


                                 D.

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 Serg. & 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 consent 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 maliciously, 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. 
159. 

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 Animals. 

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 another. 
     2. Damages are given either for breaches of contracts, or for tortious 
acts. 
     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, with interest 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 house, 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. Sec. 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, 197. 
    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 settling the average. Marsh. Inst. B. 1, c. 14, s. 2, p. 621. See 
Adjustment; Price. 

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 
greater 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 Halst. 284. 
     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 
ground. 

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. 11. 
     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 
inadequate damages. 

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 regulations 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.  Arkansas. 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 any person, and 
payable at any place within the limits 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 the rate of six per centum on the sum therein specified: third, if the 
bill be drawn on any person at any place without the limits 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 in the 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 the 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 endorser. 
    10.  Georgia. 1. Bills on persons in the United States. First, in the 
state. No damages are allowed 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 States, 
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, Sec. 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. 162. 
    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 incidental 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, 
Sec. 8, cl. 1, p. 120. 
    31.-2. When on another state or territory, ten per cent. Rev. Code, 
1835, Sec. 8, cl. 2, p. 120. 3. When on a person out of the United States, 
twenty per cent. Rev. Code, 1835, Sec. 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 therein, 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, Sec. 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 
payment 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 cent. 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 aforesaid. 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 
Gallis. 29. 

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 implies that his person has been more or less 
deteriorated, and that the injured party is not required to specify what 
injury 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 the conclusion 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 sum, 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, because 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. Inst. 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. Sec. 
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 
damages. 
     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 object, 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. 
Sec. 1318; 10 Mass. 459; 7 John. 72; 15 John. 200; 1 Bing. 302; 7 Conn. 291; 
13 Wend. 507; 2 Greenl. Ev. Sec. 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. 385, 6. 

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 action. 
     3. But whether special damage be the gist of the action, or only 
collateral 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. See Gist. 

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 indemnify 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, 
13. 

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 
revenue. 
     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. 471. 

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, given.   
     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. Index, 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 PAIEMENT, 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 immovable. 
     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 magistrate. Lec. 
Elem. Sec. 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 
East, 407. 
     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. 151. 

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. 
277. 

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 the 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. 
387. 

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. 
487. 

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 grievances 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. 
Pl. 585. 
     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 has 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 Wend. 
497. 

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 done 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 thing 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 injunction, 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 signify "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 
atia. 

DE PARTITIONE FACIENDA. The name of a writ for making partition. Vide 
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 
property. 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 value. 

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 
called the 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 Sec. 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 Sec. 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 bar "simpliciter." 
     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. 2111. 

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. 
R. 219. 

DEAN, eccl. law. An ecclesiastical 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 life.
     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 
persons. 
     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, have 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 
ascertained 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, season, &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 memorandum 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 article Circumstances. 
     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 Finch's 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 husband, how long soever otherwise her 
husband 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 legal 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 survivorship 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 France 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 his bail. 
    15.-1st. The contracts of a deceased person are in general not 
affected by his death, and his executors or administrators are required to 
fulfill 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. Sec. 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, Sec. 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 
against 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 or administrators. 
    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. 124. 
     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 conscience as 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 admitted 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. 460. 
     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. Sec. 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 Lex Falcidia. 

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 house, 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 browbeating 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 drawback 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; Encyclopedie, 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 be in 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 bookkeeping, 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. h.t. 
     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; Privilege; Priority. 

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 Wood. 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 agreement, 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 pleaded 
specially. 
     6.-4. For the form of the judgment, see Judgment in debt. Vide 
Remedy. 

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 generally 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 intestate. 

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 himself 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 falsehood 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 mistaken belief. 
     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 possess. 
     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 
defect. 
     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. Sec. 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 jury. 

DECENNARY, Eng. law. A town or tithing, consisting originally of ten 
families of freeholders. Ten tithings composed a hundred. 1 Bl. Com. 114. 

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 took. 

DECIMATION. 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 courts. 
     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 qualities 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; a. 
     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 where 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 action. 
     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 the 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. See Venue. 
     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 trespass. 
    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, Sec. 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 INTENTION. 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 Naturalization. 

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 nation. 
     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 published, 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 nugatory. 
     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. Sec. 428; Rawle on the 
Const. 109. In pleading, to declare, is the act of filing a declaration. 

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 equity.
     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. 637.   

DECRETALS. eccles. law. The decretals are canonical 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 implied. 
     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 Destination. 

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 Conditions. 
     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 
competent officer. 
    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 
Erasure; Interlineation. 
     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 
husband. 3. By the judgment of a competent tribunal. 
    13. According to Sir William Blackstone, 2 Com. 313, deeds may be 
considered as (1), conveyances 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 injury. 
     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, c. 
     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 
indictment. 
     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, Sec. 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 them." 
     9. Defences in equity may be classed in two divisions, namely into 
dilatory 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. R. 586. 

DEFENDANT. A party who is sued in a personal action. Vide Demandant; Parties 
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 recover 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 out. 

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 enumeration 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 
defined.  
     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.v.) 

DEFLORATION. The act by which a woman is deprived of her virginity. 
     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, h.t. 

DEFORCEMENT, Scotch law. The opposition given, or resistance made, to 
messengers or other officers, while they are employed in executing the law. 
     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. (q.v.) 

DEGRADATION, punishment, ecclesiastical law. A censure by which a clergy man 
is deprived of his holy orders, which he had as a priest or deacon. 

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. 
383. 

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, Sec. 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 matter. 

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 Agency, 
39. 
     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, Sec. 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 
counties. 
     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 fulfillment 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. 2076. 
     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, 179. 
     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 rights 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. Sec. 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 Philadelphia. 

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 done 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 
conclusion. 

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 punished 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 comparatively 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 abovementioned 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. Sec. 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 disease. 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 disease 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. Sec. 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, Sec. 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 liable 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 of the 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 
watchfulness 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 the acquirer. 
     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 case. 
     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 brickyard, 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. 
308. 
    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 Jolins. 394. 
    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 
fraud. 
     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 husband and particularly 
whether aged or decrepit. 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 
appearances. 
     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 
pregnancy. 
    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., Sec. 20, p. 41, and Sec. 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 which 
will 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 fulfill his contract, or that he 
refuses to marry at any time. 2 Dow. & Ry. 55; 1 Chit. Pr. 57, note (n), and 
438, note (e) 
     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. 409. 
     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 willful 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 the delivery 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 action. 

DEMANDANT, 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 
activity. 
     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 lands 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. 

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. Litt. 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. 61. 
     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 
artificial 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 
special. 
     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 
interrogatories. 
     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 particular 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 practice; 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, 
Sec. 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, Sec. 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 compensation 
shall 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 dollars. 

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 land office.
     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. 618. 
     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. 1189. 

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 a witness. 

TO DEPOSE, rights. The act of depriving an individual of a public employment 
or office, against his will. Wolff, Sec. 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, Sec. 3; Story on Bailm. c. 2, Sec. 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, 
Sec. 2. 
     3. This distinction was material in the civil law, in respect to the 
remedy, for involuntary 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 Sequestration. 
     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. Sec. 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, Sec. 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 return. 
     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. 
395. 
     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. Sec. 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, Sec. 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 made. 
     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; Jones' Bailm. 8; Story on Bailm. Sec. 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. Sec. 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, Sec. 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. Sec. 90; 1 Bouv. Inst. 
n. 1008, et seq. 

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 on 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 taken. 
     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. Sec. 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. 4 1. 

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. 
Com. 321. 

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 Abrogation. 

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. n. 
1956. 
     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 family. 

DESCENDER. In the descent; as formed on 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 of the 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.
                         ³
          ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿
          ³                                       ³
       (1) John                                (2) Maria
          ³
   ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿
   ³                         ³
(3) Joseph                (4) Charles
                             ³
               ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿
               ³                     ³
            (5) Robert            (6) James
                                     ³
                     ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿
                     ³                     ³
                  (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, 
Pennsylvania, 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 intestate. 
     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 slight 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 North 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, and animals, 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 States, 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 punishment 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 husband 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 instrument. 
     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, Sec. 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. Lond. 

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, Sec. 1. Vide Tyranny; 
Tyrant. 

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 erecting 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, Sec. 9; 3 Wheat. R. 577; 2 Bell's Com. 
2; Ersk. Inst. 2 Sec. 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, Sec. 3; 5 Har. & John. 82. See 
Dedication. 

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 obsolete. (q.v.) 

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. Sec. 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 action 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 determinable 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. Sec. 254; Co. Litt. 27 a, 220; 1 Prest. on Estates, 449; 2 Bl. 
Com. 109; Cruise, tit 1, Sec. 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. 947, 950. 

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 
justice. 

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. Marsh. 
500. 
     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. Litt. 283. 
     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 demanded, 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 Detinet. 

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 
neglect. 
     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 willful 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, L. 
     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 voyage 
insured. 
     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 discharged 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 husband. 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 husband 
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. 
331. 

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. Loans, 42. 

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 la 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. 2. 

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. 358. 

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 name: 

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 digestiae.  


     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 
taken. 
     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 
magistrates, &c. 
     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 
calumny. 
     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 
actions. 
    10.-7. The seventh, in nine titles, embraces whatever concerns 
usufructs, personal servitudes, habitations, the uses of real estate, and 
its appurtenances, and of the sureties required of the usufructuary. 
    11.-8. The eighth book, in six titles, regulates urban and rural 
servitudes. 
    12.-9. The ninth book, in four titles, explains certain personal 
actions. 
    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 
titles. 
    17.-14. This, like the last, regulates certain actions: it has six 
titles. 
    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 of deposit. 
    20.-17. The seventeenth, in two titles, expounds the law of mandates 
and partnership. 
    21.-18. The eighteenth book, in seven titles, explains the contract of 
sale. 
    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 
titles. 
    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 husband 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 
twenty-eighth book. 
    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 
mortis causa. 
    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 res judicata, from the lapse of time, prescription, and

the like. This occupies six titles; the seventh treats of obligations and 
actions. 
    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, treats of appeals, of 
the rights of the public treasury, of those who are in captivity, and of 
their repurchase. 
    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 books. 
    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 beginning 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 enumerations 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 unskillful. Ridley's View of the Civ. & Ecc. Law, pt. 1, 
ch. 2, Sec. 1, and ch. 1, Sec. 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 
republic. 

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 removed. 
     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. Sec. 434. Vide Defence: 
Plea, dilatory. 

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 
personal. 
     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. 1. 

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. 
469. 
     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. h.t.    

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. 
886. 

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 consulted 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.t. 
     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 
stockholders 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 
actions. 
     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 
Parties; Contracts. 
    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 husband, 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, Sec. 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, Sec. 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 fulfill 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 sometimes it signifies to advance money. 
     2. A master of a ship makes disbursements, 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 disbursements when he expended money on account of the estate which he 
holds. These, when properly made, are always allowed in the settlement of 
the accounts. 

DISCHARGE, practice. The act by which a person in confinement, under some 
legal process, or held on an accusation of some crime or misdemeanor, 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 Execution, 266. 

DISCHARGE OF A CONTRACT. The act of making a contract or agreement null. 
     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 fulfill 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, 1841. 

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. Sec. 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. 

DISCHARGED. Released, or liberated from custody. It is not equivalent to 
acquitted in a declaration for a malicious prosecution. 2 Yeates, 475 2 Term 
Rep. 231; 1 Strange, 114; Doug. 205 3 Leon. 100. 

DISCLAIMER. This word signifies. to abandon, to renounce; also the act by  
which the renunciation is made. For example, a disclaimer is the act by 
which a patentee renounces a part of his title of invention, 
     2. In real actions, a disclaimer of the tenancy or title is frequently 
added to the plea of non tenure. Litt. Sec. 391. If the action be one in 
which the demandant cannot recover damages, as formedon in the discender, 
the demandant or plaintiff was bound to pray judgment, &c., and enter, for 
thereby, he has the effect of his suit, et frustra fit per plura quod fieri 
potest per pauciora. But, if the demandant can recover damages and is 
unwilling to waive them, he should answer the disclaimer by averring that 
the defendant is tenant of the land, or claims to be such as the writ 
supposes, and proceed to try the question, otherwise he would lose his 
damages. The same course may be pursued in the action of ejectment, although 
in Pennsylvania, the formality of such a replication to the disclaimer is 
dispensed with, and the fact is tried without it. 5 Watts, 70; 3 Barr, 367. 
Yet, if the plaintiff is willing to waive his claim for damages, there is no 
reason why he may not ask for judgment upon the disclaimer without trial, 
for thereby he has the effect of his suit. Et frustra fit per plura, &c. 

DISCLAIMER, chancery pleading. The renunciation of the defendant to all 
claims to the subject of the demand made by the plaintiff's bill. 
     2. A disclaimer is distinct in substance from an answer, though 
sometimes confounded with it, but it seldom can be put in without an answer 
for if the defendant has been made a party by mistake, having had an 
interest which be has parted with, the plaintiff may require an answer 
sufficient to ascertain whether that is the fact or not. Mitf. Pl. 11, 14, 
253; Coop. Eq. Pl. 309; Story, Eq. Pl. c. 17, Sec. 838 to 844; 4 Bouv. Inst. 
n. 4211-14. 

DISCLAIMER, estates. The act of a party by which be refuses to accept of an 
estate which has been conveyed to him. Vide Assent; Dissent. 
     2. It is said, that a disclaimer of a freehold estate must be in a 
court of record, because a freehold shall not be divested by bare words, in 
pais. Cruise, Dig. tit. 32, c. 2 6, s. 1, 2. 
     3. A disclaimer of tenancy is the act of a person in possession, who 
denies holding the estate from the person claiming to be the owner of it. 2 
Nev. & M. 672. Vide 8 Vin.. Ab. 501; Coote, L. & T. 348, 375; F. N. B. 179 
k; Bull. N. P. 96; 16 East, R. 99; 1 Man. & Gran. 135; S. C. 39 Eng. C. L. 
Rep. 380, 385; 10 B. & Cr. 816; ow, N. P. Cas. 180; 2 Nov. & Man. 673; 1 C. 
M. & R. 398 Co. Litt. 102, a. 

DISCONTINUANCE, pleading. A chasm or interruption in the pleading. 
     2. It is a rule, that every pleading, must be an answer to the whole of 
what is adversely alleged. Com. Dig. Pleader, E 1, ri 4; 1 Saund. 28, n. 3; 4

Rep. 62, a. If, therefore, in an action of trespass for breaking a close, 
and cutting three hundred trees, the defendant pleads as to cutting all but 
two hundred trees, some matter of justification or title, and as to the 
two hundred trees says nothing, the plaintiff is entitled to sign judgment, 
as by nil dicit against him, in respect of the two hundred trees, and to 
demur, or reply to the plea, as to the remainder of the trespasses. On the 
other hand, if he demurs or replies to the plea, without signing, judgment 
for the part not answered, the whole action is said to be discontinued. For 
the plea, if taken by the plaintiff as an answer to the, whole action, it 
being, in fact, a partial answer only, is, in contemplation of law, a mere 
nullity, and a discontinuance takes place. And such discontinuance will 
amount to error on the record; such error is cured, however, after verdict, 
by the statute of Jeo fails, 32 H. VIII. c. 80; and after judgment by nil 
dicit, confession, or non sum informatus, by stat. 4 Ann. c. 16. It is to be 
observed, that as to the plaintiff's course of proceeding, there is a 
distinction between a case like this, where the defendant does not profess 
to answer the whole, and a case where, by the commencement of his plea, he 
professes to do so, but, in fact, gives a defective and partial answer, 
applying to part only. The latter case amounts merely to insufficient 
pleading, and the plaintiff's course, therefore, is not to sign judgment for 
the part defectively answered, but to demur to the whole plea. 1 Saund. 28, 
n. 
     3. It is to be observed, also, that where the part of pleading to which 
no answer is given, is immaterial, or such as requires no separate or 
specific answer for example, if it be mere matter of allegation, the rule 
does not in that case apply. Id. See Com. Dig. Pleader, W; Bac. Abr. Pleas, 
P. 

DISCONTINUANCE, estates. An alienation made or suffered by the tenant in 
tail, or other tenant seised in autre droit, by which the issue in, tail, or 
heir or successor, or those in reversion or remainder, are driven to their 
action, and cannot enter. 
     2. The term discontinuance is used to distinguish those cases where the 
party whose freehold is ousted, can restore it only by action, from those in 
which he ma restore it by entry. Co. Litt. 325 a 3 Bl. Com. 171; Ad. Ej. 35 
to 41; Com. Dig. h.t.; Bac. Ab. h.t.; Vin. Ab. h.t.; Cruise's Dig. Index, 
b.. t..5 2 Saund. Index, h.t. 

DISCONTINUANCE, practice. This takes place when a plaintiff leaves a chasm 
in the proceedings of his cause, as by not continuing the process regularly 
from day to day, and time to time, as he ought. 3 Bl. Com. 296. See 
Continuance. A discontinuance, also, is an entry upon the record that the 
plaintiff discontinues his action. 
     2. The plaintiff cannot discontinue his action after a demurrer joined 
and entered, or after a verdict or a writ of inquiry without leave of court. 
Cro. Jac. 35 1, Lilly's Abr. 473; 6 Watts & Serg. 1417.  The plaintiff is, 
on discontinuance, generally liable for costs. But in some cases, he is not 
so liable. See 3 Johns. R. 249; 1 Caines' R. 116; 1 Johns. R. 143; 6 Johns. 
R. 333; 18 Johns. R. 252; 2 Caines' Rep. 380; Com. Dig. Pleader, W 5; Bac. 
Abr. Pleas' P. 

DISCOUNT, practice. A set off, or defalcation in an action. Vin. Ab. h.t. 
DISCOUNT, contracts. An allowance made upon prompt payment in the purchase 
of goods; it is also the interest allowed in advancing money upon bills of 
exchange, or other negotiable securities due at a future time And to 
discount, signifies the act of buying a bill of exchange, or promissory note 
for a less sum than that which upon its face, is payable. 
     2. Among merchants, the term used when a bill of exchange is 
transferred, is, that the bill is sold, and not that it is discounted. See 
Poth. De l'Usure, n. 128 3 Pet. R. 40. 

DISCOVERT. Not covert, unmarried. The term is applied to a woman unmarried, 
or widow; one not within the bonds of matrimony. 

