 3472; 1 J. J.
2. This action may be considered, 1. With reference to the nature of the
thing to be recovered. 2. The plaintiff's interest therein. 3. The injury. 4.
The pleadings. 5. The judgment.
3.- 1. The goods which it is sought to recover, must be capable of being
distinguished from all others, as a particular horse, a cow, &c., but not
for a bushel of grain. Com. Dig. Detinue, B, C; 2 Bl. Com. 152; Co. Litt. 286
b; Bro. Det. 51. Detinue cannot be maintained where the property sued for had
ceased to exist when the suit was commenced. 2 Dana, 332. See 5 Stew. &
Port. 123; 1 Ala. R. 203.
4. - 2. To support this action, the plaintiff must have a right to
immediate possession, although he never had actual possession; a reversioner
cannot, therefore, maintain it. A bailee, who has only a special property, may
nevertheless support it when he delivered the goods to the defendant, or they
were taken out of the bailee's custody. 2 Saund. 47, b, c, d Bro. Ab. h. t.; 9
Leigh, R. 158; 1 How. Miss. R. 315; 5 How. Miss. R. 742; 4 B. Munr. 365.
5. - 3. The gist of the action is the wrongful detainer, and not the
original taking. The possession must have been acquired by the defendant by
lawful means, as by delivery, bailment, or. finding, and not tortiously. Bro.
Abr. ])et. 53, 36, 21 1 Misso. R. 749. But a demand is not requisite, except
for the purpose of entitling the plaintiff to damages for the detention between
the time of the demand and that of the commencement of the action. 1 Bibb, 186;
4 Bibb, 340; 1 Misso. 9; 3 Litt. 46.
6. - 4. The plaintiff may declare upon a bailment or a trover; but the
practice, by the ancient common law, was to allege, simply, that the goods came
to the hands, &c., of the defendant without more. Bro. Abr. Det. 10, per
Littleton; 33 H. VI. 27. The trover, or finding, when alleged, was not
traversable, except when the defendant alleged delivery over of a chattel
actually found to a third person, before action brought, in excuse of the
detinue. Bro. Abr. Det. 1, 2. Nor is the bailment traversable, but the
defendant must answer to the detinue. Bro. Abr. Det. 50-1. In describing the
things demanded, much certainty is requisite, owing to the nature of the
execution. A declaration for "a red cow with a white face," is not supported by
proof that the cow was a yellow. or sorrel cow. 1 Scam. R. 206. The general
issue is non detinet, and under it special matter may be given in evidence. Co.
7. - 5. In this action the defendant frequently prayed garnishment of a
third person, whom he alleged owned or had an interest in the thing demanded;
but this he could not do without confessing the possession of the thing
de-manded, and made privity of bailment. Bro. Abr. Garnishment, 1;
Interpleader, 3. If the prayer of garnishment was allowed, a sci. fac. issued
against the person named as garnishee. If he made default, the plaintiff
recovered against, the defendant the chattel demanded, but no damages. If the
garnishee appeared and the plaintiff made default, the garnishee recovered. If
both appeared, and the plaintiff recovered; he had judgment against the
defendant for the chattel demanded, and a distringas in execution and against
the garnishee a judgment for damages, and a fi. fa. in execution. The verdict
and judgment must be such, that a special remedy may be had for the recovery of
the goods detained, or a satisfaction in value for each parcel, in case they,
or either of them, cannot be returned. Walker, R. 538 7 Ala. R. 189; 4 Yerg. R.
570 4 Monr. 59; 7 Ala. R., 807.; 5 Miss. R. 489; 6 Monr. 52 4 Dana, 58; 3 B.
Munr. 313; 2 Humph. 59. The judgment is in the alternative, that the plaintiff
recover the goods or the value thereof, if he cannot have the goods themselves,
and his damages. Bro. Abr. Det. 48, 26, 3, 25; 4 Dana, R. 58; 2 Humph. 59; 3 B.
Mont. 313, for the detention and full costs. Vide, generally, 1 Chit. Pl. 117;
3 Bl. Com. 152; 2 Reeve's Hist. C. L. 261, 333,336; 3 Id. 66, 74; Bull. N. P.
50. This action has yielded to the more practical and less technical action of
trover. 3 Bl. Com. 152.
DETINUIT, practice. He detained.
2. Where an action of replevin is instituted for goods which the
defendant had taken, but which he afterwards restored, it is said to be brought
in the detinuit; in such case the judgment is, that the plaintiff recover the
damages assessed by the jury for the taking and unjust detention, or for the
latter only, where the former was justifiable, and his costs. 4 Bouv. Inst. n.
3562. 3. When the replevin is in the detinet, that he detains the goods, the
jury must find in addition to the above, the value of the chattels, (assuming
they are still detained, not in a gross sum, but each separate article must be
separately valued, for perhaps the defendant may restore some of them, in which
case the plaintiff is to recover the value of the remainder. Vide Debet et
DEVASTAVIT. A devastavit is a mis-management and waste by an
executor, administrator, or other trustee of the estate and effects trusted to
him, as such, by which a loss occurs.
2. It takes place by direct abuse, by mal-administration, and by
3. - §1. By direct abuse. This takes place when the executor,
administrator, or trustee, sells, embezzles, or converts to his own use, the
goods entrusted to him; Com. Dig. Administration, I 1; releases a claim due to
the estate; 8 Bac. Abr. 700; Hob. 266; Cro. Eliz. 43; 7 John. R. 404; 9 Mass.
352; or surrenders a lease below its value. 2 John. Cas. 376; 3 P. Wms. 330.
These instances sufficiently show that any wilful waste of the property will be
considered as a direct devastavit.
