DAM. A  construction of  wood, stone, or other materials, made
across a  stream of  water for  the purpose  of confining  it;  a

   2. The owner of a stream not navigable, may erect a dam across
it, and employ the water in any reasonable manner, either for his
use or  pleasure,  so  as  not  to  destroy  or  render  useless,
materially diminish,  or affect  the application  of the water by
the proprietors  below on  the stream. He must not shut the gates
of his  dams and detain the water unreasonably, nor let it off in
unusual quantities  to the  annoyance of  his neighbors.  4 Dall.
211;   3 Caines,  207;  13 Mass. 420;  3 Pick, 268;  2 N. H. Rep.
532;   17 John.  306;   3 John.  Ch. Rep.  282;  3 Rawle, 256;  2
Conn. Rep.  584;  5 Pick. 199;  20 John. 90;  1 Pick. 180;  4 Id.
460;   2 Binn. 475;  14 Srrg. & Rawle, 71;  Id. 9;  13 John. 212;
1 McCord,  580;   3 N. H. Rep. 321;  1 Halst. R. 1;  3 Kents Com.

   3. When  one side of the stream is owned by one person and the
other by  another, neither, without the eonsent of the other, can
build a  dam which  extends beyond  the filum aqua, thread of the
river, without  committing a  trespass. Cro. Eliz. 269;  12 Mass.
211;  Ang. on W. C. 14, 104, 141;  vide Lois des Bat. P. 1, c. 3,
s. 1, a. 3;  Poth. Traite du Contrat de Societe, second app. 236;
Hill. Ab.  Index, h.  t.;   7 Cowen, R. 266;  2 Watts, R. 327;  3
Rawle, R. 90;  17 Mass. R. 289;  5 Pick. R. 175;  4 Mass. R. 401.
Vide Inundation.

   DAMAGE, torts. The loss caused by one person to another, or to
his property,
either with  the design  of injuring  him,  with  negligence  and
carelessness, or by inevitable accident.

   2. He  who has caused the damage is bound to repair it and, if
he has  done it  maliciousiy, he  may be. compelled to pay beyond
the actual loss. When damage occurs by accident, without blame to
anyone, the loss is borne by the owner of the thing injured;  as,
if a  horse run  away with  his rider,  without any  fault of the
latter, and  injure the property of another person, the injury is
the loss  of the  owner of  the thing. When the damage happens by
the act of God, or inevitable accident, as by tempest, earthquake
or other natural cause, the loss must be borne by the owner. Vide
Com. Dig. h. t.;  Sayer on Damages.

  3. Pothier defines damage (dommiges et interets) to be the loss
which some one has sustained, and the gain which he has failed of
making. Obl. n. 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

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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.

   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.

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   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;

   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. §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  settlling  the
average. Marsh.  Inst. B. 1, c. 14, s. 2, p. 621. See Adjustment;

  DAMAGES, EXCESSIVE. Such damages as are unreasonably great, and
not warranted by law.

   2. The  damages are  excessive in the following cases: 1. When
they are gre-ater than is demanded by the writ and declaration. 6
Call 85;   7  Wend.  330.  2.  When  they  are  greater  than  is
authorized by  the rules and principles of law, as in the case of
actions upon  contracts, or for torts done to property, the value
of which  may be  ascertained by  evidence. 4  Mass. 14;  5 Mass.
435;  6 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.

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  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

   2. The  discordant and  shifting regulaaions  on this  subject
which have  been enacted  in the several states, render it almost
impossible to  give a correct view of this subject. The drawer of
a bill  of exchange  may limit  the amount of damages by making a
memorandum in  the bill,  that they shall be a definite sum;  as,
for  example,   "In  case   of  non-acceptance   or  non-payment,
reexchange and  expenses not  to exceed  ___________  dollars.  1
Bouv. Inst.  n. 1133.  The following  abstract  of  the  laws  of
several  of   the  United  States,  will  be  acceptable  to  the
commercial lawyer.

   3. -  Alabama. 1. When drawn on a person in the United States.
By the  Act of  January 15, 1828, the damages on a protested bill
of exchange drawn on a person, either in this or any other of the
United States, are ten per cent. By the Act of December 21, 1832,
the damages  on such  bills drawn on any person in this state, or
upon any person payable in New Orleans, and purchased by the Bank
of Alabama or its branches, are five per cent.

   4. -  2. Damages  on protested bills drawn on on person out of
the United States are twenty per cent.

   5. -  Arkansus. 1.  It is  provided by the Act of February 28,
1838, s.  7, Ark.  Rev. Stat.  150, that  "every bill of exchange
expressed to  be for  value received,  drawn or negotiated within
this state,  payable after  date, to order or bearer, which shall
be duly  presented for  acceptance or  payment, and protested for
non-acceptance or non-payment, shall be subject to damages in the
following cases: first, if the bill have been drawn on any person
at any  place within this state, at the rate of two per centum on
the principal  sum specified  in the  bill;   second, if the bill
shall be drawn on any person, and payable in any of the states of
Alabama,  Louisiana,   Mississippi,  Tennessee,  Kentucky,  Ohio,
Indiana, Illinois,  and Missouri, or any point on the Ohio river,

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at the  rate of four per centum on the principal sum in such bill
specified: third,  if the  bill shall  have  been  drawn  on  auy
person, and  payable at any place within the Iimits of the United
States, not  hereinbefore expressed,  at the  rate  of  five  per
centum on the principal sum specified in the bill: fourth, if the
bill shall  have been  drawn on  any person,  and payable  at any
point or  place beyond  the limits  of the  United States, at the
rate of ten per centum on the sum specified in the bill.

   6. - 2. And by the 8th section of the same act, if any bill of
exchange expressed  to be for value received, and made payable to
order or bearer, shall be drawn on any person at any place within
this state,  and accepted  and protested  for non-payment,  there
shall be allowed and paid to the holder, by the acceptor, damages
in the following cases: first, if the bill be drawn by any person
at any  place within  this sate, at the rate of two per centum on
the principal sum therein specified: second, if the bill be drawn
at any  place without  this state,  but within  the limits of the
United States,  at teh  rate of six per centum on the sum therein
specified: third, if the bill be drawn on any person at any place
without the  limites of  the United Sates, at the rate of ten per
centum on  the sum therein specified. And, by sect 9, in addition
to the damages allowed inthe two preceding sections to the holder
of  any   bill  of   exchange  protested   for   non-payment   or
nonacceptance, he  shall be  entitled to  costs of  protest,  and
interest at  the rate  of ten per centum per annum, on the amount
specified in  the bill,  from the  date of  teh protest until the
amount of the bill shall be paid."

   7. - Connecticut. 1. When drawn on another place in the United
States. When  drawn upon persons in the city of New York, two per
cent. When  in other  parts of  the state of New York, or the New
England states  (other  than  this,)  New  Jersey,  Pennsylvania,
Delaware, maryland,  Virginia, or the District of Columbia, three
per cent. When on persons in North or South Carolina, Georgia, or
Ohio, five  per cent.  On other states, territories or districts,
in the  United States,  eight per  cent, on  the principal sum in
each case,  with interest  on the  amount of  such sum,  with the
damage after  notice and  demand. Stat. tit. 71, Notes and Bills,
413, 414.  When drawn  on  persons  residing  in  Connecticut  no
damages are allowed.

   8. -  2. When  the bill  is drawn  on person out of the United
States, twenty  per cent  is said  to be  the amount  which ought
reasonably to  be allowed. Swift's Ev. 336. There is no statutory
provision on the subject.

   9. - Delaware. If any person shall draw or endorse any bill of
exchange upon  any person in Europe, or beyond seas, and the same
shall be  returned back  unpaid, with a legal protest, the drawer
there and  all others  concerned  shall  pay  and  discharge  the
contents of  the said bill, together with twenty per cent advance
f or  the damage thereof;  and so proportionably for a greater or
less sum,  in the  sam specie  as the  same bill  was  drawn,  or

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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  allonved on  protested  bills  of
exchange drawn  in the  state, on  a person  in the state, except
bank bills,  on which the damages are ten per cent for refusal to
pay in  specie. 4  Laws of Geo. 75. Secondly, upon bills drawn or
negotiated in  the state  on persons out of the state, but within
the United  States, five  per cent,  and interest.  Act of  1823,
Prince's Dig. 454;  4 Laws of Geo. 212.

  11. - 2. When drawn upon a person out of the United States, ten
per cent.  damages and  postage, protest  and necessary expenses;
also the  premium, if  any, on the face of the bill;  but if at a
discount, the  discount must  be deducted.  Act of 1827, Prince's
Dig. 462;  4 Laws of Geo. 221.

   12. -  Indiana. 1.  When drawn  by a  person in  the state  on
another person in Indiana, no damages are allowed.

  13. - 2. When drawn on a person in another state, territory, or
district, five  per cent.  3. When  drawn on  a person out of the
United States, ten percent. Rev. Code, c. 13, Feb. 17, 1838.

   14. -  Kentucky. 1.  When drawn  by a  person in Kentucky on a
person in  the state,  or  in  any  other  state,  territory,  or
district of the United Stateg, no damages are allowed. See, Acts,
Sessions of 1820, p. 823.

   15. -  2. When  on a  person in a foreign country, damages are
given at  the rate of ten per cent. per ann. from the date of the
bill until paid, but not more than eighteen months interest to be
collected. 2 Litt. 101.

   16. -  Louisiana. The  rate of  damages to be allowed and paid
upon the  usual protest for non-acceptance, or for non-payment of
bills of  exchange, drawn  or negotiated within this state in the
following cases, is as follows: on all bills of exchange drawn on
or payable  in foreign  countries, ten  dollars upon  the hundred
upon the  principal sum specified in such bills;  on all bills of
exchange, drawn  on and  payable in  other states  in the  United
States, five  dollars upon  the hundred  upon the  principal  sum
specified in such bill. Act of March 7, 1838, s. 1.

   17. By  the second section of the same act it is provided that
such damages shall be in lieu of interest, charge of protest, and
all other charges, incurred previous to the time of giving notice
of non-acceptance  or non-payment;  but the principal and damages
shall bear interest thereafter.

   18. By  section 3, it is enacted, that if the contents of such
bill be  expressed in  the money of account of the United States,
the amount of the principal and of the damages herein allowed for

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the  non-acceptance  or  non-payment  shall  be  ascertained  and
determined,  without  any  reference  to  the  rate  of  exchange
existing between  this state  and the  place on  which such  bill
shall have  been drawn,  at the time of the payment, on notice of
non-acceptance or non- payment.

   19. -  Maine. 1.  When drawn payable in the United States. The
damages in  addition to  the interest  are as follows: if for one
hundred dollars  or more, and drawn, accepted, or endorsed in the
state, at  a place,  seventy-five miles  distant from  the  place
where drawn, one per cent.;  if, for any sum drawn, accepted, and
endorsed in  this state,  and payable  in New Hampshire, Vermont,
Connecticut, Rhode  Island, or  New York,  three per  cent;    if
payable  in   New  Jersey,   Pennsylvania,  Delaware,   Maryland,
Virginia, South  Carolina, Georgia,  or the District of Columbia,
six per  cent.;   if payable  in any  other state, nine per cent.
Rev. St. tit. 10 c. 115, §§110, 111.

   20. -  2. Out of the United States, no statutory provision. It
is the  usage to allow the holder of the bill the money for which
it was  drawn, reduced  to the currency of the state, at par, and
also the  charges of  protest with  American interest  upon those
sums from  the time  when the  bill should have been paid and the
further sum  of one-tenth  of the  money for  which the  bill was
drawn, with  interest upon  it  from  the  time  payment  of  the
dishonored bill  was demanded of the drawer. But nothing has been
allowed for  re-exchange, whether  it is  below or above par. Per
Parsons, Ch. J. 6 Mass. 157, 161 see 6 Mass. 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

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District of  Columbia, five  per centum;  if payable elsewhere in
the United  States, out  of Michigan, ten per cent. Rev. St. 156,
S. 10.

   27. - 3. When the bill is drawn within this state, and payable
out of  the United  States, the party liable must pay the same at
the current  rate of  exchange at  the time of demand of payment,
and damages  at the  rate of  five  per  cent.  on  the  contents
thereof, together  with interest on the said contents, which must
be computed, from the date of the protest, and are in full of all
damages and charges and expenses. Rev. Stat. 156, s. 9.

  28. - Mississippi. 1. When drawn on a person in the state, five
per cent.  damages are allowed. How. & Hutch. 376, ch. 35, s. 20,
L. 1827;  How. Rep. 3. 195.

   29. - 2. When drawn on a person in another state or territory,
no damages  are given.  Id. 3.  When drawn on a person out of the
United States,  ten per  cent. damages are given, and all charges
incideutal thereto,  with lawful interest. How. & Hutch. 376, ch.
35, s. 19, L. 1837.

   30. -   Missouri.  1. When drawn on a person within the state,
four per  cent. damages  on the  sum specified  in the  bill  are
given. Rev. Code, 1835, §8, cl. 1, p. 120.

  31. - 2. When on another state or territory, ten per cent. Rev.
Code, 1835,  §8, cl.  2, p.  120. 3.  When on a person out of the
Unted States,  twenty per  cent. Rev.  Code, 1835,  §8, cl. 3, p.

   32. -  New York.  By the Revised Statutes, Laws of N. Y. sess.
42, ch.  34, it  is provided  that upon bills drawn or negotiated
within the  state upon  any person,  at any  place within the six
states east  of New  York, or  in New Jersey, Pennsylvania, Ohio,
Delaware, Maryland,  Virginia, or  the District  of Columbia, the
damages to  be allowed  and  paid  upon  the  usual  protest  for
non-acceptance or  non-payment, to  the holder  of the  bill,  as
purchase thereof,  or of  some interest  therin, for  a  valuable
consideration, shall  be three  per cent.  upon the principal sum
specified in  the bill;   and upon any person at any place within
the states  of North Carolina, South Carolina, Georgia, Kentucky,
and Tennessee,  five percent;   and  upon any person in any other
state or  territory of  the United  States, or at any other place
on, or  adjacent to, this continent, and north of the equator, or
in any  British or  foreign possessions  in the  West Indies,  or
elsewhere in  the Western  Atlantic Ocean,  or in Europe, ten per
cent. The  damages are  to be  in lieu  of interest,  charges  of
protest, and  all other  charges incurred previous to, and at the
time of,  giving notice of non-acceptance or non-payment. But the
holder will  be entitled  to demand and recover interest upon the
aggregate amount  of the principal sum specified in the bill, and
the  damages   from  time   of  notice   of   the   protest   for
non-acceptance,  or   notice  of   a  demand   and  protest   for

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non-payment. If  the contents  of the  bill be  expressed in  the
money of  account of  the United  States, the amount due thereon,
and  the   damages  allowed   for  the  non-payment,  are  to  be
ascertained and  determined, without  reference to  the  rate  of
exchange existing  between New  York and  the place  on which the
bill is  drawn. But  if the contents of the bills be expressed in
the money  of account  or currency  of any foreign. country, then
the amount  due, exclusive  of the  damages, is to be ascertained
and determined  by the  rate of  exchange, or  the value  of such
foreign currency, at the time of the demand of payment.

   33. - Pennsylvania. The Act of March 30, 1821, entitled an act
concerning bills  of exchange,  enacts, that,  §1, "whenever  any
bill of  exchange hereafter  be drawn  and endorsed  within  this
commonwealth, upon  any person or persons, or body corporate, of,
or in  any other  state, territory,  or place,  shall be returned
unpaid with  a legal  protest, the  person or persons to whom the
same shall  or may  be payable,  shall be entitled to recover and
receive of  and from  the drawer  or drawers,  or the endorser or
endorsers of  such bill  of  exchange,  the  damages  hereinafter
specified, over  and above  the principal sum for which such bill
of exchange  shall have  been drawn,  and the charges of protest,
together with  lawful interest  on the  amount of  such principal
sum, damages  and charges  of protest,  from the  time  at  which
notice of  said protest shall have been given, and the payment of
said principal  sum and damages, and charges of protest demanded;
that is  to say,  if such  bill shall  have been  drawn upon  any
person or persons, or body corporate, of, or in any of the United
States or  territories thereof, excepting the state of Louisiana,
five per  cent. upon  such principal  sum;  if upon any person or
persons, or body corporate, of, or in Louisiana, or of, or in any
other state  or place  in North  America, or the islands thereof,
excepting the northwest coast of America and Mexico, or of, or in
any of  the West India or Bahama Islands, ten per cent. upon such
principal sum;  if upon any person or persons, or body corporate,
of, or  in the  island of  Madeira, the Canaries, the Azores, the
Cape de  Verde Islands,  the Spanish Main, or Mexico, fifteen per
cent. upon such principal sum;  if upon any person or persons, or
body corporate, of, or in any state or place in Europe, or any of
the island's  thereof, twenty  per cent. upon such principal sum;
if upon  any person  or persons, or body corporate, of, or in any
other  part  of  the  world,  twenty-five  per  cent.  upon  such
principal sum.

  34. - §2. "The damages, which, by this act, are to be recovered
upon any  bill of  exchange, shall be in lieu of interest and all
other charges,  except the  charges of  protest, to the time when
notice of the protest and demand of psyment shall have been given
and made,  aforesaid;   and the  amount of  such bill  and of the
damages payable  thereon, as  specified in  this  act,  shall  be
ascertained and  determined by the rate, of exchange, or value of
the money  or currency  mentioned in  such bill,  at the  time of
notice of protest and demand of payment as before mentioned."

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   35. -  Tennessee. 1.  On a  bill drawn  or endorsed within the
state upon  any person  or persons, or body corporate, of, or in,
any other  state, territory,  or place,  which shall  be returned
unpaid, with a legal protest, the holder shall be entitled to the
damages hereinafter  specified, over  and above the principal sum
for which  such bill  of exchange  shall have been drawn, and the
charge of protest, together with lawful interest on the amount of
such principal  sum, damages,  and charges  of protest,  from the
time at  which notice  of such protest shall have been given, and
the payment  of said  principal  sum,  damages,  and  charges  of
protest demanded;   that  is to say, if such bill shall have been
drawn on  any person or persons, or body corporate, of, or in any
of these  United States,  or the  territories thereof,  three per
cent. upon  such principal  sum: if  upon  any  other  person  or
persons, or  body corporate,  of, or in, any other state or place
in North  America, bordering  upon the  Gulf of Mexico, or of, or
in, any  of the  West India  Islands, fifteen per cent. upon such
principal sum;  if upon any person or persons, or body corporate,
of, or  in, any  other part  of the  world, twenty per ceut. upon
such principal sum.

   36. -  2. The  damages which, by this act, are to be recovered
upon any  bill of  exchange, shall be in lieu of interest and all
other charges, except charges of protest, to the time when notice
of the  protest and  demand of  payment shall have been given and
made as aforresaid. Carr. & Nich. Comp. 125;  Act of 1827, c. 14.

