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Bl. Com. 152. This action may be considered 1, with reference to the nature of the thing to be recovered; 2, the plaintiff's interest therein; 3, the injury; 4, the pleadings; 5, the judgment.
1. The goods which it is sought to recover, must be capable of being distinguished from all others, as, a particular horse, a cow, &c. but not for a bushel of grain. Com. Dig4 Detinue, B, C; 3 Bl. Com. 152; Co. Litt. 286 b.
2. To support this action, the plaintiff must have a right to immediate possession, although he never had actual possession, a reversioner cannot, therefore, maintain it. And a bailee, who has only a special property may nevertheless support it when he delivered the goods to the defendant, or they were taken out of the bailee's custody. 2 Saund. 47, b, c, d; Bro. Ab. h. t.
3. The gist of the action is the wrongful detainer, and not the original taking. The possession must have been acquired by the defendant by lawful means, as by delivery, bailment, or finding, and not for- tiously.
4. In the pleadings in this action much certainty is requisite in the description of the chattels. The general issue is non detinet, and under it special matter may be given in evidence. Co. Litt. 283.
5. The verdict and judgment must be such, that a special remedy may be had for the recovery of the goods detained, or a satisfaction in value for each parcel, in case they or either of them cannot be returned. The judgment is in the alternative, that the plaintiff recover the goods or the value thereof, if he cannot have the goods themselves, and his damages for the detention and full costs. Vide, generally, 1 Chit. PI. 117; 3 Bl. Com. 152; 2 Reeve's Hist. C. L. 261, 333, 336; 3 lb.
66, 74; Bull. N. P. 50. This action has yielded to the more practical and less technical action of trover. 3 Bl. Com. 152.
DETINUIT, practice, he detained. Where an action of replevin is instituted for goods which the defendant had taken but which he afterwards restored, it is said to be brought in the detinuit; in such case the judgment is that the plaintiff recover the damages assessed by the jury for the taking and unjust detention, or for the latter only where the former was justifiable, and his costs. When the replevin is in the detinet, that he retains the goods, the jury must find in addition to the above, the value of the chattels, (assuming they are still de« tained) not in a gross sum, but each separate article must be separately valued, for perhaps the defendant may restore some of them, in which case the plaintiff is to recover the value of the remainder. Vide Debet et Detinet.
DEVASTAVIT. A devastavit is a mismanagement and waste by an executor, administrator or other trustee, of the estate and effects trusted to him as such, by which a loss occurs. It takes place by direct abuse, by mal-administration,and by neglect.
I' 1. By direct abuse. This takes place when the executor, administrator or trustee, sells, embezzles, or converts to his own use, the goods entrusted to him. Com. Dig. Administration, I 1; releases a claim due to the estate, 3 Bac. Ab. 78 ; and vide 5 Bac. Ab. 700; Hob. 266; Cro. Eliz. 43; 7 John. R. 404; 9 Mass. 352; or surrenders a lease below its value. 2 John. Cas. 376; 3 P. Wms. 330. These instances sufficiently show that any wilful waste of the property will be considered as a direct devastavit.
§ 2. By mal-administration. Devastavit by mal-administration most frequently occurs by the payment of claims which were not due nor owing; or by paying others out of the order in which they ought to be paid; or by the payment of legacies before all the debts have been satisfied. 4 Scrg. & Rawle, 394.
§ 3. By neglect. Negligence on the part of an executor, administrator or trustee, may equally tend to the waste of the estate, as the direct destruction or mal-administration of the assets, and render him guilty of a devastavit. The neglect to sell the goods at a fair price within a reasonable time, or, if they are perishable goods, before they are wasted, will be a devastavit. And a neglect to collect a doubtful debt, which by proper exertion, might have been collected, will be so considered. Bac. Ab. Executors, L.