4. - §2. By mal-administration. Devastavit by mal-administration
most frequently occurs by the payment of claims which were not due nor owing;
or by paying others out of the order in which they ought to be paid; or by the
payment of legacies before all the, debts have been satisfied. 4 Serg. &
Rawle, 394; 5 Rawle, 266.
5. - §3. By neglect. Negligence on the part of an executor,
administrator, or trustee, may equally tend to the waste of the estate, as the
direct destruction or mal-administration of the assets, and render him guilty
of a devastavit. The neglect to sell the goods at a fair price, within a
reasonable time, or, if they are perishable goods, before they are wasted, will
be a devastavit. And a neglect to collect a doubtful debt, which by proper
exertion might have been collected, will be so considered. Bac. Ab. Executors,
6. The law requires from trustees, good faith and due diligence, the
want of which is punished by making them responsible for the losses which may
be sustained by the property entrusted to them when, therefore, a party has
been guilty of a devastavit, he is required to. make up the loss out of his own
estate. Vide Com. Dig. Administration, I; 11 Vin. Ab. 306; 1 Supp. to Ves. jr.
209; 1 Vern. 328; 7 East, R. 257 1 Binn. 194; 1 Serg. & Rawle, 241 1 John.
R. 396; 1 Caines' Cas. 96 Bac. Ab. Executor, L; 11 Toull. 58, 59, n. 48.
DEVIATION, insurance, contracts. A voluntary departure, without
necessity, or any reasonable cause, from the regular and usual course of the
2. From the moment this happens, the voyage is changed, the contract
determined, and the insurer discharged from all subsequent responsibility. By
the contract, the insurer only runs the risk of the contract agreed upon, and
no other; and it is, therefore, a condition implied in the policy, that the
ship shall proceed to her port of destination by the. shortest and safest
course, and on no account to deviate from that course, but in cases of
necessity. 1 Mood. & Rob. 60; 17 Ves. 364; 3 Bing. 637; 12 East, 578.
3. The effect of a deviation is not to vitiate or avoid the policy, but
only to determine the liability of the underwriters from the time of the
deviation. If, therefore, the ship or goods, after the voyage has commenced,
receive damage, then the ship deviates, and afterwards a loss happen, there,
though the insurer is discharged from the time of the deviation, and is not
answerable for the subsequent loss, yet he is bound to make good the damage
sustained previous to the deviation. 2 Lord Raym. 842 2 Salk. 444.
4. But though he is thus disebarged from subsequent responsibility, he
is entitled to retain the whole premium. Dougl. 271; 1 Marsh. Ins. 183; Park.
Ins. 294. See 2 Phil. Ev. 60, n. (b) where the American cases are cited.
5. What amounts to a deviation is not easily defined, but a departure
from the usual course of the voyage, or remaining at places where the ship is
authorized to touch, longer than necessary, or doing there what the insured is
not authorized to do; as, if the ship have merely liberty to touch at a point,
and the insured stay there to trade, or break bulk, it is a deviation. 4 Dall.
274 1 Peters' C. C. R. 104; Marsh. Ins. B. 1, c. 6, s. 2. By the course of the
voyage is not meant the shortest course the ship can take from her port of
departure to her port of destination, but the regular and customary track, if
such there be, which long us usage has proved to be the safest and most
convenient. 1 Marsh. Ins. 185. See 3 Johns. Cas. 352; 7 T. R. 162.
6. A deviation that will discharge the insurer, must be a voluntary
departure from the usual course of the voyage insured, and not warranted by any
necessity. If a deviation can be justified by necessity, it will not affect the
contract; and necessity will justify a deviation, though it proceed from a
cause not insured against. The cases of necessity which are most frequently
adduced to justify a departure from the direct or usual course of the voyage,
are, 1st. Stress of weather. 2d. The want of necessary repairs. 3d. Joining
convoy. 4th. Succouring ships in distress. 5th. Avoiding capture or detention.
6th. Sickness of the master or mariner. 7th. Mutiny of the crew. See Park, Ins.
c. 17; 1 Bouv. Inst. n. 1187, et seq.; 2 John. Cas. 296; 11 Johns. R. 241; Pet.
C. C. R. 98; 2 Johns. Rep. 89; 14 Johns. R. 315; 2 Johns. R. 138; 9 Johns. R.
192; 8 Johns. Rep. 491; 13 Mass. 68 13 Mass. 539; Id. 118; 14 Mass. 12 1 Johns.
Cas. 313; 11 Johns. R. 241; 3 Johns. R. 352; 10 Johns. R. 83; 1 Johns. R. 301;
9 Mass. 436, 447; 3 Binn. 457 7 Mass. 349; 5 Mass. 1; 8 Mass. 308 6 Mass. 102
121 6 Mass. 122 7 Cranch, 26; Id. 487; 3 Wheat. 159 7 Mass. 365; 10 Mass. 21
Id. 347 7 Johns. Rep. 864; 3 Johns. R. 352; 4 Dall. R. 274 5 Binn. 403; 2 Serg.
& Raw. 309; 2 Cranch, 240.
DEVIATION, contracts. When a plan has been adopted for a
building, and in the progress of the work a change has been made from the
original plan, the change is called a deviation.
2. When the contract is to build a house according to the original plan,
and a deviation takes place, the contract shall be traced as far as possible,
and the additions, if any have been made, shall be paid for according to the
usual rate of charging. 3 Barn. & Ald. 47; and see 1 Ves. jr. 60; 10 Ves.
jr. 306; 14 Ves. 413; 13 Ves. 73; Id. 81 6 Johns. Ch. R. 38; 3 Cranch, 270; 5
Cranch, 262; 3 Ves. 693; 7 Ves. 274; Chit. Contr. 168; 9 Pick. 298.
