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DIFFICULTY.

The words "any difficulty," in a will directing that, in case any difficulty arises, the matter shall be submitted, do not mean only such as may arise outside the will, but will cover the determination of questions of interpretation. In re Phillips' Estate (Pa.) 48 Leg. Int. 232.

The term "difficulty," as applicable to what transpires between parties when it results in some breach of the peace or more flagrant violation of law, is, in general use, well understood by all classes. It is of constant application in legal proceedings and in the reports of adjudicated cases. It is expressive of a group or a collection of ideas that can

A contract under seal conveyed both the

right and privilege of "digging all the ore" on words constituted an equitable conveyance of the grantor's land. Held, that the quoted the ore in the land in fee, and that the contract could not be construed as a mere license to take minerals. Fairchild v. Dunbar Furnace Co., 18 Atl. 443, 128 Pa. 485.

DIGGING.

In a contract for the excavation of a certain trench, and providing that, for executing the digging, the contractor should receive a certain sum per cubic foot, "digging" is synonymous with the term "excavation," as used in the contract, and cannot be limit

not, perhaps, be imparted so well by any
other term. This use, therefore, in instruc-
tions, avoids a great deal of circumlocution,
which generally leads to confusion and mis-
apprehension, and it is uniformly used in DIGNITY OF OFFICE.
preparing instructions in all cases where it is
applicable. Gainey v. People, 97 Ill. 270, 279,
37 Am. Rep. 109.

ed to the mere excavation of dirt, in contra-
distinction to hardpan or rock. Sherman v.
City of New York, 1 N. Y. (1 Comst.) 316, 320.

DIFFICULTY WITH HEAD.

An applicant for life insurance was asked, "Have you ever had any difficulty with your head or brain?" to which he answered, "No." In construing this answer, in an action on the policy, the court said: "The question evidently pointed to mental unsoundness or some derangement of the head or brain, and was so understood by the examiner and the applicant; that it did not include a temporary or occasional disturbance, the result of accidental causes. Higbie v. Guardian Mut. Life Ins. Co., 53 N. Y. 603, 605.

DIG.

A deed giving the liberty and privilege to dig a canal across the grantor's land does not give to the grantee a right to the soil or trees dug up in the course of the work. Lyman v. Arnold (U. S.) 15 Fed. Cas. 1143, 1145.

A contract requiring a party to go to California and to dig gold for a certain time and to pay the other parties one-fourth of the amount he should collect while there, was

construed to only require him to account for

the sums obtained by taking gold, and not
for any other sums gained by him. The
phrase "digging gold" was not sufficient to in-
dicate any employment in which the obligor
might engage. It is true that it is suscepti-
ble of a figurative meaning, and is sometimes
used in this manner to signify generally any
mode by which wealth or property is obtain-
ed, of which a fine illustration is given by the
great lyrical poet of England in his version
of the thirty-ninth psalm:

"Some walk in honor's gaudy show,
Some dig for gold and ore."

-Hoyt v. Smith, 27 Conn. 63, 68.

"Dignity of office," in the sense that the term is used in the English cases holding that the compensation of officers is not subject to assignment, does not exist in this country, and yet there is a dignity, or at least should be, attending every office, in the sense that a proper and independent discharge of its duties inspires respect for the officer and for the office; and this is sufficient grounds for holding that his unearned compensation cannot be assigned. National Bank of El Paso v. Fink, 24 S. W. 256, 257, 86 Tex. 303, 40 Am. St. Rep. 833; Sanger v. City of Waco, 40 S. W. 549, 550, 15 Tex. Civ. App. 424.

DILATORY PLEA.

Dilatory pleas are distinguished from pleas to the action, and are defined to be such as tend merely to delay or put off the suit by questioning the propriety of the remedy, rather than by denying the injury; whereas pleas to the action are such as dispute the cause of action. Parks v. McClellan, 44 N. J. Law (15 Vroom) 552, 558.

A dilatory plea is one which seeks to excuse the defendant from pleading to and answering the declaration, and gives reason why he should not be required so to plead the meaning of statutes relating to the reor answer. It is not a plea or answer, within moval of cases. Mahoney v. New South Building & Loan Ass'n (U. S.) 70 Fed. 513,

515.

DILIGENCE.

See "Common Diligence"; "Due Dili gence"; "Extraordinary Diligence"; "Great Care or Diligence"; "High "Diligence"; "Low Diligence"; "Necessary Diligence"; "Ordinary Diligence"; "Reasonable Diligence"; "Slight Diligence"; "Special Care and Diligence."

