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DIFFICULTY.

A contract under seal conveyed both the The words "any difficulty," In a will di- right and privilege of "digging all the ore” on recting that, in case any difficulty arises, the words constituted an equitable conveyance of

the grantor's land. Held, that the quoted matter shall be submitted, do not mean only the ore in the land in fee, and that the consuch as may arise outside the will, but will tract could not be construed as a mere license cover the determination of questions of inter

to take minerals. Fairchild v. Dunbar Furpretation. In re Phillips' Estate (Pa.) 48

nace Co., 18 Atl. 443, 128 Pa. 485. Leg. Int. 232.

The term “difficulty,” as applicable to DIGGING. what transpires between parties when it results in some breach of the peace or more fla

In a contract for the excavation of a grant violation of law, is, in general use, well certain trench, and providing that, for exeunderstood by all classes. It is of constant cuting the digging, the contractor should reapplication in legal proceedings and in the ceive a certain sum per cubic foot, "digging" reports of adjudicated cases. It is expressive

is synonymous with the term "excavation,” of a group or a collection of ideas that can

as used in the contract, and cannot be limitnot, perhaps, be imparted so well by any ed to the mere excavation of dirt, in contraother term. This use, therefore, in instruc- distinction to hardpan or rock. Sherman v. tions, avoids a great deal of circumlocution, City of New York, 1 N. Y. (1 Comst.) 316, 320. which generally leads to confusion and misapprehension, 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, "Dignity of office,” in the sense that the 37 Am. Rep. 109.

term is used in the English cases holding that

the compensation of officers is not subject DIFFICULTY WITH HEAD.

to assignment, does not exist in this country,

and yet there is a dignity, or at least should An applicant for life insurance was ask- be, attending every office, in the sense that ed, "Have you ever had any difficulty with a proper and independent discharge of its your head or brain ?” to which he answered, duties inspires respect for the officer and "No." In construing this answer, in an ac- for the office; and this is sufficient grounds tion on the policy, the court said: “The ques- for holding that his unearned compensation tion eridently pointed to mental unsoundness cannot be assigned. National Bank of El or some derangement of the head or brain, Paso v. Fink, 24 S. W. 256, 257, 86 Tex. 303, and was so understood by the examiner and 40 Am. St. Rep. 833; Sanger v. City of Waco, the applicant; that it did not include a tem- 40 S. W. 549, 550, 15 Tex. Civ. App. 424. porary or occasional disturbance, the result of accidental causes. Higbie v. Guardian Mut. Life Ins. Co., 53 N. Y. 603, 605.

DILATORY PLEA.

Dilatory pleas are distinguished from DIG.

pleas to the action, and are defined to be such

as tend merely to delay or put off the suit A deed giving the liberty and privilege by questioning the propriety of the remedy, to dig a canal across the grantor's land does rather than by denying the injury; whereas not give to the grantee a right to the soil or pleas to the action are such as dispute the trees dug up in the course of the work. Ly cause of action. Parks v. McClellan, 44 N. man v. Arnold (U. S.) 15 Fed. Cas. 1143, 1145. J. Law (15 Vroom) 552, 558. A contract requiring par to go to Cal.

A dilatory plea is one which seeks to ifornia and to dig gold for a certain time and

excuse the defendant from pleading to and to pay the other parties one-fourth of the answering the declaration, and gives reason amount he should collect wbile there, was

why he should not be required so to plead construed to only require him to account for or answer. It is not a plea or answer, within the sums obtained by taking gold, and not the meaning of statutes relating to the refor any other sums gained by him. The moval of cases. Mahoney v. New South phrase "digging gold” was not sufficient to in- Building & Loan Ass’n (U. S.) 70 Fed. 513,

515. dicate any employment in which the obligor might engage.

It is true that it is susceptible of a figurative meaning, and is sometimes DILIGENCE. used in this manner to signify generally any mode by which wealth or property is obtain

See “Common Diligence"; "Due Dilied, of which a fine illustration is given by the gence”; "Extraordinary Diligence"; great lyrical poet of England in his version “Great Care or Diligence"; "High of the thirty-ninth psalm:

“Diligence”; “Low Diligence"; "Neces"Some walk in honor's gaudy show,

sary Diligence"; "Ordinary Diligence"; Some dig for gold and ore.'

"Reasonable Diligence"; "Slight Dili-Hoyt v. Smith, 27 Conn. 63, 68.

gence"; "Special Care and Diligence.”

ces.