3. The Civil Code of Louisiana, art. 2734, provides, that when an
architect or other workman has undertaken the building of a house by the job,
according to a plot agreed on between him and the owner of the ground, he
cannot claim an increase of the price agreed on, on the plea of the original
plot having been changed and extended, unless he can prove that such changes
have been made in compliance with the wishes of the proprietor.
DEVISAVIT VEL NON, practice. The name of an issue sent out of a
court of chancery, or one which exercises chancery jurisdiction, to a court of
law, to try the validity of a paper asserted and denied to be a will, to
ascertain whether or not the testator did devise, or whether or not that paper
was his will. 7 Bro. P. C. 437; 2 Atk. 424; 5 Barr, 21.
DEVISE. A devise is a disposition of real property by a person's
last will and testament, to tale effect after the testator's death.
2. Its form is immaterial, provided the instrument is to take effect
after the death of the party; and a paper in the form of an indenture, which is
to have that effect, is considered as a devise. Finch. 195 6 Watts, 522; 3
Rawle, 15; 4 Desaus. 617, 313; 1 Mod. 117; 1 Black. R. 345.
3. The term devise, properly and technically, applies only to real
estate the object of the devise must therefore be that kind of property. 1
Hill. Ab. ch. 36, n. 62 to 74. Devise is also sometimes improperly applied to a
bequest or legacy. (q. v.) Vide 2 Bouv. Inst. n. 2095, et seq; 4 Kent, Com. 489
8 Vin. Ab. 41 Com. Dig. Estates by Devise.
4. In the Year Book, 9 H. VI. 24, b. A. D. 1430, Babington says, the
nature of a devise, when lands are devisable, is, that one can devise that his
lands shall be sold by executors and this is good. And a devise in such form
has always been in use. And so a man may have frank tenement of him who had
nothing, in the same manner as one may have fire from a flint, and yet there is
no fire in the flint. But it is to perform the last will of the devisor.
DEVISEE. A person to whom a devise has been made.
2. All persons who are in rerum natura, and even embryos, may be
devisees, unless excepted by some positive law. In general, he who can acquire
property by his labor and industry, may receive a devise. C. & N. 353.
DEVISOR. A testator; one, who devises his real estate.
2. As a general rule all persons who. may sell an estate may devise it.
The disabilities of devisors may be classed, in three divisions. 1. Infancy. In
some of the United States this disability is partially removed; in Illinois,
Maryland, Mississippi and Ohio, an unmarried woman at the age of eighteen years
may devise. 2. Coverture. In general, a married woman cannot devise; but in.
Connecticut and Ohio she may devise her lands; and in Illinois, her separate
estate. In Louisiana, she may devise without the consent of her hushand. Code,
art. 132. 3. Idiocy and non sane memory. It is evident that a person non compos
can make no devise, because he has no will.
3. The removal of the disability which existed at the time of the devise
does, not, of itself, render it valid. For example, when the hushand dies, and
the wife becomes a feme sole; when one non compos is restored to his sense; and
when an infant becomes of age; these several acts do not make a will good,
which at its making was void. 11 Mod. 123, 157; 2 Vern . 475; Comb, 84; 4
Rawle, R. 3.36. Vide. Testament or ill.
DEVOIR. Duty. It is used in the statute of 2 Ric. II., c. 3, in
the sense of duties or customs.
DEVOLUTION, eccl. law. The transfer, by forfeiture, of a right
and power which a person has to another, on account of some act or negligence
of the person who is vested with such right or power: for example, when a
person has the right of preseptation, and he does not present within the time
prescribed, the right devolves on his next immediate superior. Ayl. Par.
DI COLONNA, mar. contracts. This contract tales place between
the owner of a ship, the captain and the mariners, who agree that the voyage
shall be for the benefit of all. This is a term used in the Italian law. Targa,
oh. 36, 37: Emerigon, Mar. Loans, s. 5.
2. The New England whalers are owned and navigated in this manner, and
under this species of contract. The captain and his mariners are all interested
in the profits of the voyage in certain proportion, in the same manner as the
captain and crew of a privateer, according to the agreement between them. Such
agreement, being very common in former times, all the mariners and the masters
being interested in the voyage. It is. necessary to know this, in order to
understand many of the provisions of the laws of Oleron, Wishuy, the Consolato
del Mare, and other ancient codes of maritime and commercial law. Hall on Mar.
TO DICTATE. To pronounce word for word what is destined to be at
the same time written by another. Merlin Rep. mot Suggestion, p. 5 00; Toull.
Dr. Civ. Fr. liv. 3, t. 2, c. 5, n. 410.
DICTATOR, civil law. A Magistrate at Rome invested with absolute
power. His authority over the lives and fortunes of the citizens was without
bounds. His office continued but for six months. Hist. de Ia Jur. h. t.; Dig.
l, 2, 18; Id. 1, 1, 1.
DICTUM, practice. Dicta are judicial opinions expressed by the
judges on points that do not necessarily arise in the case.
2. Dicta are regarded as of little authority, on account of the manner
in which they are delivered; it frequently happening that they are given
without much reflection, at the bar, without previous examination. "If," says
Huston, J., in Frants v. Brown, 17 Serg. & Rawle, 292, "general dicta in
cases turning on special circumstances are to be considered as establishing the
law, nothing is yet settled, or can be long settled." "What I have said or
written, out of the case trying," continues the learned judge, "or shall say or
write, under such circumstances, maybe taken as my opinion at the time, without
argument or full consideration; but I will never consider myself bound by it
when the point is fairly trying and fully argued and considered. And I protest
against any person considering such obiter dicta as my deliberate opinion." And
it was considered by another learned judge. Mr. Baron Richards, to be a "great
misfortune that dicta are taken down from judges, perhaps incorrectly, and then
cited as absolute propositions." 1 Phillim. Rep. 1406; S. C. 1 Eng. Ecc. R.
