D1:
DAM. A construction of wood, stone, or other materials, made
across a stream of water for the purpose of confining it; a
mole.
2. The owner of a stream not navigable, may erect a dam across
it, and employ the water in any reasonable manner, either for his
use or pleasure, so as not to destroy or render useless,
materially diminish, or affect the application of the water by
the proprietors below on the stream. He must not shut the gates
of his dams and detain the water unreasonably, nor let it off in
unusual quantities to the annoyance of his neighbors. 4 Dall.
211; 3 Caines, 207; 13 Mass. 420; 3 Pick, 268; 2 N. H. Rep.
532; 17 John. 306; 3 John. Ch. Rep. 282; 3 Rawle, 256; 2
Conn. Rep. 584; 5 Pick. 199; 20 John. 90; 1 Pick. 180; 4 Id.
460; 2 Binn. 475; 14 Srrg. & Rawle, 71; Id. 9; 13 John. 212;
1 McCord, 580; 3 N. H. Rep. 321; 1 Halst. R. 1; 3 Kents Com.
354.
3. When one side of the stream is owned by one person and the
other by another, neither, without the eonsent of the other, can
build a dam which extends beyond the filum aqua, thread of the
river, without committing a trespass. Cro. Eliz. 269; 12 Mass.
211; Ang. on W. C. 14, 104, 141; vide Lois des Bat. P. 1, c. 3,
s. 1, a. 3; Poth. Traite du Contrat de Societe, second app. 236;
Hill. Ab. Index, h. t.; 7 Cowen, R. 266; 2 Watts, R. 327; 3
Rawle, R. 90; 17 Mass. R. 289; 5 Pick. R. 175; 4 Mass. R. 401.
Vide Inundation.
DAMAGE, torts. The loss caused by one person to another, or to
his property,
either with the design of injuring him, with negligence and
carelessness, or by inevitable accident.
2. He who has caused the damage is bound to repair it and, if
he has done it maliciousiy, he may be. compelled to pay beyond
the actual loss. When damage occurs by accident, without blame to
anyone, the loss is borne by the owner of the thing injured; as,
if a horse run away with his rider, without any fault of the
latter, and injure the property of another person, the injury is
the loss of the owner of the thing. When the damage happens by
the act of God, or inevitable accident, as by tempest, earthquake
or other natural cause, the loss must be borne by the owner. Vide
Com. Dig. h. t.; Sayer on Damages.
3. Pothier defines damage (dommiges et interets) to be the loss
which some one has sustained, and the gain which he has failed of
making. Obl. n. 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.
law.
DAMAGES, practice. The indemnity given by law, to be recovered
from a wrong doer by the person who has sustained an injury,
either in his person, property, or relative rights, in
consequence of the acts of another.
2. Damages are given either for breaches of contracts, or for
tortious acts.
3. Damages for breach of contract may be given, for example,
for the non-performance of a written or verbal agreement; or of
a covenant to do or not to do a particular thing.
4. As to the measure of damages the general rule is that the
delinquent shall answer for all the injury which results from the
immediate and direct breach of his agreement, but not from
secondary and remote consequences.
5. In cases of an eviction, on covenant of seisin and warranty,
the rule seems to be to allow the consideration money, with
interest and costs. 6 Watts & Serg. 527; 2 Dev. R. 30; 3 Brev.
R. 458. See 7 Shepl. 260; 4 Dev. 46. But in Massachusetts, on
the covenant of warranty, the measure of damages is the value of
the land at the time of eviction. 4 Kent's Com. 462, 3, and the
cases there cited; 3 Mass. 523; 4 Mass. 108; 1 Bay, 19, 265;
3 Desaus. Eq. R. 247; 4 Penn. St. R. 168.
6. In estimating the measure of damages sustained in
consequence of the acts of a common carrier, it frequently
becomes a question whether the value of the goods at the place of
embarkation or the port of destination is the rule to establish
the damages sustained. It has been ruled that the value at the
port of destination is the proper criterion. 12 S. & R. 186;. 8
John. R. 213; 10 John. R. 1; 14 John. R. 170; 15 John. R. 24.