   DAMAGES, DOUBLE  or TREBLE, practice. In cases where a statute
gives a  party double  or treble  damages, the  jury are  to find
single damages,  and the  court to enhance them, according to the
statute Bro.  Ab. Damages, pl. 70;  2 Inst. 416;  1 Wils. 126;  1
Mass. 155.  In Sayer on Damages, p. 244, it is said, the jury may
assess the  statute damages  and it  would seem  from some of the
modern cases,  that either the jury or the court may assess. Say.
R. 214;  1 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 imples that his person has been more or
less deteriorated,  and that the injured party is not required to
specify what  inury he has sustained, nor to prove it. Ham. N. P.
40;  1 Chit. Pl. 386;  2 L.R. 76;  4 Bouv. Inst. n. 3584.

   DAMAGES, LAYING, pleading. In personal and mixed actions, (but
not in  penal actions,  for obvious reason,) the declaration must
allege, in  conclusion, that  the injury  is to the damage of the
plaintiff;   and must  specify the  amount of  damages. Com. Dig.
Pleader, C 84;  10 Rep. 116, b.

   2. In  personal actions there is a distinction between actions

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that sound  in damages,  and those that do not;  but in either of
these cases, it is equally the practice to lay damages. There is,
however, this  difference: that,  in the former case, damages are
the main object of the suit, and are, therefore, always laid high
enough to  cover the  whole demand;    but  in  the  latter,  the
liquidated debt,  or the chattel demanded, being the main object,
damages are  claimed in  respect of  the detention  only, of such
debt or  chattel;   and are,  therefore, usually  laid at a small
sum. The  plaintiff cannot  recover greater  damages than  he has
laid in  theconclusion of  his declaration.  Com. Dig. Pleader, C
84;  10 Rep. 117, a, b;  Vin. Ab. Damages, R.

   3. In  real actions,  no damages  are to  be laid, because, in
these, the demand is specially for the land withheld, and damages
are in no degree the object of the suit. Steph. Pl. 426;  1 Chit.
Pl. 397 to 400.

   DAMAGES, LIQUIDATED, contracts. When the parties to a contract
stipulate for  the payment  of a  certain su,  as a  satisfaction
fixed and  agreed upon  by them,  for the  not doing  of  certain
things particularly  mentioned in the agreement, the sum so fixed
upon is  called liquidated  damages.  (q.v.)  It  differ  from  a
penalty, becasue  the latter  is  a  forfeiture  from  which  the
defaulting party  can be  relieved. An  agreement for  liquidated
damages  can  only  be  when  there  is  an  engagement  for  the
performance of  certain acts,  the not doing of which would be an
injury  to  one  of  the  parties;    or  to  guard  against  the
performance of  acts which,  if done, would also be injurious. In
such cases  an estimate  of the damages may be made by a jury, or
by a  previous agreement between the parties, who may foresee the
consequences  of  a  breach  of  the  engagement,  and  stipulate
accordingly. 1  H. Bl. 232;  and vide 2 Bos. & Pul. 335, 350-355;
2 Bro.  P. C.  431;   4 Burr,  2225;   2 T.  R. 32. The civil law
appears to  agree with  these principles. lnst. 3, 16, 7;  Toull.
liv. 3,  n. 809;   Civil  Code of  Louis. art.  1928, n. 5;  Code
Civil, 1152, 1153.

   2. It  is to  be observed,  that the  sum fixed  upon will  be
considered as  liquidated damages, or a penalty, according to the
intent of the parties, and the more use of the words - "penalty,"
&c "forfeiture," or "liquidated damages," will not be regarded is
at all  decisive of  the question,  if the  instrument discloses,
upon the whole, a different intent. 2 Story, Eq. §1318;  6 B.& C.
224;   6 Bing. 141;  6 Iredell, 186;  3  Shepl. 273;  2 Ala. 425;
8 Misso. 467.

   3. Rules  have been  adopted to  ascertain whether such sum so
agreed upon  shall be considered a penalty or liquidated damages,
which will  be here enumerated by considering, first, those cases
where it  has been considered as a penalty - and, secondly, where
it has been considered as liquidated damages.

   4. - 1. It has been treated as penalty, 1st. where the parties
in the  agreement have  expressly declared  the sum intended as a

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forfeiture or  a penalty,  and no  other intent  can be collected
from the  instrument. 2  B. & P, 340, 350, 630;  1 McMullan, 106;
2 Ala.  425;   5 Metc. 61;  1 H. Bl. 227;  1 Campb. 78;  7 Wheat.
14;   1 Pick. 451;  4 Pick. 179;  3 Johns. Cas. 297. 2d. Where it
is doubtful  whether it  was intended  as a penalty or not, and a
certain debt  or damages,  less than the penalty, is made payable
on the  face of the instrument. 3 C. & P. 240;  6 Humph. 186. 3d.
Where the  agreement was  made, evidently,  for the attainment of
another objeet,  to which the sum specified is wholly collateral.
11 Mass.  76;   15 Mass.  488;   1 Bro. C. C. 418. 4th. Where the
agreement contains  several  matters,  of  different  degrees  of
importance, and  yet the  sum named  is payable for the breach of
any, even  the least.  6 Bing. 141;  5 Bing. N. C. 390;  7 Scott,
364;   sed vide,  7 John.  72;   15 John.  200.  5th.  Where  the
contract is  not under seal, and the damages are capable of being
certainly known and estimated. 2 B. & Al. 704;  6 B. & C. 216;  1
M. & Malk. 41;  4 Dall. 150;  5 Cowen, 144.

   5. -  2. The sum agreed upon has been considered as liquidated
damages, 1st.  Where the  damages  are  uncertain,  and  are  not
capable of  being ascertained by any satisfactory and known rule.
2 T.  R. 32;   1 Alc. & Nap. 389;  2 Burr, 2225;  10 Ves. 429;  3
M. & W. 545;  8 Mass. 223;  3 C. & P. 240;  7 Cowen 307;  4 Wend.
468. 2d.  Where, from  the tenor  of the  agreement, or  from the
nature of  the case, it appears that the parties have ascertained
the amount  of damages  by fair  calculation  and  adjustment.  2
Story, Eq.  Juris. §1318;   10  Mass. 459;  7 John. 72;  15 John.
200;   1 Bing.  302;   7 Conn. 291;  13 Wend. 507;  2 Greenl. Ev.
§259;   11 N.  H. Rep.  234;   6 Blackf.  206;  26 Wend. 630;  17
Wend. 447;   22  Wend. 201;   7 Metc. 583;  2 Ala. 425;  2 Shepl.

   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

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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 collatercal  to it,  it must  be particularly  stated in the
declaration, as  the plaintiff will not otherwise be permitted to
go into evidence of it at the trial, because the defendant cannot
also be prepared to answer it. Willes, 23. 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
indemuify the surety, the latter has suffered a damnification the
moment he becomes liable to be sued for the debt of the principal
- and it has been held in an action brought by the surety, upon a
bond of  indemnity, that  the terror  of suit, so that the surety
dare not  go about  his business,  is a damnification. Ow. 19;  2
Chit. R. 487;  1 Saund. 116;  8 East, 593;  Cary, 26.

   2. A  judgment fairly  obtained against  a party  for a  cause
against which  another person  is bound  to indemnify  him,  with
timely notice  to that  person of  the bringing of the action, is
admissible as evidence in an action brought against the guarantor
on the  indemnity. 7  Cranch, 300,  322. See  F. N.  B. Warrantia
Chartae;  Lib. Int. Index, Warrantia Chartae;  2 S. & R. 12, 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.

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   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

   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

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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. lndex, h. t. See

   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

  2. Dation in payment, datio in solutionem, which was the giving
one thing in payment of another which was due, corresponds nearly
to the accord and satisfaction of the common law.

   DATION EN PAIEMFNT, civil law. This term is used in Louisiana;
it signifies that, when instead of paying a sum of money due on a
pre-existing debt,  the debtor  gives and  the creditor agrees to
receive a movable or 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.

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2d. When  the debtor  pays a certain sum which he supposed he was
owing, and  be discovers  he did  not owe so much, he may recover
back the  excess, not  so when property other than money has been
given in  payment. 3d.  He who  has in good faith sold a thing of
which he  believed himself  to be  the owner,  is  not  precisely
required to  transfer the  property of it to the buyer and, while
he is  not troubled  in the  possession of  the thing,  he cannot
pretend that the seller has not fulfilled his obligations. On the
contrary, the  dation en  paiement is  good only  when the debtor
transfers to  the creditor the property in the thing which he has
agreed to take in, payment and if the thing thus delivered be the
property of  another, it  will not  operate as  a payment.  Poth.
Vente, n. 602, 603, 604.

   DATIVE. That  which may  be given  or disposed  of at will and
pleasure. It  sometimes means  that which  is not  cast upon  the
party by  the law,  or by  a testator,  but which is given by the
magistrate;   in this  sense it is that tutorship is dative, when
the tutor  is appointed by the malistrate. Lec. Elem. §239;  Civ.
Code of L. art. 288, 1671.

  DAUGHTER. An immediate female descendant. See Son.

  DAUGHTER-IN-LAW. In Latin, nurus, is the wife of one's son.

  DAY. A division of time. It is natural, and then it consists of
twenty-four hours,  or the  space of time which elapses while the
earth makes  a complete  revolution on  its axis;  or artificial,
which contains the time, from the rising until the setting of the
sun, and  a short  time before  rising and  after  setting.  Vide
Night;  and Co. Lit. 135, a.

   2. Days  are sometimes  calculated exclusively, as when an act
required that an appeal should be made within twenty days after a
decision. 3 Penna. 200;  3 B. & A. 581;  15 Serg. & Rawle, 43. In
general, if a thing is to be done within such a time after such a
fact, the  day of  the fact shall be taken inclusively. Hob. 139;
Doug. 463;  3 T. R. 623;  Com. Dig. Temps, A;  3 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.

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  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  thne payment  of bills  of exchange,  are abolished.
Code de  Com. art.  185. See  8 Verm. 833;  2 Port. 286;  1 Conn.
329;  1 Pick. 401;  2 Pick. 125;  3 Pick. 414;  1 N. & M. 83.

  DAYS OF THE WEEK. These are Sunday, Monday, Tuesday, Wednesday,
Thursday, Friday, Saturday. See Week.

   2. The court will take judicial notice of the days of the week
- for example, when a writ of inquiry was stated in the pleadings
to have  been executed  on the  fifteenth of  June, and,  upon an
examination, it  was found  to be Sunday, the proceeding was held
to be defective. Forteso. 373;  S. C. Str. 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

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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

   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

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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
crrievances of  his own  wrong, without  the cause  by,him in his
plea alleged.

   2. The  import of  this replication  is  to  insist  that  the
defendant committed  the act  complained of,  from a  motive  and
impulse altogether  different from  that insisted on by the plea.
For example,  if the  defendant has  justified a  battery under a
writ of  capias, having  averred, as  he must do, that the arrest
was made  by virtue  of the  writ;   the plaintiff  may  rely  de
injuria sua propria absque tali causa, that the defendant did the
act of  his own  wrong, without  the cause  by him  alleged. This
replication, then,  has the effect of denying the alleged, motive
contained in  the plea,  and to  insist that  the defendant acted
from another,  which was unlawful, and not in, consequence of the
one insisted  upon in  his plea.  Steph. Pl.  186;   2 Chit.  Pl.
523,.642;   Hamm. N. P. 120, 121;  Arch. Civ. Pl. 264;  Com. Dig.
Pleader, F 19.

   3. The  form of this replication is, "precludi non, because he
says that  the said  defendant at the same time when, &c., of his
own wrong,  and without  the cause by him in his said second plea
alleged, committed  the said trespass in the introductory part of
that plea, in manner and form as the said plaintiff hath above in
his said  declaration complained  against the said defendant, and
this the  said  plaintiff  prays,  may  be  inquired  of  by  the
country,"  &c.   This  is   the  uniform  conclusion  of  such  a
replication. 1 Chit. 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

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common in assumpsit, it has become desirable, that the plaintiff,
who hss  but one  replication, should  put in  issue the  several
numerous allegations  which  the  special  pleas  were  found  to
contain;   for, unless he could do this, he would labor under the
hardship of  being frequently compelled to admit the greater part
of an  entirely false  story. It  became, therefore, important to
ascertain whether  de injuria  could not  be replied  to cases of
this description  and, after  numerous cases which were presented
for adjudication,  it was finally settled that de  injuria may be
replied in  assumpsit, when  the  plea  consists  of  matters  of
excuse. 3 C. M. &,R. 65;  2 Bing. N. C. 579 4 Dowl. 647.

   6. The  improper use  of  de  injuria  is  ground  of  general
demurrer. 2  Lev. 65;   4  Tyrw. 771. But if the defendant do not
demur, the  objection will  not avail after verdict. Hob. 76: Sir
T. Raym. 50.

   7. De injuria puts in issue the whole of the defence contained
in the  plea. 5 B. & A. 420;  11 East, 451;  10 Bing. 157. But if
the plea  state some  authority in law, which, prima facie, would
be a  justification of  the act complained of, the plaintiff will
not be  allowed under  the plea of de injuria to show an abuse of
that authority  so as to convert the defendant into a tort feasor
ab initio.  1 Bing.  317;  1 Bing. N. S. 387. See 1 Smith's L. C.
53 to 61;  8 Co. 66.

   DE JUDAISMO,  STATUTUM. The  name of  a statute  passed in the
reign of  Edw. I.,  which enacted  severe  and  absurd  penalties
against the Jews. Barr. on Stat. 197.

   2. The  Jews were exceedingly oppressed during the middle ages
throughout Christendom,  and, are  so still in some countries. In
France, a  Jew was  a serf,  and his person and goods belonged to
the baron  on whose  demesnes he  lived. He  could not change his
domicil without  permission of the baron, who could pursue him as
a fugitive  even on  the domains  of the king. Like an article of
commerce, he  might be lent or hired for a time, or mortgaged. If
he became  a   Christian, his conversion was considered a larceny
of the  lord, and  his property  and goods were confiscated. They
were allowed  to utter  their prayers  only in  a low  voice  and
without chanting.  They were  not allowed  to  appear  in  public
without some  badge  or  mark  of  distinction.  Christians  were
forbidden to  employ Jews  of either sex as domestics, physicians
or surgeons.  Admission to  the bar  was forbidden  to Jews. They
were obliged  to appear  in court  in person,  when they demanded
justice for  a wrong  done them, and it was deemed disgraceful to
an advocate to undertake the cause of a Jew. If a Jew appeared in
court against  a Christian,  he was  obliged to  swear by the ten
names of God, and invoke a thousand imprecations against himself,
if he spoke not the truth. Sexual intercourse between a Christian
man and  a Jewess  was deemed  a crime  against nature,  and  was
punishable with  death by  burning. Quia est rem habere cum cane,
rem habere  a Christiano  cum Judaea  quae CANIS  reputatur - sic
comburi debet.  1 Fournel,  Hist.  des  Avocats,  108,  110.  See

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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  doue  by  making,  an
election de melioribus damnis.

  DE MERCATORIBUS. This is the name of a statute passed in the 11
Edw. I.;   it  is usually  called the statute of Acton Burnell De
Mercatoribus. It  was passed  in consequence of the complaints of
foreign merchants,  who could not recover the claims, because the
lands of  the debtors  could not  be sold  for  their  debts.  It
enacted that  the chattels  and devisable  burgages of the debtor
might be sold for the payment of their debts. Cruise, Dig. t. 14,
s. 6.

   D.E NOVO.  Anew. afresh. When a judgment upon an issue in part
is reversed  on error, for some mistake made by the court, in the
course of  the trial,  a venire  de novo is awarded in order that
the case may again be submitted to the jury.

   DE NOVI  OPERIS NUNCIATIONE,  Civil  law.  Where  a  thiug  is
intended to  be done  against  another  man's  right,  the  party
aggrieved may  have in many cases, according to the civilians, an
interdict or injunctIion, to hinder that which is intended to his
prejudice: as  where one  buildeth an house contrary to the usual
and received  form of  building to  the injury  of his  neighbor,
there lieth an injunction de novi operis nunciatione, which being
served, the  offender is either to desist from his work or to put
in sureties  that he  shall pull it down, if he do not in a short
time avow, i. e. show, the lawfulness thereof.

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Ridley's Civ. and Eccl. Law, part 1, chap 1, sect. 8.

   DE ODIO  ET ATIA.  These words  sisignify "from hatred and ill
will." When  a person  was committed on a charge of a crime, from
such a motive, he could sue the writ de otio et atia, and procure
his liberty  on giving bail. The object is now obtained by a writ
of habeas corpus. Vide Writ de odio et 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 propert. 8 B. & C. 269.

   DE RETORNO  HABENDO The name of a writ issued after a judgment
has been  given in  replevin, that  the defendant  should have  a
return of the goods replevied. See 3 Bouv. Inst. n. 3376.

   DE SON TORT. Of his own wrong. This term is usually applied to
a person  who, having  no right  to meddle  with the  affairs  or
estate of  a deceased person, yet undertakes to do. so, by acting
as executor of the deceased. Vide Executor de son tort.

   DE SON TORT DEMESNE, Of his own wrong, pleading. The name of a
replication in  an  action  for  a  wrong  or  injury.  When  the
defendant pleads  a matter  merely in  excuse of an injury to the
person or  reputation of  another, the plaintiff may reply de son
tort demesne  sans tiel  cause;   that it was the defendant's own
wrong without  such cause.  Vide the  articles, De  Injuria,  and
Without, and  also 8 Co. 69 a;  Bro. h. t.;  Com. Dig. Pleader, F

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   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

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remainder, the master, unless restrained by his special contract,
may take  other goods  on board,  and the  amount  which  is  not
supplied, required to complete the cargo, is called dead freight.

  2. The dead freight is to be calculated according to the actual
capacity of the vessel. 3 Chit. Com. Law;  399 Stark. 450.

