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of by his last will and testament; | in writing of some contested point. and if he made no will, the same was The debate should be conducted with to go to his administrator. And within the city of London, and throughout the province of York, in case of intestacy, the wife and children were till lately entitled to their reasonable parts, and the residue only was distributable by the statute of distribution; but by the 11 G. 1, c. 18, s. 17, 18, the power of devising was thrown generally open. Burn's L. Dict. See this Dict. tit. Legitime, and Lex Falcidia.

DEATH OF A PARTNER. The following effects follow the death of a partner; namely, 1, The partnership is dissolved, unless otherwise provided for by the articles of partnership; Gow's Partn. 429; 2, The representatives of the deceased partner become tenants in common with the survivor in all partnership effects in possession; 3, Choses in action so far survive that the right to reduce them into possession vests exclusively in the survivor; 4, When recovered, the representatives of the deceased partner have, in equity, the same right of sharing and participating in them that their testator or intestate would have had had he been living; 5, It is the duty and the right of the surviving partner to settle the affairs of the firm, for which he is not allowed any compensation; 6, The surviving partner is alone to be sued at law for debts of the firm, yet recourse can be had in equity against the assets of the deceased debtor. Gow's Partn. 460. Vide Dissolution; Firm; Partners; Partnership.

DEATH, PUNISHMENT OF.

Vide Capital, Crime.

DEBATE, legislation, practice, is a contestation between two or more persons, in which they take different sides of a question, and maintain them respectively by facts and argument; or it is a discussion VOL. I.-36.

fairness, candour and decorum, and supported by facts and arguments founded in reason; when, in addition, it is ornamented by learning, and decorated by the powers of rhetoric, it becomes eloquent and persuasive. It is essential that the power of debate should be free, in order to an energetic discharge of his duty by the debator. The constitution of the United States, art. 1, s. 6, provides that for any speech or debate in either house, the senators and representatives shall not be questioned in any other place. It is a rule of the common law that counsel may, in the discharge of professional duty, use strong epithets, however derogatory to the character of the opponent or his attorney, or other agent or witness, in commenting on the facts of the case, if pertinent to the cause and stated in his instructions, without any liability to any action for the supposed slander, whether the thing stated were true or false. 1 B. & Ald. 232; 3 Dow's R. 273, 277, 279; 7 Bing. R. 459; S. C. 20 E. C. L. R. 198. Respectable and sensible counsel, however, will always refrain from the indulgence of any unjust severity, both on their own personal account, and because browbeating a witness, or other person, will injuriously affect their case in the eyes of a respectable court and jury. 3 Chit. Pr. 887, 8.

DEBENTURE. Is a certificate given in pursuance of law, by the collector of a port of entry, for a certain sum due by the United States, payable at a time therein mentioned, to an importer for drawback of duties on merchandize imported and exported by him, provided the duties arising on the importation of the said merchandise shall have been discharged prior to the time aforesaid. Vide act of con

Debts arise or are proved by mat. ter of record as judgment debts; by bonds or specialties; and by simple

According to the civilians, debts are divided into active and passive. By the former is meant what is due to us, by the latter what we owe. By liquid debt they understand, one, the payment of which may be immedi ately enforced, and not one which is due at a future time, or is subject to a condition; by hypothecary debt is meant one which is a lien over an estate; and a doubtful debt, is one, the payment of which is uncertain. Clef des Lois Rom. h. t.

gress of March 2, 1799, s. 80; Encyclopédie, h. t.; Dane's Ab. Index, h. t. DEBET ET DETINET, plead-contracts, where the quantity is fixed ing. He owes and detains. In an and specific and does not depend upon action of debt the form of the writ any future valuation to settle it. 3 Bl. is either in the debet and detinet, Com. 154; 2 Hill. R. 220. that is, it states that the defendant owes and unjustly detains the debt or thing in question; it is so brought between the original contracting parties; or, it is in the detinet only, that is that the defendant unjustly detains from the plaintiff the debt or thing for which the action is brought; this is the form in action by an executor, because the debt or duty is not due to him, but it is unjustly detained from him. There is one case in which the writ must be in the detinet between the contracting parties. This is when the action is instituted for the recovery of goods, as a horse, a ship and the like, the writ must be in the detinet, for it cannot be said a man owes another a horse or a ship, but only that he detains them from him. 3 Bl. Com. 153, 4; 11 Vin. Ab. 321; Bac. Ab. Debt, F; 1 Lilly's Reg. 543; Dane's Ab. h. t.

