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tence, he had defamed the plaintiff, and, therefore, that he begs pardon, first, of God, and then of the party defamed, for uttering such words. Clerk's Assist. 225; 3 Burn's Eccl. Law, Defamation, pl. 14; 2 Chit. Pr. 471.
DEFAULT, is the neglect to perform a legal obligation or duty; but in technical language by default is understood the non-appearance of the defendant within the time prescribed by law, to defend himself; it also signifies the non-appearance of the plaintiff to prosecute his claim. When the plaintiff makes default, he may be non-suited, and when the defendant makes default, judgment by default is rendered against him. Com. Dig. Pleader, E 42; lb. B 11. Vide article Judgment by Default, and 7 Vin. Ab. 429; Doct. PI. 208; Grah. Pr. 631. See as to what will excuse or save a default, Co. Litt. 259 b.
DEFAULTER, com. law, one who is deficient in his accounts, or fails in making his accounts correct.
DEFEASANCE, contracts, conveyancing, is an instrument which defeats the force or operation of some other deed or estate. That, which in the same deed is called a condition, in another deed is a defeasance. Every defeasance must contain proper words, as that the thing shall be void. 2 Salk. 575; Willes, 108; and vide Carth. 64. A defeasance must be made in eodem modo, and by matter as high as the thing to be defeated; so that if one be by deed, the other must also be by deed. Touchs. 397. It is a general rule, that the defeasance shall be a part of the same transaction with the conveyance; though the defeasance may be dated after the deed. 12 Mass. R. 456; 13 Pick. R. 413; 1 N. H. Rep. 41; but see 4 Yerg. 57, contra. Vide Vin. Ab. h. t.; Com. Dig. h. t.; lb. Pleader, 2 W 35, 2 W
37; Lilly's Reg. h. t.; Nels. Ab. h. t.; 2 Saund. 47 n, note(l); Cruise, Dig. tit. 32, c. 7,s. 25; 18 John. R. 45; 9 Wend. R. 53S; 2 Mass. R. 493.
DEFENCE, torts, is a forcible resistance of an attack by force. A man is justified in defending his person, that of his wife, children, and servants, and for this purpose he may use as much force as may be necessary, even to killing the assailant, remembering that the means used must always be proportioned to the occasion, and an excess becomes, itself, an injury. A man may also repel force by force in defence of his personal property, and even justify homicide against one who manifestly intends or endeavors by violence or surprise to commit a known felony, as robbery. With respect to the defence or protection of the possession of real property, although it is justifiable even to kill a person in the act of attempting to commit a forcible felony, as burglary or arson, yet this justification can only take place when the party in possession is wholly without fault. 1 Hale, 440, 444; 1 East, P. C. 259, 277. When a forcible attack is made upon the dwelling-house of another, without any felonious intent but barely to commit a trespass, it is in general lawful to oppose force by force, when the former was clearly illegal. 7 Bing. 305; S. C. 20 Eng. C. L. Rep. 139. Vide, generally, Ham. N. P. 136, 151; 1 Chit. Pr. 589616; Grot. lib. 2, c. 1; Rutherf. Inst. B. 1, c. 16.