But contrary decisions have taken place. 3 Caines, R. 219 4 Hayw.
R. 112; and see 4 Mass. R. 115; 1 T. R. 31; 4 T. R. 582.
7. Damages for tortious acts are given for acts against the
person, as an assault and battery against the reputation, as
libels and slander, against the property, as trespass, when force
is used; or for the consequential acts of the tort-feasor, as,
when a man, in consequence of building a dam on his own premises,
overflows his neighbor's land; or against the relative rights of
the party injured, as for criminal conversation with his wife.
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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;
Remote.
9. Damages for torts are either compensatory or vindictive. By
compensatory damages is meant such as are given morely to
recompense a party who has sustained a loss in consequence of the
acts of the defendant, and where there are no circumstances to
aggravate the act, for the purpose of compensating the plaintiff
for his loss; as, for example, Where the defendant had caused to
be seized, property of A for the debt of B, when such property
was out of A's possession, and there appeared reason to believe
it was B's. Vindictive damages are such as are given against a
defendant, who, in addition to the trespass, has been guilty of
acts of outrage and wrong which cannot well be measured by a
compensation in money; as, for example, where the defendant went
to A's house, and with insult and outrage seized upon A's
property, for a debt due by B, and carried it away, leaving A's
family in distress. Sedgw. on Dam. 39; 2 Greenl. Ev. §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;
Price.
DAMAGES, EXCESSIVE. Such damages as are unreasonably great, and
not warranted by law.
2. The damages are excessive in the following cases: 1. When
they are 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
holder.
2. The discordant and shifting regulaaions on this subject
which have been enacted in the several states, render it almost
impossible to give a correct view of this subject. The drawer of
a bill of exchange may limit the amount of damages by making a
memorandum in the bill, that they shall be a definite sum; as,
for example, "In case of non-acceptance or non-payment,
reexchange and expenses not to exceed ___________ dollars. 1
Bouv. Inst. n. 1133. The following abstract of the laws of
several of the United States, will be acceptable to the
commercial lawyer.
3. - Alabama. 1. When drawn on a person in the United States.
By the Act of January 15, 1828, the damages on a protested bill
of exchange drawn on a person, either in this or any other of the
United States, are ten per cent. By the Act of December 21, 1832,
the damages on such bills drawn on any person in this state, or
upon any person payable in New Orleans, and purchased by the Bank
of Alabama or its branches, are five per cent.
4. - 2. Damages on protested bills drawn on on person out of
the United States are twenty per cent.
5. - Arkansus. 1. It is provided by the Act of February 28,
1838, s. 7, Ark. Rev. Stat. 150, that "every bill of exchange
expressed to be for value received, drawn or negotiated within
this state, payable after date, to order or bearer, which shall
be duly presented for acceptance or payment, and protested for
non-acceptance or non-payment, shall be subject to damages in the
following cases: first, if the bill have been drawn on any person
at any place within this state, at the rate of two per centum on
the principal sum specified in the bill; second, if the bill
shall be drawn on any person, and payable in any of the states of
Alabama, Louisiana, Mississippi, Tennessee, Kentucky, Ohio,
Indiana, Illinois, and Missouri, or any point on the Ohio river,
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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.
120.
32. - New York. By the Revised Statutes, Laws of N. Y. sess.
42, ch. 34, it is provided that upon bills drawn or negotiated
within the state upon any person, at any place within the six
states east of New York, or in New Jersey, Pennsylvania, Ohio,
Delaware, Maryland, Virginia, or the District of Columbia, the
damages to be allowed and paid upon the usual protest for
non-acceptance or non-payment, to the holder of the bill, as
purchase thereof, or of some interest therin, for a valuable
consideration, shall be three per cent. upon the principal sum
specified in the bill; and upon any person at any place within
the states of North Carolina, South Carolina, Georgia, Kentucky,
and Tennessee, five percent; and upon any person in any other
state or territory of the United States, or at any other place
on, or adjacent to, this continent, and north of the equator, or
in any British or foreign possessions in the West Indies, or
elsewhere in the Western Atlantic Ocean, or in Europe, ten per
cent. The damages are to be in lieu of interest, charges of
protest, and all other charges incurred previous to, and at the
time of, giving notice of non-acceptance or non-payment. But the
holder will be entitled to demand and recover interest upon the
aggregate amount of the principal sum specified in the bill, and
the damages from time of notice of the protest for
non-acceptance, or notice of a demand and protest for
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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.