   DEAD MAN'S  PART, English law. By the custom of London, when a
deceased freeman  of the  city left  a widow  and children, after
deducting what was calledthe widow's chamber, (q.v.) his personal
property was  divided into three parts;  one of which belonged to
the widow,  another  tot  he  children,  and  the  third  to  the
administrator. When  there was only a widow, or only children, in
either  case   they  respectively   took  one   moiety,  and  the
administrator the other;  when there was neither widow nor child,
the administrator took the whole for his own use and this portion
was called the "dead man's part."
By statute  of 1  Jac. 2,  c. 17,  this was changed, and the dead
man's  part   is  declared  to  be  subject  to  the  statute  of
distribution. 2  Bl. Com.  518. See Bac. Ab. Customs of London, D

   DEAD LETTERS.  Those which remain in the post-office, uncalled
for. By  the Act  of March 8, 1825, 3 Story. L. U. S. 1993, it is
enacted, by  §26,  "That  the  postmasters  shall,  respectively,
publish, at  the expiration  of every  three months,  or oftener,
when the  postmaster general  shall so  direct,  in  one  of  the
newspapers published  at, or nearest, the place of his residence,
for three  successive weeks,  a list of all the letters remaining
in their  respective offices;  or instead thereof, shall make out
a number  of such  lists, and  cause them  to be  posted at  such
public places,  in their  vicinity, as  shall appear to them best
adapted for  the information  of the  parties concerned;  and, at
the expiration  of the  next three months, shall send such of the
said letters  as then  remain on  hand, as  dead letters,  to the
general post office where the same shall be opened and inspected;
and if  any valuable  papers, or matters of consequence, shall be
found therein,  it shall be the duty of the postmaster general to
return such  letter to the writer thereof, or cause a descriptive
list thereof to be inserted in one of the newspapers published at
the place most convenient to the supposed residence of the owner,
if within  the United States;  and such letter, and the contents,
shall be  preserved, to  be delivered  to the  person to whom the
same shall  be addressed,  upon payment  of the  postage, and the
expense of  publication. And  if such  letter contain  money, the
postmaster  general   may  appropriate  it  to  the  use  of  the
department, keeping  an account  thereof, and the amount shall be
paid by  the department  to the  claimant as  soon as he shall be

   3. And  by the Act of July 2, 1836, 4 Sharsaw. Cont. of Story,
L. U.  S. 2474,  it is  enacted by  §35  that  advertisements  of
letters remaining  in the  post-offices, may, under the direction
of the  postmaster general,  be made  in more than one newspaper:

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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  ecelesiastictl officer,  who derives his
name from  the  fact  that  he  presides  over  ten  canons,  or,
prebondaries, at least. There are several kinds of deans, namely:
1. Deans  of chapters.  2. Deans of peculiars. 3. Rural deans. 4.
Deans in the colleges. 5. Honorary deans. 6. Deans of provinces.

  DEATH, med. jur., crim. law, evidence. The cessation of 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

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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, bave been found,
not unfrequently,  to  correspond  with  the  shoes  or  feet  of
suspected persons,  and led  to their detection. Paris, Med. Jur.
vol. iii. p. 38, 41.

   6. In  the survey  of the  body the  following rules should be

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observed: 1.  It should  be as  thoroughly examined  as  possible
without changing  its position or that of any of the limbs;  this
is particularly  desirable when,  from appearances, the death has
been caused by a wound, because by moving it, the altitude of the
extremities may  be altered,  or  the  state  of  a  fracture  or
luxation changed;   for the internal parts vary in their position
with one  another, according to the general position of the body.
When it  is requisite  to remove it, it should be done with great
caution. 2.  The clothes  should be removed, as far as necessary,
and it  should be  noted what compresses or bandages (if any) are
applied to  particular parts, and to what extent. 3. The color of
the  skin,   the  temperature   of  the  body,  the  rigidity  or
flexibility of the extremities, the state of the eyes, and of the
sphincter muscles,  noting at  the same  time whatever swellings,
ecchymosis, or  livid, black,  or yellow  spots,  wounds,  ulcer,
contusion, fracture,  or luxation may be present. The fluids from
the nose,  mouth, ears,  sexual organs,  &c., should be examined;
and, when  the deceased  is a female, it may be proper to examine
the sexual organs with care, in order to ascertain whether before
death she  was ravished  or not. 1 Briand, Med. Leg. 2eme partio,
ch. 1,  art. 3,  n. 5,  p. 318.  4. The  clothes of  the deceased
should be  carefully examined,  and if parts are torn or defaced,
this fact  should be  noted. A  list should  also be  made of the
articles found  on the  body, and of their state or condition, as
whether the  purse of  the deceased  had been opened;  whether he
had any  money, &c.  5. The state of the body as to decomposition
should be,  particularly stated,  as by  this it may sometimes be
ascertalued when the death took place;  experience proves that in
general after  the  expiration  of  fourteen  days  After  death,
decomposition has  so  far  advanced,  that  identity  cannot  be
ascertained, excepting in some    strongly developed peculiarity;
but in  a drowned  body, adipocire  is not produced until five or
six weeks  after death  but this depends upon circumstance's, and
varies according  to  climate,  seasun,  &c.  It  is  exceedingly
important, however  to keep  this fact  in view  in some judicial
inquiries relative to the time of death. 1 Chit. Med. Jur. 443. A
memorandom  should   be  made  of  all  the  facts  as  they  are
ascertained when  possible, it  should be made on the ground, but
when this  cannot be done, as when chemical experiments are to be
made, or  the body is to be dissected, they should be made in the
place where these operations are performed. 1 Beck's Med. Jur. 5;
Dr. Gordon  Smith, 505;   Ryan's Med. Jur. 145;  Dr. Male's Elem.
of Judicial  and For. Med. 101;  3 Paris & Fonbl. Med. Jur. 23 to
25;  Vilanova Y Manes, Materia Criminal Forense, Obs. 11, cap. 7,
n. 7;   Trebuchet,  Medecine Legale,  12, et seq;  1 Briand, Med.
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

   8. -  1. It  is a general rule, that persons who are proved to

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have been  living, will be presumed to be alive till the contrary
is proved  and when  the issue is upon the death of a person, the
proof of  the fact  lies upon  the party who asserts the death. 2
East, 312;   2  Rolle's R. 461. But when a person has been absent
for a  long time,  unheard from,  the law  will presume him to be
dead. It  has been adjudged, that after twenty-seven years 3 Bro.
C. C. 510;  twenty years in another case;  sixteen years;  5 Ves.
458;   fourteen years;   3  Serg. &  Rawle, 390 twelve years;  18
John. R. 141;  seven years;  6 East, 80, 85;  and even five years
Finchs R.  419;   the presumption  of death arises. It seems that
even seven  years has  been agreed  as the time when death may in
general be  presumed. 1  Phil. Ev.  159. See  24 Wend. R. 221;  4
Whart. R. 173. By the civil law, if any woman marry again without
certain intelligence  of the death of her hushand, how longsoever
otherwise her  hushand be  absent from  her, both  she and he who
married her  shall be  punished as  adulterers.  Authentics,  8th
Coll.;  Ridley's View of the Civ. and Ecc. Law, 82.

   9. The  survivorship of  two or more is to be proved by facts,
and not  by any  settled Iegal rule, or prescribed presumption. 5
B. Adolp.  91;   27 E.  C. L.  R. 45;   Cro.  Eliz. 503  Bac. Ab.
Execution D;   2  Phillim. 261;  1 Mer. R. 308;  3 Hagg. Eccl. R.
748;  But see 1 Yo. & Coll. C. N. 121;  1 Curt. R. 405, 406, 429.
In the  following cases, no presumption of survivor-ship was held
to arise;   where  two men, the father and son, were hanged about
the same  time, and one was seen to struggle a little longer than
the other;   Cor. Eliz. 503;  in the case of General Stanwix, who
perished at  sea in  the same vessel with his daughter;  1 Bl. R.
610;   and in  the case of Taylor and his wife, who also perished
by being  wrecked at  sea with her, to whom he had bequeathed the
principal part  of his  fortune. 2 Phillim. R. 261;  S. C. 1 Eng.
Eccl. R. 250. Vide Fearne on Rem. iv.;  Poth. Obl. by Evans, vol.
ii., p.  345;   1 Beck's  Med. Jur. 487 to 502. The Code Civil of
Fance has  provided for  most, perhaps  all possible  cases, art.
720, 721  and 722.  The provisions  have been  transcribed in the
Civil Code of Louisiana, in these words:

   10. Art.  930. If  several persons  respectively  entitled  to
inherit from  one another,  happen to  perish in  the same event,
such as  a wreck,  a battle,  or  a  conflagration,  without  any
possibility of  ascertaining who  died first,  the presumption of
survivorship is determined by the circumstances of the fact.

   11. Art.  931. lu defect of the circumstances of the fact, the
determination must  be guided by the probabilities resulting from
the strength,  ages, and-difference  of  sex,  according  to  the
following rules.

   12. Art.  932. If  those who have perished together were under
the age  of fifteen  years, the  eldest shall be presumed to have
survived. If  both were  of the  age of sixty-years, the youngest
shall be  presumed to  have survived.  If some were under fifteen
years, and  some above sixty, the first shall be presumed to have

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   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 fulfil his engagements, and may enforce those in
his favor.  But to  this general  rule there are some exceptions;
some contracts  are either  by the terms employed in making them,
or by implication of law, to continue only during the life of the
contracting party.  Among these  may be  mentioned the  following
cases: 1.  The contract  of  marriage.-  2.  The  partnership  of
individuals. The  contract of  partnership is dissolved by death,
unless otherwise  provided for.  Indeed the  partnership will  be
dissolved by  the death  of one  or more of the partners, and its
effects upon  the other  partners or  third persons  will be  the
same, whether  they have notice of the death or otherwise. 3 Mer.
R. 593;   Story,  Partn. §319,  336, 343;   Colly.  Partn. 71;  2
Bell's   Com. 639,  5th ed.;   3  Kent, Com.  56, 4th  ed.;  Gow,
Partn. 351;   1  Molloy, R.  465;  15 Ves. 218;  S. C. 2 Russ. R.
325.;   3. Contracts  which are  altogether personal;    as,  for
example, where  the deceased  had agreed  to accompany  the other
party to  the contract, on a journey, or to serve another;  Poth.
Ob. P.  3, c.  7, a.  3, §2 and 3;  or to instruct an apprentice.
Bac. Ab. Executor, P;  1 Burn's Just. 82, 3;  Hamm. on Part. 157;
1 Rawle's R. 61.

  16. The death of either a constituent or of an attorney puts an
end to the power of attorney. To recall such power two things are
necessary;   1st. The  will or  intention to  recall;   and,  2d.
Special notice or general authority. Death is a sufficient recall
of such power, answering both requisites. Either it is, according
to one  hypothesis, the intended termination of the authority or,
according to the other, the cessation of that will, the existence
of which  is requisite  to the existence of the attorney's power;
while on  either supposition, the event is, or is supposed to be,
notorious.  But  exceptions  are  admitted  where  the  death  is
unknown, and  the authority,  in the meanwhile, is in action, and
relied on. 3 T. R. 215;  Poth;  Ob. n. 448.

  17. - 2d. In general, when the tort feasor or the party who has
received the  injury dies,  the action  for the  recovery of  the
damages dies  with him;   but when the deceased might have waived
the tort,  and maintained  assumpsit arainst  the defendant,  his

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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

   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

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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

  2. It commences with the beginning of such disease.

  3. There are two exceptions to this general rule, namely: 1. If
he survive  for sixty  days after the act or, 2. If he go to kirk
or  market  unattended.  He  is  then  said  to  be  in  legitima
potestate, or in liege poustie. 1 Bell's Com. 84, 85.

   DEATH BED  OR DYING  DECLARATIONS. In cases of homicide, those
which are  made in  extremis, when  the  person  making  them  is
conscious of  his danger  and has given up all hopes of recovery,
charging some  other person  or persons  with the  murder. See  1
Phil. Ev.  200;   Stark. Ev. part 4, p 458;  15 Johns. R. 288;  1
Hawk's R.  442;  2 Hawk's R. 31;  McNally's Ev. 174;  Swift's Ev.

   2. These  declarations, contrary  to the  general  rule  that,
hearsay is  not evidence,  are constantly received. The principle
of this exception is founded partly on the situation of the dying
person,  which   is  considered   to  be  as  powerful  over  his
conscienceas the  obligation  of  an  oath,  and  partly  on  the
supposed absence  of interest  on the  verge of  the next  world,
which dispenses  with a  necessity of  a  cross-examination.  But
before such  declarations can  be ad-mitted in evidence against a
prisoner, it  must be satisfactorily proved, that the deceased at
the time of making them was conscious of his danger and had given
up all  hopes of recovery. 1 Phil. Ev. 215, 216;  Stark. Ev. part
4, p. 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. §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.

   DEATH'S PART, English law. That portion of the personal estate
of a deceased

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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
ministrator. 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 bouse, the
senators and representatives shall not be questioned in any other

   4. It  is a  rule of the common law, that counsel may, in, the
discharge of  professional duty,  use  strong  epithets,  however
derogatory to  the character of the opponent, or his attorney, or
other agent  or witness,  in commenting on the facts of the case,
if pertinent  to the  cause,  and  stated  in  his  instructions,
without any  liability to  any action  for the  supposed slander,
whether the  thing stated were true or false. 1 B. & Ald. 232;  3
Dow's R.  273, 277,  279;   7 Bing. R. 459;  S. C. 20 E. C. L. R.
198. Respectable  and  sensible  counsel,  however,  will  always
refrain from the indulgence of any unjust severity, both on their
own personal account, and because browheating a witness, or other
person, will  injuriously affect  their case  in the  eyes  of  a
respectable court and jury. 3 Chit. Pr. 887, 8.

   DEBENTURE. A  certificate given,  in pursuance  of law, by the
collector of  a port  of entry,  for a  certain sum,  due by  the
United States,  payable  at  a  time  therein  mentioned,  to  an
importer for  drawhack of  duties  on  merchandise  imported  and
exported by  him, provided  the duties arising on the importation
of the  said merchandise  shall have been discharged prior to the
time aforesaid.  Vide Act  of Congress  of March  2, 1799, s. 80;

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Encyclop6die, h. t.;  Dane's Ab. Index, h. t.

   DEBET ET  DETINET, pleading. He owes and detains. In an action
of.debt, the form of the writ is either in the debet and detinet,
that is,  it states  that the defendant owes and unjustly detains
the debt  or thing  in question,  it is  so brought  between  the
original contracting  parties;   or, it  is in  the detinet only;
that is,  that the  defendant unjustly detains from the plaintiff
the debt  or thing  for which the action is brought;  this is the
form in in action by an executor, because the debt or duty is not
due to him, but it is unjustly detained from him. 1 Saund. 1.

   2. There  is one case in which the writ must be in the detinet
between the  contracting parties.  This is  when  the  action  is
instituted for the recovery of goods, as a horse, a ship, and the
like, the  writ must  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 book-keeping,  to
express the  left-hand page  of the  ledger, to which are carried
all the  articles supplied  or paid on the subject of an account,
or that  are charged  to that  account.  It  also  signifies  the
balance of an account.

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.

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   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 declara-
tion. 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 instru-
ment 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.

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Dig. Dett,  A 5;  Bac. Ab. Debt, F;  3 Woodd. 103, 4;  1 Dall. R.

   4. -  §2. When  the  action  is  on  a  simple  contract,  the
declaration  must   show  the   consideration  of  the  contract,
precisely as  in assumpsit;   and  it should state either a legal
liability or an express agrement, though not a promise to pay the
debt. 2  T. R.  28, 30. When the action is founded on a specialty
or record, no consideration need be shown, unless the performance
of the  consideration constitutes  a  condition  precedent,  when
performance of  such consideration  must  be  averred.  When  the
action is  founded on a deed, it must be declared upon, except in
the case of debt for rent. 1 New R. 104.

   5. -  §3. The  plea to  an action of debt is either general or
special.  1.  The  plea  of  general  issue  to  debt  on  simple
contracts, or  on statutes,  or when  the deed  is only matter of
inducement, is  nil debet.  See Nil  debet. In  general, when the
action is  on a  specialty, the plea denying the existence of the
contract is  non est  factum;   2 Ld.  Raym. 1500;   to  debt  on
record, nul  tiel record.  16 John.  55. Other  matters must,  in
general, be pleaded specially.
6.-  §4. For the form of the judgment, see Judgment in debt. Vide

   DEBTEE. One  to whom  a debt  is due  a creditor,  as,  debtee
executor. 3 Bl. Com. 18.

   DEBTOR, contracts.  One who  owes a  debt;    he  who  may  be
constrained to pay
what he owes.

   2. A  debtor is  bound to pay his debt personally, and all the
estate he possesses or may acquire, is also liable for his debt.

   3. Debtors are joint or several;  joint, when they all equally
owe the  debt in  solido;   in this  case if  a  suit  should  be
necessary to  recover the  debt, all  the debtors  must  be  sued
together or,  when some are dead, the survivors must be sued, but
each is  bound for the whole debt, having a right to contribution
from the  others;  they are several, when each promises severally
to pay  the whole  debt;  and obligations are generall binding on
both  or  all  debtors  jointly  and  severally.  When  they  are
severally bound  each may  be sued separately, and on the payment
of debt  by one,  the others will be bound to contribution, where
all had  participated in  the money  or property,  which was  the
cause of the debt.

  4. Debtors are also principal and surety;  the principal debtor
is bound as between him and his surety to pay the whole debt. and
if the  surety pay it, he will be entitled to recover against the
principal. Vide  Bouv. Inst. Index, h. t.;  Vin. Ab. Creditor and
Debtor;   Id. Debt;   8  Com. Dig. 288;  Dig. 50, 16, 108 Id. 50,
16, 178, 3;  Toull. liv. 2, n. 250.

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  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  himiself
mistaken, no  blame can attach to him. The representation must be
made malo  animo, but whether or not the party is himself to gain
by it, is wholly immaterial.

  3. Deceit may not only be by asserting a falsebood deliberately
to the  injury  of  another  as,  that  Paul  is  in  flourishing
circumstances, whereas  he is  in truth insolvent;  that Peter is
an honest  man, when  he knew him to be a, rogue;  that property,
real or  personal, possesses certain qualities, or belongs to the
vendor, whereas he knew these things to be false;  but by any act
or demeanor  which would  naturally impress the mind of a careful
man with a 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

   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 pos-

   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

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seller knew of the

  7. The remedy for a deceit, unless the right of action has been
suspended or discharged, is by an action of trespass on the case.
The old  writ of  deceit was brought for acknowledging a fine, or
the like,  in another name, and this being a perversion of law to
an evil  purpose, and  a high  contempt, the  act was laid contra
pacem, and  a fine  imposed upon  the  offender.  See  Bro.  Abr.
Disceit;  Vin Abr. Disceit.

   8. When  two or  more persons  unite in a deceit upon another,
they may be indicted for a conspiracy. (q. v.) Vide, generally, 2
Bouv. Inst. n. 2321-29;  Skin. 119;  Sid. 375;  3 T. R. 52-65;  1
Lev. 247;   1 Strange, 583;  D Roll. Abr. 106;  7 Barr, Rep. 296;
11 Serg.  & R.  309, 310;   Com.  Dig. Action upon the case for a
deceit;   Chancery, 3  F 1 and 2;  3 M 1;  3 N 1;  4 D 3;  4 H 4;
4 L  1;  4 O 2;  Covin;  Justices of the Peace, B 30;  Pleader, 2
H;   1 Vin.  Ab. 560;  8 Vin. Ab. 490;  Doct. Pl. 51;  Dane's Ab.
Index, h. t.;  1 Chit. Pr. 832 Ham. N. P. c. 2, s. 4;  Ayl. Pand.
99 2  Day, 531;   12  Mass. 20;   3 Johns. 269;  6 Johns. 181;  2
Day, 205,  381;   4 Yeates,  522;   18 John.  395: 8 John. 23;  4
Bibb, 91;   1 N. & M. 197. Vide, also, articles Equality;  Fraud;

   TO DECEIVE.  To induce  another either by words or actions, to
take that for true which is not so. Wolff, Inst. Nat. §356.
DECEM TALES,  practice. In  the English  law this is a writ which
gives to  the sheriff apponere decem tales;  i. e. to appoint ten
such men  for the  supply of jurymen, when a sufficient number do
not appear to make up a full 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.

