Gambar halaman

the security should be furnished; it was held that the goods remained the property of the vendor notwithstanding the delivery. But, it seems, that in such cases, the goods would be liable for the debts of the vendee's creditors, originating after the delivery; and that the vendee may, for a bona fide consideration, sell the goods while in his possession. 4 Mass. 405.—10. Where goods are sold to be paid for on delivery, if on delivery the vendee refuses to pay for them, the property is not divested from the vendor. 13 Johns. 434; 1 Yeates, 529.—11. If the vendor rely on the promises of the vendee to perform the conditions of the sale, and deliver the goods accordingly, the right of property is changed; but where performance and delivery are understood to be simultaneous, possession obtained by artifice will not vest a title in the vendee. 3 Serg. <k Rawle, 20.— 12. Where on the sale of a chattel, the purchase money is paid, the property is vested in the vendee, and if he permit it to remain in the custody of the vendor, he cannot call upon the latter for any subsequent loss or deterioration not arising from negligence. 2 Johns. 13; 2 Caines's R. 38; 3 Johns. 394.

In order to make a good donatio mortis causa, it is requisite that there should be a delivery of the subject to or for the donee, where such delivery can be made. 3 Binn. R. 370; 2 Ves. jr. 120; 9 Ves. jr. 1. The delivery of the key of the place where bulky goods are deposited, is, however, a sufficient delivery of such goods. 2 Ves. sen. 445. Vide

3 P. Wms. 357; 2 Bro. C. C. 612;

4 Barn. & A. 1; 3 Barn. & C. 45. See Sale; Stoppage in transitu;

Tender; and Domat, Lois Civiles, Liv. 1, tit. 2, s. 2; Harr. Dig. Sale, II, 3.

DELIVERY, med. jur., is the act of a woman giving birth to her

offspring. It is frequently of great importance to ascertain whether or not a delivery has taken place, and the time when it took place. Delivery may be considered with regard, 1, to pretended delivery; 2, to concealed delivery; and, 3, to the usual signs of delivery.

1. In pretended delivery the female declares herself to be a mother, without being so in reality. It owes its origin to cupidity, when the woman wishes to impose a suppositious heir to an estate, or to a culpable desire of imposing upon the husband and of relieving herself from a reproach of sterility. Pretended delivery may present itself in three points of view;—1. When the female who feigns has never been pregnant. When thoroughly investigated, this may always be detected. There are signs which must be present and cannot be feigned. An enlargement of the orifice of the uterus, and a tumefaction of the organs of generation, should always be present, and if absent, are conclusive against the fact. Annales d'Hygiene, tome ii. p. 227.—2. When the pretended pregnancy and delivery have been preceded by one or more deliveries. In this case attention should be given to the following circumstances; the mystery (if any) which has been affected with regard to the situation of the female—her age— that of her husband, and particularly whether aged or decrepid.—3. When the woman has been actually delivered, and substitutes a living for a dead child. But little evidence can be obtained on this subject from a physical examination.

2. Concealed delivery generally takes place when the woman either has destroyed her offspring, or it was born dead. In suspected cases the following circumstances should be attended to: 1. The proofs of pregnancy which arise in conse

[ocr errors]

quence of the examination of the mother. When she has been pregnant and has been delivered, the usual signs of delivery, mentioned below, will be present. A careful investigation as to the woman's appearance before and since the delivery will have some weight, though such evidence is not always to be relied upon, as such appearances are not unfrequently deceptive. 2. The proofs of recent delivery. 3. The connexion between the supposed state of parturition, and the state of the child that is found; for if the age of the child do not correspond to that time, it will be a strong circumstance in favour of the mother's innocence. A redness of the skin and an attachment of the umbilical cord to the navel, indicate a recent birth. Whether the child was living at its birth, belongs to the subject of infanticide, (q. v.)