The law requires from trustees, good faith and due diligence, the want of which is punished by making them responsible for the losses which may be sustained by the property entrusted to them; when, therefore, a party has been guilty of a devastavit, he is required to make up the loss out of his own estate. Vide Com. Dig. Administration, I; living, Ab. 306; 1 Supp. to Ves. Jr. 209; 1 Vern. 328; 7 East, R. 257; 1 Binn. 194; 1 Serg. & Rawle, 241; 1 John. R. 396; 1 Caines's Cas. 96; Bac. Ab. Executor, L.
DEVIATION, insurance, contracts, is a voluntary departure, without necessity, or any reasonable cause, from the regular and usual course of the voyage insured. From the moment this happens, the voyage is changed, the contract determined, and the insurer discharged from all subsequent responsibility. By the contract the insurer only runs the risk of the contract agreed upon, and no other; and it is therefore a condition implied in the policy,
that the ship shall proceed to her port of destination by the shortest and safest course, and on no account to deviate from that course but in cases of necessity. The effect of a deviation is not to vitiate or avoid the policy, but only to determine the liability of the underwriters from the time of the deviation. If, therefore, the ship or goods, after the voyage has commenced, receive damage, then the ship deviates, and afterwards a loss happen, there, though the insurer is discharged from the time of the deviation, and is not answerable for the subsequent loss, yet he is bound to make good the damage sustained previous to the deviation. 2 Lord Raym. 842; 2 Salk. 444. But though he is thus discharged from subsequent responsibility, he is entitled to retain the whole premium. Dougl. 271; 1 Marsh. Ins. 183; Park, Ins. 294. See 2 Phil. Ev. 60, n. (b), where the American cases are cited.
What amounts to a deviation is not easily defined, but a departure from the usual course of the voyage, or remaining at places where the ship is authorised to touch, longer than necessary, or doing there what the insured is not authorised to do, as if the ship have merely liberty to touch at a port, and the insured stay there to trade or break bulk, it is a deviation. 4 Dall. 274; 1 Petcrs's C. C. R. 104; Marsh. Ins. B. 1, c. 6, s. 2. By the course of the voyage, is not meant the shortest course the ship can take from her port of departure to her port of destination, but the regular and customary track, if such there be, which long usage has proved to be the safest and most convenient. 1 Marsh. Ins. 185. See 3 Johns. Cas. 352; 7 T. R. 162.
A deviation that will discharge the insurer, must be a voluntary departure from the usual course of the voyage insured, and not warranted by any necessity. If a deviation can be justified by necessity, it will not affect the contract; and necessity will justify a deviation, though it proceed from a cause not insured against. The cases of necessity which are most frequently adduced to justify a departure from the direct or usual course of the voyage, are, 1st. Stress of weather; 2d. The want of necessary repairs: 3d. Joining convoy; 4th. Succouring ships in distress; 5th. Avoiding capture or detention; 6th. Sickness of the master or mariners; 7th. Mutiny of the crew.
See Park, Ins. ch. 17; 2 John. Cas. 296; 11 Johns. R. 241; Pet. C. C. R. 98 ;' 2 Johns. Rep. 89; 14 Johns. R. 315; 2 Johns. R. 138; 9 Johns. R. 192; 8 Johns. Rep. 491; 13 Mass. 68; 13 Mass. 539; lb. 118; 14 Mass. 12; 1 Johns. Cas. 313; 11 Johns. R. 241 ; 3 Johns. R. 352; 10 Johns. R. 83; 1 Johns. R. 301; 9 Mass. 436, 447; 3 Binn. 457; 7 Mass. 349; 5 Mass. 1; 8 Mass. 308; 6 Mass. 102, 121; 6 Mass. 122; 7 Cranch, 26; lb. 487; 3 Wheat. 159; 7 Mass. 365; 10 Mass. 21 ; lb. 347; 7 Johns. Rep. 363; 3 Johns. R. 352; 4 Dall. R. 274; 5 Binn. 403; 2 Serg. & Raw. 309; 2 Cranch, 240.