Care synonymous.

Good faith. Diligence is defined to be a steady ap Good faith and diligence are not always plication to business of any kind; constant the same. Lack of diligence does not neceseffort to accomplish any undertaking. The sarily involve absence of good faith, so that law does not require any unusual or extraor- failure to discover fraud in the sale of bank dinary efforts, but only that which is usual, stock within a short time is not proof of lack ordinary, and reasonable. Ophir Silver Min. of good faith. Stufflebeam y. De Lashmutt Co. v. Carpenter, 4 Nev. 534, 546, 97 Am. (U. S.) 101 Fed. 367, 370. Dec. 550; Ennis v. Eden Mills Paper Co., 48 Atl. 610, 613, 65 N. J. Law, 577.

As a relative term. Diligence is such care and prudence as

Diligence is in all cases a relative term, is usually exercised by persons of common

and what is due diligence must be deteror 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. 631; Iowa, 172.

Heintz v. Cooper, 38 Pac. 511, 512, 104 Cal.

608; Carter v. Kansas City Cable Ry. Co. By reasonable and ordinary care and dil- | (U. S.) 42 Fed. 37, 38; Nord-Deutscher Lloyd igence is meant that degree of care which v. Insurance Co. of North America, 110 Fed. an ordinarily careful and prudent man would 420, 427, 49 C. C. A. 1; Isabel v. Hannibal & be expected to use under similar circumstan- St. J. R. Co., 60 Mo. 475, 482 (citing Davis

Union Pac. R. Co. v. Estes, 16 Pac. 131, v. Chicago & N. W. R. Co., 17 Ñ. W. 406, 134, 37 Kan. 715.

412, 58 Wis. 646, 46 Am. Rep. 667); Ennis

v. Eden Mills Paper Co., 48 Atl. 610, 613, 65 “Diligence, when the law imposes it as N. J. Law, 577; Prince v. Alabama State a duty, implies that we shall do those things Fair, 17 South. 449, 451, 106 Ala. 340, 28 L. we ought to do, and leave undone those things R. A. 716; Lee v. Chicago, R. I. & P. R. Co., we ought not to do. It requires action, as

45 N. W. 739, 741, 80 Iowa, 172. well as forebearance to act." Grant v. Moseley, 29 Ala. 302, 305.

Diligence is a relative term, and de

pends on the nature of the trust, duty, or The diligence to be exacted from a spec- subject in hand; hence, if the trust confided ialist is the diligence which good specialists or duty imposed required delicate handling in his department are accustomed to bestow.lor skillful manipulation to preserve the one Diamond v. Northern Pac. R. Co., 13 Pac.

or to so control the other as to do no mis367, 372, 6 Mont. 580 (citing Whart Neg. chief, the requisite degree of diligence arises § 872).

in proportion to the delicacy of danger which The term “diligence," when applied to attends the service. Greater watchfulness and the management of railroad engines and cars

care are required in the proper custody and in motion, must be understood to import all preservation of a diamond than need be bethe care and circumspection which the pe stowed on chattels of ordinary value. Greatculiar circumstances of the place or occa

er skill and diligence are exacted in driving sion reasonably require, and these will be in a locomotive than in driving a road wagon. creased or diminished according as the or- Carter v. Chambers, 79 Ala. 223, 230. dinary liability to danger and accident and

Diligence is a relative term, to be judged to do injury to others is increased or di- of according to the nature of the subject to minished in the movement and operation of which it is to be directed. Whether a man them. Knopf v. Philadelphia, W. & B. R. has exercised the diligence required of him Co. (Del.) 46 Atl. 747, 748, 2 Pennewill, 392. by law in discharging an agency, or not,

“The word diligence,' as used in the must be determined by all the considerations definitions of the degrees of negligence, in surrounding the agency. The circumstances, the definition defining gross negligence to the general customs of the trade, the course be the want of slight diligence, slight negli- of business of that particular line or char. gence to be the want of great diligence, and acter of trade, the common habits of busiordinary negligence to be the want of ordi- ness in the particular matter or article, the nary diligence, is synonymous with care.' situation of the parties, and the way the This is shown by the text in Story, imme- principal and agent deal with each other, are diately following the definition referred to. all to be considered. Eichel v. Sawyer (U. It is there said: "For he who is only less