250.
Vide, generally, 7 Vin. Ab. 247; 16 Vin. Ab. 58; 2 W. Bl.
Rep. 1190;. Coop. Just. 606; 1 Chit. Pr. 872; 2 Atk. 194;
Finch. 117; Prec. in Ch. 102; 2 Bro. P. C. 436; Fonbl. 151, 2,
note; Chit. Contr. 836; 11 N. Hamp. Rep. 234.
DAMAGES, SPECIAL, torts. Special damages are such as are in
fact sustained, and are not implied by law; these are either
superadded to general damages, arising from an act injurious in
itself, as when some particular loss arises. from the uttering of
slanderous words, actionable in themselves, or are such as arise
from an act indifferent and not actionable in itself, but
injurious only in its consequences, as when the words become
actionable only by reason of special damage ensuing. To
constitute special damage the legal and natural consequence must
arise from the tort, and not be a mere wrongful act of a third
person, or a remote consequence. 1 Camp. 58; Ham. N. P. 40; 1
Chit. Pl. 385, 6.
DAMAGES, SPECIAL, pleading. As distinguished from the gist of
the action, signify that special damage which is stated to result
from the gist; as, if a plaintiff in an action of trespass for
breaking his close, entering his house, and tossing his goods
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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
casualties.
2. In general, bailees are not liable for such damages. Story,
Bailm. p. 471.
DANE-LAGE, Eng. law. That system of laws which was maintained
in England while the Danes had possession of the country.
DANGERS OF THE SEA, mar. law. This phrase is sometimes put in
bills of lading, the master of the ship agreeing to deliver the
goods therein mentioned to the consignee, who is named, the
dangers of the sea excepted. Sometimes the phrase is "Perils of
the Sea." (q. v.) See 1 Brock. R. 187.
DARREIN. A corruption of the French word "dernier," the last.
It is sometimes used as, "darrein continuance," the last
continuance. When any matter has arisen in discharge of the
defendant in action, he may take advantage of it, provided he
pleads itpuis darrein continuance; for if he neglect to do so,
he waives his right. Vide article darrein continuance.
DARREIN SEISIN. The name of a plea to a writ of entry or a writ
of right. 3 Met. 175.
DATE. The designation or indication in an instrument of
writing, of the time, and usually of the time and place, when and
where it was made. When the place is mentioned in the date of a
deed, the law intends, unless the contrary appears, that it was
executed at the place of the date. Plowd. 7 b., 31 H. VI. This
word is derived from the Latin datum, because when deeds and
agreements were written in that language, immediately before the
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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
Almanac.
DATION, civil law, contracts. The act of giving something. It
differs from donation, which is a gift; dation, on the contrary,
is giving something without any liberality; as, the giving of an
office.
2. Dation in payment, datio in solutionem, which was the giving
one thing in payment of another which was due, corresponds nearly
to the accord and satisfaction of the common law.
DATION EN PAIEMFNT, civil law. This term is used in Louisiana;
it signifies that, when instead of paying a sum of money due on a
pre-existing debt, the debtor gives and the creditor agrees to
receive a movable or 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
present.
2. When a judge has a doubt as to the propriety of finding a
verdict, h(, may direct the jury to find one de bene esse; which
verdict, if the court shall afterwards be of opinion it ought to
have been found, shall stand. Bac. Ab. Verdict, A. Vide 11 S. &
R. 84.
DE BONIS NON. This phrase is used in cases where the goods of a
deceased person have not all been administered. When an executor
or administrator has been appointed, and the estate is not fully
settled, and the executor or administrator is dead, has
absconded, or from any cause has been removed, a second
administrator is appointed to to perform the duty remaining to be
done, who is called an administrator de bonis non, an
administrator of the goods not administered and he becomes by the
appointment the only representative of the deceased. 11 Vin. Ab.