Debts are discharged in various ways, but principally by payment. See Accord and Satisfaction; Bankruptcy; Confusion; Compensation; Delegation; Defeasance; Discharge of a contract; Extinction; Extinguishment; Former recovery; Lapse of time; Novation; Payment; Release; Rescision; Set-off.

In payment of debts some are to be paid before others in cases of insolDEBIT, accounts, commerce; a vent estates; first, in consequence of term used in book-keeping to ex- the character of the creditor, as debts press the left hand page of the led- due to the United States are geneger, to which are carried all the rally to be first paid; and secondly, articles supplied or paid on the sub-in consequence of the nature of the ject of an account, or that are charged to that account. It also signifies the balance of an account.

DEBT, contracts, is a sum of money due by certain and express agreement, 3 Bl. Com. 154. In a less technical sense, as in the "act to regulate arbitrations and proceed ings in courts of justice," of Pennsylvania passed the 21st of March, 1806, s. 5, it means any claim for money. In a still more enlarged sense it denotes any kind of a just demand; as the debts of a bankrupt. 4 S. & R. 506.

debt, as funeral expenses and ser vants' wages which are generally paid in preference to other debts. See Preference; Privilege; Priority.

DEBT, remedies, the name of an action used for the recovery of a debt eo nomine and in numero; though damages are generally awarded for the detention of the debt; these are, however, in most instances merely nominal. 1 H. Bl. 550; Bull. N. P. 167; Cowp. 588. Debt is a more extensive remedy for the recovery of money, than assumpsit or covenant, for it lies to re

cover money due upon legal liabilities, as for money lent, paid, had and received, due on an account stated, Com. Dig. Dett, A; for work and labour, or for the price of goods, and a quantum valebant thereon. Com. Dig. Dett, B; Hob. 206; or upon simple contracts, express or implied, whether verbal or written, or upon contracts under seal, or of record, or by a common informer, whenever the demand for a sum is certain, or is capable of being reduced to certainty. Bull. N. P. 167. It also lies to recover money due on any specialty or contract under seal to pay money. Str. 1089; Com. Dig. Dett, A 4; 1 T. R. 40. This action also lies on a record, or upon a judgment of a court of record. Gilb. Debt, 391; Salk. 109; 17 S. & R. 1. Debt is a frequent remedy on statutes, either at the suit of the party grieved, or of a common informer. Com. Dig. Action on Statute, E; Bac. Ab. Debt, A. See generally, Com. Dig. h. t.; Bac. Ab. h. t.; Dane's Ab. h. t.; Vin. Ab. h. t.; Chit. Pl. 100 to 109; Selw. N. P. 553 to 682; Leigh's N. P. Index, h. t. Debt also lies in the detinet, for goods; which action differs from detinue, because it is not essential in this action, as in detinue, that the property in any specific goods should be vested in the plaintiff, at the time the action is brought, Dy. 24 b; Com. Dig. Dett, A 5; Bac. Ab. Debt, F; 3 Woodd. 103, 4; 1 Dall. R. 458. Vide Remedy.

sued together, or, when some are dead, the survivors must be sued, but each is bound for the whole debt, having a right to contribution from the others; they are several, when each promises severally to pay the whole debt; and obligations are generally binding on both or all the debtors jointly and severally. When they are severally bound each may be sued separately, and on the payment of the debt by one, the others will be bound to contribution, where all had participated in the money or property, which was the cause of the debt. Debtors are also principal and surety; the principal debtor is bound as between him and his surety to pay the whole debt, and if the surety pay it, he will be entitled to recover against the principal. Vide Vin. Ab. Creditor and Debtor; Ib. Debt; 8 Com. Dig. 383; Dig. 50, 16, 108; Ib. 50, 16, 178, 3; Toull. liv. 2, n. 250.