Care synonymous.

Diligence is defined to be a steady application to business of any kind; constant effort to accomplish any undertaking. The law does not require any unusual or extraordinary efforts, but only that which is usual, ordinary, and reasonable. Ophir Silver Min. Co. v. Carpenter, 4 Nev. 534, 546, 97 Am. Dec. 550; Ennis v. Eden Mills Paper Co., 48 Atl. 610, 613, 65 N. J. Law, 577.

Good faith.

Good faith and diligence are not always the same. Lack of diligence does not necessarily involve absence of good faith, so that failure to discover fraud in the sale of bank stock within a short time is not proof of lack of good faith. Stufflebeam v. De Lashmutt (U. S.) 101 Fed. 367, 370.

As a relative term.

Diligence is in all cases a relative term, Diligence is such care and prudence as and what is due diligence must be deteris usually exercised by persons of common or average care and prudence. Lee v. Chi-mined by the circumstances of each case. cago, R. I. & P. R. Co., 45 N. W. 739, 741, 80 Rue v. Quinn, 66 Pac. 216, 217, 137 Cal. 651; Heintz v. Cooper, 38 Pac. 511, 512, 104 Cal. Iowa, 172. 668; Carter v. Kansas City Cable Ry. Co. (U. S.) 42 Fed. 37, 38; Nord-Deutscher Lloyd v. Insurance Co. of North America, 110 Fed. 420, 427, 49 C. C. A. 1; Isabel v. Hannibal & St. J. R. Co., 60 Mo. 475, 482 (citing Davis v. Chicago & N. W. R. Co., 17 N. W. 406, 412, 58 Wis. 646, 46 Am. Rep. 667); Ennis v. Eden Mills Paper Co., 48 Atl. 610, 613, 65 N. J. Law, 577; Prince v. Alabama State Fair, 17 South. 449, 451, 106 Ala. 340, 28 L. R. A. 716; Lee v. Chicago, R. I. & P. R. Co., 45 N. W. 739, 741, 80 Iowa, 172.

By reasonable and ordinary care and dil- | igence is meant that degree of care which an ordinarily careful and prudent man would be expected to use under similar circumstanUnion Pac. R. Co. v. Estes, 16 Pac. 131, 134, 37 Kan. 715.

ces.

"Diligence, when the law imposes it as a duty, implies that we shall do those things we ought to do, and leave undone those things we ought not to do. It requires action, as

well as forebearance to act." Grant v. Moseley, 29 Ala. 302, 305.

The diligence to be exacted from a specialist is the diligence which good specialists in his department are accustomed to bestow. Diamond v. Northern Pac. R. Co., 13 Pac. 367, 372, 6 Mont. 580 (citing Whart. Neg. § 872).

Diligence is a relative term, and depends on the nature of the trust, duty, or subject in hand; hence, if the trust confided or duty imposed required delicate handling or skillful manipulation to preserve the one or to so control the other as to do no mischief, the requisite degree of diligence arises in proportion to the delicacy of danger which attends the service. Greater watchfulness and care are required in the proper custody and preservation of a diamond than need be be

er skill and diligence are exacted in driving a locomotive than in driving a road wagon. Carter v. Chambers, 79 Ala. 223, 230.

The term "diligence," when applied to the management of railroad engines and cars in motion, must be understood to import all the care and circumspection which the pestowed on chattels of ordinary value. Greatculiar circumstances of the place or occasion reasonably require, and these will be increased or diminished according as the ordinary liability to danger and accident and to do injury to others is increased or diminished in the movement and operation of them. Knopf v. Philadelphia, W. & B. R. Co. (Del.) 46 Atl. 747, 748, 2 Pennewill, 392.

"The word 'diligence,' as used in the definitions of the degrees of negligence, in the definition defining gross negligence to be the want of slight diligence, slight negligence to be the want of great diligence, and ordinary negligence to be the want of ordinary diligence, is synonymous with 'care.' This is shown by the text in Story, immediately following the definition referred to. It is there said: 'For he who is only less

diligent than very careful men cannot be said to be more than slightly inattentive, he who omits ordinary care is a little more negligent than men ordinarily are, and he who omits even slight diligence fails in the lowest degree of prudence and is deemed grossly negligent.'" Chicago, B. & Q. R. Co. v. Johnson, 103 Ill. 512, 523 (quoting Story, Bailm. § 17 et seq.).