129; Ram. on Judgm. ch. 5, p. 36; Willes' Rep. 666; 1 H. Bl. 53-63; 2 Bos.
& P. 375; 7 T. R. 287; 3 B. & A. 341; 2 Bing. 90. The doctrine of the
courts of France on this subject is stated in 11 Toull. 177, n. 133.
3. In the French law, the report of a judgment made by one of the judges
who has given it, is called the dictum. Poth. Proc. Civ. partie 1, c. 5, art.
DIES. A day. There are four sorts of days: 1. A natural day; as,
the morning and the evening made the first day. 2. An artificial day; that is,
from day-break until twilight in the evening. 3. An astrological day, dies
astrologicus, from sun to sun. 4. A legal day, which is dies juridicus, and
dies non juridicus. 1. Dies juridici, are all days given in term to the parties
in court. Dies non juridici are those which are not appointed to do business in
court, as Sundays, and the like. Dies in banco, days of appearance in the
English court of common bench. 3 Bl. Com. 276. Vide Day, and 3 Com. Dig.
DIES DATUS, practice. A day or time given to a defendant in a
suit, which is in fact a continuance of the cause. It is so called when given
before a declaration; when it is allowed afterwards it assumes the name of
imparlance. (q. v.)
DIES NON or DIES NON JURIDICI. Non-judicial days. Days during
which courts do not transact any business, as Sunday. The entry of judgment
upon such a day is void. W . Jones, 156.
DIET. An assembly held by persons having authority to manage the
public affairs of the nation. In Germany, such assemblies are known by this
DIFFERENCE. A dispute, contest, disagreement, quarrel.
DIGEST, civil law. The name sometimes given to the Pandects of
Justinian; it is so called because this compilation is reduced to order, quasi
2. It is an abridgment of the decisions of the praetors and the works of
the learned, and ancient writers on the law. It was made by order of the
emperor Justinian, who, in 530, published an ordinance entitled De Conceptione
Digestorum, which was addressed to Tribonian, and by which he was required to
select some of the most distinguished lawyers to assist him in composing a
collection of the best decisions of the ancient lawyers, and compile them is
fifty books, without confusion or contradiction. The work was immediately
commenced, and completed on the 16th of December, 533.
3. The Digest is divided in two different ways; the first, into fifty
books, each book into several titles, and each title into several laws at the
head of each of them is the name of the lawyer from. whose work it was
4. - 1. The first book contains twenty-two titles; the subject of the
first is De justicia et jure; of the division of person and things; of
5. - 2. The second, divided into fifteen titles, treats of the power of
magistrates and their jurisdiction; the manner of commencing suits; of
agreements and compromises.
6. - 3. The third, composed of six titles, treats of those who can and
those who cannot sue; of advocates and attorneys and syndics; and of
7. - 4. The fourth, divided into nine titles, treats of causes of
restitution of submissions and arbitrations; of minors, carriers by water,
innkeepers and those who have the care of the property of others.
8. - 5. In the fifth there are six titles, which. treat of jurisdiction
and inofficious testaments.
9. - 6. The subject, of the sixth, in which there are three titles, is
10. - 7. The seventh, in nine titles, embraces whatever concerns
usufructs, personal servitudes, babitations, the uses of real estate, and its
appurtenances, and of the sureties required of the usufructuary.
11. - 18. The eighth book, in six titles, regulates urban and rural
12. - 9. The ninth book, in four titles, explains certain personal
13. - 10. The tenth, in four titles, treats of mixed actions.
14.-11. The object of the eleventh book, containing eight titles, is to
regulate interrogatories, the cases of which the judge was to take cognizance,
fugitive slaves, of gamblers, of surveyors who made false reports, and of
funerals and funeral expenses.
15. - 12. The twelfth book, in seven titles, regulates personal actions
in which the plaintiff claims the title of a thing.
16. - 13. The thirteenth, treats of certain particular actions, in seven
17. - 14. This, like the last, regulates certain actions: it has six
18. - 15. The fifteenth, in four titles, treats of actions for which a
father or master is liable, in consequence of the acts of his children or
slaves, and those to which he is entitled; of the peculium of children and
slaves, and of the actions on this right.
19.-16. The sixteenth, in three titles, contains the law. relating to
the senatus consultum velleianum, of compensation or set off, and of the action
20. - 17. The seventeenth, in two titles, expounds the law of mandates
21. - 18. The eigbteenth book, in seven titles, explains the contract of
22. - 19. The nineteenth, in five titles, treats of the actions which
arise on a contract of sale.
23. - 20. The law relating to pawns, hypothecation, the preference
among creditors, and subrogation, occupy the twentieth book, which contains six
24. - 21. The twenty-first book, explains under three titles, the edict
of the ediles relating to the sale of slaves and animals; then what relates to
evictions and warranties.
25. - 22. The twenty-second treats of interest, profits and accessories
of things, proofs, presumptions, and of ignorance of law and fact. It is
divided into six titles.
26. - 23. The twenty-third, in five titles, contains the law of
marriage, and its accompanying agreements.
27. - 24. The twenty-fourth, in three titles, regulates donations
between hushand and wife, divorces, and their consequence.
28. - 25. The twenty-fifth is a continuation of the subject of the
preceding. It contains seven titles.
29. - 26 and 27. These two books, each in two titles, contain the law
relating to tutorship and curatorship.
30. - 28. The twenty-eighth, in eight titles, contain's the law on last
wills and testaments.
31. - 29. The twenty-ninth, in seven titles, is the continuation of the
32. - 30, 31, and 32. These three books, each divided into two titles,
contain the law of trusts and specific legacies.
