Gambar halaman
PDF
ePub

of by his last will and testament; and if he made no will, the same was 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. Diet. See this Diet. 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. Tide 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.

in writing of some contested point. The debate should be conducted with 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. & Aid. 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

[ocr errors]

gress of March 2, 1799, s. 80; Encyclopedic, h. t.; Dane's Ab. In

DEBET ET DETINET, pleading. He owes and detains. In an action of debt the form of the writ is either in the debet and detinet, 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.

DEBIT, accounts, commerce; a term used in book-keeping to express the left hand page of the ledger, to which are carried all the articles supplied or paid on the subject 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 proceedings 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.

Debts arise or are proved by matter of record as judgment debts; by bonds or specialties; and by simple contracts, where the quantity is fixed and specific and does not depend upon any future valuation to settle it. 3 Bl. Com. 154; 2 Hill. R. 220.

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 immediately 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.

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; Rescission ; Set-off.

In payment of debts some are to be paid before others in cases of insolvent estates; first, in consequence of the character of the creditor, as debts due to the United States are generally to be first paid; and secondly, in consequence of the nature of the debt, as funeral expenses and servants' 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 a warded 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 recover 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. I. 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. PI. 100 to 109; Selw. N. P. 553 to 082; 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.

DEBTOR, contracts. One who owes a debt; he who may be constrained to pay what he owes. A debtor is bound to pay his debt personally, and all the estate he possesses or may acquire is also liable for his debt. Debtors are joint or several; joint, when they all equally owe the debt in solido; in this case if a suit should be necessary to recover the debt, all the debtors must be

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; lb. Debt; 8 Com. Dig. 383; Dig. 50, 16, 108; lb, 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 injury, for if the party misrepresenting was himself mistaken, no blame can attach to him. The representation must be made malo animo, but whether or not the party is himself to gain by it, is wholly immaterial. Deceit may not only be by asserting a falsehood deliberately to the injury of another, as, that Paul is in flourishing circumstances, whereas he is 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 mart, 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 I 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 i purchaser cannot be said to be de-' ceived, 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 de- i ceit provided the seller knew of the ) defect. ( The remedy for a deceit, unless I

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; 3N1; 4 D 3; 4H4; 4L1; 4 0 2; Covin; Justices of the Peace, B 30; Pleader, 2 H; 1 Vin. Ab. 560; 8 Vin. Ab. 490; Doct. PI. 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 judgment 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.

PI. 248; Co. Litt. 17, a, 303, a; Bac. Abr. Pleas, B; Com. Dig. Pleader, C 7; Lawes on Pl. 35; Steph. Pi. 36; 6 Serg. & Rawle, 28. In real actions, it is most properly called the count; in a personal one the declaration. Steph. PI. 36; Doct. PI. 83s' Lawes, Plead. 33; see F. N. B. 16, a, 60, d. The latter, however, is now the general term; being that commonly used when referring to real and personal actions without distinction. The declaration 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 according to the present practice of the courts, oyer of the writ cannot be craved; and a variance between the writ and declaration cannot be pleaded in abatement. lSau.318, a. Secondly, the second general requisite of a declaration is that it contain a statement of all the facts necessary, in point of law, to sustain the action, and no more. Co. Litt. 3U3, a; Plowd. 84, 122. See 2 Mass. 363; Cowp. 682; 6 East, R. 422; 5 T. R. 623; Vin. Ab. Declarations. Thirdly, These circumstances must be stated with certainty and truth. The certainty necessary in a declaration is to a certain intent in general, which should pervade the whole declaration and is particularly required in setting forth, 1st, the parties; it must be stated with certainty who are the parties to the suit, and therefore a declaration by or against "CD and Company," not being a corporation, is insufficient. See Com. Dig. Pleader, C 18; 1 Camp. R. 466; 1

T. R. 508; 3 Caines's R. 170. 2dly, The time; in personal actions the declaration must in general state a time when every material or traversable fact happened, and when a venue is necessary, time must also be mentioned. 5 T. R. 620; Com. Dig. Plead. C 19; Plowd. 24; 14 East, R. 390. The precise time, however, is not material, 2 Dall. 346; 3 Johns. R. 43; 13 Johns. R. 253; unless it constitute a material part of 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.

2. The parts and particular requisites of a declaration are, first, the title of the court and term; see 1 Chit. PI. 261 et seq. Secondly, The venue. Immediately after the title of the declaration follows the statement in the margin of the venue or county in which the facts are alleged to have occurred, and in which the cause is tried. See Venue, Thirdly, The commencement. What is termed the commencement of the declaration follows the venue in the margin, and precedes the more cir. cumstantial statement of the cause of action. It contains a statement, 1st, of the names of the parties to the suit, and if they sue or be sued in another right, or in a political capacity, (as executors, assignees, qui tam, &c.) of the character or right in respect of which they are parties to the suit. 2dly, Of the modo in which the defendant has been brought into court; and, 3dly, A brief recital of the form of action to be proceeded in, 1 Saund. 318, n. 3; lb. I11, 112;

« SebelumnyaLanjutkan »