D2:
DISINTERESTED WITNESS. One who has no interest in the cause or
matter in issue, and who is lawfully competent to testify.
2. In North Carolina and Tennessee, wills to pass lands must be
attested by disinterested witnesses. See Attesting Witness;
Competent Witness; Credible Witness; Respectable Witness, and
Witness.
DISJUNCTIVE TERM. One which is placed between two contraries,
by the affirming of one of which, the other is taken away: it is
usually expressed by the word or. Vide 3 Ves. 450; 7 Ves. 454;
2 Rop. Leg. 290.; 1 P. Wms. 433; 2 Cox, Rep. 213; 2 P. Wms.
283 2 Atk. 643; 6 Ves. 341; 2 Ves. sr. 67; 2 Str. 1175; Cro.
Eliz. 525; Pollexf. 645; 1 Bing. 500; 3 T. R. 470; 1 Ves. sr.
409; 3 Atk. 83, 85; Ayl. Pand. 56; 2 Miles, Rep. 49.
2. In the civil law, when a legacy is given to Caius or Titius,
the word or is considered and, and both Caius and Titius are
entitled to the legacy in equal parts. 6 Toull. n. 704. See
Copulative term; Construction, subdivision, And; Or.. Also,
Bac. Ab. Conditions, P 5.
DISMES. Another name for tithes. Dime, (q. v.) a piece of
federal money, is sometimes improperly written disme.
TO DISMISS A CAUSE, practice. A term used in courts of chancery
for removing a cause out of court without any further hearing.
DISOBEDIENCE. The want of submission to the orders of a
superior.
2. In the army, disobedience is a misdemeanor.
3. For disobedience to parents, children may be punished; and
apprentices may be imprisoned for disobedience to the lawful
commands of their master. Vide Correction.
DISORDERLY HOUSE, crim. law. A house, the inmates of which
believe so badly as to become a nuisance to the neighborhood.
2. The keeper of such house may be indicted for keeping a
public nuisance. Hardr. 344; Hawk. b. 1, c. 78, s. 1 and 2 Bac.
Ab. Inns, A; 1 Russ. on Cr. 298; 1 Wheel. C. C. 290; 1 Serg. &
Rawle, 342; 2 Serg. & Rawle, 298; Bac. Ab. Nuisances, A; 4
Chit. BI.. Com. 167, 8, note. The hushand must be joined with the
wife in an indictment to suppress a disorderly house. Justice's
Case, Law 16; 1 Shaw, 146. Vide Bawdy house; Ill fame.
DISPARAGEMENT. An injury by union or comparison with some
person or thing of inferior rank or excellence; as, while the
infant was in ward, by the English law, the guardian had the
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power of tendering him a suitable match without disparagement. 2
Bl. Com. 70.
TO DISPAUPER, Eng. law. To deprive a person of the privilege of
suing in forma pauperis. (q. v.)
2. When a person has been admitted to sue in forma pauperis,
and, before the suit is ended, it appears that the party. has
become the owner of a sufficient estate real or personal, or has
been guilty of some wrong, he may be dispaupered.
DISPENSATION. A relaxation of law for the benefit or advantage
of an individual. In the United States, no power exists, except
in the legislature, to dispense with law, and then it is not so
much a dispensation as a change of the law.
TO DISPONE, Scotch law. This is a technical word, which
implies, it is said, a transfer of feudal property by a
particular deed, and is not equivalent to the term alienate; but
Lord Eldon says, "with respect to the word dispone, if I collect
the opinions of a majority of the judgcs rightly, I am of opinion
that the word dispone would have the same effect as the word
alienate.) (q. v.) Sandford on Entails, 179, note.
DISPOSITION, French law. This word has several accept-ations;
sometimes it signifies the effective marks of the will of some
person; and at others the instrument containing those marks.
2. The dispositions of man make the dispositions of the law to
cease; for example, when a man bequeaths his estate, the
disposition he makes of it, renders the legal disposition of it,
if he had died intestate, to cease.
DISSEISED pleading. This is a word with a technical meaning,
which, when inserted in an indictment for forcible entry and
detainer, has all the force of the words expelled or unlawfully,
for the last is superfluous, and the first is implied in the word
disseised. 8 T. R. 357; Cro. Jac. 32; vide 3 Yeates' R. 39; S.
C. 4 Dall. Rep. 212.
DISSEISEE, torts. One who is wrongfully put out of possession
of his lands.
DISSEISIN, torts. The privation of seisin. It takes the seisin
or estate from one man and places it in another. It is an ouster
of the rightful owner from the seisin or estate in the land, and
the coinmencement of a new estate in the wrong doer. It may be by
abatement, intrusion, discontinuance, or deforcement, as well as
by disseisin, properly so called. Every dispossession is not a
disseisin. A disseisin, properly so called, requires an ouster of
the freehold. A disseisin at election is not a disseisin in fact;
2 Prest. Abs. tit. 279, et seq.; but by admission only of the
injured party, for the purpose of trying his right in a real
action. Co. Litt. 277; 3 Greenl. 316; 4 N. H. Rep. 371; 5
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Cowen, 371; 6 John. 197; 2 Fairf. 309, 2 Greenl. 242; 5 Pet.
402; 6 Pick. 172.
2. Disseisin may be effected either in corporeal inheritances,
or incorporeal. Disseisin of things corporcal, as of houses,
lands, &c., must be by entry and actual dispossession of the
freehold; as if a man enters, by force or fraud, into the house
of another, and turns, or at least, keeps him or his servants out
of possession. Disseisin of incorporeal hereditaments cannot be
an actual dispossession, for the subject itself is neither
capable of actual bodily possession nor dispossession. 3 B1. Com.
169, 170. See 15 Mass. 495 6 John. R. 197; 2 Watts, 23; 6 Pick.
172 1 Verm. 155; 11 Pet. R. 41; 10 Pet. R. 414; 14 Pick. 374;
1 Dana's R. 279; 2 Fairf. 408; 11 Pick. 193; 8 Pick. 172; 8
Vin. Ab. 79; 1 Swift's Dig. 504; 1 Cruise, *65; Arch. Civ. Pl.
12; Bac. Ab. h. t.; 2 Supp. to Ves. Jr. 343; Dane's Ab. Index,
h. t.; 1 Chit. Pr. 374, note (r.)
DISSEISOR, torts. One who puts another out of the possession of
his lands wrongfully.
DISSENT, contracts. A disagreement to something which has been
done. It is express or implied.
2. The law presumes that every person to whom a conveyance has
been made has given his assent to it, because it is supposed to
be for his benefit. To rebut the presumption, his dissent must be
expressed. Vide 4 Mason, R. 206; 11 Wheat. R. 78; 1 Binn. R.
502; 2 Binn. R. 174; 6 Binn. R. 338; 12 Mass. R. 456; 17
Mass. R. 552; 3 John. Ch. R. 261; 4 John. Ch. R. 136, 529; and
dssent, and the authorities there cited.
DISSOLUTION, contracts. The dissolution of a contract, is the
annulling its effects between the contracting parties.
2. This dissolution of a partnership, is the putting an end to
the partnership. Its dissolution does not affect contracts made
between the. partners and others; so that they are entitled to
all their rights, and they are liable on their obligations, as if
the partnership had not been dissolved. Vide article Partnership
and 3 Kent, Com. 27 Dane's Ab. h. t.; Gow on Partn. Index, h.
t.; Wats. on Partn. h. t.; Bouv. Inst. Index, h. t.
DISSOLUTION, practice. The act of rendering a legal proceeding
null, or changing its character; as, a foreign attachment in
Pennsylvania is: dissolved by entering bail to the action.
Injunctions are dissolved by the court.
TO DISSUADE, crim. law. To induce a person not to do an act.
2. To dissuade a witness from giving evidence against a person
indicted, is an indictable offence at common law. Hawk. B. 1, c.
2 1, s. 1 5. The mere attempt to stifle evidence, is also
criminal, although the persuasion should not succeed, on the
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general principle that an incitement to commit a crime, is in
itself criminal. 1 Russ. on Cr. 44; 6 East, R. 464; 2 East, R.
6, 21; 2 Str. 904; 2 Leach, 925. Vide To Persuade.
DISTRACTED PERSON, This term is used in the statutes of
Illinois; Rev. Laws of Ill. 1833, p. 332; and New Hampshire;
Dig. Laws of N. H. 1830, p. 339; to express a state of insanity.
TO DISTRAIN. To take an keep any personal chattel in custody,
as a distress. (q. v.)
DISTRAINOR. One who makes a distress of goods and chattels to
enforce some right.
DISTRESS, remedies. A distress is defined to be, the taking of
a personal chattel, without legal process, from the possession of
the wrong doer, into the hands of the party grieved, as a pledge
for the redress of an injury, the performance of a duty, or the
satisfaction of a demand. 3 Bl. Com. 6. It is a general rule,
that a man who has an entire duty, shall not split the entire sum
and distrain for part of it at one time, and part of it at
another time. But if a man seizes for the whole sum that is due
him, but mistakes the value of the goods distrained, there is no
reason why he should not afterwards complete his execution by
making a further seizure. 1 Burr. 589. It is to be observed also,
that there is an essential difference between distresses at
common law and distresses prescribed by statute. The former are
taken nomine penae, (q. v.) as a means of compelling payment;
the latter are similar to executions, and are taken as
satisfaction for a duty. The former could not be sold the latter
might be. Their only similarity is, that both are replevisable. A
consequence of this difference is, that averia carucae are
distrainable in the latter case, although there be other
sufficient distress. 1 Burr. Rep. 588.
2. The remedy by distress to enforce the payment of arrears of
rent is so frequently adopted by landlords, (Co. Lit. 162, b,)
that a considerable space will be allotted to this article under
the following heads: 1. The several kinds of rent for which a
distress may be made. 2. The persons who may make it. 3. The
goods which may be distrained. 4. The time when a distress may be
made. 5. In what place it may be made. 6. The manner of making
it, and disposing of the goods distrained. 7. When a distress
will be a waiver of a forfeiture of the lease.
3. - §1. Of the rents for which a distress may be made. 1. A
distress may generally be taken for any kind of rent in arrear,
the detention of which, beyond the day of payment, is an injury
to him who is entitled to receive it. 3 Bl. Com. 6. The rent must
be reserved out of a corporeal hereditament, and must be certain
in its quantity, extent, and time of payment, or at least be
capable of being reduced to certainty. Co. Lit. 96, a.; 13 Serg.
& Rawle, 64; 3 Penn. R. 30. An agreement that the lessee pay no
rent, provided he make repairs, and the value of the repairs is
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uncertain, would not authorize the landlord to distrain. Addis.
347. Where the rent is a certain quantity of grain, the landlord
may distrain for so many bushels in arrear, and name the value,
in order that if the goods should not be replevied, or the
arrears tendered, the officer may know what amount of money is to
be raised by the sale, and in such case the tenant may tender the
arrears in grain. 13 Serg. & Rawle, 52; See 3 Watts & S. 531.
But where the tenant agreed, instead of rent, to render "
one-half part of all the grain of every kind, and of all hemp,
flax, potatoes, apples, fruit, and other produce of whatever kind
that should be planted, raised, sown or produced, on or out of
the demised premises, within and during the terms,", the landlord
cannot, perhaps, distrain at all; he cannot, certainly, distrain
for a sum of money, although he and the tenant may afterwards
have settled their accounts, and agreed that the half of the
produce of the land should be fixed in money, for which the
tenant gave his note, which was not paid. 1 3 Serg. & Rawle, 5 2.
But in another case it was held, that on a demise of a grist
mill, when the lessee is to render one-third of the toll, the
lessor may distrain for rent. 2 Rawle, 11.
4. - 2. With respect to the amount of the rent, for which a
lessor may in different cases be entitled to make a distress, it
may be laid down as a general rule, that whatever can properly be
considered as a part of the rent, may be distrained for, whatever
be the particular mode in which it is agreed to be paid. So that
where a person entered into possession of certain premises,
subject to the approbation of the landlord, which was afterwards
obtained, by agreeing to pay in advance, rent from the time be
came into possession, it was, in England, determined that the
landlord might distrain for the whole sum accrued before and
after the agreement. Cowp. 784. For on whatever day the tenant
agrees that the rent shall be due, the law gives the landlord the
power of distraining for it at that time. 2 T. R. 600. But see 13
S. & R. 60. In New York, it was determined, that an agreement
that the rent should be paid in advance, is a personal covenant
on which an action lies, but not distress. 1 Johns. R. 384. The
supreme court of Pennsylvania declined deciding this point, as it
was not necessarily before them. 13 Serg. & Rawle, 60. Interest
due on rent cannot, in general, be distrained for; 2 Binn. 146;
but may be recovered from the tenant by action, unless under
particular circumstances. 6 Binn. 159.
5. - §2. Of the persons entitled to make a distress. 1. When
the landlord is sole owner of the property out of which rent is
payable to him, he may, of course, distrain in his own right.
6. - 2. Joint tenants have each of them an estate in every part
of the rent; each may, therefore, distrain alone for the whole,
3 Salk. 207, although he must afterwards account with his
companions for their respective shares of the rent. 3 Salk. 17;
4 Bing. 562; 2 Brod. & B. 465; 5 Moore, 297 Y. B. 15 H. VIII,
17, a; 1 Chit. Pr. 270; 1 Tho. Co. Litt. 783, note R; Bac. Ab.
Account; 5 Taunt. 431; 2 Chit. R. 10; 3 Chit. Pl. 1297. But
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one joint tenant cannot avow solely, because the avowry is always
upon the right, and the right of the rent is in all of them. Per
Holt, 3 Salk. 207. They may all join in making the distress,
which is the better way.
7. - 3. Tenants in common do not, like joint tenants, hold by
one title and by one right, but by different titles, and have
several estates. Therefore they should distrain separately, each
for his share, Co. Lit. s. 317, unless the rent be of an entire
thing, as to render a horse, in which case, the thing being
incapable of division, they must join. Co. Lit. 197, a. Each
tenant in common is entitled to receive, from the lessee, his
proportion of the rent; and therefore, when a person holding
under two tenants in common, paid the whole rent to one of them,
after having received a notice to the contrary from the other, it
was held, that the party who gave the notice might afterwards
distrain. 5 T. R. 246. As tenants in common have no original
privity of estate between them, as to their respective shares,
one may lease his part of the land to the other, rendering rent,
for which a distress may be made, as if the land had been demised
to a stranger. Bro. Ab. tit. Distress, pl. 65.