33. - 33, 34, and 35. The first of these, divided into ten titles; the
second, into nine titles; and the last into three titles, treat of various
kinds of legacies.
34. - 36. The thirty-sixth, containing four titles, explains the senatus
consultum trebellianum, and the time when trusts become due.
35. - 37. This book, containing fifteen titles, has two objects first,
to regulate successions; and, secondly, the respect which children owe their
parents, and freedmen their patrons.
36. - 38. The thirty-eighth book, in seventeen titles, treats of a
variety of subjects; of successions, and of the degree of kindred in
successions; of possession; and of heirs.
37. - 39. The thirty-ninth explains the means which the law and the
prAEtor take to prevent a threatened iNjury; and donations inter vivos and
38. - 40. The fortieth, in sixteen titles, treats of the state and
condition of persons, and of what relates to freedmen and liberty.
39. - 41. The different means of acquiring and losing title to property,
are explained in the forty-first book, in ten titles.
40. - 42. The forty-second, in eight titles, treats of the res judicata,
and of the seizure and sale of the property of a debtor.
41. - 43. Interdicts or possessory actions are the object of the
forty-third book, in three titles.
42.-44. The forty-fourth contains an enumeration of defences which arise
in consequence of the resjudicata, from the lapse of time, prescription, and
the like. This occupies six titles; the seventh treats of obligations and
43. - 45. This speaks of stipulations, by freedmen, or by slaves. It
contains only three titles.
44. - 46. This book, in eight titles, treats of securities, novations,
and delegations, payments, releases, and acceptilations.
45. - 47. In the forty-seventh book are explained the punishments
inflicted for private crimes, de privates delictis, among which are included
larcenies, slander, libels, offences against religion, and public manners,
removing boundaries, and other similar offences.
46. - 48. This book treats of public crimes, among which are enumerated
those Iaesae majestatis, adultery, murder, poisoning, parricide, extortion, and
the like, with rules for procedure in such cases.
47. - 49. The forty-ninth, in eighteen titles, t reats of appeals, of
the rights of the public treasury, of those who are in captivity, and of their
48. - 50. The last book, in seventeen titles, explains the rights of
municipalities. and then treats of a variety of public officers.
49. Besides this division, Justinian made another, in which the fifty
books were divided into seven parts: The first contains the first four books;
the second, from the fifth to the eleventh book inclusive; the third, from the
twelfth to the nineteenth inclusive; the fourth, from title twentieth to the
twenty-seventh inclusive; the fifth, from the twenty-eighth to the thirty-sixth
inclusive the sixth, commenced with the thirty seventh, and ended with the
forty-fourth book; and the seventh or last was composed of the last six
50. A third division, which, however, is said not to have been made by
Justinian, is in three parts. The first, called digestum vetus, because it was
the first printed. It commences with the first book, and. includes the work to
the end of the second title of the twenty-fourth book. The second, called
digestum infortiatum, because it is supported or fortified by the other two, it
being the middle; it commences with the begining of the third title of the
twenty-fourth book and ends with the thirty-eighth. The third, which begins
with the thirty-ninth book and ends with the work, is called digestum novum,
because it was last printed.
51. The Digest, although, compiled in Constantinople, was originally
written in Latin, and afterwards translated into Greek.
52. This work was lost to all Europe during a considerable period, as
indeed all the law works of Justinian were, except some fragments of the Code
and Novels. During the pillage of Amalphi, in the war between the two
soi-disant popes Innocent II. and Anaclet II., a soldier discovered an old
manuscript, which attracted his attention by its envelope of many colors. It
was carried to the emperor, Clothaire II., and proved to be the Pandects of
Justinian. The work was arranged in its present order by Warner, a German,
whose name, Latinised, is Irnerius, who was appointed professor of Roman law at
Bologna, by that emperor. 1 Fournel, Hist. des Avocats, 44, 46, 51.
53. The Pandects contain all whatsoever Justinian drew out of 150,000
verses of the old books of the Roman law. The style of the Digest is very grave
and pure, and differs not much from the eloquentist speech that ever the Romans
used." The learning of the digest stands rather in the discussing of subtle
questions of law, and enumeratious of the variety of opinions of ancient
lawyers thereupon, than in practical matters of daily use. The Code of
Justinian differs in these respects from, the Digest. It is less methodical,
but more practical; the style however, is a barbarous Thracian phrase
Latinised, such as never any mean Latinist spoke. The work is otherwise rude
and unskilful. Ridley's View of the Civ. & Ecc. Law, pt. 1, ch. 2, §1,
and ch. 1, §2.
54. Different opinions are entertained upon the merits of the Digest, or
Pandects, Code, Authentics and Feuds, as a system of jurisprudence. By some it
has been severely criticised, and even harshly censured, and by others as
warmly defended the one party discovering nothing but defects, and the other as
obstinately determined to find nothing but what is good and valuable. See
Felangieri della Legislazione, vol. 1, c. 7. It must be confessed that it is
not without defects. It might have been comprehended in less extent, and in
some parts arranged in better order. It must be confessed also that it is less
congenial as a whole, with the principles of free government, than the common
law of England. Yet, with all these defects, it is a rich fountain of learning
and reason; and of this monument of the high culture and wisdom of the Roman
jurists it may be said, as of all other works in which the good so much
surpasses the bad.
Ut plura intent in carmine non ego paucis
Offendar maculis, quas aut incuria fudit
Aut humana parum cavit natura.
HORAT. ART. POETIC, v. 351.
DIGNITIES. English law. Titles of honor.
2. They are considered as incorporeal hereditaments.
3. The genius of our government forbids their admission into the
DILAPIDATION. Literally, this signifies the injury done to a
building by taking stones from it; but in its figurative, which is also its
technical sense, it means the waste committed or permitted upon a building.
