Gambar halaman

and the sums paid on account of each, al- , fluous, but would apply to one who had been though it does not state specifically each item imprisoned for a debt and admitted to the of the sum thus expended. State v. Wash- liberties of the prison on bond. Sedgwick v. ington County Com’rs, 47 N. E. 565, 668, 56 Knibloe, 16 Conn. 219, 222. Ohio St. 631.

As withholding possession

In a declaration in detinue, "detain" DETAIN.

means that defendant withholds the goods Hold equivalent, see "Hold."

and prevents plaintiff from having posses

sion of them. Clements v. Flight, 16 Mees. Gen. St. art. 4, c. 29, $ 9, providing that & W. 42, 49. whoever shall unlawfully take or detain any

There was a detention where a person woman against her will with intent to have carnal knowledge of her shall be guilty of a and refused to deliver them on demand, for

was in possession of slaves, and so continued, felony, should be construed to include the which detinue would lie. Tunstall v. McClelact of a man who goes into the room of a land, 4 Ky: (1 Bibb) 186. sleeping girl, removes the bedclothes, and exposes her person and his, without awakening her. Malone v. Commonwealth, 15 S. W. DETAINER. 856, 91 Ky, 307.

See “Forcible Entry and Detainer"; "UnTo take the crutch of a crippled girl, or lawful Detainer.” to hold her by the hand, while pleading with her for carnal knowledge, is a “detention,”

DETAINMENT, within the meaning of Ky. St. $ 1158, creating the offense of detaining a woman against The words “arrest, restraint, and deher will with intent to bave carnal knowledge tainment of all kings," in a marine policy of her. Paynter v. Commonwealth (Ky.) 55 insuring against arrest, restraint, and deS. W. 687, 688.

tainment of all kings, covers a loss caused

by a vessel being unable to enter her port Code, $ 179, authorizing the arrest of de- of destination by reason of a blockade, fendant on execution in an action for wrong, though she proceeds to other ports without ful taking, detaining, or converting property, attempting to enter the blockaded port. ho to be construed as wrongfully taking, de Schmidt v. United Ins. Co. (N. Y.) 1 Johns. taining, or converting personal property, and 249, 262, 3 Am. Dec. 319. does not apply to real property. Merritt v. Carpenter, *41 N. Y. (2 Keyes) 462, 466, 33 The "restraints and detainment of all How. Prac. 428, 432.

kings, princes, or people," within the mean

ing of a clause of a marine policy in referPost-Office Law, $ 21 (4 Stat. 107), de

ence to the liabilities of the parties in case claring that if any person employed in the of restraints and detainment of all kings, post-office department shall unlawfully detain any letter be shall be punished, etc., the sovereign power by an exercise of the

princes, or people, mean the operations of means letters which are in transit and have vis major in its sovereign capacity, controlnot reached their place of destination. Letters deposited in the post office to be forward-ling or devesting for the time the dominion

or authority of the owner over a ship, and ed, or handed to the mail carrier on his route

not proceedings of a mere civil nature to between post offices, come within the provi- enforce the private rights claimed under the sion. United States v. Pearce (U. S.) 27 Fed.

owner for services actually rendered in a Cas. 480, 481.

preservation of his property. They do not A party who has purposely taken the include the mere detention of an officer in property of another, or who, having obtain- admiralty proceedings. Bradlie v. Maryland ed possession lawfully, refuses to restore it Ins. Co., 37 U. S. (12 Pet.) 378, 402, 9 L. Ed. to the owner, does, in contemplation of law

1123. and in fact, detain it, even after he has de

“Arrest, restraints, and detainments of livered it to another who has no more right kings, princes, or peoples,” within the meanto the possession than he has. Drake v. ing of a marine policy on a cargo of slaves Wakefield (N. Y.) 11 How. Prac. 106, 110.

against such arrest, restraints, and detain

ments, includes the issuing of a writ of Imprison distinguished.

habeas corpus by a judicial officer of a Detained,” as used in Act 1842, declar- government within the control of which the ing that no person shall be arrested, held to vessel is driven by stress of weather, which bail, detained, or imprisoned on process, results in the slaves being taken from the mesne or final, founded on any contract, ex- | vessel and set at liberty. Simpson v. Charpress or implied, is not without meaning, and leston Fire & Marine Ins. Co. (S. C.) Dud, cannot be expunged from the act as super- | 239, 242.