8. - 4. It may be, perhaps, laid down asa general rule, that
for rent due in right of the wife, the hushand may distrain
alone; 2 Saund. 195; even if it accrue to her in the character
of executrix or administratrix. Ld. Raym. 369. With respect to
the remedies for the recovery of the arrears of a rent accruing
in right of his wife, a distinction is made between rent due for
land, in which the wife has a chattel interest, and rent due in
land, in which she has an estate of freehold and inheritance. And
in some cases, a further distinction must be made between a rent
accruing before and rent accruing after the coverture. See, on
this subject, Co. Lit. 46, b, 300, a; 351, a; 1 Roll. Abr. 350;
stat; 32 Hen. VIII. c. 37, s. 3.
9. - 5. A tenant by the curtesy, has an estate of freehold in
the lands of his wife, and in contemplation of law, a reversion
on all land of the wife leased for years or lives, and may
distrain at common law for all rents reserved thereon.
10. - 6. A woman may be endowed of rent as well as of land; if
a hushand, therefore, tenant in fee, make a lease for years,
reserving rent, and die, his widow shall be endowed of one-third
part of the reversion by metes and bounds, together with a third
part of the rent. Co. Litt. 32, a. The rent in this base is
apportioned by the act of law, and therefore if a widow be
endowed of a third part of a rent in fee, she may distrain for a
third part thereof, and the heir shall distrain for the other
part of the rent. Bro. Abr. tit. Avowry, pl. 139.
11. - 7. A tenant for his own life or that of another, has an
estate of freehold, and if he make a lease for years, reserving
rent, he is entitled to distrain upon the lessee. It may here be
proper to remark, that at common law, if a tenant for life made a
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lease for years, if be should so long live, at a certain rent,
payable quarterly, and died before the quarter day, the tenant
was discharged of that quarter's rent by the act of God. 10 Rep.
128. But the 11 Geo. II. c. 19, s. 15, gives an action to the
executors or administrators of such tenant for life.
12. - 8. By the statute 32 Henry VIII. c. 37, s. 1, "the
personal representatives of tenants in fee, tail, or for life, of
rent-service, rent-charge, and rents-seek, and fee farms, may
distrain for, arrears upon the land charged with the payment, so
long as the lands continue in seisin or possession of the tenant
in demesne, who ought to have paid the rent or fee farm, or some
person claiming under him by purchase, gift or descent." By the
words of the statute, the distress must be made on the lands
while in the possession of the "tenant in demesne," or some
person claiming under him, by purchase, gift or descent; and
therefore it extends to the possession of those persons only who
claim under the tenant, and the statute does not comprise the
tenant in dower or by the curtesy, for they come in, not under
the party, but by act of law. 1 Leon. 302.
13. - 9. The heir entitled to the reversion may distrain for
rent in arrear which becomes due after the ancestor's death; the
rent does not become due till the last minute of the natural day,
and if the ancestor die between sunset and midnight, the heir,
and not the executor, shall have the rent. 1 Saund. 287. And if
rent be payable at either of two periods, at the choice of the
lessee, and the lessor die between them, the rent being unpaid,
it will go to the heir. 10 Rep. 128, b.
14. - 10. Devisees, like heirs, may distrain in respect of
their reversionary estate; for by a devise of the reversion the
rent will pass with its incidents. 1 Ventr. 161.
15. - 11. Trustees who have vested in them legal estates, as
trustees of a married woman, or assignees of an insolvent, may of
course distrain in respect of their legal estates, in the same
manner as if they were beneficially interested therein.
16. - 12. Guardians may make leases of their wards' lands in
their, own names, which will be good during the minority of the
ward. and, consequently, in respect of such leases, they possess
the same power of distress as other persons granting leases in
their own rights. Cro. Jac. 55, 98.
17. - 13. Corporations aggregate should generally make and
accept leases or other conveyances of lands or rent, under their
common seal. But if a lease be made by an agent of the
corporation, not under their common seal, although it may be
invalid as a lease, yet if the tenant hold under it, and pay rent
to the bailiff or agent of the corporation, that is sufficient to
constitute a tenancy at least from year to year, and to entitle
the corporation to distrain for rent. New Rep. 247. But see
Corporation.
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18. - §3. Of the things which may or may not be distrained.
Goods found upon the premises demised to a tenant are generally
liable to be distrained by a landlord for rent, whether such
goods in fact belong to the tenant or other persons. Coin. Dig.
Distress, B 1. Thus it has been held, that a gentleman's chariot,
which stood in a coach-house belonging to a common livery stable
keeper, was distrainable by the landlord for the rent due him by
the livery stable keeper for the coach-house. 3 Burr. 1498. So if
cattle are put on the tenant's land by consent of the owners of
the beasts, they are distrainable by the landlord immediately
after for rent in arrear. 3 Bl. Com. 8. But goods are sometimes
privileged from distress, either absolutely or conditionally.
19. First. Those of the first class are privileged, 1. In
respect of the owner of 2. Because no one can have property in
them. 3. Because they cannot be restored to the owner in the same
plight as when taken. 4. Because they are fixed to the freehold.
5. Because it is against the policy of law that they should be
distrained. 6. Because they are in the custody of the law. 7.
Because they are protected by some special act of the
legislature.
20. - 1. The goods of a person who has some interest, in the
land jointly with the distrainer, as those of a joint tenant,
although found upon the land, cannot be distrained. The goods of
executors and administrators, or of the assignee of an insolvent
regularly discharged according to law, cannot, in Pennsylvania,
be distrained for more than one year's rent. The goods of a
former tenant, rightfully on the land, cannot be distrained for
another's rent. For example, a tenant at will, if quitting upon
notice from his landlord, is entitled to the emblements or
growing crops; and therefore even after they are reaped, if they
remain on the land for the purpose of hushandry, they cannot be
distrained for rent due by the second tenant. Willes, 131. And
they are equally protected in the hands of a vendee. Ibid. They
cannot be distrained, although the purchaser allow them to remain
uncut an unreasonable time after the are ripe. 2 B. & B. 862; 5
Moore, 97, S. C.
21. - 2. As every thing which is distrained is presumed to be
the property of the tenant, it will follow that things wherein no
man can have an absolute and valuable property, as cats, dogs,
rabbits, and all animals ferae naturae, cannot be distrained.
Yet, if deer, which are of a wild nature, are kept in a private
enclosure, for the purpose of sale or profit, this so far changes
their nature by reducing them to a kind of stock or merchandise,
that they may be distrained for rent. 3 B1. Com. 7.
22. - 3. Such things as cannot be restored to the owner in the
same plight as when they were taken, as milk, fruit, and the
like, cannot be distrained. 3 Bl. Com. 9.
23.- 4. Things affixed or annexed to the freehold, as furnaces,
windows, doors, and the like, cannot be distrained, because they
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are not personal chattels, but belong to the realty. Co. Litt.
47, b. And this rule extends. to such things as are essentially a
part of the freehold, although for a time removed therefrom, as a
millstone removed to be picked; for this is matter of necessity,
and it still remains in contemplation of law, a part of the
freehold. For the same reason an anvil fixed in a smith's shop
cannot be distrained. Bro. Abr. Distress, pl. 23; 4 T. R. 567;
Willis, Rep. 512 6 Price's R. 3; 2 Chitty's R. 167.
24. - 5. Goods are privileged in cases where the proprietor is
either compelled, from necessity to place his goods upon the
land, or where be does so for commercial purposes. 17 S. & R.
139; 7 W. & S. 302; 8 W. & S. 302; 4 Halst. 110; 1 Bay, 102,
170; 2 McCord, 39; 3 B. & B. 75; 6 J. B. Moore, 243; 1 Bing.
283; 8 J. B. Moore, 254; 2 C. & P. 353; 1 Cr. M. 380. In the
first case, the goods are exempt, because the owner has no
option; hence the goods of a traveller in an inn are exempt from
distress. 7 H. 7, M. 1, p. 1.; Hamm. N. 380, a.; 2 Keny. 439;
Barnes, 472; 1 Bl. R. 483; 3 Burr. 1408. In the other, the
interests of the community require that commerce should be
encouraged, and adventurers will not engage in speculations, if
the property embarked is to be made liable for the payment of
debts they never contracted. Hence goods landed at a wharf, or
deposited in a warehouse on storage, cannot be distrained. 17
Serg. & Rawle, 138; 6 Whart. R. 9, 14; 9 Shepl. 47; 23 Wend.
462. Valuable things in the way of trade are not liable to
distress; as, a horse standing in a smith's shop to be shod, or
in a common inn; or cloth at a tailor's house to be made into a
coat; or corn sent to a mill to be ground, for these are
privileged and protected for the benefit of trade. 3 Bl. Com. 8.
On the same principle it has been decided, that the goods of a
boarder are not liable to be distrained for rent due by the
keeper of a boarding house; 5 Whart. R. 9; unless used by the
tenant with the boarder's consent, and without that of the
landlord: 1 Hill , 565.
25. - 6. Goods taken in execution cannot be distrained. The law
in some states gives the landlord the right to claim payment out
of the proceeds of an execution for rent, not exceeding one year,
and he is entitled to payment up to the day of seizure, though it
be in the middle of a quarter 2 Yeates, 274; 5 Binn. 505; but
he is not entitled to the day of sale. 5 Binn. 505. See 18 Johns.
R. 1. The usual practice is, to give notice to the, sheriff that
there is a certain sum due to the landlord as arrears of rent;
which notice ought to be given to the sheriff, or person who
takes the goods in execution upon the premises for the sheriff
is, not bound to find out whether rent is due, nor is he liable
to an action, unless there has been a demand of rent before the
removal. 1 Str. 97, 214; 3 Taunt. 400 2 Wils. 140; Com. Dig.
Rent, D 8; 11 Johns. R. 185. This notice can be given by the
immediate landlord only a ground landlord is not entitled to his
rent out of the goods of the under tenant taken in execution. 2
Str. 787. And where there are two executions, the landlord is not
entitled to a year's rent on each. See Str. 1024. Goods
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distrained and replevied may be distrained by another landlord
for subsequent rent. 2 Dall. 68.
26.-7. By some special acts of the legislature it is provided
that tools of a man's trade, some designated household furniture,
school books, and the like, shall be exempted from distress,
execution, or sale. And by a recent Act of Assembly of
Pennsylvania, April 9, 1849, property to the value of three
hundred dollars, exclusive of all wearing apparel of the
defendant and his family, and all bibles and school books in use
in the family, are exempted from levy and sale on execution, or
by distress for rent.
27. - Secondly. Besides the above mentioned goods and chattels,
which are absolutely privileged from distress, there are others
which are conditionally so, but which may be distrained under
certain circumstances. These are, 1. Beasts of the plough, which
are exempt if there be a sufficient distress besides on the land
whence the rent issues. Co. Litt. 47, a; Bac. Abr. Distress, B.
2. Implements of trade; as, a loom in actual use; and there is
a sufficient distress besides. 4 T. R. 565. 3. Other things in
actual use,; as, a horse whereon a person is riding, an axe in
the hands of. a person cutting wood, and the like. Co. Litt. 4 7,
a.
28. - §4. The time when a distress may be made. 1. The distress
cannot be made till the rent is due by the terms of the lease;
as reat is not due until the last minute of the natural day on
which it is reserved, it follows that a distress for rent cannot
be made on that day. 1 Saund. 287; Co. Litt. 47, b. n. 6. A
previous demand is not generally necessary, although there be a
clause in the lease, that the lessor may distrain for rent,"
being lawfully demanded Bradb. 124; Bac. Abr. Rent, 1; the
making of the distress being a demand though it is advisable to
make such a demand. But where a lease provides for a special
demand; as, if the clause were that if the rent should happen to
be behind it should be demanded at a particular place not on the
land; or be demanded of the person of the tenant; then such
special demand is necessary to support the distress. Plowd. 69
Bac. Abr. Rent, I.
29. - 2 A distress for rent can only be made during the day
time. Co. Litt. 142, a.
30. - 3. At common law a distress could not be made after the
expiration of the lease to remedy this evil the legislature of
Pennsylvania passed an act making it "lawful for any person
having any rent in arrear or due upon any lease for life or years
or at will, ended or determined, to distrain for such arrears
after the determination of the said respective leases, in the
same manner as they might have done, if such lease had not been
ended: provided, that such distress be made during the
continuance of such lessor's title or interest.", Act of March
21, 1772, s. 14, 1 Smith's Laws of Penna. 375. 4. In the city and
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county of Philadelphia, the landlord may, under certain
circumstances, apportion his rent, and distrain before it becomes
due. See act of March 25, 1825, s. 1, Pamph. L. 114.
31. - §5. In what place a distress may be made. The distress
may be made upon the land, or off the land. 1. Upon the land. A
distress generally follows the rent, and is consequently confined
to the land out of which it issues. If two pieces of land,
therefore, are let by two separate demises, although both be
contained in one lease, a joint distress cannot be made for them,
for this would be to make the rent of one issue out of the other.
Rep. Temp. Hardw. 245; S. C. Str. 1040. But where lands lying in
different counties are let together by one demise, at one entire
rent, and it does not appear that the lands are separate from
each other, one distress may be made for the whole rent. Ld.
Raym. 55; S. C. 12 Mod. 76. And, where rent is charged upon
land, which is afterwards held by several tenants, the grantee or
landlord may distrain for the whole upon the land of any of them;
because the whole rent is deemed to issue out of every part of
the land. Roll. Abr. 671. If there be a house on the land, the
distress may be made in the house; if the outer door or window
be open, a distress may be taken out of it. Roll. Abr. 671. And
if an outer door be open, an inner door may be broken open for
the purpose of taking a distress. Comb. 47; Cas. Temp. Hard.
168. Barges on a river, attached to the leased premises (a wharf)
by ropes, cannot be distrained. 6 Bingh. 150; 19 Eng. Com. Law
R. 36.
32. - 2. Off the land. By the 5th and 6th sections of the
Pennsylvania act of assembly of March 21, 1772, copied from the
11 Geo. II. c. 19, it is enacted, that if any tenant for life,
years, at will, or otherwise, shall fraudulently or clandestinely
convey his goods off the premises to prevent the landlord from
distraining the same, such person, or any person by him lawfully
authorized, may, within thirty days after such conveyance, seize
the same, wherever they shall be found, and dispose of them in
such manner as if they had been distrained on the premises.