DILATORY. That which is intended for delay. It is a maxim, that
delays in law are odious, dilationes in lege sunt odiosae. Plowd. 75.
DILATORY DEFENCE. chancery practice. A dilatory defence is one,
the object of which is to dismiss, suspend, or obstruct the suit, without
touching the merits, until the impediment or obstacle insisted on shall be
2. These defences are of four kinds: 1. To the jurisdiction of the
court. 2. To the person of the plaintiff or defendant. 3. To the form of
proceedings, as that the suit is irregularly brought, or it is defective in its
appropriate allegation of the parties; and, 4. To the propriety of maintaining
the suit itself, because of the pendancy of another suit for the same
controversy. Montag. Eq. Pl. 88; Story Eq. Pl. §434. Vide Defence: Plea,
DILATORY PLEAS. Those which delay the plaintiff's remedy, by
questioning, not the cause of action, but the propriety of the suit, or the
mode in which the remedy is sought. Vide Plea, dilatory.
DILIGENCE, contracts. The doing things in proper time.
2. It may be divided into three degrees, namely: ordinary diligence,
extraordinary diligence, and slight diligence. It is the reverse of negligence.
(q. v.) Under that article is shown what degree of negligence, or want of
diligence, will make a party to a contract responsible to the other. Vide
Story, Bailm. Index h. t.; Ayl. Pand. 113 1 Miles, Rep. 40.
DILIGENCE. In Scotland, there are certain forms of law, whereby
a creditor endeavors to make good his payment, either by affecting the person
of his debtor, or by securing the subjects belonging to him from alienation, or
by carrying the property of these subjects to himself. They are either real or
2. Real diligence is that which is proper to heritable or real rights,.
and of this kind there are two sorts: 1. Inhibitions. 2. Adjudication, which
the law has substituted in the place of apprising.
3. Personal diligence is that by which the person of the debtor may be
secured, or his personal estate affected. Ersk. Pr. L. Scotl. B. 2, t. 11, s.
DIME, money. A silver coin of the United States, of the value of
one-tenth part of a dollar or ten cents.
2. It weighs forty-one and a quarter grains. Of one thousand parts, nine
hundred are of pure silver and one hundred of alloy. Act of January 18, 1837,
s. 8 and 9, 4 Sharsw. cont. of Story's L. U. S. 2523-4.
DIMINUTION OF THE RECORD, practice. This phrase signifies that
the record from an inferior court, sent up to a superior, is incomplete. When
this is the case, the parties may suggest a diminution of the record, and pray
a writ of/ certiorari to the justices of the court below to certify the whole
record. Tidd's Pr. 1109; 1 S. & R. 472; Co. Ent. 232; 8 Vin. Ab. 552; 1
Lilly's Ab. 245; 1 Nels. Ab. 658; Cro. Jac. 597; Cro. Car. 91; Minor, R. 20; 4
Dev. R. 575; 1 Dey. & Bat. 382; 1 Munf. R. 119. Vide Certiorari. DIOCESE,
eccl. law. The district over which a bishop exercises his spiritual functions.
1 B1. Com. 111.
DIPLOMA. An instrument of writing, executed by, a corporation or
society, certifying that a certain person therein named is entitled to a
certain distinction therein mentioned.
2. It is usually, granted by learned institutions to their members, or
to persons who have studied in them.
3. Proof of the seal of a medical institution and of the signatures of
its officers thereto affixed, by comparison with the seal and signatures
attached to a diploma received by the witness from the same institution, has
been held to be competent evidence of the genuineness of the instrument,
although the witness never saw the officers write their names. 25 Wend. R.
4. This word, which is also written duploma, in the civil law, signifies
letters issued by a prince. They are so called, it is supposed, a duplicatis
tabellis, to which Ovid is thought to allude, 1 Amor. 12, 2, 27, when he says,
Tunc ego vos duplices rebus pro nomine sensi Sueton in Augustum, c. 26. Seals
also were called Diplomata. Vicat ad verb.
DIPLOMACY., The science which treats of the relations and
interests of nations with nations.
DIPLOMATIC AGENTS. This name has been given to public officers,
who have been commissioned, according to law, to superintend and transact the
affairs of the government which has employed them, in a foreign country.
Vattel, liv. 4, c. 5.
2. These agents are of divers orders, and are known by different
denominations. Those of the first order are almost the perfect representatives
of the government by which they are commissioned; they are legates, nuncios,
internuncios, ambassadors, ministers, plenipotentiaries. Those of the second
order do not so fully represent their government; they are envoys, residents,
ministers, charges d'affaires, and consuls. Vide these several words.
DIPLOMATICS. The art of judging of ancient charters, public
documents or diplomas, and discriminating the true from the false. Encyc. Lond.
DIRECT. Straight forward; not collateral.
2. The direct line of descents for example, is formed by a series of
degrees between persons who descend one from another. Civ. Code of Lo. art.
DIRECTION. The order and government of an institution; the
persons who compose the board of directors are jointly called the direction.
Direction, in another sense, is nearly synonymous with instruction. (q. v.)
DIRECTION, practice. That part of a bill in chancery which
contains the address of the bill to the court; this must of course, contain the
appropriate and technical description of the court.
DIRECTOR OF THE MINT. An officer whose duties are prescribed by
the Act of Congress of January 18, 18 37, 4 Sharsw. Cont. of Story L. U. S.
2524, as follows: The director shall have the control and management of the
mint, the superintendence of the officers and persons employed therein, and the
general regulation and supervision of the business of the several branches. And
in the month of January of every year he shall make report to the president of
the United States of the operation of the mint and its branches for the year
preceding. And also to the secretary of the treasury, from time to time, as
said secretary shall require, setting forth all the operations of the mint
subsequent to the last report made upon the subject.