Diligence is a relative term, to be judged of according to the nature of the subject to which it is to be directed. Whether a man has exercised the diligence required of him by law in discharging an agency, or not, must be determined by all the considerations surrounding the agency. The circumstances, the general customs of the trade, the course of business of that particular line or character of trade, the common habits of business in the particular matter or article, the situation of the parties, and the way the principal and agent deal with each other, are all to be considered. Eichel v. Sawyer (U. S.) 44 Fed. 845, 847.

Ordinary diligence has been defined by Judge Story to be "that degree of care which men of common prudence generally exercise in their affairs, in the country and the age in which they live." These last words are quite material, quite important, in this case. "In the country and in the age in which they lived." Thus what might be ordinary dillgence in one country and in one age may, at

another time and in another country, be negligence, even gross negligence. Erie Bank v. Smith (Pa.) 3 Brewst. 9, 14.

diligent man, intent upon ascertaining a fact, would usually and ordinarily make-inquiry with diligence and in good faith to ascertain the truth. Glos v. Sankey, 36 N. E. 628, 635, 148 Ill. 536, 23 L. R. A. 665, 39 Am. St. Rep. 196.

The term "diligent search," as used in the return of an officer on an execution, reciting diligent search for the debtor, means reasonable effort to find him. In re Bayley, 132 Mass. 457, 461.

DIMENSION STONE.

Diligence is a relative term, and must be proportionate to the danger against which it is required to guard. More active diligence is required to conduct a locomotive through the streets of a populous town than DILIGENT SEARCH. is necessary to guide a sled drawn by oxen in an unfrequented place. The degree of ordinary care implies a higher state of mental activity in one case than in the other. It demands more skill and science to guide a ship on the ocean than a mud scow in a harbor. With regard to the degree of care or diligence which are recognized in the law Sir Wm. Jones says: "There are infinite shades, from the slightest momentary thought Where a lease of a stone quarry provides or transient glance of attention to the most for one rate of compensation for dimension vigilant anxiety and solicitude." Brand v. stone shipped, and another lower rate for all Schenectady & T. R. Co., 8 Barb. 368, 378. other stone, it must be conclusively presumNo general standard by which the dili-ed that the parties to the lease, who were gence required of an inventor in applying both experienced quarrymen, used the term for and procuring a patent on his invention "dimension stone," which is a term of art, has been established, by law, nor in the na-in its technical sense, and as would be orditure of things is such a standard possible. narily understood by quarrymen, in the abIt must be reasonable under the circumstan- sence of anything in the lease itself indicatces of the particular case in question. The ing that they use it in any other sense. character of the invention, the help, the Crawford v. Oman & Stewart Stone Co., 12 means, the liberty of the inventor, his occu- S. E. 929, 930, 34 S. C. 90, 12 L. R. A. 375. pation upon kindred or subordinate inventions, are proper subjects for consideration. Such reasonable diligence does not involve uninterrupted effort, nor concentration of his entire energies upon the single enterprise. Von Schmidt v. Bowers (U. S.) 80 Fed. 121, 143, 25 C. C. A. 323.

DIMINISH.

The power of increasing or diminishing the number of judicial districts and judges, given to the Legislature by Const. art. 6, § 5, is not a power to entirely deprive a district of any judge. To "diminish" means to make less, not to utterly wipe out. Therefore the Where a notary, who had protested a bill authority to diminish the number of judges does not apply where a district has but one of exchange, testified that he made diligent inquiry as to the drawer's place of resi-judge. State v. Kinkead, 14 Nev. 117, 123. dence, he testified that as a matter of fact |

DILIGENT INQUIRY.

he made a careful, thorough, and business- DIMINISHED USE.
like inquiry. Carrol v. Upton, 3 N. Y. (3
Comst.) 272, 274.

It is diligent inquiry regarding the residence of an indorser of a negotiable note, for the purpose of giving notice of protest, to inquire of such persons, at the place where the bill or note is payable, as may reasonably be supposed capable of giving the required information. Marsh v. Barr, 19 Tenn. (Meigs) 68, 70.

The diligent inquiry required of the holder of a bill in seeking the indorser must be such ordinary or reasonable diligence as men of business usually exercise when their interest depends upon obtaining correct information. Garver v. Downie, 33 Cal. 176,

182.