DISCOVERY, intern. law. The act of finding an unknown country. 
     2. The nations of Europe adopted the principle, that the discovery of 
any part of America gave title to the government by whose subjects, or by 
whose authority it was made, against all European governments. This title 
was to be consummated by possession. 8 Wheat. 543. 

DISCOVERY, practice, pleading. The act of disclosing or revealing by a 
defendant, in his answer to a bill filed against him in a court of equity. 
Vide Bill of Discovery; 8 Vin. Ab. 537; 8 Com. Dig: 515. 

DISCOVERY; rights. The patent laws of the United States use this word as 
synonymous with invention or improvement of July 4, 1836, s. 6. 

TO DISCREDIT, practice, evidence. To deprive one of credit or confidence. 
     2. In general, a party may discredit a witness called by the opposite 
party, who testifies against him, by proving that his character is such as 
not to entitle him to credit or confidence, or any other fact which shows he 
is not, entitled to belief. It is clearly settled, also, that the party 
voluntarily calling a witness, cannot afterwards impeach his character for 
truth and veracity. 1 Moo. & Rob. 414; 3 B. & Cress. 746; S. C. 10 Eng. Com. 
Law R. 220. But if a party calls a witness, who turns out unfavorable, he 
may call another to prove the same point. 2 Campb. R. 556 2 Stark. R. 334; 
S. C. 3 E. C. L. R. 371 1 Nev & Man. 34; 4 B. & Adolph. 193; S. C. 24 E. C. 
L. R. 47; 1 Phil. Ev. 229; Rosc. Civ. Ev. 96. 

DISCREPANCY. A difference between one thing and another, between one writing 
and another; a variance. (q.v.) 
     2. Discrepancies are material and immaterial. A discrepancy is 
immaterial when there is such a difference between a thing alleged, and a 
thing offered in evidence, as to show they are not substantially the same; 
as, when the plaintiff in his declaration for a malicious arrest averred, 
that "the plaintiff, in that action, did not prosecute his said suit, but 
therein made default," and the record was, that he obtained a rule to 
discontinue. 4 M. & M. 2 5 3. An immaterial discrepancy is one which does 
not materially affect the cause as, where a declaration stated that a deed 
bore date in a certain year of our Lord, and the deed was simply dated " 
March 30, 1701." 2 Salk. 658; 19 John. 49 5 Taunt. 707; 2 B. & A. 301; 8 
Miss. R. 428; 2 M'Lean, 69; 1 Metc. 59; 21 Pick. 486. 

DISCRETION, practice. When it is said that something is left to the 
discretion of a judge, it signifies that he ought to decide according to the 
rules of equity, and the nature of circumstances. Louis. Code, art. 3522, 
No. 13; 2 Inst. 50, 298; 4 Serg. & Rawle, 265; 3 Burr. 2539. 
     2. The discretion of a judge is said to be the law of tyrants; it is 
always unknown; it is different in different men; it is casual, and depends 
upon constitution, temper, and passion. In the best, it is oftentimes 
caprice; in the worst, it is every vice, folly, and passion, to which human 
nature is liable. Optima lex quae minimum relinquit arbitrio judicis: 
optimus judex qui minimum sibi. Bac. Aph; 1 Day's Cas.. 80, ii.; 1 Pow. 
Mortg. 247, a; 2 Supp. to Ves. Jr. 391; Toull. liv. 3, n. 338; 1 Lill. Ab. 
447. 
     3. There is a species of discretion which is authorized by express law, 
and, without which, justice cannot be administered; for example, an old 
offender, a man of much intelligence and cunning, whose talents render him 
dangerous to the community, induces a young man of weak intellect to commit 
a larceny in company with himself; they are both liable to be punished for 
the offence. The law, foreseeing such a case, has provided that the 
punishment should be proportioned, so as to do justice, and it has left such 
apportionment to the discretion of the judge. It is evident that, without 
such discretion, justice could not be administered, for one of these parties 
assuredly deserves a much more severe punishment than the other. 

DISCRETION, crim. law. The ability to know and distinguish between good and 
evil; between what is lawful and what is unlawful. 
     2. The age at which children are said to have discretion, is not very 
accurately ascertained. Under seven years, it seems that no circumstances of 
mischievous discretion can be admitted to overthrow the strong presumption 
of innocence, which is raised by an age so tender. 1 Hale, P. C. 27, 8; 4 
Bl. Coin. 23. Between the ages of seven and fourteen, the infant is, prima 
facie, destitute of criminal design, but this presumption diminishes as the 
age increases, and even during this interval of youth, may be repelled by 
positive evidence of vicious intention; for tenderness of years will not 
excuse a maturity in crime, the maxim in these cases being, malitia supplet 
aetatem. At fourteen, children are said to have acquired legal discretion. 1 
Hale, P. C. 25. 

DISCRETIONARY TRUSTS. Those which cannot be duly administered without the 
application of a certain degree of prudence and judgment; as when a fund is 
given to trustees to be distributed in certain charities to be selected by 
the trustees. 

DISCUSSION, civil law. A proceeding, on the part of a surety, by which. the 
property of the principal debtor is made liable before resort can be had to 
the sureties; this is called the benefit of discussion. This is the law in 
Louisiana. Civ. Code of Lo. art. 3014 to 3020. See Domat, 3, 4, 1 to 4; 
Burge on Sur. 329, 343, 348; 5 Toull. p. 544 7 Toull. p. 93; 2 Bouv. Inst. 
n. 1414. 

DISFRANCHISEMENT. The act of depriving a member of a corporation of his 
right as such, by expulsion. 1 Bouv. Inst. n. 192. 
     2. It differs from amotion, (q.v.) which is applicable to the removal 
of an officer from office, leaving him his rights as a member. Willc. on 
Corp. n. 708; Ang. & Ames on Corp. 237; and see Expulsion. 

DISGRACE. Ignominy, shame, dishonor. No witness is required to disgrace 
himself. 13 How. St. Tr. 17, 334; 16 How. St. Tr. 161. Vide Crimination; To 
Degrade. 

DISHERISON. Disinheritance; depriving one of an inheritance. Obsolete. Vide 
Disinherison. 

DISHERITOR. One who disinherits, or puts another out of his freehold. 
Obsolete. 

TO DISHONOR, contr. This term is applied to the nonfulfillment of commercial 
engagements. To dishonor a bill of exchange, or a promissory note, is to 
refuse or neglect to pay it at maturity. 
     2. The holder is bound to give notice to the parties to such instrument 
of its dishonor, and his laches will discharge the indorsers. Chit. on 
Bills, 394, 395, 256 to 278. 

DISINHERISON, civil law. The act of depriving a forced heir of the 
inheritance which the law gives him. 
     2. In Louisiana, forced heirs may be deprived of their legitime, or 
legal portion, and of the seisin granted them by law, for just cause. The 
disinherison must be made in proper form, by name and expressly, and for a 
just cause, otherwise it is null. 
     3. The just causes for which parents may disinherit their children, are 
ten in number. 1. If the child has raised his or her hand to strike the 
parent, or if he or she has actually struck the parent; but a mere threat is 
not sufficient. 2. If the child has been guilty, towards a parent, of 
cruelty, of a crime, or grievous injury. 3. If the child has attempted to 
take away the life of either parent. 4. If the child has accused either 
parent of any capital crime, except, however, that of high treason. 5. If 
the child has refused sustenance to a parent, having the means to afford it. 
6. If the child has neglected to take care of a parent, become insane. 7. If 
a child has refused to ransom them when detained in captivity. 8. If the 
child used any act of violence or coercion to hinder a parent from making a 
will. 9. If the child has refused to become security for a parent, having 
the means, in order to take him out of prison. 10. If the son. or daughter, 
being a minor, marries without the consent of his or her parents. Civil 
Code, art. 1609-1613. 
     4. The ascendants may disinherit their legitimate descendants, coming to

their succession for the first nine causes above expressed, when the, acts 
of ingratitude, there mentioned, have been committed towards them, instead 
of towards their parents; but they cannot disinherit their descendants for 
the last cause. Art. 1614. 
     5. Legitimate children, dying without issue, and leaving a parent,. 
cannot disinherit him or her, unless for the seven following causes, to wit: 
1. If the parent has accused the child of a capital crime, except, however, 
the crime of high treason. 2. If the parent has attempted to take the 
child's life. 3. If the parent has, by any violence or force, hindered the 
child from making a will. 4. If the parent has refused sustenance to the 
child in necessity, having the means of affording it. 5. If the parent has 
neglected to take care of the child when in a state of insanity. 6. If the 
parent has neglected to ransom the child when in captivity. 7. If the father 
or mother have attempted the life the one of the other, in which case the 
child or descendant, making a will, may disinherit the one who has attempted 
the life of the other. Art. 1615. 
     6. The testator must express in the will for what reason he 
disinherited his forced heirs, or any of them, and the other heirs of the 
testator are moreover obliged to prove the facts on which the disinherison 
is founded, otherwise it is null. Art. 1616. Vide Nov 115 Ayl. Pand. B. 2, 
t. 29; Swinb. art 7, 22. 

DISINHERITANCE. The act by which a person deprives his heir of an 
inheritance, who, without such act, would inherit. 
     2. By the common law, any one may give his estate to a stranger, and 
thereby disinherit his heir apparent. Coop. Justin. 495. 7 East, Rep. 106. 

DISINTERESTED WITNESS. One who has no interest in the cause or matter in 
issue, and who is lawfully competent to testify. 
     2. In North Carolina and Tennessee, wills to pass lands must be 
attested by disinterested witnesses. See Attesting Witness; Competent 
Witness; Credible Witness; Respectable Witness, and Witness. 

DISJUNCTIVE TERM. One which is placed between two contraries, by the 
affirming of one of which, the other is taken away: it is usually expressed 
by the word or. Vide 3 Ves. 450; 7 Ves. 454; 2 Rop. Leg. 290.; 1 P. Wms. 
433; 2 Cox, Rep. 213; 2 P. Wms. 283 2 Atk. 643; 6 Ves. 341; 2 Ves. sr. 67; 2 
Str. 1175; Cro. Eliz. 525; Pollexf. 645; 1 Bing. 500; 3 T. R. 470; 1 Ves. 
sr. 409; 3 Atk. 83, 85; Ayl. Pand. 56; 2 Miles, Rep. 49. 
     2. In the civil law, when a legacy is given to Caius or Titius, the 
word or is considered and, and both Caius and Titius are entitled to the 
legacy in equal parts. 6 Toull. n. 704. See Copulative term; Construction, 
subdivision, And; Or.. Also, Bac. Ab. Conditions, P 5. 

DISMES. Another name for tithes. Dime, (q.v.) a piece of federal money, is 
sometimes improperly written disme. 

TO DISMISS A CAUSE, practice. A term used in courts of chancery for removing 
a cause out of court without any further hearing. 

DISOBEDIENCE. The want of submission to the orders of a superior. 
     2. In the army, disobedience is a misdemeanor. 
     3. For disobedience to parents, children may be punished; and 
apprentices may be imprisoned for disobedience to the lawful commands of 
their master. Vide Correction. 

DISORDERLY HOUSE, crim. law. A house, the inmates of which believe so badly 
as to become a nuisance to the neighborhood. 
     2. The keeper of such house may be indicted for keeping a public 
nuisance. Hardr. 344; Hawk. b. 1, c. 78, s. 1 and 2 Bac. Ab. Inns, A; 1 
Russ. on Cr. 298; 1 Wheel. C. C. 290; 1 Serg. & Rawle, 342; 2 Serg. & Rawle, 
298; Bac. Ab. Nuisances, A; 4 Chit. BI.. Com. 167, 8, note. The husband must 
be joined with the wife in an indictment to suppress a disorderly house. 
Justice's Case, Law 16; 1 Shaw, 146. Vide Bawdy house; Ill fame. 

DISPARAGEMENT. An injury by union or comparison with some person or thing of 
inferior rank or excellence; as, while the infant was in ward, by the 
English law, the guardian had the power of tendering him a suitable match 
without disparagement. 2 Bl. Com. 70. 

TO DISPAUPER, Eng. law. To deprive a person of the privilege of suing in 
forma pauperis. (q.v.) 
     2. When a person has been admitted to sue in forma pauperis, and, 
before the suit is ended, it appears that the party. has become the owner of 
a sufficient estate real or personal, or has been guilty of some wrong, he 
may be dispaupered. 

DISPENSATION. A relaxation of law for the benefit or advantage of an 
individual. In the United States, no power exists, except in the 
legislature, to dispense with law, and then it is not so much a dispensation 
as a change of the law. 

TO DISPONE, Scotch law. This is a technical word, which implies, it is said, 
a transfer of feudal property by a particular deed, and is not equivalent to 
the term alienate; but Lord Eldon says, "with respect to the word dispone, 
if I collect the opinions of a majority of the judges rightly, I am of 
opinion that the word dispone would have the same effect as the word 
alienate.) (q.v.) Sandford on Entails, 179, note. 

DISPOSITION, French law. This word has several acceptations; sometimes it 
signifies the effective marks of the will of some person; and at others the 
instrument containing those marks. 
     2. The dispositions of man make the dispositions of the law to cease; 
for example, when a man bequeaths his estate, the disposition he makes of 
it, renders the legal disposition of it, if he had died intestate, to cease. 

DISSEISED pleading. This is a word with a technical meaning, which, when 
inserted in an indictment for forcible entry and detainer, has all the force 
of the words expelled or unlawfully, for the last is superfluous, and the 
first is implied in the word disseised. 8 T. R. 357; Cro. Jac. 32; vide 3 
Yeates' R. 39; S. C. 4 Dall. Rep. 212. 

DISSEISEE, torts. One who is wrongfully put out of possession of his lands. 

DISSEISIN, torts. The privation of seisin. It takes the seisin or estate 
from one man and places it in another. It is an ouster of the rightful owner 
from the seisin or estate in the land, and the commencement of a new estate 
in the wrong doer. It may be by abatement, intrusion, discontinuance, or 
deforcement, as well as by disseisin, properly so called. Every 
dispossession is not a disseisin. A disseisin, properly so called, requires 
an ouster of the freehold. A disseisin at election is not a disseisin in 
fact; 2 Prest. Abs. tit. 279, et seq.; but by admission only of the injured 
party, for the purpose of trying his right in a real action. Co. Litt. 277; 
3 Greenl. 316; 4 N. H. Rep. 371; 5 Cowen, 371; 6 John. 197; 2 Fairf. 309, 2 
Greenl. 242; 5 Pet. 402; 6 Pick. 172. 
     2. Disseisin may be effected either in corporeal inheritances, or 
incorporeal. Disseisin of things corporeal, as of houses, lands, &c., must 
be by entry and actual dispossession of the freehold; as if a man enters, by 
force or fraud, into the house of another, and turns, or at least, keeps him 
or his servants out of possession. Disseisin of incorporeal hereditaments 
cannot be an actual dispossession, for the subject itself is neither capable 
of actual bodily possession nor dispossession. 3 B1. Com. 169, 170. See 15 
Mass. 495 6 John. R. 197; 2 Watts, 23; 6 Pick. 172 1 Verm. 155; 11 Pet. R. 
41; 10 Pet. R. 414; 14 Pick. 374; 1 Dana's R. 279; 2 Fairf. 408; 11 Pick. 
193; 8 Pick. 172; 8 Vin. Ab. 79; 1 Swift's Dig. 504; 1 Cruise, *65; Arch. 
Civ. Pl. 12; Bac. Ab. h.t.; 2 Supp. to Ves. Jr. 343; Dane's Ab. Index, h.t.;
1 Chit. Pr. 374, note (r.) 

DISSEISOR, torts. One who puts another out of the possession of his lands 
wrongfully. 

DISSENT, contracts. A disagreement to something which has been done. It is 
express or implied. 
     2. The law presumes that every person to whom a conveyance has been 
made has given his assent to it, because it is supposed to be for his 
benefit. To rebut the presumption, his dissent must be expressed. Vide 4 
Mason, R. 206; 11 Wheat. R. 78; 1 Binn. R. 502; 2 Binn. R. 174; 6 Binn. R. 
338; 12 Mass. R. 456; 17 Mass. R. 552; 3 John. Ch. R. 261; 4 John. Ch. R. 
136, 529; and dissent, and the authorities there cited. 

DISSOLUTION, contracts. The dissolution of a contract, is the annulling its 
effects between the contracting parties. 
     2. This dissolution of a partnership, is the putting an end to the 
partnership. Its dissolution does not affect contracts made between the. 
partners and others; so that they are entitled to all their rights, and they 
are liable on their obligations, as if the partnership had not been 
dissolved. Vide article Partnership and 3 Kent, Com. 27 Dane's Ab. h.t.; 
Gow on Partn. Index, h.t.; Wats. on Partn. h.t.; Bouv. Inst. Index, h.t. 

DISSOLUTION, practice. The act of rendering a legal proceeding null, or 
changing its character; as, a foreign attachment in Pennsylvania is: 
dissolved by entering bail to the action. Injunctions are dissolved by the 
court. 

TO DISSUADE, crim. law. To induce a person not to do an act. 
     2. To dissuade a witness from giving evidence against a person 
indicted, is an indictable offence at common law. Hawk. B. 1, c. 2 1, s. 1 
5. The mere attempt to stifle evidence, is also criminal, although the 
persuasion should not succeed, on the general principle that an incitement 
to commit a crime, is in itself criminal. 1 Russ. on Cr. 44; 6 East, R. 464; 
2 East, R. 6, 21; 2 Str. 904; 2 Leach, 925. Vide To Persuade. 

DISTRACTED PERSON, This term is used in the statutes of Illinois; Rev. Laws 
of Ill. 1833, p. 332; and New Hampshire; Dig. Laws of N. H. 1830, p. 339; to 
express a state of insanity. 

TO DISTRAIN. To take an keep any personal chattel in custody, as a distress. 
(q.v.) 

DISTRAINOR. One who makes a distress of goods and chattels to enforce some 
right. 