   DECMATION. The  punishment of every tenth soldier by lot, was,
among the Romans, called decimation.

  DECIME. A French coin, of the value of a tenth part of a franc,
or nearly two cents.

   DECISION, practice.  A judgment given by a competent tribunal.
The French lawyers call the opinions which they give on questions
propounded to them, decisions. Vide Inst. 1, 2, 8 Dig. 1, 2, 2.

  DECLARANT. One who makes a declaration. Vide Declarationis.

   DECLARATION, pleading.  A declaration is a specification, in a

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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 quali- ties of a declaration
are first, that it correspond with the process. But, according to
the present  practice of  the courts,  oyer of the writ cannot be
craved;   and a  variance between the writ and declaration cannot
be pleaded in abatement. 1 Saund. 318;  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
whlere the  date, &c.,  of  a  written  contract  or  record,  is
averred;   4 T. R. 590 10 Mod. 313 2 Camp. R. 307, 8, n.;  or, in
ejectment, in which the demise
must be stated to have been made after the title of the lessor of
the plaintiff,  and his  right of entry, accrued. 2 East, R. 257;
1  Johns.  Cas.  283.  3d.  The  Place.  See  Venue.  4th.  Other
circumstances necessary to maintain the action.

   7. -  2. The  parts and particular requisites of a declaration

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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.

   10. Fourthly.  The statement of the cause (if action, in which
all  the   requisites  of  certainty  before  mentioned  must  be
observed, necessarily  varies, according  to the circumstances of
each  particular  case,  and  the  form  of  action,  whether  in
assumpsit, debt,  covenant, detinue,  case, trover,  replevin  or

   11. Fifthly.  The several counts. A declaration may consist of
as many  counts as  the case  requires, and  the jury  may assess
entire or  distinct damages  on. all the counts;  3 Wils. R. 185;
2 Bay,  R. 206;   and  it is  usual, particularly  in actions  of
assumpsit, debt  on simple  contract, and actions on the case, to
set forth  the plaintiff's  cause of  action in various shapes in
different counts,  so that  if the plaintiff fail in proof of one
count, he may succeed in another. 3 Bl. Com. 295.

   12. -  Sixthly. The  conclusion. In personal and mixed actions
the declaration  should conclude  to the damage of the plaintiff;
Com. Dig.  Pleader, C  84;   10 Co.  116, b.  117, a.;  unless in
scire facias  and in  penal actions  at  the  suit  of  a  common

   13. -  Seventhly. The profert and pledges. In an action at the
suit of  an executor  or  administrator,  immediately  after  the
conclusion to the damages, &c., and before the pledges, a profert
of the  letters testamentary  or letters of administration should
be made.  Bac. Abr.  Executor, C;  Dougl. 6, in notes. At the end
of the  declaration, it  is usual  to add the plaintiff is common
pledges to prosecute, John Doe and Richard Roe.

   14. A  declaration may be general or special;  for example, in
debt or  bond, a  declaration counting on the penal part only, is
general;   when it  sets out  both the penalty and the condition,
and assigns  the breach,  it is  special. Gould on Pl. c. 4, §50.

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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

  3. -2. The various acts of tyranny of the British King.

   4. -  3. The  petitions for redress of these injuries, and the
refusal. to redress them;  the recital of an appeal to the people
of "Great  Britain, and  of their  being deaf  to  the  voice  of
justice and consanguinity.

   5. -  4. An  appeal to  the Supreme Judge of the world for the
rectitude of the intentions of the representatives.

   6. -  5. A  declaration that  the United  Colonies are, and of
right ought  to be,  free and  independent states;  that they are
absolved from  all allegiance  to the British crown, and that all
political connexion  between them and the state of Great Britain,
is and ought to be dissolved.

  7. - 6. A pledge by the representatives to each other, of their
lives, their fortunes, and their sacred honor.

   8. The effect of this declaration was the establishment of the
government of  the United  States as  free and  independent)  and
thenceforth the  people of  Great Britain  have been held, as the
rest of mankind, enemies in war, in peace friends.

   DECLARATION OF lNTENTION. The act of an alien, who goes before
a court  of record,  and in  a forma  manner declares that it is,
bona fide,  his intention  to become  a  citizen  of  the  United
States, and  to renounce  forever all  allegiance and fidelity to
any foreign  prince, potentate, state, or sovereignty, whereof he
may at the time be a citizen or subject. Act of Congress of April
14, 18O2, s. 1.

   2. This  declaration must,  in usual  cases, be  made at least
three years  before his  admission. Id.  But there  are  numerous
exceptions to this rule. See Naturalization.

     DECLARATION  OF  TRUST.  The  act  by  which  an  individual
acknowledges that a

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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

   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  publishied, but  war exists  as soon as the act takes
effect. It  was formerly usual to precede hostilities by a public
declaration communicated  to the  enemy, and  to send a herald to
demand satisfaction.  Potter, Antiquities  of Greece, b. 3, c. 7;
Dig. 49, 15, 24. But that is not the practice of modern times. In
some countries, as England, the, power of declaring war is vested
in the  king, but  he has no power to raise men or money to carry
it on, which renders the right almost 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

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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 un-
certain or  doubtful;   as a  declaratory statute,  which is  one
passed to  put an end to a doubt as to what the law is, and which
declares what it is, and what it has been. 1 Bl. Com. 86.

   TO DECLARE.  To make  known or publish. By tho constitution of
the United  States, congress  have power  to declare war. In this
sense the  word, declare,  signifies, not merely to make it known
that war exists, but also to make war and to carry it on. 4 Dall.
37;  1 Story, Const. §428;  Rawle on the Const. 109. In pleading,
to declare, is the act of filing a 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.

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   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,

   DECREE, practice.  The judgment  or sentence  of  a  court  of

   2. It is either interlocutory or final. The former is given on
some plea  or issue  arising in  the cause, which does not decide
the main question;  the latter settles the matter in dispute, and
a final decree has the same effect as a judgment at law. 2  Madd.
Ch. 462;  1 Chan. Cas. 27;  2 Vern. 89;  4 Bro. P. C. 287.;  Vide
7r-Vin. Ab. 394;  7 Com. Dig. 445;  1 Supp. to Ves. Jr. 223 Bouv.
Inst. Index, h. t.

   DECREE, legislation. In some countries as in France, some acts
of the  legislature, or of the sovereign, which have the force of
law, are called decrees;  as, the Berlin and Milan decrees.

   DECREE ARBITRAL,  Scotch law.  A decree  made  by  arbitrators
chosen by the parties;  an award. 1 Bell's Com. 643.

   DECREE OF  REGISTRATION, Scotch law. A proceeding by which the
creditor has immediate execution;  it is somewhat like a  warrant
of attorney to confess judgment. 1 Bell's Com. B. 1, c. 1, p. 4.

   DECRETAL ORDER.  Chancery practice. An order made by the court
of chancery,  upon a  motion or  petition, in  the  nature  of  a
decree. 2 Dan. Ch. Pr. 637.

  DECRETALS. eccles. law. The decretals are canononical epistles,

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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,

   3. The  false decretals were forged. in the names of the early
bishops of  Rome, and  first appeared  about A.  D. 845-850.  The
author of  them is  not known.  They are  mentioned in  a  letter
written in  the name  of the  council of  Quiercy, by Charles the
Bald, to  the bishops and lords. of France. See Van Espen Fleury,
Droit de Canon, by Andre.

   DEDI, conveyancing.  I have  given. This  word  amounts  to  a
warranty in law, when it is in a deed;  for example, if in a deed
it be  said, I have given, &c., to A B, this is a warranty to him
and his  heirs. Brooke, Abr. Guaranties, pl. 85. Yet the warranty
wrought by  this word is a special warranty, and extendeth to the
heirs of the feoffee during the life of the donor only. Co. Litt.
884, b. Vide Concessi.

   DEDICATION. Solemn  appropriation.  It  may  be  expressed  or

  2. An express dedication of property to public use is made by a
direct appropriation  of it to such use, and it will be enforced.
2 Peters, R. 566;  6 Hill, N. Y. Rep. 407.

   3. But a dedication of property to public or pious uses may be
implied from  the acts  of the  owner. A permission to the public
for the space of eight or even six years, to use a street without
bar or  impediment, is  evidence from  which a  dedication to the
public may  be inferred. 2 Bouv. Inst. n. 1631;  11 East, R. 376;
12 Wheat.  R. 585;   10 Pet. 662;  2 Watts, 23;  1 Whart. 469;  3
Verm, 279;   6 Verm. 365;  7 Ham. part 2, 135;  12 Wend. 172;  11
Ala. R. 63, 81;  1 Spencer, 86;  8 Miss. R. 448 5 Watts & S. 141;
Wright, 150;   6  Hill, 407  24 Pick.  71;   6 Pet.  431,  498  9
Port.,527;  3 Bing. 447;  sed vide 5 Taunt. R . 125. Vide Street,
and the  following authorities: 3 Kent, Com. 450;  5 Taunt. 125 5
Barn. &  Ald. 454:  4 Barn.  & Ald.  447;  Math. Pres. 833. As to
what shall  amount to a dedication of an invention to public use,

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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.

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

   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,

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under the formula to have and to hold.

  6th. The redendum is that part of the deed by which the grantor
reserves something  to himself,  out of  the thing  granted, as a
rent, under the following formula, Yielding and paying.

   7. -  5th. The  conditions upon  which the grant is made. Vide

   8. -  6th. The  warranty, is  that part  by which  the grantor
warrants the  title to  the grantee.  This is  general  when  the
warrant is  against all  persons, or  special, when  it  is  only
against the grantor, his heirs, and those claiming under him. See

   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;

   2. By  the disagreement  of those parties whose concurrence is
necessary;   for instance,  in the case of a married woman by the
disagreement of  her hushand.  3. By  the judgment of a competent

   13. According to Sir William Blackstone, 2 Com. 313, deeds may
be consi-
dered as (1), conveyanees at common law, original and derivative.
1st. The original are, 1. Feoffment. 2. Gift. 3. Grant. 4. Lease.
5. Exchange;   and  6. Partition.  2d. Derivative,  which are  7.
Release.  8.  Confirmation.  9.  Surrender.  10.  Assignment  11.
Defeasance. (2).  Conveyances which  derive their force by virtue
of the  statute of uses;  namely, 12. Covenant to stand seised to

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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

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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

   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

   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

   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.

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   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.

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   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.

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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, §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  dilator   defences,  (q.  v.)  and  into  those  which  are
peremptory. Matters  of peremptory  or permanent  defences may be
also divided  into two  sorts, first,  those where  the plaintiff
never had  any right to institute the suit;  for example: 1. That
the plaintiff  had not a superior right to the defendant. 2. That
the defendant  has no  interest. 3.  That  there  is  no  privity
between the  plaintiff and defendant, or any right to sustain the
suit. Secondly,  those that  insist that  the original  right, if
any, is  extinguished or  determined;   as, 1.  When the right is
determined by  the act  of the  parties;    or,  2.  When  it  is
determined by  operation of  law. 4 Bouv. Inst. n. 4199, et seq.;
1 Montag. Eq. Pl. 89. See Dilatory Defence;  Merits.

   TO DEFEND.  To forbid.  This word  is used in some old English
statutes in the
 sense  it has  in French,  namely, to  forbid. 5 Pic. 2, c. Lord
Coke uses  the word  in this  sense: it  is defended  by  law  to
distrain on  the highway." Co Litt. 160, b. 161 a. In an old work
entitled ,  Legends, printed by Winkin de Worde, in 1527, fo. 96,
we find  examples of  the use  of the  word in  this sense,  " He
defended," (forbade) " to pay the wage," (tribute,) " for he said
he was
 a king." " She wrote the obligation when she put her hand to the
tree against the defence." (prohibition of God.)

    2.  In pleading, to defend is to deny;  and the effect of the
word "defends"  is, that  the defendant  denies the  right of the
plaintiff, or the force and wrong charged. Steph. Pl. 432.

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    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;   Par- ties  to Actions;   Pursuer;    and  Com.  Dig.
Abatement, F;   Action upon the case upon assumpsit, E, b;  Bouv.
Inst. Index, h. t.

   2. At common law a defendant cannot have judgment to recoyer a
sum of  money of  the plaintiff. But this rule is, in some cases,
altered by the act of assembly in Pennsylvania, as by the. Act of
1705, for defalcation, by which he may sue out a sci. fac. on the
record of  a verdict  for a  sum found in his favor. 6 Binn. Rep.
175. See Account 6.

   DEFENDANT IN  ERROR. A  party against  whom a writ of error is
sued 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

   DEFINITE NUMBER.  An ascertained  number;  the term is usually
applied in op-
 position to an indefinite number.

   2. When there is a definite number of corporators, in order to
do a lawful act, a majority of the whole must be present;  but it
is not  necessary they should, be unanimous;  a majority of those
present  can,   in  general,   perform  the  act.  But  when  the
corporators  consist   of  an   indefinite  number,  any  number,
consisting of  a majority  of those  present, may  do the  act. 7
Cowen, R.  402 9  B. & Cr. 648, 851;  7 S. & 11. 517;  Ang. & Am.
on Corp. 281.

   DEFINITION. An  enumerition of  the principal ideas of which a
compound idea  is formed, to ascertain and explain its nature and
character;   or it  is that  which denotes  and  points  out  the
substance of a thing, to us. Ayliffe's Pand. 59.

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   2. A  definition ought  to contain every idea which belongs to
the thing defined, and exclude all others.

   3. A  definition should be, 1st. Universal, that is, such that
it will  apply equally  to all individuals of, the same kind. 2d.
Proper, that  is, such  that it  will  not  apply  to  any  other
individual of  any other  kind. 3d.  Clear, that  is, without any
equivocal, vague,  or unknown  word. 4th. Short, that is, without
any useless  word, or  any foreign  to the  idea intended  to  be

   4. Definitions  are always  dangerous, because  it  is  always
difficult to  prevent their  being inaccurate,  or their becoming
so;   omnis definitio  injure civili  periculosa est,  parum  est
enim, ut non subvertipossit.

  5. All ideas are not susceptible of definitions, and many words
cannot be  defined. This  inability is  frequently supplied, in a
considerable degree, by descriptions. (q. v.)

   DEFINITIVE. That which terminates a suit a definitive sentence
or judgment  is put  in opposition  to an interlocutory judgment;
final. (q. v.)

   DEFLORATION. The  act by  which a  woman is  deprived  of  her

  2. When this is done unlawfully, and against her will, it bears
the name  of rape,  (q. v.) when she consents, it is fornication.
(q. v.)

   DE FORCIANT.  One who  wrongfully keeps the owner of lands and
tenements out of the possession of them. 2 Bl. Com. 350.

   DEFORCIARE. To  withhold lands  or tenements  from  the  right
owner. This  is a  word of  art which  cannot be  supplied by any
other word. Co. Litt. 331 b;  3 Tho. Co. Litt. 3;  Bract. lib. 4,
238;  Fleta, lib. c.

  DEFORCEMENT, tort. In its most extensive sense it signifies the
holding of  any lands  or tenements to which another person has a
right;   Co .  Litt. 277;   so  that this  includes, as  well, an
abatement, an intrusion, a disseisin, or a discontinuance, as any
other species  of wrong  whatsoever, by  which the  owner of  the
freehold is  kept out  of possession. But, as contradistinguished
from the  former, it  is only  such a  detainer, of the freehold,
from him  who has  the right of property, as falls within none of
the injuries  above mentioned.  3 Bl.  Com. 173;  Archb. Civ. Pl.
13;  Dane's Ab. Index, h. t.

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

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   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, §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

     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;

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Vicat, ad  voc. Doctores  Minshew, Dict.  ad voc Bacheler;  Merl.
Rep ad  voc Universite;   Van  Espen, p.  1, tit. 10, c. Giaunone
Istoria, di  Napoli, lib.  xi. c.  2, for  a full account of this

   DEHORS. Out of;  without. By this word is understood something
out of  the record,  agreement, will,  or other  thing spoken of;
something foreign to the matter in question.

   DEI JUDICIUM.  The judgment of God. This name was given to the
barbarous and superstitious trial by ordeal.

   DEL CREDERE,  contracts. A del credere commission is one under
which the  agent, in  consideration  of  an  additional  premium,
engages to  insure to  his principal not only the solvency of the
debtor, but  the punctual  discharge of  the debt;    and  he  is
liable, in  the first  instance,  without  any  demand  from  the
debtor. 6 Bro. P. C. 287;  Beawes, 429;  1 T. Rep. 112;  Paley on
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,  §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

   4. -  1. The  senate is  composed of  three senators from each
county;   the number  may be  increased by  the general assembly,
two-thirds of  each branch concurring, but the number of senators
shall never be greater than one-half, nor less than two-thirds of
the number  of representatives.  Art. 2,  s. 3.  The senators are
chosen for  four years  by the  citizens residing  in the several

   5. -  2. The  house of  representatives is  composed of  seven
members from  each   county, but the general assembly, two-thirds
of  each   branch  concurring,   may  increase  the  number.  The

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representatives are chosen for two years by the citizens residing
in the several counties. Art. 2, s. 2.

   6. - 2d. The supreme executive power of the state is vested in
a governor,  who is chosen by the citizens of the state. He holds
his office  during four  years, from the third Tuesday in January
next ensuing  his election;  and is not eligible a second time to
the said  office. Art.  3. Upon  the happening  of a vacancy, the
speaker of  the senate  exercises the  office, until  a  governor
elected by the people shall be duly  qualified. Art. 3, s. 14.

   7. - 3d. The judicial power is vested in a court of errors and
appeals,, a  superior court,  a court  of chancery,  an  orphan's
court, a  court of oyer and terminer, a Court of general sessions
of the  peace and  jail delivery, a register's court, justices of
the peace,  and such  other courts  as the general assembly, with
the concurrence  of two-thirds  of all the members of both houses
shall, from time to time, establish. Art. 6.

   DELAY, civil  law. The  time  allowed  either  by  law  or  by
agreement of the parties to do something.

  2. The law allows a delay, for a party who has been summoned to
appear, to
 make  defence, to appeal;  it admits of a delay during which and
action may be brought, certain rights exercised, and the like.

   3. By the agreement of the parties there may be a delay in the
payment of  a  debt, the fulfilment of a contract, &c. Vide Code,
3, 11, 4;  Nov. 69, c. 2 Merl. Rep. h

   DELECTUS PERSONAE.  This phrase, which literally signifies the
choice of  a person,  is applied  to show  that partners have the
right to  select their  copartners;   and that no set of partners
can take another person into the partnership, without the consent
of each of the partners. Story on Partn. 6 Colly. on Partn. 4;  1
Swanst. 508;  2 Bouv. Inst. n. 1443.

