« SebelumnyaLanjutkan »
T. Index, h. t.; Ad. Eject. Index, h. t.; 2 Hill. Ab. 130; Com. Dig. h. t.; and the heads there referred to. 'According to Chief Justice Gibson, the term demise strictly denotes a posthumous grant, and no more. 5 Whart. R. 278. See 4 Bing. N. C. 678; S. C. 33 Eng. C. L. R. 492.
DEMOCRACY, government, is that form of government in which the sovereign power is exercised by the people in a body, as was the practice in some of the states of Ancient Greece; the term representative democracy has been given to a republican government like that of the United States.
DEMONSTRATION, is whatever is said or written to designate a thing or person; for example, a gift of so much money, with a fund particularly referred to for its payment, so that if the fund be not the testator's property at his death, the legacy will not fail, is called a demonstrative legacy. 4 Ves. 751; Lownd. Leg. 85; Swinb. 485. A legacy given to James, who married my cousin, is demonstrative; these expressions present the idea of a demonstration, there are many James, but only one who married my cousin. Vide Ayl. Pand. 130. Dig. 12, 1,6; lb. 35, 1, 34. Inst. 2, 20, 30.
DEMURRAGE, mar. law. The freighter of a ship is bound not to detain it, beyond the stipulated or usual time, to load, or to deliver the cargo, or to sail. The extra days beyond the lay days (being the days allowed to load and unload the cargo,) are called the days of demurrage; and that term is likewise applied to the payment for such delay, and it may become due, either by the ship's detention, for the purpose of loading or unloading the cargo, either before, or during, or after the voyage, or in waiting for convoy. 3 Kent," Com. 159; 2 Marsh, 721;
Abbott on Ship. 192; 5 Com. Dig. 94, m, 505; 4 Taunt. 54, 55; 3 Chit. Comm. Law, 4^6; Harr. Dig. Ship and Shipping, VII.
DEMURRER, (from the Latin demorari or old French demorrer, to wait or stay,) in pleading, imports, according to its etymology, that the objecting party will not proceed with the pleading, because no sufficient statement has been made on the other side; but will wait the judgment of the court whether he is bound to answer, 5 Mod. 232; Co. Litt. 71, b; Steph. PI. 61.
A demurrer may be for insufficiency either in substance or in form; that is, it may be either on the ground that the case shown by the opposite party is essentially insufficient, or on the ground that it is stated in an artificial manner; for the law requires in every plea, and all other pleadings, two things; the one that it be in matter sufficient; the other that it be deduced and expressed according to the forms of law; and if either the one or the other of these be wanting, it is cause of demurrer. Hob. 164. A demurrer, as in its nature, so also in its form, is of two kinds; it is either general or special.
With respect to the effect of a demurrer, it is, first, a rule, that a demurrer admits all such matters of fact as are sufficiently pleaded. Bac. Abr. Pleas N 3; Com. Dig. Pleader, Q 5. Again it is a rule that, on a demurrer, the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled to it. Com. Dig. Pleader, M 1, M 2; Bac. Abr. Pleas, A, N 3; 5 Rep. 29 a; Hob. 56; 2 Wils. 150; 4 East, 502; 1 Saund. 285, n. 5. For example, on a demurrer to the replication, if the court think the replication bad, but perceive a substantial fault in the plea, they will give judgment, not for the defendant, but for'the plaintiff, 2 Wils. R. 150, provided the declaration be good; but if the declaration also be bad in substance, then upon the same principle, judgment would be given for the defendant. 5 Rep. 29 a. For, when judgment is to be given, whether the issue be in law or fact, and whether the cause have proceeded to issue or not, the court is always to examine the whole record, and adjudge for the plaintiff or defendant, according to the legal right, as it may on the whole appear. It is, however, subject to the following exceptions: first, if the plaintiff demur to a plea in abatement, and the court decide against the plea, they will give judgment of respondeat ouster, without regard to any defect in the declaration. Lutw. 1592, 1667; 1 Salk. 212; Carth. 172; secondly, the court will not look back into the record, to adjudge in favour of an apparent right in the plaintiff, unless the plaintiff have himself put his action upon that ground. 5 Barn. & Aid. 507 ; lastly, the court, in examining the whole record, to adjudge according to the apparent right, will consider the right in matter of substance, and not in respect of mere form such as should have been the subject of a special demurrer. 2 Vent. 198-222.
There can be no demurrer to a demurrer; for a demurrer upon a demurrer, or pleading over when an issue in fact is offered, is a discontinuance. Salk. 219; Bac. Abr. Pleas, N 2.
See in general as to demurrers, Bac. Abr. Pleas, N; Com. Dig. Pleader, Q; Saund. Rep. Index, tit. demurrers; Lawes Civ. PI. ch. 8; 1 Chit. PI. 639-649.