3 WDS. & P.-3




property is either simply held as a hostage,

as it were, for the payment of ransom, or for See "Private Detective"; "Public Detec- the purpose and as a means of obtaining tive."

some ulterior object, such as for the suspen

sion of commerce with a port by embargo Detective" is defined by Webster as a

or blockade, which detains a vessel in that person fitted for or skilled in detecting; em- port, or for the exercise of the right of ployed in detecting, as a police detective; search. Murray V. Receivers of Harmony a policeman whose business it is to detect Fire & Marine Ins. Co. (N. Y.) 58 Barb. 9, 15. rogues by adroitly investigating their haunts and habits. The literal thing understood by Sup. Ct. Rule 29, requiring, on appeal or the word "detective" in common affairs is in proceedings in error, indemnity in a person who is able and has the facilities amount sufficient to secure the sum recorto detect criminals with a skill not possessed ered for the “use and detention" of the by nonprofessionals. The word "detect," as property, means sum recovered in the origidefined by Webster, is to uncover; to find nal judgment or decree, such as damages out; to bring to light; as, to detect a crime, and mesne profits in ejectment, damages in a criminal, or his hiding place. Its synonyms dower and replevin, etc., and does not conare “to uncover; to find out; lay open; ex- template security for the use and detention pose.” The occupation of detective does not of the property pending the appeal. Omaha imply, however, that the detective is en- Hotel Co. v. Kountze, 2 Sup. Ct. 911, 925, gaged in a sneaking and prying business, and 107 U. S. 378, 27 L. Ed. 609. therefore a charge to such effect is libelous. Byrnes v. Mathews, 12 N. Y. St. Rep. 74, 81.

DETER. Authority to make arrests.

Under a statute providing that, if a de “Detective” has no such settled signifi- fendant has been guilty of fraud by which cance attached to it as of necessity imports plaintiff has been debarred or deterred from authority to arrest criminals or persons char- his action, the period of limitations shall ged or suspected of committing criminal acts, I only run from the time of the discovery of so that, without proof of authority by the the fraud, by the term “deter" is meant to employer of a detective authorizing him to discourage or stop by fear; to stop from actmake arrests, the making of such arrest did ing or proceeding by danger, difficulty, or not come within the scope of authority of a other consideration which disheartens or detective, and the master is not liable. Pen- countervails the motive for the act. Printup ny v. New York Cent. & H. R. R. Co., 53 v. Alexander, 69 Ga. 553, 556. N. Y. Supp. 1043, 1045, 34 App. Div. 10.


"Detergent" means cleansing, and, as A charter party providing for a certain used in a specification in a patent for cerrate of demurrage for each day of “detention tain soap, was synonymous with the word by default of the charterers” cannot be con- "soap.” since a “detergent soap” is a cleans strued to mean the mere lapse of time, for ing soap, it being of the nature of soap to be such lapse was not necessarily a default.

detergent or cleansing. Buckan v. McKesDavis v. Pendergast (U. S.) 7 Fed. Cas. 159, son (U. S.) 7 Fed. 100, 103. 160. In a marine insurance policy providing

DETERMINABLE FEE. that in case of capture or detention of the vessel the assured should not have a right

See, also, “Base Fee.” to abandon therefor until proof should be exhibited of a condemnation on notice of a continuance of the detention at least 90 days, all fees which are liable to be determined

The term “determinable fee" embraces “detention” means an illegal arrest, seizure, by some act or event, expressed in their etc., such as the underwriters were answer limitation to circumscribe their continuance, able for, by the general terms of the policy, or inferred by law as bounding their extent. but could not be construed to extend or Greer v. Wilson, 9 N. E. 284, 287, 108 Ind. enlarge the risk of the underwriters to cases 322; McLane v. Bovee, 35 Wis. 27, 36; Vannot provided for or covered by the words in the body of the policy. Archibald v. Mer- tongeren v. Heffernan, 38 N. W. 52, 73, 5

Dak. 180; Jamaica Pond Aqueduct Corp. v. cantile Ins. Co., 20 Mass. (3 Pick.) 70, 74.

Chandler, 91 Mass. (9 Allen) 159, 168; Weed The word “detention," as used in a ma v. Woods, 53 Atl. 1024, 1026, 71 N. H. 581 rine policy warranting against any loss on (citing First Universalist Soc. v. Boland, 155 account of capture or detention by any bel- Mass. 171, 29 N. E. 524, 15 L. R. A. 231). ligerent nation, arises when there is no in. Thus, where the commissioner of the General tention to appropriate, and in fact no appro- Land Office has authority to cancel a prepriation to the detainer's use, but where the emption certificate for cause at any time be

[ocr errors][ocr errors]

fore patent issue, there was a limitation on used for a county site for the courthouse, the fee, and its determinable quality is in- jail, and clerk's office, but shall revert to ferred by law within such definition. Van- the grantor if the county ceases to use it tongeren v. Heffernan, 38 N. W. 52, 73, 5 for such purpose. Gillespie v. Broas (N. Y.) Dak. 180.