Rev. St. 1891, c. 120, § 216, excusing personal service of tax notice where the party to be assessed cannot upon diligent inquiry be found in the county, means such inquiry as a 3 WDS. & P.-5

In an action for damages for diversion of water from plaintiff's well, the court charged that, if the water could not have been obtained from said well by the use of plaintiff's appliances at a reasonable and moderate cost, the plaintiff would be entitled to recover as damages the value of the diminished use of said property during the time that she was entitled to the use. It was contended that the instruction should have read "di

minution of the use," instead of "diminished use." The court held that "technically it may be true that 'diminished use' should be held to refer to the value of the use remaining after the diminution had taken place," but that the words "diminished use," taken

in connection with the rest of the instructions, should be construed as practically synonymous with the words "diminution of the use," and to mean the same thing. Willis v. City of Perry, 60 N. W. 727, 732, 92 Iowa. 297, 26 L. R. A. 124.

DIP.

The words "license, diploma, or certificate of qualification," in a statute making it

See "Compass Dip"; "Inclination Dip"; criminal to practice medicine without having "Practical Dip."

Dip is the direction of a vein as it goes downward into the earth; the dip in different veins and in the same vein varying from a perpendicular to the earth's surface to an angle perhaps only a few degrees below the horizon. The dip is spoken of from three different points of view: (1) As to its inclination from a perpendicular to the horizontal, as so many degrees from the perpendicular or from the horizontal. A vein is thus described as having a dip of 20 degrees, 30 degrees, etc. (2) As to the direction it takes from the strike or apex by the points of the compass. If the strike were due east and west, and the vein in its course downward departed from the perpendicular at an angle so that a perpendicular shaft sunk at the apex would leave the vein to the north of such shaft, the dip in this point of view would be said to be due north; or, the conditions reversed, due south. In this respect the dip-that is, the direction of the dip-is said to be, and is, at right angles to the strike. (3) The dip is again spoken of as portions of the vein successively encountered in going down and away from the apex. The miner follows the dip when he works downward leaving the apex further from and above him at each advance. King v. Amy & Silversmith Consol. Min. Co., 24 P. 200, 202,

9 Mont. 543.

The term "dip," as used in mining, means the downward course of a vein. "Dip" and "depth" are of the same origin. Dip is the direction or inclination toward the depth; that is, toward the depth that veins may be followed, and that is surely their downward course. Mr. Riotte gives us a different definition. He says: "Starting upon any line upon the apex of the vein, and running down the vein parallel to the end lines of the location, the inclination that the line has is the downward course of the vein." Duggan v. Davey, 26 N. W. 887, 901, 4 Dak. 110.

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first obtained a license or diploma or certificate of qualification, were considered in the case of Brooks v. State, 6 South. 902, 88 Ala. 122, and it was held that the words did not refer to and mean the same thing. Nelson v. State, 12 South. 421, 422, 97 Ala. 79.

DIPLOMATIC OFFICER.

The term "diplomatic officer," when used in the title relating to diplomatic and consular officers, shall be deemed to include ambassadors, envoys extraordinary, ministers plenipotentiary, ministers resident, commissioners, charges d'affaires, agents, and secretaries of legation, and none others. U. S. Comp. St. 1901, p. 1150.

DIPSOMANIA.

Dipsomania is an insatiable thirst, intensified by long indulgence. State v. Potts, 6 S. E. 657, 659, 100 N. C. 457.

Dipsomania is an irresistible impulse to indulge in intoxication, either alcohol or other drugs-opiums. This mania, or dipsomania, is classed as one of the minor forms of insanity. Repeated intoxication for a number of years, which is entirely voluntary, is not dipsomania. One having the power to refrain from the use of intoxicants, and who becomes intoxicated voluntarily, is not affected with dipsomania. Ballard v. State, 28 N. W. 271, 273, 19 Neb. 609.

Dipsomania, or alcoholism, is a disease caused from excessive indulgence in drink. It oftentimes develops into what is called by medical men "mania a potu," wherein the patient becomes a madman, wholly deprived of all sane reason, while the fit is upon him. In that condition he is not legally responsible for his actions, being treated as insane. As the disease has created for him, in his imag ination, a totally new existence, the reason which before controlled his conduct no longer exists, but a new and perverted one has taken its place. The will power which attended it has gone with the reason itself. So it is in the case of the mere hard drinker, who, a victim of the disease of dipsomania, loses control of his will with respect to restraint of his thirst for liquor; and though control over himself generally, yet from his he may be perfectly sane, and have complete disease, or passion for drink, and the momentary relief indulgence of it gives his morbid feelings of despondency, he has entirely lost control of himself with respect to such indulgence, and drink he must and will in spite of his reason, his past experience, and the warnings his physician and friends give him. He drinks, not because of desire to taste stimulants, but because his disease de

mands of him that he get relief at any hazard. | quoted words are used for the special purpose State v. Reidell (Del.) 14 Atl. 550, 551, 9 Houst. 470.

