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during the term." Field v. Auditor, 3 S. E. | proceeding in replevin which was not com707, 710, 83 Va. 882.

As be suspended.

A policy of life insurance providing that, if the premium was not paid on the days named and in the lifetime of the insured, the policy should "cease and determine," should be construed as meaning that it is suspended; that it ceases to bind the company and to protect the assured without any act or declaration on the part of the company. It does not require a formal forfeiture. It is voidable at the election of the company, and that election can be exercised without notice to the assured for the reason that the policy itself is notice that his rights cease with the nonpayment of the premium. As to him it is a dead policy. Lantz v. Vermont Life Ins. Co., 21 Atl. 80, 82, 139 Pa. 546, 10 L. R. A. 577, 23 Am. St. Rep. 202.

As try.

The words "receive, hear, and determine." in Act March 3, 1803, c. 93, § 2, authorizing appeals from the District Courts of the United States to the Circuit Court, and requiring the Circuit Court to receive, hear, and determine such appeals, do not authorize a retrial by jury of a cause which has been tried by jury in the District Court. United States v. Wonson (U. S.) 28 Fed. Cas. 745, 749.

The power to hear and determine is an essential ingredient of original jurisdiction, and the authority to examine and correct errors is the distinguishing characteristic of appellate power. To hear and determine a criminal case is to proceed, after bill found, to try the issues of fact and pass sentence. Commonwealth v. Simpson (Pa.) 2 Grant, Cas. 438, 439 (citing 4 Bl. Comm. 270).

menced by writ requiring the proper officer to cause the goods to be replevied to him or by plaint in the sheriff's court, the immediate process upon which is a precept to replevy the goods of the party levying the plaint, both of which proceedings are in rem—that is, to have the goods again. St. Martin v. Desnoyer, 1 Minn. 41, 43 (Gil. 25, 28).

DETINUE.

Detinue is a form of action for the re

covery in specie of goods taken by wrongfully withholding for value at the time the property is found and decided to be that of the plaintiff. Penny v. Davis, 42 Ky. (3 B. Mon.) 313, 314.

"In order to ground an action of detinue, these points are necessary: First, that the defendant came lawfully into possession of the goods, as either by delivery to him or by finding them; second, that the plaintiff have a property in them; third, that the goods themselves be of some value; fourth, that they be ascertained in point of identity." Jac. Law Dict. tit. "Detinue." This form of action, and the mode of pleading adapted to it, no longer exist, but the remedy is afforded under a modified form remaining the same. The judgment must still be in the alternative, and the plaintiff cannot elect to have it rendered either for the amount or value of the property. The same rule remains as to the description of the property to be recovered, except so far as reason and justice have served to relax it. The thing must be identified with reasonable certainty. Guille v. Fook, 13 Or. 577, 584, 11 Pac. 277, 280.

It was once a doctrine that detinue would not lie where the goods had been taken from the plaintiff's possession tortiously; but that doctrine may be considered as exploded. Overfield v. Bullitt, 1 Mo. 749, 750; "Determining on the killing beforehand," Pierce v. Hill (Ala.) 9 Port. 151, 154, 33 Am.

DETERMINE BEFOREHAND.

as used in an instruction that if defendant purposely killed the deceased, and the killing was determined on beforehand, even a moment before the fatal blow was struck, the defendant is guilty of murder in the first degree, will be construed as being equivalent to an allegation of premeditation. Ragsdale v. Meridian Land & Industrial Co., 14 South. 193, 195, 71 Miss. 284.

DETINET-DETINETIS.

The action of replevin formerly was said to be of two sorts, namely, "in the detinet" or "detinetis"—the former, where the goods are still detained by the person who took them, to recover the value thereof and damages, and the latter, as the word imports, where the goods have been delivered to the party. But the former is now obsolete, and there does not appear in any of the books any

Dec. 306.