   DELEGATE. A person elected by the people of a territory of the
United States,  to congress,  who has  a seat  in congress, and a
right of  debating, but  not of  voting. Ordinance  of July,  13,
1787, 3 Story's L. U. S. 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

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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 rigbts
against the original debtor. 2 Duverg. n. 169. See Novation.

   DELEGATION, contracts.  The transfer  of authority from one or
more persons to one or more others.

   2. In  general, all  persons sui juris may delegate to another
authority to act for them, but to this rule there are exceptions;
1st. On account of the thing to be done;  and 2d. Because the act
is of a personal nature, and incapable of being delegated. 1. The
thing to  be done must be lawful;  for an authority to do a thing
unlawful, is  absolutely void.  5 Co.  80. 2. Sometimes, when the
thing to  be done  is lawful,  it must be performed by the person
obligated himself. Com. Dig. Attorney, C 3;  Story, on Ag. §12.

   3. When  a bare  power or authority has been given to another,
the latter  cannot in general delegate that authority or any part
of it  to a  third  person,  for  the  obvious  reason  that  the
principal relied  upon the intelligence, skill and ability of his
agent, and he cannot have the same confidence in a stranger. Bac.
Ab. Authority,  D;   Com. Dig. Authority, C 3;  12. Mass. 241;  4
Mass. 597;  1 Roll. Ab. Authority, C 1, 15;  4 Camp. 183;  2 M. &
Selw. 298, 301;  6 Taunt. 146;  2 Inst. 507.

   4. To  this general rule that one appointed as agent, trustee,
and  the   like,  cannot   delegate  his   authority,  there  are
exceptions: 1.  When the  agent is expressly authorized to make a
substitution. 1  Liverm. on  Ag. 54.  2. When  the  authority  is
implied, as  in the  following: cases: 1st. When by the laws such

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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
do-ne with  due deliberation,  that the party intended to do what
he has  done. But  he may,  show the contrary;  in contracts, for
example, he  may show he has been taken by surprise;  (q. v.) and
when a  criminal act  is charged,  he may  prove that  it Was  an
accident, and  not with  deliberation, that  in fact there was no
intention or will. See Intention;  Will.

   DELIBERATION. legislation.  The council which is held touching
some business, in an assembly having the power to act in relation
to it.

   2. In deliberative assemblies, it is presumed that each member
will listen to the opinions and arguments of the others before he
arrives at a 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

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another,  either   voluntarily  or   accidentally  without   evil
intention;   but more  commonly by  delicts are  understood those
small offences  which are  punislied by  a small  fine or a short

   2. Delicts are either public or private;  the public are those
which affect  the whole  community by their hurtful consequences;
the private  is that  which is  directly injurious  to a  private
individual. Inst. 4, 18;  Id. 4, 1 Dig. 47, 1;  Id. 48, 1.

   3. A quasi-delict, quasi delictum, is the act of a person, who
without malignity,  but by  an inexcusable  imprudence, causes an
injury to another. Poth. Ob. n. 116;  Ersk. Pr. Laws of Scotl. B.
4, t. 4, s. 1.

   DELINQUENT, civil  law. He  who has been guilty of some crime,
offence or failure of duty.

     DELIRIUM,  med.jur.  A  disease  of  the  mind  produced  by
inflammations, particularly in fevers, and other bodily diseases.

  2. It is also occasioned by intoxicating agents.

   3. Delirium manifests its first appearance "by a propensity of
the patient  to talk  during sleep, and a momentary forgetfulness
of his situation, and of things about him, on waking from it. And
after being fully aroused, however, and his senses collected, the
mind is  comparitively clear and tranquil, till the next slumber,
when the  same scene  is repeated.  Gradually the mental disorder
becomes more  intense, and  the intervals  between its returns of
shorter  duration,  until  they  are  scarcely,  or  not  at  all
perceptible. The  patient lies  on his  back, his  eyes, if open,
presenting a  dull and  listless look,  and is  almost constantly
talking to  himself in  a  low,  muttering  tone.  Regardless  of
persons or  things around him and scarcely capable of recognizing
them when  aroused by  his attendants,  his mind  retires  within
itself to  dwell upon  the scenes  and events  of the past, which
pass before  it in  wild and  disorderly array,  while the tongue
feebly  records   the  varying   impressions,  in   the  form  of
disjointed, incoherent  discourse, or  of senseless  rhapsody. In
the delirium which occurs towards the end of chrome diseases, the
discourse is  often more coherent and continuous, though the mind
is no  less  absorbed  in  its  own  reveries.  As  the  disorder
advances, the  voice becomes  more indistinct,  the  fingers  are
constantly picking at the bed-clothes, the evacuations are passed
insensibly, and  the patient is incapable of being aroused to any
further effort  of attention. In some cases, delirium is attended
with a  greater degree  of nervous and vascular excitement, which
more or  less modifies the above-mentioned symptoms. The eyes are
open, dry,  and bloodshot,  intently gazing  into vacancy,  as if
fixed on  some object  which is really present to the mind of the
patient;   the skin is hotter and dryer;  and he is more restless
and intractable.  He talks more loudly, occasionally breaking out
into cries  and vociferation, and tosses about in bed, frequently

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endeavoring to  get up,  though without  any particular object in
view." Ray, Med. Jur. §213.

   4. "So  closely does  delirium resemble  mania to  the  casual
observer,  and   so  important   is  it   that  they   should  be
distinguished from  each other,  that it  may be well to indicate
some of the most common and prominent features of each. In mania,
the patient  recognizes persons  and  things,  and  is  perfectly
conscious of,  and remembers  what  is  passing  around  him.  In
delirium, he  can seldom  distinguish one  person or  thing  from
another, and,  as if  fully occupied  with the  images that crowd
upon his  memory, gives  no attention to those that are presented
from without.  In delirium,  there is  an entire abolition of the
reasoning power;   there  is no attempt at reasoning at all;  the
ideas are  all and  equally insane;   no  single train of thought
escapes the  morbid influence, nor does a single operation of the
mind reveal  a glimpse  of its  natural vigor  and acuteness.  In
mania, however false and absurd the ideas may be, we are never at
a loss  to discover  patches of  coherence, and some semblance of
logical sequence in the discourse. The patient still reasons, but
he reasons  incorrectly. In  mania, the  muscular  power  is  not
perceptibly diminished,  and the  individual moves about with his
ordinary ability.  Delirium is  invariably  attended  with  great
muscular debility;   and  the patient  is confined to bed, and is
capable of  only  a  momentary  effort  of  exertion.  In  mania,
sensation is not necessarily impaired and, in most instances, the
maniac sees,  bears, and feels with all his natural acuteness. In
delirium, sensation  is greatly  impaired, and this avenue to the
understanding seems  to be entirely closed. In mania, many of the
bodily functions  are undisturbed,  and  the  appearance  of  the
patient might  not, at  first sight,  convey  the  impression  of
disease. In  delirium, every  function  suffers,  and  the  whole
aspect of  the patient  is indicative  of discase.  Mania  exists
alone and  independent of  any other  disorder, while delirium is
only a  symptom or  attendant of  some  other  disease.  Being  a
symptom only,  the latter  maintains certain  relations with  the
-discase on  which it  depends;   it is  relieved  when  that  is
relieved, and  is aggravated  when that  increases  in  severity.
Mannia, though  it undoubtedly  tends to  shorten  life,  is  not
immediately dangerous;   whereas  the disease  on which  delirium
depends, speedily  terminates in death, or restoration to health.
Mania never  occurs till  after the  age of  puberty;    delirium
attacks all  periods alike,  from early  childhood to extreme old
age." Id. §216.

    5.  In  the  inquiry  as  to  the  validity  of  testamentary
dispositions, it  is of  great  importance,  in  many  cases,  to
ascertain whether the testator labored under delirium, or whether
he was  of sound mind. Vide Sound mind;  Unsound mind;  2 Addams,
R. 441;   1  Addams, Rep.  229, 383;  1 Hagg. R. 577;  2 Hagg. R.
142;   1 Lee,  Eccl. R. 130;  2 Lee, Eccl. R. 229;  1 Hag . Eccl.
Rep. 256.

   DELIRIUM TREMENS,  med. jur.  A species  of insanity which has

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obtained this  name, in  consequence of the tremor experienced by
the delirious person, when under a fit of the disorder.

  2. The disease called delirium tremens or mania a potu, is well
described in  the learned  work on  the Medical  Jurisprudence of
Insanity, by  Dr. Ray,  §315, 316,  of which  the following is an
extract: "it  may be the immediate effect of an excess, or series
of excesses, in those who are not habitually intemperate, as well
as in  those who  are;   but it  most commonly occurs in habitual
drinkers, after  a few  days of  total abstinence from spirituous
liquors. It is also very iable to occur in this latter class when
laboring under  other diseases,  or severe external injuries that
give rise  to  any  degree  of  constitutional  disturbance.  The
approach 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  watchfullness and  delirium continues  three  or  four
days, when,  if the  patient recover,  it is  succeeded by sleep,
which, at  first appears in uneasy and irregular naps, and lastly
in long,  sound, and  refreshing slumbers.  When sleep  does  not
supervene about  this period, the, disease is fatal;  and whether
subjected to  medical treatment,  or left  to itself, neither its
symptoms nor duration are materially modified.

   3. "The character of the delirium in this disease is peculiar,
bearing a  stronger resemblance  to dreaming, than any other form
of mental  derangement. It  would seem  as if  the  dreams  which
disturb and  harass the  mind during  the  imperfect  sleep  that
precedes the explosion of the disease, continue to occupy it when
awake, being  then viewed  as realities,  instead of  dreams. The
patient imagines  himself, for instance, to be in some particular
situation, or  engaged in  certain occupations  according to each
individuals habits  and profession, and his discourse and conduct
will  be   conformed  to   this  delusion,   with  this  striking
peculiarity, however,  that he  is thwarted at every step, and is
constantly meeting with obstacles that defy his utmost efforts to
remove. Almost  invariably, the  patient manifests, more or less,
feelings  of   suspicion  and   fear,  laboring  under  continual
apprehension of  being made  the victim  of sinister  designs and
practices. He  imagines that certain people have conspired to rob
or murder  him, and insists that he can hear them in an adjoining
apartment, arranging  their plans  and preparing to rush into his
room;   or that  he is  in a  strange place  where he is forcibly
detained and  prevented from  going to  his own  home. One of the
most common  hallucinations is,  to be constantly  seeing devils,

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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

   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

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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

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   6. - 1. Where goods are sold, if nothing remains to be done on
the part  of the  seller as between him and the buyer, before the
article is  to be  deliver-ed, the  property has passed. East, R.
614;  4 Mass. 661;  8 Mass. 287 14 Johns. 167;  15 Johns. 349;  1
Holt's R. 18;  3 Eng. C. L. r. 9.

   7. - 2. Where a chattel is made to order, the property therein
is not  vested in the quasi vendee, until finished and delivered,
though he has paid for it. 1 Taunt. 318.

   8. -  3. The  criterion to  determine whether there has been a
delivery on  a sale,  is to  consider whether  the  vendor  still
retains, in  that character,  a right  over. the  property. 2  H.
Blackst, R. 316.

   9. -  4. Where a part of the goods sold by an entire contract,
has been  taken possession of by the vendee, that shall be deemed
a taking  possession of  the whole.  2 H. Bl. R. 504;  1 New Rep.
69. Such  partial delivery  is not a delivery of the whole, so as
to vest  in the  vendee the  entire property  in the whole, where
some act, other than the payment of the price, is necessary to be
performed in order to vest the property. 6 East, R. 614.

  10. - 5. Where goods are sent by order to a carrier the carrier
receives them  as the  vendee's agent. Cowp. 294;  3 Bos. & Pull.
582;  2 N. R. 119.

   11. -  6. A  delivery may be made in a very slight manner;  as
where one  buys goods which are in a room, the receipt of the key
is sufficient.  1 Yeates,  529;   5 Johns.  335;  1 East, R. 192.
See, also, 3. B. & P. 233 7 East, Rep. 558;  1 Camp. 235.

  12. - 7. The vendor. of bulky articles is not bound to, deliver
them, unless  he stipulated to do so;  be must give notice to the
buyer that he is ready to deliver them. 5 Serg. & Rawle, 19;  12.
Mass. 300;   4  Shepl. Rep. 49;  and see 3 Johns. 399;  13 Johns.
294;  19 Johns. 218;  1 Dall. 171.

   13. -  8. A sale of bricks in a brick-yard, accompanied with a
lease of  the yard  until the  bricks should be sold and removed,
was held to be valid against the creditors of the vendor, without
an actual removal. 10 Mass. 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

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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 off-

  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

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should be  given to  the following circumstances: the mystery, if
any, which  has been affected with regard to the situation of the
female;   her age;   that of her hushand and particularly whether
aged or  decrepid. 3. When the woman has been actually delivered,
and substitutes  a living  for a  dead child. But little evidence
can be obtained on this subject from a physical examination.

  5. - 2. Concealed delivery generally takes place when the woman
either has  destroyed her  offspring, or  it was  born  dead.  In
suspected cases,  the following  circumstances should be attended
to: 1.  The proofs of pregnancy which arise in consequence of the
examination of  the mother.  When she  has been pregnant, and has
been delivered,  the usual  signs of  delivery, mentioned  below,
will be  present. A  careful  investigation  as  to  the  woman's
appearance, before and since the delivery, will have some weight,
though such  evidence is  not always  to be  relied upon, as such
appearances are  not unfrequently  deceptive. 2.  The  proofs  of
recent delivery.  3. The  connexion between the supposed state of
parturition, and  the state  of the  child that is found;  for if
the age of the child do not correspond to that time, it will be a
strong circumstance in favor of the mother's innocence. A redness
of the shin and an attachment of the umbilical cord to the navel,
indicate a  recent birth.  Whether the  child was  living at  its
birth, belongs to the subject of infanticide. (q. v.)

   6. - 3. The usual signs of delivery are very well collected in
Beck's excellent  treatise on Medical Jurisprudence, and are here
extracted: If  the female  be examined  within three or four days
after the  occurrence of  delivery, the  following  circumstances
will generally  be observed:  greater or  less weakness, a slight
paleness of  the face, the eye a little sunken, and surrounded by
a purplish  or dark  brown colored  ring, and  a whiteness of the
skin, like a person convalescing from disease. The belly is soft,
the skin  of the  abdomen is lax, lies in folds, and is traversed
in various directions by shining reddish and whitish lines, which
especially extend  from the  groins and pubis to the naval. These
lines have  sometimes been  termed linecae  albicantes,  and  are
particularly  observed  near  the  umbilical  region,  where  the
abdomen has  experienced the  greatest  distention.  The  breasts
become tumid  and hard,  and on  pressure emit  a fluid, which at
first is  serous, and  afterwards gradually  becomes whiter;  and
the presence  of this  secretion is  generally accompanied with a
full pulse  and soft  skin, covered with a moisture of a peculiar
and somewhat  acid odor.  The areolae  round the nipples are dark
colored. The  external genital  organs and vagina are dilated and
tumefied throughout  the whole of their extent, from the pressure
of the  foetus. The  uterus may  be felt  through  the  abdominal
parietes, voluminous,  firm, and  globular, and  rising nearly as
high as the umbilicus. Its orifice is soft and tumid, and dilated
so as  to admit two or more fingers. The fourchette;  or anterior
margin of  the perinaeum,  is sometimes  torn, or  it is lax, and
appears to  have suffered  considerable distention.  A  discharge
(termed  the   lochial)  commences  from  the  uterus,  which  is
distinguished from the menses by its pale color, its peculiar and

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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

   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., §20, p.
41, and  §22, p.  47;   3 Addams,  R. 79;  1 Litt. R. 371 Annales
d'Hygiene Publique, tom. 3, p. 370;  8 Watts, 70;  13 Ves. 89;  1
Pow. Dev. by Jarman, 130, note Shelf. on Lun. 296;  2 Bouv. Inst.
n. 2104-10.

  DEMAND, contracts. A claim;  a legal obligation.

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   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 fulfil
his contract,  or that  he refuses to marry at any time. 2 Dow. &
Ry. 55;  1 Chit. Pr. 57, note (n), and 438, note (e)

   6. A  demand of rent must always be made before a re-entry for
the non-payment of rent. Vide Re-entry.

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  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  wilful wrongdoer,
unless the plaintiff can prove an original illegal enticing away.
2 Lev.  63: Willes,  582;  1 Peake's C. N. P. 55;  5 East, 39;  6
T. R. 652;  4 Moore's R. 12 16 E. C. L. R. 3 5 7.

   13. -  2. In  cases where  the taking  of goods is lawful, but
their subsequent  detention becomes  illegal,  it  is  absolutely
necessary, in order to secure sufficient evidence of a conversion
on the trial, to give a formal notice of the owner's right to the
property and  possession, and  to make a formal demand in writing
of 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

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(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.

   DEFANDANT, practice.  The plaintiff or party who brings a real
action, is called the demandant. Co. Litt. 127;  1 Com. Dig. 85.

   DEMENCY, dementia, med. jur. A defect, hebetude, or imbecility
of the  under standing,  general  or  partial,  but  confined  to
individual faculties of the mind, particularly those concerned in
associating and comparing ideas, whence proceeds great, confusion
and incapacity  in arranging the thoughts. 1 Chit. Med. Jur. 351;
Cyclop. Practical  Med. tit.  Insanity;  Ray, Med. Jur. ch. 9;  1
-Beck's Med. Jur. 547.

  2. Demency is attended with a general enfeeblement of the moral
and intellectual  faculties, consequence of age or disease, which
were originally  well developed and sound. It is characterised by
forgetfulness of  the past;   indifference  to  the  present  and
future, and  a childish  disposition. It  differs from idiocy and
imbecility. In  these latter,  the powers  of the mind were never
possessed, while in demency, they have been lost.

   3. Demency may also be distinguished from mania, with which it
is sometimes  confounded. In  the former,  the mind  has lost its
strength, and  thereby the  reasoning faculty is impaired;  while
in the  latter, the  madness arises  from an  exaltation of vital
power, or from a morbid excess of activity.

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   4. Demency  is divided into acute and chronic. The former is a
consequence of  temporary errors of regimen, fevers, hemorrhages,
&c., and  is susceptible  of cure the latter, or chronic demency,
may  succeed   mania,  apoplexy,   epilepsy,  masturbation,   and
drunkenness, but  is generally  that incurable  decay of the mind
which occurs in old age.

   5. When demency has been fully established in its last stages,
the acts  of the  individual of  a civil  nature  will  be  void,
because the party had no consenting mind. Vide Contracts;  Wills;
2 Phillim.  R. 449.  Having no legal will or intention, he cannot
of course commit a crime. Vide Insanity;  Mania.

   DEMESNE, Eng. law. The name given to that portion of the Iands
of a  manor which  the lord retained in his own hands for the use
of himself  and family. These lands were called terra dominicales
or demesne  lands, because  they were  occupied by  the lord,  or
dominus manerii,  and his  servants, &c.  2  Bl.  Com.  90.  Vide
Ancient Demesne;  Demesne as of fee;  and Soil assault demesne.