23 Barb. 370, 381. If land is given to a man and his heirs "as long as he shall pay 70 shillings annually DETERMINATION. $0 A.," or "as long as the church of St. Paul's sball stand," his estate is fee simple See "Actual Determination"; "Final De. determinable, in which case he has the whole

termination"; "Judicial Determinaestate in him, and such perpetuity of the es tion." tate which may continue forever, though at the same time there is a contingency which, The expression "a determination in the when it happens, will determine the estate. trial court” obviously includes a decision of Plowd. 557. United States Pipe Line Co. v. the court upon a trial without a jury, but, Delaware, L. & W. R. Co., 41 Atl. 759, 762, according to common parlance and the gen62 N. J. Law, 254, 42 L. R. A.

eral understanding, would not include the A determinable fee is an estate which it would be a peculiar, if not an unprece

verdict of a jury. Code Civ. Proc. $ 3343. may be perpetual, or may be determined dented, definition to describe the verdict of by the death of the intestate without surviv- a jury as a determination in a trial court. ing lawful issue, and without previous alien- Henavie v. New York Cent. & H. R. R. Co., ation of the land limited over to beneficiaries 48 N. E. 525, 527, 154 N. Y. 278. mentioned. One of the peculiarities of a fee determinable is that it may become a fee In Code 1874, § 1010, providing that the simple absolute on the happening of any attorney in an action, suit, or proceeding event which renders impossible the event or may be changed at any time before judg. combination of events on which such estate ment or decree or final determination, the is to end. An example given of such deter- words "action," "suit,” and “proceeding" are minable fee is where an estate is granted referred to distributively. Each has its peto a man and his heirs until the marriage culiar meaning, and the words “judgment,” of B. Friedman v. Steiner, 107 Ill. 125, 131. “decree,” and “determination” apply equally


A qualified, base, or determinable fee is to each. Thus, judgment is the final result an interest which may continue forever, but of proceeding. Shirley v. Birch, 18 Pac. 344,

of action, decree of suit, and determination is liable to be determined by some act or

345, 16 Or, 1. event circumscribing its continuance or extent. People v. White (N. Y.) 11 Barb. 26, Rev. St. p. 339, $ 77, relating to plead28 (citing 1 Rev. St. 722; 4 Kent Comm. 4, ing a judgment or determination, means the note d; Id., 9; 5 T. R. 107).

judgment or determination of a court or A determinable fee is such a one as has officer of special jurisdiction, and none other. a qualification subjoined thereto, and it must Karns v. Kunkle, 2 Minn. 313, 317 (Gil. 268, be determined whenever the qualification an

nexed to it is at an end. Wiggins Ferry
Co. v. Ohio & M. Ry. Co., 94 Ill. 83. Tes-

Absence of overpowering passion im

tator's will provided that at the death of tes-
tator's wife the estate should go to and be

The expressions “premeditation," "de-
divided amongst testator's children and their liberation,” “design,” "determination,” dis-
descendants. The interest which vested at tinctly formed in the mind, used in the
the death of testator was not a base or de charge of a prosecution for murder, all im-
terminable fee, subject to be devested as to ply the absence of overpowering passion.
any devisee by the death of such devisee dur- State v. Ah Mook, 12 Nev. 369, 381.
ing the continuance of the life estate, with-
out leaving descendants to take after the

Deliberation implied.
death of the widow of the testator. Knight The words "a design, a determination,
V. Pottgieser, 52 N. E. 934, 936, 176 Ill. 368. to kill, distinctly formed in the mind” in an
A fee is determinable where its contin- they mean a great deal more than the simple

instruction, imply deliberation. "Certainly uance is limited in some manner, as where

impulse to slay which characterizes manlands are given to a man and his heirs as long as another man shall have heirs of his slaughter. The word 'determination' in this body. Richardson v. Noyes, 2 Mass. 56, 63, in fact, it has no technical sense in which

instruction is not used in any technical sense; 3 Am. Dec. 24.

it means less than it does in its popular The term "determinable fee" includes signification. Webster defines it to be a the interest acquired by a county in real es- 'decision of a question in the mind; frm resotate conveyed by a deed providing that the lution; settled purpose.' Can it be said that conveyance is for the use of the people of a question can be decided, a wavering resothe county as long as the premises shall be lution made firm, or a hesitating purpose set





tled without deliberation ? State 1. Ah Become void distingaished. Mook, 12 Nev. 369, 390.

