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defendant, acquired after his discharge, and, in the last case, against the executors or administrators of the , debtor. Bac. Ab. Execution, D; Bingh. on Execu. 266.
DISCHARGE OF A JURY, practice. The dismissal of a jury who had been charged with the trial of a cause. Questions frequently arise, whether the court discharge a jury before they render a verdict; in a criminal case, the prisoner can again be tried. In cases affecting life or member, the general rule is, that when a jury have been sworn and charged, they cannot be discharged by the court, or any other, but ought to give a verdict. But to this rule there are many exceptions; for example, when the jury are discharged at the request or with the consent of the prisoner and for his benefit, when ill practices have been used; when the prisoner becomes insane, or becomes suddenly ill so that he cannot defend himself, or instruct others in his defence ; when a juror or witness is taken suddenly ill; when a juror has absented himself, or, on account of his intoxication, he is incapable to perform his duties as a juror: these and many similar cases, which may be readily imagined, render the discharge of the jury a matter of necessity, and under such very extraordinary and striking circumstances, it is impossible to proceed with the trial with justice to the prisoner or to the state. The exception to the rule, then, is grounded on necessity, and not merely because the jury cannot agree. 6 Serg. & Rawle, 577; 3 Rawle's Rep. 501. In all these cases the court must exercise a just discretion in deciding what is and what is not a case of necessity. This is the law as to the exceptions in Pennsylvania. In other states, and some of the courts of the United States, it has been ruled that the authority of the court to discharge the
jury rests in the sound discretion of the court. 4 Wash. C. C. R. 409; 18 Johns. 187; 2 Johns. Cas. 301; 2 Gall. 364; 9 Mass. 494; 1 Johns. Rep. 66; 2 Johns. Cas. 275. Vide 4 Taunt. 309. A distinction has been made between capital cases and other criminal cases, not capital. In cases of misdemeanors and in civil cases, the right to discharge rests in the sound discretion of the court, which is to be exercised with great caution. 9 Mass. 494. In Pennsylvania this point seems not to be settled. 6 Serg. & Rawle, 599. The reader is referred to the word Jeopardy, and Story on the Const. § 1781; 9 Wheat. R. 579; Rawle on the Const. 132, 133; 1 Chit. Cr. Law, 629.
DISCLAIMER. This word signifies to abandon, to renounce; also the act by which the renunciation is made. For example, a disclaimer is the act by which a patentee renounces a part of his title of invention.
DISCLAIMER, chancery pleading, is the renunciation of the defendant to all claims to the subject of the demand made by the plaintiff's bill. A disclaimer is distinct in substance from an answer, though sometimes confounded with it, but it seldom can be put in without an answer, for if the defendant has been made a party by mistake, having had an interest which he has parted with, the plaintiff may require an answer sufficient to ascertain whether that is the fact or not. Mitf. PI. 11, 14, 253; Coop. Eq. PI. 309; Story, Eq. PI. c. 17, §838 to 844.
DISCLAIMER, estates, is the act of a party by which he refuses to accept of an estate which has been conveyed to him. Vide Assent; Dissent. It is said, that a disclaimer of a freehold estate must be in a court of record, because a freehold shall not be divested by bare words, in pais. Cruise, Dig. tit. 32, c. 26, a1,2. A disclaimer of tenancy is the act of a person in possession, who denies holding the estate from the person claiming to be the owner of it. 2 Nev. & M. 672. Vide 8 Vin. Ab. 501; Coote, L. & T. 348, 375; F. N. B. 179 k; Bull. N. P. 96; 16 East, R. 99; 1 Man. & Gran. 135; S. C. 39 Eng. C. L. Rep. 380, 385; 10 B. & Cr. 816; Gow, N. P. Cas. 180; 2 Nev. & Man. 673; 1 C. M. & R. 398; Co. Litt. 102, a.
