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6 T. R. 130. Fourthly, The statement of the cause of action, in which all the requisites of certainty before mentioned must be observed, necessarily varies, according to the circumstances of each particular case, and the form of action, whether in assumpsit, debt, covenant, detinue, case, trover, replevin or trespass. Fifthly, The several counts. A declaration may consist of as many counts as the case requires, and the jury may assess entire or distinct damages on all the counts, 3 Wils. R. 1H5; 2 Bay, R. 206; and it is usual particularly in actions of assumpsit, debt on simple contract, and actions on the case, to set forth the plaintiff's cause of action in various shapes in different counts, so that if the plaintiff fail in proof of one count he may succeed in another. 3 Bl. Com. 295. Sixthly, The conclusion; in personal and mixed actions the declaration should conclude to the damage of the plaintiff, Com. Dig. Pleader, C 84; 10 Co. 116, b, 117, a ; unless in scirefacias and in penal actions at the suit of a common informer. Seventhly, The prqfert and pledges. In an action at the suit of an executor or administrator, immediately after the conclusion to the damages, &c. and before the pledges, a profcrt of the letters testamentary or letters of administration should be made. Bac. Abr. Executor,C; Dougl. 5, in notes. At the end of the declaration it is usual to add the plaintiff's common pledges to prosecute, John Doe and Richard Roe.
See, generally, 1 Chit. PI. 248 to 402; Lawes, Pl. Index, h. t.; Arch. Civ. PI. Index, h. t.; Steph. PI. h. t.; Grah. Pr. h. t.; Com. Dig. Pleader, h. t.; Dane's Ab. h. t.
DECLARATION OF INDEPENDENCE. This is a state paper issued by the congress of the United States of America, in the name and and by the authority of the people, on
the fourth day of July, 1776, wherein are set forth,
1. The rights of mankind; the uses and purposes of governments; the rights of the people to institute or to abolish them; the sufferings of the colonies, and their right to withdraw from the tyranny of the king of Great Britain.
2. The various acts of tyranny of the British king.
3. The petitions for redress of these injuries, and the refusal to redress them; the recital of an appeal to the people of Great Britain, and of their being deaf to the voice of justice and consanguinity.
4. An appeal to the Supreme Judge of the world for the rectitude of the intentions of the representatives.
5. A declaration that the united colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown, and that all political connexion between them and the state of Great Britain is and ought to be dissolved.
6. A pledge by the representatives to each other of their lives, their fortunes, and their sacred Honour.
The effect of this declaration was the establishment of the government of the United States as free and independent, and thenceforth the people of Great Britain have been held, as the rest of mankind, enemies in war, in peace friends.
DECLARATION OF INTENTIONS, is the act of an alien, who goes before a court of record, and in a formal manner declares that it is bona fide, his intention to become a citizen of the United States and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, whereof he may at the time be a citizen or subject. Act of Congress of April 14, 1802, 8. 1. This declaration must in usual cases be made at least three years before his admission. Id. But there are numerous exceptions to this rule. See Naturalization.
DECLARATION OF TRUST, is the act by which an individual acknowledges that a property, the title of which he holds, does in fact belong to another, for whose use he holds the same. The instrument in which the acknowledgment is made, is also called a declaration of trust; but such a declaration is not always in writing, though it is highly proper it should be so. Will, on Trust. 49, note (y); Sugd. on Pow. 200. See Med. Rep. Declaration au profit d'un tiers.
DECLARATION OF WAR, is an act of the national legislature, in which a state of war is declared to exist between the United States and some other nation. This power is vested in congress by the constitution, art. 1, s. 8. There is no form or ceremony necessary, except the passage of the act. A manifesto stating the causes of the war, is usually published, but war exists as soon as the act takes effect. It was formerly usual to precede hostilities by a public declaration communicated to the enemy, and to send a herald to demand satisfaction. Poter, Antiquities of Greece, b, 3, c. 7. Dig. 49, 15, 24. But that is not the practice of modern times.