2. The director is required to appoint, with the approbation of the
president, assistants to the assayer, melter and refiner, chief coiner and
engraver, and clerks to the director and treasurer, whenever, on representation
made by the director to the president, it shall be the opinion of the president
that such assistants or clerks are necessary. And bonds may be required from
such assistants and clerks in such sums as the director shall determine, with
the approbation of the secretary of the treasury. The salary of the director of
the mint, for his services, including travelling expenses incurred in visiting
the different branches, and all other charges whatever, is three thousand five
hundred dollars. DIRECTORS. Persons appointed or elected according to law,
authorized to manage and direct the affairs of a corporation or company. The
whole of the directors collectively form, the board of directors.
2. They are generally invested with certain powers by the acts of the
legislature, to which they owe their existence.
3. In modern corporations, created by statutes, it is generally
contemplated by the charter, that the business of the corporation shall be
transacted exclusively by the directors. 2 Caines' R. 381. And the acts of such
a board, evidenced by a legal vote, are as completely binding upon the
corporation, and as complete authority to their agents, as the most solemn acts
done under the corporate seal. 8 Wheat. R. 357, 8.
4. To make a legal board of directors, they must meet at a time when,
and a place where, every other director has the opportunity of attending to
consult and be consuited with; and there must be a sufficient number present to
constitute a quorum. 3 L. R. 574; 13 L. R. 527; 6 L. R. 759. See 11 Mass. 288;
5 Litt. R. 45; 12 S. & R. 256; 1 Pet. S. C. R. 46. Vide Dane's Ab. h.
5. Directors of a corporation are trustees, and as such are required to
use due diligence and attention to its concerns, and are bound to a faithful
discharge of the duty which the situation imposes. They are liable to the
stockhoders whenever there has been gross negligence or fraud; but not for
unintentional errors. 1 Edw. Ch. R. 513; 8 N. S. 80; 3. L. R. 576. See 4 Mann.
& Gr. 552.
DIRECTORY. That which points out a thing or course of
proceeding; for example, a directory law.
DIRIMANT IMPEDIMENTS, canon law. Those bars to a marriage,
which, if consummated, render it null. They differ from prohibitive
impediments. (q. v.)
DISABILITY. The want of legal capacity to do a thing.
2. Persons may be under disability, 1. To make contracts. 2. To bring
3. - 1. Those who want understanding; as idiots, lunatics, drunkards,
and infants or freedom to exercise their will, as married women, and persons in
duress; or who, in consequence of their situation, are forbidden by the policy
of the law to enter into contracts, as trustees, executors, administrators, or
guardians, are under disabilities to make contracts. See Pa7-ties;
4. - 2. The disabilities to sue are, 1. Alienage, when the alien is an
enemy. Bac. Ab. Abatement, B 3; Id. Alien, E: Com. Dig. Abatement , K; Co.
Litt. 129. 2. Coverture; unless as co-plaintiff with her hushand, a married
woman cannot sue. 3. Infancy; unless he appears by guardian or prochein ami.
Co. Litt. 135, b; 2 Saund. 117, f, n. 1 Bac. Ab. Infancy, K 2 Conn. 357; 7
John. 373; Gould, Pl. c. 5, §54. 4. That no such person as that named has
any existence, is not, or never was, in rerum natura. Com. Dig. Abatement, E
16, 17; 1 Chit. Pl. 435; Gould on Pl. c. 5, §58; Lawes' Pl. 104; 19 John.
308. By the law of England there are other disabilities; these are, 1.
Outlawry. 2. Attainder. 3. Praemunire. 4. Popish recusancy. 5. Monachism.
5. In the acts of limitation it is provided that persons lying under
certain disabilities, such as being non compos, an infant, in prison, or under
coverture, shall have the right to bring actions after the disability shall
have been removed.
6. In the construction of this saving in the acts, it has been decided
that two disabilities shall not be joined when they occur in different persons;
as, if a right of entry accrue to a feme covert, and during the coverture she
die, and the right descends to her infant son. But the rule is otherwise when
there are several disabilities in the same person; as, if the right accrues to
an infant, and before he has attained his full age, he becomes non compos
mentis; in this case he may establish his right after the removal of the last
disability. 2 Prest. Abs. of Tit. 341 Shep. To. 31; 3 Tho. Co. Litt. pl. 18,
note L; 2 H. Bl. 584; 5 Whart. R. 377. Vide Incapacity.
DISAFFIRMANCE. The act by which a person who has entered into a
voidable contract; as, for example, an infant, does disagree to such contract,
and declares he will not abide by it.
2. Disaffirmance is express or implied. The former, when the declaration
is made in terms that the party will not abide by the contract. The latter,
when he does an act which plainly manifests his determination not to abide by
it; as, where an infant made a deed for his land, and, on coming of age, be
made a deed for the same land to another. 2 Dev. & Bat. 320; 10 Pet. 58; 13
Mass. 371, 375.
TO DISAVOW. To deny the authority by which an agent pretends to
have acted as when he has exceeded the bounds of his authority.
2. It is the duty of the principal to fulfil the contracts which have
been entered into by his authorized agent; and when an agent has exceeded his
authority, he ought promptly to disavow such act, so that the other party may
have his remedy against the agent. See Agent; Principal.
DISBURSEMENT. Literally, to take money out of a purse.
Figuratively, to pay out money; to expend money; and some times it signifies to
2. A master of a ship makes dishursements, whether with his own money or
that of the owner, when he defrays expenses for the ship.
3. An executor, guardian, trustee, or other accountant, is said to have
made dishursements when he expended money on account of the estate which he
holds. These, when properly made, are always allowed in the settlement of the
DISCHARGE, practice. The act by which a person in confinement,
under some legal process, or held on an accusation of some crime or
misdemeauor, is set at liberty; the writing containing the order for his being
so set at liberty, is also called a discharge.