S.) 44 Fed. 815, 847. diligent than very careful men cannot be Ordinary diligence has been defined by said to be more than slightly inattentive, Judge Story to be “that degree of care which he who omits ordinary care is a little more men of common prudence generally exercise negligent than men ordinarily are, and he in their affairs, in the country and the age who omits even slight diligence fails in the in which they live.” These last words are lowest degree of prudence and is deemed quite material, quite important, in this case. grossly negligent.'' Chicago, B. & Q. R. “In the country and in the age in which they Co. v. Johnson, 103 Ill. 512, 523 (quoting lived." Thus what might be ordinary diltStory, Bailm. § 17 et seq.).

gence in one country and in one age may, at

another time and in another country, be neg., diligent man, intent upon ascertaining a fact, ligence, even gross negligence. Erie Bank v. would usually and ordinarily make-inquiry Smith (Pa.) 3 Brewst. 9, 14.

with diligence and in good faith to ascertain Diligence is a relative term, and must the truth. Glos v. Sankey, 36 N. E. 628, 635, be proportionate to the danger against which 148 III. 536, 23 L. R. A. 665, 39 Am. St. Rep.

196. 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

The term "diligent search," as used in ordinary care implies a higher state of men

the return of an officer on an execution, recittal activity in one case than in the other. It ing diligent search for the debtor, means rea

sonable effort to find him. In re Bayley, 132 demands more skill and science to guide a ship on the ocean than a mud scow in a

Mass. 457, 461. harbor. With regard to the degree of care or diligence which are recognized in the law

DIMENSION STONE. 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 presum

No 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.

DIMINISH. Such reasonable diligence does not involve uninterrupted effort, nor concentration of his

The power of increasing or diminishing entire energies upon the single enterprise. the number of judicial districts and judges, Von Schmidt v. Bowers (U. S.) 80 Fed. 121, given to the Legislature by Const. art. 6, § 5, 143, 25 C. C. A. 323.

is not a power to entirely deprive a district

of any judge. To “diminish” means to make DILIGENT INQUIRY.

less, not to utterly wipe out. Therefore the Where a notary, who had protested a bill authority to diminish the number of judges of exchange, testified that he made diligent

does not apply where a district has but one 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 he made a careful, thorough, and business- DIMINISHED USE. like inquiry. Carrol v. Upton, 3 N. Y. (3

In an action for damages for diversion Comst.) 272, 274.

of water from plaintiff's well, the court charIt is diligent inquiry regarding the resi- ged that, if the water could not have been dence of an indorser of a negotiable note, for obtained from said well by the use of plainthe purpose of giving notice of protest, to tiff's appliances at a reasonable and moderinquire of such persons, at the place where ate cost, the plaintiff would be entitled to rethe bill or note is payable, as may reason- cover as damages the value of the diminished ably be supposed capable of giving the re- use of said property during the time that she quired information. Marsh v. Barr, 19 Tenn. was entitled to the use. It was contended (Meigs) 68, 70.

that the instruction should have read “diThe diligent inquiry required of the minution of the use," instead of “diminished holder of a bill in seeking the indorser must use.” The court held that "technically it be such ordinary or reasonable diligence as

may, be true that diminished use should be men of business usually exercise when their held to refer to the value of the use remaininterest depends upon obtaining correct in- ing after the diminution had taken place," formation.

but that the words “diminished use," taken Garver v. Downie, 33 Cal. 176, 182.

in connection with the rest of the instruc

tions, should be construed as practically synRev. St. 1891, c. 120, $ 216, excusing per-onymous with the words “diminution of the sonal service of tax notice where the party to use,” and to mean the same thing. Willis v. be assessed cannot upon diligent inquiry be City of Perry, 60 N. W. 727, 732, 92 Iowa. 297, found in the county, means such inquiry as a 26 L. R. A. 124,

3 WDS. & P.-5

DIP.