  DEMESNE AS OF FEE. A man is said to be seised in his demesne as
of fee  of a  corporeal inheritance,  because he  has a  property
dominicum or  demesne in  the thing  itself. 2  Bl. Com. 106. But
when he has no dominion in the thing itself, as in the case of an
incorporeal hereditament,  he is said to be seised as of fee, and
not in  his demesne  as of  fee. Liit.  s. 10;   17  S. & R. 196;
Jones on Land Titles, i66.

  2. Formerly it was the practice in an action on the case, e. g.
for a  nuisance to  real estate,  to aver  in the declaration the
seisin of  the plaintiff in demesne as of fee;  and this is still
necessary, in  order to  estop the record with the land;  so that
it may  run with  or attend  the title.  Arch. Civ. Pl. 104;  Co.
Ent. 9,  pl. 8  Lill. Ent.  62;  1 Saund. Rep. 346;  Willes, Rep.
508. But  such an  action may  be maintained on the possession as
well as  on the seisin, although the effect of the record in this
case upon  the title  would not  be the  same. Steph.  on Pl. 322
Arch. Dig.  104;  1 Lutw. 12;  2 Mod. 71;  4 T. R. 718;  2 Saund.
1 Arch. Dig. 105;  Cro. Car. 500. 575

   DEMIDIETAS. This word is used in ancient records for a moiety,
or one  half. DEMIES. In some universities and colleges this term
is synonymous with scholars. Boyle on Charities, 129.

   DEMISE, contracts. In its most extended signification, it is a
conveyance either  in fee,  for life,  or for  years. In its more
technical meaning,  it is  a lease  or conveyance  for a  term of
years. Vide  Cow. L. & T. Index, h. t.;  Ad. Eject. Index, h. t.;
2 Hill.  Ab. 130;   Com. Dig. h. t., and the heads there referred
to. According  to Chief  Justice Gibson, the term demise strictly
denotes a posthumous grant, and no more. 5 1 Whart. R. 278. See 4
Bing. N.  C. 678;   S. C. 33 Eng. C. L. R. 492;  2 Bouv. Inst. n.
1774, et seq.

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   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

   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 inartificial manner;  for the
law requires in every pleading, two thing's;  the one, that it be
in matter  sufficient;    the  other,  that  it  be  deduced  and
expressed according  to the  forms of law;  and if either the one
or the  other of  these be wanting, it is cause of demurrer. Hob.
164. A demurrer, as in its nature, so also in its form, is of two

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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  particuIar
ground of exception. Co. Litt. 72, a.;  Bac. Abr. Pleas, N 5.

  9. A special demurrer is necessary, where it turns on matter of

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form only;   that  is, where,  notwithstanding  such  objections,
enough appears  to entitle the opposite party to judgment, as far
as relates  to the  merits of the cause. For, by two statutes, 27
Eliz. ch.  5, and  4 Ann.  ch. 16,  passed with  a  view  to  the
discouragement of  merely formal  objections, it  is provided  in
nearly the  same terms,  that the  judges  "shall  give  judgment
according to  the very right of the cause and matter in law as it
shall appear  unto  them,  without  regarding  any  imperfection,
omission, defect  or want  of form,  except those only 'Which the
party demurring  shall, specifically.  and particularly  set down
and express,  together with  his demurrer,  as the  causes of the
same." Since  these statutes,  therefore, no  mere matter of form
can be  objected to on a general demurrer;  but the demurrer must
be in  the special  form, and  the objection specifically stated.
But, on  the other  hand, it  is to  be observed,  that, under  a
special demurrer,  the party  may, on the argument, not only take
advantage of  the particular faults which his demurrer specifies,
but also  of all  objections in  substance, or regarding the very
right of the cause, (as the statute expresses it.) as under those
statutes,  need   not  be  particularly  set  down.  It  follows,
therefore,  that   unless  the   objection  be   clearly  of  the
substantial kind,  it is the safer course, in all cases, to demur
specially. Yet, where a general demurrer is plainly efficient, it
is more  usually adopted  in prctice;   because the effect of the
special form  being to apprise the opposite party more distinctly
of  the  nature  of  the  objection,  it  is  attended  with  the
inconvenience,  of  enabling  him  to  prepare  to  maintain  his
pleading by  argument, or  of leading him to apply the earlier to
amend. With  respect to  the degree of particularity, with which,
under these statutes, the special demurrer must assign the ground
of objection,  it may  be observed,  that it is not sufficient to
object, in  general  terms,  that  the  pleading  is  "uncertain,
defective, and  informal," or  the like, but if is necessarily to
show in  what, it  respect, uncertain, defective, and informal. 1
Saund. 161, n. 1, 337 b, n. 3;  Steph. Pl. 159, 161;  1 Chit. Pl.

   10.- 3.  A demurrer  to evidence is analogous to a demurrer in
pleading;   the party  from whom  it comes declaring that he will
not proceed,  because the  evidence offered on the other side, is
not sufficient  to maintain  the issue. Upon joinder in demurrer,
by the  opposite party, the jury are, in general, discharged from
giving any  verdict;   1 Arch.  Pr. 186;   and the demurrer being
entered on  record, is afterwards argued and decided by the court
in banc;  and the judgment there given upon it, may ultimately be
brought before  a court of error. See 2 H. Bl. 187 4 Chit. Pr. 15
Gould on Pl. c. 9, part 2, §47 United States Dig. Pleading, Viii.

   11. -  4. Demurrer  to  interrogatories.  By  this  phrase  is
understood the  reasons which a witness tenders for not answering
a particular  question in  interrogatories.  2  Swanst.  R.  194.
Strictly speaking, this is not a demurrer, which admits the facts
stated, for  the purpose  of taking the. opinion of the court but
by an  abuse of  the term,  the witness  objection to  answer  is

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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

   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

   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

   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

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donatione legis, letters patent to make him au English subject.

   2. He  is intermediate  between a  natural born subject and an
alien. He  may. take  lands by purchase or devise, which an alien
cannot, but  he is incapable of taking by inheritance. 1 Bl. Com.
374. In the United States there is no such civil condition.

   DENUNCIATION, crim. law. This term is used by the civilians to
signify the  act by which au individual informs a public officer,
whose duty  it is  to prosecute  offenders, that a crime has been
committed. It differs from a complaint. (q. v.) Vide 1 Bro. C. L.
447;  2 Id. 389;  Ayl. Parer. 210, Poth. Proc. Cr. sect. 2, §2.

   DEODAND, English law. This word is derived from Deo dandum, to
be given  to God;   and  is used  to  designate  the  instrument,
whether it  be an animal or inanimate thing, which has caused the
death of a man. 3 Inst. 57;  Hawk. bk. 1, c. 8.

   2. The  deodand is  forfeited to  the king,  and was  formerly
applied to  pious uses.  But the  presentment of  a deodand  by a
grand jury,  under their general charge from the judge of assize,
is void. 1 Burr. Rep. 17.

   DEPARTMENT. A  portion of a country. In France, the country is
divided into  departments, which  are  somewhat  similar  to  the
counties in  this country.  The United  States have  been divided
into military  departments, including  certain  portions  of  the
country. 1 Pet. 293.

   2. By  department is also meant the division of authority, as,
the department of state, of the navy, &c.

   DEPARTMENT OF THE NAVY, government. The Act of April 80, 1798,
1 Story's  Laws, 498,  establishes an executive department, under
the denomination of the department of the navy, the chief officer
of which shall be called the secretary of the navy. (q. v.)

   2. A  principal clerk, and such other clerks as he shall think
necessary, shall  be appointed  by the secretary of the navy, who
shall be employed in such manner as he shall deem most expedient.
In case  of vacancy in the office of the secretary, by removal or
otherwise, it  shall be  the duty  of the principal clerk to take
charge and  custody of  all books, records, and documents of said
office. Id. s. 2

   DEPARTMENT OF STATE, government. The laws of the United States
provide that  there shall be an executive department, denominated
the department of state;  and a principal officer therein, called
the secretary of state. (q. v.) Acts of July 27, 1789;  September
15, 1789,  s. 1.  There shall  be in  such department an inferior
officer, to  be appointed by the Secretary, and employed therein,
as he  shall deem  proper, to  be called  the chief  clerk of the
department of state. (q. v.) Act of July 27, 1789, s. 2.

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   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.

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

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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

   DEPENDENT CONTRACT.  One which  it is  not  the  duty  of  the

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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, §1063.  The term  is usually applied to the deprivation of
all authority of a sovereign.

   DEPOSIT, contracts.  Usually defined to be a naked bailment of
goods to  be kept  for the  bailor, without  reward,  and  to  be
returned when  he shall  require it.  Jones' Bailm.  36, 117;   1
Bell's Com.  257. See also Dane's Abr. ch. 17, aft. 1, §3;  Story
on Bailm.  c. 2,  §41. Pothier  defines it  to be  a contract, by
which one  of the contracting parties gives a thing to another to
keep, who is to do so gratuitously, and obliges himself to return
it when  he shall  be requested.  Traite du  Depot. See Code Civ.
tit. 11,  c. 1,  art. 1915;   Louisiana Code, tit. 13, c. 1, art.

   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,

   3. This  distinction was material in the civil law, in respect
to the remedy, for in voluntary deposits @ the action was only in
simplum;   in the  other in  duplum, or  two-fold,  whenever  the
depositary was  guilty of any default. The common law has made no
such distinction,  and, therefore,  in a  necessary deposit,  the
remedy is  limited to damages co-extensive with the wrong. Jones,
Bailm. 48.

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   4. Deposits  are again  divided by  the civil  law into simple
deposits, and  sequestrations;   the former  is when there is but
one party  depositor (of  whatever  number  composed),  having  a
common interest;   the  latter is  where there  are two  or  more
depositors, having  each a  different and  adverse interest.  See

     5.  These   distinctions  give   rise  to   very   different
considerations in  point of  responsibility and  rights. Hitherto
they do  not seem  to have  been incorporated  in the common law;
though if  cases should  arise, the principles applicable to them
would scarcely  fail of  receiving general approbation, at least,
so far  as they  affect the  rights and  responsibilities of  the
parties. Cases of judicial sequestration and deposits, especially
in courts  of chancery  and admiralty,  may hereafter require the
subject to be fully investigated. At present, there have been few
cases in  which it  has been  necessary to consider upon whom the
loss should fall when the property has perished in the custody of
the law. Story on Bailm. §41-46.

   6. There  is another class of deposits noticed by Pothier, and
called by him irregular deposits. This arises when a party having
a sum  of money  which he  doe's not think safe in his own hands;
confides it  to another, who is to return him, not the same money
, but  a like sum when he shall demand it. Poth. Traite du Depot,
ch. 3, §3. The usual deposit made by a person dealing with a bank
is of  this nature. The depositor, in such case, becomes merely a
creditor of  the depositary for the money or other thing which he
binds himself to 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. §85;
and see  Bac. Abr.  Bailm. D.  See further,  on  the  subject  of
deposits, Louis.  Code, tit.  13;   Bac. Abr.  Bailment;  Digest,
depositi vel  contra;  Code, lib. 4, tit. 34;  Inst. lib. 3, tit.
15, §3;   Nov. 73 and 78;  Domat, liv. 1, tit. 7, et tom. 2, liv.
3, tit. 1, s. 5, n. 26;  1 Bouv. Inst. n. 1053, et seq.

   DEPOSITARY, contracts.  He with  whom a deposit is confided or

   2. It  is, the  essence of  the contract  of deposits  that it
should be gratuitous on the part 'of the depositary. 9 M. R. 470.
Being a  bailee without reward, the depositary is bound to slight

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diligence only,  and he  is not  therefore answerable  except for
gross neglect.  1 Dane's  Abr. c.  17, art.  2. But in every case
good faith  requires that  he should  take reasonable  care;  and
what is  reasonable care,  must materially depend upon the nature
and quality  of the  thing, the  circumstances under  which it is
deposited, and  sometimes upon  the character and confidence, and
particular dealing of the parties. See 14 Serg. & Rawle, 275. The
degree of care and diligence is not altered by the fact, that the
depositary is  the joint  owner of  the goods with the depositor;
for in  such  a  case,  if  the  possessor  is  guilty  of  gross
negligence, he will still be responsible, in the same manner as a
common depositary, having no interest in the thing. Jones' Bailm.
82, 83. As to the care which. a depositary is bound to use, see 2
Ld. Raym.  900, 914;   1  Ld. Raym.  655;  2 Kent's Com. 438;  17
Mass. R.  479, 499;   4  Burr.. 2298;   14  Serg. &  Rawle,  275;
Jonees' Bailm. 8;  Story on Bailm. §63, 64.

   3. The depositary is bound to return the deposit in individuo,
and in the same state in which he received it;  if it is lost, or
injured, or  spoiled, by  his fraud  or gross  negligence, he  is
responsible to  the extent  of the  loss or injury. Jones' Bailm.
36, 46, 120;  17 Mass. R. 479;  2 Hawk. N. Car. R. 145;  1 Dane's
Abr. c.  17, art.  1 and 2. He is also bound to restore, not only
the thing  deposited, but  any increase or profits which may have
accrued from  it;   if an animal deposited bear young, the latter
are to be delivered to the owner. Story on Bailm. §99.

   4. In  general it  may be  laid down that a depositary has no,
right to  use the  thing deposited.  Bac. Abr.  Bailm. D;  Jones'
Bailm. 81,  82;   1 Dane's  Abr. c.  17, art.  11, §2.  But  this
proposition must  be received with many qualifications. There are
certain cases, in which the use of the thing may be necessary for
the due  preservation of  the deposit.  There are  others, again,
where it  would be mischievous;  and others again, where it would
be, if  not beneficial,  at least  indifferent. Jones' Bailm. 81,
82;   Owen's R.  123, 124;   2 Salk. 522;  2 Kent's Com. 450. The
best general  rule on  the subject,  is to consider whether there
may or  may not  be an implied consent, on the part of the owner,
to the  use. If  the use would be for the benefit of the deposit,
the assent  of the owner may well be presumed;  if to his injury,
or perilous,  it ought  not to  be presumed;  if the use would be
indifferent, and  other circumstances, do not incline either way,
the use may be deemed not allowable. Jones' Bailm. 80, 81;  Story
on Bailm. §90;  1 Bouv. Inst. n. 1008, et 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

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properly authorized by the commissioner. 8 Watts, R. 406, 524. It
ought to  answer all  the interrogatories,  and be  signed by the
witness, when  he can  write, and  by the  commissioner. When the
witness cannot  write, it  ought to  be so  stated, and he should
make his mark or cross.

   3. Depositions  in criminal  cases cannot be taken without the
consent of  the defendant.  Vide, generally,  1 Phil. Ev. 286;  1
Vern. 413,  note;   Ayl. Pand.  206;  2 Supp. to Ves. jr. 309;  7
Vin. Ab.  553;   12 Vin. Ab. 107;  Dane's Ab. Index, h. t.;  Com.
Dig. Chancery, P 8, T 4, T 5;  Com. Dig. Testmoigne, C 4.

  4. The Act of September 24, 1789, s. 30, 1 Story's L. U. S. 64,
directs that  when the testimony of any person shall be necessary
in any civil cause depending in any district, in any court of the
United States,  who shall  live at  a greater  distance from  the
place of trial than one hundred miles, or is bound on a voyage to
sea, or  is about  to go out of the United States, or out of such
district, and  to a greater distance from the place of trial than
as aforesaid,  before the  time of  trial, or is ancient, or very
infirm, the  deposition of such person may be taken de bene esse,
before any  justice or  judge of  any of the courts of the United
States, or  before any chancellor, justice, or judge of a supreme
or superior court, mayor, or chief magistrate of a city, or judge
of a  county court  or court of common pleas of any of the United
States, not  being of  counsel  or  attorney  to  either  of  the
parties, or  interested in the event of the cause;  provided that
a notification  from the magistrate before whom the deposition is
to be taken, to the adverse party, to be present at the taking of
the same,  and to  put interrogatories, if he think fit, be first
made out  and served  ou the  adverse party,  or his attorney, as
either may  be nearest,  if either is within one hundred miles of
the place  of such  caption, allowing  time for  their attendance
after being  notified, not  less than  at the  rate of  one  day,
Sundays exclusive,  for every twenty miles travel . And in causes
of admiralty  and  maritime  jurisdiction,  or  other  causes  of
seizure, when  a libel  shall be filed, in which an adverse party
is not  named,  and  depositions  of  persons,  circumstanced  as
aforesaid, shall  be taken  before a  claim be  put in,  the like
notification, as  aforesaid, shall  be given to the person having
the agency  or possession of the property libelled at the time of
the capture  or seizure  of the  same, if known to the libellant.
And every  person  deposing  as  aforesaid,  shall  be  carefully
examined and  cautioned, and  sworn or  affirmed to  testify  the
whole truth,  and shall  subscribe the  testimony by  him or  her
given, after the same shall be reduced to writing, which shall be
done only  by the  magistrate taking  the deposition,  or by  the
deponent in  his presence.  And the  deposition so taken shall be
retained by  such magistrate,  until he deliver the same with his
own, hand  into the  court for  which they  are taken,  or shall,
together with a certificate of the reasons as aforesaid, of their
being taken,  and of  the notice,  if any  given, to  the adverse
party, be  by him, the said magistrate, sealed up and directed to
such court,  and remain under his seal until opened in court. And

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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.

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450;   5 Taunt.  759. As  to the  place where  the  depositor  is
entitled to  receive his  deposit, see Story on Bailm. §117-120 1
Bouv. Inst. n. 1063.

  DEPREDATION, French law. The pillage which is made of the goods
of a decedent. Ferr. Mod. h. t.

   DEPRIVATION, ecclesiastical  Punishment. A  censure by which a
clergyman is  deprived  of  his  parsonage,  vicarage,  or  other
ecclesiastical promotion  or dignity. Vide Ayliffe's Parerg. 206;
1 Bl. Com. 393.

   DEPUTY. One authorized by an officer to exercise the office or
right which  the officer  possesses, for  and  in  place  of  the

  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.

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  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.

   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.

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   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 formedon in the descender. Bac.
Ab. Formedon, A 1. Vide Formedon.

  DESCENT. Hereditary succession. Descent is the title, whereby a
person, upon  the death  of his  ancestor, acquires the estate of
the latter, as his heir at law: This manner of acquiring title is
directly opposed  to that  of purchase.  (q. v.) 2 Bouv. Inst. n.
1952, et seq.

   2. It  will be  proper to  consider, 1.  What kind of property
descends;  and, 2. The general rules of descent.

   3. -  §1. All  real estate, and all freehold of inheritance in
land, descend  to the  heir. And,  as being accessory to the land
and making  a part  of the inheritance, fixtures, and emblements,
and all  things annexed  to, or  connected with the land, descend
with it to the heir. Terms for years, and other estates less than
freehold, pass  to the executor, and are not subjects of descent.
It is  a rule  at common  law that no one can inherit read estate
unless he was heir to the person last seised. This does not apply
as a  general rule  in the  United States. Vide article Possessio

   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

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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.
          |                        |
            (1) John                           (2) Maria
|                |
(3) Joseph           (4) Charles

          |               |
            (5) Robert        (6) James

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                  |        |
                  (7) Ann           (8) William

   In this case Maria would inherit one-half;  Joseph, the son of
John, one-half  of the  half, or  quarter of  the whole;  Robert,
one-eighth of the whole;  and Ann and William, each one-sixteenth
of the whole, which they would hold as tenants in common in these
proportions. This  is called  inheritance per  stirpes, by roots,
because the  heirs take  in such portions only as their immediate
ancestors would have inherited if living.