3. The usual signs of delivery are very well collected in Beck's excellent treatise on Medical Jurisprudence, and are here extracted:

If the female be examined within three or four days after the occurrence of delivery, the following circumstances will generally be observed ; ' greater or less weakness, a slight paleness of the face, the eye a little sunken, and surrounded by a purplish or dark-brown coloured ring, and a whiteness of the skin, like a person convalescing from disease. The belly is soft, the skin of the abdomen is lax, lies in folds, and is traversed in various directions by shining reddish and whitish lines, which especially extend from the groins • and pubis, to the navel. These lines have sometimes been termed linecR albicantes, and are particularly observed near the umbilical region, where the abdomen has experienced the greatest distention. The breasts become tumid and hard, and on pressure emit a

fluid, which at first is serous, and afterwards gradually becomes whiter; and the presence of this secretion is generally accompanied with a full pulse and soft skin, covered with a moisture of a peculiar and somewhat acid odour. The areolae round the nipples are dark coloured. The external genital organs and vagina are dilated and tumefied throughout the whole of their extent, from the pressure of the foetus. The uterus may be felt through the abdominal parietes, voluminous, firm, and globular, and rising nearly as high as the umbilicus. Its orifice is soft and tumid, and dilated so as to admit two or more fingers. The fourchcttc or anterior margin of the perinaeeum is sometimes torn, or it is lax, and appears to have suffered considerable distention. A discharge, (termed the lochial) commences from the uterus, which is distinguished from the menses by its pale colour, its peculiar and well known smell, and its duration. The lochia are at first of a red colour, and gradually become lighter until they cease.

These signs may generally be relied upon as indicating the state of pregnancy, yet it requires much experience in order not to be deceived by appearances.

1. The lochial discharge might be mistaken for menstruation, or fluor albus, were it not for its peculiar smell; and this it has been found impossible, by any artifice, to destroy.

2. Relaxation of the soft parts arises as frequently from menstruation as from delivery; but in these cases the os uteri and vagina are not so much tumefied, nor is there that tenderness and swelling. The parts are found pale and flabby when all signs of confusion disappear after delivery; and this circumstance does not follow menstruation.

3. The presence of milk, though a usual sign of delivery, is not always to be relied upon, for this secretion may take place independent of pregnancy.

4. The wrinkles and relaxations of the abdomen which follow delivery may be the consequence of dropsy, or of lankness following great obesity. This state of the parts is also seldom striking after the birth of the first child, as they shortly resume their natural state.

Vide, generally, 1 Beck's Med. Jur. c. 7, p. 206; 1 Chit. Med. Jur. 411; Ryan's Med. Jur. ch. 10, p. 133; 1 Briand, Med. Leg. lere partie, c. 5.

DELUSION, med.jurisp. That state of the mind of an individual who conceives something extravagent to exist, which has no existence, and who is incapable of being reasoned out of that absurd conception. The individual is of course insane or an idiot. For example, should a parent unjustly persist without the least ground in attributing to his daughter a continued course of propensities and vices, and use her with uniform unkindness, there not being the slightest pretence or colour of reason for the supposition, a just inference of insanity or delusion is presented to the minds of a jury, because a supposition long entertained and persisted in, after argument to the contrary, and against the natural affections of a parent, suggests that he must labour under some morbid mental delusion. 3 Addnms's R. 90, 91; lb. 180; Hagg. R. 27; and see Dr. Connolly's Inquiry into Insanity, 384. Ray, Med. Jur. Prel. Views, § 20, p. 41, and § 22, p. 47; 3 Addams, R. 79; 1 Litt. R. 371; Annales d' Hygiene publique, tom. 3, p. 370.

DEMAND, contracts. A claim; a legal obligation. Lord Coke says that demand is a word of art, and of an extent, in its signification, greater

than any other word except claim. Litt. sect. 508; Co. Litt. 291; 2 Hill, R. 220. Hence a release of all demands is, in general, a release of all covenants, real and personal, conditions, whether broken or not, annuities, recognizances, obligations, contracts, and the like. 3 Tho. Co. Litt. 427; 3 Penna. 120; 2 Hill, R. 2*8. But a release of all demands does not discharge rent before it is due, if it be a rent incident to the reversion; for the rent was not only not due, but the consideration—the future enjoyment of the lands—for which the rent was to be given, was not executed. 1 Sid. 141; 1 Lev. 99; 3 Lev. 274; Bac. Ab. Release, I.