The words "license, diploma, or certifi

cate of qualification,” in a statute making it See “Compass Dip”; “Inclination Dip"; criminal to practice medicine without having "Practical Dip."

first obtained a license or diploma or certifi

cate of qualification, were considered in the Dip is the direction of a vein as it goes case of Brooks v. State, 6 South. 902, 88 Ala. downward into the earth; the dip in differ- 122, and it was held that the words did not ent veins and in the same vein varying from refer to and mean the same thing. Nelson a perpendicular to the earth's surface to an v. State, 12 South. 421, 422, 97 Ala. 79. angle perhaps only a few degrees below the horizon. The dip is spoken of from three different points of view: (1) As to its in- DIPLOMATIC OFFICER. clination from a perpendicular to the horizontal, as so many degrees from the perpendicu- The term "diplomatic officer," when used lar or from the horizontal. A vein is thus in the title relating to diplomatic and consudescribed as having a dip of 20 degrees, 30 lar officers, shall be deemed to include amdegrees, etc. (2) As to the direction it takes bassadors, envoys extraordinary, ministers from the strike or apex by the points of the plenipotentiary, ministers resident, commiscompass. If the strike were due east and sioners, charges d'affaires, agents, and secrewest, and the vein in its course downward de- | taries of legation, and none others U. S. parted from the perpendicular at an angle Comp. St. 1901, p. 1150. so that a perpendicular shaft sunk at the apex would leave the vein to the north of DIPSOMANIA. such shaft, the dip in this point of view would be said to be due north; or, the condi- Dipsomania is an insatiable thirst, intions reversed, due south. In this respect tensified by long indulgence. State v. Potts, the dip—that is, the direction of the dip—is 6 S. E. 657, 659, 100 N. C. 457. said to be, and is, at right angles to the strike. (3) The dip is again spoken of as

Dipsomania is an irresistible impulse to portions of the vein successively encountered indulge in intoxication, either alcohol or othin going down and away from the apex. The er drugs-opiums. This mania, or dipsomaminer follows the dip when he works down- nia, is classed as one of the minor forms of ward leaving the apex further from and insanity. Repeated intoxication for a numabove him at each advance. King v. Amy & ber of years, which is entirely voluntary, is Silversmith Consol. Min. Co., 24 P. 200, 202, not dipsomania. One having the power to re9 Mont. 543.

frain from the use of intoxicants, and who

becomes intoxicated voluntarily, is not afThe term “dip,” as used in mining, means fected with dipsomania. Ballard v. State, 28 the downward course of a vein. “Dip” and N. W. 271, 273, 19 Neb. 609. "depth" are of the same origin. Dip is the direction or inclination toward the depth;

Dipsom: or alcoholism, is disease that is, toward the depth that veins may be caused from excessive indulgence in drink. followed, and that is surely their downward | It oftentimes develops into what is called by

Mr. Riotte gives us a different def- medical men "mania a potu," wherein the inition. He says: "Starting upon any line patient becomes a madman, wholly deprived upon the apex of the vein, and running down of all sane reason, while the fit is upon him. the vein parallel to the end lines of the loca- In that condition he is not legally responsible tion, the inclination that the line has is the for his actions, being treated as insane. As downward course of the vein.” Duggan v. the disease has created for him, in his imag. Davey, 26 N. W. 887, 901, 4 Dak. 110. ination, a totally new existence, the reason

which before controlled his conduct no lon

ger exists, but a new and perverted one has DIPLOMA.

taken its place. The will power which atA diploma is said to be a document bear- so it is in the case of the mere hard drink

tended it has gone with the reason itself. ing record of a degree conferred by a literary society or educational institution; in short, er, who, a victim of the disease of dipsomaa statement in writing under the seal of the nia, loses control of bis will with respect to institution, setting forth that the student he may be perfectly sa ne, and have complete

restraint of his thirst for liquor; and though therein named bas attained a certain rank, grade, or degree in the studies he has pur, disease, or passion for drink, and the mo

control over himself generally, yet from his sued. State v. Gregory, 83 No. 123, 130, 53

mentary relief indulgence of it gives his morAm. Rep. 565.

bid feelings of despondency, he has entirely A diploma is an instrument, usually un- lost control of himself with respect to such der seal, “conferring some privilege, honor, indulgence, and drink he must and will in or authority; almost wholly restricted to cer- spite of his reason, nis past experience, and tificates of degrees conferred by universities the warnings his physician and friends give and colleges.” Halliday v. Butt, 40 Ala. 178, him. He drinks, not because of desire to 183 (quoting Worcester's Dict.).

taste stimulants, but because his disease de

course.

mands of bim tbat he get relief at any bazard. I quoted words are used for the special purpose State v. Reidell (Del.) 14 Atl. 550, 551, 9 of guarding against any kind of interference Houst. 470.

in the business of the parties operating the

stage line by aiding or in any manner perDIRECT.