Provided, that the landlord shall not distrain any goods which
shall have been previously sold, bona fide, and for a valuable
consideration, to one not privy to the fraud. To bring a case
within the act, the removal must take place after the rent
becomes due, and must be secret, not made in open day, for such
removal cannot be said to be clandestine within the meaning of
the act. 3 Esp. N. P. C. 15; 12 Serg. & Rawle, 217; 7 Bing.
422; 1 Moody & Malkin, 585. It has however been made a question,
whether goods are protected that were fraudulently removed on the
night before the rent had become due. 4 Camp. 135. The goods of a
stranger cannot be pursued; they can be distrained only while
they are, on the premises. 1 Dall. 440.
33. - §6. Of the manner of making a distress. 1. A distress for
rent may be made either by the person to whom it is due, or,
which is the preferable mode, by a constable, or bailiff, or
other officer properly authorized by him.
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34. - 2. If the distress be made by a constable, it is
necessary that he should be properly authorized to make it; for
which purpose the landlord should give him a written authority,
or; as it is usually called, a warrant of distress; but a
subsequent assent and recognition given by the party for whose
use the distress has been made, is sufficient. Hamm. N. P. 382.
35. - 3. When the constable is thus provided with the requisite
authority to make a distress, he, may distrain by seizing the
tenant's goods, or some of them in the name of the whole, and
declaring that he takes them as a distress for the sum expressed
in the warrant to be due by the tenant to the landlord, and that
he takes them by virtue of the said warrant; which warrant he
ought, if required, to show. 1 Leon. 50.
36. - 4. When making the distress it ought to be made for the
whole rent; but if goods cannot be found at the time, sufficient
to satisfy the rent, or the party mistake the value of the thing
distrained, he may make a second distress. Bradb. 129, 30; 2 Tr.
& H. Pr. 155; supra 1.
37. - 5. As soon as a distress is made, an inventory of the
goods distrained should be made, and a copy of it delivered to
the tenant, together with a notice of taking such distress, with
the cause for taking the same. This notice of taking a distress
is not required by the statute to be in writing; and, therefore,
parol or verbal notice may be given either to the tenant on the
premises, or to the owner of the goods distrained. 12 Mod. 76.
And although notice is directed by the act to specify the cause
of taking, it is not material whether it accurately state the
period of the rent's becoming due; Dougl. 279; or even whether
the true cause of taking the goods be expressed therein. 7 T. R.
654. If the notice be not personally given, it should be left in
writing at the tenant's house, or according to the directions of
the act, at the mansion-house or other most notorious place on
the premises charged with the rent distrained for.
38. - 6. The distrainor may leave or impound the distress on
the premises for the five days mentioned in the act, but becomes
a trespasser after that time. 2 Dall. 69. As in many cases it is
desirable for the sake of the tenant that the goods should not be
sold as soon as the law permits, it is usual for him to sign an
agreement or consent to their remaining on the premises for a
longer time, in the custody of the distrainor, or of a person by
him appointed for that purpose. While in his possession, the
distrainor cannot use or work cattle distrained, unless it be for
the owner's benefit, as to milk a cow, or the like. 5 Dane's Abr.
34.
39. - 7. Before the goods are sold they must be appraised by
two reputable free-holders, who shall take an oath or affirmation
to be administered by the sheriff, under-sheriff, or coroner, in
the words mentioned in the act.
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40. - 8. The next requisite is to give six days public notice
of the time and place of sale of the things distrained; after
which, if they have not been replevied, they may be sold by the
proper officer, who may apply the proceeds to the payment and
satisfaction of the rent, and the expenses of the distress,
appraisement and sale. The over-plus, if any, is to be paid to
the tenant.
41. - §7. When a distress will be a waiver of a forfeiture of
the lease. On this subject, see 1 B. & Adol. 428. The right of
distress, it seems, does not exist in the New England states. 4
Dane's Ab. 126; 7 Pick. R. 105; 3 Griff. Reg 404; 4 Griff.
Reg. 1143; Aik. Dig. 357, nor in Alabama, Mississippi, North
Carolina, nor Ohio; and in Kentucky, the right is limited to a
distress for a pecuniary rent. 1 Hill. Ab. 156. Vide, generally,
Bouv. Inst. Index, h . t.; Gilb. on Distr. by Hunt; Bradb. on
Distr.; Com. Dig. h. t.; Bac. Ab. h. t.; Vin. Ab. h. t.; 2
Saund. Index, h. t.; Wilk. on Repl.; 3 Chit. Bl. Com. 6, note;
Crabb on R. P. §222 to 250.
DISTRESS INFINITE, English practice. A process commanding the
sheriff to distrain a person from time to time, and continually
afterwards, by taking his goods by way of pledge, to enforce the
performance of something due from the party distrained upon. In
this case, no distress can be immoderate, because, whatever its
value may be, it cannot be sold, but is to be immediately
restored on satisfaction being made. 3 Bl. Com. 231. See
Distringas.
DISTRIBUTION. By this term is understood the division of an
intestate's estate according to law.
2. The English statute of 22 and 23 Car. II. c. 10, which was
itself probably borrowed from the 118th Novel of Justinian, is
the foundation of, perhaps, most acts of distribution in the
several states. Vide 2 Kent, Com. 342, note; 8 Com. Dig. 522;
11 Vin. Ab. 189, 202; Com. Dig. Administration, H.
DISTRIBUTIVE JUSTICE. That virtue, whose object it is to
distribute rewards and punishments to every one according to his
merits or demerits. Tr. of Eq. 3; Lepage, El. du Dr. ch. 1, art.
3, §2 1 Toull. n. 7, note. See Justice.
DISTRICT. A certain portion of the country, separated from the
rest for some
special purposes. The United States are divided into judicial
districts, in each of which is established a district court;
they are also divided into election districts; collection
districts, &c.
DISTRICT ATTORNEYS OF THE UNITED STATES. There shall be
appointed, in each judicial district, a meet person, learned in
the law, to act as attorney of the United States in such
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district, who shall be sworn or affirmed to the faithful
execution of his office. Act of September 24, 1789, s. 35, 1
Story's Laws, 67.
2. His duty is to prosecute, in such district, all delinquents,
for crimes and offences cognizable under the authority of the
United States, and all civil actions in which the United States
shall be concerned, except in the supreme court, in the district
in which that court shall be holden. Ib.
3. Their salaries vary in different districts. Vide Gordon's
Dig. art. 403. By the Act of March 3, 1815, 2 Story's L. U. S.
1530, district attorneys are authorized to appoint deputies, in
certain cases, to sue in the state courts. See Deputy District
Attorney.
DISTRICT COURT. The name of one of the courts of the United
States. It is held by a judge, called the district judge. Several
courts under the same name have been established by state
authority. Vide Courts of the United States.
DISTRICT OP COLUMBIA. The name of a district of country, ten
miles square, situate between the states of Maryland and
Virginia, over which the national government has exclusive
jurisdiction. By the constitution, congress may " exercise
exclusive jurisdiction in all cases whatsoever, over such
district, not exceeding ten miles square, as may, by, cession of
particular states, and the acceptance of congress, become the
seat of government of the United States." In pursuance of this
authority, the states of Maryland and Virginia, ceded to the
United States, a small territory on the banks of the Potomac, and
congress, by the Act of July 16, 1790, accepted the same for the
permanent seat of the government of the United States. The act
provides for the removal of the seat of government from the city
of Philadelphia to the District of Columbia, on the first Monday
of December, 1800. It is also provided, that the laws of the
state, within such district, shall not be affected by the
acceptance, until the time fixed for the removal of the
government thereto, and until congress shall otherwise by law
provide.
2. It seems that the District of Columbia, and the territorial
districts of the United States, are not states within the meaning
of the constitution, and of the judiciary act, so as to enable a
citizen thereof to sue a citizen of one of the states in the
federal courts. 2 Cranch, 445; 1 Wheat, 91.
3. By the Act of July 11, 1846, congress retroceded the county
of Alexandria, part of the District of Columbia, to the state of
Virginia.
DISTRINGAS, remedies. A writ directed to the sheriff,
commanding him to distrain one of his goods and chattels, to
enforce his compliance of what is required of him, as for his
appearance in a court on such a day, and the like. Com. Dig.
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Process, D 7; Chit. Pr. Index, h. t. Sellon's Pr. Index, h. t.;
Tidd's Pr. Index, h. t. 11 East, 353. It is also a form of
execution in the action of detinue, and assize of nuisance.
Registrum Judiciale, 56; 1 Rawle, 44, 48; Bro. Abr. pl. 26;
22; H. VI. 41. This writ is likewise used to compel the
appearance of a corporation agregate. 4 Bouv. Inst. n. 4191.
DISTURBANCE, torts. A wrong done to an incorporeal
hereditament, by hindering or disquieting the owner in the
enjoyment of it. Finch. L. 187; 3 Bl. Com. 235; 1 Swift's Dig.
522; Com. Dig. Action upon the case for a disturbance, Pleader,
3 I 6; 1 Serg. & Rawle, 298.
DIVIDEND. A portion of the principal, or profits, divided among
several owners of a thing.
2. The term is usually applied to the division of the profits
arising out of bank or other stocks; or to the division, among
the creditors, of the elects of an insolvent estate.
3. In another sense, according to some old authorities, it
signifies one part of an indenture. T. L.
DIVISIBLE. The susceptibility of being divided.
2. A contract cannot, in general, be divided in such a manner
that an action may be brought, or a right accrue, on a part of
it. 2 Penna. R. 454. But some contracts are susceptible of
division, as when a reversioner sells a part of the reversion to
one man, and a part to another, each shall have an action for his
share of the rent, which may accrue on a contract, to pay a
particular rent to the reversioner. 3 Whart. 404; and see
Apportionment. But when it is to do several things, at several
times, an action will lie upon every default. 15 Pick. R. 409.
See 1 Greenl. R. 316; 6 Mass. 344. See Entire.
DIVISION, Eng. law. A particular and ascertained part of a
county. In Lincolnshire, division means what riding does in
Yorkshire.
DIVISION OF OPINION. When, in a company or society, the parties
having a right to vote are so divided that there is not a
plurality of the whole in favor of any particular proposition, or
when the voters are equally divided, it is said there. is
division of opinion.
2. In such a case, the Roman law, which seems founded in reason
and common sense, directs, that when the division relates to the
quantity of things included, as in the case of a judgment, if one
of three judges votes for condemning a man to a fine of one
hundred dollars, another, to one of fifty dollars, and the third
to twenty-five, the opinion or vote of; the last shall be the
rule for the judgment; because the votes of all the others
include that of the lowest; this is the case when unanimity is
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required. But when the division of opinions does not relate to
the quantity of things, then it is always to be in favor of the
defendant. It was a rule among the Romans that when the judges
were equal in number, and they were divided into two opinions in
cases of liberty, that opinion which favored it should prevail;
and in other cases, it should be in favor of the defendant. Poth.
Pand. liv. L. n. MDLXXIV.
3. When the judges of a court are divided into three classes,
each holding a different opinion, that class which has the
greatest number shall give the judgment; for example, on a
habeas corpus, when a court is composed of four judges, and one
is for remanding the prisoner, another is for discharging him on
his own recognizance, and two others for discharging him
absolutely, the judgment will be, that he be discharged.
Rudyard's Case, Bac. Ab. Habeas Corpus, B 10, Court 5.
4. It is provided, by the Act of Congress of April 29, 1802, s.
6, that whenever any question shall occur before a circuit court,
upon which the opinions of the judges shall be opposed, the point
upon which the disagreement shall happen shall, during the same
term, upon the request of either party, or their counsel, be
stated, under the direction of the judges, and certified, under
the seal of the court, to the supreme court, at their next
session to be hold thereafter, and shall, by the said court, be
finally decided. And the decision of the supreme court, and their
order in the premises, shall be, remitted to the circuit court,
and be there entered *of record and shall have effect according
to the nature of the said judgment and order: Provided, That
nothing herein contained shall prevent the cause from proceeding,
if, in the opinion of the court, further proceedings can be had
without prejudice to the merits: And Provided, also, That
imprisonment shall not be allowed, nor punishment in any case be
inflicted, where the judges of the said court are divided in
opinion upon the question touching the said imprisonment or
punishment. See 5 N. S. 407.
DIVORCE. The dissolution of a marriage contracted between a man
and a woman, by the judgment of a court of competent
jurisdiction, or by an act of the legislature. It is so called
from the diversity of the minds of those who are married;
because such as are divorced go each a different way from the
other. Ridley's Civ. & Eccl. Law, pp. 11, 112. Until a decree of
divorce be actually made, neither party can treat the other as
sole, even in cases where the marriage is utterly null and void
for some preexisting cause. Griffiths v Smith, D. C. of
Philadelphia, 3 Penn. Law Journal, 151, 153. A decree of divorce
must also be made during the lifetime of both the parties. After
the decease of either the marriage will be deemed as legal in all
respects. Reeves" Dom. Rel. 204; 1 Bl. Com. 440. See Act of
Pennsylvania, March 13, 1815, §5.
2. Divorces are of two kinds; 1. a vinculo matrimonii, (q. v.)
which dissolves and totally severs the marriage tie; and, 2. a
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mensa et thoro, (q. v.) which merely separates the parties.
3. - 1. The divorce a vinculo was never granted by the
ecclesiastical law except for the most grave reasons. These,
according to Lord Coke, (Co. Litt. 235, a,) are causa
praecontractus, causa metus, causa impotentiae, seu frigiditatis,
causa affinitatis, et causa consanguinitatis. In England such a
divorce bastardizes the issue, and generally speaking, is allowed
only on the ground of some preexisting cause. Reeves' Dom. Rel.
204-5; but sometimes by act of parliament for a supervenient
cause. 1 Bl. Com. 440. When the marriage was dissolved for
canonical causes of impediment, existing previous to its taking
place, it was declared void ab initio.
4. In the United States, divorces a vinculo are granted by the
state legislatures for such causes as may be sufficient to induce
the members to vote in favor of granting them; and they are
granted by the courts to which such jurisdiction is given, for
certain causes particularly provided for by law.
5. In some states, the legislature never grants a divorce until
after the courts have decreed one, and it is still requisite that
the legislature shall act, to make the divorce valid. This is the
case in Mississippi. In some states, as Wisconsin, the
legislature cannot grant a divorce. Const. art. 4, is. 24.
