Gambar halaman
PDF
ePub

signate the diminution of its inhabitants, arising either from violent causes, or the want of multiplication. Vide 12 Co. 30.

DEPORTATION, civil law, was among the Romans, a perpetual banishment, depriving the banished of his rights as a citizen; it differed from relegation, (q. v.) and exile, (q. v.) 1 Bro. Civ. Law, 125 note; Inst. I, 12, 1 and 2; Dig. 48, 22, 14, 1.

DEPOSIT, contracts, is usually defined to be a naked bailment of goods to be kept for the bailor, without reward, and to be returned when he shall require it. Jones's Bailm. 36, 117; 1 Bell's Comm. 257. See also Dane's Abr. ch. 17, art. 1, § 3. Story on Bailm. c. 2, § 41. Pothier, defines it to be a contract, by which one of the contracting parties gives a thing to another to keep, who is to do so gratuitously, and obliges himself to return it, when he shall be requested. Traite du Dep6t. See Code Civ. tit. 11, c. 1, art. 1915; Louisiana Code, tit. 13, c. 1, art. 2897.

Deposits, in the civil law, are divisible into two kinds; necessary and voluntary. A necessary deposit is such as arises from pressing necessity, as, for instance, in case of a fire, a shipwreck, or other overwhelming calamity; and thence it is called miserabile depositum. Louis. Code, 2935. A voluntary deposit is such as arises without any such calamity, from the mere consent or agreement of the parties. Dig. lib. 16, tit. 3, § 2. This distinction was material in the civil law, in respect to the remedy, for in voluntary deposits the action was only in simplum; in the other in duplum, or two-fold, whenever the depositary was guilty of any default. The common law has made no such distinction, and, therefore, in a necessary deposit, the remedy is limited to damages co-exten

sive with the wrong. Jones's Bailm. 48.

Deposits are again divided by the civil law into simple deposits, and sequestrations; the former is when there is but one party depositor, (of whatever number composed,) having a common interest; the latter is where there are two or more depositors, having each a different and adverse interest. See Sequestration. These distinctions give rise to very different considerations in point of responsibility and rights. Hitherto they do not seem to have been incorporated in the common law, though if cases should arise, the principles applicable to them would scarcely fail of receiving general approbation, at least, so far as they affect the rights and the responsibilities of the parties. Cases of judicial sequestration and deposits, especially in courts of chancery and admiralty, may hereafter require the subject to be fully investigated. At present, there have been few cases, in which it has been necessary to consider upon whom the loss should fall when the property has perished in the custody of the law. Story on Bailm. § 4146.

There is another class of deposits noticed by Pothier, and called by him irregular deposit. This arises, when a party having a sum of money which he does not think safe in his own hands, confides it to another, who is to return him, not the same money, but a like sum when he shall demand it. Poth. Traite du Depot, ch. 3, § 3. The usual deposit made by a person dealing with a bank is of this nature. The depositor, in such case, becomes merely a creditor of the depositary for the money or other thing which he binds himself to return. This species of deposit is also called an improper deposit, to distinguish from one that is regular and proper, and which latter is sometimes called a special deposit. 1 Bell's Com. 257, 8. See 4 Blackf. R. 395.

There is a kind of deposit, which may, for distinction's sake, be called a quasi deposit, which is governed by the same general rule as common deposits. It is when a party comes lawfully to the possession of another person's property by finding. Under such circumstances, the finder seems bound to the same reasonable care of it, as any voluntary depositary ex contractu. Doct. & Stu. Dial. 2, ch. 38. Story on Bailm. § 85; and see Bac. Abr. Bailm. D.

See further on the subject of deposits, Louis. Code, tit. 13; Bac. Abr. Bailment; Digeste, depositi vel contra; Code, lib. 4, tit. 34; Inst. lib. 3, tit. 15, § 3; Nov. 73 and 78; Domat, liv. 1, tit. 7; et tom. 2, liv. 8, tit. 1, s. 5, n. 26.