DISCONTINUANCE, pleading, is a chasm or interruption in the pleading. It is a rule, that every pleading must be an answer to the whole of what is adversely alleged, Com. Dig. Pleader, E 1, F 4; 1 Saund. 28, n. 3; 4 Rep. 62, a. If, therefore, in an action of trespass for breaking a close, and cutting three hundred trees, the defendant pleads, as to cutting down all but two hundred trees, some matter of justification or title, and as to the two hundred trees says nothing, the plaintiff is entitled to sign judgment, as by nil dicet against him, in respect of the two hundred trees, and to demur, or reply to the plea, as to the remainder of the trespasses. On the other hand, if he demurs or replies to the plea, without signing judgment for the part not answered, the whole action is said to be discontinued. For the plea, if taken by the plaintiff as an answer to the whole action, it being, in fact, a partial answer only, is in contemplation of law, a mere nullity, and a discontinuance takes place. And such discontinuance will amount to error on the record; such error is cured, however, after verdict, by the statute of Jeofails, 32 H. 8, c. 30; and after judgment by nil dicit, confession, or non sum informatus, by stat. 4 Ann. c. 16. It is to be observed, that as to the plaintiff's course of proceeding, there is a distinction between a case like this, where the defendant does not profess
to answer the whole, and a case where, by the commencement of his plea, he professes to do so, but, in fact, gives a defective and partial answer, applying to part only. The latter case amounts merely to insufficient pleading, and the plaintiff's course, therefore, is not to sign judgment for the part defectively answered, but to demur to the whole plea. 1 Saund. 28, n. 3. It is to be observed, also, that where the part of the pleading to which no answer is given, is immaterial, or such as requires no separate or specific answer, for example, if it be mere matter of allegation, the rule does not, in that case, apply. Jb. See Com. Dig. Pleader, W; Bac. Abr. Pleas P
DISCONTINUANCE, estates, is an alienation made or suffered by the tenant in tail, or other tenant seised in auter droit, by which the issue in tail, or heir or successor, or those in reversion or remainder are driven to their action, and cannot enter. The term discontinuance is used to distinguish those cases where the party whose freehold is ousted, can restore it only by action, from those in which he may restore it by entry. Co. Litt. 325 a; 3 Bl. Com. 171 ; Ad. Ej. 35 to 41 ; Com. Dig. h. t.; Bac. Ab. h. t.; Vin. Ab. h. t.; Cruise's Dig. Index, h. t.; 2 Saund. Index, h. t.
DISCONTINUANCE, of action, in practice, takes place when a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day, and time to time, as he ought. 3 Bl. Com. 296; see Continuance. A discontinuance also, is an entry upon the record that the plaintiff discontinues his action. The plaintiff cannot discontinue his action after a demurrer joined and entered, or after a verdict or a writ of inquiry, without leave of court. Cro. Jac. 35; 1 Lilly's Abr. 473. The plaintiff is, on discontinuance, generally liable for costs. But in some cases, he is not so liable. See 3 Johns. R. 249;
1 Caines's R. 116; 1 Johns. R. 143; 6 Johns. R. 333; IS Johns. R. 252;
2 Caines's Rep. 380; Com. Dig. Pleader, W 5; Bac. Abr. Pleas, P.
DISCOUNT, practice, is set-off, or defalcation in an action. Vin. Ab. h. t.
DISCOUNT, contracts, is an allowance made upon prompt payment in the purchase of goods; it is also the interest allowed in advancing money upon bills of exchange, or other negotiable securities due at a future time. And to discount signifies the act of buyinga bill of exchange or promissory note for a less sum than that which upon its face, is payable. Among merchants the term used when a bill of exchange is transferred, is, that the bill is sold and not that it is discounted. See Poth. De l'Usure, n. 128; 3 Pet. R. 40.
DISCOVERY, not covert, unmarried; the term is applied to a woman unmarried or widow; one not within the bonds of matrimony.