DEMAND, practice, is a request by one individual to another to do a particular thing. Demands are either express or implied. In many cases an express demand must be made before the commencement of an action, some of which will be considered below; in other cases an implied demand is all that the law requires, and the bringing of an action is a sufficient demand in those cases. 1 Saund. 33, note 2.

A demand is frequently necessary to secure to a man all his rights, both in actions arising on contracts and those which are founded on some tort. It is requisite also when it is intended to bring the party into contempt for not performing an order which has been made a rule of court.

1. Whether a demand is requisite before the plaintiff can commence an action arising on contract, depends upon the express or implied stipulations of the parties. In case of the sale of property, for example, to be paid for on delivery, a demand of it must be made before the commencement of an action for non-delivery, and proved on the trial, unless it can be shown that the seller has incapacitated himself by a resale and delivery of the property to another person. 1 East, R. 204; 5 T. R. 409; 10 East, R. 359; 5 B. & Aid. 712; 2 Bibb, 280; Hardin, 79; 1 Verm. 25; 5Cowen,516; 16 Mass. 453; 6 Mass. 61; 4 Mass. 474; 3 Bibb, 85; 3 Wend. 536; 5 Munf. R. 1; 2 Greenl. 308; 9 John. 361. On the same principles, a request on a general promise to marry is requisite, unless it be dispensed with by the party's marrying another person, which puts it out of his power to fulfil his contract, or that he refuses to marry at any time. 2 Dow. & Ry. 55; 1 Chit. Pr. 57, note (n), and 438, note (e). A demand of rent must always be made before a re-entry for the non-payment of rent. Vide Re-entry. When a note is given and no time of payment is mentioned it is payable immediately. 8 John. R. 374; 5 Cowen, R.516; 1 Conn. R. 404; 1 Bibb, R, 164; 1 Blackf. R. 233. There are cases where a demand was not originally necessary, but has become so by the act of the obligor. On a promissory note no express demand of payment is requisite before bringing an action, but if the debtor has tendered the amount due' to the creditor on the note, it be. comes necessary before bringing an action, that a demand should be made of the debtor for payment; and this should be of the very sum tendered. 1 Campb. 181; lb. 474; 1 Stark. R. 323; 2 E. C. L. R. 409.

When a debt or obligation is payable, and no day of payment is fixed, it is payable on demand. In omnibus obligationibus in quibus dies non ponitur, presenti die debitur. Jac. Introd. 62; 7 T. R. 427 ; 2 Barn. & Cr. 157.

When demand of the payment of a debt, secured by note or other instrument, is made, the party making it, should be ready to deliver up such note or instrument, on payment; or when it has been lost ordestroyed,an indemnity should be offered. 2 Taunt. 61; 3

Taunt. 397; 5 Taunt. 30 ; 6 Mass. R. 524; 7 Mass. R. 483; 13 Mass. R. 557; 11 Wheat. R. 171; 4 Verm. R. 313; 7 Gill & Johns. 78; SWhart.R. 116; 12 Pick. R. 132; 17 Mass. 449.