"Detinue" is a mode of action given for the recovery of a specific thing and damages for its detention. Though judgment is also rendered in favor of the plaintiff for the alternate value, provided the thing cannot be had, yet the recovery of the thing itself is the main object and inducement to the allowing of the action. The action is not adapted to the recovery alone of the value of the thing detained, nor can it be maintained therefor. Sinnott v. Feiock, 59 N. E. 265, 267, 165 N. Y. 444, 53 L. R. A. 565, 80 Am. St. Rep. 736 (citing Caldwell v. Fenwick, 32 Ky. [2 Dana]

333).

A person having no beneficial interest, but only a special property, in a chattel, may maintain detinue for it, and should, if he recover, have a judgment in the alternative for the entire value of the absolute property,

Detriment is a loss or harm suffered in person or property. Civ. Code Mont. 1895, § 4271; Civ. Code S. D. 1903, § 2287; Rev. St. Okl. 1903, § 2724.

because a bailee may, in consequence of the DETRIMENT.
privity of contract, be entitled to restitution
from possession of a stranger, and because a
recovery and acceptance of the assessed val-
ue by the bailee is for the bailor, and would
bar an action by him for the same, or
any subsequent detention; but the enforce-
ment of a judgment for value in favor of
a person owning a limited general proper-
ty, as for life or years, would not bar an
action, by the person entitled to the remain-
der, for a detention by the same party,
the expiration of the estate for life or years;
nor would it transfer any other or greater
interest in the property than that of the
owner of the limited estate. Glascock v.
Hays, 34 Ky. (4 Dana) 58, 60.

after

Detinue is an action at common law for

Sess. Laws 1862, p. 48, § 13, prohibiting of any miner or others along the line of said the diversion of any stream to the detriment stream, is to be construed as meaning a detriment immediately resulting from such diversion, and does not include a detriment

to subsequent settlers. Coffin v. Left Hand Ditch Co., 6 Colo. 443, 451.

DETRITUS.

The word "detritus" is used in the mining law to designate that superficial deposit

on the earth's surface which is movable, as
contrasted with the immovable mass that
lies below.
Stevens v. Williams (U. S.) 23

Fed. Cas. 44.

the recovery of a particular chattel, or, in the
alternative, its value. The writ is framed
for, and its precise purpose is to recover, the
article in specie, and where this is impossible
at the time the action was brought, so that
the object of the writ cannot be accomplish-
ed, the action will not lie. Thus, if the chat-
tel has been destroyed or has died before ac- DEVASTAVIT.
tion brought, the suit must be dismissed.
Lindsey v. Perry, 1 Ala. 203; Caldwell v.
Fenwick, 32 Ky. (2 Dana) 332. But where a
slave sued for in detinue died pending the ac-
tion, a judgment for the slave or for its
value was properly rendered against the de-
fendant after such death. White v. Ross
(Ala.) 5 Stew. & P. 123.

Replevin distinguished.

Detinue is an action ex delicto, and is for the most part superseded by replevin. It is preferable to replevin where the plaintiff is indifferent whether he recover the goods or the value (1 Poe, Pl. §§ 152, 156, 301). The difference resulting from the form of allegation in replevin is that, where the declaration is in the detinuit, the plaintiff, if he recovers, has adjudged to him the right of possession of the goods and chattels, and damages for their detention only, but, where the declaration is in the detinet, the plaintiff, if he be entitled to recover, is entitled to have awarded him as well the value of the goods as damages for their detention. Brown v. Ravenscraft, 44 Atl. 170, 173, 88 Md. 216 (quoting from Benesch v. Weil, 69 Md. 276, 279, 14 Atl. 666).

Trover distinguished.

The action of detinue lies for the re covery of the property itself, with damages for the wrongful detention of it, while the action of trover lies for the recovery of damages for the wrongful conversion of the property. Richards v. Morey, 65 Pac. 886, 887, 133 Cal. 437.

DETRACTION, DUTIES OF.

See "Duties of Detraction."