DEPOSITARY, contracts. He with whom a deposit is confided or made. It is of the essence of the contract of deposit, that it should be gratuitous on the part of the depositary. 9 M. R. 470. Being a bailee without reward, the depositary is bound to slight diligence only, and he is not therefore answerable except for gross neglect. 1 Dane's Abr. ch. 17, art. 2. But in every case good faith requires, that he should take reasonable care; and what is reasonable care, must materially depend upon the nature and quality of the thing, the circumstances under which it is deposited, and sometimes upon the character and confidence, and particular dealing of the parties. See 14 Serg. & Rawle, 275. The degree of care and diligence is not altered by the fact, that the depositary is the joint owner of the goods with the depositor; for in such a case, if the possessor is guilty of gross negligence, he will still be responsible, in the same manner as a common depositary, having no interest in the thing.

Jones's Bailm. 82, 83. As to the care which a depositary is bound to to use, see 2 Ld. Raym. 909, 914; 1 Ld. Ravm. 655; 2 Kent's Comm. 438; If Mass. R. 479, 499; 4 Burr. 2-J98; 14 Serg. & Rawle, 275; Jones's Bailm. 8; Story on Bailm1. § 63, 64.

The depositary is bound to return the deposit in individuo, and in the same state in which he received it; if it is lost, or injured, or spoiled by his fraud, or gross negligence, he is responsible to the extent of the loss or injury. Jones's Bailm. 36, 46, 120; 17" Mass. R. 479; 2 Hawk. N. Car. R. 145; 1 Dane's Abr. ch. 17, art. 1 and 2. He is also bound to restore, not only the thing deposited, but any increase or profits, which may have accrued from it; if an animal deposited brings young, the latterare to be delivered to the owner. Story on Bailm. § 99.

Iri general it may be laid down that a depositary has no right to use the thing deposited. Bac. Abr. Bailm. D; Jones's Bailm. 81, 82;

1 Dane's Abr. ch. 17, art. 11, § 2. But this proposition must be received with many qualifications. There are certain cases, in which the use of the thing may be necessary for the due preservation of the deposit. There are others, again, where it would be mischievous; and others, again, where it would be, if not beneficial, at least indifferent. Jones's Bailm. 81. 82 ; Owen's R. 123, 124;

2 Salk. 522; 2 Kent's Comm. 450. The best general rule on the subject is to consider, whether there may or may not be an implied consent, on the part of the owner to the use. If the use would be for the benefit of the deposit, the assent of the owner may well be presumed; if to his injury or perilous, it ought not to be presumed; if the use would be indifferent, and other circumstances do not incline either way, the use may

i

be deemed not allowable. Jones's Bailm. 80, 81; Story on Bailm. § 90.

DEPOSITION, evidence, is the testimony of a witness reduced to writing in due form of law, taken by virtue of a commission or other authority of a competent tribunal. Before it is taken the witness ought to be sworn or affirmed to declare the truth, the whole truth, and nothing but the truth. It should properly be written by the commissioner appointed to take it, or by the witness himself; 3 Penna. R. 41; or by one not interested in the matter in dispute, who is properly authorised by the commissioner. 8 Watts's R. 406,524. It ought to answer all the interrogatories, and be signed by the witness when he can write, and by the commissioner: when the witness cannot write it ought to be so stated, and he should make his mark or cross. Depositions in criminal cases cannot be taken without the consent of the defendant. Vide, generally, 1 Phil. Ev. 286; 1 Vern. 413, note; Ayl. Pand. 206; 2 Supp. to Ves. jr. 309; 7 Vin. Ab. 553; 12 Vin. Ab. 107; Dane's Ab. Index, h. t.; Com. Dig. Chancery, P 8, T 4, T 5; Com. Dig. Testmoigne, C 4.

