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As judicial act.
term is used by courts, in discussing the A divorce is not a legislative, but is a subject, as convertible with "separation" or judicial, act, and hence Rev. St. Ú. S. $ 85, "limited divorce." Rudolph v. Rudolph, 12 providing that the legislative power of every N. Y. Supp. 81, 82, 19 Civ. Proc. R. 424. territory shall extend to all original subjects
A "divorce a mensa et thoro" is a quallof legislation not inconsistent with the Con- fied or partial divorce, by which the parties, stitution and laws of the United States, does while separated and forbidden to cohabit, not authorize an act of Legislature granting remain married. The term presupposes a a private divorce. In re Higbee, 5 Pac. 693, pre-existing valid marriage, and such a di694, 4 Utah, 19.
vorce is founded on some cause subsequent to Our Legislature is clothed with the sim- the marriage. Zulev. Zule, 1 N. J. Eq. ple power to enact laws and do some other (Saxt.) 96, 99. things expressly authorized by the Constitution. Beyond this the Legislature has no DIVORCE A VINCULO. power at all. To grant a divorce is not to enact a law; an expression of the will of the A "divorce a vinculo" is a final winding lawmaking power that the marriage relation up of the relation existing between man and is dissolved is no law. It is a decree, an wife. It is an absolute breaking of all mari. order, a judgment, and not a law. A law is tal ties. The chain which has bound the a rule, something permanent, uniform, and parties together is broken. De Roche v. De universal. A divorce begins with the parties Roche (N. D.) 94 N. W. 767, 770. and ends with the parties. It is a single act, and begins and expires with the performance
In England “divorces a vinculo" were of a single function. Bingham v. Miller, 17 granted only for causes sufficient in ecclesiObio, 445, 448, 49 Am. Dec. 471.
astical law to avoid the marriage ab initio.
Aiken v. Suttle, 72 Tenn. (4 Lea) 103, 110. As prospective in effect.
The parties were left, so far as their estates
dependent on or arising out of the marriage A divorce, under the statute, for a cause
were concerned, as though no marriage had arising after the marriage, puts an end to the occurred. Doyle v. Rolwing, 65 S. W. 315, marital relation, but does not relate back to 316, 165 Mo. 231, 55 L. R. A. 332, 88 Am. St. the act of marriage and render it null. It
Rep. 416. recognizes the marriage as valid, and recognizes that rights arise out of it. It is prospective only in its effect. Doyle v. Rolwing, DIVORCE CASE. 65 S. W. 315, 316, 165 Mo. 231, 55 L. R. A. 332, 88 Am. St. Rep. 416.
Alimony as part of divorce proceedings,
DIVORCE A MENSA ET THORO.
An action for a dissolution of the bonds
of matrimony existing between parties is a A “divorce a mensa et thoro” does not “divorce case," within Rev. St. art. 996, pre dissolve the marriage relations between the scribing that the judgment of the courts of parties; it grants a mere separation for the civil appeals shall be conclusive on the law time, leaving all the other marital rights and and facts in all divorce cases, and that no writ obligations still subsisting between the par- of error shall be allowed thereto from the Suties as husband and wife. The husband is still bound for the support and maintenance preme Court, though it involves rights of of the wife; and the ecclesiastical courts, in property. The determination of the rights of decreeing such separation, and as incident property held in the name of either or both thereto, decree to the wife alimony, or an al- husband and wife is incidental to the dissolowance out of the husband's estate for her tween them. Kellett v. Kellett, 59 S. W. 809,
lution of the bonds of matrimony existing besupport and maintenance during the separa
810, 94 Tex. 206. tion. Such a decree of separation may be terminated by a reconciliation of the par- “Divorce proceedings" are in the nature ties. They may, in their own mutual discre- of session proceedings, and not subject to the tion, reunite at pleasure; indeed, it is the ordinary rules of pleading and practice. Usupolicy of the common law that they should ally there are no pleadings except the libel, do so; and to that end the door is ever left which is not required to conform to the comopen, while the parties are held firmly by the mon-law rules in regard to declarations. dissoluble matrimonial tie, as an inducement Hemenway v. Hemenway, 27 Atl. 609, 65 Vt. from necessity to a reconciliation. Miller v. 623. Clark, 23 Ind. 370, 372. A "divorce a mensa et thoro" is a mere
As an action or criminal proceeding. separation of a married woman from the bed See “Suit"; "Action"; "Criminal Pro and board of her husband by a decree of a ceeding''; "Civil Action-Case-Suitcompetent court-a qualified divorce. The Etc."