DISTRESS, remedies. A distress is defined to be, the taking of a personal 
chattel, without legal process, from the possession of the wrong doer, into 
the hands of the party grieved, as a pledge for the redress of an injury, 
the performance of a duty, or the satisfaction of a demand. 3 Bl. Com. 6. It 
is a general rule, that a man who has an entire duty, shall not split the 
entire sum and distrain for part of it at one time, and part of it at 
another time. But if a man seizes for the whole sum that is due him, but 
mistakes the value of the goods distrained, there is no reason why he should 
not afterwards complete his execution by making a further seizure. 1 Burr. 
589. It is to be observed also, that there is an essential difference 
between distresses at common law and distresses prescribed by statute. The 
former are taken nomine penae, (q.v.) as a means of compelling payment; the 
latter are similar to executions, and are taken as satisfaction for a duty. 
The former could not be sold the latter might be. Their only similarity is, 
that both are replevisable. A consequence of this difference is, that averia 
carucae are distrainable in the latter case, although there be other 
sufficient distress. 1 Burr. Rep. 588. 
     2. The remedy by distress to enforce the payment of arrears of rent is 
so frequently adopted by landlords, (Co. Lit. 162, b,) that a considerable 
space will be allotted to this article under the following heads: 1. The 
several kinds of rent for which a distress may be made. 2. The persons who 
may make it. 3. The goods which may be distrained. 4. The time when a 
distress may be made. 5. In what place it may be made. 6. The manner of 
making it, and disposing of the goods distrained. 7. When a distress will be 
a waiver of a forfeiture of the lease. 
     3.-1. Of the rents for which a distress may be made. 1. A distress 
may generally be taken for any kind of rent in arrear, the detention of 
which, beyond the day of payment, is an injury to him who is entitled to 
receive it. 3 Bl. Com. 6. The rent must be reserved out of a corporeal 
hereditament, and must be certain in its quantity, extent, and time of 
payment, or at least be capable of being reduced to certainty. Co. Lit. 96, 
a.; 13 Serg. & Rawle, 64; 3 Penn. R. 30. An agreement that the lessee pay no 
rent, provided he make repairs, and the value of the repairs is uncertain, 
would not authorize the landlord to distrain. Addis. 347. Where the rent is 
a certain quantity of grain, the landlord may distrain for so many bushels 
in arrear, and name the value, in order that if the goods should not be 
replevied, or the arrears tendered, the officer may know what amount of 
money is to be raised by the sale, and in such case the tenant may tender 
the arrears in grain. 13 Serg. & Rawle, 52; See 3 Watts & S. 531. But where 
the tenant agreed, instead of rent, to render " one-half part of all the 
grain of every kind, and of all hemp, flax, potatoes, apples, fruit, and 
other produce of whatever kind that should be planted, raised, sown or 
produced, on or out of the demised premises, within and during the terms,", 
the landlord cannot, perhaps, distrain at all; he cannot, certainly, 
distrain for a sum of money, although he and the tenant may afterwards have 
settled their accounts, and agreed that the half of the produce of the land 
should be fixed in money, for which the tenant gave his note, which was not 
paid. 1 3 Serg. & Rawle, 5 2. But in another case it was held, that on a 
demise of a grist mill, when the lessee is to render one-third of the toll, 
the lessor may distrain for rent. 2 Rawle, 11. 
     4.-2. With respect to the amount of the rent, for which a lessor may 
in different cases be entitled to make a distress, it may be laid down as a 
general rule, that whatever can properly be considered as a part of the 
rent, may be distrained for, whatever be the particular mode in which it is 
agreed to be paid. So that where a person entered into possession of certain 
premises, subject to the approbation of the landlord, which was afterwards 
obtained, by agreeing to pay in advance, rent from the time be came into 
possession, it was, in England, determined that the landlord might distrain 
for the whole sum accrued before and after the agreement. Cowp. 784. For on 
whatever day the tenant agrees that the rent shall be due, the law gives the 
landlord the power of distraining for it at that time. 2 T. R. 600. But see 
13 S. & R. 60. In New York, it was determined, that an agreement that the 
rent should be paid in advance, is a personal covenant on which an action 
lies, but not distress. 1 Johns. R. 384. The supreme court of Pennsylvania 
declined deciding this point, as it was not necessarily before them. 13 
Serg. & Rawle, 60. Interest due on rent cannot, in general, be distrained 
for; 2 Binn. 146; but may be recovered from the tenant by action, unless 
under particular circumstances. 6 Binn. 159. 
     5.-2. Of the persons entitled to make a distress. 1. When the 
landlord is sole owner of the property out of which rent is payable to him, 
he may, of course, distrain in his own right. 
     6.-2. Joint tenants have each of them an estate in every part of the 
rent; each may, therefore, distrain alone for the whole, 3 Salk. 207, 
although he must afterwards account with his companions for their respective 
shares of the rent. 3 Salk. 17; 4 Bing. 562; 2 Brod. & B. 465; 5 Moore, 297 
Y. B. 15 H. VIII, 17, a; 1 Chit. Pr. 270; 1 Tho. Co. Litt. 783, note R; Bac. 
Ab. Account; 5 Taunt. 431; 2 Chit. R. 10; 3 Chit. Pl. 1297. But one joint 
tenant cannot avow solely, because the avowry is always upon the right, and 
the right of the rent is in all of them. Per Holt, 3 Salk. 207. They may all 
join in making the distress, which is the better way. 
     7.-3. Tenants in common do not, like joint tenants, hold by one title 
and by one right, but by different titles, and have several estates. 
Therefore they should distrain separately, each for his share, Co. Lit. s. 
317, unless the rent be of an entire thing, as to render a horse, in which 
case, the thing being incapable of division, they must join. Co. Lit. 197, 
a. Each tenant in common is entitled to receive, from the lessee, his 
proportion of the rent; and therefore, when a person holding under two 
tenants in common, paid the whole rent to one of them, after having received 
a notice to the contrary from the other, it was held, that the party who 
gave the notice might afterwards distrain. 5 T. R. 246. As tenants in common 
have no original privity of estate between them, as to their respective 
shares, one may lease his part of the land to the other, rendering rent, for 
which a distress may be made, as if the land had been demised to a stranger. 
Bro. Ab. tit. Distress, pl. 65. 
     8.-4. It may be, perhaps, laid down as a general rule, that for rent 
due in right of the wife, the husband may distrain alone; 2 Saund. 195; even 
if it accrue to her in the character of executrix or administratrix. Ld. 
Raym. 369. With respect to the remedies for the recovery of the arrears of a 
rent accruing in right of his wife, a distinction is made between rent due 
for land, in which the wife has a chattel interest, and rent due in land, in 
which she has an estate of freehold and inheritance. And in some cases, a 
further distinction must be made between a rent accruing before and rent 
accruing after the coverture. See, on this subject, Co. Lit. 46, b, 300, a; 
351, a; 1 Roll. Abr. 350; stat; 32 Hen. VIII. c. 37, s. 3. 
     9.-5. A tenant by the curtesy, has an estate of freehold in the lands 
of his wife, and in contemplation of law, a reversion on all land of the 
wife leased for years or lives, and may distrain at common law for all rents 
reserved thereon. 
    10.-6. A woman may be endowed of rent as well as of land; if a 
husband, therefore, tenant in fee, make a lease for years, reserving rent, 
and die, his widow shall be endowed of one-third part of the reversion by 
metes and bounds, together with a third part of the rent. Co. Litt. 32, a. 
The rent in this base is apportioned by the act of law, and therefore if a 
widow be endowed of a third part of a rent in fee, she may distrain for a 
third part thereof, and the heir shall distrain for the other part of the 
rent. Bro. Abr. tit. Avowry, pl. 139. 
    11.-7. A tenant for his own life or that of another, has an estate of 
freehold, and if he make a lease for years, reserving rent, he is entitled 
to distrain upon the lessee. It may here be proper to remark, that at common 
law, if a tenant for life made a lease for years, if be should so long live, 
at a certain rent, payable quarterly, and died before the quarter day, the 
tenant was discharged of that quarter's rent by the act of God. 10 Rep. 128. 
But the 11 Geo. II. c. 19, s. 15, gives an action to the executors or 
administrators of such tenant for life. 
    12.-8. By the statute 32 Henry VIII. c. 37, s. 1, "the personal 
representatives of tenants in fee, tail, or for life, of rent-service, rent-
charge, and rents-seek, and fee farms, may distrain for, arrears upon the 
land charged with the payment, so long as the lands continue in seisin or 
possession of the tenant in demesne, who ought to have paid the rent or fee 
farm, or some person claiming under him by purchase, gift or descent." By 
the words of the statute, the distress must be made on the lands while in 
the possession of the "tenant in demesne," or some person claiming under 
him, by purchase, gift or descent; and therefore it extends to the 
possession of those persons only who claim under the tenant, and the statute 
does not comprise the tenant in dower or by the curtesy, for they come in, 
not under the party, but by act of law. 1 Leon. 302. 
    13.-9. The heir entitled to the reversion may distrain for rent in 
arrear which becomes due after the ancestor's death; the rent does not 
become due till the last minute of the natural day, and if the ancestor die 
between sunset and midnight, the heir, and not the executor, shall have the 
rent. 1 Saund. 287. And if rent be payable at either of two periods, at the 
choice of the lessee, and the lessor die between them, the rent being 
unpaid, it will go to the heir. 10 Rep. 128, b. 
    14.-10. Devisees, like heirs, may distrain in respect of their 
reversionary estate; for by a devise of the reversion the rent will pass 
with its incidents. 1 Ventr. 161. 
    15.-11. Trustees who have vested in them legal estates, as trustees of 
a married woman, or assignees of an insolvent, may of course distrain in 
respect of their legal estates, in the same manner as if they were 
beneficially interested therein. 
    16.-12. Guardians may make leases of their wards' lands in their, own 
names, which will be good during the minority of the ward. and, 
consequently, in respect of such leases, they possess the same power of 
distress as other persons granting leases in their own rights. Cro. Jac. 55, 
98. 
    17.-13. Corporations aggregate should generally make and accept leases 
or other conveyances of lands or rent, under their common seal. But if a 
lease be made by an agent of the corporation, not under their common seal, 
although it may be invalid as a lease, yet if the tenant hold under it, and 
pay rent to the bailiff or agent of the corporation, that is sufficient to 
constitute a tenancy at least from year to year, and to entitle the 
corporation to distrain for rent.  New Rep. 247. But see Corporation. 
    18.-3. Of the things which may or may not be distrained. Goods found 
upon the premises demised to a tenant are generally liable to be distrained 
by a landlord for rent, whether such goods in fact belong to the tenant or 
other persons. Coin. Dig. Distress, B 1. Thus it has been held, that a 
gentleman's chariot, which stood in a coach-house belonging to a common 
livery stable keeper, was distrainable by the landlord for the rent due him 
by the livery stable keeper for the coach-house. 3 Burr. 1498. So if cattle 
are put on the tenant's land by consent of the owners of the beasts, they 
are distrainable by the landlord immediately after for rent in arrear. 3 Bl. 
Com. 8. But goods are sometimes privileged from distress, either absolutely 
or conditionally. 
   19. First. Those of the first class are privileged, 1. In respect of the 
owner of 2. Because no one can have property in them. 3. Because they cannot 
be restored to the owner in the same plight as when taken. 4. Because they 
are fixed to the freehold. 5. Because it is against the policy of law that 
they should be distrained. 6. Because they are in the custody of the law. 7. 
Because they are protected by some special act of the legislature. 
    20.-1. The goods of a person who has some interest, in the land 
jointly with the distrainer, as those of a joint tenant, although found upon 
the land, cannot be distrained. The goods of executors and administrators, 
or of the assignee of an insolvent regularly discharged according to law, 
cannot, in Pennsylvania, be distrained for more than one year's rent. The 
goods of a former tenant, rightfully on the land, cannot be distrained for 
another's rent. For example, a tenant at will, if quitting upon notice from 
his landlord, is entitled to the emblements or growing crops; and therefore 
even after they are reaped, if they remain on the land for the purpose of 
husbandry, they cannot be distrained for rent due by the second tenant. 
Willes, 131. And they are equally protected in the hands of a vendee. Ibid. 
They cannot be distrained, although the purchaser allow them to remain uncut 
an unreasonable time after the are ripe. 2 B. & B. 862; 5 Moore, 97, S. C. 
    21.-2. As every thing which is distrained is presumed to be the 
property of the tenant, it will follow that things wherein no man can have 
an absolute and valuable property, as cats, dogs, rabbits, and all animals 
ferae naturae, cannot be distrained. Yet, if deer, which are of a wild 
nature, are kept in a private enclosure, for the purpose of sale or profit, 
this so far changes their nature by reducing them to a kind of stock or 
merchandise, that they may be distrained for rent. 3 B1. Com. 7. 
    22.-3. Such things as cannot be restored to the owner in the same 
plight as when they were taken, as milk, fruit, and the like, cannot be 
distrained. 3 Bl. Com. 9. 
    23.-4. Things affixed or annexed to the freehold, as furnaces, windows, 
doors, and the like, cannot be distrained, because they are not personal 
chattels, but belong to the realty. Co. Litt. 47, b. And this rule extends. 
to such things as are essentially a part of the freehold, although for a 
time removed therefrom, as a millstone removed to be picked; for this is 
matter of necessity, and it still remains in contemplation of law, a part of 
the freehold. For the same reason an anvil fixed in a smith's shop cannot be 
distrained. Bro. Abr. Distress, pl. 23; 4 T. R. 567; Willis, Rep. 512 6 
Price's R. 3; 2 Chitty's R. 167. 
    24.-5. Goods are privileged in cases where the proprietor is either 
compelled, from necessity to place his goods upon the land, or where be does 
so for commercial purposes. 17 S. & R. 139; 7 W. & S. 302; 8 W. & S. 302; 4 
Halst. 110; 1 Bay, 102, 170; 2 McCord, 39; 3 B. & B. 75; 6 J. B. Moore, 243; 
1 Bing. 283; 8 J. B. Moore, 254; 2 C. & P. 353; 1 Cr. M. 380. In the first 
case, the goods are exempt, because the owner has no option; hence the goods 
of a traveller in an inn are exempt from distress. 7 H. 7, M. 1, p. 1.; 
Hamm. N. 380, a.; 2 Keny. 439; Barnes, 472; 1 Bl. R. 483; 3 Burr. 1408. In 
the other, the interests of the community require that commerce should be 
encouraged, and adventurers will not engage in speculations, if the property 
embarked is to be made liable for the payment of debts they never 
contracted. Hence goods landed at a wharf, or deposited in a warehouse on 
storage, cannot be distrained. 17 Serg. & Rawle, 138; 6 Whart. R. 9, 14; 9 
Shepl. 47; 23 Wend. 462. Valuable things in the way of trade are not liable 
to distress; as, a horse standing in a smith's shop to be shod, or in a 
common inn; or cloth at a tailor's house to be made into a coat; or corn 
sent to a mill to be ground, for these are privileged and protected for the 
benefit of trade. 3 Bl. Com. 8. On the same principle it has been decided, 
that the goods of a boarder are not liable to be distrained for rent due by 
the keeper of a boarding house; 5 Whart. R. 9; unless used by the tenant 
with the boarder's consent, and without that of the landlord: 1 Hill , 565. 
    25.-6. Goods taken in execution cannot be distrained. The law in some 
states gives the landlord the right to claim payment out of the proceeds of 
an execution for rent, not exceeding one year, and he is entitled to payment 
up to the day of seizure, though it be in the middle of a quarter 2 Yeates, 
274; 5 Binn. 505; but he is not entitled to the day of sale. 5 Binn. 505. 
See 18 Johns. R. 1. The usual practice is, to give notice to the, sheriff 
that there is a certain sum due to the landlord as arrears of rent; which 
notice ought to be given to the sheriff, or person who takes the goods in 
execution upon the premises for the sheriff is, not bound to find out 
whether rent is due, nor is he liable to an action, unless there has been a 
demand of rent before the removal. 1 Str. 97, 214; 3 Taunt. 400 2 Wils. 140; 
Com. Dig. Rent, D 8; 11 Johns. R. 185. This notice can be given by the 
immediate landlord only a ground landlord is not entitled to his rent out of 
the goods of the under tenant taken in execution. 2 Str. 787. And where 
there are two executions, the landlord is not entitled to a year's rent on 
each. See Str. 1024. Goods distrained and replevied may be distrained by 
another landlord for subsequent rent. 2 Dall. 68. 
    26.-7. By some special acts of the legislature it is provided that tools 
of a man's trade, some designated household furniture, school books, and the 
like, shall be exempted from distress, execution, or sale. And by a recent 
Act of Assembly of Pennsylvania, April 9, 1849, property to the value of 
three hundred dollars, exclusive of all wearing apparel of the defendant and 
his family, and all bibles and school books in use in the family, are 
exempted from levy and sale on execution, or by distress for rent. 
    27.-Secondly. Besides the above mentioned goods and chattels, which 
are absolutely privileged from distress, there are others which are 
conditionally so, but which may be distrained under certain circumstances. 
These are, 1. Beasts of the plough, which are exempt if there be a 
sufficient distress besides on the land whence the rent issues. Co. Litt. 
47, a; Bac. Abr. Distress, B. 2. Implements of trade; as, a loom in actual 
use; and there is a sufficient distress besides. 4 T. R. 565. 3. Other 
things in actual use,; as, a horse whereon a person is riding, an axe in the 
hands of. a person cutting wood, and the like. Co. Litt. 4 7, a. 
    28.-4. The time when a distress may be made. 1. The distress cannot be 
made till the rent is due by the terms of the lease; as rent is not due 
until the last minute of the natural day on which it is reserved, it follows 
that a distress for rent cannot be made on that day. 1 Saund. 287; Co. Litt. 
47, b. n. 6. A previous demand is not generally necessary, although there be 
a clause in the lease, that the lessor may distrain for rent," being 
lawfully demanded Bradb. 124; Bac. Abr. Rent, 1; the making of the distress 
being a demand though it is advisable to make such a demand. But where a 
lease provides for a special demand; as, if the clause were that if the rent 
should happen to be behind it should be demanded at a particular place not 
on the land; or be demanded of the person of the tenant; then such special 
demand is necessary to support the distress. Plowd. 69 Bac. Abr. Rent, I. 
    29.-2 A distress for rent can only be made during the day time. Co. 
Litt. 142, a. 
    30.-3. At common law a distress could not be made after the expiration 
of the lease to remedy this evil the legislature of Pennsylvania passed an 
act making it "lawful for any person having any rent in arrear or due upon 
any lease for life or years or at will, ended or determined, to distrain for 
such arrears after the determination of the said respective leases, in the 
same manner as they might have done, if such lease had not been ended: 
provided, that such distress be made during the continuance of such lessor's 
title or interest.", Act of March 21, 1772, s. 14, 1 Smith's Laws of Penna. 
375. 4. In the city and county of Philadelphia, the landlord may, under 
certain circumstances, apportion his rent, and distrain before it becomes 
due. See act of March 25, 1825, s. 1, Pamph. L. 114. 
    31.-5. In what place a distress may be made. The distress may be made 
upon the land, or off the land. 1. Upon the land. A distress generally 
follows the rent, and is consequently confined to the land out of which it 
issues. If two pieces of land, therefore, are let by two separate demises, 
although both be contained in one lease, a joint distress cannot be made for 
them, for this would be to make the rent of one issue out of the other. Rep. 
Temp. Hardw. 245; S. C. Str. 1040. But where lands lying in different 
counties are let together by one demise, at one entire rent, and it does not 
appear that the lands are separate from each other, one distress may be made 
for the whole rent. Ld. Raym. 55; S. C. 12 Mod. 76. And, where rent is 
charged upon land, which is afterwards held by several tenants, the grantee 
or landlord may distrain for the whole upon the land of any of them; because 
the whole rent is deemed to issue out of every part of the land. Roll. Abr. 
671. If there be a house on the land, the distress may be made in the house; 
if the outer door or window be open, a distress may be taken out of it. 
Roll. Abr. 671. And if an outer door be open, an inner door may be broken 
open for the purpose of taking a distress. Comb. 47; Cas. Temp. Hard. 168. 
Barges on a river, attached to the leased premises (a wharf) by ropes, 
cannot be distrained. 6 Bingh. 150; 19 Eng. Com. Law R. 36. 
    32.-2. Off the land. By the 5th and 6th sections of the Pennsylvania 
act of assembly of March 21, 1772, copied from the 11 Geo. II. c. 19, it is 
enacted, that if any tenant for life, years, at will, or otherwise, shall 
fraudulently or clandestinely convey his goods off the premises to prevent 
the landlord from distraining the same, such person, or any person by him 
lawfully authorized, may, within thirty days after such conveyance, seize 
the same, wherever they shall be found, and dispose of them in such manner 
as if they had been distrained on the premises. Provided, that the landlord 
shall not distrain any goods which shall have been previously sold, bona 
fide, and for a valuable consideration, to one not privy to the fraud. To 
bring a case within the act, the removal must take place after the rent 
becomes due, and must be secret, not made in open day, for such removal 
cannot be said to be clandestine within the meaning of the act. 3 Esp. N. P. 
C. 15; 12 Serg. & Rawle, 217; 7 Bing. 422; 1 Moody & Malkin, 585. It has 
however been made a question, whether goods are protected that were 
fraudulently removed on the night before the rent had become due. 4 Camp. 
135. The goods of a stranger cannot be pursued; they can be distrained only 
while they are, on the premises. 1 Dall. 440. 
    33.-6. Of the manner of making a distress. 1. A distress for rent may 
be made either by the person to whom it is due, or, which is the preferable 
mode, by a constable, or bailiff, or other officer properly authorized by 
him. 
    34.-2. If the distress be made by a constable, it is necessary that he 
should be properly authorized to make it; for which purpose the landlord 
should give him a written authority, or; as it is usually called, a warrant 
of distress; but a subsequent assent and recognition given by the party for 
whose use the distress has been made, is sufficient. Hamm. N. P. 382. 
    35.-3. When the constable is thus provided with the requisite 
authority to make a distress, he, may distrain by seizing the tenant's 
goods, or some of them in the name of the whole, and declaring that he takes 
them as a distress for the sum expressed in the warrant to be due by the 
tenant to the landlord, and that he takes them by virtue of the said 
warrant; which warrant he ought, if required, to show. 1 Leon. 50. 
    36.-4. When making the distress it ought to be made for the whole 
rent; but if goods cannot be found at the time, sufficient to satisfy the 
rent, or the party mistake the value of the thing distrained, he may make a 
second distress. Bradb. 129, 30; 2 Tr. & H. Pr. 155; supra 1. 
    37.-5. As soon as a distress is made, an inventory of the goods 
distrained should be made, and a copy of it delivered to the tenant, 
together with a notice of taking such distress, with the cause for taking 
the same. This notice of taking a distress is not required by the statute to 
be in writing; and, therefore, parol or verbal notice may be given either to 
the tenant on the premises, or to the owner of the goods distrained. 12 Mod. 
76. And although notice is directed by the act to specify the cause of 
taking, it is not material whether it accurately state the period of the 
rent's becoming due; Dougl. 279; or even whether the true cause of taking 
the goods be expressed therein. 7 T. R. 654. If the notice be not personally 
given, it should be left in writing at the tenant's house, or according to 
the directions of the act, at the mansion-house or other most notorious 
place on the premises charged with the rent distrained for. 
    38.-6. The distrainor may leave or impound the distress on the 
premises for the five days mentioned in the act, but becomes a trespasser 
after that time. 2 Dall. 69. As in many cases it is desirable for the sake 
of the tenant that the goods should not be sold as soon as the law permits, 
it is usual for him to sign an agreement or consent to their remaining on 
the premises for a longer time, in the custody of the distrainor, or of a 
person by him appointed for that purpose. While in his possession, the 
distrainor cannot use or work cattle distrained, unless it be for the 
owner's benefit, as to milk a cow, or the like. 5 Dane's Abr. 34. 
    39.-7. Before the goods are sold they must be appraised by two 
reputable free-holders, who shall take an oath or affirmation to be 
administered by the sheriff, under-sheriff, or coroner, in the words 
mentioned in the act. 
    40.-8. The next requisite is to give six days public notice of the 
time and place of sale of the things distrained; after which, if they have 
not been replevied, they may be sold by the proper officer, who may apply 
the proceeds to the payment and satisfaction of the rent, and the expenses 
of the distress, appraisement and sale. The over-plus, if any, is to be paid 
to the tenant. 
    41.-7. When a distress will be a waiver of a forfeiture of the lease. 
On this subject, see 1 B. & Adol. 428. The right of distress, it seems, does 
not exist in the New England states. 4 Dane's Ab. 126; 7 Pick. R. 105; 3 
Griff. Reg 404; 4 Griff. Reg. 1143; Aik. Dig. 357, nor in Alabama, 
Mississippi, North Carolina, nor Ohio; and in Kentucky, the right is limited 
to a distress for a pecuniary rent. 1 Hill. Ab. 156. Vide, generally, Bouv. 
Inst. Index, h . t.; Gilb. on Distr. by Hunt; Bradb. on Distr.; Com. Dig.
h.t.; Bac. Ab. h.t.; Vin. Ab. h.t.; 2 Saund. Index, h.t.; Wilk. on Repl.; 3 
Chit. Bl. Com. 6, note; Crabb on R. P. Sec. 222 to 250. 