111; 2 P. Wms. 340; Com. Dig. Administration, B I; 1 Root's
11. 425. And it seems that though the estate has been
distributed, an administrator de nonis non may be appointed, if
debts remain unsatisfied. 1 Root's R. 174.
DE BONIS PROPRIIS. Of his own goods. When an executor or
administrator has been guilty of a devastavit, (q. v.) he is
responsible for the loss which the estate has sustained, de bonis
propriis. He may also subject himself to the payment of a debt of
the deceased, de bonis propriis, by his false plea, when sued in
a representative as, if he plead plene administravit, and it be
found against him, or a release to himself, when false. In this
latter case the judgment is de bonis testatoris si, et si non de
bonis propriis. 1 Saund. 336 b, n. 10 Bac. Ab. Executor, B 8.
DE CONTUMACE CAPIENDO. The name of a writ issued for the arrest
of a defendant who is in contempt of the ecclesiastical court. 1
Nev. & Per. 680, 685, 689; 5 Dowl. 213, 646.
DE DOMO REPARANDA. The name of an ancient common law writ, by
which one tenant in common might compel his co-tenant to concur
in the expense of repairing the property held in common. 8 B. &
C. 269; 1 Tho. Co. Litt. 216, note 17, and p. 787.
DE DONIS, STATUTE. The name of an English statute passed the 13
Edwd. I. c. 1, the real design of which was to introduce
perpetuities, and to strengthen the power of the barons. 6 Co. 40
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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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18.
DE UNA PARTE. A deed de una parte, is one where only one party
grants, gives, or binds himself to do.a thing to another. It
differs from a deed inter partes. (q. v.) 2 Bouv. Inst. n. 2001.
DE WARRANTIA DIEI, WRIT, Eng. law. Where a man is required to
appear on a certain day in person, and before that day the king
certifies that the party is in the king's service, he may sue
this writ, commanding the justices not to record his default for
that day for the cause before mentioned. F. N. B. 36.
DEACON, Eccl. law. A minister or servant in the church whose
office, in some churches, is to assist the priest in divine
service, and the distribution of the sacrament.
DEAD Something which has no life; figuratively, something of
no value.
DEAD BODY, crim. law. A corpse.
2. To take up a dead body without lawful authority, even for
the purposes of dissection, is a misdemeanor, for which the
offender may be indicted at common law. 1 Russ. on Cr. 414; 1
Dowl. & R. 13; Russ. & Ry. 366, ii. b; 2 Chit. Cr. Law, 35.
This offence is punished by statute in New Hampshire, Laws of N.
H. 339, 340 in Vermont, Laws of Vermont, 368 .c. 361; in
Massachusetts, stat. 1830, c. 51; 8 Pick. 370; 11 Pick. 350;
in New York, 2 Rev. Stat. 688. Vide 1 Russ. 414, n. A.
3. The preventing a dead body from being buried, is also an
indictable offence. 2 T. R. 734; 4 East, 460; 1 Russ. on Cr.
415 and 416, note A.
4. To inter a dead body found in a river, it seems, would
render the offender liable to an indictment for a misdemeanor,
unless he first sent for the coroner. 1 Kenyon's R. 250.
DEAD-BORN, descent, persons. Children dead-born are considered,
in law, as if they had never been conceived, so that no one can
claim a title, by descent, through such dead-born child. This is
the doctrine of the civil law. Dig. 50, 16, 129. Non nasci, et
natum mori, pare, sunt. Mortuus exitus, non est exitus. Civil
Code of Louis. art. 28. A child in ventre sa mere is considered
in being, only when it is for its advantage, and not for the
benefit of a third person. The rule in the common law is,
probably, the same, that a dead-born child is to be considered as
if he had never been conceived or born in other words, it is
presumed he never had life. it being a maxim of the common law,
that mortuus exitus non est exitus. Co. Litt. 29 b. See 2 Paige,
R. 35; Domat, liv. prel. t. 2, s. 1, n. 4, 6; 4 Ves. 334.
DEAD FREIGHT, contracts. When the charterer of a vessel has
shipped part of the goods on board, and is not ready to ship the
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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
4.