2. The discharge of a defendant, in prison under a ca. sa., when made by
the plaintiff, has the operation of satisfying the debt, the plaintiff having
no other remedy. 4 T. R. 526. But when the discharge is in consequence of the
insolvent laws, or the defendant dies in prison, the debt is not satisfied. In
the first place the plaintiff has a remedy against the property of the
defendant, acquired after his discharge, and, in the last case, against the
executors or administrators of the debtor. Bac. Ab. Execution, D; Bingh. on
DISCHARGE OF A CONTRACT. The act of making a contract or
2. Contracts may be discharged by, 1. Payment. 2. Accord and
satisfaction. 8 Com. Dig. 917; 1 Nels. Abr. 18; 1 Lilly's Reg. 10, 16; Hall's
Dig. 7 1 Poth. Ob. 345. 3. Release. 8 Com. Dig. 906; 3 Nels. Ab. 69; 18 Vin.
Ab. 294; 1 Vin. Abr. 192; 2 Saund. 48, a; Gow. on Partn. 225, 230; 15 Serg.
& Rawle, 441; 1 Poth Ob. 897. 4. Set off. 8 Vin. Ab. 556, Discount; Hall's
Dig. 226, 496; 7 Com. Dig. 335, Pleader, 2 G 17; 1 Poth. Ob. 408. 5. The
rescission of the contracts. 1 Com. Dig. 289, note x; 8 Com. Dig. 349; Chit. on
Contr. 276. 6. Extinguishment. 7 Vin: Abr. 367; 14 Serg. & Rawle, 209, 290;
8 Com. Dig. 394; 2 Nels. Abr. 818; 18 Vin. Abr. 493 to 515; 11 Vin. Abr. 461.
7. Confusion, where the duty to pay and the right to receive unite in the same
person. 8 Serg. & Rawle, 24-30 1 Poth. 425. 8. Extinction, or the loss of
the subject matter of the contract. Bac. Abr. 48 8 Com. Dig. *349; 1 Poth. Ob.
429. 9. Defeasance. 2 Saund. 47, n. note 1. 10. The inability of one of the
parties to fulfil his part. Hall's Dig. 40. 11. The death of the contractor, as
where he undertook to teach an apprentice. 12. Bankruptcy. 13. By the act of
limitations. 14. By lapse of time. Angell on Adv. Enjoym. passim; 15 Vin. Abr.
52, 99; 2 Saund. 63, n. b; Id. 66, n. 8; Id. 67, n. 10; Gow on Partn. 235; 1,
Poth. 443, 449. 15. By neglecting to give notice to the, person charged. Chit.
on Bills, 245. 16. By releasing one of two partners. See Receipt. 17. By
neglecting to sue the principal at the request of the surety, the latter is
discharged. 8 Serg. & Rawle, 110. 18. By the discharge of a defendant, who
has been arrested under a capias ad satisfaciendum. 8 Cowen, R. 171. 19. By a
certificate and discharge under the bankrupt laws. Act of Congress of August,
DISCHARGE OF A JURY, practice. The dismissal of a jury who had
been charged with the trial of a cause.
2. Questions frequently arise, whether if the court discharge a jury
before they render a verdict, in a criminal case, the prisoner can again be
tried. In cases affecting life or members, the general rule is that when a jury
have been sworn and charged, they cannot be discharged by the court, or any
other, but ought to give a verdict. But to this rule there are many exceptions;
for example, when the jury are discharged at the request or with the consent of
the prisoner and for his benefit, when ill practices have been used; when the
prisoner becomes insane, or becomes suddenly ill, so that he cannot defend
himself, or instruct others in his defence; when a juror or witness is taken
suddenly ill; when a juror has absented himself, or, on account of his
intoxication, is incapable to perform his duties as a juror. These and many
similar cases, which may be readily imagined, render the discharge of the jury
a matter of necessity, and; under such very extraordinary and striking
circumstances, it is impossible to proceed with the trial, with justice to the
prisoner or to the state.
3. The exception to the rule, then, is grounded on necessity, and not
merely because the jury cannot agree. 6 Serg. & Rawle, 577; 3 Rawle's Rep.
501. In all these cases the court must exercise a just discretion in deciding
what is and what is not a case of necessity. This is the law as to the
exceptions in Pennsylvania. In other states, and some of the courts of the
United States, it has been ruled that the authority of the court to discharge
the jury rests in the sound discretion of the court. 4 Wash. C. C. R. 409; 18
Johns. 187; 2 Johns. Cas. 301; 2 Gall. 364; 9 Mass. 494; 1 Johns. Rep. 66; 2
Johns. Cas. 275 2 Gallis. 364; 13 Wend. 55; Mart. & Yerg. 278; 3 Rawle,
498; 2 Dev. & Bat. 162; 6 S. & R. 577; 2 Misso. 166; 9 Leigh, 613; 10
Yerg. 535; 3 Humph. 70. Vide 4 Taunt. 309.
4. A distinction has been made between capital cases and other criminal
cases, not capital. In cases of misdemeanors and in civil cases, the right to
discharge rests in the sound discretion of the court, which is to be exercised
with great caution. 9 Mass. 494; 3 Dev. & Batt. 115. In Pennsylvania this
point seems not to be settled. 6 Serg. & Rawle, 599. The reader is referred
to the word Jeopardy, and Story on the Const. §1781; 9 Wheat. R. 579;
Rawle on the Const. 132, 133; 1 Chit. Cr. Law, 629; 1 Dev. 491; 4 Ala. R. 173;
2 McLean, 114. See Afforce.