DISTRESS INFINITE, English practice. A process commanding the sheriff to 
distrain a person from time to time, and continually afterwards, by taking 
his goods by way of pledge, to enforce the performance of something due from 
the party distrained upon. In this case, no distress can be immoderate, 
because, whatever its value may be, it cannot be sold, but is to be 
immediately restored on satisfaction being made. 3 Bl. Com. 231. See 
Distringas. 

DISTRIBUTION. By this term is understood the division of an intestate's 
estate according to law. 
     2. The English statute of 22 and 23 Car. II. c. 10, which was itself 
probably borrowed from the 118th Novel of Justinian, is the foundation of, 
perhaps, most acts of distribution in the several states. Vide 2 Kent, Com. 
342, note; 8 Com. Dig. 522; 11 Vin. Ab. 189, 202; Com. Dig. Administration, 
H. 

DISTRIBUTIVE JUSTICE. That virtue, whose object it is to distribute rewards 
and punishments to every one according to his merits or demerits. Tr. of Eq. 
3; Lepage, El. du Dr. ch. 1, art. 3, Sec. 2 1 Toull. n. 7, note. See 
Justice. 

DISTRICT. A certain portion of the country, separated from the rest for some 
special purposes. The United States are divided into judicial districts, in 
each of which is established a district court; they are also divided into 
election districts; collection districts, &c. 

DISTRICT ATTORNEYS OF THE UNITED STATES. There shall be appointed, in each 
judicial district, a meet person, learned in the law, to act as attorney of 
the United States in such district, who shall be sworn or affirmed to the 
faithful execution of his office. Act of September 24, 1789, s. 35, 1 
Story's Laws, 67. 
     2. His duty is to prosecute, in such district, all delinquents, for 
crimes and offences cognizable under the authority of the United States, and 
all civil actions in which the United States shall be concerned, except in 
the supreme court, in the district in which that court shall be holden. Ib. 
     3. Their salaries vary in different districts. Vide Gordon's Dig. art. 
403. By the Act of March 3, 1815, 2 Story's L. U. S. 1530, district 
attorneys are authorized to appoint deputies, in certain cases, to sue in 
the state courts. See Deputy District Attorney. 

DISTRICT COURT. The name of one of the courts of the United States. It is 
held by a judge, called the district judge. Several courts under the same 
name have been established by state authority. Vide Courts of the United 
States. 

DISTRICT OF COLUMBIA. The name of a district of country, ten miles square, 
situate between the states of Maryland and Virginia, over which the national 
government has exclusive jurisdiction. By the constitution, congress may " 
exercise exclusive jurisdiction in all cases whatsoever, over such district, 
not exceeding ten miles square, as may, by, cession of particular states, 
and the acceptance of congress, become the seat of government of the United 
States." In pursuance of this authority, the states of Maryland and 
Virginia, ceded to the United States, a small territory on the banks of the 
Potomac, and congress, by the Act of July 16, 1790, accepted the same for 
the permanent seat of the government of the United States. The act provides 
for the removal of the seat of government from the city of Philadelphia to 
the District of Columbia, on the first Monday of December, 1800. It is also 
provided, that the laws of the state, within such district, shall not be 
affected by the acceptance, until the time fixed for the removal of the 
government thereto, and until congress shall otherwise by law provide. 
     2. It seems that the District of Columbia, and the territorial 
districts of the United States, are not states within the meaning of the 
constitution, and of the judiciary act, so as to enable a citizen thereof to 
sue a citizen of one of the states in the federal courts. 2 Cranch, 445; 1 
Wheat, 91. 
     3. By the Act of July 11, 1846, congress retroceded the county of 
Alexandria, part of the District of Columbia, to the state of Virginia. 

DISTRINGAS, remedies. A writ directed to the sheriff, commanding him to 
distrain one of his goods and chattels, to enforce his compliance of what is 
required of him, as for his appearance in a court on such a day, and the 
like. Com. Dig. Process, D 7; Chit. Pr. Index, h.t. Sellon's Pr. Index, h.t.;
Tidd's Pr. Index, h.t. 11 East, 353. It is also a form of execution in 
the action of detinue, and assize of nuisance. Registrum Judiciale, 56; 1 
Rawle, 44, 48; Bro. Abr. pl. 26; 22; H. VI. 41. This writ is likewise used 
to compel the appearance of a corporation aggregate. 4 Bouv. Inst. n. 4191. 

DISTURBANCE, torts. A wrong done to an incorporeal hereditament, by 
hindering or disquieting the owner in the enjoyment of it. Finch. L. 187; 3 
Bl. Com. 235; 1 Swift's Dig. 522; Com. Dig. Action upon the case for a 
disturbance, Pleader, 3 I 6; 1 Serg. & Rawle, 298. 

DIVIDEND. A portion of the principal, or profits, divided among several 
owners of a thing. 
     2. The term is usually applied to the division of the profits arising 
out of bank or other stocks; or to the division, among the creditors, of the 
elects of an insolvent estate. 
     3. In another sense, according to some old authorities, it signifies 
one part of an indenture. T. L. 

DIVISIBLE. The susceptibility of being divided. 
     2. A contract cannot, in general, be divided in such a manner that an 
action may be brought, or a right accrue, on a part of it. 2 Penna. R. 454. 
But some contracts are susceptible of division, as when a reversioner sells 
a part of the reversion to one man, and a part to another, each shall have 
an action for his share of the rent, which may accrue on a contract, to pay 
a particular rent to the reversioner. 3 Whart. 404; and see Apportionment. 
But when it is to do several things, at several times, an action will lie 
upon every default. 15 Pick. R. 409. See 1 Greenl. R. 316; 6 Mass. 344. See 
Entire. 

DIVISION, Eng. law. A particular and ascertained part of a county. In 
Lincolnshire, division means what riding does in Yorkshire. 

DIVISION OF OPINION. When, in a company or society, the parties having a 
right to vote are so divided that there is not a plurality of the whole in 
favor of any particular proposition, or when the voters are equally divided, 
it is said there. is division of opinion. 
     2. In such a case, the Roman law, which seems founded in reason and 
common sense, directs, that when the division relates to the quantity of 
things included, as in the case of a judgment, if one of three judges votes 
for condemning a man to a fine of one hundred dollars, another, to one of 
fifty dollars, and the third to twenty-five, the opinion or vote of; the 
last shall be the rule for the judgment; because the votes of all the others 
include that of the lowest; this is the case when unanimity is required. But 
when the division of opinions does not relate to the quantity of things, 
then it is always to be in favor of the defendant. It was a rule among the 
Romans that when the judges were equal in number, and they were divided into 
two opinions in cases of liberty, that opinion which favored it should 
prevail; and in other cases, it should be in favor of the defendant. Poth. 
Pand. liv. L. n. MDLXXIV. 
     3. When the judges of a court are divided into three classes, each 
holding a different opinion, that class which has the greatest number shall 
give the judgment; for example, on a habeas corpus, when a court is composed 
of four judges, and one is for remanding the prisoner, another is for 
discharging him on his own recognizance, and two others for discharging him 
absolutely, the judgment will be, that he be discharged. Rudyard's Case, 
Bac. Ab. Habeas Corpus, B 10, Court 5. 
     4. It is provided, by the Act of Congress of April 29, 1802, s. 6, that 
whenever any question shall occur before a circuit court, upon which the 
opinions of the judges shall be opposed, the point upon which the 
disagreement shall happen shall, during the same term, upon the request of 
either party, or their counsel, be stated, under the direction of the 
judges, and certified, under the seal of the court, to the supreme court, at 
their next session to be hold thereafter, and shall, by the said court, be 
finally decided. And the decision of the supreme court, and their order in 
the premises, shall be, remitted to the circuit court, and be there entered 
*of record and shall have effect according to the nature of the said 
judgment and order: Provided, That nothing herein contained shall prevent 
the cause from proceeding, if, in the opinion of the court, further 
proceedings can be had without prejudice to the merits: And Provided, also, 
That imprisonment shall not be allowed, nor punishment in any case be 
inflicted, where the judges of the said court are divided in opinion upon 
the question touching the said imprisonment or punishment. See 5 N. S. 407. 

DIVORCE. The dissolution of a marriage contracted between a man and a woman, 
by the judgment of a court of competent jurisdiction, or by an act of the 
legislature. It is so called from the diversity of the minds of those who 
are married; because such as are divorced go each a different way from the 
other. Ridley's Civ. & Eccl. Law, pp. 11, 112. Until a decree of divorce be 
actually made, neither party can treat the other as sole, even in cases 
where the marriage is utterly null and void for some preexisting cause. 
Griffiths v Smith, D. C. of Philadelphia, 3 Penn. Law Journal, 151, 153. A 
decree of divorce must also be made during the lifetime of both the parties. 
After the decease of either the marriage will be deemed as legal in all 
respects. Reeves" Dom. Rel. 204; 1 Bl. Com. 440. See Act of Pennsylvania, 
March 13, 1815, Sec. 5. 
     2. Divorces are of two kinds; 1. a vinculo matrimonii, (q.v.) which 
dissolves and totally severs the marriage tie; and, 2. a mensa et thoro, 
(q.v.) which merely separates the parties. 
     3.-1. The divorce a vinculo was never granted by the ecclesiastical 
law except for the most grave reasons. These, according to Lord Coke, (Co. 
Litt. 235, a,) are causa praecontractus, causa metus, causa impotentiae, seu 
frigiditatis, causa affinitatis, et causa consanguinitatis. In England such 
a divorce bastardizes the issue, and generally speaking, is allowed only on 
the ground of some preexisting cause. Reeves' Dom. Rel. 204-5; but sometimes 
by act of parliament for a supervenient cause. 1 Bl. Com. 440. When the 
marriage was dissolved for canonical causes of impediment, existing previous 
to its taking place, it was declared void ab initio. 
     4. In the United States, divorces a vinculo are granted by the state 
legislatures for such causes as may be sufficient to induce the members to 
vote in favor of granting them; and they are granted by the courts to which 
such jurisdiction is given, for certain causes particularly provided for by 
law. 
     5. In some states, the legislature never grants a divorce until after 
the courts have decreed one, and it is still requisite that the legislature 
shall act, to make the divorce valid. This is the case in Mississippi. In 
some states, as Wisconsin, the legislature cannot grant a divorce. Const. 
art. 4, is. 24. 
     6. The courts in nearly all the states have power to decree divorces a 
vinculo, for, first, causes which existed and which were a bar to a lawful 
marriage, as, precontract, or the existence of a marriage between one of the 
contracting parties and another person, at the time the marriage sought to 
be dissolved took place; consanguinity, or that degree of relationship 
forbidden by law; affinity in some states, as Vermont, Rev. Stat. tit. 16, 
c. 63, s. 1; impotence, (q.v.) idiocy, lunacy, or other mental imbecility, 
which renders the party subject to it incapable of making a contract; when 
the contract was entered into in consequence of fraud. Secondly, the 
marriage may be dissolved by divorce for causes which have arisen since the 
formation of the contract, the principal of which are adultery cruelty; 
willful and malicious desertion for a period of time specified in the acts of