In some countries, as England and France, the power of declaring war is vested in the king, but he has no power to raise men or money to carry it on, which renders the right almost nugatory.
The public proclamation of the government of a state, by which it declares itself to be at war with a foreign power, which is named, and which forbids all and every one to aid or assist the common enemy, is also called a declaration of war.
DECLARATIONS, evidence, are the statements made by the parties
to a transaction, in relation to the same. These declarations when proved are received in evidence for the purpose of illustrating the peculiar character and circumstances of the transaction. Declarations are admitted to be proved in a variety of cases.
1. In cases of rape the fact that the woman made declarations, in relation to it, soon after the assault took place, is evidence; but the particulars of what she said cannot be heard. 2 Stark. N. P. C. 242; S. C. 3 E. C. L. R. 344. But it is to be observed that these declarations can be used only to corroborate her testimony, and cannot be received as independent evidence; where, therefore, the prosecutrix died, these declarations could not be received. 9 C. & P. 420; S. C. 38 Eng. C. L. R. 173; 9 C. & P. 471 ; S. C. 38 E. C. L. R. 188.
2. When more than one person is concerned in the commission of a crime, as in cases of riots, conspiracies, and the like, the declarations of either of the parties, made while acting in the common design, are evidence against the whole; but the declarations of one of the rioters or conspirators, made after the accomplishment of their object, and when they no longer acted together, are evidence only against the party making them. 2 Stark. Ev. 235; 2 Russ. on Cr. 572; Rose. Cr. Ev. 324; 1 Breese, Rep. 269. In civil cases the declarations of an agent, made while acting for his principal, are admitted in evidence as explanatory of his acts, but his confessions after he has ceased to act, are not evidence. 4 S. & R. 321.
3. To prove a pedigree, the declarations of a deceased member of the family are admissible. Vide Hearsay, and the cases there cited.
4. The dying declarations of a man who has received a mortal injury, as to the fact itself, and the party by whom it was committed, are good evidence; but the party making them must be under a full consciousness of approaching death. The declarations of a boy between ten and eleven years of age, made under a consciousness of approaching death, were received in evidence on the trial of a person for killing him, as being declarations in articulo mortis. 9 C. & P. 395; S. C. 38 E. C. L. R. 163. Evidence of such declarations is admissible only when the death of the deceased is the subject of the charge, and the circumstances of the death the subject of the dying declarations. 2 B. & C. 605; S. C. 9 E. C. L. R. 196; 2 B. & C. 608; S. C. 9 E. C. L. R. 198; 1 John. Rep. 159; 15 John. R. 286; 7 John. R. 95. But see contra, 2 Car. Law Repos. 102. Vide Death bed or Dying declarations.
DECLARATORY, is that which explains something, without containing any new provision or obligation, as, a declaratory law.
TO DECLARE. To make known or publish. By the constitution of the United States, congress have power to declare war. In this sense the word declare signifies, not merely to make it known that war exists, but also to make war and to carry it on. 4 Dall. 37; 1 Story, Const. § 428; Rawle on the Const. 109.
DECOCTION, med.jurisp. The operation of boiling certain ingredients in a fluid, for the purpose of extracting the parts soluble at that temperature. Decoction also means the product of this operation. In a case in which the indictment charged the prisoner with having administered to a woman a decoction of a certain shrub called savin, it appeared that the prisoner had administered an infusion, (q. v.) and not a decoction; the prisoner's counsel insisted that he was entitled to an acquittal, on the ground that the medicine was
misdescribed, but it was held that infusion and decoction are ejusdem generis, and that the variance was immaterial. 3 Camp. R. 74, 75.
DECREE, practice, is the judgment or sentence of a court of equity. It is either interlocutory or final. The former is given on some plea, or issue arising in the cause, which does not decide the main question; the latter settles the matter in dispute, and a final decree, has the same effect as a judgment at law. 2 Madd. Ch. 462; 1 Chan. Cas. 27; 2 Vern. 89; 4 Bro. P. C. 287. Vide 7 Vin. Ab. 394; 7 Com. Dig. 445; 1 Supp. to Ves. Jr. 223.