DEAD LETTERS. Those which remain in the post-office, uncalled
for. By the Act of March 8, 1825, 3 Story. L. U. S. 1993, it is
enacted, by §26, "That the postmasters shall, respectively,
publish, at the expiration of every three months, or oftener,
when the postmaster general shall so direct, in one of the
newspapers published at, or nearest, the place of his residence,
for three successive weeks, a list of all the letters remaining
in their respective offices; or instead thereof, shall make out
a number of such lists, and cause them to be posted at such
public places, in their vicinity, as shall appear to them best
adapted for the information of the parties concerned; and, at
the expiration of the next three months, shall send such of the
said letters as then remain on hand, as dead letters, to the
general post office where the same shall be opened and inspected;
and if any valuable papers, or matters of consequence, shall be
found therein, it shall be the duty of the postmaster general to
return such letter to the writer thereof, or cause a descriptive
list thereof to be inserted in one of the newspapers published at
the place most convenient to the supposed residence of the owner,
if within the United States; and such letter, and the contents,
shall be preserved, to be delivered to the person to whom the
same shall be addressed, upon payment of the postage, and the
expense of publication. And if such letter contain money, the
postmaster general may appropriate it to the use of the
department, keeping an account thereof, and the amount shall be
paid by the department to the claimant as soon as he shall be
found."
3. And by the Act of July 2, 1836, 4 Sharsaw. Cont. of Story,
L. U. S. 2474, it is enacted by §35 that advertisements of
letters remaining in the post-offices, may, under the direction
of the postmaster general, be made in more than one newspaper:
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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.
Leg.
2eme partie, ch. 1, art. 5. Vide article Circumstances.
7. - §2. In examining the law as to the effect which death has
upon the rights of others, it will be proper to consider, 1. What
is the presumption of life or death. 2. The effects of a man's
death.
8. - 1. It is a general rule, that persons who are proved to
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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
survived.
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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
administrators.
19. - 4th. The death of a defendant discharges the special
bail. Tidd, Pr. 243; but when he dies after the return of the
ca. sa., and before it is filed, the bail are fixed. 6 T. R. 284;
5 Binn. R. 332, 338; 2 Mass. R. 485; 1 N. H. Rep. 172; 12
Wheat. 604; 4 John. R. 407; 3 McCord, R. 49; 4 Pick. R. 120;
4 N. H. Rep. 29.
20. Death is also divided into natural and civil.
21. Natural death is the cessation of life.
22. Civil death is the state of a person who, though possessing
natural life, has lost all his civil rights, and, as to them, is
considered as dead. A person convicted and attainted of felony,
and sentenced to the state prison for life, is, in the state of
New York, in consequence of the act of 29th of March, 1799, and
by virtue of the conviction and sentence of imprisonment for
life, to be considered as civilly dead. 6 Johns. C R. 118; 4
Johns. C. R. 228, 260; Laws of N. Y. Sess. 24, ch. 49, s. 29,
30, 31; 1 N. R. L. 157, 164; Co. Litt. 130, a; 3 Inst. 215; 1
Bl. Com. 132, 133; 4 Bl. Com. 332; 4 Vin. Ab. 152. See. Code
Civ. art. 22 a 25; 1 Toull. n. 280 and p. 254, 5, note; also,
pp. 243-5, n. 272; 1 Malleville's Discussion of the Code Civil,
45, 49, 51, 57. Biret, Vocab. au mot Effigie.
23. Death of a partner. The following effects follow the death
of a partner, namely: 1. The partnership is dissolved, unless
otherwise provided for by the articles of partnership. Gow's
Partn. 429. 2. The representatives of the deceased partner become
tenants in common with the survivor in all partnership effects in
possession. 3. Choses in action so far survive that the right to
reduce them into possession vests exclusively in the survivor. 4.