DEMURRER, SPECIAL, in pleading. A special demurrer is one which excepts to the sufficiency of the pleadings on the opposite side,
and shows specifically the nature of the objection and the particular ground of exception. Co. Litt. 72, a; Bac. Abr. Pleas, N 5. A special demurrer is necessary, where it turns on matter of form only; that is where notwithstanding such objections, enough appears to entitle the opposite party to judgment, as far as relates to the merits of the cause. For by two statutes, 27 Eliz. ch. 5, and 4 Ann, ch. 16, passed in a view to the discouragement of merely formal objections, it is provided in nearly the same terms, that the judges "shall give judgment according to the very right of the cause and matter in law shall appear unto them, without regarding any imperfection, omission, defect or want of form, except those only which the party demurring shall specifically and particularly set down and express, together with his demurrer, as the causes of the same." Since these statutes, therefore, no mere matter of form can be objected on a general demurrer; but the demurrer must be in the special form, and the objection specifically stated. But, on the other hand, it is to be observed, that, under a special demurrer, the party may, on the argument, not only take advantage of the particular faults which his demurrer specifies, but also of all objections in substance, or regarding the very right of the cause, (as the statute expresses it) as do not require, under those statutes, to be particularly set down. It follows, therefore, that unless the objection be clearly of this substantial kind, it is the safer course, in all cases, to demur specially. Yet, where a general demurrer is plainly sufficient, it is more usually adopted in practice; because the effect of the special form being to apprise the opposite party more distinctly of the nature of the objection, it is attended with the inconvenience of enabling him to prepare to maintain his pleading by argument, or of leading to apply the earlier to amend. With respect to the degree of particularity, with which, under these statutes, the special demurrer must assign the ground of objection, it may be observed, that it is not sufficient to object, in general terms, that the pleading is "uncertain, defective, and informal," or the like, but it is necessary to show in what respect, uncertain, defective, and informal. 1 Saund. 161, n. 1; 337 b, n. 3; Steph. PL 159-161; 1 Chit. PI. 642.
DEMURRER, GENERAL, in pleading. A general demurrer is one which excepts to the sufficiency of some previous pleadings in general terms, without showing specifically the nature of the objection; and such demurrer is sufficient, when the objection is on matter of substance. Steph. PI. 159; 1 Chit. PI. 639; Lawes, Civ. PI. 167; Bac. Abr. Pleas, N 5; Co. Lit. 72 a.
DEMURRER TO EVIDENCE, in practice. A demurrer to evidence is analogous to a demurrer in pleading; the party from whom it comes, declaring that he will not proceed, because the evidence offered on the other side, is not sufficient to maintain the issue. Upon joinder in demurrer, by the opposite party, the jury are, in general, discharged from giving any verdict, 1 Arch. Pr. 186; and the demurrer being entered on record, is afterwards argued and decided in the court in banc; and the judgment there given upon it, may ultimately be brought before a court of error. See 2 H. Bl. 187; 4 Chit. Pr. 15.
DEMURRER TO INTERROGATORIES. By this phrase is understood the reasons which a witness tenders for not answering a particular question in interrogatories. 2 Swanst.
I R. 194. Strictly speaking, this is not a demurrer, which is an instru
j ment that admits facts stated, for the purpose of taking the opinion of the
I court; but by an abuse of the term, the witness's objection to answer is
'called a demurrer, in the popular sense. Gresl. Eq. Ev. 61. The court are judicially to determine their validity. The witness must state his objection very carefully, for these demurrers are held to strict rules, and are readily overruled if they cover too much. 2 Atk. 524; 1 Y. & J. 32.
DEMY SANKE or SANGUE, this is a barbarous corruption of demi sang, half-blood, (q. v.)
DENARII. An ancient general term for any sort of pecimia numerate, or ready money. The French use the word denier in the same sense: payer de ses propres deniers.
DENARIUS DEI, a term used in some countries to signify a certain sum of money which is given by one of the contracting parties to the other, as a sign of the completion of the contract. It does not however bind the parties; he who received it may return it in a limited time, or the other may abandon it, and avoid the engagement. It differs from arrha in this, that the latter is a part of the consideration, while the denarius dei is no part of it.
DENIZEN, English law, is an alien born and who has obtained, ex donatione legis, letters-patent to make him an English subject. He is intermediate between a natural born subject and an alien. He may take lands by purchase or devise, which an alien cannot, but he is incapable of taking by inheritance. 1 Bl. Com. 374. In the United States there is no such condition among the people.
DENUNCIATION, crim. law. This term is used by the civilians to signify the act by which an individual informs a public officer, whose duty it is to prosecute offenders, that a crime has been committed. It differs from a complaint, (q. v.) Vide 1 Bro. C. L. 447; 2 lb. 3^9; Ayl. Parer. 210; Poth. Proc. Cr. sect. 2, §2.
DEODAND, English law. This word is derived from Deo dandum, to be given to God; and is meant to designate any unhappy instrument, whether it be an animal or inanimate thing which has caused the death of a man or mischance without the will or fault of himself or of any other man. 3 Inst. 57; Hawk. bk. 1, c. 8. The deodand is forfeited to the king and was formerly applied to pious uses.
DEPARTMENT. A portion of a country. In France the country is divided into departments, which are somewhat similar to the counties in this country. The United States have been divided into military departments including certain portions of the country. 1 Pet. 293.