the several states; to these are added, in some states, conviction of felony 
or other infamous crime; Ark. Rev. Stat. c. 50, s. 1, p. 333; being a 
fugitive from justice, when charged with an infamous crime. Laws of Lo. Act 
of April 2, 1832. In Tennessee the husband may obtain a divorce when the 
wife was pregnant at the time of marriage with a child of color; and also 
when the wife refuses for two years to follow her husband, who has gone 
bona fide to Tennessee to reside. Act of 1819, c. 20, and Act of 1835, c. 26 
Carr. Nich. & Comp. 256, 257. In Kentucky and Maine,, where one of the 
parties has formed a connexion with certain religionists, whose opinions. 
and practices are inconsistent with the marriage duties. And, in some 
states, as Rhode Island and Vermont, for neglect and refusal on the part of 
the husband (he being of sufficient ability) to provide necessaries for the 
subsistence of his wife. In others, habitual drunkenness is a sufficient 
cause. 
     7. In some of the states divorces a mensa et thoro are granted for 
cruelty, desertion, and such like causes, while in others the divorce is a 
vinculo. 
     8. When the divorce is prayed for on the ground of adultery, in some 
and perhaps in most of the states, it is a good defence, 1st. That the other 
party has been guilty of the same offence. 2. That the husband has 
prostituted his wife, or connived at her amours. 3. That the offended party 
has been reconciled to the other by either express or implied condonation. 
(q.v.) 4. That there was no intention to commit adultery, as when the 
party, supposing his or her first husband or wife dead, married again. 5. 
That the wife was forced or ravished. 
     9. The effects of a divorce a vinculo on the property of the wife, are 
various in the several states. When the divorce is for the adultery or other 
criminal acts of the husband, in general the wife's lands are restored to 
her; when it is caused by the adultery or other criminal act of the wife, 
the husband has in general some qualified right of curtesy to her lands; 
when the divorce is caused by some preexisting cause, as consanguinity, 
affinity or impotence, in some states, as Maine and Rhode Island, the lands 
of the wife are restored to her. 1 Hill. Ab. 51, 2. See 2 Ashm. 455; 5 
Blackf. 309. At common law, a divorce a vinculo matrimonii bars the wife of 
dower; Bract. lib. ii. cap. 39, Sec. 4; but not a divorce ti mensa et, 
thoro, though for the crime of adultery. Yet by Stat. West. 1, 3 Ed. I. c. 
84, elopement with an adulterer has this effect. Dyer, 195; Co. Litt. 32, a. 
n. 10; 3 P. Wms. 276, 277. If land be given to a man and his wife, and the 
heirs of their two bodies begotten, and they are divorced. a vinculo, &c., 
they shall neither of them have this estate, but he barely tenants for life, 
notwithstanding the inheritance once vested in them. Co. Litt. 28. If a 
lease be made to husband and wife during coverture, and the husband sows 
the, land, and afterwards they are divorced a vinculo, &c., the husband 
shall have the emblements in that case, for the divorce is the act of law. 
Mildmay's Case. As to personalty, the rule of the common law is, if one 
marry a woman who has goods, he may give them or sell them at his pleasure. 
If they are divorced, the woman shall have the goods back again, unless the 
husband has given them away or sold them; for in such case she is without 
remedy. If the husband aliened them by collusion, she may aver and prove the 
collusion, and thereupon recover the goods from the alience. If one be bound 
in an obligation to a feme sole, and then marry her, and afterwards they are 
divorced, she may sue her former husband on the obligation, notwithstanding 
her action was in suspense during the marriage. And for such things as 
belonged to the wife before marriage, if they cannot be known, she could sue 
for, after divorce, only in the court Christian, for the action of account 
did not lie, because he was not her receiver to account. But for such things 
as remain in specie, and may be known, the common law gives her an action of 
detinue. 26 Hen. VIII. 1. 
     10. When a divorce a vinculo takes place, it is, in general, a bar to 
dower; but in Connecticut, Illinois, New York, and, it seems, in Michigan, 
dower is not barred by a divorce for the fault of the husband. In Kentucky, 
when a divorce takes place for the fault of the husband, the wife is 
entitled as if he were dead. 1 Hill. Ab. 61, 2. 
     11.-2. Divorces a mensa et thoro, are a mere separation of the 
parties for a time for causes arising since the marriage; they are 
pronounced by tribunals of competent jurisdiction. The effects of the 
sentence continue for the time it was pronounced, or until the parties are 
reconciled. A. divorce a mensa et thoro deprives the husband of no marital 
right in respect to the property of the wife. Reeve's Dom. Rel. 204-5. Cro. 
Car. 462; but see 2 S. & R. 493. Children born after a divorce a mensa et 
thoro are not presumed to be the husband's, unless he afterwards cohabited 
with his wife. Bac. Ab. Marriage, &c. E. 
     12. By the civil law, the child of parents divorced, is to be brought 
up by the innocent party, at the expence of the guilty party. Ridley's View, 
part 1, ch. 3, sect. 9, cites 8th Collation. Vide, generally, 1 Bl. Com. 
440, 441 3 Bl. Com. 94; 4 Vin. Ab. 205; 1 Bro. Civ. Law, 86; Ayl. Parerg. 
225; Com. Dig. Baron and Feme, C;-Coop. Justin. 434, et seq.; 6 Toullier, 
No. 294, pa. 308; 4 Yeates' Rep. 249; 5 Serg. & R. 375; 9 S. & R. 191, 3; 
Gospel of Luke, eh, xvi. v. 18; of Mark, ch. x. vs. 11, 12; of Matthew, 
ch. v. 32, ch. xix. v. 9; 1 Corinth. ch. vii. v. 15; Poynt. on Marr. and 
Divorce, Index, h.t.; Merl. Rep. h.t.; Clef des Lois Rom. h.t. As to the 
effect of the laws of a foreign state, where the divorce was decreed, see 
Story's Confl. of Laws, ch. 7, Sec. 200. With regard to the ceremony of 
divorce among. the Jews, see 1 Mann. & Gran. 228; C. 39. Eng. C. L. R. 425, 
428. And as to divorces among the Romans, see Troplong, de l'Influence du 
Christianisme sur le Droit Civil des Romains, ch. 6. p. 205. 

DOCKET, practice. A formal record of judicial proceedings.
     2. The docket should contain the names of the parties, and a minute of 
every proceeding in the case. It is kept by the clerk or prothonotary of the 
court. A sheriff's docket is not a record. 9 Serg. & R. 91. Docket is also 
said to be a brief writing, on a small piece of paper or parchment, 
containing the substance of a larger writing. 

DOCTORS COMMONS. A building in London used for a college of civilians. Here 
the judge of the court of arches, the judge of the admiralty, and the judge 
of the court of Canterbury, with other eminent civilians, reside. Commons 
signifies, in old English, pittance or allowance; because it is meant in 
common among societies, as Universities, Inns of Courts, Doctors Commons, 
&c. The Latin word is, demensum a demetiendo; dividing every one his part 
Minsheu. It is called Doctors Commons, because the persons residing there 
live in a collegiate commoning together. 

DOCUMENTS, evidence. The deeds, agreements, title papers, letters, receipts, 
and other written instruments used to prove a fact. Among the civilians, by 
documents is also understood evidence delivered in the forms established by 
law, of whatever nature such evidence may be, but applied principally to the 
testimony of witnesses. Savig. Dr. Rom. Sec. 165. 
     2. Public documents are all such records, papers and acts, as are filed 
in the public offices of the United States or of the several states; as, for 
example, public statutes, public proclamations, resolutions of the 
legislature, the journals of either branch of the legislature, diplomatic 
correspondence communicated by the president to congress, and the like. 
These are in general evidence of the facts they contain or recite. 1 Greenl. 
Sec. 491.  

DOG. A well known domestic animal. In almost all languages this word is, a 
term or name of contumely or reproach. See 3 Bulst. 226; 2 Mod. 260; 1 Leo. 
148; and the title action on the case for defamation in the Digests; 
Minsheu's Dictionary. 
     2. A dog is said at common law to have no intrinsic value, and he 
cannot therefore be the subject of larceny. 4 Bl. Com. 236; 8 Serg. & Rawle, 
571. But the owner has such property in him, that he may maintain trespass 
for an injury to his dog; "for a man may have property in some things which 
are of so base nature that no felony can be committed of them, as of a 
bloodhound or mastiff." 12 H. VIII. 3; 18 H. VIII. 2; 7 Co. 18 a; Com. Dig. 
Biens, F; 2 Bl. Com. 397; Bac. Ab. Trover, D; F. N. B. 86; Bro. Trespass, 
pl. 407 Hob. 283; Cro. Eliz. 125; Cro. Jac. 463 2 Bl. Rep. 
     3. Dogs, if dangerous animals, may lawfully be killed, when their 
ferocity is known to their owner, or in self-defence 13 John. R. 312; 10 
John. R. 365; and when bitten by a rabid animal, a dog may be lawfully 
killed by any one. 13 John. R. 312. 
     4. When a dog, in consequence of his vicious habits, becomes a common 
nuisance, the owner may be indicted. And when he commits an injury, if the 
owner had a knowledge of his mischievous propensity, he is liable to an 
action on the case. Bull. N. P. 77; 2 Str. 1264; Lord Raym. 110. 1 B. & A. 
620; 4 Camp. R. 198; 2 Esp. R. 482; 4 Cowen, 351; 6 S. & R. 36; Addis. R. 
215; 1 Scam. 492 23 Wend 354; 17 Wend. 496; 4 Dev. & Batt. 146. 
     5. A man has a right to keep a dog to guard his premises, but not to 
put him at the entrance of his house, because a person coming there on 
lawful business may be injured by him, and this, though there may be another 
entrance to the house. 4 C. & P. 297; 6 C. & P. 1. But if a dog be chained, 
and a visitor so incautiously go near him that he is bitten, he has no right 
of action against the owner. 3 Chit. Bl. 154, n. 7. Vide Animal; Knowledge; 
Scienter. 

DOGMA, civil law. This word is used in the first chapter, first section, of 
the second Novel, and signifies an ordinance of the senate. See also Dig. 
27, 1, 6. 

DOLI CAPAX. Capable of deceit, mischief, having knowledge of right and 
wrong. See Discretion; Criminal law, 2. 

DOLLAR, money. A silver coin of the United States of the value of one 
hundred cents, or tenth part of an eagle. 
     2. It weighs four hundred and twelve and a half grains. Of one thousand 
parts, nine hundred are of pure silver and one hundred of alloy. Act of 
January 18, 1837, ss. 8 & 9, 4 Sharsw. Cont. of Story's L. U. S. 2523, 4; 
Wright, R. 162. 
     3. In all computations at the custom-house, the specie dollar of Sweden 
and Norway shall be estimated at one hundred and six cents. The specie 
dollar of Denmark,  at one hundred and five cents. Act of May 22, 1846. 

DOLUS, civil law. A fraudulent address or trick used to deceive some one; a 
fraud. Dig. 4, 3, 1; Code, 2, 21. 
     2. Dolus differs from fault in this, that the latter proceeds from an 
error of the understanding; while to constitute the former there must be a 
will or intention to do wrong. Wolff, Inst. Sec. 17. 

DOMAIN. It signifies sometimes, dominion, territory governed - sometimes, 
possession, estate - and sometimes, land about the mansion house of a lord. 
By domain is also understood the right to dispose at our pleasure of what 
belongs to us. 
     2. A distinction, has been made between property and domain. The former 
is said to be that quality which is conceived to be in the thing itself, 
considered as belonging to such or such person, exclusively of all others. 
By the latter is understood that right which the owner has of disposing of 
the thing. Hence domain and property are said to be correlative terms; the 
one is the active right to dispose, the other a passive quality which 
follows the thing, and places it at the disposition of the owner. 3 Toull. 
n. 8 3. But this distinction is too subtle for practical use. Puff. Droit de 
la Nature et des Gens, loi 4, c. 4, Sec. 2. Vide 1 B1. Com. 105, 106; 1 
Bouv. Inst. n. 456; Clef des Lois Rom. h.t.; Domat, h.t.; 1 Hill. Ab. 24; 
2 Hill. Ab. 237; and Demesne as Of fee; Property; Things. 

DOME-BOOK, DOOM-BOOK or DOM-BEC A book in which Alfred the Great, of 
England, after uniting the Saxon heptarchy, collected the various customs 
dispersed through the kingdom, and digested them into one uniform code. 4 
Bl. Com. 411. 

DOMESDAY, or DOMESDAY-BOOK. An ancient record made in the time of William 
the Conqueror, and now remaining in the English exchequer, consisting of two 
volumes of unequal sizes, containing surveys of the lands in England. 

DOMESTICS. Those who reside in the same house with the master they serve the 
term does not extend to workmen or laborers employed out of doors. 5 Binn. 
R. 167; Merl. Rep. h.t. The Act of Congress of April 30, 1790, s. 25, uses 
the word domestic in this sense. 
     2. Formerly, this word was used to designate those who resided in the 
house of another, however exalted their station, and  who performed services 
for him. Voltaire, in writing to the French queen, in 1748, says) " Deign to 
consider, madam, that I am one of the domestics of the king, and 
consequently yours, lily companions, the gentlemen of the king," &c. 
     3. Librarians, secretaries, and persons in such honorable employments, 
would not probably be considered domestics, although they might reside in 
the house of their respective employers. 
     4. Pothier, to point out the distinction between a domestic and a 
servant, gives the following example: A literary man who lives and lodges 
with you, solely to be your companion, that you may profit by his 
conversation and learning, is your domestic; for all who live in the same 
house and eat at the same table with the owner of the house, are his 
domestics, but they are not servants. On the contrary, your Valet de, 
chambre, to whom you pay wages, and who sleeps out of your house, is not, 
properly speaking, your domestic, but your servant. Poth. Proc. Cr. sect. 2, 
art. 5, Sec. 5; Poth. Ob. 710, 828; 9 Toull. n. 314; H. De Pansey, Des 
Justices de Paix, c. 30, n. 1. Vide Operative; Servant. 

DOMICIL. The place where a person has fixed his ordinary dwelling, without a 
present intention of removal. 10 Mass. 488; 8 Cranch, 278; Ersk. Pr. of Law 
of Scotl. B. 1, tit. 2, s. 9; Denisart, tit. Domicile, 1, 7, 18, 19; Voet, 
Pandect, lib. 5, tit. 1, 92, 97; 5 Madd. Ch. R. 379; Merl. Rep. tit. 
Domicile; 1 Binn. 349, n.; 4 Humph. 346. The law of domicil is of great 
importance in those countries where the maxim "actor sequitur forum rei" is 
applied to the full extent. Code Civil, art. 102, &c.; 1 Toullier, 318. 
     2. A man cannot be without a domicil, for he is not supposed to have 
abandoned his last domicil until he has acquired a new one. 5 Ves. 587; 3 
Robins. 191; 1 Binn. 349, n.; 10 Pick. 77. Though by the Roman law a man 
might abandon his domicil, and, until be acquired a. new one, he was without 
a domicil. By fixing his residence at two different places a man may have 
two domicils at one and the same time; as, for example, if a foreigner, 
coming to this country, should establish two houses, one in New York and 
the, other in New Orleans, and pass one-half of the year in each; he would, 
for most purposes, have two domicils. But it is to be observed that 
circumstances which might be held sufficient to establish a commercial 
domicil in time of war, and a matrimonial, or forensic or political domicil 
in time of peace, might not be such as would establish a principal or 
testamentary domicil, for there is a wide difference in applying the law of 
domicil to contracts and to wills. Phill. on Dom. xx; 11 Pick. 410 10 Mass. 
488; 4 Wash. C. C. R. 514. 
     3. There are three kinds of domicils, namely: 1. The domicil of origin. 
domicilium originis vel naturale. 2. The domicil by operation of law, or 
necessary domicil. 3. Domicil of choice. 
     4.-1. By domicil of origin is understood the home of a man's parents, 
not the place where, the parents being on a visit or journey, a child 
happens to be born. 2 B. & P. 231, note; 3 Ves. 198. Domicil of origin is to 
be distinguished from the accidental place of birth. 1 Binn. 349. 
     5.-2. There are two classes of persons who acquire domicil by 
operation of law. 1st. Those who are under the control of another, and to 
whom the law gives the domicil of another. Among these are, 1. The wife. 2. 
The minor. 3. The lunatic, &c. 2d. Those on whom the state affixes a 
domicil. Among this class are found, 1. The officer. 2. The prisoner, &c. 
     6.-1st. Among those who, being under the control of another, acquire 
such person's domicil, are, 1. The wife. The wife takes the domicil of her 
husband, and the widow retains it, unless she voluntarily change it, or 
unless, she marry a second time, when she takes the domicil of the second 
husband. A party may have two domicils, the one actual, the other legal; the 
husband's actual and the wife's legal domicil, are, prima facie, one. 
Addams' Ecc. R. 5, 19. 2. The domicil of the minor is that of the father, or 
in Case of his death, of the mother. 5 Ves. 787; 2 W. & S. 568; 3 Ohio R. 
101; 4 Greenl. R. 47. 3. The domicil of a lunatic is regulated by the same 
principles which operated in cases of minors the domicil of such a person 
may be changed by the direction, or with the assent of the guardian, express 
or implied. 5 Pick. 20. 
     7.-2d. The law affixes a domicil. 1. Public officers, such as the 
president of the United States, the secretaries and such other officers 
whose public duties require a temporary residence at the capital, retain 
their domicils. Ambassadors preserve the domicils which they have in their 
respective countries, and this privilege extends to the ambassador's family. 
Officers, soldiers, and marines, in the service of the United States, do not 
lose their domicils while thus employed. 2. A prisoner does not acquire a 
domicil where the prison is, nor lose his old. 1 Milw. R. 191, 2. 
     8.-3. The domicil of origin, which has already been explained, 
remains until another has been acquired. In order to change such domicil; 
there must be an actual removal with an intention to reside in the place to 
which the party removes. 3 Wash. C. C. R. 546. A mere intention to remove, 
unless such intention is carried into effect, is not sufficient. 5 Greenl. 
R. 143. When he changes it, he acquires a domicil in the. place of his new 
residence, and loses his original domicil. But upon a return with an 
intention to reside, his original domicil is restored. 3 Rawle, 312; 1 
Gallis. 274, 284; 5 Rob. Adm. R. 99. 
     9. How far a settlement in a foreign country will impress a hostile 
character on a merchant, see Chitty's Law of Nations, 31 to 50; 1 Kent, Com. 
74 to 80; 13 L. R. 296; 8 Cranch, 363; 7 Cranch, 506; 2 Cranch, 64 9 Cranch, 
191; 1 Wheat. 46; 2 Wheat 76; 3 Wheat. 1 4 2 Gall. R. 268; 2 Pet. Adm. Dec. 
438 1 Gall. R. 274. As to its effect in the administration of the assets of 
a deceased non-resident, see 3 Rawle's R. 312; 3 Pick. R. 128; 2 Kent, Com. 
348; 10 Pick. R. 77. The law of Louisiana relating to the "domicil and the 
manner of changing the same" will be found in the Civil Code of Louisiana, 
tit. 2, art. 42 to 49. See, also, 8 M. R. 709; 4 N. S. 51; 6 N. S. 467; 2 L. 
R. 35; 4 L. R. 69; 5 N. S. 385 5 L. R. 332; 8 L. R. 315; 13 L. R. 297 11 L. 
R. 178; 12 L. R. 190. See, on the subject generally, Bouv. Inst. Index, h.t.
2 Bos. & Pul. 230, note 1 Mason's Rep. 411; Toullier, Droit Civil 
Francais, liv. 1, tit. 3, n., 362 a 378; Domat, tome 2, liv. 1, s. 3; 
Pothier, Introduction Generale aux Coutumes, n. 8 a 20; 1 Ashm. R. 126; 
Merl. Rep. tit. Domicile 3 Meriv. R. 79; 5 Ves. 786; 1 Crompt. & J. 151; 1 
Tyrwh. R. 91; 2 Tyrwh. R. 475; 2 Crompt. & J. 436 3 Wheat. 14 3 Rawle, 312; 
7 Cranch, 506 9 Cranch, 388; 5 Pick. 20; 1 Gallis, 274, 545; 10 Mass. 488 11 
Mass. 424; 13 Mass. 501 2 Greenl. 411; 3 Greenl 229, 354; 4 Greenl. 47; 8 
Greenl. 203; 5 Greenl. 143; 4 Mason, 308; 3 Wash. C. C. R. 546; 4 Wash. C. 
C. R. 514 4 Wend, 602; 8 Wend. 134; 5 Pick. 370 10 Pick. 77; 11 Pick. 410; 1 
Binn. 349, n.; Phil. on Dom. passim. 