When recovered, the representatives of the deceased partner have,
in, equity, the same right of sharing and participating in them
that their testator or intestate would have had had he been
living. 5. It is the duty and the right of the surviving partner
to settle the affairs of the firm, for which he is not allowed
any compensation. 6. The surviving partner is alone to be sued at
law for debts of the firm, yet recourse can be had in equity
against the assets of the deceased debtor. Gow's Partn. 460. Vide
Bouvier's Law Dictionary : D1 : Page 30 of 120
Capital Crime; Dissolution; Firm; Partners; Partnership;
Punishment. See, generally, Bouv. Inst. Index, h. t.
DEATH BED, Scotch law. The incapacity to exercise the power of
disposing of one's property after being attacked with a mortal
disease.
2. It commences with the beginning of such disease.
3. There are two exceptions to this general rule, namely: 1. If
he survive for sixty days after the act or, 2. If he go to kirk
or market unattended. He is then said to be in legitima
potestate, or in liege poustie. 1 Bell's Com. 84, 85.
DEATH BED OR DYING DECLARATIONS. In cases of homicide, those
which are made in extremis, when the person making them is
conscious of his danger and has given up all hopes of recovery,
charging some other person or persons with the murder. See 1
Phil. Ev. 200; Stark. Ev. part 4, p 458; 15 Johns. R. 288; 1
Hawk's R. 442; 2 Hawk's R. 31; McNally's Ev. 174; Swift's Ev.
124.
2. These declarations, contrary to the general rule that,
hearsay is not evidence, are constantly received. The principle
of this exception is founded partly on the situation of the dying
person, which is considered to be as powerful over his
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.
500.
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
ad-
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
place.
4. It is a rule of the common law, that counsel may, in, the
discharge of professional duty, use strong epithets, however
derogatory to the character of the opponent, or his attorney, or
other agent or witness, in commenting on the facts of the case,
if pertinent to the cause, and stated in his instructions,
without any liability to any action for the supposed slander,
whether the thing stated were true or false. 1 B. & Ald. 232; 3
Dow's R. 273, 277, 279; 7 Bing. R. 459; S. C. 20 E. C. L. R.
198. Respectable and sensible counsel, however, will always
refrain from the indulgence of any unjust severity, both on their
own personal account, and because browheating a witness, or other
person, will injuriously affect their case in the eyes of a
respectable court and jury. 3 Chit. Pr. 887, 8.
DEBENTURE. A certificate given, in pursuance of law, by the
collector of a port of entry, for a certain sum, due by the
United States, payable at a time therein mentioned, to an
importer for drawhack of duties on merchandise imported and
exported by him, provided the duties arising on the importation
of the said merchandise shall have been discharged prior to the
time aforesaid. Vide Act of Congress of March 2, 1799, s. 80;
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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.
DEBITUM IN PRAESENTI, SOLVENDUM IN FUTURO. A debt due at
present, to be paid in future. There is a difference between debt
payable now and one payable at a future time. On the former an
action may be brought, on the latter no action lies until it
becomes due. See Due; Owing; and 13 Pet. 494; 11 Mass. 493.
DEBT, contracts. A sum of money due by certain and express
agreement. 3 Bl. Com. 154. In a less technical sense, as in the
"act to regulate arbitrations and proceedings in courts of
justice" of Pennsylvania, passed the 21st of March, 1806, s. 5,
it means an claim for money. In a still more enlarged sense, it
denotes any kind of a just demand; as, the debts of a bankrupt.
4 S. & R. 506.
2. Debts arise or are proved by matter of record, as judgment
debts; by bonds or specialties; and by simple contracts, where
the quantity is fixed and specific, and does not depend upon any
future valuation to settle it. 3 Bl. Com. 154; 2 Hill. R. 220.
3. According to the civilians, debts are divided into active
and passive. By the former is meant what is due to us, by the
latter, what we owe. By liquid debt, they understand one, the
payment of which may be immediately enforced, and not one which
is due at a future time, or is subject to a condition; by
hypothecary debt is meant, one which is a lien over an estate and
a doubtful debt, is one the payment of which is uncertain. Clef
des Lois Rom. h. t.