6. The courts in nearly all the states have power to decree
divorces a vinculo, for, first, causes which existed and which
were a bar to a lawful marriage, as, precontract, or the
existence of a marriage between one of the contracting parties
and another person, at the time the marriage sought to be
dissolved took place; consanguinity, or that degree of
relationship forbidden by law; affinity in some states, as
Vermont, Rev. Stat. tit. 16, c. 63, s. 1; impotence, (q. v.)
idiocy, lunacy, or other mental imbecility, which renders the
party subject to it incapable of making a contract; when the
contract was entered into in consequence of fraud. Secondly, the
marriage may be dissolved by divorce for causes which have arisen
since the formation of the contract, the principal of which are
adultery cruelty; wilful and malicious desertion for a period of
time specified in the acts of the several states; to these are
added, in some states, conviction of felony or other infamous
crime; Ark. Rev. Stat. c. 50, s. 1, p. 333; being a fugitive
from justice, when charged with an infamous crime. Laws of Lo.
Act of April 2, 1832. In Tennessee the hushand may obtain a
divorce when the wife was pregnant at the time of marriage with a
child of color; and also when the wife refuses for two years to
follow her hushand, who has gone bonafide to Tennessee to reside.
Act of 1819, c. 20, and Act of 1835, c. 26 Carr. Nich. & Comp.
256, 257. In Kentucky and Maine,, where one of the parties has
formed a connexion with certain religionists, whose opinions. and
practices are inconsistent with the marriage duties. And, in some
states, as Rhode Island and Vermont, for neglect and refusal on
the part of the hushand (he being of sufficient ability) to
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provide necessaries for the subsistence of his wife. In others,
habitual drunkenness is a sufficient cause.
7. In some of the states divorces a mensa et thoro are granted
for cruelty, desertion, and such like causes, while in others the
divorce is a vinculo.
8. When the divorce is prayed for on the ground of adultery, in
some and perhaps in most of the states, it is a good defence,
1st. That the other party has been guilty of the same offence. 2.
That the hushand has prostituted his wife, or connived at her
amours. 3. That the offended party has been reconciled to the
other by either express or implied condonation. (q. v.) 4. That
there was no intention to commit adultery, as when the party,
supposing his or her first hushand or wife dead, married again.
5. That the wife was forced or ravished.
9. The effects of a divorce a vinculo on the property of the
wife, are various in the several states. When the divorce is for
the adultery or other criminal acts of the hushand, in general
the wife's lands are restored to her; when it is caused by the
adultery or other criminal act of the wife, the bushand has in
general some qualified right of curtesy to her lands; when the
divorce is caused by some preexisting cause, as consanguinity,
affinity or impotence, in some states, as Maine and Rhode Island,
the lands of the wife are restored to her. 1 Hill. Ab. 51, 2. See
2 Ashm. 455; 5 Blackf. 309. At common law, a divorce a vinculo
matrimonii bars the wife of dower; Bract. lib. ii. cap. 39, §4;
but not a divorce ti mensa et, thoro, though for the crime of
adultery. Yet by Stat. West. 1, 3 Ed. I. c. 84, elopement with an
adulterer has this effect. Dyer, 195; Co. Litt. 32, a. n. 10; 3
P. Wms. 276, 277. If land be given to a man and his wife, and the
heirs of their two bodies begotten, and they are divorced. a
vinculo, &c., they shall neither of them have this estate, but he
barely tenants for life, notwithstanding the inheritance once
vested in them. Co. Litt. 28. If a lease be made to hushand and
wife during coverture, and the hushand sows the, land, and
afterwards they are divorced a vinculo, &c., the hushand shall
have the emblements in that case, for the divorce is the act of
law. Mildmay's Case. As to personalty, the rule of the common law
is, if one marry a woman who has goods, he may give them or sell
them at his pleasure. If they are divorced, the woman shall have
the goods back again, unless the hushand has given them away or
sold them; for in such case she is without remedy. If the
hushand aliened them by collusion, she may aver and prove the
collusion, and thereupon recover the goods from the alience. If
one be bound in an obligation to a feme sole, and then marry her,
and afterwards they are divorced, she may sue her former hushand
on the obligation, notwithstanding her action was in suspense
during the marriage. And for such things as belonged to the wife
before marriage, if they cannot be known, she could sue for,
after divorce, only in the court Christian, for the action of
account did not lie, because he was not her receiver to account.
But for such things as remain in specie, and may be known, the
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common law gives her an action of detinue. 26 Hen. VIII. 1.
10. When a divorce a vinculo takes place, it is, in general, a
bar to dower; but in Connecticut, Illinois, New York, and, it
seems, in Michigan, dower is not barred by a divorce for the
fault of the hushand. In Kentucky, when a divorce takes place for
the fault of the hushand, the wife is entitled as if he were
dead. 1 Hill. Ab. 61, 2.
11. - 2. Divorces a mensa et thoro, are a mere separation of
the parties for a time for causes arising since the marriage;
they are pronounced by tribunals of competent jurisdiction. The
effects of the sentence continue for the time it was pronounced,
or until the parties are reconciled. A. divorce a mensa et thoro
deprives the hushand of no marital right in respect to the
property of the wife. Reeve's Dom. Rel. 204-5. Cro. Car. 462;
but see 2 S. & R. 493. Children born after a divorce a mensa et
thoro are not presumed to be the hushand's, unless he afterwards
cohabited with his wife. Bac. Ab. Marriage, &c. E.
12. By the civil law, the child of parents divorced, is to be
brought up by the innocent party, at the expence of the guilty
party. Ridley's View, part 1, ch. 3, sect. 9, cites 8th
Collation. Vide, generally, 1 Bl. Com. 440, 441 3 Bl. Com. 94; 4
Vin. Ab. 205; 1 Bro. Civ. Law, 86; Ayl. Parerg. 225; Com. Dig.
Baron and Feme, C;-Coop. Justin. 434, et seq.; 6 Toullier, No.
294, pa. 308; 4 Yeates' Rep. 249; 5 Serg. & R. 375; 9 S. & R.
191, 3; Gospel of Luke, eh, xvi.
v. 18; of Mark, ch. x. vs. 11, 12; of Matthew, ch. v. v. 32,
ch. xix. v. 9; 1 Corinth. ch. vii. v. 15; Poynt. on Marr. and
Divorce, Index, h. t.; Merl. Rep. h. t.; Clef des Lois Rom. h.
t. As to the effect of the laws of a foreign state, where the
divorce was decreed, see Story's Confl. of Laws, ch. 7, §200.
With regard to the ceremony of divorce among. the Jews, see 1
Mann. & Gran. 228; C. 39. Eng. C. L. R. 425, 428. And as to
divorces among the Romans, see Troplong, de l'Influence du
Christianisme sur le Droit Civil des Romains, ch. 6. p. 205.
DOCKET, practice. A formal record of judicial proceedings.
2. The docket should contain the names of the parties, and a
minute of every proceeding in the case. It is kept by the clerk
or prothonotary of the court. A sheriff's docket is not a record.
9 Serg. & R. 91. Docket is also said to be a brief writing, on a
small piece of paper or parchment, containing the substance of a
larger writing.
DOCTORS COMMONS. A building in London used for a college of
civilians. Here the judge of the court of arches, the judge of
the admiralty, and the judge of the court of Canterbury, with
other eminent civilians, reside. Commons signifies, in old
English, pittance or allowance; because it is meant in common
among societies, as Universities, Inns of Courts, Doctors
Commons, &c. The Latin word is, demensum a demetiendo; dividing
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every one his part Minsheu. It is called Doctors Commons, because
the persons residing there live in a collegiate commoning
together.
DOCUMENTS, evidence. The deeds, agreements, title papers,
letters, receipts, and other written instruments used to prove a
fact. Among the civilians, by documents is also understood
evidence delivered in the forms established by law, of whatever
nature such evidence may be, but applied principally to the
testimony of witnesses. Savig. Dr. Rom. §165.
2. Public documents are all such records, papers and acts, as
are filed in the public offices of the United States or of the
several states; as, for example, public statutes, public
proclamations, resolutions of the legislature, the journals of
either branch of the legislature, diplomatic correspondence
communicated by the president to congress, and the like. These
are in general evidence of the facts they contain or recite. 1
Greenl. §491.
DOG. A well known domestic animal. In almost all languages this
word is, a term or name of contumely or reproach. See 3 Bulst.
226; 2 Mod. 260; 1 Leo. 148; and the title action on the case
for defamation in the Digests; Minsheu's Dictionary.
2. A dog is said at common law to have no intrinsic value, and
he cannot therefore be the subject of larceny. 4 Bl. Com. 236; 8
Serg. & Rawle, 571. But the owner has such property in him, that
he may maintain trespass for an injury to his dog; "for a man
may have property in some things which are of so base nature that
no felony can be committed of them, as of a bloodhound or
mastiff." 12 H. VIII. 3; 18 H. VIII. 2; 7 Co. 18 a; Com. Dig.
Biens, F; 2 Bl. Com. 397; Bac. Ab. Trover, D; F. N. B. 86;
Bro. Trespass, pl. 407 Hob. 283; Cro. Eliz. 125; Cro. Jac. 463
2 Bl. Rep.
3. Dogs, if dangerous animals, may lawfully be killed, when
their ferocity is known to their owner, or in self-defence 13
John. R. 312; 10 John. R. 365; and when bitten by a rabid
animal, a dog may be lawfully killed by any one. 13 John. R. 312.
4. When a dog, in consequence of his vicious habits, becomes a
common nuisance, the owner may be indicted. And when he commits
an injury, if the owner had a knowledge of his mischievous
propensity, he is liable to an action on the case. Bull. N. P.
77; 2 Str. 1264; Lord Raym. 110. 1 B. & A. 620; 4 Camp. R.
198; 2 Esp. R. 482; 4 Cowen, 351; 6 S. & R. 36; Addis. R.
215; 1 Scam. 492 23 Wend 354; 17 Wend. 496; 4 Dev. & Batt.
146.
5. A man has a right to keep a dog to guard his premises, but
not to put him at the entrance of his house, because a person
coming there on lawful business may be injured by him, and this,
though there may be another entrance to the house. 4 C. & P. 297;
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6 C. & P. 1. But if a dog be chained, and a visitor so
incautiously go near him that he is bitten, he has no right of
action against the owner. 3 Chit. Bl. 154, n. 7. Vide Animal;
Knowledge; Scienter.
DOGMA, civil law. This word is used in the first chapter, first
section, of the second Novel, and signifies an ordinance of the
senate. See also Dig. 27, 1, 6.
DOLI CAPAX. Capable of deceit, mischief, having knowledge of
right and wrong. See Discretion; Criminal law, 2.
DOLLAR, money. A silver coin of the United States of the value
of one hundred cents, or tenth part of an eagle.
2. It weighs four hundred and twelve and a half grains. Of one
thousand parts, nine hundred are of pure silver and one hundred
of alloy. Act of January 18, 1837, ss. 8 & 9, 4 Sharsw. Cont. of
Story's L. U. S. 2523, 4; Wright, R. 162.
3. In all computations at the custom-house, the specie dollar
of Sweden and Norway shall be estimated at one hundred and six
cents. The specie dollar of Denmark, at one hundred and five
cents. Act of May 22, 1846.
DOLUS, civil law. A fraudulent address or trick used to deceive
some one; a
fraud. Dig. 4, 3, 1; Code, 2, 21.
2. Dolus differs from fault in this, that the latter proceeds
from an error of the understanding; while to constitute the
former there must be a will or intention to do wrong. Wolff,
Inst. §17.
DOMAIN. It signifies sometimes, dominion, territory governed -
sometimes, possession, estate - and sometimes, land about the
mansion house of a lord. By domain is also understood the right
to dispose at our pleasure of what belongs to us.
2. A distinction, has been made between property and domain.
The former is said to be that quality which is conceived to be in
the thing itself, considered as belonging to such or such person,
exclusively of all others. By the latter is understood that right
which the owner has of disposing of the thing. Hence domain and
property are said to be correlative terms; the one is the active
right to dispose, the other a passive quality which follows the
thing, and places it at the disposition of the owner. 3 Toull. n.
8 3. But this distinction is too subtle for practical use. Puff.
Droit de la Nature et des Gens, loi 4, c. 4, §2. Vide 1 B1. Com.
105, 106; 1 Bouv. Inst. n. 456; Clef des Lois Rom. h. t.;
Domat, h. t.; 1 Hill. Ab. 24; 2 Hill. Ab. 237; and Demesne as
Of fee; Property; Things.
DOME-BOOK, DOOM-BOOK or DOM-BEC A book in which Alfred the
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Great, of England, after uniting the Saxon heptarchy, collected
the various customs dispersed through the kingdom, and digested
them into one uniform code. 4 Bl. Com. 411.
DOMESDAY, or DOMESDAY-BOOK. An ancient record made in the time
of William the Conqueror, and now remaining in the English
exchequer, consisting of two volumes of unequal sizes, containing
surveys of the lands in England.
DOMESTICS. Those who reside in the same house with the master
they serve the term does not extend to workmen or laborers
employed out of doors. 5 Binn. R. 167; Merl. Rep. h. t. The Act
of Congress of April 30, 1790, s. 25, uses the word domestic in
this sense.
2. Formerly, this word was used to designate those who resided
in the house of another, however exalted their station, and who
performed services for him. Voltaire, in writing to the French
queen, in 1748, says) " Deign to consider, madam, that I am one
of the domestics of the king, and consequently yours, lily
companions, the gentlemen of the king," &c.
3. Librarians, secretaries, and persons in such honorable
employments, would not probably be considered domestics, although
they might reside in the house of their respective employers.
4. Pothier, to point out the distinction between a domestic and
a servant, gives the following example: A literary man who lives
and lodges with you, solely to be your companion, that you may
profit by his conversation and learning, is your domestic; for
all who live in the same house and eat at the same table with the
owner of the house, are his domestics, but they are not servants.
On the contrary, your Valet de, chambre, to whom you pay wages,
and who sleeps out of your house, is not, properly speaking, your
domestic, but your servant. Poth. Proc. Cr. sect. 2, art. 5, §5;
Poth. Ob. 710, 828; 9 Toull. n. 314; H. De Pansey, Des Justices
de Paix, c. 30, n. 1. Vide Operative; Servant.
DOMICIL. The place where a person has fixed his ordinary
dwelling, without a present intention of removal. 10 Mass. 488;
8 Cranch, 278; Ersk. Pr. of Law of Scotl. B. 1, tit. 2, s. 9;
Denisart, tit. Domicile, 1, 7, 18, 19; Voet, Pandect, lib. 5,
tit. 1, 92, 97; 5 Madd. Ch. R. 379; Merl. Rep. tit. Domicile;
1 Binn. 349, n.; 4 Humph. 346. The law of domicil is of great
importance in those countries where the maxim "actor sequitur
forum rei" is applied to the full extent. Code Civil, art. 102,
&c.; 1 Toullier, 318.