DEVIATION, contracts. When a plan has been adopted for a building, and in the progress of the work a change has been made from the original plan, the change is called a deviation. When the contract is to build a house according to the original plan, and a deviation takes place, the contract shall be traced as far as possible, and the additions, if any have been made, shall be paid according to the usual rate of charging. 3 Barn. & Aid. 47 ; and see 1 Ves. jr. 60; 10 Ves. jr. 306; 14 Ves. 413; 13 Ves. 73; Id. 81; 6 Johns. Ch. R. 38; 3 Cranch, 270; 5 Cranch, 262; 3 Ves. 693; 7 Ves. 274; Chit. Contr. 168.
The Civil Code of Louisiana, art. 2734, provides, that when an architect or other workman has undertaken the building of a house by the job, ' according to a plot agreed on between him and the owner of the ground, he cannot claim an increase of the price agreed on, on the plea of the original plot having been changed and extended, unless he can prove that such changes have been made in compliance with the wishes of the proprietor.
DEVISAVIT VEL NON, practice, the name of an issue sent out of a court of chancery, or one which exercises chancery jurisdiction, to a court of law, to try the validity of a paper asserted and denied to be a will, to ascertain whether or not the testator did devise, or whether or not that paper was his will. 7 Bro. P. C. 437; 2 Atk. 424.
DEVISE. A devise is a disposition of real property by a person's last will and testament, to take effect after the testator's death. Its form is immaterial provided the instrument is to take effect after the death of the party; and a paper in the form of an indenture, which is to have that effect, is considered as a devise. Finch, 195; 6 Watts, 522; 3 Rawle, 15; 4 Dessaus. 617, 313; 1 Mod. 117; 1 Black. R. 345. The term devise, properly and technically, applies only to real estate, the object of the devise must therefore be that kind of property. 1 Hill. Ab. ch. 36, n. 62 to 74. Devise is also improperly applied to a bequest of personal estate, the proper terms being bequest or legacy, (q. v.) Vide 1 Kent, Com. 489; 8 Vin. Ab. 41; Com. Dig. Estates by Devise.
DEVISEE. A person to whom a devise has been made. All persons who are in rerum natura, and even embryos may be devisees, unless excepted by some positive law. In general he who can acquire property by
his labour and industry, may receive a devise.
DEVISOR. A testator; one who devises his real estate. As a general rule all persons who may sell the estate may devise it. The disabilities of devisors may be classed in three divisions. 1. Infancy. In some of the United States this disability is partially removed; in Illinois, Maryland, Mississippi and Ohio, an unmarried woman at the age of eighteen years may devise. 2. Coverture. In general a married woman cannot devise, but in Connecticut and Ohio she may devise her lands; and in Illinois, her separate estate. In Louisiana, she may devise without the consent of her husband. Code, art. 132. 3. Idiocy and non sane memory. It is evident that a person non compos can make no devise, because he has no will. The removal of the disability which existed at the time of the devise does not, of itself, render it valid. For example, when the husband dies, and the wife becomes a feme sole; when one non compos is restored to his sense; and when an infant becomes of age; these several acts do not make a will good, which at its making was void. 11 Mod. 123, 157; 2 Vern. 475; Comb. 84; 4 Rawle, R. 336. Vide Testament or Will.
DI COLONNA, mar. contracts. This contract takes place between the owner of a ship, the captain and the mariners, who agree that the voyage shall be for the benefit of all. This is a term used in the Italian law, Targa, ch. 36, 37; Emerigon, Mar. Loans, s. 5. The New England whalers are owned and navigated in this manner, and under this species of contract. The captain and his mariners are all interested in the profits of the voyage in certain proportions, in the same manner as the captain and crew of a privateer, according to the agreement be
tween them. Such agreement, being very common in former times; all the mariners and the master being interested in the voyage. It is necessary to know this in order to understand many of the provisions of the laws of Oleron, Wisbuy, the Congo- lato del Mare, and other ancient codes of maritime and commercial law. Hall, on Mar. Loans, 42.
TO DICTATE is to pronounce word for word what is destined to be at the same time written by another. Merlin. Rep. mot Suggestion, p. 500; Toull. Dr. Civ. Fr. liv. 3, t. 2, c. 5, n. 410.