The word “determined," as used in Act

Jan. 31, 1811 (4 Litt. 218), for the better regDETERMINE.

ulation of the proceedings in caveats, and

providing that no grant should issue to the See “Finally Determine"; "Fully Deter- plaintiff in any caveat entered or to be enmined"; "Hear and Determine."

tered so as to include the land, or any part

thereof, within the survey against which The verb “determine" is thus defined: such caveat is or may be entered, until such To fix all boundaries of; to mark off; to caveat shall be dismissed, decided, or deterseparate; to set bounds to; to fix the deter- mined, is generic in its nature, and compremination of; to limit; to bound; to bring to hends every mode of terminating or bringing an end; to fix the form or character of; to a thing to an end, though it clearly imports shape; to regulate; to settle; to prescribe im- simply that the thing has been terminated or peratively; to ascertain definitely; to bring to brought to an end. It is not a convertible a conclusion; to settle by judicial sentence; phrase with “to become void," but the latter to decide. McCormick v. State, 42 Neb. 866, differs from the former only as a species dif868, 61 N. W. 99.

fers from its genus, and must, therefore, be

included in it; for to say that a thing has The word “determined," in a contract

become void is that it has in effect been terfor booming logs, providing that defendant's minated or brought to an end, but the expresportion of the net expense of booming and of sion applies only to its end or termination in the 10 per cent of the net cost is to be deter-one specific mode. Sharp v. Curds, 7 Ky. (4 mined by the proportion which logs bear to

Bibb) 547. the whole amount of logs handled, means simply ascertained or computed. It does not

As conferring power to set aside imply any mutual action or agreement by the

abolish. parties. Rumford Falls Boom Co. v. Rumford Falls Paper Co., 51 Atl. 810, 812, 96 Me.

The words “adjudge, determine, and 96.

award," as used by arbitrators in their

award, do not necessarily carry with them Within the statute giving police commis- the idea of a judgment according to law, so sioners power to appoint a chief of police as to enable one of the parties to have the for such time as the board shall determine, award set aside for errors of law. Patton v. “determine" means to fix, settle, or decide Garrett, 21 S. E. 679, 682, 116 N. C. 847. what that term shall be. In this relation it becomes a time necessarily prospective and The word “determine," as used in Laws future. The clear intent of the command is 1898, c. 182, § 177, giving the common council that the board shall annex to the appoint of cities of the second class authority to dement a time, term, or period through whose termine the number of members of the police duration the consequent duties, privileges, department, is defined to mean “to fix or and emoluments are to remain with the ap- settle definitely; make specific or certain; to pointee. State v. Police Com’rs, 14 Mo. App. decide the state or character of” (Cent. Dict.); 297, 303.

"to fix the form or character of; to shape; “Determine,” as used in the statute ap- settle; to decide” (Webst. Dict.). “I am of

to prescribe imperatively; to regulate; to pointing commissioners in eminent domain proceedings to determine the compensation be given the meaning 'to abolish,' and the

the opinion that the word 'determine' cannot of the landowners, means to perform a judicial act limited to fixing the compensation;

Legislature, by giving the power to the comand as no human tribunal is able to determine mon council to determine the number of memjudicially what the future value will be in bers of the police department, did not give it some future period of time, it depending on

the power to abolish station house keepers." contingencies which are known to God alone, People v. Ham, 66 N. Y. Supp. 264, 266, 32 the commissioners are limited to determine

Misc. Rep. 517. what is the present value, and at such point their functions cease, and they are in no

Declaration of determination implied. manner to be influenced by the future value. An agreement that a certain number of New Jersey R. & Transp. Co. v. Suydam, 17 shares shall be voted in a block, and that the N. J. Law (2 Har.) 25, 47.

way it should be voted should be determined

by ballot, means to ascertain the result by As assess and levy.

balloting on a proposition by those entitled The word “determine,” in Rev. St. 1881, to cast the ballots, and by necessary implica§ 3348, requiring that the amount of general tion declares that such vote should be cast taxes shall be determined by incorporated in accordance with the result of the ballot. towns before the third Tuesday of May, Smith v. San Francisco & N. P. Ry. Co., 47 means to assess and levy the tax. Worley v. Pac. 582, 587, 115 Cal. 584, 35 L R. A. 309, Harris, 82 Ind. 493, 497.