2. A man cannot be without a domicil, for he is not supposed to
have abandoned his last domicil until he has acquired a new one.
5 Ves. 587; 3 Robins. 191; 1 Binn. 349, n.; 10 Pick. 77.
Though by the Roman law a man might abandon his domicil, and,
until be acquired a. new one, he was without a domicil. By fixing
his residence at two different places a man may have two domicils
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at one and the same time; as, for example, if a foreigner,
coming to this country, should establish two houses, one in New
York and the, other in New Orleans, and pass one-half of the year
in each; he would, for most purposes, have two domicils. But it
is to be observed that circumstances which might be held
sufficient to establish a commercial domicil in time of war, and
a matrimonial, or forensic or political domicil in time of peace,
might not be such as would establish a principal or testamentary
domicil, for there is a wide difference in applying the law of
domicil to contracts and to wills. Phill. on Dom. xx; 11 Pick.
410 10 Mass. 488; 4 Wash. C. C. R. 514.
3. There are three kinds of domicils, namely: 1. The domicil
of origin. domicilium originis vel naturale. 2. The domicil by
operation of law, or necessary domicil. 3. Domicil of choice.
4. - §1. By domicil of origin is understood the home of a man's
parents, not the place where, the parents being on a visit or
journey, a child happens to be born. 2 B. & P. 231, note; 3 Ves.
198. Domicil of origin is to be distinguished from the accidental
place of birth. 1 Binn. 349.
5. - §2. There are two classes of persons who acquire domicil
by operation of law. 1st. Those who are under the control of
another, and to whom the law gives the domicil of another. Among
these are, 1. The wife. 2. The minor. 3. The lunatic, &c. 2d.
Those on whom the state affixes a domicil. Among this class are
found, 1. The officer. 2. The prisoner, &c.
6. - 1st. Among those who, being under the control of another,
acquire such person's domicil, are, 1. The wife. The wife takes
the domicil of her hushand, and the widow retains it, unless she
voluntarily change it, or unless, she marry a second time, when
she takes the domicil of the second hushand. A party may have two
domicils, the one actual, the other legal; the hushand's actual
and the wife's legal domicil, are, prima facie, one. Addams' Ecc.
R. 5, 19. 2. The domicil of the minor is that of the father, or
in Case of his death, of the mother. 5 Ves. 787; 2 W. & S. 568;
3 Ohio R. 101; 4 Greenl. R. 47. 3. The domicil of a lunatic is
regulated by the same principles which operated in cases of
minors the domicil of such a person may be changed by the
direction, or with the assent of the guardian, express or
implied. 5 Pick. 20.
7. - 2d. The law affixes a domicil. 1. Public officers, such as
the president of the United States, the secretaries and such
other officers whose public duties require a temporary residence
at the capital, retain their domicils. Ambassadors preserve the
domicils which they have in their respective countries, and this
privilege extends to the ambassador's family. Officers, soldiers,
and marines, in the service of the United States, do not lose
their domicils while thus employed. 2. A prisoner does not
acquire a domicil where the prison is, nor lose his old. 1 Milw.
R. 191, 2.
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8. - §3. The domicil of origin, which has already been
explained, remains until another has been acquired. In order to
change such domicil; there must be an actual removal with an
intention to reside in the place to which the party removes. 3
Wash. C. C. R. 546. A mere intention to remove, unless such
intention is carried into effect, is not sufficient. 5 Greenl. R.
143. When he changes it, he acquires a domicil in the. place of
his new residence, and loses his original domicil. But upon a
return with an intention to reside, his original domicil is
restored. 3 Rawle, 312; 1 Gallis. 274, 284; 5 Rob. Adm. R. 99.
9. How far a settlement in a foreign country will impress a
hostile character on a merchant, see Chitty's Law of Nations, 31
to 50; 1 Kent, Com. 74 to 80; 13 L. R. 296; 8 Cranch, 363; 7
Cranch, 506; 2 Cranch, 64 9 Cranch, 191; 1 Wheat. 46; 2 Wheat
76; 3 Wheat. 1 4 2 Gall. R. 268; 2 Pet. Adm. Dec. 438 1 Gall.
R. 274. As to its effect in the administration of the assets of a
deceased non-resident, see 3 Rawle's R. 312; 3 Pick. R. 128; 2
Kent, Com. 348; 10 Pick. R. 77. The law of Louisiana relating to
the "domicil and the manner of changing the same" will be found
in the Civil Code of Louisiana, tit. 2, art. 42 to 49. See, also,
8 M. R. 709; 4 N. S. 51; 6 N. S. 467; 2 L. R. 35; 4 L. R. 69;
5 N. S. 385 5 L. R. 332; 8 L. R. 315; 13 L. R. 297 11 L. R.
178; 12 L. R. 190. See, on the subject generally, Bouv. Inst.
Index, h. t. 2 Bos. & Pul. 230, note 1 Mason's Rep. 411;
Toullier, Droit Civil Francais, liv. 1, tit. 3, n., 362 a 378;
Domat, tome 2, liv. 1, s. 3; Pothier, Introduction Generale aux
Coutumes, n. 8 a 20; 1 Ashm. R. 126; Merl. Rep. tit. Domicile 3
Meriv. R. 79; 5 Ves. 786; 1 Crompt. & J. 151; 1 Tyrwh. R. 91;
2 Tyrwh. R. 475; 2 Crompt. & J. 436 3 Wheat. 14 3 Rawle, 312; 7
Cranch, 506 9 Cranch, 388; 5 Pick. 20; 1 Gallis, 274, 545; 10
Mass. 488 11 Mass. 424; 13 Mass. 501 2 Greenl. 411; 3 Greenl
229, 354; 4 Greenl. 47; 8 Greenl. 203; 5 Greenl. 143; 4
Mason, 308; 3 Wash. C. C. R. 546; 4 Wash. C. C. R. 514 4 Wend,
602; 8 Wend. 134; 5 Pick. 370 10 Pick. 77; 11 Pick. 410; 1
Binn. 349, n.; Phil. on Dom. passim.
DOMINANT. estates. In the civil law, this term is used to
signify the estate to which a servitude or easement is due from
another estate; for example, where the owners of the estate,
Blackacre, have a right of way or passage over the estate
Whiteacre, the former is called the dominant, and the latter the
servient estate. Bouv. Inst. n. 1600.
DOMINION. The right of the owner of a thing to use it or
dispose of it at his pleasure. See Domain; 1 White's New Coll.
85; Jacob's Intr. 39.
DOMINIUM, empire, domain. It is of three kinds: 1, Directum
dominium, or usufructuary dominion; dominium utile, as between
landlord and tenenant; or, 2. It is to full property, and simple
property. The former is such as belongs to the cultivator of his
own estate; the other is the property of a tenant. 3. Dominion
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acquired by the law of nations, and dominion acquired by
municipal law. By the law of nations, property may be acquired by
occupation, by accession, by commixtion, by use or the pernancy
of the usufruct, and by tradition or delivery. As to the dominium
eminens, the right of the public, in cases of emergency, to seize
upon the property of individuals, and convert it to public use,
and the right of individuals, in similar cases, to commit a
trespass on the persons and properties of others, see the opinion
of chief justice McKean in Respublica v. Sparhawk, 1 Dallas, 362,
and the case of Vanhorn v. Dorrance, 2 Dall. Rep. 304. See,
further, as to dominium eminens, or the right of the community to
take, at a fair price, the property of individuals for public
use, the supplement of 1802 to the Pennsylvania compromising law,
respecting the Wyoming controversy; also, Vattel, l. 1, c. 20,
§§244-248; Bynkershoek, lib. 2, c. 15; Rousseau's Social
Compact, c. 9; Domat; l. 1, tit. 8, §l, p. 381, fol. ed.; the
case of a Jew, whom the grand seignior was compelled by the mufti
to purchase out, cited in Lindsay et al. v. The Commissioners, 2
Bay. S. Car. Rep. 41. See Eminent domain.
DOMITAE. Subdued, tame,. not wild; as, animals domitae, which
are tame or domestic animals.
DOMO REPARANDO. the name of an ancient writ in favor of a party
who was in danger of being injured by the fall, of his neighbor's
house.
DONATIO MORTIS CAUSA, contracts, legacies. A gift in prospect
of death. When a person in sickness, apprehend ing his
dissolution near, delivers, or causes to be delivered to another,
the possession of any personal goods, to keep as his own, in case
of the donor's decease. 2 Bl. Com. 514 see Civ. Code of Lou. art.
1455.
2. The civil law defines it to be a gift under apprehension of
death; as, when any thing is given upon condition that if the
donor dies, the donee shall possess it absolutely, or return it
if the donor should survive, or should repent of having made the
gift, or if the donee should die before the donor. 1 Miles' Rep.
109-117.
3. Donations mortis causa, are now reduced, as far as possible,
to the similitude of legacies. Inst. t. 7, De Donationibus. See 2
Ves. jr. 119; Smith v. Casen, mentioned by the reporter at the
end of Drury v. Smith, 1 P. Wms. 406; 2 Ves. sen. 434; 3 Binn.
866.
4. With respect to the nature of a donatio mortis causa, this
kind of gift so far resembles a legacy, that it is ambulatory and
incomplete during the donor's life; it is, therefore, revocable
by him; 7 Taunt. 231; 3 Binn. 366 and subject to his debts upon
a deficiency of assets. 1 P. Wms. 405. But in the following
particulars it differs from a legacy: it does riot fall within
an administration, nor require any act in the executors to
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perfect a title in the donee. Rop. Leg. 26.
5. The following circumstances are required to constitute a
good donatio mortis causa. 1st. That the thing given be personal
property; .3 Binn. 370 a bond; 3 Binn. 370; 3 Madd. R. 184;
bank notes; 2 Bro. C. C. 612; and a check offered for payment
during the life of the donor, will be so considered. 4 Bro. C. C.
286.
6. - 2d. That the gift be made by the donor in peril of death,
and to take effect only in case the giver die. 3 Binn. 370 4
Burn's Ecc. Law, 110.
7. - 3d. That there be an actual delivery of the subject to, or
for the donee, in cases where such delivery can be made. 3 Binn.
370; 2 Ves. jr. 120. See 9 Ves. 1 , 7 Taunt. 224. But such
delivery can be made to a third person for the use of the donee.
3 Binn. 370:
8. It is an unsettled question whether such kind of gift
appearing in writing, without delivery of the subject, can be
supported. 2 Ves. jr. 120. By the Roman and civil law, a gift
mortis causa might be made in writing. Dig. lib. 39, t. 6, 1. 28
2 Ves. sen. 440 1 Ves. sen. 314.
9. In Louisiana, no disposition mortis causa, otherwise than by
last will and testament, is allowed. Civ. Code, art. 1563. See,
in general, 1 Fonb. Tr. Eq. 288, n. (p); Coop. Just. 474, 492;
Civ. Code of Lo. B. 3, 2, c. 1 and 6. Vin. Abr. Executors, Z 4;
Bac. Abr. Legacies, A; Supp. to Ves. jr. vol. 1, p. 143, 170;
vol. 2, 97. 215; Rop. Leg: oh. 1; Swinb. pt. 1, s. 7 1 Miles,
109. &c.
DONATION, contracts. The act by which the owner of a thing,
voluntarily transfers the title and possession of the same, from
himself to another person, without any consideration; a gift.
(q. v.)
2. A donation is never perfected until it is has been accepted,
for the acceptance (q. v.) is requisite to make the donation
complete. Vide Assent, and Ayl. Pand. tit. 9 Clef des Lois Rom.
h. t.
DONATION INTER Vivos, contracts. A contract which takes place
by the mutual consent, of the giver, who divests himself of the
thing given in order to transmit the title of it to the donee
gratuitously, and the donee, who accepts the thing and acquires a
legal title to it.
2. This donation takes place when the giver is not in any
immediate apprehension of death, which distinguishes it from a
donatio mortis causa. (q. v.) 1 Bouv. Inst. n. 712. And see Civ.
Code of Lo. art. 1453 Justin. Inst. lib. 2, tit. 7, §2 Coop.
Justin. notes 474-5 Johns. Dig. N. Y. Rep. tit. Gift.
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DONEE. He to whom a gift is made, or a bequest given; one who
is invested with a power to select an appointee, he is sometimes
called an appointer.
DONIS, STATUTE DE. The stat. West. 2, namely, 13 Edw. I. , c.
1, called the statute de donis conditionalibus. This statute
revives, in some sort, the ancient feudal restraints, which were
originally laid on alienations. 2 Bl. Com. 12.
DONOR. He who makes a gift. (q. v.)
DOOM. This word formerly signified a judgment. T. L.
DORMANT PARTNER. One who is a participant in the profits of a
firm, but his name being concealed, his interest is not apparent.
See Partners,
DOOR. The place of usual entrance in a house, or into a room in
the house.
2. To authorize the breach of an outer door in order to serve
process, the process must be of a criminal nature; and even then
a demand of admittance must first have been refused. 5 Co. 93; 4
Leon. 41; T. Jones, 234; 1 N. H. Rep. 346; 10 John. 263; 1
Root, 83 , 134; 21 Pick. R. 156. The outer door may also be
broken open for the purpose of executing a writ of habere facias.
5 Co. 93; Bac. Ab. Sheriff, N. 3.
3. An outer door cannot in general be broken for the purpose of
serving civil process; 13 Mass. 520; but after the defendant
has been arrested, and he takes refuge in his own house, the
officer may justify breaking an outer door to take him. Foster,
320; 1 Roll. R. 138; Cro. Jac. 555.; 10 Wend. 300; 6 Hill, N.
Y. Rep. 597. When once an officer is in the house, he may break
open an inner door to make an arrest. Kirby, 386 5 John. 352; 17
John. 127, See 1 Toull. n. 214, p. 88.
DOT. This French word is adopted in Louisiana. It signifies the
fortune, portion, or dowry, which a woman brings to her hushand
by the marriage. 6 N. S. 460. See Dote; Dowry.
DOTAL PROPERTY. By the civil law, and in Louisiana, by this term
is understood that property, which the wife brings to the hushand
to assist him in bearing the expenses of the marriage
establishment. Civil Code of Lo. art. 2315. Vide Extradotal
property.
DOTATION, French law. The act by which the founder of a
hospital, or other charity, endows it with property to fulfil its
destination.