   6. -  3. When  the owner  of land  dies without  lawful issue,
leaving parents,  it is  the rule in some of the states, that the
inheritance shall.  ascend to them, first to the father, and then
to the  mother, or  jointly to  both, under  certain  regulations
prescribed by statute.

   7. -  4. When the intestate dies without issue or parents, the
estate  descends   to  his   brothers  and   sisters  and   their
representatives. When  there are such relations, and all of equal
degree  of   consanguinity  to  the  intestate,  the  inheritance
descends  to  them  in  equal  parts,  however  remote  from  the
intestate the common degree of consanguinity may be. When all the
heirs are  brothers and  sisters, or  all  of  them  nephews  and
nieces, they  take equally.  When some  are dead who leave issue,
and some  are living,  then those  who are  living take the share
they would have taken if all had been living, and the descendants
of those  who  are  dead  inherit  only  the  share  which  their
immediate parents  would have received if living. When the direct
lineal descendants  stand in equal degrees, they take per capita,
by the  head, each  one full  share;  when, on the contrary, they
stand  in  different  degrees  of  consanguinity  to  the  common
ancestor,  they   take  per   stirpes,  by  roots,  by  right  of
representation. It  is nearly  a general rule, that the ascending
line, after  parents, is  postponed to  the  collateral  line  of
brothers and  sisters. Considerable difference exists in the laws
of the  several states,  when the  next of  kin are  nephews  and
nieces, and  uncles and  aunts claim  as  standing  in  the  same
degree. In  many of  the states, all these relations take equally
as being  next of  kin;   this is  the rule  in the states of New
Hampshire, Vermont,  (subject to  the claim  of the  males  to  a
double portion  as above  stated,) Rhode  Island, North Carolina,
and  Louisiana.   In  Alabama,  Connecticut,  Delaware,  Georgia,
Indiana,  Illinois,  Kentucky,  Maine,  Maryland,  Massachusetts,
Mississippi, Missouri,  New Jersey, New York, Ohio, Pennsylvaaia,
South Carolina, Tennessee, and Virginia, on the contrary, nephews
and nieces  take in exclusion of uncles and aunts, though they be
of equal  degree of  consanguinity to  the intestate. In Alabama,
Connecticut,  Georgia,   Maryland,  New  Hampshire,  Ohio,  Rhode
Island, and Vermont, there is no representation among collaterals

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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 sligbt variations in some
of the  states, as, in Now York, grand parents do not take before

  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,

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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

   12. It  is proper  before closing  this article, to remind the
reader, that in computing the degrees of consanguinity, the civil
law is  followed generally  in  this  country,  except  in  Norrh
Carolina, where  the rules of the common law in their application
to  descents   are  adopted,   to   ascertain   the   degree   of
consanguinity. Vide the articles Branch;  Consanguinity;  Degree;

   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

   2. The  Act of  March 16,  1802, s.  19, enacts,  that if  any
non-commissioned officer,  musician, or private, shall desert the
service of  the United  Staies, he  shall,  in  addition  to  the
penalties mentioned  in the  rules and articles of war, be liable
to serve  for and  during such  period as shall, with the time he
may have  served previous  to his  desertion, amount  to the full
term of  his enlistment;  and such soldier shall and may be tried
by a  court-martial, and  punished,  although  the  term  of  his
enlistment may  have elapsed previous to his being apprehended or

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    3.  By  the  articles  of  war,  it  is  enacted,  that  "any
non-commissioned officer or soldier who shall, without leave from
his commanding  officer, absent  himself from his troop, company,
or detachment,  shall, upon being convicted thereof, be punished,
according to  the nature  of his  offence, at the discretion of a
court-martial." Art. 21.

   4. By the articles for the government of the navy, art. 16, it
is enacted,  that "if  any person  in the navy shall desert to an
enemy, or  rebel, he shall suffer death;" and by art. 17, "if any
person in  the navy  shall desert,  or  shall  entice  others  to
desert, he  shall suffer  death, or  such other  punishmemt as  a
court-martial shall adjudge."

   DESERTION, torts. The act by which a man abandons his wife and
children, or either of them.

  2. On proof of desertion, the courts possess the power to grant
the 'Wife,  or such  children as  have been deserted, alimony (q.

   DESERTION, MALICIOUS. The act of a hushand or wife, in leaving
a consort,  without just  cause, for  the purpose  of  causing  a
perpetual separation. Vide Abandonment, malicious.

   DESERTION OF  SEAMEN, contracts. The abandonment, by a sailor,
of a  ship or  vessel, in  which he  engaged to perform a voyage,
before the expiration of his time, and without leave.

  2. Desertion, without just cause, renders the sailor liable, on
his shipping  articles, for  damages, and  will, besides,  work a
forfeiture of his wages previously earned.

  3 Kent, Com. 155. It has been decided, in England, that leaving
the ship before the completion of the voyage is not desertion, in
the case,  1. Of  the seaman's  entering into the public service,
either voluntarily or by impress;  and 2. When he is compelled to
leave it  by the inhuman treatment of the captain. 2 Esp. R. 269;
1 Bell's Com. 514, 5th ed.;  2 Rob. Adm. R. 232.

   DESIGNATIO PERSONAE.  The persons  described in  a contract as
being parties to it.

   2. In all contracts, under seal, there must be some designatio
personae. In general, the names of the parties,appear in the body
of the  deed, "between  A B of, &c., of the one part, and C D of,
&c., of the other part," being the common formula. But there is a
sufficient  designation  and  description  of  the  party  to  be
charged, if his name is written at the foot of the 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

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plaintiff and  defendant subscribed  their names at the bottom of
the writing,  and afterwards sealed and delivered the document as
their deed.  Held, that  the omission  to state  the names of the
contracting parties  in the  body of the instrument, was supplied
by the  signatures at  the bottom,  and it  sufficiently appeared
whose deed it was. 1 Raym. 2;  1 Salk. 214 2 B. & P. 339.

   4. When a person is described in the body of the instrument by
the name  of James,  and he signs the name of John, on being sued
by the  latter name  he cannot deny it. 3 Taunt. 505;  Cro. Eliz.
897, n. (a.) Vide 11 Ad. & Ell. 594;  3 P. & D. 271.

   DESIGNATION, wills. The expression used by a testator, instead
of the  name of  the person  or the thing he is desirous to name;
for example,  a legacy to. the eldest son of such a person, would
be a designation of the legatee. Vide 1 Rop. Leg. ch. 2.

   2. A  bequest of  the farm which the testator bought of such a
person;   or of  the picture  he owns, painted by such an artist,
would be a designation of the thing devised or bequeathed.

   DESPACHEURS. The  name given,  in some  countries, to  persons
appointed to settle cases of average. Ord. Hamh. t. 21, art. 10.

  DESPATCHES. Official communications of official Persons, on the
affairs of  government.

   2. In general, the bearer of despatches is entitled to all the
facilities that  can be  given him,  in his  own country, or in a
neutral state;   but  a neutral cannot, in general, be the bearer
of despatches  of one  of the  belligerent parties. 6 C. Rob. 465
see 2 Dodson, 54;  Edw. 274.

  DESPERATE. Of which there is no hope.

   2. This  term is  used frequently, in making an inventory of a
decedent's effects,  when a  debt is considered so bad that there
is no  hope of recovering it. It is then called a desperate debt,
and, if  it be so returned, it will be prima facie, considered as
desperate. See  Toll. Ex.  248 2  Williams, Ex. 644;  1 Chit. Pr.
580. See Sperate.

   DESPITUS. This  word signifies,  in our  ancient law  books, a
contemptible person.  Flet. lib.  4, c.  5, §4.  The English word
despite is  derived from  it, which  signifies spite  or contempt
against one's  will -   defiance  with contempt,  or contempt  of

  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.

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   DESPOTISM, government.  That abuse  of government,  where  the
sovereign power  is not  divided, but  united in  the hands  of a
single man,  whatever may  be his  official  title.  It  is  not,
properly, a form of government. Toull. Dr. Civ. Fr. tit. prel. n.
32;  Rutherf Inst. b. 1, c. 20, §1. Vide 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 erectiug
buildings, he  is said  to give  a  destination  to  the  legacy.
Destination also  signifies the  intended application of a thing.
Mill stones,  for example,  taken out of a mill to be picked, and
to be  returned, have  a destination,  and are considered as real
estate, although  detached from the freehold. Heir looms, (q. v.)
although personal chattels, are, by their destination, considered
real estate  and money agreed or directed to be laid out in land,
is treated  as real  property. Newl. on Contr. ch. 8;  Fonbl. Eq.
B. 1,  c. 6, §9;  3 Wheat. R. 577;  2 Bell's Com. 2;  Ersk. Inst.
2 §14. Vide Mill.

   2. When  the owner  of two  adjoining houses  uses, during his
life, the  property in  such a  manner as  to make  one  property
subject to the other, and devises one property to one person, and
the other  to another,  this is  said not  to be  an easement  or
servitude, but  a destination  by the former owner. Lois des Bat.
partie 1, c. 4, art. 3, §3;  5 Har. & John. 82. See 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

   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

  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

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by virtue  of some  right. 2.  It is unlawful and forcible, where
the entry  has been unlawful, and with force, and it is retained,
by force,  against right;   or  even  when  the  entry  has  been
peaceable and  lawful, if  the detainer  be by force, and against
right;   as, if  a tenant at will should detain with force, after
the will  has  determined,  he  will  be  guilty  of  a  forcible
detainer. Hawk. P. C. ch. 64, s. 22;  2 Chit. Pr. 288;  Com. Dig,
B. 2;   8 Cowen, 216;  1 Hall, 240;  4 John. 198;  4 Bibb, 501. A
forcible detainer  is a distinct offence from a forcible entry. 8
Cowen, 216. See Forcible entry and detainer.

   4. -  4. A  writ or  instrument, issued or made by a competent
officer, authorizing  the keeper  of a  prison  to  keep  in  his
custody a person therein named. A detainer may be lodged against.
one within  the walls  of a  prison, on what account soever he is
there. Com. Dig. Process, E 3 b.

   DETENTION. The  act of  retaining a  person or  property,  and
preventing the removal of such person or property.

   2. The  detention may  be occasioned  by  accidents,  as,  the
detention of  a ship by calms, or by ice;  or it may, be hostile,
as the  detention of  persons or  ships in  a foreign country, by
order of the government. In general, the detention of a ship does
not change  the nature  of the  contract, and  therefore, sailors
will be entitled to their wages during the time of the detention.
1 Bell's Com. 517, 519, 5th ed.;  Mackel. Man. §210.

   3. A  detention is  legal when  the party  has a  right to the
property, and  has come  lawfully into  possession. It is illegal
when the  taking was  unlawful, as  is the case of forcible entry
and detainer,  although the party may have a right of possession;
but, in  some, cases,  the (retention may be lawful, although the
taking may have been unlawful. 3 Penn. St. R. 20. When the taking
was legal,  the detention  may be  illegal;   as, if one borrow a
horse, to  ride from  A to  B, and afterwards detain him from the
owner, After  demand, such  detention is  unlawful, and the owner
may either  retake his property, or have an actiqn of replevin or
detinue. 1  Chit. Pr.  135. In  some cases, the detention becomes
criminal although the taking was lawful, as in embezzlement.

   DETERMINABLE. What  may come  to an end, by the happening of a
contingency;  as a determnable fee. See 2 Bouv. Inst. n. 1695.

   DETERMINABLE FEE.  Also called a qualified or base fee, is one
which has a quality subjoined to it, and which must be determined
whenever the  qualification  annexed  to  it  is  at  in  end.  A
limitation to  a man  and his  heirs on  the part  of his father,
affords an  example of  this species  of estate. Litt. §254;  Co.
Litt. 27  a, 220;   1  Prest. on  Estates, 449;   2 Bl. Com. 109;
Cruise, tit 1, §82;  2 Bouv. Inst;  n., 1695.

   DETERMINATE. That  which is ascertained;  what is particularly
designated;   as, if  I sell  you my  horse Napoleon, the article

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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

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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  de-manded,  and  made
privity of  bailment. Bro. Abr. Garnishment, 1;  Interpleader, 3.
If the  prayer of  garnishment was  allowed, a  sci. fac.  issued
against the  person named  as garnishee.  If he made default, the
plaintiff recovered  against, the defendant the chattel demanded,
but no  damages. If the garnishee appeared and the plaintiff made
default, the  garnishee recovered.  If  both  appeared,  and  the
plaintiff recovered;   he  had judgment against the defendant for
the chattel  demanded, and  a distringas in execution and against
the garnishee a judgment for damages, and a fi. fa. in execution.
The verdict  and judgment must be such, that a special remedy may
be had  for the recovery of the goods detained, or a satisfaction
in value for each parcel, in case they, or either of them, cannot
be returned.  Walker, R.  538 7  Ala. R.  189;   4 Yerg. R. 570 4
Monr. 59;   7 Ala. R., 807.;  5 Miss. R. 489;  6 Monr. 52 4 Dana,
58;   3 B.  Munr. 313;   2  Humph. 59.  The judgment  is  in  the
alternative, that  the plaintiff  recover the  goods or the value
thereof, if he cannot have the goods themselves, and his damages.
Bro. Abr. Det. 48, 26, 3, 25;  4 Dana, R. 58;  2 Humph. 59;  3 B.
Mont. 313,  for the  detention and full costs. Vide, generally, 1
Chit. Pl.  117;  3 Bl. Com. 152;  2 Reeve's Hist. C. L. 261, 333,
336;   3 Id.  66, 74;  Bull. N. P. 50. This action has yielded to
the more  practical and  less technical  action of  trover. 3 Bl.
Com. 152.

  DETINUIT, practice. He detained.

   2. Where  an action  of replevin is instituted for goods which
the defendant  had taken, but which he afterwards restored, it is
said to  be brought  in the  detinuit;  in such case the judgment
is, that  the plaintiff  recover the damages assessed by the jury
for the  taking and  unjust detention,  or for  the latter  only,
where the former was justifiable, and his costs. 4 Bouv. Inst. n.
3562. 3. When the replevin is in the detinet, that he detains the
goods, the  jury must find in addition to the above, the value of
the chattels,  (assuming they  are still detained, not in a gross
sum, but  each separate  article must  be separately  valued, for
perhaps the defendant may restore some of them, in which case the
plaintiff is to recover the value of the remainder. Vide Debet et

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   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 wilful waste of
the property will be considered as a direct devastavit.

       4.   -    §2.   By   mal-administration.   Devastavit   by
mal-administration most  frequently  occurs  by  the  payment  of
claims which  were not due nor owing;  or by paying others out of
the order  in which  they ought to be paid;  or by the payment of
legacies before  all the,  debts have  been satisfied.  4 Serg. &
Rawle, 394;  5 Rawle, 266.

   5. -  §3. By  neglect. Negligence  on the part of an executor,
administrator, or  trustee, may  equally tend to the waste of the
estate, as  the direct  destruction or  mal-administration of the
assets, and  render him  guilty of  a devastavit.  The neglect to
sell the  goods at a fair price, within a reasonable time, or, if
they are  perishable goods,  before they  are wasted,  will be  a
devastavit. And  a neglect  to collect  a doubtful debt, which by
proper exertion might have been collected, will be so considered.
Bac. Ab. Executors, 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

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course, and  on no  account to  deviate from  that course, but in
cases of  necessity. 1  Mood. &  Rob. 60;   17 Ves. 364;  3 Bing.
637;  12 East, 578.

   3. The  effect of  a deviation  is not to vitiate or avoid the
policy, but  only to  determine the liability of the underwriters
from the time of the deviation. If, therefore, the ship or goods,
after the  voyage has  commenced, receive  damage, then  the ship
deviates, and afterwards a loss happen, there, though the insurer
is discharged  from  the  time  of  the  deviation,  and  is  not
answerable for  the subsequent loss, yet he is bound to make good
the damage  sustained previous to the deviation. 2 Lord Raym. 842
2 Salk. 444.

     4.  But   though  he  is  thus  disebarged  from  subsequent
responsibility, he  is entitled  to  retain  the  whole  premium.
Dougl. 271;   1 Marsh. Ins. 183;  Park. Ins. 294. See 2 Phil. Ev.
60, n. (b) where the American cases are cited.

   5. What  amounts to  a deviation  is not easily defined, but a
departure from  the usual  course of  the voyage, or remaining at
places where  the  ship  is  authorized  to  touch,  longer  than
necessary, or  doing there  what the insured is not authorized to
do;  as, if the ship have merely liberty to touch at a point, and
the insured  stay  there  to  trade,  or  break  bulk,  it  is  a
deviation. 4 Dall. 274 1 Peters' C. C. R. 104;  Marsh. Ins. B. 1,
c. 6, s. 2. By the course of the voyage is not meant the shortest
course the  ship can  take from her port of departure to her port
of destination,  but the  regular and  customary track,  if  such
there be,  which long  us usage  has proved  to be the safest and
most convenient.  1 Marsh. Ins. 185. See 3 Johns. Cas. 352;  7 T.
R. 162.

   6. A  deviation that  will discharge  the insurer,  must be  a
voluntary departure  from the usual course of the voyage insured,
and not  warranted by  any  necessity.  If  a  deviation  can  be
justified by  necessity, it  will not  affect the  contract;  and
necessity will  justify a  deviation, though  it proceed  from  a
cause not  insured against. The cases of necessity which are most
frequently adduced  to justify  a departure  from the  direct  or
usual course  of the voyage, are, 1st. Stress of weather. 2d. The
want of  necessary repairs.  3d. Joining  convoy. 4th. Succouring
ships in  distress. 5th.  Avoiding  capture  or  detention.  6th.
Sickness of  the master  or mariner. 7th. Mutiny of the crew. See
Park, Ins.  c. 17;  1 Bouv. Inst. n. 1187, et seq.;  2 John. Cas.
296;  11 Johns. R. 241;  Pet. C. C. R. 98;  2 Johns. Rep. 89;  14
Johns. R. 315;  2 Johns. R. 138;  9 Johns. R. 192;  8 Johns. Rep.
491;   13 Mass.  68 13 Mass. 539;  Id. 118;  14 Mass. 12 1 Johns.
Cas. 313;   11 Johns. R. 241;  3 Johns. R. 352;  10 Johns. R. 83;
1 Johns.  R. 301;  9 Mass. 436, 447;  3 Binn. 457 7 Mass. 349;  5
Mass. 1;   8  Mass. 308 6 Mass. 102 121 6 Mass. 122 7 Cranch, 26;
Id. 487;  3 Wheat. 159 7 Mass. 365;  10 Mass. 21 Id. 347 7 Johns.
Rep. 864;  3 Johns. R. 352;  4 Dall. R. 274 5 Binn. 403;  2 Serg.
& Raw. 309;  2 Cranch, 240.