Devastavit is a loss suffered to the estate of a deceased person by the negligence of the executor or administrator. Fox v. Thomas v. Riegel (Pa.) 5 Rawle, 266, 282. Wilcocks (Pa.) 1 Bin. 194, 2 Am. Dec. 433;

Devastavit is the mismanagement of the estate of a deceased person in squandering and misapplying assets contrary to the duty imposed on the executor or administrator. Clift v. White, 12 N. Y. (2 Kern.) 519, 531; Ridgway v. Kerfoot, 22 Mo. App. 661, 664. Where executors transfer personalty to legatees, leaving claims against the estate unprovided for, they are personally liable therefor as for a devastavit. In re Oosterhoudt's Estate, 38 N. Y. Supp. 179, 182, 15 Misc. Rep. 566.

A devastavit occurs whenever an

ex

ecutor or administrator wastes the estate, and consists of any act, omission, or mismanagement by which the estate suffers loss; or it may result from the payment of claims which, by the exercise of proper diligence, the administrator might have ascertained to be unjust and illegal. Beardsley v. Marsteller,

120 Ind. 319, 320, 22 N. E. 315.

Devastavit is any act of omission, negligence, or misconduct on the part of an executor or administrator by which loss occurs to the estate. People v. Pleas (N. Y.) 2 Johns. Cas. 376.

A devastavit is a violation of duty by the executor or administrator such as renders him personally responsible for mischievous consequences, and which the law styles a devastavit-that is, a wasting of the assets; or a mismanagement of the estate and effects of the deceased in squandering and misapplying the assets contrary to the duty im

posed on him. Steel v. Holladay, 25 Pac. | Signal Co. v. Johnson R. Signal Co. (U. S.) 69, 71, 20 Or. 70, 10 L. R. A. 670. 61 Fed. 940, 943, 10 C. C. A. 176; Johnson R. Signal Co. v. Union Switch & Signal Co. (U. S.) 59 Fed. 20, 23.

"Devastavit," as defined by the books and legal lexicographers, is a wasting of the estate; a misapplication of the assets. Howe v. People, 44 Pac. 512, 514, 7 Colo. App. 535.

A devastavit by an executor or administrator is a wasting of the assets, and may consist of any act or omission; every mismanagement by which the estate suffers loss. Ayers v. Lawrence, 59 N. Y. 192, 197.

A "devastavit" results where an administrator purchases the property of the estate of which he is administrator, for himself. Dawes v. Boylston, 9 Mass. 337, 353, 6 Am.

Dec. 72.

As unfolding.

The word "developed," as used in an indictment alleging that it had been "developed" before the grand jury, which was investigating a charge of bribery, that money had been deposited, and that it became

material to the issue to ascertain defendant's knowledge of such money, and the purposes for which it was to be used, did not signify that the fact of the bribery was so fully determined that it would not take testimony to establish it before a petit jury. On the contrary, the word itself, in the connection in which it is used, signifies an unfolding of the crime. State v. Faulkner, 75 S. W. 116, 125, 175 Mo. 546.

See "Colorable Deviation."

As to what constitutes devastavit, 2 Lomax, Ex'rs, p. 475, thus states the law: "An executor or administrator is subjected by law to liability personally for various acts of misconduct, amounting to a violation or neglect of duty, and which is called in DEVIATION. law a 'devastavit' or wasting of the assets. In law, a devastavit is a mismanagement of the estate and the effects of the deceased, in the squandering and misapplying the as"Deviation," as used in St. 8 & 9 Vict. sets contrary to the trust and confidence re- c. 20, § 8, authorizing a railroad company posed in the executors or administrators, for to deviate in taking lands for 100 yards which they shall answer out of their own from its line, as shown on certain plans, is to pockets as far as they have or might have be taken with reference to the line of railhad assets of the deceased." McGlaughlin way only; that is, the line of railway acv. McGlaughlin's Legatees, 43 W. Va. 226, tually laid down shall not deviate more than 238, 27 S. E. 378, 383. 100 yards from the line laid down and delineated in the parliamentary plans. Doe v. North Staffordshire R. Co., 16 Q. B. 526, 537.