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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.
458.
4. - §2. When the action is on a simple contract, the
declaration must show the consideration of the contract,
precisely as in assumpsit; and it should state either a legal
liability or an express agrement, though not a promise to pay the
debt. 2 T. R. 28, 30. When the action is founded on a specialty
or record, no consideration need be shown, unless the performance
of the consideration constitutes a condition precedent, when
performance of such consideration must be averred. When the
action is founded on a deed, it must be declared upon, except in
the case of debt for rent. 1 New R. 104.
5. - §3. The plea to an action of debt is either general or
special. 1. The plea of general issue to debt on simple
contracts, or on statutes, or when the deed is only matter of
inducement, is nil debet. See Nil debet. In general, when the
action is on a specialty, the plea denying the existence of the
contract is non est factum; 2 Ld. Raym. 1500; to debt on
record, nul tiel record. 16 John. 55. Other matters must, in
general, be pleaded specially.
6.- §4. For the form of the judgment, see Judgment in debt. Vide
Remedy.
DEBTEE. One to whom a debt is due a creditor, as, debtee
executor. 3 Bl. Com. 18.
DEBTOR, contracts. One who owes a debt; he who may be
constrained to pay
what he owes.
2. A debtor is bound to pay his debt personally, and all the
estate he possesses or may acquire, is also liable for his debt.
3. Debtors are joint or several; joint, when they all equally
owe the debt in solido; in this case if a suit should be
necessary to recover the debt, all the debtors must be sued
together or, when some are dead, the survivors must be sued, but
each is bound for the whole debt, having a right to contribution
from the others; they are several, when each promises severally
to pay the whole debt; and obligations are 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
deceit.
5. Again, the vendor having a knowledge of a defect in a
commodity which cannot be obvious to the buyer, does not disclose
it, or, if apparent, uses an artifice and conceals it, he has
been guilty of a fraudulent misrepresentation for there is an
implied condition in every contract that the parties to it act
upon equal terms, and the seller is presumed to have assured or
represented to the vendee that he is not aware of any secret
deficiencies by which the commodity is impaired, and that he has
no advantage which himself does not pos-
sess.
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
defect.
7. The remedy for a deceit, unless the right of action has been
suspended or discharged, is by an action of trespass on the case.
The old writ of deceit was brought for acknowledging a fine, or
the like, in another name, and this being a perversion of law to
an evil purpose, and a high contempt, the act was laid contra
pacem, and a fine imposed upon the offender. See Bro. Abr.
Disceit; Vin Abr. Disceit.
8. When two or more persons unite in a deceit upon another,
they may be indicted for a conspiracy. (q. v.) Vide, generally, 2
Bouv. Inst. n. 2321-29; Skin. 119; Sid. 375; 3 T. R. 52-65; 1
Lev. 247; 1 Strange, 583; D Roll. Abr. 106; 7 Barr, Rep. 296;
11 Serg. & R. 309, 310; Com. Dig. Action upon the case for a
deceit; Chancery, 3 F 1 and 2; 3 M 1; 3 N 1; 4 D 3; 4 H 4;
4 L 1; 4 O 2; Covin; Justices of the Peace, B 30; Pleader, 2
H; 1 Vin. Ab. 560; 8 Vin. Ab. 490; Doct. Pl. 51; Dane's Ab.
Index, h. t.; 1 Chit. Pr. 832 Ham. N. P. c. 2, s. 4; Ayl. Pand.
99 2 Day, 531; 12 Mass. 20; 3 Johns. 269; 6 Johns. 181; 2
Day, 205, 381; 4 Yeates, 522; 18 John. 395: 8 John. 23; 4
Bibb, 91; 1 N. & M. 197. Vide, also, articles Equality; Fraud;
Lie.
TO DECEIVE. To induce another either by words or actions, to
take that for true which is not so. Wolff, Inst. Nat. §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 tšhe title of the
declaration follows the statement in the margin of the venue, or
county in which the facts are alleged to have occurred, and in
which the cause is tried. See Venue.