DECAPITATION, punishment, the punishment of putting a person to death by taking off his head.

DECEDENT. In the acts of descent and distribution in Pennsylvania, this word is frequently used for a deceased person, testate or intestate.

DECEIT, torts, is a fraudulent misrepresentation or contrivance by which one man deceives another, who has no means of detecting the fraud, to the injury and damage of the latter. Fraud, or the intention to deceive is the very essence of this DEBTOR, contracts. One who injury, for if the party misrepresentowes a debt; he who may be con- ing was himself mistaken, no blame strained to pay what he owes. A can attach to him. The representadebtor is bound to pay his debt per- tion must be made malo animo, but sonally, and all the estate he posses- whether or not the party is himself ses or may acquire is also liable for to gain by it, is wholly immaterial. his debt. Debtors are joint or seve- Deceit may not only be by asserting ral; joint, when they all equally owe a falsehood deliberately to the injury the debt in solido; in this case if a of another, as, that Paul is in floursuit should be necessary to recover ishing circumstances, whereas he is the debt, all the debtors must be in truth insolvent; that Peter is an

honest man, when he knew him to be a rogue; that property real or personal possesses certain qualities, or belongs to the vendor, whereas he knew these things to be false; but by any act or demeanor which would naturally impress the mind of a careful man with a mistaken belief. Therefore, if one whose manufactures are of a superior quality, distinguishes them by a particular mark, which facts are known to Peter, and Paul counterfeits this mark, and affixes them to articles of the same description, but not made by such person, and sells them to Peter as goods of such manufacture, this is a deceit. Again, the vender having a knowledge of a defect in a commodity which cannot be obvious to the buyer, does not disclose it, or, if apparent, uses an artifice and conceals it, he has been guilty of a fraudulent misrepresentation, for there is an implied condition in every contract that the parties to it act upon equal terms, and the seller is presumed to have assured or represented to the vendee that he is not aware of any secret deficiencies by which the commodity is impaired, and that he has no advantage which himself does not possess. But in all these cases the party injured must have no means of detecting the fraud, for if he has such means, his ignorance will not avail him; in that case he becomes the willing dupe of the other's artifice, and volunti non fit injuria. For example, if a horse is sold wanting an eye, and the defect is visible to a common observer, the purchaser cannot be said to be deceived, for by inspection he might discover it; but if the blindness is only discoverable by one experienced in such diseases, and the vendee is an inexperienced person, it is a deceit provided the seller knew of the defect.

The remedy for a deceit, unless

the right of action has been suspended or discharged, is by an action of trespass on the case. The old writ of deceit was brought for acknowledging a fine, or, the like, in another name, and this being a perversion of law to an evil purpose, and a high contempt, the act was laid contra pacem, and a fine imposed upon the offender. When two or more persons unite in a deceit upon another, they may be indicted for a conspiracy, (q. v.) Vide, generally, Com. Dig. Action upon the case for a deceit; Chancery, 3 F 1 and 2; 3 M 1; 3 N 1; 4 D 3; 4 H 4; 4L1; 4 0 2; Covin; Justices of the Peace, B 30; Pleader, 2 H; 1 Vin. Ab. 560; 8 Vin. Ab. 490; Doct. Pl. 51; Dane's Ab. Index, h. t. ; 1 Chit. Pr. 832; Ham. N. P. c. 2, s. 4; Ayl. Pand. 99; 2 Day, 531; 12 Mass. 20; 3 Johns. 269; 6 Johns. 181; 2 Day, 205, 381; 4 Yeates, 522. Vide also articles Equality; Fraud.

DECEM TALES, practice. In the English law this is a writ which gives to the sheriff apponere decem tales, i. e. to appoint ten such men for the supply of jury men, when a sufficient number do not appear to make up a full jury.