Neglect to collect debts.

A neglect to collect a debt due an estate, which might with proper exertion be collected, is a devastavit. In re Sanderson's Estate, 15 Pac. 753, 759, 74 Cal. 199.

Payment of legacies.

Devastavit consists not only of the negligent loss of the assets of an estate by the executor or administrator, but also includes an application of assets in the executor's hands to the payment of legacies and distributive shares after the expiration of a year from the executor's appointment, to the prejudice of a creditor of whose claim he had no notice, without requiring refunding bonds of the legatees or distributees. Swearinger's Ex'r v. Pendleton's Ex'x (Pa.) 4 Serg. & R. 389, 394.

DEVELOP.

A power of attorney, which, in consideration of a prescribed royalty, appointed a party sole agent to "work and develop" the business of such patents, does not give the agent power to grant an exclusive license which would transfer substantially the entire interest in the patent; but it does authorize him to grant nonexclusive licenses to manufacture and sell. Union Switch &

"Alterations, deviations, or additions," within the meaning of a building contract expressly providing for alterations, deviations, or additions, and the payment for them, include extra work on the building; and therefore an order payable out of the amount due on the builder's contract includes the sum due for such extra work. Dunn v. Stokern, 3 Atl. 349, 350, 43 N. J. Eq. (16 Stew.) 401.

DEVIATION (In Marine Insurance).

Deviation, in marine insurance, is a voluntary departure from the usual course of the voyage, which departure is not necessary or excusable. It would seem that the only reason why leaving a course of a voyage can be excused is its proceeding from some hazard insured against, or from a reasonable apprehension of encountering peril. Robinson v. Marine Ins. Co. (N. Y.) 2 Johns. 89, 95; Hostetter v. Park, 11 Sup. Ct. 1, 4, 137 U. S. 30, 34 L. Ed. 568. It is a deviation, and from that time the policy is at an end, and the insurer is discharged from all subsequent responsibility. The liability of the insurer ceases from the commencement of the deviation. It is not a deviation which will discharge the underwriters where the ship is

taken from her direct course by an honest mistake of the master. Brazier v. Clap, 5 Mass. 1, 9. Reade v. Commercial Ins. Co. (N. Y.) 3 Johns. 352, 358, 3 Am. Dec. 495. A "deviation in a voyage," sufficient to avoid a marine policy, means any departure from the usual course of a voyage, or stopping at any place, even in the course of the voyage, which is not permitted by the policy, unless it takes place for some justifiable cause, such as to repair, obtain necessary refreshments, avoid an enemy, or the like. Coles v. Marine Ins. Co. (U. S.) 6 Fed. Cas. 65, 66; Thatcher v. McCulloh (U. S.) 23 Fed. Cas. 891, 893; Hostetter v. Gray (U. S.) 11 Fed. 179, 181; Bond v. The Cora (U. S.) 3 Fed. Cas. 838; Riggin v. Patapsco Ins. Co. (Md.) 7 Har. & J. 279, 288, 16 Am. Dec. 302; Murden v. South Carolina Ins. Co. (S. C.) 1 Mill, Const. 200, 211; Lawrence v. Ocean Ins. Co. (N. Y.) 11 Johns. 241, 266.

1

for saving of ships, goods or mariners, producing uncommon risk, cannot be legal excuses on the part of the insured in policies of insurance which are void for any deviation; such delays being breaches of the implied terms of the contract, by exposing to hazards not originally counted on, foreseen, or in the contemplation of the parties. Ships cruising after prizes incur deviation. All excuses for leaving the course or delays must be from necessity, and not with a view to lucrative objects. Putting into port by stress of weather, to stop a leak, obtain provisions, etc.; going out of the track to avoid an enemy, for convoys or other purposes, for the safety of the ship or goods-being beneficial to the insurers, are justifiable." Warder v. La Belle Creole (U. S.) 29 Fed. Cas. 215, 217.