DEFENCE, pleading, practice, is defined to be the denial of the truth or validity of the complaint, and does not signify a justification. It is a general assertion that the plaintiff has no ground of action, which assertion is afterwards extended and maintained in the plea. 3 Bl. Com. 296; Co. Litt. 127; it is similar to the contestatio litis of the civilians. Defence is of two descriptions, first, half defence, which is as follows, "venit et defendit vim et injuriam, et dicit," &c. or secondly, full defence, "venit > et defendit vim et injuriam, quando," &C. (meaning "quando et ubi curia consideravit," or when and where it shall behove him,) "et damna et quicquid quod ipse defcndere debet et dicit" &c. Co. Litt. 127, b; Bac. Abr. Pleas, D; Willis, 41. In strictness the words quando, &c, ought not to be added when only half defence is to be made, and after the words "venit et defendit vim et injuriam." the subject-matter of the plea should immediately be stated. Gilb. C. P. 188; 8 T. R. 632; 3 B. & P. 9, n. a. It has, however, now become the practice in all cases, whether half or full defence be intended, to state it as follows: "And the said C D, by M N his attorney, comes and defends the wrong, (or in trespass, force) and injury, when &c. and says," which will be considered only as half defence in cases where such defence should be made, and as full defence where the latter is necessary. 8 T. R. 633; Willis, 41; 3 B. & P. 9; 2 Saund. 209, c. If full defence were made expressly by the words "when and where it shall behove him," and "the damages and whatever else he ought to defend," the defendant would be precluded from pleading to the jurisdiction or in abatement, for by defending when and where it shall behove him, the defendant acknowledges the jurisdiction of the court, and by defending the damages he waives all exception to the person of the plaintiff. 2 Saund. 209, c.; 3 Bl. Com. 297; Co. Litt. 127, b; Bac. Abr. Pleas, D. Want of defence being only matter of form the omission is aided by general demurrer. 3 Salk. 271. See further 7 Vin. Abr. 497;
1 Chit. PI. 410; Com. Dig. Abatement, I 16; Gould on PI. c. 2, s. 6-15; Steph. PI. 430.
In another sense, defence signifies a justification; as, the defendant has made a successful defence to the charge laid in the indictment. The act of Congress of April 30, 1790, 1 Story, L. U. S. 89, acting upon the principles adopted in perhaps all the states, enacts, § 28, that every person accused and indicted of the crime of treason, or other capital offence shall "be allowed and admitted to make his full defence by counsel learned in the law; and the court before whom such person shall be tried, or some judge thereof, shall, and they are hereby authorized and required, immediately upon his request, to assign to such person such counsel, not exceeding two, as such person shall desire, to whom such counsel shall have free access at all seasonable hours; and every such person or persons, accused or indicted of the crimes aforesaid, shall be allowed and admitted in his said defence, to make any proof that he or they can produce, by lawful witness or witnesses, and shall have the like process of the court where he or they shall be tried, to compel his or their witnesses to appear at his or their trial, as is usually granted to compel witnesses to appear on the prosecution against them."
Defences in equity may be classed in two divisions, namely, into dilatory defences, (q. v.) and into those which are peremptory. Matters of peremptory or permanent defences may be also divided into two sorts, first, those where the plaintiff never had any right to institute the suit; for example, 1, that the plaintiff had not a superior right to the defendant; 2, that the defendant has no interest; 3, that there is no privity between the plaintiff and defendant or any right to sustain the suit. Secondly, those that insist that the original right, if any, is extinguished or determined; as, 1, when the right is determined by the act of the parties; or, 2, when it is determined by operation of law. 1 Montag. Eq. PI. 89. See Dilatory Defence; Merits.
TO DEFEND. To forbid. This word is used in some old English statutes in the sense it has in French, namely, to forbid. 5 Ric. 2, c. 7. Lord Coke uses the word in this sense; "it is defended by law to distrain on the highway." Co. Litt. 160 b, 161 a. In pleading, to defend is to deny, and the effect of the word " defends," is that the defendant denies the right of the plaintiff, or the force and wrong charged. Steph. PI. 432.
TO DEFEND, contracts. To guaranty; to agree to indemnify. In most conveyances of land the grantor covenants to warrant and defend. It is his duty then to prevent all persons against whom he defends from doing any act which would evict him; when there is a mortgage upon the land, and the mortgagee demands possession or payment of the covenantee and threatens suit, this is a breach of the covenant to defend and for quiet enjoyment. 17 Mass. R. 586.
DEFENDANT, a party who is sued in a personal action. Vide Demandant; Parties to actions; Pursuer; and Com. Dig. Abatement, F; Action upon the case upon assumpsit, E b.