Nullity suit distinguished.
rise to any assumption, that it was intended A "divorce suit is a suit for the purpose to employ the attorney to do any illegal act. of dissolving the marriage which the parties Bremsen v. Engler, 49 N. Y. Super. Ct (17 thereto bad legal capacity to contract. The Jones & S.) 172, 176 term cannot be accurately employed to desig. Date a bill to annul a void marriage Pyott v. DO WITH. Pyott, 61 N. E. 88, 91, 191 III. 280.
A will giving all of testator's property
to his wife during her life, and to “do with" DIXIE LAND.
as she sees proper before her death, only
confers power to deal with the property in The term “Dixie Land" means “the slave such manner as she might choose consistentor rebellious states," and evidence that a ves- ly with her life estate therein, and, perhaps, · sel was to make a voyage to “Dixie Land" 18 without liability for waste committed. These
confirmatory of evidence that a voyage to words used in connection with a conveyance states in rebellion and under blockade was of a leasehold estate would never be underintended. United States v. The William Ar stood as conferring a power to sell property thur (U. S.) 28 Fed. Cas. 624, 626.
so as to pass a greater estate. Whatever power of disposal the words confer is limit
ed by the estate with which they are conDO.
nected. Brant v. Virginia Coal & Iron Co., See, also, “Done."
93 U. S. 326, 327, 23 L. Ed. 927.
A proviso for re-entry if the lessee should do, or cause to be done, anything in violation
DOCK. of his covenants, did not include an omission to repair. Abdy v. Stevens, 3 Barn, & Adol.
See “Adjustable Dock”; “Dry Dock”; 299, 303.
Floating dock as building, see “Build. A notice that a claimant intends to claim, ing." and “does claim, a lien" for building material, simply gives notice of a present claim, which A "dock" is a place for vessels, whether 18 quite distinct from a notice that the claim- excavated from the land or surrounded by ant has begun to enforce the claim. Goff v.
wharves. Bingham V. Doane, 9 Ohio (9 Hosmer, 37 Atl. 533, 534, 20 R. I. 91.
Ham.) 165, 167.
"Dock” is defined by philologists, accordDO GRANT.
ing to the American use of the term, to be The words “do grant” in a deed indicate the space between two wharves. City of the vesting of a present fee-simple estate, Boston y Lecraw, 58 U. S. (17 How.) 426, the words being in the present tense, and 134, 15 L. Ed. 118. importing, in grammar as well as daily language, present actual transfer. Lauck v. DOCKAGE. Logan, 31 S. E. 986, 988, 45 W. Va, 251.
"Dockage is the pecuniary compensation The words “doth hereby grant,” as used for the use of a dock while the vessel is unin Act April 14, 1872, providing that the dergoing repairs. It is in the nature of rent, state doth hereby grant certain lands under and the owner of a dry dock has the right tide water to a certain city, import a grant to demand from those who seek its use in præsenti, and confer an immediate es- whatever he considers a fair compensation, tate. Easton & A. R. Co. v. Central R. Co., 19 uncontrolled by the custom of other docks Atl. 722, 725, 52 N. J. Law (23 Vroom) 267 in other places." Ives v. The Buckeye State (citing Hannibal & St. J. R. Co. v. Smith, (U. S.) 13 Fed. Cas. 184, 185. 76 U. S. [9 Wall.] 95, 19 L. Ed. 599; Schulenberg v. Harriman, 88 U. S. [21 Wall.] 44, 62,
In Pol. Code, 88 24, 25, the term “dock22 L. Ed. 551; Leavenworth, L. & G. R. Co. age" is used to designate the charge against v. United States, 92 U. S. 733, 741, 23 L vessels for the privilege of mooring to the Ed. 634; Glasgow v. Hortiz, 66 U. S.  wharves or in the slips. Such charge is not Black) 595, 17 L, Ed. 110).
contrary to an act charging wharfage, which is a charge against merchandise for the use
of wharves. People v. Roberts, 28 Pac. 689, DO WHAT HE COULD.