DECREE, legislation. In some countries, as in France, some acts of the legislature, or by the sovereign, which have the force of law, are called decrees; as, the Berlin and Milan decrees.
DECRETALS, eccles. law. The decretals were letters written by the sovereign pontiffs, who answered questions propounded to them by the bishops, and even by private individuals on points of discipline. These letters decided those points, and were called decretals, because they had the force of law or decrees in the church.
DEDI, conveyancing. I have given. This word amounts to a warranty in law, when it is in a deed; for example, if in a deed it be said, I have given, &c. to A B, this is a warranty to him and his heirs. Co. Litt. 304. Vide Concesxi.
DEDICATION. Solemn appropriation. It may be expressed or implied. An express dedication of property to public use is made by a direct appropriation of it to such use, and it will be enforced. 2 Peters, R. 566. But a dedication of property to public or pious uses may be implied from the acts of the owner. A permission to the public for the space of eight or even six years, to use a street without bar or impediment, is evidence from which a dedication to the public may be inferred. 11 East, R. 376; Vi Wheat. R. 585. Sed vide 5 Taunt. R. 125. Vide Street, and the following authorities, 3 Kent, Com. 450 ; 5 Taunt. 125 ; 5 Barn. & Aid. 454; 4 Barn. & Aid. 447; Math. Pres. 333. As to what shall amount to a dedication of an invention to public use, see 1 Gallis. 482; 1 Paine's C. C. R. 345; 2 Pet. R. 1; 7 Pet. R. 292; 4 Mason, R. 108.
DEDIMUS, practice. The name of a writ to commission private persons to do some act in the place of a judge; as, to administer an, oath of office to a justice of the peace, to examine witnesses, and the like. 4 Com. Dig. 319; 3 Com. Dig. 359; Dane's Ab. Index, h. t. Rey, in his Institutions Judiciaires, de l'Angleterre, tom. 2, p. 214, exposes the absurdity of the name given to this writ; he says it is applicable to every writ which emanates from the same authority; dedimus, we have given.
DEED, conveyancing, contracts, is a writing or instrument, under seal, containing some contract or agreement, and which has been delivered by the parties. Co. Litt. 171; 2 Bl. Com. 295; Shep. Touch. 50. This applies to all instruments in writing, under seal, whether they relate to the conveyance of lands, or to any other matter; a bond, a single bill, an agreement in writing, or any other contract whatever, when reduced to writing, which writing is sealed and delivered, is as much a deed as any conveyance of land. 2 Serg. & Rawle, 504; 1 Mood. Cr. Cas. 57. Deed, in its more confined sense, signifies a writing, by which lands, tenements, and hereditaments are conveyed, which writing is sealed and delivered by the parties.
The formal parts of a deed for the
conveyance of land, are, 1, the premises; 2, the habendum; 3, the tenendum; 4, the redendum; 5, the conditions; 6, the warranty; 7, the covenants; and 8, the conclusion. The circumstances necessarily attendant upon a valid deed, are the following; 1. It must be written or printed on parchment or paper. Litt. 229, a; 2 Bl. Com. 297.-2. There must be sufficient parties.—3. A proper subject-matter, which is the object of the grant.—4. A sufficient consideration.—5. An agreement properly set forth.—6. It must be read, if desired.—7. It must be signed and sealed.—8. It must be delivered.—9. And attested by witnesses.—10. It should be properly acknowledged before a competent officer.—11. It ought to be recorded. A deed may be avoided, 1. By alterations made in it subsequent to its execution, when made by the party himself, whether they be material or immaterial; and by any material alteration, made even by a stranger. Vide Erasure; Interlineation. 2. By the disagreement of those parties whose concurrence is necessary; for instance, in the case of a married woman by the disagreement of her husband. 3. By the judgment of a competent tribunal.