DOTE, Span. law. The property which the wife gives to the
hushand on account of marriage.
2. It is divided into adventitia and profectitia; the former
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is the dote which the father or grandfather, or other of the
ascendants in the direct paternal line, give of their own
property to the hushand; the latter (adventitia) is that
property which the wife gives to the hushand, or that which is
given to him for her by her mother, or her collateral relations,
or a stranger. Aso & Man. Inst. B. 1, t. 7, c . 1, §i.
DOTE ASSIGNANDO, Eng. law. The name of a writ which lay in
favor of a widow, when it was found by office that the king's
tenant was seised of tenements in fee or fee tail at the time of
his death, and that he held of the king in chief.
DOTE UNDE NIHIL HABET. The name of a writ of dower which a
widow sues against the tenant, who bought land of her hushand in
his lifetime, and in which her dower remains, of which he was
seised solely in fee simple or fee tail. F. N. B. 147; Booth,
Real Act. 166. See Dower unde nihil habet
DOUBLE. Twofold; as, double cost; double insurance; double
plea.
DOUBLE COSTS practice. According to the English law, when
double costs are given by the statute, the term is not to be
understood, according to its literal import, twice the amount of
single costs, but in such case the costs are thus calculated. 1.
the common costs; and, 2. Half of the common costs. Bac. Ab.
Costs, E; 2 Str. 1048. This is not the rule in New York, nor in
Pennsylvania. 2 Dunl. Pr. 731; 2 Rawle's R. 201.
2. In all cases where double or treble costs are claimed, the
party must apply to the court for them before he can proceed to
the taxation, otherwise the proceeding will be set aside as
irregular. 4 Wend. R. 216. Vide Costs; and Treble Costs.
DOUBLE ENTRY. A term used among merchants to signify that books
of account are kept in such a manner that they present the debit
and credit of every thing. The term is used in contradistinction
to single entry.
2. Keeping books by double entry is more exact, because,
presenting all the active and all the passive property of the
merchant, in their respective divisions, there cannot be placed
an article to, an account, which does not pass to some
correspondent account elsewhere. It presents a perfect, view of
each operation, and, from the relation and comparison of the
divers accounts, which always keep pace with each other, their
correctness is proved; for every commercial operation is
necessarily composed of two interests, which are connected
together. The basis of this mode of keeping books, and the only
condition required, is to write down every transaction and
nothing else; and to make no entry without putting it down to
the two agents of the operation. By this means a merchant whose
transactions are extensive, comprising a great number of
subjects, is able to known not only the general situation of his
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affairs, but also the situation of each particular operation. For
example, when a merchant receives money, his cash account becomes
debtor, and the person who has paid it, or the merchandise sold,
is credited with it; when he pays money, the cash account, is
credited, And the merchandise bought, or the obligation paid, is
debited with it. See Single entry.
DOUBLE INSURANCE, contracts. Where the insured makes, two
insurances on the same risk, and the same interest. 12 Mass. 214.
It differs from re-insurance in this, that it is made by the
insured, with a view of receiving a double satisfaction in case
of loss; whereas a re-insurance is made by a former insurer, his
executors or assigns, to protect himself and his estate from a
risk to which they were liable by the first insurance. The two
policies are considered as making but one insurance. They are
good to the extent of the value of the effects put in risk; but
the insured shall not be permitted to recover a double
satisfaction. He can sue the underwriters on both the policies,
but he can only recover the real amount of his loss, to which all
the underwriters on both shall contribute in proportion to their
several subscriptions. Marsh. Ins. B. 1, c. 4, s. 4; 5 S. & R.
473; 4 Dall. 348; 1 Yeates, 161; 9 S. & R. 103; 1 Wash . C.
C. Rep. 419; 2 Wash. C. C. Rep. 186; 2 Mason, 476.
DOUBLE PLEA. The alleging, for one single purpose, two or more
distinct grounds of defence, when one of them would be as
effectual in law, as both or all. Vide Duplicity.
DOUBLE VOUCHER. A common recovery is sometimes suffered with
double voucher, which occurs when the person first vouched to
warranty, comes in and vouches over a third person. See a
precedent, 2 Bl. Com. Appx. No. V. p. xvii.; also, Voucher.
2. The neecessity for double voucher arises when the tenant in
tail is not the tenant in the writ, but is tenant by warranty;
that is, where he is vouched, and comes in and confesses the
warranty. Generally speaking, to accomplish this result, a
previous conveyance is necessary, by the tenant in tail, to a
third person, in order to make such third person tenant to a writ
of entry. Preston on Convey. 125-6.
DOUBLE WASTE. When a tenant, bound to repair, suffers a house
to be wasted, and then unlawfully fells timber to repair it, he
is said to commit double waste. Co. Litt. 53. See Waste.
DOUBT. The uncertainty which exists in relation to a fact, a
proposition, or other thing; or it is an equipoise of the mind
arising from an equality of contrary reasons. Ayl. Pand. 121.
2. The embarrassing position of a judge is that of being in
doubt, and it is frequently the lot of the wisest and most
enlightened to be in this condition, those who have little or no
experience usually find no difficulty in deciding the most,
problematical questions.
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3. Some rules, not always infallible, have been adopted in
doubtful cases, in order to arrive at the truth. 1. In civil
cases, the doubt ought to operate against him, who having it in
his power to prove facts to remove the doubt, has neglected to do
so. In cases of fraud when there is a doubt, the presumption of
innocence (q. v.) ought to remove it. 2. In criminal cases,
whenever a reasonable doubt exists as to the guilt of the accused
that doubt ought to operate in his favor. In such cases,
particularly, when the liberty, honor or life of an individual is
at stake, the evidence to convict ought to be clear, and devoid
of all reasonable doubt. See Best on Pres. §195; Wils. on Cir.
Ev. 26; Theory of Presumptive Proof, 64; 33 How. St. Tr. 506;
Burnett, Cr. Law of Scotl. 522; 1 Greenl. Ev. §1 D'Aguesseau,
Oeuvres, vol. xiii. p. 242; Domat, liv. 3, tit. 6.
4. No judge is presumed to have any doubt on a question of law,
and he cannot therefore refuse to give a judgment on that
account. 9 M. R. 355; Merlin, Repert. h. t.; Ayliffe's Pand. b.
2, t. 17; Dig. lib. 34, t. 5; Code, lib. 6, t. 38. Indeed, in
some countries; in China, for example, ignorance of the law in a
judge is punishable with blows. Penal Laws of China, B. 2, s. 61.
DOVE. The name of a well known bird.
2. Doves are animals ferae naturae, and not the subject of
larceny, unless they are in the owner's custody; as, for
example, in a dove-house, or when in the nest before they can
fly. 9 Pick. 15. See Whelp.
DOWAGER. A widow endowed; one who has a jointure.
2. In England, this is a title or addition given to the widows
of princes, dukes, earls, and other noblemen.
DOWER. An estate for life, which the law gives the widow in the
third part of the lands and tenements, or hereditaments of which
the hushand, was solely seised, at any time during the coverture,
of an estate in fee or in tail, in possession, and to which
estate in the lands and tenements, the issue, if any, of such
widow might, by possibility, have inherited. Watk. Prin. Con. 38;
Litt. §36; 7 Greenl. 383. Vide Estate in Dower. This is dower at
common law.
2. Besides this, in England there are three other species of
dower now subsisting; namely, dower by custom, which is, where a
widow becomes entitled to a certain portion of her hushand's
lands in consequence of some local or particular custom, thus by
the custom of gavelkind, the widow is entitled to a moiety of all
the lands and tenements, which her hushand held by that tenure.
3. Dower ad ostium ecclesiae, is, when a man comes to the
church door to be married, after troth plighted, endows his wife
of a certain portion of his lands.
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4. Dower ex assensu patris, was only a species of dower ad
ostium ecclesice, made when the hushand's father was alive, and
the son, with his consent expressly given, endowed his wife, at
the church door, of a certain part of his father's lands.
5. There was another kind, de la plus belle, to which the
abolition of military tenures has put an end. Vide Cruise's Dig.
t. 6, c. 1; 2 Bl. Com. 129; 15 Serg. & Rawle, 72 Poth. Du
Douaire.
6. Dower is barred in various ways; 1. By the adultery of the
wife, unless it has been condoned. 2. By a jointure settled upon
the wife. 2 Paige, R. 511. 3. By the wife joining her hushand in
a conveyance of the estate. 4. By the hushand and wife levying a
fine, or suffering a common recovery. 10 Co. 49, b Plowd. 504. 5.
By a divorce a vinculo matrimonii. 6. By an acceptance, by the
wife, of a collateral satisfaction, consisting of land, money, or
other chattel interest, given instead of it by the hushand's
will, and accepted after the hushand's death. In these cases she
has a right to elect whether to take her dower or the bequest or
devise. 4 Monr. R. 265; 5 Monr. R. 58; 4 Desaus. R. 146; 2
M'Cord, Ch. R. 280; 7 Cranch, R. 370; 5 Call, R. 481; 1 Edw.
R. 435 3 Russ. R. 192; 2 Dana, R. 342.
7. In some of the United States, the estate which the wife
takes in the lands of her deceased hushand, varies essentially
from the right of dower at common law. In some of the states, she
takes one-third of the profits, or in case of there being no
children, one half. In others she takes the same right in fee,
when there are no lineal descendants; and in one she takes
two-thirds in fee, when there are no lineal ascendauts or
descendants, or brother or sister of the whole or half blood. 1
Hill. Ab. 57, 8; see Bouv. Inst. Index, h. t.
DOWER UNDE NIHIL HABET. This is a writ of right in its nature.
It lies only against the tenant of the freehold. 12 Mass. 415 2
Saund. 43, note 1; Hen. & Munf. 368 F. N. B. 148. It is a writ
of entry, where the widow is deforced of the whole of her dower.
Archb. Plead. 466, 7. A writ of right of dower lies for the whole
or a part. 1 Rop. on Prop. 430; Steph. on Pl. 10. n; Booth, R.
A. 166; Glanv. lib. 4. c. 4, 5; 9 S. & R. 367. If the heir is
fourteen years of age, the writ goes to him, if not, to his
guardian. If the land be wholly aliened, it goes to the tenant,
F. N. B. 7, or pernor of the profits, who may vouch the heir. If
part only be aliened, the writ goes to the heir or guardian. The
tenant cannot impart; 2 Saund. 44, n;. 1 Rop. on Prop. 430; the
remedy being speedy. Fleta, lib. 5. o. 25, §8, p. 427. He pleads
without defence. Rast. Ent. 232, b. lib. Int. fo. 15; Steph. Pl.
431 Booth, 118; Jackson on Pl. 819.
DOWRESS. A woman entitled to dower.
2. In order to entitle a woman to the rights of a dowress at
common law, she must have been lawfully married, her hushand must
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be dead, he must have been seised, during the coverture, of an
estate subject to dower. Although the marriage may be void able,
if it is not absolutely void at his death, it is sufficient to
support the rights of the dowress. The hushand and wife must have
been of sufficient age to consent.
3. At common law an alien could not be endowed, but this rule
has been changed in several states. 2 John. Cas. 29; 1 Harr. &
Gill, 280.; 1 Cowen, R. 89; 8 Cowen, R. 713.
4. The dowress' right may be defeated when her hushand was not
of right seised of an estate of inheritance; as, for example,
dower will be defeated upon the restoration of the seisin under
the prior title in the case of defeasible estates, as in case of
reentry for a condition broken, which abolishes the intermediate
seisin. Perk. s. 311, 312, 317.
DOWRY. Formerly applied to mean that which a woman brings to
her hushand in marriage; this is now called a portion. This word
is sometimes confounded with dower. Vide Co. Litt. 31; Civ. Code
of Lo. art. 2317; Dig. 23, 3, 76; Code, 5, 12, 20.
DRAGOMAN. An interpreter employed in the east, and particularly
at the Turkish court.
2. The Act of Congress of August 26, 1842, c. 201, s. 8,
declares that it shall not be lawful for the president of the
United States to allow a dragoman at Constantinople, a salary of
more than two thousand five hundred dollars.
DRAIN. Conveying the water from one place to another, for the
purpose of drying the former
2. The right of draining water through another map's land. This
is an easement or servitude acquired by grant or prescription.
Vide 3 Kent, Com. 436 7 Mann. & Gr. 354; Jus aguaeductus; Rain
water; Stillicidium.
DRAwhACK, com. law. An allowance made by the government to
merchants on the reexportation of certain imported goods liable
to duties, which, in some cases, consists of the whole; in
others, of a part of the duties which had been paid upon the
importation. For the various acts of congress which regulate
drawhacks, see Story, L. U. S. Index, h. t.
DRAWEE. A person to whom a bill of exchange is addressed, and
who is requested to pay the amount of money therein mentioned.
2. The drawee may be only one person, or there may be several
persons. The drawee may be a third person, or a man may draw a
bill on himself. 18 Ves. jr. 69; Carth. 509; 1 Show. 163; 3
Burr. 1077.
3. The drawee should accept or refuse to accept the bill at
furthest within twenty-four hours after presentment. 2 Smith's R.
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243; 1 Ld. Raym. 281 Com. Dig. Merchant, F 6; Marius, 15; but
it is said the holder is entitled. to a definite answer if the
mail go out in the meantime. Marius' 62. In case the bill has
been left with the drawee for his acceptance, he will be
considered as having accepted it, if he keep the bill a great
length of time, or do any other act which gives credit to the
bill, and induces the holder not to protest it; or is intended
as a surprise upon him, and to induce him to consider the bill as
accepted. Chit. on Bills, 227. When he accepts it, it is his duty
to pay it at maturity.
DRAWER, contracts. The party who makes a bill of exchange.
2. The obligations of the drawer to the drawee and every
subsequent holder lawfully entitled to the possession, are, that
the person on whom he draws is capable of binding himself by his
acceptance that he is to be found at the place where he is
described to reside, if a description be given in the bill; that
if the bill be duly presented to him, he will accept in writing
on the bill itself, according to its tenor, and that he will pay
it when it becomes due, if presented in proper time for that
purpose; and that if the drawee fail to do either, he, the
drawer, will pay the amount, provided he have due notice of the
dishonor. 3. The engagement of the drawer of a bill is in all its
parts absolute and irrevocable. 2 H. Bl. 378; 3 B. & P. 291;
Poth. Contr. de Change, n. 58; Chit. Bills, 214, Dane's Ab. h.
t.
DRAWING. A representation on paper, card, or other substance.