DOMINANT. estates. In the civil law, this term is used to signify the estate 
to which a servitude or easement is due from another estate; for example, 
where the owners of the estate, Blackacre, have a right of way or passage 
over the estate Whiteacre, the former is called the dominant, and the latter 
the servient estate. Bouv. Inst. n. 1600. 

DOMINION. The right of the owner of a thing to use it or dispose of it at 
his pleasure. See Domain; 1 White's New Coll. 85; Jacob's Intr. 39. 

DOMINIUM, empire, domain. It is of three kinds: 1, Directum dominium, or 
usufructuary dominion; dominium utile, as between landlord and tenant; or, 
2. It is to full property, and simple property. The former is such as 
belongs to the cultivator of his own estate; the other is the property of a 
tenant. 3. Dominion acquired by the law of nations, and dominion acquired by 
municipal law. By the law of nations, property may be acquired by 
occupation, by accession, by commixtion, by use or the pernancy of the 
usufruct, and by tradition or delivery. As to the dominium eminens, the 
right of the public, in cases of emergency, to seize upon the property of 
individuals, and convert it to public use, and the right of individuals, in 
similar cases, to commit a trespass on the persons and properties of others, 
see the opinion of chief justice McKean in Respublica v. Sparhawk, 1 Dallas, 
362, and the case of Vanhorn v. Dorrance, 2 Dall. Rep. 304. See, further, as 
to dominium eminens, or the right of the community to take, at a fair price, 
the property of individuals for public use, the supplement of 1802 to the 
Pennsylvania compromising law, respecting the Wyoming controversy; also, 
Vattel, l. 1, c. 20, Sec. 244-248; Bynkershoek, lib. 2, c. 15; Rousseau's 
Social Compact, c. 9; Domat; l. 1, tit. 8, Sec. l, p. 381, fol. ed.; the 
case of a Jew, whom the grand seignior was compelled by the mufti to 
purchase out, cited in Lindsay et al. v. The Commissioners, 2 Bay. S. Car. 
Rep. 41. See Eminent domain. 

DOMITAE. Subdued, tame,. not wild; as, animals domitae, which are tame or 
domestic animals. 

DOMO REPARANDO. the name of an ancient writ in favor of a party who was in 
danger of being injured by the fall, of his neighbor's house. 

DONATIO MORTIS CAUSA, contracts, legacies. A gift in prospect of death. When 
a person in sickness, apprehending his dissolution near, delivers, or 
causes to be delivered to another, the possession of any personal goods, to 
keep as his own, in case of the donor's decease. 2 Bl. Com. 514 see Civ. 
Code of Lou. art. 1455. 
     2. The civil law defines it to be a gift under apprehension of death; 
as, when any thing is given upon condition that if the donor dies, the donee 
shall possess it absolutely, or return it if the donor should survive, or 
should repent of having made the gift, or if the donee should die before the 
donor. 1 Miles' Rep. 109-117. 
     3. Donations mortis causa, are now reduced, as far as possible, to the 
similitude of legacies. Inst. t. 7, De Donationibus. See 2 Ves. jr. 119; 
Smith v. Casen, mentioned by the reporter at the end of Drury v. Smith, 1 P. 
Wms. 406; 2 Ves. sen. 434; 3 Binn. 866. 
     4. With respect to the nature of a donatio mortis causa, this kind of 
gift so far resembles a legacy, that it is ambulatory and incomplete during 
the donor's life; it is, therefore, revocable by him; 7 Taunt. 231; 3 Binn. 
366 and subject to his debts upon a deficiency of assets. 1 P. Wms. 405. But 
in the following particulars it differs from a legacy: it does riot fall 
within an administration, nor require any act in the executors to perfect a 
title in the donee. Rop. Leg. 26. 
     5. The following circumstances are required to constitute a good 
donatio mortis causa. 1st. That the thing given be personal property; .3 
Binn. 370 a bond; 3 Binn. 370; 3 Madd. R. 184; bank notes; 2 Bro. C. C. 612; 
and a check offered for payment during the life of the donor, will be so 
considered. 4 Bro. C. C. 286. 
     6.-2d. That the gift be made by the donor in peril of death, and to 
take effect only in case the giver die. 3 Binn. 370 4 Burn's Ecc. Law, 110. 
     7.-3d. That there be an actual delivery of the subject to, or for the 
donee, in cases where such delivery can be made. 3 Binn. 370; 2 Ves. jr. 
120. See 9 Ves. 1 , 7 Taunt. 224. But such delivery can be made to a third 
person for the use of the donee. 3 Binn. 370: 
     8. It is an unsettled question whether such kind of gift appearing in 
writing, without delivery of the subject, can be supported. 2 Ves. jr. 120. 
By the Roman and civil law, a gift mortis causa might be made in writing. 
Dig. lib. 39, t. 6, 1. 28 2 Ves. sen. 440 1 Ves. sen. 314. 
     9. In Louisiana, no disposition mortis causa, otherwise than by last 
will and testament, is allowed. Civ. Code, art. 1563. See, in general, 1 
Fonb. Tr. Eq. 288, n. (p); Coop. Just. 474, 492; Civ. Code of Lo. B. 3, 2, 
c. 1 and 6. Vin. Abr. Executors, Z 4; Bac. Abr. Legacies, A; Supp. to Ves. 
jr. vol. 1, p. 143, 170; vol. 2, 97. 215; Rop. Leg: oh. 1; Swinb. pt. 1, s. 
7 1 Miles, 109. &c. 

DONATION, contracts. The act by which the owner of a thing, voluntarily 
transfers the title and possession of the same, from himself to another 
person, without any consideration; a gift. (q.v.) 
     2. A donation is never perfected until it is has been accepted, for the 
acceptance (q.v.) is requisite to make the donation complete. Vide Assent, 
and Ayl. Pand. tit. 9 Clef des Lois Rom. h.t. 

DONATION INTER Vivos, contracts. A contract which takes place by the mutual 
consent, of the giver, who divests himself of the thing given in order to 
transmit the title of it to the donee gratuitously, and the donee, who 
accepts the thing and acquires a legal title to it. 
     2. This donation takes place when the giver is not in any immediate 
apprehension of death, which distinguishes it from a donatio mortis causa. 
(q.v.) 1 Bouv. Inst. n. 712. And see Civ. Code of Lo. art. 1453 Justin. 
Inst. lib. 2, tit. 7, Sec. 2 Coop. Justin. notes 474-5 Johns. Dig. N. Y. 
Rep. tit. Gift. 

DONEE. He to whom a gift is made, or a bequest given; one who is invested 
with a power to select an appointee, he is sometimes called an appointer. 

DONIS, STATUTE DE. The stat. West. 2, namely, 13 Edw. I. , c. 1, called the 
statute de donis conditionalibus. This statute revives, in some sort, the 
ancient feudal restraints, which were originally laid on alienations. 2 Bl. 
Com. 12. 

DONOR. He who makes a gift. (q.v.)

DOOM. This word formerly signified a judgment. T. L.

DORMANT PARTNER. One who is a participant in the profits of a firm, but his 
name being concealed, his interest is not apparent. See Partners, 

DOOR. The place of usual entrance in a house, or into a room in the house. 
     2. To authorize the breach of an outer door in order to serve process, 
the process must be of a criminal nature; and even then a demand of 
admittance must first have been refused. 5 Co. 93; 4 Leon. 41; T. Jones, 
234; 1 N. H. Rep. 346; 10 John. 263; 1 Root, 83 , 134; 21 Pick. R. 156. The 
outer door may also be broken open for the purpose of executing a writ of 
habere facias. 5 Co. 93; Bac. Ab. Sheriff, N. 3. 
     3. An outer door cannot in general be broken for the purpose of serving 
civil process; 13 Mass. 520; but after the defendant has been arrested, and 
he takes refuge in his own house, the officer may justify breaking an outer 
door to take him. Foster, 320; 1 Roll. R. 138; Cro. Jac. 555.; 10 Wend. 300; 
6 Hill, N. Y. Rep. 597. When once an officer is in the house, he may break 
open an inner door to make an arrest. Kirby, 386 5 John. 352; 17 John. 127, 
See 1 Toull. n. 214, p. 88. 

DOT. This French word is adopted in Louisiana. It signifies the fortune, 
portion, or dowry, which a woman brings to her husband by the marriage. 6 N. 
S. 460. See Dote; Dowry. 

DOTAL PROPERTY. By the civil law, and in Louisiana, by this term is 
understood that property, which the wife brings to the husband to assist him 
in bearing the expenses of the marriage establishment. Civil Code of Lo. 
art. 2315. Vide Extradotal property. 

DOTATION, French law. The act by which the founder of a hospital, or other 
charity, endows it with property to fulfill its destination. 

DOTE, Span. law. The property which the wife gives to the husband on account 
of marriage. 
     2. It is divided into adventitia and profectitia; the former is the 
dote which the father or grandfather, or other of the ascendants in the 
direct paternal line, give of their own property to the husband; the latter 
(adventitia) is that property which the wife gives to the husband, or that 
which is given to him for her by her mother, or her collateral relations, or 
a stranger. Aso & Man. Inst. B. 1, t. 7, c . 1, Sec. i. 

DOTE ASSIGNANDO, Eng. law. The name of a writ which lay in favor of a widow, 
when it was found by office that the king's tenant was seised of tenements 
in fee or fee tail at the time of his death, and that he held of the king in 
chief. 

DOTE UNDE NIHIL HABET. The name of a writ of dower which a widow sues 
against the tenant, who bought land of her husband in his lifetime, and in 
which her dower remains, of which he was seised solely in fee simple or fee 
tail. F. N. B. 147; Booth, Real Act. 166. See Dower unde nihil habet 

DOUBLE. Twofold; as, double cost; double insurance; double plea.

DOUBLE COSTS practice. According to the English law, when double costs are 
given by the statute, the term is not to be understood, according to its 
literal import, twice the amount of single costs, but in such case the costs 
are thus calculated. 1. the common costs; and, 2. Half of the common costs. 
Bac. Ab. Costs, E; 2 Str. 1048. This is not the rule in New York, nor in 
Pennsylvania. 2 Dunl. Pr. 731; 2 Rawle's R. 201. 
     2. In all cases where double or treble costs are claimed, the party 
must apply to the court for them before he can proceed to the taxation, 
otherwise the proceeding will be set aside as irregular. 4 Wend. R. 216. 
Vide Costs; and Treble Costs. 

DOUBLE ENTRY. A term used among merchants to signify that books of account 
are kept in such a manner that they present the debit and credit of every 
thing. The term is used in contradistinction to single entry. 
     2. Keeping books by double entry is more exact, because, presenting all 
the active and all the passive property of the merchant, in their respective 
divisions, there cannot be placed an article to, an account, which does not 
pass to some correspondent account elsewhere. It presents a perfect, view of 
each operation, and, from the relation and comparison of the divers 
accounts, which always keep pace with each other, their correctness is 
proved; for every commercial operation is necessarily composed of two 
interests, which are connected together. The basis of this mode of keeping 
books, and the only condition required, is to write down every transaction 
and nothing else; and to make no entry without putting it down to the two 
agents of the operation. By this means a merchant whose transactions are 
extensive, comprising a great number of subjects, is able to known not only 
the general situation of his affairs, but also the situation of each 
particular operation. For example, when a merchant receives money, his cash 
account becomes debtor, and the person who has paid it, or the merchandise 
sold, is credited with it; when he pays money, the cash account, is 
credited, And the merchandise bought, or the obligation paid, is debited 
with it. See Single entry. 

DOUBLE INSURANCE, contracts. Where the insured makes, two insurances on the 
same risk, and the same interest. 12 Mass. 214. It differs from re-insurance 
in this, that it is made by the insured, with a view of receiving a double 
satisfaction in case of loss; whereas a re-insurance is made by a former 
insurer, his executors or assigns, to protect himself and his estate from a 
risk to which they were liable by the first insurance. The two policies are 
considered as making but one insurance. They are good to the extent of the 
value of the effects put in risk; but the insured shall not be permitted to 
recover a double satisfaction. He can sue the underwriters on both the 
policies, but he can only recover the real amount of his loss, to which all 
the underwriters on both shall contribute in proportion to their several 
subscriptions. Marsh. Ins. B. 1, c. 4, s. 4; 5 S. & R. 473; 4 Dall. 348; 1 
Yeates, 161; 9 S. & R. 103; 1 Wash . C. C. Rep. 419; 2 Wash. C. C. Rep. 186; 
2 Mason, 476. 

DOUBLE PLEA. The alleging, for one single purpose, two or more distinct 
grounds of defence, when one of them would be as effectual in law, as both 
or all. Vide Duplicity. 

DOUBLE VOUCHER. A common recovery is sometimes suffered with double voucher, 
which occurs when the person first vouched to warranty, comes in and vouches 
over a third person. See a precedent, 2 Bl. Com. Appx. No. V. p. xvii.; 
also, Voucher. 
     2. The necessity for double voucher arises when the tenant in tail is 
not the tenant in the writ, but is tenant by warranty; that is, where he is 
vouched, and comes in and confesses the warranty. Generally speaking, to 
accomplish this result, a previous conveyance is necessary, by the tenant in 
tail, to a third person, in order to make such third person tenant to a writ 
of entry. Preston on Convey. 125-6. 

DOUBLE WASTE. When a tenant, bound to repair, suffers a house to be wasted, 
and then unlawfully fells timber to repair it, he is said to commit double 
waste. Co. Litt. 53. See Waste. 

DOUBT. The uncertainty which exists in relation to a fact, a proposition, or 
other thing; or it is an equipoise of the mind arising from an equality of 
contrary reasons. Ayl. Pand. 121. 
     2. The embarrassing position of a judge is that of being in doubt, and 
it is frequently the lot of the wisest and most enlightened to be in this 
condition, those who have little or no experience usually find no difficulty 
in deciding the most, problematical questions. 
     3. Some rules, not always infallible, have been adopted in doubtful 
cases, in order to arrive at the truth. 1. In civil cases, the doubt ought 
to operate against him, who having it in his power to prove facts to remove 
the doubt, has neglected to do so. In cases of fraud when there is a doubt, 
the presumption of innocence (q.v.) ought to remove it. 2. In criminal 
cases, whenever a reasonable doubt exists as to the guilt of the accused 
that doubt ought to operate in his favor. In such cases, particularly, when 
the liberty, honor or life of an individual is at stake, the evidence to 
convict ought to be clear, and devoid of all reasonable doubt. See Best on 
Pres. Sec. 195; Wils. on Cir. Ev. 26; Theory of Presumptive Proof, 64; 33 
How. St. Tr. 506; Burnett, Cr. Law of Scotl. 522; 1 Greenl. Ev. Sec. 1 
D'Aguesseau, Oeuvres, vol. xiii. p. 242; Domat, liv. 3, tit. 6. 
     4. No judge is presumed to have any doubt on a question of law, and he 
cannot therefore refuse to give a judgment on that account. 9 M. R. 355; 
Merlin, Repert. h.t.; Ayliffe's Pand. b. 2, t. 17; Dig. lib. 34, t. 5; 
Code, lib. 6, t. 38. Indeed, in some countries; in China, for example, 
ignorance of the law in a judge is punishable with blows. Penal Laws of 
China, B. 2, s. 61. 

DOVE. The name of a well known bird.
     2. Doves are animals ferae naturae, and not the subject of larceny, 
unless they are in the owner's custody; as, for example, in a dove-house, or 
when in the nest before they can fly. 9 Pick. 15. See Whelp. 

DOWAGER. A widow endowed; one who has a jointure. 
     2. In England, this is a title or addition given to the widows of 
princes, dukes, earls, and other noblemen. 