According to Sir William Blackstone, 2 Com. 313, deeds may be considered as (1), conveyances at common law, original and derivative. 1st. The original are, 1, Feoffment; 2, Gift; 3, Grant; 4, Lease; 5, Exchange; and 6, Partition.—2dly. Derivative, which ore, 7, Release; 8, Confirmation; 9, Surrender; 10, Assignment; 11, Defeasance. (2), Conveyances which derive their force by virtue of the statute of uses; namely, 12, covenant to stand seised to uses; 13, Bargain and sale of lands; 14, Lease and release; 15, Deed to lead and declare uses; 16, Deed of revocation of uses.
The deed of bargain and sale, is the most usual in the United States. Vide Bargain and Hale. Chancellor Kent is of opinion that a deed would be perfectly competent in any part of the United States, to convey the fee, if it was to be to the following effect; "I, A B, in consideration of one dollar to me paid, by C D, do bargain and sell, (or in some of the states, grant) to C D, and his heirs, (in New York, Virginia, and some other states, the words, and his heirs may be omitted,) the lot of land, (describing it,) witness my hand and seal," &c. 4 Kent, Com. 452. Vide generally, Vin. Abr. Fait; Com. Dig. Fait; Shep. Touch, ch. 4; Dane's Ab. Index, h. t.; 4 Cruise's Dig. passim.
Title deeds are considered as part of the inheritance, and pass to the heir as real estate. A tenant in tail is, therefore, entitled to them, and chancery will enable him to get possession of them. 1 Bro. R. 206; 1 Ves. jr. 227; 11 Ves. 277; 15 Ves. 173. See Hill. Ab. c. 25; 1 Bibb, R. 333; 3 Mass. 487 ; 5 Mass. 472.
DEED POLL, contracts. A deed made by one party only is not indented, but polled or shaved quite even, and is, for this reason, called a deed-poll or single deed. Co. Litt. 299, a. A deed poll is not, strictly speaking, an agreement between two persons; but a declaration of some one particular person, respecting an agreement made by him with some other person. For example, a feoffment from A to B by deed poll, is not an agreement between A and B, but rather a declaration by A addressed to all mankind, informing them that he thereby gives and enfeoffs B of certain land therein described. It was formerly called charta de una parte, and usually began with these words. Sciant praesentes et futuri quod ego A &c.; and now begins, "know all
men by these presents, that I, A B, have given, granted, and enfeoffed, and by these presents do give, grant and enfeoff," &c, Cruise Real Prop, tit. 32, c. 1, s. is3.
DEFALCATION, practice, contracts. Is the reduction of the claim of one of the contracting parties against the other, by deducting from it a smaller claim due from the former to the latter. The law operates this reduction, for, if the parties die or are insolvent, the balance between them is the only claim. For the etymology of this word, see Bracken. Law Misc. 186; 1 Rawle's R. 291,- 3 Binn. R. 135. Defalcation also signifies the act of a defaulter. The bankrupt act of 19 August 1841, declares that a person who owes debts which have been created in consequence of a defalcation as a public officer, or as executor, administrator, guardian or trustee, or while acting in any other fiduciary capacity, shall not have the benefit of that law.
DEFAMATION, tort, is the speaking slanderous words of a person so as, de bonis fama aliquid detrahere, to hurt his good fame. V. Slander. In the United States, the remedy for defamation is by an action of slander where the words are slanderous. In England, besides the remedy by action, proceedings may be instituted in the ecclesiastical court for redress of the injury. The punishment for defamation, in this court, is payment of costs and penance enjoined at the discretion of the judge. When the slander has been privately uttered, the penance may be ordered to be performed in a private place; when publicly uttered, the sentence must be public, as in the church of the parish of the defamed party, in time of divine service, and the defamer may be required publicly to pronounce that by such words, naming them, as set forth in the sen