The act of September 24,1789, s. 30, 1 Story's L. U. S. 64, directs that when the testimony of any person shall be necessary in any civil cause depending in any district, in any court of the United States, who shall live at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of such district, and to a greater distance from the place of trial than as aforesaid, before the time of trial, or is ancient, or very infirm, the deposition of such may be taken, de bene esse, any justice or judge of any of the courts of the United States, or

before any chancellor, justice, or judge of a supreme or superior court, mayor, or chief magistrate of a city, or judge of a county court or court of common pleas of any of the United States, not being of counsel or attorney to either of the parties, or interested in the event of the cause; provided that a notification from the magistrate before whom the deposition is to be taken to the adverse party, to be present at the taking of the same, and to put interrogatories, if he think fit, be first made out and served on the adverse party, or his attorney, as either may be nearest, if either is within one hundred miles of the place of such caption, allowing time for their attendance after being notified, not less than at the rate of one day, Sundays exclusive, for every twenty miles travel. And in causes of admiralty and maritime jurisdiction, or other causes of seizure, when a libel shall be filed, in which an adverse party is not named, and depositions of persons, circumstanced as aforesaid, shall be taken before a claim be put in, the like notification, as aforesaid, shall be given to the person having the agency or possession of the property libelled at the time of the capture or seizure of the same, if known to the libellant. And every person deposing as aforesaid, shall be carefully examined and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given, after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. And the deposition, so taken shall be retained by such magistrate, until he deliver the same with his own hand into the court for which they are taken, or shall, together with a certificate of the reasons as aforesaid, of their being taken, and of the notice, if any given, to

[graphic]

the adverse party, be by him, the said magistrate, sealed up and directed to such court, and remain under his seal until opened in court. And any person may be compelled to appear and depose as aforesaid, in the same manner as to appear and testify in court. And in the trial of any cause of admiralty or maritime jurisdiction in a district court, the decree in which may be appealed from, if either party shall suggest to and satisfy the court, that probably it will not be in his power to produce the witnesses, there testifying, before the circuit court, should an appeal be had, and shall move that their testimony shall be taken down in writing, it shall be so done by the clerk of the court. And if an appeal be had, such testimony may be used on the trial of the same, if it shall appear to the satisfaction of the court, which shall try the appeal, that the witnesses are then dead, or gone out of the United States, or to a greater distance than as aforesaid, from the place where the court is sitting; or that, by reason of age, sickness, bodily infirmity, or imprisonment, they are unable to travel and appear at court, but not otherwise. And unless the same shall be made to appear on the trial of any cause, with respect to witnesses whose depositions may have been taken therein, such depositions shall not be admitted or used in the cause. Provided, That nothing herein shall be construed to prevent any court of the United States from granting a dedimus protestatem, to take depositions according to common usage, when it may be necessary to prevent a failure or delay of justice; which power they shall severally possess; nor to extend to depositions taken in perpetuam rei memoriam, which, if they relate to matters that may be cognizable in any court of the United States, a circuit court, on application thereto made as a court of

equity, may, according to the usages in chancery, direct to be taken.

The act of January 24, 1827, 3 Story's L. U. S. 2040, authorises the clerk of any court of the United States within which a witness resides or where he is found, to issue a subpoena to compel the attendance of such witness, and a neglect of the witness to attend may be punished by the court whose clerk has issued the subpoena as for a contempt. And when papers are wanted by the parties litigant the judge of the court within which they are, may issue a subpoena duces tecum, and enforce obedience by punishment as for a contempt.

For the form and style of depositions, see Gresl. Eq. Ev. 77.

DEPOSITOR, contracts, is he who makes a deposit. He is generally entitled to receive the deposit from the depositary, but to this rule there are exceptions; as when the depositor at the time of making the deposit had no title to the property deposited, and the owner claims it from the depositary, the depositor cannot recover it; and for this reason, that he can never be in a better situation than the owner. 1 Barn. & Aid. 450; 5 Taunt. 759. As to the place where the depositor is entitled to receive his deposit, see Story on Bailm. $ 117—120.