DICTATOR, civil lair. A magistrate at Rome invested with absolute power. His authority over the lives and fortunes of the citizens was without bounds. His office continued but for six months. Hist. de la Jur. h. t.; Dig. 1, 2, 18; Id. 1, 1, 1.
DICTUM, practice. Dicta are judicial opinions expressed by the judges on points that do not necessarily arise in the case. Dicta are regarded as of little authority, on account of the manner in which they are delivered; it frequently happening that they are given without much reflection, at the bar, without previous examination. "If," says Huston, J. in Frants v. Brown, 17 Serg. & Rawle, 292, "general dicta in cases turning on special circumstances are to be considered as establishing the law, nothing is yet settled, i or can be long settled." "What I have said or written, out of the case trying," continues the learned judge, , "or shall say or write, under such circumstances, may be taken as my opinion at the time, without argui ment or full consideration; but I will never consider myself bound by it, when the point is fairly trying and fully argued and considered. And I protest against any person considering such obiter dicta as my deliberate opinion." And it was con
sidered by another learned judge, Mr. Baron Richards, to be a " great misfortune that dicta are taken down from judges, perhaps incorrectly, and then cited as absolute propositions." 1 Phillim. Rep. 406; S. C. 1 Eng. Ecc. R. 129; Ram on Judgm. ch. 5, p. 36; Willes's Rep. 666; 1 H. Bl. 53—63; 2 Bos. & P. 375; 7 T. R. 287. In the French law, the report of a judgment made by one of the judges who has given it, is called the dictum. Poth. Proc. Civ. Partie 1, c. 5, art. 2.
DIES. A day. There are four sorts of days: 1, a natural day; as, the morning and the evening made the first day; 2, an artifical day, that is from day-break until twilight in the evening; 3, an astrological day, dies astrologicus, from sun to sun; 4, a legal day, which is dies juridicus, and dies non juridicus. 1. Dies juridici, are all days given in term to the parties in court. Dies non juridici are those which are not appointed to do business in court, as Sundays, and the like. Vide Day, and 3 Com. Dig. 358.
DIES DATUS, practice, is a day or time of respite given to a defendant in a suit.
DIFFERENCE. A dispute; contest. As the differences of the parties have been settled by a compromise.
DIGEST, civil law. The name sometimes given to the Pandects of Justinian; it is so called because this compilation is reduced to order, quasi digestia. It is an abridgment of the decisions of the praetors and the works of the learned and ancient writers on the law. It was made by order of the Emperor Justinian who, in 530, published an ordinance entitled De conceptione Digestorwn, which was addressed to Tribonian, and by which he was required to select some of the most distinguished lawyers to assist him in compos
ing a collection of the best decisions of the ancient lawyers, and compile them in fifty books, without confusion or contradiction. The work was immediately commenced, and completed on the 16th of December, 533.
The Digest is divided in two different ways, the first, into fifty books, each book in several titles, and each title in several laws; at the head of each of them is the name of the lawyer from whose work it was taken.
1. The first book contains twentytwo titles, the subject of the first is De justicia et jure; of the division of person and things; of magistrates, &c.
2. The second, divided into fifteen titles, treats of the power of magistrates and their jurisdiction; the manner of commencing suits; of agreements and compromises.
3. The third, composed of six titles, treats of those who can and those who cannot sue; of advocates and attorneys and syndics; and of calumny.
4. The fourth, divided into nine titles, treats of causes of restitution; of submissions and arbitrations; of minors, carriers by water, innkeepers and others who have the care of the property of others.
5. In the fifth there afe six titles, which treat of jurisdiction, inofficious testaments.
6. The subject of the sixth, in which there are three titles, is actions.
7. The seventh, in nine titles, embraces whatever concerns usufructs, personal servitudes, habitations, the uses of real estate, and its appurtenances, and of the sureties required of the usufructuary.
8. The eighth book, in six titles, regulates urban and rural servitudes.
9. The ninth book, in four titles, explains certain personal actions.