A master of a vessel is guilty of deviation, so as to render a carrier liable for damages sustained even in an inevitable accident or by the perils of the sea, when, without

Strictly speaking, a "deviation" originally meant only a departure from the course of the voyage, but now it is always under- reasonable anxiety, either physical or moral, stood in the sense of a material departure from or change in the risk insured against, without just cause. Wilkins v. Tobacco Ins. Co., 30 Ohio St. 317, 341, 27 Am. Rep. 455.

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Deviation is the increasing or varying of the risk insured against, without necessity or reasonable cause. The term is not limited merely to an increased risk by the vessel going out of her course, but may be any neglect or procedure on her part which tends to increase the risk. Bell v. Western Marine & Fire Ins. Co. (La.) 5 Rob. 423, 445, 39 Am. Dec. 542.

A deviation is a varying from the route insured against, without necessity or just cause, after the risk has begun; and the effect of a deviation is to discharge the underwriters, whether the risk is enhanced or not. It is not confined to a departure from or going out of the direct or usual course of the voyage, but it comprehends unusual or unnecessary delay, or any act of the assured or his agents which, without necessity or just cause, incurs or changes the risks included in the voyage. Audenreid v. Mercantile Mut. Ins. Co., 60 N. Y. 482, 484, 19 Am. Rep. 204.

"A deviation of a vessel is not merely the unnecessary going out of the track or course usually taken, but it is also a departure from either the express or implied terms of the contract. It needs not much reasoning or discussion to show that delays

he departs from the usual route of vessels between the ports between which his vessel is plying, and thereby encounters the danger resulting in the loss. And such facts being given, the question as to whether there was a deviation or not is a question of law, and proper to be determined by the court. cordingly, where a vessel on a voyage for which the usual track was through Long Island Sound took the outer course, and the only excuse therefor was that the ice was not yet all out of Long Island Sound, and peril

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of thieves in the harbor of New York compelled him to start on the voyage while such obstruction still continued, such change from the usual track constituted a deviation, and rendered the carrier liable for damages sustained in a storm encountered by reason of such change. Crosby v. Fitch, 12 Conn. 410, 420, 31 Am. Dec. 745.

To establish a "deviation," as the term is understood in the law of marine insurance, the fact must appear that the risks insured against were increased or varied without necessary or reasonable cause. When the fact whether the risk was increased or altered depends on a variety of circumstances peculiar to the pursuit in which the vessel was engaged, and the evidence is not decisive to prove the fact, the decision of the question belongs to the jury. Child v. Sun Mut. Ins. Co., 5 N. Y. Super. Ct. (3 Sandf.) 26, 48.

A deviation is a voluntary departure from the vessel's course, without necessary or reasonable cause. There is no rule of admiralty law that the departure of a ship from her course, when required to procure necessary treatment for a sick or injured seaman, invalidates her insurance on the voyage, or that on her cargo. The Iroquois (U. S.) 118 Fed. 1003, 1005, 55 C. C. A. 497.

A "deviation," within the meaning of the term as used in marine insurance policies, which is a defense against loss, etc., is a voluntary and inexcusable departure from the usual course; the question whether such departure amounts to a deviation to be determined as a question of fact from the motive, consequences, and circumstances of the act. Thebaud v. Great Western Ins. Co., 50 N. E. 284, 286, 155 N. Y. 516.

The word "deviation," when isolated, means a departure, reasonable or unreasonable, with or without necessity. The words "with liberty to make deviation," in a bill of lading, give the carrier the right to make only such departures from the voyage as are necessary and reasonable. When used in a contract of marine insurance, the word “deviation" includes only unnecessary and unreasonable departures from the voyage. Swift & Co. v. Furness, Withy & Co. (U. S.)

87 Fed. 345, 348.

The elementary writers define a deviation to be any unnecessary or unexcused departure from the usual course or general mode of carrying on the voyage. Hence, until the voyage commences, there can be no deviation from the usual course of the voyage. Fernandez v. Great Western Ins. Co., 26 N. Y. Super. Ct. (3 Rob.) 457, 475.