DOWER. An estate for life, which the law gives the widow in the third part 
of the lands and tenements, or hereditaments of which the husband, was 
solely seised, at any time during the coverture, of an estate in fee or in 
tail, in possession, and to which estate in the lands and tenements, the 
issue, if any, of such widow might, by possibility, have inherited. Watk. 
Prin. Con. 38; Litt. Sec. 36; 7 Greenl. 383. Vide Estate in Dower. This is 
dower at common law. 
     2. Besides this, in England there are three other species of dower now 
subsisting; namely, dower by custom, which is, where a widow becomes 
entitled to a certain portion of her husband's lands in consequence of some 
local or particular custom, thus by the custom of gavelkind, the widow is 
entitled to a moiety of all the lands and tenements, which her husband held 
by that tenure. 
     3. Dower ad ostium ecclesiae, is, when a man comes to the church door 
to be married, after troth plighted, endows his wife of a certain portion of 
his lands. 
     4. Dower ex assensu patris, was only a species of dower ad ostium 
ecclesice, made when the husband's father was alive, and the son, with his 
consent expressly given, endowed his wife, at the church door, of a certain 
part of his father's lands. 
     5. There was another kind, de la plus belle, to which the abolition of 
military tenures has put an end. Vide Cruise's Dig. t. 6, c. 1; 2 Bl. Com. 
129; 15 Serg. & Rawle, 72 Poth. Du Douaire. 
     6. Dower is barred in various ways; 1. By the adultery of the wife, 
unless it has been condoned. 2. By a jointure settled upon the wife. 2 
Paige, R. 511. 3. By the wife joining her husband in a conveyance of the 
estate. 4. By the husband and wife levying a fine, or suffering a common 
recovery. 10 Co. 49, b Plowd. 504. 5. By a divorce a vinculo matrimonii. 6. 
By an acceptance, by the wife, of a collateral satisfaction, consisting of 
land, money, or other chattel interest, given instead of it by the husband's 
will, and accepted after the husband's death. In these cases she has a right 
to elect whether to take her dower or the bequest or devise. 4 Monr. R. 265; 
5 Monr. R. 58; 4 Desaus. R. 146; 2 M'Cord, Ch. R. 280; 7 Cranch, R. 370; 5 
Call, R. 481; 1 Edw. R. 435 3 Russ. R. 192; 2 Dana, R. 342. 
     7. In some of the United States, the estate which the wife takes in the 
lands of her deceased husband, varies essentially from the right of dower at 
common law. In some of the states, she takes one-third of the profits, or in 
case of there being no children, one half. In others she takes the same 
right in fee, when there are no lineal descendants; and in one she takes 
two-thirds in fee, when there are no lineal ascendants or descendants, or 
brother or sister of the whole or half blood. 1 Hill. Ab. 57, 8; see Bouv. 
Inst. Index, h.t. 

DOWER UNDE NIHIL HABET. This is a writ of right in its nature. It lies only 
against the tenant of the freehold. 12 Mass. 415 2 Saund. 43, note 1; Hen. & 
Munf. 368 F. N. B. 148. It is a writ of entry, where the widow is deforced 
of the whole of her dower. Archb. Plead. 466, 7. A writ of right of dower 
lies for the whole or a part. 1 Rop. on Prop. 430; Steph. on Pl. 10. n; 
Booth, R. A. 166; Glanv. lib. 4. c. 4, 5; 9 S. & R. 367. If the heir is 
fourteen years of age, the writ goes to him, if not, to his guardian. If the 
land be wholly aliened, it goes to the tenant, F. N. B. 7, or pernor of the 
profits, who may vouch the heir. If part only be aliened, the writ goes to 
the heir or guardian. The tenant cannot impart; 2 Saund. 44, n;. 1 Rop. on 
Prop. 430; the remedy being speedy. Fleta, lib. 5. o. 25, Sec. 8, p. 427. He 
pleads without defence. Rast. Ent. 232, b. lib. Int. fo. 15; Steph. Pl. 431 
Booth, 118; Jackson on Pl. 819. 

DOWRESS. A woman entitled to dower.
     2. In order to entitle a woman to the rights of a dowress at common 
law, she must have been lawfully married, her husband must be dead, he must 
have been seised, during the coverture, of an estate subject to dower. 
Although the marriage may be void able, if it is not absolutely void at his 
death, it is sufficient to support the rights of the dowress. The husband 
and wife must have been of sufficient age to consent. 
     3. At common law an alien could not be endowed, but this rule has been 
changed in several states. 2 John. Cas. 29; 1 Harr. & Gill, 280.; 1 Cowen, 
R. 89; 8 Cowen, R. 713. 
     4. The dowress' right may be defeated when her husband was not of right 
seised of an estate of inheritance; as, for example, dower will be defeated 
upon the restoration of the seisin under the prior title in the case of 
defeasible estates, as in case of reentry for a condition broken, which 
abolishes the intermediate seisin. Perk. s. 311, 312, 317. 

DOWRY. Formerly applied to mean that which a woman brings to her husband in 
marriage; this is now called a portion. This word is sometimes confounded 
with dower. Vide Co. Litt. 31; Civ. Code of Lo. art. 2317; Dig. 23, 3, 76; 
Code, 5, 12, 20. 

DRAGOMAN. An interpreter employed in the east, and particularly at the 
Turkish court. 
     2. The Act of Congress of August 26, 1842, c. 201, s. 8, declares that 
it shall not be lawful for the president of the United States to allow a 
dragoman at Constantinople, a salary of more than two thousand five hundred 
dollars. 

DRAIN. Conveying the water from one place to another, for the purpose of 
drying the former 
     2. The right of draining water through another map's land. This is an 
easement or servitude acquired by grant or prescription. Vide 3 Kent, Com. 
436 7 Mann. & Gr. 354; Jus aguaeductus; Rain water; Stillicidium. 

DRAWBACK, com. law. An allowance made by the government to merchants on the 
reexportation of certain imported goods liable to duties, which, in some 
cases, consists of the whole; in others, of a part of the duties which had 
been paid upon the importation. For the various acts of congress which 
regulate drawbacks, see Story, L. U. S. Index, h.t. 

DRAWEE. A person to whom a bill of exchange is addressed, and who is 
requested to pay the amount of money therein mentioned. 
     2. The drawee may be only one person, or there may be several persons. 
The drawee may be a third person, or a man may draw a bill on himself. 18 
Ves. jr. 69; Carth. 509; 1 Show. 163; 3 Burr. 1077. 
     3. The drawee should accept or refuse to accept the bill at furthest 
within twenty-four hours after presentment. 2 Smith's R. 243; 1 Ld. Raym. 
281 Com. Dig. Merchant, F 6; Marius, 15; but it is said the holder is 
entitled. to a definite answer if the mail go out in the meantime. Marius' 
62. In case the bill has been left with the drawee for his acceptance, he 
will be considered as having accepted it, if he keep the bill a great length 
of time, or do any other act which gives credit to the bill, and induces the 
holder not to protest it; or is intended as a surprise upon him, and to 
induce him to consider the bill as accepted. Chit. on Bills, 227. When he 
accepts it, it is his duty to pay it at maturity. 

DRAWER, contracts. The party who makes a bill of exchange.
     2. The obligations of the drawer to the drawee and every subsequent 
holder lawfully entitled to the possession, are, that the person on whom he 
draws is capable of binding himself by his acceptance that he is to be found 
at the place where he is described to reside, if a description be given in 
the bill; that if the bill be duly presented to him, he will accept in 
writing on the bill itself, according to its tenor, and that he will pay it 
when it becomes due, if presented in proper time for that purpose; and that 
if the drawee fail to do either, he, the drawer, will pay the amount, 
provided he have due notice of the dishonor. 3. The engagement of the drawer 
of a bill is in all its parts absolute and irrevocable. 2 H. Bl. 378; 3 B. & 
P. 291; Poth. Contr. de Change, n. 58; Chit. Bills, 214, Dane's Ab. h.t. 

DRAWING. A representation on paper, card, or other substance.
     2. The Act of Congress of July 4, 1836, section 6, requires all persons 
who apply for letters patent for an invention, to accompany their petitions 
or specifications with a drawing or drawings of the whole, and written 
references, when the nature of the case admits of drawings. 

DREIT. The same as Droit. (q.v.)

DRIFTWAY. A road or way over which cattle are driven. 1 Taunt. R. 279; Selw. 
N. P. 1037; Wool. on Ways, 1.  

DRIP. The right of drip is an easement by which the water which falls on 
one house is allowed to fall upon the land of another. 
     2. Unless the owner has acquired the right by grant or prescription, he 
has no right so to construct his house as to let the water drip over his 
neighbor's land. 1 Roll. Ab. 107. Vide Rain water; Stillicidium; and 3 Kent, 
Com. 436; Dig. 43, 23, 4 et 6; 11 Ad. & Ell. 40; S. C. 39 E. C. L. R. 21. 

DRIVER. One employed in conducting a coach, carriage, wagon, or other 
vehicle, with horses, mules, or other animals. 
     2. Frequent accidents occur in consequence of the neglect or want of 
skill of drivers of public stage coaches, for which the employers are 
responsible. 
     3. The law requires that a driver should possess reasonable skill and 
be of good habits for the journey; if, therefore, he is not acquainted with 
the road he undertakes to drive; 3 Bingh. Rep. 314, 321; drives with reins 
so loose that he cannot govern his horses; 2 Esp. R. 533; does not give 
notice of any serious danger on the road; 1 Camp. R. 67; takes the wrong 
side of the road; 4 Esp. R. 273; incautiously comes in collision with 
another carriage; 1 Stark. R. 423; 1 Campb. R. 167; or does not exercise a 
sound and reasonable discretion in travelling on the road, to avoid dangers 
and difficulties, and any accident happens by which any passenger is 
injured, both the driver and his employers will be responsible. 2 Stark. R. 
37; 3 Engl. C. L. Rep. 233; 2 Esp. R. 533; 11. Mass. 57; 6 T. R. 659; 1 
East, R. 106; 4 B. & A. 590; 6 Eng. C. L. R. 528; 2 Mc Lean, R. 157. Vide 
Common carriers Negligence; Quasi Offence.    

DROIT. A French word, which, in that language, signifies the whole 
collection of laws, written and unwritten, and is synonymous to our word 
law. It also signifies a right, il n'existe point de droits sans devoirs, et 
vice versa. 1 Toull. n. 96; Poth. h.t. With us it means right, jus. Co. 
Litt. 158. A person was said to have droit droit, plurimum juris, and 
plurimum possessionis, when he had the freehold, the fee, and the property 
in him. Id. 266; Crabb's H. Eng. L. 400. 

DROIT D'ACCESSION, French civil law. Specificatio. That property which is 
acquired by making a new species out of the material of another. Modus 
acquirendi quo quis ex aliena materia suo nomine novam speciem faciens bona 
fide ejus speciei dominium consequitur. It is a rule of the civil law, that 
if the thing can be reduced to the former matter, it belongs to the owner of 
the matter, e. g. a statue made of gold, but if it cannot so be reduced, it 
belongs to the person who made it, e. g. a statue made of marble. This 
subject is treated of in the Code Civil de Napoleon, art. 565 to 577; Merlin 
Repertoire de Jurisp. Accession; Malleville's Discussion, art. 565. The Code 
Napoleon follows. closely the Inst. of Just. lib . 2, tit. 1, Sec. 25, 28. 
     2. Doddridge, in his English Lawyer, 125-6, states the common law thus: 
" If a man take, wrongfully, the material which was mine and is permanent, 
not adding anything thereunto than the form, only by alteration thereof, 
such thing, so newly formed by an exterior form, notwithstanding, still 
remaineth mine, and may be seized again by me, and I may take it out of his 
possession as mine own. But they say, if he add some other matter thereunto; 
as, of another man's leather doth make shoes or boots, or of my cloth, 
maketh garments, adding to the accomplishment thereof of his own, he hath 
thereby altered the property, so that the first owner cannot seize the thing 
so composed, but is driven to his action to recover his remedy: howbeit, he 
adds, in a case of that nature depending, the court had determined that the 
first owner might seize the same, notwithstanding such addition. But if the 
thing be transitory in its nature by the change, as if one take ray corn or 
meal, and thereof make bread, I cannot, in that case, seize the bread, 
because, as the civil law speaketh, haec species facta ex materia aliens, in 
pristinam formam reduci non potest, ergo ei a quo est facta cedit. So some 
have said, if a man take my barley, and thereof make malt, because it is 
changed into another nature, it cannot be seized by me; but the rule is: 
That where the material wrongfully taken away, could not at first, before 
any alteration, be seized; for that it could not be distinguished. from 
other things of that kind, as corn, money, and such like; there those things 
cannot be seized because the property of those things cannot be: 
distinguished: for, if my money be wrongfully taken away, and he that taketh 
it do make plate; thereof, or do convert my plate into money, I cannot seize 
the same for that money is undistinguishable from other money of that coin. 
But, if a butcher take wrongfully my ox and doth kill it, and bring it into 
the market to be sold, I may not seize upon the flesh, for it: cannot be 
known from others of that, kind; but if it be found hanging in the skin, 
where the mark may appear, I may seize the same, although when it was taken 
from me it had life, and now is dead. So, if a man cut down my tree, and 
square it into a beam of timber, I may seize the same, for he bath neither 
altered the nature thereof, nor added anything but exterior form thereunto; 
but if he lay the beam of timber into the building of a house, I may not 
seize the same, for being so set it is become parcel of the house, and so in 
supposition of law, after a sort, altered in its nature. See Year Book 12 H. 
VIII. 9 b, 10 a; Bro. Ab. Property, 45; 5 H. VII. 15; Bro. Ab. Property, 23. 

DROITS OF ADMIRALTY. Rights claimed by the government over the property of 
an enemy. In England, it has been usual, in maritime wars, for the 
government to seize and condemn, as droits of admiralty, the property of an 
enemy found in her ports at the breaking out of hostilities. 1 Rob. R. 196; 
13 Ves. jr. 71; Edw. R. 60; 3 B. & P. 191. 

DROIT D'AUBAINE, jus albinatus. This was a rule by which all the property of 
a deceased foreigner, whether movable or immovable, was confiscated to the 
use of the state, to the exclusion of his heirs, whether claiming ab 
intestato, or under a will of the deceased. The word aubain signifies hospes 
loci, peregrinus advena, a stranger. It is derived, according to some, from 
alibi, elsewhere, natus, born, from which the word albinus is said to be 
formed. Others, as Cujas, derive the word directly from advena, by which 
word, aubains, or strangers, are designated in the capitularies of 
Charlemagne. See Du Cange and Dictionaire de Trevoux. 
     2. As the darkness of the middle ages wore away, and the light of 
civilization appeared, thing barbarous and inhospitable usage was by degrees 
discontinued, and is now nearly abolished in the civilized world. It 
subsisted in France, however, in full force until 1791, and afterwards, in a 
modified form, until 1819, when it was formally abolished by law. For the 
gross abuses of this feudal exaction, see Dictionaire de l'Ancien Regime et 
des abus feodaux. Aubain. See Albinatus jus. 

DROIT-CLOSE. The name of an ancient writ directed to the lord of ancient 
demesne, and which lies for those tenants in ancient demesne who hold their 
lands and tenements by charter in fee simple, in fee tail, for life, or in 
dower. F. N. B. 23. 

DROITURAL. What belongs of right; relating to right; as, real actions are 
either droitural or possessory; droitural, when the plaintiff seeks to 
recover the property. Finch's Law, 257. 

DRUNKENNESS. Intoxication with strong liquor.
     2. This is an offence generally punished by local regulations, more or 
less severely. 
     3. Although drunkenness reduces a man to a temporary insanity, it does 
not excuse him or palliate his offence, when he commits a crime during a fit 
of intoxication, and which is the immediate result of it. When the act is a 
remote consequence, superinduced by the antecedent drunkenness of the party, 
as in cases of delirium tremens or mania a potu, the insanity excuses the 
act. 5 Mison's R. 28; Amer. Jurist, vol. 3, p. 5-20; Martin and Yeager's. R. 
133, 147;. Dane's Ab. Index, h.t.; 1 Russ. on Cr. 7; Ayliffe's Parerg. 231 
4 Bl. Com. 26. 
     4. As there must be a will and intention in order to make a contract, 
it follows, that a man who is in such a state of intoxication as not to know 
what he is doing, may avoid a contract entered into by him while in this 
state. 2 Aik. Rep. 167; 1 Green, R. 233; 2 Verm. 97; 1 Bibb, 168; 3 Hayw. R. 
82; 1 Hill, R. 313; 1 South. R. 361; Bull. N. P. 172; 1 Ves. 19; 18 Ves. 15; 
3 P.  Wms. 130, n. a; Sugd. Vend. 154; 1 Stark. 126; 1 South. R. 361; 2 
Hayw. 394; but see 1 Bibb, R. 406; Ray's Med. Jur. ch. 23, 24; Fonbl. Eq. B. 
2, 3; 22 Am. Jur. 290; 1 Fodere, Med. Leg. Sec. 215. Vide Ebriosity; 
Habitua. drunkard. 

DRY. Used figuratively, it signifies that which produces nothing; as, dry 
exchange; dry rent; rent seek. 

DRY EXCHANGE, contracts. A term invented for disguising and covering usury; 
in which something, was pretended to pass on both sides, when in truth 
nothing passed on one side, whence it was called dry. Stat. 3 Hen. VII. c. 5 
Wolff, Ins. Nat. Sec. 657. 

DRY RENT, contracts. Rent-seek, was a rent reserved without a clause of 
distress. 

DUCAT. The name of a foreign coin. The ducat of Naples shall be estimated in 
the computations of customs, at eighteen cents. Act of May 22, 1846. 

DUCES TECUM, practice, evidence. Bring with thee. A writ commonly called a 
subpoena duces tecum, commanding the person to whom it is directed to bring 
with him some writings, papers, or other things therein specified and 
described, before the court. 1 Phil. Ev. 886. 
     2. In general all papers in the possession of the witness must be 
produced; but to this general rule there are exceptions, among which are the 
following: 1. That a party is not bound to exhibit his own title deeds. 1 
Stark. Ev. 87; 8 C. & P. 591; 2 Stark. R. 203; 9 B. & Cr. 288. 2. One who 
has advanced money on a lease, and holds it as his security, is not bound to 
produce it. 6 C. & P. 728. 3. Attorneys and solicitors who hold the papers 
of their clients cannot be compelled to produce them, unless the client 
could have been so compelled. 6 Carr. & P. 728. See 5 Cowen, R. 153, 419; 
Esp. R. 405; 11 Price, R. 455; 1 Adol. & Ell. 31; 1 C. M. & R. 38 1 Hud. & 
Brooke, 749. On the question how far this clause is obligatory on a witness, 
see 1 Dixon on Tit. Deeds, 98, 99, 102; 1 Esp. N. P. Cas. 405; 4 Esp. N. P. 
C. 43; 9 East, Rep. 473. 

DUCKING-STOOL, punishment. An instrument used, in dipping women in the 
water, as a punishment, on conviction of being common scolds. It is 
sometimes confounded with tumbrel. (q.v.) 
     2. This barbarous punishment was never in use in Pennsylvania. 12 Serg. 
& Rawle, 220. 

DUCROIRE. This is a French word, which has the same meaning as the Italian 
phrase del credere. (q.v.) 2 Pard. Dr. Com. n. 564. 