691, 92 Cal. 659. Where an attorney was employed “to do what he could" to obtain a pardon for one DOCK BERTH. confined in prison, it meant that the attorney should take such legal and proper steps as It cannot be said as a matter of law the law allows an attorney to perform, and that “having a dock berth” means anything it could not be construed to mean, or give other than having a place for loading and unloading at a dock. Decker v. Jacques (N. mencement of the next succeeding term, and Y.) 1 E. D. Smith, 80, 84.
that the justice to whom it is submitted shall
order its docketing in cases wherein it is DOOK PRIVILEGES.
granted; and rule 53 (27 S. E. xii), requir
ing the petition to be sent to the clerk, but A contract by a wharfinger to furnish providing that it shall not be docketed until dock privileges for the unloading of a cargo the justice order it-it was contended that of iron from barges, and for reloading and the words “filing" and "docketing" were removing the cargo by trucks from the synonymous. It was held that the petition wharf, includes the wharfage charges for is filed when it is first received by the clerk, giving the vessel a berth alongside the wharf, and docketed when the clerk enters it upon as well as the charges for space on the dock the records at the order of the justice who occupied by the cargo, and controls any cus- grants the rehearing. Bird v. Gilliam, 31 S. tom to the contrary. The Brooklyn (U. S.) E. 267, 268, 123 N. C. 63. 46 Fed. 132, 133,
Index distinguished. DOCKET.
See "Bar Docket"; "Judgment Docket." As a record.
See "Record.” A "docket” is defined by Bouvier to be a formal record of judicial proceedings, and,
Rendering judgment distinguished. as a secondary meaning, the same authority says “ 'docket' is also said to be a brief
See "Render." writing on a small piece of paper or parchment containing the substance of a longer
DOCKET BOOK. writing.” Harrison V. Southern Porcelain Mfg. Co., 10 S. C. (10 Rich.) 278, 297.
The docket book is a record prescribed
by the statute for A "docket” is a brief writing or state
the express purpose, ment of a judgment, made from the record among other things, of receiving the entry or roll generally kept, in books alphabetical- of the judgment. It is a public record, bely arranged, with the clerk of the court or is required to keep it open during the bours
cause by Code Civ. Proc. § 3141, the justice the county clerk. A transcript of a justice's judgment may be filed with the county clerk when a sheriff's office must be kept open for and the judgment docketed. The statute search and examination by any person. giving preference to all judgments in the Beuerlein v. Hodges, 10 N. Y. Supp. 505, 500, settlement of the estate of a decedent, pro
57 Hun, 586. vided the judgments are "docketed,” requires that they be docketed in the lifetime of the DOCKET FEE. deceased in order to obtain precedence over other debts, and it is not required that the The term "docket fee" would seem to de. judgment should have been rendered by a scribe a fee for docketing something, but as court of record. Stevenson v. Weisser (N. the term is used in a statute providing that Y.) 1 Bradf. Sur. 342, 341.
if any party shall include in his verified
memorandum of costs any item to which he The "docket,” mentioned in a provision is not entitled, and his adversary shall preof the Code of Civil Procedure providing vail with a motion to retax, there shall be for docketing judgments is a book which the taxed as a part of the cost of such motion clerk keeps in his office, with each page di- a docket fee of $25, it is not used in this vided into columns and headed as follows: sense; but as a docket fee is one that is "Judgment debtors; judgment creditors; charged of course, as, for instance, of dockjudgment; time of entry; where entered in eting a cause or a judgment, the term will judgment book; appeals—when taken; Judg. be construed in that sense as taxable of ment of appellate court; satisfaction of judg
First National Bank V. Neill, 34 ment; when entered.” Rev. St. Utah 1898, Pac. 180, 182, 13 Mont. 377. § 3199.
Attorneys are allowed a lump sum for When the word "docket” is used in the all their fees in a case, except alone the title relating to estates of decedents, the deposition fee, which, again, is a lump sum probate docket is meant. Rev. St Tex. 1895, for each deposition, irrespective of the work art. 1872.
done on it. It is called a locket fee,” and
the use of the word indicates that it is not As file.
allowed for the work of going through “a Under Sup. Ct. Rule 52 (27 S. E. xl), final hearing,” but for all the services in a providing that a petition for a rehearing case. Goodyear v. Sawyer (U. S.) 17 Fed. shall be filed within 20 days after the com-2, 7.