2. The Act of Congress of July 4, 1836, section 6, requires all
persons who apply for letters patent for an invention, to
accompany their petitions or specifications with a drawing or
drawings of the whole, and written references, when the nature of
the case admits of drawings.
DREIT. The same as Droit. (q. v.)
DRIFTWAY. A road or way over which cattle are driven. 1 Taunt.
R. 279; Selw. N. P. 1037; Wool. on Ways, 1.
DRIP. The right of drip is an easementt by which the water
which falls on one house is allowed to fall upon the land of
another.
2. Unless the owner has acquired the right by grant or
prescription, he has no right so to construct his house as to let
the water drip over his neighbor's land. 1 Roll. Ab. 107. Vide
Rain water; Stillicidium; and 3 Kent, Com. 436; Dig. 43, 23, 4
et 6; 11 Ad. & Ell. 40; S. C. 39 E. C. L. R. 21.
DRIVER. One employed in conducting a coach, carriage, wagon, or
other vehicle, with horses, mules, or other animals.
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2. Frequent accidents occur in consequence of the neglect or
want of skill of drivers of public stage coaches, for which the
employers are responsible.
3. The law requires that a driver should possess reasonable
skill and be of good habits for the journey; if, therefore, he
is not acquainted with the road he undertakes to drive; 3 Bingh.
Rep. 314, 321; drives with reins so loose that he cannot govern
his horses; 2 Esp. R. 533; does not give notice of any serious
danger on the road; 1 Camp. R. 67; takes the wrong side of the
road; 4 Esp. R. 273; incautiously comes in collision with
another carriage; 1 Stark. R. 423; 1 Campb. R. 167; or does
not exercise a sound and reasonable discretion in travelling on
the road, to avoid dangers and difficulties, and any accident
happens by which any passenger is injured, both the driver and
his employers will be responsible. 2 Stark. R. 37; 3 Engl. C. L.
Rep. 233; 2 Esp. R. 533; 11. Mass. 57; 6 T. R. 659; 1 East,
R. 106; 4 B. & A. 590; 6 Eng. C. L. R. 528; 2 Mc Lean, R. 157.
Vide Common carriers Negligence; Quasi Offence.
DROIT. A French word, which, in that language, signifies the
whole collection of laws, written and unwritten, and is
synonymous to our word law. It also signifies a right, il
n'existe point de droits sans devoirs, et vice versa. 1 Toull. n.
96; Poth. h. t. With us it means right, jus. Co. Litt. 158. A
person was said to have droit droit, plurimum juris, and plurimum
possessionis, when he had the freehold, the fee, and the property
in him. Id. 266; Crabb's H. Eng. L. 400.
DROIT D'ACCESSION, French civil law. Specificatio. That
property which is acquired by making a new species out of the
material of another. Modus acquirendi quo quis ex aliena materia
suo nomine novam speciem faciens bona fide ejus speciei dominium
consequitur. It is a rule of the civil law, that if the thing can
be reduced to the former matter, it belongs to the owner of the
matter, e. g. a statue made of gold, but if it cannot so be
reduced, it belongs to the person who made it, e. g. a statue
made of marble. This subject is treated of in the Code Civil de
Napoleon, art. 565 to 577; Merlin Repertoire de Surisp.
Accession; Malleville's Discussion, art. 565. The Code Napoleon
follows. closely the Inst. of Just. lib . 2, tit. 1, §§25, 28.
2. Doddridge, in his English Lawyer, 125-6, states the common
law thus: " If a man take, wrongfully, the material which was
mine and is permanent, not adding anything thereunto than the
form, only by alteration thereof, such thing, so newly formed by
an exterior form, notwithstanding, still remaineth mine, and may
be seized again by me, and I may take it out of his possession as
mine own. But they say, if he add some other matter thereunto;
as, of another man's leather doth make shoes or boots, or of my
cloth, maketh garments, adding to the accomplishment thereof of
his own, he hath thereby altered the property, so that the first
owner cannot seize the thing so composed, but is driven to his
action to recover his remedy: howheit, he adds, in a case of
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that nature depending, the court had determined that the first
owner might seize the same, notwithstanding such addition. But if
the thing be transitory in its nature by the change, as if one
take ray corn or meal, and thereof make bread, I cannot, in that
case, seize the bread, because, as the civil law speaketh, haec
species facta ex materia aliens, in pristinam formam reduci non
potest, ergo ei a quo est facta cedit. So some have said, if a
man take my barley, and thereof make malt, because it is changed
into another nature, it cannot be seized by me; but the rule is:
That where the material wrongfully taken away, could not at
first, before any alteration, be seized; for that it could not
be distinguished. from other things of that kind, as corn, money,
and such like; there those things cannot be seized because the
property of those things cannot be: distinguished: for, if my
money be wrongfully taken away, and he that taketh it do make
plate; thereof, or do convert my plate into money, I cannot
seize the same for that money is undistinguishable from other
money of that coin. But, if a butcher take wrongfully my ox and
doth kill it, and bring it into the market to be sold, I may not
seize upon the flesh, for it: cannot be known from others of
that, kind; but if it be found hanging in the skin, where the
mark may appear, I may seize the same, although when it was taken
from me it had life, and now is dead. So, if a man cut down my
tree, and square it into a beam of timber, I may seize the same,
for he bath neither altered the nature thereof, nor added
anything but exterior form thereunto; but if he lay the beam of
timber into the building of a house, I may not seize the same,
for being so set it is become parcel of the house, and so in
supposition of law, after a sort, altered in its nature. See Year
Book 12 H. VIII. 9 b, 10 a; Bro. Ab. Property, 45; 5 H. VII.
15; Bro. Ab. Property, 23.
DROITS OF ADMIRALTY. Rights claimed by the government over the
property of an enemy. In England, it has been usual, in maritime
wars, for the government to seize and condemn, as droits of
admiralty, the property of an enemy found in her ports at the
breaking out of hostilities. 1 Rob. R. 196; 13 Ves. jr. 71;
Edw. R. 60; 3 B. & P. 191.
DROIT D'AUBAINE, jus albinatus. This was a rule by which all
the property of a deceased foreigner, whether movable or
immovable, was confiscated to the use of the state, to the
exclusion of his heirs, whether claiming ab intestato, or under a
will of the deceased. The word aubain signifies hospes loci,
peregrinus advena, a stranger. It is derived, according to some,
from alibi, elsewhere, natus, born, from which the word albinus
is said to be formed. Others, as Cujas, derive the word directly
from advena, by which word, aubains, or strangers, are designated
in the capitularies of Charlemagne. See Du Cange and Dictionaire
de Trevoux.
2. As the darkness of the middle ages wore away, and the light
of civilization appeared, thing barbarous and inhospitable usage
was by degrees discontinued, and is now nearly abolished in the
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civilized world. It subsisted in France, however, in full force
until 1791, and afterwards, in a modified form, until 1819, when
it was formally abolished by law. For the gross abuses of this
feudal exaction, see Dictionaire de l'Ancien Regime et des abus
feodaux. Aubain. See Albinatus jus.
DROIT-CLOSE. The name of an ancient writ directed to the lord
of ancient demesne, and which lies for those tenants in ancient
demesne who hold their lands and tenements by charter in fee
simple, in fee tail, for life, or in dower. F. N. B. 23.
DROITURAL. What belongs of right; relating to right; as, real
actions are either droitural or possessory; droitural, when the
plaintiff seeks to recover the property. Finch's Law, 257.
DRUNKENNESS. Intoxication with strong liquor.
2. This is an offence generally punished by local regulations,
more or less severely.
3. Although drunkenness reduces a man to a temporary insanity,
it does not excuse him or palliate his offence, when he commits a
crime during a fit of intoxication, and which is the immediate
result of it. When the act is a remote consequence, superinduced
by the antecedent drunkenness of the party, as in cases of
delirium tremens or mania a potu, the insanity excuses the act. 5
Mison's R. 28; Amer. Jurist, vol. 3, p. 5-20; Martin and
Yeager's. R. 133, 147;. Dane's Ab. Index, h. t.; 1 Russ. on Cr.
7; Ayliffe's Parerg. 231 4 Bl. Com. 26.
4. As there must be a will and intention in order to make a
contract, it follows, that a man who is in such a state of
intoxication as not to know what he is doing, may avoid a
contract entered into by him while in this state. 2 Aik. Rep.
167; 1 Green, R. 233; 2 Verm. 97; 1 Bibb, 168; 3 Hayw. R. 82;
1 Hill, R. 313; 1 South. R. 361; Bull. N. P. 172; 1 Ves. 19;
18 Ves. 15; 3 P. Wms. 130, n. a; Sugd. Vend. 154; 1 Stark.
126; 1 South. R. 361; 2 Hayw. 394; but see 1 Bibb, R. 406;
Ray's Med. Jur. ch. 23, 24; Fonbl. Eq. B. 2, 3; 22 Am. Jur.
290; 1 Fodere, Med. Leg. §215. Vide Ebriosity; Habitua.
drunkard.
DRY. Used figuratively, it signifies that which produces
nothing; as, dry exchange; dry rent; rent seek.
DRY EXCHANGE, contracts. A term invented for disguising and
covering usury; in which something, was pretended to pass on
both sides, when in truth nothing passed on one side, whence it
was called dry. Stat. 3 Hen. VII. c. 5 Wolff, Ins. Nat. §657.
DRY RENT, contracts. Rent-seek, was a rent reserved without a
clause of distress.
DUCAT. The name of a foreign coin. The ducat of Naples shall be
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estimated in the computations of customs, at eighteen cents. Act
of May 22, 1846.
DUCES TECUM, practice, evidence. Bring with thee. A writ
commonly called a subpoena duces tecum, commanding the person to
whom it is directed to bring with him some writings, papers, or
other things therein specified and described, before the court. 1
Phil. Ev. 886.
2. In general all papers in the possession of the witness must
be produced; but to this general rule there are exceptions,
among which are the following: 1. That a party is not bound to
exhibit his own title deeds. 1 Stark. Ev. 87; 8 C. & P. 591; 2
Stark. R. 203; 9 B. & Cr. 288. 2. One who has advanced money on
a lease, and holds it as his security, is not bound to produce
it. 6 C. & P. 728. 3. Attorneys and solicitors who hold the
papers of their clients cannot be compelled to produce them,
unless the client could have been so compelled. 6 Carr. & P. 728.
See 5 Cowen, R. 153, 419; Esp. R. 405; 11 Price, R. 455; 1
Adol. & Ell. 31; 1 C. M. & R. 38 1 Hud. & Brooke, 749. On the
question how far this clause is obligatory on a witness, see 1
Dixon on Tit. Deeds, 98, 99, 102; 1 Esp. N. P. Cas. 405; 4 Esp.
N. P. C. 43; 9 East, Rep. 473.
DUCKING-STOOL, punishment. An instrument used, in dipping women
in the water, as a punishment, on conviction of being common
scolds. It is sometimes confounded with tumbrel. (q. v.)
2. This barbarous punishment was never in use in Pennsylvania.
12 Serg. & Rawle, 220.
DUCROIRE. This is a French word, which has the same meaning as
the Italian phrase del credere. (q. v.) 2 Pard. Dr. Com. n. 564.
DUE. What ought to be paid; what may be demanded. It differs
from owing in this, that, sometimes, what is owing is not due; a
note, payable thirty days after date, is owing immediately after
it is delivered to the payee, but it is not due until the thirty
days have elapsed.
2. Bills of exchange, and promissory notes, are not, due until
the end of the three days of grace, (q. v.) unless the last of
these days happen to fall on a Sunday, or other holyday, when it
becomes due on the Saturday before, and not on the Monday
following. Story, P. N. §440; 1 Bell's Com. 410 Story on Bills,
§283; 2 Hill, N. Y. R. 587; 2 Applet. R. 264.
3. Due also signifies just or proper; as, a due presentment,
and demand of payraent, must be made. See 4 Rawle, 307; 3 Leigh,
389; 3 Cranch, 300.
DUE-BILL. An acknowledgment of a debt, in writing, is so
called. This instrument differs from a promissory note in many
particulars; it is not payable to order, nor is it assignable by
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mere endorsement. See I 0 U; Promissory notes.
DUELLING, crim. law. The fighting of two persons, one against
the other, at an appointed time and place, upon a precedent
quarrel. It differs from an array in this, that the latter occurs
on a sudden quarrel, while the former is always the result of
design.
2. When one of the parties is killed, the survivor is guilty of
murder. 1 Russ. on Cr. 443; 1 Yerger's R. 228. Fighting a duel,
even where there is no fatal result, is, of itself, a
misdemeanor. Vide 2 Com. Dig. 252; Roscoe's Cr. Ev. 610; 2
Chit. Cr. Law, 728; Id. 848; Com. Dig. Battel, B; 3 Inst. 157;
6 East, 464 Hawk. B. 1, c. 31, s. 21; 3 East, R. 581 3 Bulst.
171 4 Bl. Com. 199 Prin. Pen. Law, c. 19, p 245; Const. R. 107;
1 Stew. R. 506; 20 John. 457; 3 Cowen, 686. For cases of mutual
combat, upon a sudden quarrel, Vide 1 Russ. on Cr. 495.
DUKE. The title given to those who are in the highest rank of
nobility in England.
DUM FUIT INFRA AETATEM. The name of a writ which lies when an
infant has made a feoffment in fee of his lands, or for life, of
a gift in tail.
2. It may be sued out by him after he comes of full age, and
not before; but, in the mean time, he may enter, and his entry
remits him to his ancestor's rights. F. N. B. 192; Co. Litt.
247, 337.
DUM SOLA. While single or unmarried. This phrase is applied to
single women, to denote that something has been done, or may be
done, while the woman is or was unmarried. Example, when a
judgment is rendered against a woman dum sola, and afterwards she
marries, the scire facias to revive, the judgment must be against
both hushand and wife.
DUM NON FUIT COMPOS MENTIS, Eng. law. The name of a writ, which
the heirs of a person who was non compos mentis, and who aliened
his lands, might have sued out, to restore him to his rights. T.
L.
DUMB. One who cannot speak; a person who is mute. See Deaf and
dumb, Deaf, dumb, and blind; Mute, standing mute.
DUMB-BIDDING, contracts. In sales at auction, when the amount
which the owner of the thing sold is willing to take for the
article, is written, and placed by the owner under a candlestick,
or other thing, and it is agreed that no bidding shall avail
unless equal to that; this is called dumbidding. Babingt. on
Auct. 44.