9. - Thirdly. The commencement. What is termed the commencement
of the declaration follows the venue in the margin, and precedes
the more circumstantial statement of the cause of action. It
contains a statement, 1st. Of the names of the parties to the
suit, and if they sue or be sued in another right, or in a
political capacity, (as executors, assignees, qui lam, &c.) of
the character or right in respect of which they are parties to
the suit. 2d. Of the mode in which the defendant has been
brought into court; and, 3d. A brief recital of the form of
action to be proceeded in. 1 Saund. 318, Id. 111, 112; 6 T. R.
130.
10. Fourthly. The statement of the cause (if action, in which
all the requisites of certainty before mentioned must be
observed, necessarily varies, according to the circumstances of
each particular case, and the form of action, whether in
assumpsit, debt, covenant, detinue, case, trover, replevin or
trespass.
11. Fifthly. The several counts. A declaration may consist of
as many counts as the case requires, and the jury may assess
entire or distinct damages on. all the counts; 3 Wils. R. 185;
2 Bay, R. 206; and it is usual, particularly in actions of
assumpsit, debt on simple contract, and actions on the case, to
set forth the plaintiff's cause of action in various shapes in
different counts, so that if the plaintiff fail in proof of one
count, he may succeed in another. 3 Bl. Com. 295.
12. - Sixthly. The conclusion. In personal and mixed actions
the declaration should conclude to the damage of the plaintiff;
Com. Dig. Pleader, C 84; 10 Co. 116, b. 117, a.; unless in
scire facias and in penal actions at the suit of a common
informer.
13. - Seventhly. The profert and pledges. In an action at the
suit of an executor or administrator, immediately after the
conclusion to the damages, &c., and before the pledges, a profert
of the letters testamentary or letters of administration should
be made. Bac. Abr. Executor, C; Dougl. 6, in notes. At the end
of the declaration, it is usual to add the plaintiff is common
pledges to prosecute, John Doe and Richard Roe.
14. A declaration may be general or special; for example, in
debt or bond, a declaration counting on the penal part only, is
general; when it sets out both the penalty and the condition,
and assigns the breach, it is special. Gould on Pl. c. 4, §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
Britain.
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
tiers.
DECLARATION OF WAR. An act of the national legislature, in
which a state of war is declared to exist between the United
States and some other nation.
2. This power is vested in congress by the constitution, art.
1, s. 8. There is no form or ceremony necessary, except the
passage of the act. A manifesto, stating the causes of the war,
is usually 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,
571.
DECREE, practice. The judgment or sentence of a court of
equity.
2. It is either interlocutory or final. The former is given on
some plea or issue arising in the cause, which does not decide
the main question; the latter settles the matter in dispute, and
a final decree has the same effect as a judgment at law. 2 Madd.
Ch. 462; 1 Chan. Cas. 27; 2 Vern. 89; 4 Bro. P. C. 287.; Vide
7r-Vin. Ab. 394; 7 Com. Dig. 445; 1 Supp. to Ves. Jr. 223 Bouv.
Inst. Index, h. t.
DECREE, legislation. In some countries as in France, some acts
of the legislature, or of the sovereign, which have the force of
law, are called decrees; as, the Berlin and Milan decrees.
DECREE ARBITRAL, Scotch law. A decree made by arbitrators
chosen by the parties; an award. 1 Bell's Com. 643.
DECREE OF REGISTRATION, Scotch law. A proceeding by which the
creditor has immediate execution; it is somewhat like a warrant
of attorney to confess judgment. 1 Bell's Com. B. 1, c. 1, p. 4.
DECRETAL ORDER. Chancery practice. An order made by the court
of chancery, upon a motion or petition, in the nature of a
decree. 2 Dan. Ch. Pr. 637.
DECRETALS. eccles. law. The decretals are 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,
194-5.
3. The false decretals were forged. in the names of the early
bishops of Rome, and first appeared about A. D. 845-850. The
author of them is