DIRECT.

The term "direct," as defined by Webster, means "immediate; express; unambiguous; confessed; absolute." People v. Boylan (U. S.) 25 Fed. 594, 595.

An agreement by one hiring a team to go to a certain place to go direct to such place does not necessarily imply an engagement to go the shortest way, but merely to go by some usual and expeditious route, without diverging therefrom. The doctrine that a person who hires à horse for a specified journey is liable for conversion if he drives the horse further than the stipulated journey, or on another and different trip, cannot be pressed so far as to make the hirer chargeable as for a tort merely by reason of slight and immaterial departures from the general course of the direction outlined in the contract. Young v. Muhling, 63 N. Y. Supp. 181, 183, 48 App. Div. 617.

Either of the words "wish," "desire," "command," or "direct" are apt words to be used in a will to show testator's intent to make a will. Barney v. Hayes, 29 Pac. 282, 284, 11 Mont. 571, 28 Am. St. Rep. 495.

St. 55 Geo. III, c. 184, sched. pt. 3, tit. "Legacies," subjecting legacies payable on the proceeds of "real estate directed to be sold" by a will to a tax, would include real estate devised to trustees in trust to convey the same among certain persons, mentioned in the will, in equal proportions, in severalty, and empowering the trustees, for the purpose of such division and partition, to sell any part of the lands and to stand possessed of the money arising from such sales. Attorney General v. Simcox, 1 Exch. 749, 768.

The word "direct," as used in an insuring clause, "against all direct loss or damage by fire, except as hereinafter provided for," qualifies, not alone "loss," but also "damage by fire," and the phrase has precisely the same meaning as if the insurance was "against loss or damage by fire direct." Hustace v. Phenix Ins. Co., 67 N. E. 592, 593, 175 N. Y. 292, 62 L. R. A. 651.

Where a charter provided that the vessel was to proceed direct to load on the charter, the word "direct" meant that the vessel was to proceed without unreasonable delay and by the usual route, and the contract would have been the same if the word "direct" had been left out. The Onrust (U. S.) 18 Fed. Cas. 728, 733.

As used in a contract by which one of the parties had sold his interest in a stage line to the other parties and pledged himself not to be concerned, "direct or indirect," in any line of stages in opposition to them, the

of guarding against any kind of interference in the business of the parties operating the stage line by aiding or in any manner permitting the establishment of or carrying on any opposition. The word "direct" is to be so construed that the party could not set up or carry on, or knowingly aid or intermeddle in any way whatsoever, or be concerned in setting up or carrying on, any line of stages in opposition to his vendees. Davis v. Barney (Md.) 2 Gill & J. 382, 402.

As command or order.

Laws 1892, c. 481, § 12, providing that the proper officers of the city of Brooklyn are authorized and directed to issue water bonds sufficient to pay the award in condemnation proceedings, means that the officers are ordered, and has the same force as an order given to a soldier, whose only answer is obedience. People v. Guggenheimer, 59 N. Y. Supp. 913, 922, 28 Misc. Rep. 735.

Where commissioners are directed to pave any street on the application of the lot holders, no discretion is included. Spring Garden Com'rs v. Wistar, 18 Pa. (6 Harris) 195, 198.

Under a will providing that the executors shall sell the land, a majority of the heirs so "directing," the word imports an order before the power to sell can be exercised. Potter's Ex'rs v. Adriance, 44 N. J. Eq. (17 Stew.) 14, 17, 14 Atl. 16.

As used in a will directing the doing of certain things, "direct" is a mandatory word, unless controlled by something in the context indicating otherwise; and the fact that discretion is given in the execution of the direction is not sufficient to change the mandatory sense. Collister v. Fassitt, 39 N. Y. Supp. 800, 801, 7 App. Div. 20 (reversing 38 N. Y. Supp. 601, 16 Misc. Rep. 395).

The definition of the word "direct," as given by Webster, is "to order; to instruct; to point out a course of proceedings with authority; to command." But direction may be given or a course of proceedings may be pointed out with authority in a will by implication as certainly as by explicit instructions. A clear implication of the testator's intention is as binding upon the court as his express direction, and under Pub. St. c. 189, § 2, providing that the personal estate shall stand charged for debts and expenses in the first instance, unless the deceased has otherwise directed, the word requires no more than that the plain intention or the necessary implication of the will shall exonerate the personal estate. Calder v. Curry, 17 R. I.

610, 615, 24 Atl. 103.

As immediate.

The provision of a charter party that "it is understood that the vessel is now loading for K. or T., and is to proceed thence direct

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