DUNG. Manure. Sometimes it is real estate, and at other times
personal property. When collected in a heap, it is personal
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estate; when spread out-on the land, it becomes incorporated in
it, and it is then real estate. Vide Manure.
DUNGEON. A cell under ground; a place in a prison built under
ground, dark, or but indifferently lighted. In the prisons of the
United States, there are few or no dungeons.
DUNNAGE, mer. law. Pieces of wood placed against the sides and
bottom of the hold of a vessel, to preserve the cargo from the
effect of leakage, according to its nature and quality. 2 Magens,
101, art. 125, 126 Abbott on Shipp. 227.
DUPEX QUERELA, Eng. eccl. law. A complaint in the nature of an
appeal from the ordinary to his next immediate superior. 3 Bl.
Com 247.
DUPLICATA. It is the double of letters patent, letters of
administration, or other instrument.
DUPLICATE. The double of anything.
2. It is usually applied to agreements, letters, receipts, and
the like, when two originals are made of either of them. Each
copy has the same effect. The term duplicate means a document,
which is essentially the same as some other instrument. 7 Mann. &
Gr. 93. In the English law, it also signifies the certificate of
discharge given to an insolvent debtor, who takes the benefit of
the act for the relief of insolvent debtors.
3. A duplicate writing has but one effect. Each duplicate is
complete evidence of the intention of the parties. When a
duplicate is destroyed, for example, in the case of a will, it is
presumed. both are intended to be destroyed; but this
presumption possesses greater or less force) owing to
circumstances. When only one of the duplicates is in the
possession of the testator, the destruction of that is a strong
presumption of an intent to revoke both; but if he possessed
both, and destroys but one, it is weaker; when he alters one,
and afterwards destroys it , retaining the other entire, it has
been held that the intention was to revoke both. 1 P. Wms. 346;
13 Ves. 310 but that seems to be doubted. 3 Hagg. Eccl. R. 548.
DUPLICATUM JUS, a twofold or double right. Those words,
according to Bracton, lib. 4, c. 3, signify the same as dreit
dreit, or droit droit, and are applied to a writ of right,
patent, and such other writs of right as are of the same nature,
and do, as it were, flow from it, as the writ of right. Booth on
Real Actions, 87.
DUPLICITY, pleading. Duplicity of pleading consists in
multiplicity of distinct matter to one and the same thing,
whereunto several answers are required. Duplicity may occur in
one and the same pleading. Double pleading consists in alleging,
for one single purpose or object, two or more distinct grounds of
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defence, when one of them would be as effectual in law, as both
or all.
2. This the common law does not allow, because it produces
useless prolixity, and always tends to confusion, and to the
multiplication of issues. Co. Litt. 304, a; Finch's Law, 393.;
3 Bl. Com. 311; Bac. Ab. Pleas, K 1.
3. Duplicity may be in the declaration, or the subsequent
proceedings: Duplicity in the declaration consists in joining,
in one and the same count, different grounds of action, of
different natures, Cro. Car. 20; or of the same nature, 2 Co. 4
a; 1 Saund. 58, n. 1; 2 Ventr. 198; Steph. Pl. 266; to
enforce only a single right of recovery.
4. This is a fault in pleading, only because it tends to
useless prolixity and confusion, and is, therefore, only a fault
in form. The rule forbidding double pleading "extends," according
to Lord Coke, "to pleas perpetual or peremptory, and not to pleas
dilatory; for in their time and place a man may use divers of
them." Co. Litt. 304, a. But by this is not meant that any
dilatory plea way be double, or, in other words, that it way
consist of different matters, or answers to one and the same
thing; but merely that, as there are several kinds or classes of
dilatory pleas, having distinct offices or effects, a defendant
may use "divers of them" successively, (each being in itself
single,) in their proper order. Steph. Pl. App. note 56.
5. The inconveniences which were felt in consequence of this
strictness were remedied by the statute, 4 Ann. c. 16, s. 4,
which provides, that " it shall be lawful for any defendant, or
tenant, in any action or suit, or for any plaintiff in replevin,
in any court of record, with leave of the court to plead as many
several matters thereto as he shall think necessary for his
defence."
6. This provision, or a similar one, is in force, probably, in
most of the states of the American Union.
7. Under this statute, the defendant may, with leave of court,
plead as many different pleas in bar, (each being a single,) as
he may think proper; but although this statute allows the
defendant to plead several distinct and substantive matters of
defence, in several distinct pleas, to the whole, or one and the
same part of the plaintiff's demand; yet, it does not authorize
him to allege more than one, ground of defence in one plea. Each
plea must still be single, as by the rules of the common law.
Lawes, Pl. 131; 1 Chit. Pl. 512.
8. This statute extends only to pleas to the declaration, and
does not embrace replications, rejoinders, nor any of the
subsequent pleadings. Lawes, Pl. 132; 2 chit. Pl. 421; Com.
Dig. Pleader, E 2; Story's Pl. 72, 76; 5 Am. Jur. 260-288.
Vide) generally, 1 Chit. Pl. 230, 512; Steph. Pl. c. 2, s. 3,
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rule 1; Gould on Pl. c. 8, p. 1; Archb. Civ. Pl. 191; Doct.
Pl. 222; 5 John. 240; 8 Vin. Ab. 183; U. S. Dig. Pleading, II.
e and f.
DURANTE. A term equivalent to during, which is used in some law
phrases, as durante absentia, during absence; durante minor
cetate, during minority; durante bene placito, during our good
pleasure.
DURANTE ABSENTIA. When the executor is out of the jurisdiction
of the court or officer to whom belongs the probate of wills and
granting letters of administration, letters of administration
will be granted to another during the absence of the executor;
and the person thus appointed is called the administrator durante
absentia.
DURANTE MINORE AETATE. During the minority.
2. During his minority, an infant can enter into no contract,
except those for his benefit. If he should be appointed an
executor, administration of the estate will be granted, durante
minore &,tate, to another person. 2 Bouv. Inst. n. 1555.
DURESS. An actual or a threatened violence or restraint of a
man's person, contrary to law, to compel him to enter into a
contract, or to discharge one. 1 Fairf. 325.
2. Sir William Blackstone divides duress into two sorts:
First. Duress of imprisonment, where a man actually loses his
liberty. If a man be illegally deprived of his liberty until he
sign and seal a bond, or the like, he may allege this duress, and
avoid the bond. But, if a man be legally imprisoned, and either
to procure his discharge, or on any other fair account, seal a
bond or a deed, this is not by duress of imprisonment, and he is
not at liberty to avoid it. 2 Inst. 482; 3 Caines' R. 168; 6
Mass. R. 511; 1 Lev. 69; 1 Hen. & Munf. 350; 5 Shepl. R. 338.
Where the proceedings at, law are a mere pretext, the instrument
may be avoided. Aleyn, 92; 1 Bl. Com. 136.
3. Second. Duress per minas, which is either for fear of loss
of life, or else for fear of mayhem, or loss of limb,; and this
must be upon a sufficient reason. 1 Bl. Com. 131. In this case, a
man way avoid his own act. Id. Lord Coke enumerates four
instances in which a man may avoid his own act by reason of
menaces: 1st. For fear of loss of life. 2d. Of member. 3d. Of
mayhem. 4th. Of imprisonment. 2 Inst. 483; 2 Roll. Abr. 124 Bac.
Ab. Duress; Id. Murder, A; 2 Str. R. 856 Fost. Cr. Law, 322; 2
St. R. 884 2 Ld. Raym. 1578; Sav. Dr. Rom. §114.
4. In South Carolina, duress of goods, under circumstances of
great hardship, will avoid a contract. 2 Bay R. 211 Bay, R. 470.
But see Hardin, R. 605; 2 Gallis. R. 337.
5. In Louisiana consent to a contract is void if it be produced
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by violence or threats, and the contract is invalid. Civ. Code of
Louis. art. 1844.
6. It is not every degree of violence or any hind of threats,
that will invalidate a contract; they must be such as would
naturally operate on a person of ordinary firmness, and inspire a
just fear of great injury to person, reputation or fortune. The
age, sex, state of health; temper and disposition of the party,
and 0ther circumstances calculated to give greater or less effect
to the violence or threats, must be taken into consideration. Id.
art. 1845. The author of Fleta states the rule of the ancient
common law thus: "Est autem metus praesentis vel futuri periculi
causa mentis trepidatio; est praesertim viri constantis et non
cujuslibet vani hominis vel meticulosi et talis debet esse metus
qui in se contineat, mortis periculum, vel corporis cruciatura."
7. A contract by violence or threats, is void, although the
party in whose favor the contract is made, and not exercise the
violence or make the threats, and although he were ignorant of
them. Id. 1846.
8. Violence or threats are cause of nullity, not only where
they are exercised on the contracting party, but when the wife,
the hushand, the descendants or ascendants of the party are the
object of them. Id. 1847. Fleta adds on this subject: "et
exceptionem habet si sibi ipsi inferatur vis et metus verumetiam
si vis ut filio vel filiae, patri vel fratri, vel sorori et ahis
domesticis et propinquis."
9. If the violence used be only a legal constraint, or the
threats only of doing that which the party using them had a right
to do, they shall not invalidate the contract A just and legal
imprisonment, or threats of any measure authorized by law, and
the circumstances of the case, are of this description. Id. 1850.
See Norris Peake's Evid. 440, and the cases cited also, 6 Mass.
Rep. 506, for the general rule at common law.
10. But the mere forms of law to cover coercive proceedings for
an unjust and illegal cause, if used or threatened in order to
procure the assent to a contract, will invalidate it; an arrest
without cause of action, or a demand of bail in an unreasonable
sum, or threat of such proceeding, by this rule invalidate a
contract made under their pressure. Id. 1851.
11. All the above, articles relate to cases where there may be
some other motive besides the violence or threats for making the
contract. When, however, there is no other cause for making the
contract, any threats, even of slight injury, will invalidate it.
Id. 1853. Vide, generally, 2 Watts, 167; 1 Bailey, 84; 6 Mass.
511; 6 N. H. Rep. 508; 2 Gallis. R. 337.
DUTIES. In its most enlarged sense, this word is nearly
equivalent to taxes, embracing all impositions or charges levied
on persons or things; in its more restrained sense, it is often
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used as equivalent to customs, (q. v.) or imposts. (q. v.) Story,
Const. §949. Vide, for the rate of duties payable on goods and
merchandise, Gord. Dig. B. 7, t. 1, c. 1; Story's L. U. S.
Index, h. t.
DUTY, natural law. A human action which is, exactly conformable
to the laws which require us to obey them.
2. It differs from a legal obligation, because a duty cannot
always be enforeed by the law; it is our duty, for example, to
be temperate in eating, but we are under no legal obligation to
be so; we ought to love our neighbors, but no law obliges us to
love them.
3. Duties may be considered in the relation of man towards God,
towards himself, and towards mankind. 1. We are bound to obey the
will of God as far as we are able to discover it, because he is
the sovereign Lord of the universe who made and governs all
things by his almighty power, and infinite wisdom. The general
name of this duty is piety: which consists in entertaining just
opinions concerning him, and partly in such affections towards
him, and such, worship of him, as is suitable to these opinions.
4. - 2. A man has a duty to perform towards himself; he is
bound by the law of nature to protect his life and his limbs; it
is his duty, too, to avoid all intemperance in eating and
drinking, and in the unlawful gratification of all his other
appetites.
5. - 3. He has duties to perform towards others. He is bound to
do to others the same justice which he would have a right to
expect them to do to him.
DWELLING: HOUSE. A building inhabited by man. A mansion. (q.
v.)
2. A part of a house is, in one sense, a dwelling house; for
example, where two or more persons rent of the owner different
parts of a house, so as to have among them the whole house, and
the owner does not reserve or occupy any part, the separate
portion of each will, in cases of burglary, be considered the
dwelling house of each. 1 Mood. Cr. bas. 23.
3. At common law, in cases of burglary, under the term dwelling
house are included the out-houses within the curtilage or common
fence with the dwelling house. 3 Inst. 64; 4 Bl. Com. 225; and
vide Russ & Ry. Cr. Cas. 170; Id. 186; 16 Mass. 105; 16 John.
203; 18 John. 115; 4 Call, 109; 1 Moody, Cr. Cas. 274;
Burglary; Door; House; Jail; Mansion.
DYING DECLARATIONS. When a man has received a mortal wound or
other injury, by which he is in imminent danger of dying, and
believes that he must die, and afterwards does die, the
statements he makes as to the manner in which he received such
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injury, and the person who committed it, are called his dying
declarations.
2. These declarations are received in evidence against the
person thus accused, on the ground that the party making them can
have no motive but to tell the truth. The following lines have
been put into the mouth of such a man:
Have I not hideous Death before my view,
Retaining but a quantity of life,
Which bleeds away, even as a form of wax
Resolveth from his figure 'gainst the fire ?
What in the world should make me now deceive,
Since I must lose the use of all deceit?
Why then should I be false, since it is true
That I must die here, and live hence by truth.
See Death; Deathbed or dying declarations; Declarations.
DYNASTY. A succession of kings in the same line or family;
government; sovereignty.
DYSNOMY. Bad legislation; the enactment of bad laws.
DYSPEPSIA, med. jur., contracts. A state of the stomach in
which its functions are disturbed, without the presence of other
diseases; or when, if other diseases are present, they are of
minor importance. Dunglison's Med. Dict. h. t.
2. Dyspepsia is not, in general, considered as a disease which
tends to shorten life, so as to make a life uninsurable; unless
the complaint has become organic dyspepsia, or was of such a
degree at the time of the insurance, as, by its excess, to tend
to shorten life. 4 Taunt. 763.
DYVOUR, Scotch law. A bankrupt.
DYVOUR'S HABIT. Scotch law. A habit which debtors, who are set
free on a cessio bonorum, are obliged to wear, unless in the
summons and process of cessio, it be libelled, sustained, and
proved that the bankruptcy proceeds from misfortune. And
bankrupts are condemned to submit to the habit, even where no
suspicion of fraud lies against them, if they have been dealers
in an illicit trade. Ersk. Pr. L. Scot. 4, 3, 13. This practice
was bottomed on that of the Roman civil law, which Filangierl
says is better fitted to excite laughter than compassion. He
adds: " Si conduce il debitore vicino ad una colonna a quest
officio destinata, egli l'abbraccia nel mentre, che uno araldo
grida Cedo bonis ed un al tro gli abza le vesti, e palesa agli
spettatori le sue natiche. Finita questa ceremonia il debitore
messo in liberta." Filangieri della legislazione, cap. iv.
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