DEFENDER, canon law. The name by which the defendant or respondent is known in the ecclesiastical courts.
DEFICIT. This Latin term signifies that something is wanting. It is used to express the deficiency which is discovered in the accounts of an accountant, or in the money which he has received.
DEFINITE NUMBER. An as
certained number; the term is usually applied in opposition to an indefinite number. When there is a definite number of corporators, in order to do a lawful act a majority of the whole must be present, but it is not necessary they should be unanimous, a majority of those present can, in general, perform the act. But when the corporators consist of an indefinite number, any number, consisting of a majority of those present, may do the act. 7 Cowen, R. 402; 9 B. & Cr. 618, 831; 7 S. & R. 517; Ang. & Am. on Corp. 231.
DEFINITION is an enumeration of the principal ideas of which a compound idea is formed, to ascertain and explain its nature and character; or it is that which denotes and points out the substance of a thing to us. Ayliffe's Pand. 59. A definition ought to contain every idea which belongs to the thing defined and exclude all others. Definitions are always dangerous, because it is always difficult to prevent their being inaccurate, or their becoming so; omnis definitio injure civili periculosa est, parum est enim, ut non subverti possit.
DEFINITIVE, is that which terminates a suit ; a definitive sentence or judgment is put in opposition to an interlocutory judgment; final, (q. v.)
DEFORCIANT, is one who wrongfully keeps the owner of lands and tenements out of the possession of them. 2 Bl. Com. 350.
DEFORCEMENT, tort, in its most extensive sense, signifies the holding of any lands or tenements to which another person has a right. Co. Litt. 277; so that this includes as well an abatement, an intrusion, a disseisin, or a discontinuance as any other species of wrong whatsoever, by which the owner of the freehold is kept out of possession. But as contradistinguished from the former, it is only such a detainer of the freehold, from him who has the right of property, as falls within none of the injuries above mentioned. 3B1. Com. 173; Archb. Civ. PI. 13; Dane's Ab. Index, h. t.
DEFORCEMENT, in the law of Scotland, is the opposition given or resistance made, to messengers or other officers, while they are employed in executing the law. This crime is punished by confiscation of movables, the one half to the king, and the other to the creditor at whose suit the diligence is used. Ersk. Pr. L. Scot. 4, 4,16.
DEFUNCT, a term used for one that is deceased or dead. In some acts of assembly in Pennsylvania, such deceased person is called a decedent (q. v.)
DEGRADATION, punishment, in the ecclesiastical law, is a censure by which a clergyman is deprived of his holy orders, which he had as a priest or deacon.
TO DEGRADE, DEGRADING. To sink or lower a person in the estimation of the public. As a man's character is of great importance to him, and it is his interest to retain the good opinion of all mankind, when h.3 is a witness, he cannot be compelled to disclose any matter which would tend to disgrace or degrade him. 13 How. St. Tr. 17, 334; 16 How. St. Tr. 161. A question having that tendency, however, may be asked, and, in such case, when the witness chooses to answer it, the answer is conclusive. 1 Phil. Ev. 269; R. & M. 383.
DEGREE, descents. This word is derived from the French degree, which is itself taken from the Latin gradus, and signifies literally a step in a stairway, or the round of a ladder. Figuratively applied and as it is understood in law, it is the distance between those who are allied by blood; it means the relations descending from a common ancestor
from generation to generation, as by so many steps. Each generation lengthens the line of descent one degree, for the degrees are only the generations marked in a line by small circles or squares in which the names of the persons forming it are written. Vide Consanguinity; Line; and also Ayliffe's Parergon, 20y; Toull. Dr. Civ. Fran. liv. 3, t. 1, c. 3, n. 158; Aso & Man. Inst. B. 2, t. 4, c. 3, § 1.
DEGREE, measures. In angular measures, a degree is equal to sixty minutes, or the thirtieth part of a sine. Vide Measure.