DOCUMENT. See "Itinerant Doctor."
See “Ancient Documents”; “Public Docu
ments." The phrase "person practicing medicine," and the words “doctor" and "physician,"
A document is "an instrument upon which in an act making it criminal to practice medi. is recorded, by letters, figures, or marks, cine without a certificate, but providing that matters which may evidentially be used. the act shall not apply to any doctors or In this sense the term applies to writings, to physicians now practicing medicine in Ala- words printed, lithographed, or photographbama who are graduates of a respectable ed, to seals, plates, or stones on which inmedical college, or to any person who has scriptions are cut or engraved, to photo practiced medicine in the state for the last graphs and pictures, to maps and plans. So 10 years, refer to one of the same class of far as concerns admissibility, it makes no persons, and used interchangeably.
difference what is the thing on which the Bouvier defines "physician” to be a person
words or signs offered may be recorded. who has received the degree of doctor of They may be on stones, gems, or on wood, as medicine from an incorporated institution;
well as on paper or parchment.” Johnson one lawfully engaged in the practice of medi-Steel Street-Rail Co. v. North Branch Steel cine. The word in its popular sense means Co. (U. S.) 48 Fed. 191, 194 (quoting 1 Whart. one who professes or practices medicine for
Ev. § 614); Arnold v. Pawtuxet Valley Water the healing art; a doctor. Harrison v. State, Co.
, 26 Atl. 55, 56, 18 R. I. 189, 19 L. R. A.
602. 15 South. 563, 564, 102 Ala. 170 (citing Worcester's Dict.).
A “document" is any matter expressed
or described upon any substance by means of The legal significance of the word “phy- letters, figures, or marks, or by more than sician" or "doctor," when used in a
one of these means, intended to be used, or tract, must be held to mean any person who which may be used, for the purpose of re makes it bis regular business to practice cording that matter. Arnold v. Pawtuxet physic. Corsi v. Maretzek (N. Y.) 4 E. D. Valley Water Co., 26 Atl. 55, 56, 18 R. I. Smith, 1, 7.
189, 19 L. R. A. 602 (quoting Stephens, Ev.). In a prosecution of an osteopath for prac- The word "document" is defined in the ticing medicine without a license from the Century Dictionary as, in the law of eviState Board of Health, it was contended that dence, anything bearing a legible or signifithe fact that he hung out a sign and adver- cant inscription or legend; anything that tised himself as "doctor” indicated that he may be read as communicating an idea; inwas practicing medicine; but it was held cluding, thus, a tombstone, seal, coin, signthat, as a special verdict found that he had a board, etc., as well as paper writings; and it diploma from a college of osteopathy bestow- is said in this case that a terminal tree on ing that title upon him, such conclusions do which certain marks and symbols have been not follow, and that, besides, there are many placed, which tell the true line of a lot of kinds of doctors besides doctors of medicine. land, but which marks have a well-underState v. MacKnight, 42 S. E. 580, 582, 131 N. stood meaning by surveyors, may be deemed C. 717, 59 L. R. A. 187.
a "document" within the meaning of section 803, Civ. Code, authorizing the examination
of documents, but such question was not deDOCTRINE.
cided. Hayden v. Van Cortlandt, 32 N. Y.
Supp. 507, 509, 84 Hun, 150. See "American Doctrine."
“Document," as used in rule 72 of the equity rules, which allows all affidavits, dis
positions, and documents which have been DOCTRINAL INTERPRETATION.
previously made, read, or used in the court In Spanish jurisprudence the "doctrinal on any proceeding in any case or matter to interpretation of laws" is the opinions given be used before the master, means some writby jurisconsults and other persons versed ing like a deed, a will, a letter, or an account in the law. The authentic interpretation, rendered or stated, which is evidence, since however, is that given by the legislator him- it is authenticated independently of the conself, which is superior to the customary in- sent of the parties. Hazard v. Durant, 12 terpretation given by judges. This latter,
R. I. 99, 103. however, has a certain force and authority “Document,” as used in Code, $ 1105, when two or more decisions made by a su- authorizing a new trial when the jury has reperior tribunal are in conformity with each ceived any evidence, paper, document, or book other. Houston v. Robertson's Adm'r, 2 Tex. not allowed by the court to the prejudice of 1, 26 (citing Diccionario de Legislacion, p. the substantial rights of the defendant, 316).