56 Am. St Rep. 119.

In a statute providing that the board of, was justly due if the account had been preeducation shall determine the studies to be sented for any other proper county charge. pursued, “determine” means something more Fulkerth v. Stanislaus County, 7 Pac. 754, than investigating and arriving at a conclu- 755, 67 Cal. 334. sion by mental process, though these are em

In Greater New York Charter, $ 86, probraced. Official action is contemplated and required to give a practical effect to the viding that, if a riparian owner apply to the word, and the injunction to do this is manda- land commissioners for a grant of the soil tory upon the board; and, in order that those under water, the board of docks shall deterwho must obey should know the will of the mine whether it will conflict with the public board, it is necessary that it should be de interests, and report their conclusions to the clared in such a way that it may be known. commissioners, “determine” cannot be conState v. Board of Education, 1 Pac. 844, 847, sfrued to mean “finally determined,” and 18 Nev. 173; State v. Board of Education, 35 therefore the right is merely advisory to the Ohio St. 368, 384.

commissioners of the land office. The right

to determine, as given by the charter, is not As end.

to determine whether the grant shall issue,

but to determine whether the issue of the Laws 1860, c. 260, $ 10, cl. 1, authorizing grant will conflict with the rights of the city an appeal from an order which, in effect, "de

or be otherwise prejudicial to its interest. termines the action,” held, that such term People v. Woodruff, 68 N. Y. Supp. 10, 12, 57 properly includes an order denying the appli

App. Div. 273. cation for a change of venue properly made, since such application devests the court of

As prescribe. any authority to proceed with the case; and, having no authority to proceed, if it refuses

The distinction between the words "de. to change the venue, the action would be determine” and “prescribe” is far from clear. termined unless an appeal is taken therefrom. Mr. Webster defines "prescribe” thus: “To Western Bank v. Tallman, 15 Wis. 92.

set down authoritatively; to order; to direct;

to dictate; to appoint;" while he defines "deFinality implied.

termine" thus: “To fix permanently; to set“Determine,” as used in Act July 27, and to fix permanently or to settle, do not ad

tle; to adjust." To set down authoritatively, 1866, $ 13, providing that the directors of a mit of a wide distinction. Const. art. 6, § 8, certain railroad company should from time to time fix, determine, and regulate the fares, ceive such compensation as may be “pre

provides that the Attorney General shall retolls, and charges to be received and paid scribed” by law. for transportation of persons and property, that the salary of the secretary, treasurer,

Article 4, § 12, provides does not imply that the action designated by and auditor of the state shall be “determined" the word should be final, and therefore ex: by law. It was held in construing the statempt from government supervision. Atlantic utes that the words “determine” and “pre& P. R. Co. v. United States (U. S.) 76 Fed. scribe” do not admit of a wide distinction, 186, 193.

and that the salary of the Attorney General A submission to a referee authorizing could be reduced during his term of office. him to hear and determine, without any con- "If the framers of our Constitution had indition or limitation, any matter of law or tended to provide that the salary of the Atmatter of fact, should be construed as author- torney General should not be diminished durizing the referee to decide all questions of ing his term of office, it may be reasonably law or of fact arising in the hearing of the argued that they would have so provided in cause, and to give a final determination of that instrument in plain terms; for by the the controversy. By the submission of the twenty-second section of the same article it parties to his judgment he is constituted a is provided, as to the salary of the judges, court of competent jurisdiction to decide finals that the judges shall receive such salary and ly and in the last resort the rights of the par- allowances as may be determined by law, ties, and his award can no more be disturbed the amount of which shall not be diminished than the judgment of any other court of com- during their term of office. Here they inpetent jurisdiction in which no appeal is tended that the salary should be fixed before. given. Cutler v. Wall, 9 R. I. 264.

hand, and not altered; and they do not use

the word 'prescribe,' but the word 'deterThe provision in Pen. Code, § 1611, that mine,' as had been used as to state officers. the board of supervisors shall have power to But while the word 'prescribe' is used as to "determine what is a reasonable compensa- the salary of the Attorney General, the same tion" to be allowed the sheriff for providing word is employed a few lines above in speakall persons committed to the jail by compe- ing of the compensation and tenure of office tent authority with necessary food, clothing, of the officers of this commonwealth. The and bedding, is equivalent to “find what is use of the word 'prescribe' cannot be conjustly due," and the determination of the strued to mean settled beforehand in such board is no more final than would have been sense as not to leave in the General Assemthe finding by the board of the amount which bly the power to change the compensation

« SebelumnyaLanjutkan »