Nothing which conforms to the usual voyage of a vessel can be held a deviation. Donnell v. Amoskeag Mfg. Co. (U. S.) 118 Fed. 10, 13, 55 C. C. A. 178.

Avoiding capture.

A departure from the usual course of a voyage in order to avoid capture by an enemy's vessel of war would not amount to a deviation. Post v. Phoenix Ins. Co. (N. Y.) 10 Johns. 79, 83.

A digression from the course of the voyage to avoid an imminent peril of capture or other disaster, necessarily resulting in the entire loss of the ship or cargo, is not a deviation. Riggin v. Patapsco Ins. Co. (Md.) 7 Har. & J. 279, 288, 16 Am. Dec. 302.

Capturing of prize.

The term "deviation," in the law of marine insurance, when applied to a purely mercantile adventure, includes the capturing of a prize by the insured vessel, although the least possible time is spent in taking possession of it and exchanging crews. Wig gin v. Amory, 13 Mass. 118, 126.

Compulsory deviation.

Where a vessel was by compulsion forced from the direct course of her voyage, there was not a deviation. Savage v. Pleasants, (Pa.) 5 Bin. 403, 417, 6 Am. Dec. 424.

There is no deviation of a vessel when she is driven out of her course by currents.

Patapsco Ins. Co. v. Coulter, 28 U. S. (3 Pet.) 222, 231, 7 L. Ed. 659.

Delay.

"Deviation," in marine insurance law, means any departure from, or unnecessary delay in, the course of a voyage, whether at sea or in port. Coffin v. Newburyport Marine Ins. Co., 9 Mass. 436, 447.

The term "deviation," in the law of marine insurance, includes every unreasonable or inexcusable delay in commencing or prosecuting a voyage, whether the delay be in some port or upon the high seas. Arnold v. Pacific Mut. Ins. Co., 78 N. Y. 7, 16.

In marine insurance the sole ground upon which a deviation discharges the underwriter is that it varies the risk, and, as it is evident that the risk may be as much varied by a delay in commencing or prosecuting the voyage as a divergence from its prescribed course, it follows that such delay, if unreasonable or inexcused, will discharge the underwriter. Augusta Ins. & Banking Co. v. Abbott, 12 Md. 348, 378.

Exposure of goods.

for

Deviation is any change or varying of the risk without necessity or just cause by which the risk is enhanced. It means voluntary acts or acts of neglect not arising from necessity or just cause, and if it does not come within this exception it is wholly immaterial with what motive the act which is a deviation or a departure is done; if, after the risk is assumed, the risk is enhanced or varied, the deviation discharges the policy. The exposure of goods in a greater degree to the perils of the sea by stowing them on the deck is an enhancement of the risk and a deviation which will discharge the policy. Atkinson v. Great Western Ins. Co. (N. Y.) 4 Daly, 1, 21.

Saving of life.

For a vessel to go out of her course to save the life of a man will not be considered a deviation. Bond v. The Cora (U. S.) 3 Fed. Cas. 838.

Stopping at port.

It is not a deviation for a vessel to touch

and stay at a port out of the course of the voyage, if such departure is within the usage of the trade, and is within the purposes and for the objects authorized by the usage. Bentaloe v. Pratt (U. S.) 3 Fed. Cas. 241, 242; Hostetter v. Park, 11 Sup. Ct. 1, 4, 137 U. S. 30, 34 L. Ed. 568 (citing Coffin v. Newburyport Marine Ins. Co., 9 Mass. 436, 437; Bulkley v. Protection Ins. Co. [U. S.] 4 Fed. 11 U. S. [7 Cranch] 487, 491, 3 L. Ed. 414; Cas. 614, 617; Oliver v. Maryland Ins. Co., Columbian Ins. Co. v. Catlett, 25 U. S. [12 Wheat.] 383, 387, 6 L. Ed. 664; Gracie v. Marine Ins. Co. of Baltimore, 12 U. S. [8

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