2. It is requisite in some cases arising ex delicto, to make a demand of restoration of some right, before the commencement of an action. The following are examples.—1. When the wife, apprentice, or servant of one person, has been harboured by another, the proper course is to make a demand of restoration before an action brought, in order to constitute the party a wilful wrongdoer, unless the plaintiff can prove an original illegal enticing away. 2 Lev. 63; Willes, 582; 1 Peake's C. N. P. 55; 5 East, 39; 6 T. R. 652; 4 Moore's R. 12; 16 E. C. L. R. 357.—2. In cases where the taking of goods was lawful, but their subsequent detention became illegal, it is absolutely necessary, in order to secure sufficient evidence of a conversion on the trial, to give a formal notice of the owner's right to the property and possession, and to make a formal demand in writing of the delivery of such possession to the owner. The refusal to comply with such a demand, unless justified by some right which the possessor may have in the thing detained, will in general afford sufficient evidence of a conversion. 2 Saund. 47, note (e); 1 Chit. PI. 179, 180; 1 Chit. Pr. 566.—3. When a nuisance has been erected or continued by a man on his own land, it is advisable, particularly in the case of a private nuisance, to give the party notice and request him to remove it, either before an entry is made for the purpose of abating it, or an action is commenced against the wrong-doer; and a demand is always indispensable in cases of a continuer of such nuisance. 2 B. & C. 302; S. C. 9 E. C. L. R. 96; Cro. Jac. 555; 5 Co. 100, 101; 2 Phil. Ev. 8, 18, n.; 119; 1 East, 111; 7 Vin. Ab. 506; I Ayl. Pand. 497; Bac. Ab. Rent, I. Vide articles Abatement of Nuisance, and Nuisance. For the allegation of a demand or request in a declaration, see article Licet saepius requisitus; and Com. Dig. Pleader, C 70; 2 Chit. PI. 84; 1 Saund. 33, note 2; 1 Chit. PL 322.

3. When an order to pay money, or to do any other thing, has been made a rule of court, a demand for the payment of the money, or performance of the thing, must be made before an attachment will be issued for a contempt. 2 Dowl. P. C. 338, 448; 1C.M.4R. 88, 459; 4 Tyr. 369; 2 Scott, 193; 4 Dowl. P. C. 114; 1 Hodges, 197; 1 Har. & Woll. 216; 1 Hodges, 157; Id. 337; 4 Dowl. P. C. 86.

DEMAND IN RECONVENTION, in Louisiana, this term is used to signify the demand which the defendant institutes in consequence of that which the plaintiff has brought against him. Code of Pr. art. 374. Vide Cross action.

DEMANDANT, practice. He who brings a real action, who, in personal actions, is called plaintiff. Co. Litt. 127; 1 Com. Dig. 85.

DEMENCY, dementia, med.jur., is a defect, hebetude, or imbecility of the understanding, general or partial, but confined to individual faculties of the mind, particularly those concerned in associating and comparing ideas, whence proceeds great confusion and incapacity in arranging the thoughts. 1 Chit. Med. Jur. 351 ; Cyclop. Practical Med. tit. Insanity; Ray, Med. Jun ch. 9; 1 Beck's Med. Jur. 547. Demency is attended with a general enfeeblement of the moral and intellectual faculties in consequence of age or disease, which were originally well developed and sound, and is characterised by forgetfulness of the past; indifference to the present and future,

Vol. I.—38

and a childish disposition. It differs from idiocy and imbecility. In these latter, the powers of the mind were never possessed, while in demency, they have been lost. Demency may also be distinguished from mania, with which it is sometimes confounded. . In the former the mind has lost its strength, and thereby the reasoning faculty is impaired; while in the latter, the madness arises from an exaltation of vital power, from a morbid excess of activity.

Demency is divided into acute and chronic. The former is a consequence of temporary errors of regimen, fevers, hemorrhages, &c. and is susceptible of cure; the latter, or chronic demency, may succeed mania, apoplexy, epilepsy, masturbation and drunkenness, but is generally that decay of the mind which occurs in old age, which is incurable.

When demency in its last stages has been fully established, the acts of the individual of a civil nature will be void, because the party had no consenting mind. Vide Contracts; Wills; 2 Phillim. R. 449. Having no legal will or intention, he cannot of course commit a crime. Vide Insanity; Mania.

DEMESNE AS OF FEE. A man is said to be seised in his demesne as of fee of a corporeal inheritance because he has a property dominicum or demesne in the thing itself. 2 Bl. Com. 106.

DEMIDIETAS. This word is used in ancient records for a moiety or one half.

DEMIES, in some universities and colleges this term is synonymous with scholars. Boyle on Charities, 129.

DEMISE, contracts, in its most extended signification is a conveyance either in fee, for life, or for years. In its more technical meaning, it is a lease or conveyance for a term of years. Vide Com. L. &

« SebelumnyaLanjutkan »