DUE. What ought to be paid; what may be demanded. It differs from owing in 
this, that, sometimes, what is owing is not due; a note, payable thirty days 
after date, is owing immediately after it is delivered to the payee, but it 
is not due until the thirty days have elapsed. 
     2. Bills of exchange, and promissory notes, are not, due until the end 
of the three days of grace, (q.v.) unless the last of these days happen to 
fall on a Sunday, or other holy day, when it becomes due on the Saturday 
before, and not on the Monday following. Story, P. N. Sec. 440; 1 Bell's 
Com. 410 Story on Bills, Sec. 283; 2 Hill, N. Y. R. 587; 2 Applet. R. 264. 
     3. Due also signifies just or proper; as, a due presentment, and demand 
of payraent, must be made. See 4 Rawle, 307; 3 Leigh, 389; 3 Cranch, 300. 

DUE-BILL. An acknowledgment of a debt, in writing, is so called. This 
instrument differs from a promissory note in many particulars; it is not 
payable to order, nor is it assignable by mere endorsement. See I 0 U; 
Promissory notes. 

DUELLING, crim. law. The fighting of two persons, one against the other, at 
an appointed time and place, upon a precedent quarrel. It differs from an 
array in this, that the latter occurs on a sudden quarrel, while the former 
is always the result of design. 
     2. When one of the parties is killed, the survivor is guilty of murder. 
1 Russ. on Cr. 443; 1 Yerger's R. 228. Fighting a duel, even where there is 
no fatal result, is, of itself, a misdemeanor. Vide 2 Com. Dig. 252; 
Roscoe's Cr. Ev. 610; 2 Chit. Cr. Law, 728; Id. 848; Com. Dig. Battel, B; 3 
Inst. 157; 6 East, 464 Hawk. B. 1, c. 31, s. 21; 3 East, R. 581 3 Bulst. 171 
4 Bl. Com. 199 Prin. Pen. Law, c. 19, p 245; Const. R. 107; 1 Stew. R. 506; 
20 John. 457; 3 Cowen, 686. For cases of mutual combat, upon a sudden 
quarrel, Vide 1 Russ. on Cr. 495. 

DUKE. The title given to those who are in the highest rank of nobility in 
England. 

DUM FUIT INFRA AETATEM. The name of a writ which lies when an infant has 
made a feoffment in fee of his lands, or for life, of a gift in tail. 
     2. It may be sued out by him after he comes of full age, and not 
before; but, in the mean time, he may enter, and his entry remits him to his 
ancestor's rights. F. N. B. 192; Co. Litt. 247, 337. 

DUM SOLA. While single or unmarried. This phrase is applied to single women, 
to denote that something has been done, or may be done, while the woman is 
or was unmarried. Example, when a judgment is rendered against a woman dum 
sola, and afterwards she marries, the scire facias to revive, the judgment 
must be against both husband and wife. 

DUM NON FUIT COMPOS MENTIS, Eng. law. The name of a writ, which the heirs of 
a person who was non compos mentis, and who aliened his lands, might have 
sued out, to restore him to his rights. T. L. 

DUMB. One who cannot speak; a person who is mute. See Deaf and dumb, Deaf, 
dumb, and blind; Mute, standing mute. 

DUMB-BIDDING, contracts. In sales at auction, when the amount which the 
owner of the thing sold is willing to take for the article, is written, and 
placed by the owner under a candlestick, or other thing, and it is agreed 
that no bidding shall avail unless equal to that; this is called dumbidding. 
Babingt. on Auct. 44. 

DUNG. Manure. Sometimes it is real estate, and at other times personal 
property. When collected in a heap, it is personal estate; when spread out
on the land, it becomes incorporated in it, and it is then real estate. Vide 
Manure. 

DUNGEON. A cell under ground; a place in a prison built under ground, dark, 
or but indifferently lighted. In the prisons of the United States, there are 
few or no dungeons. 

DUNNAGE, mer. law. Pieces of wood placed against the sides and bottom of the 
hold of a vessel, to preserve the cargo from the effect of leakage, 
according to its nature and quality. 2 Magens, 101, art. 125, 126 Abbott on 
Shipp. 227. 

DUPEX QUERELA, Eng. eccl. law. A complaint in the nature of an appeal from 
the ordinary to his next immediate superior. 3 Bl. Com 247. 

DUPLICATA. It is the double of letters patent, letters of administration, or 
other instrument. 

DUPLICATE. The double of anything.
     2. It is usually applied to agreements, letters, receipts, and the 
like, when two originals are made of either of them. Each copy has the same 
effect. The term duplicate means a document, which is essentially the same 
as some other instrument. 7 Mann. & Gr. 93. In the English law, it also 
signifies the certificate of discharge given to an insolvent debtor, who 
takes the benefit of the act for the relief of insolvent debtors. 
     3. A duplicate writing has but one effect. Each duplicate is complete 
evidence of the intention of the parties. When a duplicate is destroyed, for 
example, in the case of a will, it is presumed. both are intended to be 
destroyed; but this presumption possesses greater or less force) owing to 
circumstances. When only one of the duplicates is in the possession of the 
testator, the destruction of that is a strong presumption of an intent to 
revoke both; but if he possessed both, and destroys but one, it is weaker; 
when he alters one, and afterwards destroys it , retaining the other entire, 
it has been held that the intention was to revoke both. 1 P. Wms. 346; 13 
Ves. 310 but that seems to be doubted. 3 Hagg. Eccl. R. 548. 

DUPLICATUM JUS, a twofold or double right. Those words, according to 
Bracton, lib. 4, c. 3, signify the same as dreit dreit, or droit droit, and 
are applied to a writ of right, patent, and such other writs of right as are 
of the same nature, and do, as it were, flow from it, as the writ of right. 
Booth on Real Actions, 87. 

DUPLICITY, pleading. Duplicity of pleading consists in multiplicity of 
distinct matter to one and the same thing, whereunto several answers are 
required. Duplicity may occur in one and the same pleading. Double pleading 
consists in alleging, for one single purpose or object, two or more distinct 
grounds of defence, when one of them would be as effectual in law, as both 
or all. 
     2. This the common law does not allow, because it produces useless 
prolixity, and always tends to confusion, and to the multiplication of 
issues. Co. Litt. 304, a; Finch's Law, 393.; 3 Bl. Com. 311; Bac. Ab. Pleas, 
K 1. 
     3. Duplicity may be in the declaration, or the subsequent proceedings: 
Duplicity in the declaration consists in joining, in one and the same count, 
different grounds of action, of different natures, Cro. Car. 20; or of the 
same nature, 2 Co. 4 a; 1 Saund. 58, n. 1; 2 Ventr. 198; Steph. Pl. 266; to 
enforce only a single right of recovery. 
     4. This is a fault in pleading, only because it tends to useless 
prolixity and confusion, and is, therefore, only a fault in form. The rule 
forbidding double pleading "extends," according to Lord Coke, "to pleas 
perpetual or peremptory, and not to pleas dilatory; for in their time and 
place a man may use divers of them." Co. Litt. 304, a. But by this is not 
meant that any dilatory plea way be double, or, in other words, that it way 
consist of different matters, or answers to one and the same thing; but 
merely that, as there are several kinds or classes of dilatory pleas, having 
distinct offices or effects, a defendant may use "divers of them" 
successively, (each being in itself single,) in their proper order. Steph. 
Pl. App. note 56. 
     5. The inconveniences which were felt in consequence of this strictness 
were remedied by the statute, 4 Ann. c. 16, s. 4, which provides, that " it 
shall be lawful for any defendant, or tenant, in any action or suit, or for 
any plaintiff in replevin, in any court of record, with leave of the court 
to plead as many several matters thereto as he shall think necessary for his 
defence." 
     6. This provision, or a similar one, is in force, probably, in most of 
the states of the American Union. 
     7. Under this statute, the defendant may, with leave of court, plead as 
many different pleas in bar, (each being a single,) as he may think proper; 
but although this statute allows the defendant to plead several distinct and 
substantive matters of defence, in several distinct pleas, to the whole, or 
one and the same part of the plaintiff's demand; yet, it does not authorize 
him to allege more than one, ground of defence in one plea. Each plea must 
still be single, as by the rules of the common law. Lawes, Pl. 131; 1 Chit. 
Pl. 512. 
     8. This statute extends only to pleas to the declaration, and does not 
embrace replications, rejoinders, nor any of the subsequent pleadings. 
Lawes, Pl. 132; 2 chit. Pl. 421; Com. Dig. Pleader, E 2; Story's Pl. 72, 76; 
5 Am. Jur. 260-288. Vide) generally, 1 Chit. Pl. 230, 512; Steph. Pl. c. 2, 
s. 3, rule 1; Gould on Pl. c. 8, p. 1; Archb. Civ. Pl. 191; Doct. Pl. 222; 5 
John. 240; 8 Vin. Ab. 183; U. S. Dig. Pleading, II. e and f. 

DURANTE. A term equivalent to during, which is used in some law phrases, as 
durante absentia, during absence; durante minor cetate, during minority; 
durante bene placito, during our good pleasure. 

DURANTE ABSENTIA. When the executor is out of the jurisdiction of the court 
or officer to whom belongs the probate of wills and granting letters of 
administration, letters of administration will be granted to another during 
the absence of the executor; and the person thus appointed is called the 
administrator durante absentia. 

DURANTE MINORE AETATE. During the minority.
     2. During his minority, an infant can enter into no contract, except 
those for his benefit. If he should be appointed an executor, administration 
of the estate will be granted, durante minore &,tate, to another person. 2 
Bouv. Inst. n. 1555. 

DURESS. An actual or a threatened violence or restraint of a man's person, 
contrary to law, to compel him to enter into a contract, or to discharge 
one. 1 Fairf. 325. 
     2. Sir William Blackstone divides duress into two sorts: First. Duress 
of imprisonment, where a man actually loses his liberty. If a man be 
illegally deprived of his liberty until he sign and seal a bond, or the 
like, he may allege this duress, and avoid the bond. But, if a man be 
legally imprisoned, and either to procure his discharge, or on any other 
fair account, seal a bond or a deed, this is not by duress of imprisonment, 
and he is not at liberty to avoid it. 2 Inst. 482; 3 Caines' R. 168; 6 Mass. 
R. 511; 1 Lev. 69; 1 Hen. & Munf. 350; 5 Shepl. R. 338. Where the 
proceedings at, law are a mere pretext, the instrument may be avoided. 
Aleyn, 92; 1 Bl. Com. 136. 
     3. Second. Duress per minas, which is either for fear of loss of life, 
or else for fear of mayhem, or loss of limb,; and this must be upon a 
sufficient reason. 1 Bl. Com. 131. In this case, a man way avoid his own 
act. Id. Lord Coke enumerates four instances in which a man may avoid his 
own act by reason of menaces: 1st. For fear of loss of life. 2d. Of member. 
3d. Of mayhem. 4th. Of imprisonment. 2 Inst. 483; 2 Roll. Abr. 124 Bac. Ab. 
Duress; Id. Murder, A; 2 Str. R. 856 Fost. Cr. Law, 322; 2 St. R. 884 2 Ld. 
Raym. 1578; Sav. Dr. Rom. Sec. 114. 
     4. In South Carolina, duress of goods, under circumstances of great 
hardship, will avoid a contract. 2 Bay R. 211 Bay, R. 470. But see Hardin, 
R. 605; 2 Gallis. R. 337. 
     5. In Louisiana consent to a contract is void if it be produced by 
violence or threats, and the contract is invalid. Civ. Code of Louis. art. 
1844. 
     6. It is not every degree of violence or any hind of threats, that will 
invalidate a contract; they must be such as would naturally operate on a 
person of ordinary firmness, and inspire a just fear of great injury to 
person, reputation or fortune. The age, sex, state of health; temper and 
disposition of the party, and other circumstances calculated to give greater 
or less effect to the violence or threats, must be taken into consideration. 
Id. art. 1845. The author of Fleta states the rule of the ancient common law 
thus: "Est autem metus praesentis vel futuri periculi causa mentis 
trepidatio; est praesertim viri constantis et non cujuslibet vani hominis 
vel meticulosi et talis debet esse metus qui in se contineat, mortis 
periculum, vel corporis cruciatura." 
     7. A contract by violence or threats, is void, although the party in 
whose favor the contract is made, and not exercise the violence or make the 
threats, and although he were ignorant of them. Id. 1846. 
     8. Violence or threats are cause of nullity, not only where they are 
exercised on the contracting party, but when the wife, the husband, the 
descendants or ascendants of the party are the object of them. Id. 1847. 
Fleta adds on this subject: "et exceptionem habet si sibi ipsi inferatur vis 
et metus verumetiam si vis ut filio vel filiae, patri vel fratri, vel sorori 
et ahis domesticis et propinquis." 
     9. If the violence used be only a legal constraint, or the threats only 
of doing that which the party using them had a right to do, they shall not 
invalidate the contract A just and legal imprisonment, or threats of any 
measure authorized by law, and the circumstances of the case, are of this 
description. Id. 1850. See Norris Peake's Evid. 440, and the cases cited 
also, 6 Mass. Rep. 506, for the general rule at common law. 
    10. But the mere forms of law to cover coercive proceedings for an 
unjust and illegal cause, if used or threatened in order to procure the 
assent to a contract, will invalidate it; an arrest without cause of action, 
or a demand of bail in an unreasonable sum, or threat of such proceeding, by 
this rule invalidate a contract made under their pressure. Id. 1851. 
    11. All the above, articles relate to cases where there may be some 
other motive besides the violence or threats for making the contract. When, 
however, there is no other cause for making the contract, any threats, even 
of slight injury, will invalidate it. Id. 1853. Vide, generally, 2 Watts, 
167; 1 Bailey, 84; 6 Mass. 511; 6 N. H. Rep. 508; 2 Gallis. R. 337. 

DUTIES. In its most enlarged sense, this word is nearly equivalent to taxes, 
embracing all impositions or charges levied on persons or things; in its 
more restrained sense, it is often used as equivalent to customs, (q.v.) or 
imposts. (q.v.) Story, Const. Sec. 949. Vide, for the rate of duties 
payable on goods and merchandise, Gord. Dig. B. 7, t. 1, c. 1; Story's L. U. 
S. Index, h.t. 

DUTY, natural law. A human action which is, exactly conformable to the laws 
which require us to obey them. 
     2. It differs from a legal obligation, because a duty cannot always be 
enforced by the law; it is our duty, for example, to be temperate in eating, 
but we are under no legal obligation to be so; we ought to love our 
neighbors, but no law obliges us to love them. 
     3. Duties may be considered in the relation of man towards God, towards 
himself, and towards mankind. 1. We are bound to obey the will of God as far 
as we are able to discover it, because he is the sovereign Lord of the 
universe who made and governs all things by his almighty power, and infinite 
wisdom. The general name of this duty is piety: which consists in 
entertaining just opinions concerning him, and partly in such affections 
towards him, and such, worship of him, as is suitable to these opinions. 
     4.-2. A man has a duty to perform towards himself; he is bound by the 
law of nature to protect his life and his limbs; it is his duty, too, to 
avoid all intemperance in eating and drinking, and in the unlawful 
gratification of all his other appetites. 
     5.-3. He has duties to perform towards others. He is bound to do to 
others the same justice which he would have a right to expect them to do to 
him. 

DWELLING: HOUSE. A building inhabited by man. A mansion. (q.v.)
     2. A part of a house is, in one sense, a dwelling house; for example, 
where two or more persons rent of the owner different parts of a house, so 
as to have among them the whole house, and the owner does not reserve or 
occupy any part, the separate portion of each will, in cases of burglary, be 
considered the dwelling house of each. 1 Mood. Cr. bas. 23. 
     3. At common law, in cases of burglary, under the term dwelling house 
are included the out-houses within the curtilage or common fence with the 
dwelling house. 3 Inst. 64; 4 Bl. Com. 225; and vide Russ & Ry. Cr. Cas. 
170; Id. 186; 16 Mass. 105; 16 John. 203; 18 John. 115; 4 Call, 109; 1 
Moody, Cr. Cas. 274; Burglary; Door; House; Jail; Mansion. 

DYING DECLARATIONS. When a man has received a mortal wound or other injury, 
by which he is in imminent danger of dying, and believes that he must die, 
and afterwards does die, the statements he makes as to the manner in which 
he received such injury, and the person who committed it, are called his 
dying declarations. 
     2. These declarations are received in evidence against the person thus 
accused, on the ground that the party making them can have no motive but to 
tell the truth. The following lines have been put into the mouth of such a 
man: 
           Have I not hideous Death before my view,
           Retaining but a quantity of life, 
           Which bleeds away, even as a form of wax
           Resolveth from his figure 'gainst the fire ?
           What in the world should make me now deceive,
           Since I must lose the use of all deceit?
           Why then should I be false, since it is true
           That I must die here, and live hence by truth.

See Death; Deathbed or dying declarations; Declarations.

DYNASTY. A succession of kings in the same line or family; government; 
sovereignty. 

DYSNOMY. Bad legislation; the enactment of bad laws. 

DYSPEPSIA, med. jur., contracts. A state of the stomach in which its 
functions are disturbed, without the presence of other diseases; or when, if 
other diseases are present, they are of minor importance. Dunglison's Med. 
Dict. h.t. 
     2. Dyspepsia is not, in general, considered as a disease which tends to 
shorten life, so as to make a life uninsurable; unless the complaint has 
become organic dyspepsia, or was of such a degree at the time of the 
insurance, as, by its excess, to tend to shorten life. 4 Taunt. 763. 

DYVOUR, Scotch law. A bankrupt.

DYVOUR'S HABIT. Scotch law. A habit which debtors, who are set free on a 
cessio bonorum, are obliged to wear, unless in the summons and process of 
cessio, it be libelled, sustained, and proved that the bankruptcy proceeds 
from misfortune. And bankrupts are condemned to submit to the habit, even 
where no suspicion of fraud lies against them, if they have been dealers in 
an illicit trade. Ersk. Pr. L. Scot. 4, 3, 13. This practice was bottomed on 
that of the Roman civil law, which Filangierl says is better fitted to 
excite laughter than compassion. He adds: " Si conduce il debitore vicino ad 
una colonna a quest officio destinata, egli l'abbraccia nel mentre, che uno 
araldo grida Cedo bonis ed un al tro gli abza le vesti, e palesa agli 
spettatori le sue natiche. Finita questa ceremonia il debitore messo in 
liberta." Filangieri della legislazione, cap. iv.