DEPREDATION, French law, is the pillage which is made of the goods of a decedent. Ferr. Mod. h. t.

DEPRIVATION, ecclesiastical punishment, is a censure by which a clergyman is deprived of his parsonage, vicarage, or other ecclesiastical promotion or dignity. Vide Aylifle's Parerg. 206; 1 Bl. Com. 393."

DEPUTY, one authorised by an officer to exercise the office or right which the officer possesses, for and in place of the latter. In general ministerial officers can appoint deputies, Com. Dig. Officer, D 1, unless the office is to be exercised by the ministerial officer in person; and where the office partakes of a judicial and ministerial character, although a deputy may be made of ministerial acts, one cannot be made to authorise the performance of a judicial act; a sheriff cannot there fore make a deputy to hold an inquisition, under a writ of inquiry, though he may appoint a deputy to serve a writ. In general a deputy has power to do every act which his principal might do; but a deputy cannot make a deputy. A deputy should always act in the name of his principal. The principal is liable for the deputy's acts performed by him as such, and for the neglect of the deputy. Dane's Ab. vol. 3, 76, a. 2; and the deputy is liable himself to the person injured for his own tortious acts. Dane's Ab. Index, h. t.; Com. Dig. Officer, D p- Viscount, B; Vide 7 Vin. Ab. 556; Arch. Civ. PI. 68; 16 John. R. 108.

DEPUTY ATTORNEY GENERAL, an officer appointed by the attorney-general, who is to hold his office during the pleasure of the latter, and whose duty it is to perform, within a specified district, the duties of the attorney-general. He must be a member of the bar.

DEPUTY DISTRICT ATTORNEYS. The act of congress of March 3, 1*15, 2 Story L. U. S. 1530, authorises and directs the district attorneys of the United States to appoint by warrant, an attorney as their substitute or deputy in all cases when necessary to sue or prosecute for the United States, in any of the state or county courts, by that act invested with certain jurisdiction, within the sphere of whose jurisdiction the said district attorneys do not themselves reside or practice; and the said substitute or deputy shall be sworn or affirmed to the faithful execution of his duty.

DERELICT, common law. This term is applied in the common law in a different sense from what it bears in the civil law. In the former it is applied to lands left by the sea. When so left by degrees the derelict land belongs to the owner of the soil adjoining, but when the sea retires suddenly, it belongs to the government. 2 Bl. Com. 262 ; 1 Bro. Civ. Law, 239.

DERELICTO, civil law, are goods voluntarily abandoned by their owner; he must, however, leave them, not only sine spe rerertendi, but also sine animo rerertendi; his intention to abandon them may be inferred by a great length of time during which he may have been out of possession, without any attempt to regain it. 1 Bro. Civ. Law, 239; 2 Bro. Civ. Law, 51; Wood's Civ. Law, 156; 19 Amer. Jur. 219, 221, 222; Dane's Ab. Index, h. t.; 1 Ware's R. 41.

DEROGATION, civil law, is the partial abrogation of a law; to derogate from a law is to enact something which is contrary to it; to abrogate a law is to abolish it entirely. Dig. lib. 50, t. 17, 1. 102.

DESCENDANTS are the posterity, or those who have issued from an individual, and include his children, grandchildren, and their children to the remotest degree. Ambl. 327; 2 Bro. C. C. 30; lb. 230; 3 Bro. C. C. 367; 1 Rop. Leg. 115. The descendants form what is called the direct descending line. Vide Line. The term is opposed to that of ascendants, (q. v.) There is a difference between the number of ascendants and descendants which a man may have; every one has the same order of ascendants, though they may not be exactly alike as to numbers, because some may be descended from a common ancestor. In the line of descendants they fork differently according to the number

« SebelumnyaLanjutkan »