mitting the establishment of or carrying on

any opposition. The word "direct" is to be The term "direct,” as defined by Web- so construed that the party could not set up eter, means "immediate; express; unambigu- or carry on, or knowingly aid or intermeddle ous; confessed; absolute.” People v. Boy- in any way whatsoever, or be concerned in lan (U. S.) 25 Fed. 594, 595.

setting up or carrying on, any line of stages

in opposition to his vendees. Davis v. BarAn agreement by one hiring a team to go ney (Md.) 2 Gill & J. 382, 402. to a certain place to go direct to such place does not necessarily imply an engagement As command or order. to go the shortest way, but merely to go by

Laws 1892, c. 481, § 12, providing that some usual and expeditious route, without di- the proper officers of the city of Brooklyn are verging therefrom. The doctrine that a per- authorized and directed to issue water bonds son who hires à horse for a specified journey sufficient to pay the award in condemnation is liable for conversion if he drives the horse proceedings, means that the officers are orfurther than the stipulated journey, or on dered, and has the same force as an order another and different trip, cannot be pressed given to a soldier, whose only answer is so far as to make the hirer chargeable as for obedience. People v. Guggenheimer, 59 N. a tort merely by reason of slight and imma. Y. Supp. 913, 922, 28 Misc. Rep. 733, terial departures from the general course of the direction outlined in the contract. Young

Where commissioners are directed to v. Muhling, 63 N. Y. Supp. 181, 183, 48 App. pave any street on the application of the lot Div. 617.

holders, no discretion is included. Spring

Garden Com’rs v. Wistar, 18 Pa. (6 Harris) Either of the words “wish," "desire,”

195, 198. "command," or "direct" are apt words to be used in a will to show testator's intent to Under a will providing that the executors make a will. Barney v. Hayes, 29 Pac. 282, shall sell the land, a majority of the heirs so 284, 11 Mont. 571, 28 Am. St. Rep. 495.

"directing," the word imports an order be

fore the power to sell can be exercised. PotSt. 55 Geo. III, c. 184, sched. pt. 3, tit. ter's Ex’rs v. Adriance, 44 N. J. Eq. (17 Stew.) “Legacies,” subjecting legacies payable on 14, 17, 14 Atl. 16. the proceeds of “real estate directed to be sold" by a will to a tax, would include real As used in a will directing the doing of estate devised to trustees in trust to convey certain things, "direct" is a mandatory word, the same among certain persons, mentioned unless controlled by something in the conin the will, in equal proportions, in severalty, text indicating otherwise; and the fact that and empowering the trustees, for the purpose discretion is given in the execution of the of such division and partition, to sell any part direction is not sufficient to change the manof the lands and to stand possessed of the datory sense. Collister V. Fassitt, 39 N. Y. money arising from such sales. Attorney Supp. 800, 801, 7 App. Div. 20 (reversing 38 General v. Simcox, 1 Exch. 749, 768.

N. Y. Supp. 601, 16 Misc. Rep. 395). The word "direct," as used in an insur

The definition of the word “direct," as ing clause, “against all direct loss or damage given by Webster, is “to order; to instruct; by fire, except as hereinafter provided for,” to point out a course of proceedings with auqualifies, not alone “loss,” but also “damage thority; to command.” But direction may be by fire,” and the phrase has precisely the given or a course of proceedings may be same meaning as if the insurance was pointed out with authority in a will by im"against loss or damage by fire direct.” Hus- plication as certainly as by explicit instructace v. Phenix Ins. Co., 67 N. E. 592, 593, 175 tions. A clear implication of the testator's N. Y. 292, 62 L. R. A. 651.

intention is as binding upon the court as his

express direction, and under Pub. St. c. 189, Where a charter provided that the ves- 2, providing that the personal estate shall sel was to proceed direct to load on the stand charged for debts and expenses in the charter, the word "direct" meant that the first instance, unless the deceased has othervessel was to proceed without unreasonable wise directed, the word requires no more delay and by the usual route, and the con- than that the plain intention or the necessary tract would have been the same if the word implication of the will shall exonerate the "direct" had been left out. The Onrust (U. personal estate. Calder v. Curry, 17 R. I. S.) 18 Fed. Cas. 728, 733.

610, 615, 24 Atl. 103. As used in a contract by which one of the parties had sold bis interest in a stage

As immediate. line to the other parties and pledged himself The provision of a charter party that "it not to be concerned, "direct or indirect," in is understood that the vessel is now loading any line of stages in opposition to them, the for K. or T., and is to proceed thence direct

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