DEPARTMENT OF THE NAVY, government. The act of the 30th of April, 1798, 1 Story's Laws, 498, establishes an executive department under the denomination of the department of the navy, the chief officer of which shall be called the secretary of the navy, (q. v.) A principal clerk, and such other clerk as he shall think necessary, shall be appointed by the secretary of the navy, who shall be employed in such manner as he shall deem most expedient. In case of vacancy in the office of the secretary, by removal or otherwise, it shall be the duty of the principal clerk to take charge and custody of all books, records, and documents of said office. Ib. s. 2.
DEPARTMENT OF STATE, government. The laws of the United States provide that there shall be an executive department, denominated the department of state; and a principal officer therein, called the secre
tary of state, (q. v.) Acts of 27th July, 1789; 15th Sept. 1789, s. 1; there shall be in such department an inferior officer, to be appointed by the secretary, and employed therein, as he shall deem proper, to be called the chief clerk of the department of state, (q. v.) Act of 27th July, 1789, s. 2. He may employ besides one chief clerk, whose compensation shall not exceed two thousand dollars per annum, two clerks, whose compensation shall not exceed one thousand and six hundred dollars each; four clerks, whose compensation shall not exceed one thousand four hundred dollars each; one clerk, whose compensation shall not exceed one thousand dollars; two clerks, whose compensation shall not exceed eight hundred dollars each; one messenger and assistant, at a compensation not exceeding one thousand and fifty dollars per annum; one superintendent of the patent office, whose compensation shall not exceed one thousand five hundred dollars; and, in the patent office, one clerk, whose compensation shall not exceed one thousand dollars; one machinist, at a compensation not exceeding seven hundred dollars; and one messenger at a compensation not exceeding four hundred dollars per annum. Act of 2nth May, 1824; Act of 20th April, 18i8, s. 2. By the act of 2d March, 1827, 3 Story's Laws, 2061, he is authorised to employ in the state department, one additional clerk, whose compensation shall not exceed sixteen hundred dollars; twoadditional clerks, whose compensation shall not exceed one thousand dollars each; and one additional clerk for the patent office, whose compensation shall not exceed eight hundred dollars.
DEPARTMENT OF THE TREASURY OF THE UNITED STATHS, government. The department of the treasury is constituted of the following officers, namely, the secretary of the treasury, (q. v.)
the head of the department, two comptrollers, five auditors, a treasurer, a register, and a commissioner of the land office. Each of these officers is required to perform certain appropriate duties, in which they are assisted by numerous clerks. They are prohibited from carrying on the business of trade or commerce, from being the owners or part owners of any sea vessel, from buying any public lands, from disposing or purchasing any securities of any state or of the United States, from receiving or applying to their own use any emolument or gain in transacting business in this department, other than what shall be allowed by law, under the penalty of three thousand dollars, and of being removed from office, and being thereafter incapable of holding any office under the United States. Gord. Dig. art. 228 to 248.
DEPARTMENT OF WAR, government. The act of the 7th of August, 1789, 1 Story's Laws, 31, creates an executive department, to be denominated the department of war; and there shall be a principal officer therein, to be called the tecretary for the department of war, (q. v.) There shall be in the said department, an inferior officer, to be appointed by the secretary, to be employed therein, and to be called the chief clerk in the department of war, and who, whenever the said principal officer shall be removed by the president, or in any other case of vacancy, shall, during such vacancy, have the charge and custody of all records, books and papers, appertaining to the said department. Ib.
DEPARTURE, pleading, is said to be when a party quits or departs from the case or defence which he has first made, and has recourse to another; it is when his replication or rejoinder contains matter not pur
suant to the declaration or plea, and which does not support and fortify it. Co. Litt. 304, a; 2 Saund. 84, a, n. (1); 2 Wils. 98; 1 Chit. PI. 619. A departure in pleading is never allowed, for the record would, by such means, be spun out into endless prolixity; for he who has departed from and relinquished his first plea, might resort to a second, third, fourth, or even fortieth defence; pleading would, by such means, become infinite. He who had a bad cause, would never be brought to issue, and he who had a good one, would never obtain the end of his suit. Summary on Pleading, 92; 2 Saund. 84, a. n.(l); 16 East, R. 39; 1 M. & S. 395; Com. Dig. Pleader, C, 7), (F 11); Bac. Abr. Pleas, L; Vin. Abr. Departure; 1 Archb. Civ. PI. 247, 253; 1 Chit. PI. 618.
DEPENDENCY, is a territory distinct from the country in which the supreme sovereign power resides, but belonging rightfully to it, and subject to the laws and regulations which the sovereign may think proper to prescribe; it differs from a colony, because it is not settled by the citizens of the sovereign or mother state, and from possession, because it is held by other title than that of mere conquest; for example, Malta was considered a dependency of Great Britain in the year 1813. 3 Wash. C. C. R. 286. Vide Act of Congress of 1st March, 1809, commonly called non-importation law.
DEPONENT, witness, one who gives information on oath or affirmation, respecting some facts known to him, before a magistrate; he who makes a deposition.
DEPOPULATION. In its most proper signification, is the destruction of the people of a country or place. This word is, however, taken rather in a passive than an active sense; we say depopulation, to de