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   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

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  DEVISEE. A person to whom a devise has been made.

   2. All  persons who are in rerum natura, and even embryos, may
be devisees, unless excepted by some positive law. In general, he
who can acquire property by his labor and industry, may receive a
devise. C. & N. 353.

  DEVISOR. A testator;  one, who devises his real estate.

   2. As  a general  rule all persons who. may sell an estate may
devise it.  The disabilities of devisors may be classed, in three
divisions.  1.  Infancy.  In  some  of  the  United  States  this
disability  is   partially  removed;     in  Illinois,  Maryland,
Mississippi and  Ohio, an  unmarried woman at the age of eighteen
years may  devise. 2.  Coverture. In  general,  a  married  woman
cannot devise;   but  in. Connecticut and Ohio she may devise her
lands;   and in  Illinois, her separate estate. In Louisiana, she
may devise without the consent of her hushand. Code, art. 132. 3.
Idiocy and  non sane  memory. It  is evident  that a  person  non
compos can make no devise, because he has no will.

   3. The  removal of the disability which existed at the time of
the devise  does, not,  of itself,  render it valid. For example,
when the  hushand dies,  and the  wife becomes a feme sole;  when
one non  compos is  restored to  his sense;   and  when an infant
becomes of  age;   these several  acts do  not make  a will good,
which at  its making  was void.  11 Mod. 123, 157;  2 Vern . 475;
Comb, 84;  4 Rawle, R. 3.36. Vide. Testament or ill.

  DEVOIR. Duty. It is used in the statute of 2 Ric. II., c. 3, in
the sense of duties or customs.

   DEVOLUTION, eccl. law. The transfer, by forfeiture, of a right
and power  which a  person has to another, on account of some act
or negligence  of the  person who  is vested  with such  right or
power: for  example, when a person has the right of preseptation,
and he  does not  present within  the time  prescribed, the right
devolves on his next immediate superior. Ayl. Par. 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.

   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

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the laws  of Oleron,  Wishuy, the  Consolato del  Mare, and other
ancient codes of maritime and commercial law. Hall on Mar. Loans,

   TO DICTATE.  To pronounce word for word what is destined to be
at the  same time written by another. Merlin Rep. mot Suggestion,
p. 5 00;  Toull. Dr. Civ. Fr. liv. 3, t. 2, c. 5, n. 410.

   DICTATOR, civil  law.  A  Magistrate  at  Rome  invested  with
absolute power.  His authority over the lives and fortunes of the
citizens was  without bounds.  His office  continued but  for six
months. Hist. de Ia Jur. h. t.;  Dig. l, 2, 18;  Id. 1, 1, 1.

   DICTUM, practice. Dicta are judicial opinions expressed by the
judges on points that do not necessarily arise in the case.

  2. Dicta are regarded as of little authority, on account of the
manner in which they are delivered;  it frequently happening that
they are  given without  much reflection,  at  the  bar,  without
previous examination.  "If," says Huston, J., in Frants v. Brown,
17 Serg. & Rawle, 292, "general dicta in cases turning on special
circumstances are  to be  considered  as  establishing  the  law,
nothing is  yet settled,  or can  be long  settled." "What I have
said or  written, out  of the case trying," continues the learned
judge, "or  shall say  or write,  under such circumstances, maybe
taken as  my opinion  at  the  time,  without  argument  or  full
consideration;  but I will never consider myself bound by it when
the point is fairly trying and fully argued and considered. And I
protest against  any person  considering such  obiter dicta as my
deliberate opinion."  And it  was considered  by another  learned
judge. Mr.  Baron Richards,  to be a "great misfortune that dicta
are taken  down from  judges, perhaps incorrectly, and then cited
as absolute  propositions." 1  Phillim. Rep.  1406;  S. C. 1 Eng.
Ecc. R.  129;  Ram. on Judgm. ch. 5, p. 36;  Willes' Rep. 666;  1
H. Bl.  53-63;  2 Bos. & P. 375;  7 T. R. 287;  3 B. & A. 341;  2
Bing. 90. The doctrine of the courts of France on this subject is
stated in 11 Toull. 177, n. 133.

   3. In  the French law, the report of a judgment made by one of
the judges  who has  given it,  is called the dictum. Poth. Proc.
Civ. partie 1, c. 5, art. 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

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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.

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   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, babitations, the uses of
real estate,  and its appurtenances, and of the sureties required
of the usufructuary.

   11. -  18. The eighth book, in six titles, regulates urban and
rural 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

  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

   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  eigbteenth 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.

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   24. -  21. The twenty-first book, explains under three titles,
the edict  of the  ediles relating  to the  sale  of  slaves  and
animals;  then what relates to evictions and warranties.

   25. -  22. The  twenty-second treats  of interest, profits and
accessories of  things, proofs, presumptions, and of ignorance of
law and fact. It is divided into six titles.

  26. - 23. The twenty-third, in five titles, contains the law of
marriage, and its accompanying agreements.

   27. -  24.  The  twenty-fourth,  in  three  titles,  regulates
donations  between   hushand  and   wife,  divorces,   and  their

   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

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   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

   41. -  43. Interdicts  or possessory actions are the object of
the forty-third book, in three titles.

   42.-44. The  forty-fourth contains  an enumeration of defences
which arise  in consequence of the resjudicata, from the lapse of
time, prescription,  and the like. This occupies six titles;  the
seventh treats of obligations and 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

   45.  -  47.  In  the  forty-seventh  book  are  explained  the
punishments inflicted  for private  crimes, de privates delictis,
among which  are included  larcenies, slander,  libels,  offences
against religion,  and public  manners, removing  boundaries, and
other similar offences.

   46. -  48. This  book treats of public crimes, among which are
enumerated those  Iaesae majestatis, adultery, murder, poisoning,
parricide, extortion,  and the  like, with rules for procedure in
such cases.

   47. -  49. The  forty-ninth, in  eighteen titles,  t reats  of
appeals, of  the rights  of the public treasury, of those who are
in captivity, and of their repurchase.

   48. -  50. The  last book,  in seventeen  titles, explains the
rights of  municipalities. and then treats of a variety of public

  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

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first book, and. includes the work to the end of the second title
of  the   twenty-fourth  book.   The  second,   called   digestum
infortiatum, because  it is  supported or  fortified by the other
two, it  being the middle;  it commences with the begining of the
third  title   of  the  twenty-fourth  book  and  ends  with  the
thirty-eighth. The third, which begins with the thirty-ninth book
and ends  with the work, is called digestum novum, because it was
last printed.

   51. The  Digest, although,  compiled  in  Constantinople,  was
originally written  in  Latin,  and  afterwards  translated  into

   52. This  work was  lost to  all Europe  during a considerable
period, as  indeed all  the law  works of  Justinian were, except
some fragments  of the  Code and  Novels. During  the pillage  of
Amalphi, in the war between the two soi-disant popes Innocent II.
and Anaclet  II., a  soldier discovered  an old manuscript, which
attracted his  attention by  its envelope  of many colors. It was
carried to  the emperor,  Clothaire II.,  and proved  to  be  the
Pandects of Justinian. The work was arranged in its present order
by Warner,  a German, whose name, Latinised, is Irnerius, who was
appointed professor  of Roman  law at Bologna, by that emperor. 1
Fournel, Hist. des Avocats, 44, 46, 51.

   53. The  Pandects contain all whatsoever Justinian drew out of
150,000 verses  of the  old books  of the Roman law. The style of
the Digest  is very grave and pure, and differs not much from the
eloquentist speech  that ever  the Romans  used." The learning of
the digest stands rather in the discussing of subtle questions of
law, and  enumeratious of  the variety  of  opinions  of  ancient
lawyers thereupon,  than in  practical matters  of daily use. The
Code of  Justinian differs in these respects from, the Digest. It
is less  methodical, but more practical;  the style however, is a
barbarous Thracian  phrase Latinised,  such  as  never  any  mean
Latinist  spoke.  The  work  is  otherwise  rude  and  unskilful.
Ridley's View  of the  Civ. & Ecc. Law, pt. 1, ch. 2, §1, and ch.
1, §2.

   54. Different  opinions are entertained upon the merits of the
Digest, or  Pandects, Code,  Authentics and Feuds, as a system of
jurisprudence. By  some it has been severely criticised, and even
harshly censured,  and by others as warmly defended the one party
discovering nothing  but defects,  and the  other as  obstinately
determined to  find nothing  but what  is good  and valuable. See
Felangieri della Legislazione, vol. 1, c. 7. It must be confessed
that it  is not  without defects. It might have been comprehended
in less  extent, and  in some  parts arranged in better order. It
must be confessed also that it is less congenial as a whole, with
the principles  of  free  government,  than  the  common  law  of
England. Yet,  with all  these defects,  it is a rich fountain of
learning and  reason;   and of  this monument of the high culture
and wisdom  of the  Roman jurists it may be said, as of all other
works in which the good so much surpasses the bad.

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          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. §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,

  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.

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   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

  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.

   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.

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   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

  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

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the president, it shall be the opinion of the president that such
assistants or  clerks are  necessary. And  bonds may  be required
from such  assistants and  clerks in  such sums  as the  director
shall determine,  with the  approbation of  the secretary  of the
treasury. The  salary of  the  director  of  the  mint,  for  his
services, including  travelling expenses incurred in visiting the
different branches,  and all  other charges  whatever,  is  three
thousand five hundred dollars.

   DIRECTORS. Persons  appointed or  elected  according  to  law,
authorized to  manage and  direct the affairs of a corporation or
company. The  whole of the directors collectively form, the board
of directors.

   2. They are generally invested with certain powers by the acts
of the legislature, to which they owe their existence.

  3. In modern corporations, created by statutes, it is generally
contemplated by the charter, that the business of the corporation
shall be  transacted exclusively  by the  directors. 2 Caines' R.
381. And the acts of such a board, evidenced by a legal vote, are
as completely  binding upon  the  corporation,  and  as  complete
authority to their agents, as the most solemn acts done under the
corporate seal. 8 Wheat. R. 357, 8.

  4. To make a legal board of directors, they must meet at a time
when, and a place where, every other director has the opportunity
of attending to consult and be consuited with;  and there must be
a sufficient  number present to constitute a quorum. 3 L. R. 574;
13 L. R. 527;  6 L. R. 759. See 11 Mass. 288;  5 Litt. R. 45;  12
S. & R. 256;  1 Pet. S. C. R. 46. Vide Dane's Ab. h. 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  stockhoders whenever there has
been gross  negligence or  fraud;    but  not  for  unintentional
errors. 1  Edw. Ch.  R. 513;   8  N. S.  80;  3. L. R. 576. See 4
Mann. & Gr. 552.

   DIRECTORY.  That  which  points  out  a  thing  or  course  of
proceeding;  for example, a directory law.

   DIRIMANT IMPEDIMENTS,  canon law.  Those bars  to a  marriage,
which,  if   consummated,  render   it  null.  They  differ  from
prohibitive impediments. (q. v.)

  DISABILITY. The want of legal capacity to do a thing.

  2. Persons may be under disability, 1. To make contracts. 2. To
bring actions.

   3. -  1. Those  who want  understanding;  as idiots, lunatics,
drunkards, and  infants or  freedom to  exercise their  will,  as

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married women,  and persons in duress;  or who, in consequence of
their situation,  are forbidden by the policy of the law to enter
into  contracts,   as  trustees,  executors,  administrators,  or
guardians,  are   under  disabilities   to  make  contracts.  See
Pa7-ties;  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 hushand,  a married  woman cannot  sue. 3.
Infancy;   unless he  appears by  guardian or  prochein ami.  Co.
Litt. 135,  b;  2 Saund. 117, f, n. 1 Bac. Ab. Infancy, K 2 Conn.
357;   7 John. 373;  Gould, Pl. c. 5, §54. 4. That no such person
as that  named has  any existence, is not, or never was, in rerum
natura. Com.  Dig. Abatement,  E 16, 17;  1 Chit. Pl. 435;  Gould
on Pl.  c. 5,  §58;  Lawes' Pl. 104;  19 John. 308. By the law of
England there are other disabilities;  these are, 1. Outlawry. 2.
Attainder. 3. Praemunire. 4. Popish recusancy. 5. Monachism.

   5. In the acts of limitation it is provided that persons lying
under certain  disabilities, such as being non compos, an infant,
in prison,  or under  coverture, shall  have the  right to  bring
actions after the disability shall have been removed.
 6.  In the  construction of this saving in the acts, it has been
decided that two disabilities shall not be joined when they occur
in different  persons;   as, if a right of entry accrue to a feme
covert, and  during the coverture she die, and the right descends
to her  infant son.  But the  rule is  otherwise when  there  are
several disabilities  in the  same person;    as,  if  the  right
accrues to an infant, and before he has attained his full age, he
becomes non  compos mentis;   in  this case  he may establish his
right after  the removal of the last disability. 2 Prest. Abs. of
Tit. 341  Shep. To.  31;   3 Tho. Co. Litt. pl. 18, note L;  2 H.
Bl. 584;  5 Whart. R. 377. Vide Incapacity.

  DISAFFIRMANCE. The act by which a person who has entered into a
voidable contract;   as, for example, an infant, does disagree to
such contract, and declares he will not abide by it.

   2. Disaffirmance  is express  or implied. The former, when the
declaration is made in terms that the party will not abide by the
contract. The latter, when he does an act which plainly manifests
his determination not to abide by it;  as, where an infant made a
deed for  his land, and, on coming of age, be made a deed for the
same land  to another.  2 Dev. & Bat. 320;  10 Pet. 58;  13 Mass.
371, 375.

  TO DISAVOW. To deny the authority by which an agent pretends to
have acted as when he has exceeded the bounds of his authority.

   2. It  is the  duty of  the principal  to fulfil the contracts
which have  been entered  into by his authorized agent;  and when
an agent has exceeded his authority, he ought promptly to disavow
such act, so that the other party may have his remedy against the

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agent. See Agent;  Principal.

   DIshURSEMENT.  Literally,  to  take  money  out  of  a  purse.
Figuratively, to  pay out  money;   to expend  mouey;   and some-
times it signifies to advance money.

    2.  A master  of a ship makes dishursements, whether with his
own money  or that of the owner, when he defrays expenses for the

  3. An executor, guardian, trustee, or other accountant, is said
to have  made dishursements  when he expended money on account of
the estate  which he holds. These, when properly made, are always
allowed in the settlement of the accounts.

   DISCHARGE, practice. The act by which a person in confinement,
under some  legal process, or held on an accusation of some crime
or misdemeauor,  is set  at liberty;   the writing containing the
order for  his  being  so  set  at  liberty,  is  also  called  a

   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
fulfil his part. Hall's Dig. 40. 11. The death of the contractor,
as where he undertook to teach an apprentice. 12. Bankruptcy. 13.
By the  act of  limitations. 14. By lapse of time. Angell on Adv.
Enjoym. passim;   15  Vin. Abr.  52, 99;  2 Saund. 63, n. b;  Id.

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66, n. 8;  Id. 67, n. 10;  Gow on Partn. 235;  1, Poth. 443, 449.
15. By neglecting to give notice to the, person charged. Chit. on
Bills, 245.  16. By  releasing one  of two partners. See Receipt.
17. By  neglecting to  sue the  principal at  the request  of the
surety, the  latter is  discharged. 8  Serg. & Rawle, 110. 18. By
the discharge  of a  defendant, who  has been  arrested  under  a
capias ad  satisfaciendum. 8  Cowen, R. 171. 19. By a certificate
and discharge under the bankrupt laws. Act of Congress of August,

   DISCHARGE OF A JURY, practice. The dismissal of a jury who had
been charged with the trial of a cause.

  2. Questions frequently arise, whether if the court discharge a
jury before  they render  a verdict,  in  a  criminal  case,  the
prisoner can  again be tried. In cases affecting life or members,
the general rule is that when a jury have been sworn and charged,
they cannot  be discharged  by the court, or any other, but ought
to give  a verdict.  But to  this rule there are many exceptions;
for example,  when the jury are discharged at the request or with
the consent  of the  prisoner  and  for  his  benefit,  when  ill
practices have  been used;   when the prisoner becomes insane, or
becomes suddenly  ill, so  that  he  cannot  defend  himself,  or
instruct others in his defence;  when a juror or witness is taken
suddenly ill;   when a juror has absented himself, or, on account
of his  intoxication, is  incapable to  perform his  duties as  a
juror. These  and  many  similar  cases,  which  may  be  readily
imagined, render the discharge of the jury a matter of necessity,
and;   under such  very extraordinary and striking circumstances,
it is  impossible to  proceed with the trial, with justice to the
prisoner or to the state.

   3. The  exception to the rule, then, is grounded on necessity,
and not  merely because  the jury  cannot agree. 6 Serg. & Rawle,
577;   3 Rawle's  Rep. 501.  In all  these cases  the court  must
exercise a  just discretion in deciding what is and what is not a
case of  necessity. This  is the  law as  to  the  exceptions  in
Pennsylvania. In  other states,  and some  of the  courts of  the
United States,  it has been ruled that the authority of the court
to discharge the jury rests in the sound discretion of the court.
4 Wash.  C. C.  R. 409;   18  Johns. 187;   2 Johns. Cas. 301;  2
Gall. 364;   9 Mass. 494;  1 Johns. Rep. 66;  2 Johns. Cas. 275 2
Gallis. 364;   13 Wend. 55;  Mart. & Yerg. 278;  3 Rawle, 498;  2
Dev. &  Bat. 162;   6  S. & R. 577;  2 Misso. 166;  9 Leigh, 613;
10 Yerg. 535;  3 Humph. 70. Vide 4 Taunt. 309.

   4. A distinction has been made between capital cases and other
criminal cases,  not capital.  In cases  of misdemeanors  and  in
civil cases, the right to discharge rests in the sound discretion
of the  court, which  is to  be exercised  with great  caution. 9
Mass. 494;   3 Dev. & Batt. 115. In Pennsylvania this point seems
not to  be settled.  6 Serg. & Rawle, 599. The reader is referred
to the word Jeopardy, and Story on the Const. §1781;  9 Wheat. R.
579;   Rawle on  the Const.  132, 133;   1 Chit. Cr. Law, 629;  1

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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. §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, §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;

   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.

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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

   2. It is a rule, that every pleading, must be an answer to the
whole of  what is adversly 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 justifica-  tion 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.

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   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

  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

   2. In  general, a  party may discredit a witness called by the

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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 unkown;   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

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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

   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.

     DISFRANCHISEMENT.  The  act  of  depriving  a  member  of  a
corporation of  his right as such, by expulsion. 1 Bouv. Inst. n.

   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.

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   TO DISHONOR,  contr. This term is applied to the nonfulfilment
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 Iegitimate decendants,
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,

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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.

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