DEGREE, persons. By degree is understood the state or condition of a person. The ancient English statute of additions, for example, requires that in process for the better description of a defendant, his estate, degree, or mystery, shall be mentioned.
DEHORS. Out of; without. By this word is understood something out of the record; agreement, will, or other thing spoken of; something foreign to the matter in question.
DEL CREDERE; contracts. A del credere commission is one under which the agent, in consideration of an additional premium, engages to insure to his principal, not only the solvency of the debtor, but the punctual discharge of the debt; and he is liable in the first instance without any demand from the debtor. 6 Bro. P. C. 387; Beawes, 429; 1 T. Rep. 112; Paley on Agency, 39. If the agent receive the amount of sales and remit the amount to the principal by a bill of exchange he is not liable if it should be protested. 2 W. C. C. R. 378. See also, Com. Dig. Merchant, B; 4 M. & S. 574.
DELAPIDATION, property, is either^ the letting a building go to ruin, or the ruin and damage which accrues to the building in consequence of such neglect. Harr. Dig. Ecclesiastical Law, VI.
DELAWARE. The name of one of the original states of the United States of America. For a considerable time prior to the revolution the counties of this state were connected with Pennsylvania, under the name of territories annexed to the latter. In 1703, a separation between them took place, and from that period down to the revolution, the territories were governed by a separate legislature of their own, pursuant to the liberty reserved to them by a clause of their original charter. 1 Story, Const. § 127. The constitution of this state was amended and adopted December 2, 1831. The powers of the government are divided into three branches, the legislative, the executive and the judicial. 1st. The legislative power of the state is vested in a general assembly, which consists of a senate and house of representatives. 1. The senate is composed of three senators from each county, the number may be increased by the general assembly, two-thirds of each branch concurring, but the number of senators shall never be greater than one-half, nor less than two-thirds of the number of representatives, Art. 2, s. 3. The senators are chosen for four years by the citizens residing in the several counties. 2. The house of representatives is composed of seven members from each county, but the general assembly, two-thirds of each branch concurring, may increase the number. The representatives are chosen for two years by the citizens residing in the several counties. Art. 2, s. 2.— 2d. The supreme executive power of the state is vested in a governor, who is chosen by the citizens of the state. He holds his office during four years from the third Tuesday in January next ensuing his election; and is not eligible a second time to
the said office, Art. 3. Upon the happening of a vacancy, the speaker of the senate exercises the office, until a governor elected by the people shall be duly qualified. Art. 3, s. 14.—M. The judicial power is vested in a court of errors and appeals, a superior court, a court of chancery, an orphans' court, a court of oyer and terminer, a court of general sessions of the peace and gaol delivery, a register's court, justices of the peace, and such other courts as the general assembly, with the concurrence of two-thirds of all the members of both houses, shall from time to time establish. Art. 6.
DELAY, civil law, is the time allowed either by law or by agreement of the parties to do something. The law allows a delay, for a party who has been summoned to appear, to make defence, to appeal; it admits of a delay during which an action may be brought, certain rights exercised, and the like. By the agreement of the parties there may be a delay in the payment of a debt, the fulfilment of a contract, he. Vide Code, 3, 11, 4; Nov. 69, c. 2; Merl. Rep. h. I.
DELEGATE, government. A person elected by the people of a territory of the United States to congress, who has a seat in congress, and a right of debating, but not of voting. Ordinance of July 13, 1787, 3 Story's L. U. S. 2076. The delegates from the territories of the United States are entitled to send and receive letters, free of postage, on the same terms and conditions as members of the senate and house of representatives of the United States; and also to the same compensation as is allowed to members of the senate and house of representatives. Act of Feb. 18,1802, 2 Story, L. U. S. 828. A delegate is also a person elected to some deliberative assembly, usually one for the nomination of officers.
DELEGATION, civil law. It is