DECIES TANTUM, Eng. law. The name of an obsolete writ which formerly lay against a juror who had taken money for giving his verdict, called so, because it was sued out to recover from him ten times as much as he took.

DECISION, practice, is a judg ment given by a competent tribunal. The French lawyers call the opinions which they give on questions propounded to them, decisions. Vide Inst. 1, 2, 8; Dig. 1, 2, 2.

DECLARATION, pleading. A declaration is a specification, in a methodical and legal form, of the circumstances which constitute the plaintiff's cause of action. 1 Chit.

Pl. 248; Co. Litt. 17, a, 303, a; | T. R. 508; 3 Caines's R. 170. 2dly, Bac. Abr. Pleas, B; Com. Dig. The time; in personal actions the Pleader, C 7; Lawes on Pl. 35; declaration must in general state a Steph. Pl. 36; 6 Serg. & Rawle, 28. time when every material or traverIn real actions, it is most properly sable fact happened, and when a called the count; in a personal one venue is necessary, time must also the declaration. Steph. Pl. 36; be mentioned. 5 T. R. 620; Com. Doct. Pl. 83; Lawes, Plead. 33; Dig. Plead. C 19; Plowd. 24; 14 see F. N. B. 16, a, 60, d. The East, R. 390. The precise time, latter, however, is now the general however, is not material, 2 Dall. 346; term; being that commonly used 3 Johns R. 43; 13 Johns. R. 253; when referring to real and personal unless it constitute a material part of actions without distinction. The de- the contract declared upon, or where the date, &c. of a written contract or record is averred, 4 T. R. 590; 10 Mod. 313; 2 Camp. R. 307, 8, n.; or, in ejectment, in which the demise must be stated to have been made after the title of the lessor of the plaintiff, and his right of entry accrued, 2 East, R. 257; 1 Johns. Cas. 283. 3dly, The place. See Venue. 4thly, Other circumstances necessary to maintain the action.

claration in an action at law answers to the bill in chancery, the libel of the civilians, and the allegation of the ecclesiastical courts.

It may be considered with reference, 1st, to those general requisites or qualities which govern the whole declaration; and, 2dly, to its form, particular parts and requisites.

1. The general requisites or qualities of a declaration are, first, that it correspond with the process. But 2. The parts and particular reaccording to the present practice of quisites of a declaration are, first, the courts, oyer of the writ cannot the title of the court and term; see be craved; and a variance between 1 Chit. Pl. 261 et seq. Secondly, the writ and declaration cannot be The venue. Immediately after the pleaded in abatement. 1 Sau. 318, a. title of the declaration follows the Secondly, the second general requi- statement in the margin of the venue site of a declaration is that it contain or county in which the facts are a statement of all the facts necessary, alleged to have occurred, and in in point of law, to sustain the action, which the cause is tried. See Venue, and no more. Co. Litt. 303, a; Thirdly, The commencement. What Plowd. 84, 122. See 2 Mass. 363; is termed the commencement of the Cowp. 682; 6 East, R. 422; 5 declaration follows the venue in the T. R. 623; Vin. Ab. Declarations. margin, and precedes the more cir Thirdly, These circumstances must cumstantial statement of the cause of be stated with certainty and truth. action. It contains a statement, 1st, The certainty necessary in a decla- of the names of the parties to the ration is to a certain intent in general, suit, and if they sue or be sued in which should pervade the whole de- another right, or in a political capaclaration and is particularly required city, (as executors, assignees, qui in setting forth, 1st, the parties; it tam, &c.) of the character or right in must be stated with certainty who are respect of which they are parties to the parties to the suit, and therefore the suit. 2dly, Of the mode in which a declaration by or against "C D the defendant has been brought into and Company," not being a corpora- court; and, 3dly, A brief recital of tion, is insufficient. See Com. Dig. the form of action to be proceeded in, Pleader, C 18; 1 Camp. R. 466; 11 Saund. 318, n. 3; Ib. 111, 112;

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