means a document not in evidence, since it
would be included in the term "evidence," as the witness is the thing that speaks. In used in the statute, if it had been introduced either case the witness must be competentin evidence. Doctor Jack v. Washington that is, must be deemed competent to make Territory, 3 Pac. 832, 836, 2 Wash. T. 101. à truthful statement-and in either case the
competency of the witness must be proved “Document,” as used in the bankruptcy before the evidence is admitted, the differact, shall include any book, deed, or instru-ence being that in oral evidence the compement of writing. U. 8. Comp. St. 1901, p. tency is proved by a legal presumption, and B419.
in documentary evidence the competency
must be proved by actual testimony; and Indorsement on noto.
the further difference that in oral evidence An indorsement on a promissory note is the credit of the witness is tested by his own not an "instrument, document, or paper" cross-examination, while in documentary eviwhich needs to be stamped under the statutes dence the credit of the witness is tested by of the United States; nor is a waiver in the cross-examination of those who must be writing, by an indorser, of demand of pay- called to prove its competency. Curtis v. ment and notice of dishonor of a document, Bradley, 31 Atl. 591, 594, 65 Conn. 99, 28 L. to be stamped. Pugh v. McCormick, 81 U. R. A. 143, 48 Am. St. Rep. 177. S. (14 Wall.) 361, 20 L. Ed. 789. Memorandum book.
DOG. Memorandum books containing entries
The word “dog," as used in the chapter of one's experience and observation at differ- relating to dogs, shall be held and construed ent times, and being valuable to him for to mean all animals of the canine species, reference, are not “documents,” within an both male and female. Rev. St. Mo. 1899, exception of a bill of lading providing that, 6977. if the shipper shall fail to give notice of the character and value of the documents, the
As beast or beast of burden. owner of the ship shall not be liable there
See "Beast”; “Beast of Burden." for. The St. Cuthbert (U. S.) 97 Fed. 340, 342.
As a domestio animal. Record book of corporation.
In the case of State v. Harriman, 75 Me.
562, 46 Am. Rep. 423, it was held that The term “document,” as used in Pub. dogs were not recognized in law as belonging St. c. 214, $ 45, which provides for the pro- to the class denominated “domestic animals,” duction in court, or for the inspection by one and, consequently, that a demurrer to an inof the parties, of any document in the pos- dictment for killing a dog, founded upon a session or control of the opposite party, statute making criminal the killing or woundwould include the record book of a corpora-ing of domestic animals, ought to have been tion. Arnold v. Pawtuxet Valley Water Co., sustained. In a dissenting opinion by Ap26 Atl. 55, 56, 18 R. I. 189, 19 L. R. A. 602.
pleton, C. J., in that case, he eulogized the The word “document,” in general laws dog in the following language: “He is a do providing for the production of a document mestic animal. From the time of the Pyrain the possession of the adverse party, doubt- mids to the present day, from the frozen pole less includes the stock ledger or transfer to the torrid zone, wherever man has been, book of a corporation. Clark v. Rhode Island there has been his dog. Cuvier has asserted Locomotive Works, 53 Atl. 47, 48, 24 R. I. that the dog was, perhaps, necessary for the
establishment of civil society, and that a lit307.
tle reflection will convince us that barbarous
nations owe much of their civilization above Template.
the brute to the possession of the dog. He is A template is not a “document," so as to the friend and companion of his master, acauthorize its production by a subpæna du- companying him in his walks; his servant, ces tecum. Johnson Steel Street-Rail Co. v. aiding him in his hunting; the playmate of North Branch Steel Co. (U. S.) 48 Fed. 191, his children; an inmate of his house, pro193.
tecting it against all assailants." And later
on the Chief Justice quoted approvingly the DOCUMENTARY EVIDENCE.
following poetic tribute to dogs:
They are honest creatures, Legal evidence is not confined to the And ne'er betray their masters, never fawn human voice or oral testimony, but includes On any they love not. every tangible object capable of making a -On the other hand, in Wilson v. Wiltruthful statement, such evidence being mington & M. R. Co. (S. C.) 10 Rich. Law, roughly classified “documentary evi- 52, Munro, J., alluded to the dog as an dence." In oral evidence the witness is the animal whose nature is carnivorous, and who man who speaks; in documentary evidence is prompted by instinct and appetite to roam