DISCOVERY, intern, law. The act of finding an unknown country. The nations of Europe adopted the principle that the discovery of any part of America gave title to the government by whose subjects, or by whose authority it was made, against all European governments. This title was to be consummated by possession. 8 Wheat. 543.
DISCOVERY, practice, pleading, is the act of disclosing or revealing by a defendant, in his answer to a bill filed against him in a court of equity. Vide Bill of Discovery; 8 Vin. Ab. 537; 8 Com. Dig. 515.
TO DISCREDIT, practice, evidence, is to deprive one of credit or confidence. In general a party may discredit a witness who testifies against him, by proving that his character is such as not to entitle him to credit or confidence, or any other fact which
shows he is not entitled to belief. It seems not to be clearly settled whe. ther a party can be allowed to discredit his own witness. 1 Moo. & Rob. 414; 3 B. & Cress. 746; S. C. 10 Eng. Com.\Law R. 220. When, however, a party calls a witness, who turns out unfavourably, he may call another to prove the same point. 2 Campb. R. 556; 2 Stark. R. 334; S. C. 3 E. C. L. R. 371; 1 Nev. do Man. 34; 4 B. & Adolph. 193; S. C. 24 E. C. L. R. 47; 1 Phil. Ev. 229; Rose. Civ. Ev. M.
DISCRETION, practice. When it is said that something is left to the discretion of a judge, it signifies that he ought to decide according to the rules of equity, and the nature of circumstances. Louis. Code, art. 3522, No. 13; 2 Inst. 50, 298; 4 Serg. & Rawle, 265; 3 Burr. 2539. The discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends upon constitution, temper and passion. In. the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion, to which human nature is liable. 1 Day's Cas. 80, n; 1 Pow, Mortg. 247, a; 2 Supp. to Ves. Jr. 391; Toull. liv. 3, n. 338; 1 Lill, Ab. 447. There is a species of discretion which is authorised by express law, and, without which, justice cannot be administered; for example, an old offender, a man of much intcl. ligence and cunning, whose talents render him dangerous to the com. munity, induces a young man of a, weak intellect to commit a larceny in company with himself, they are both liable to be punished for the offence. The law foreseeing such a case has provided that the punishment should be proportioned, so as to do justice, "and it has left such apportionment to the discretion of the judge. It is evident that without such discretion justice could not be administered, for
one of these parties assuredly deserves a much more severe punishment than the other.
DISCRETION, crim. law, is the ability to know and distinguish between good and evil; between what is lawful and what is unlawful. The age at which children are said to have discretion, is not very accurately ascertained. Under seven years, it seems that no circumstances of mischievous discretion can be admitted to overthrow the strong presumption of innocence, which is raised by an age so tender. 1 Hale, P. C. 27, 8; 4 Bl. Com. 23. Between the ages of seven and fourteen, the infant is, prima facie, destitute of criminal design, but this presumption diminishes as the age increases, and even during this interval of youth, may be repelled by positive evidence of vicious intention, for a tenderness of years will not excuse a maturity in crime, the maxim in these cases being malitia supplet atatem. At fourteen, children are said to have acquired legal discretion. 1 Hale, P. C. 25.
DISFRANCHISEMENT, is the act of depriving a member of a corporation of his right as such, by expulsion. It differs from amotion (q. v.) which is applicable to the removal of an officer from office, leaving him his rights as a member. Willc. on Corp. n. 708; Ang. & Ames on Corp. 237; and see Expulsion.
DISGRACE. Vide Crimination; To Degrade.
DISHERISION, disinheritance; depriving one of an inheritance. Obsolete. Vide Dirinherision.
DISHERITOR, one who disinherits or puts another out of his freehold. Obsolete.
TO DISHONOUR, contr. This term is applied to the non-fulfilmont of commercial engagements. To dishonour a bill of exchange or a promissory note, is to refuse or neglect to pay it at maturity. The hol
der is bound to give notice to the parties to such instrument of its dishonour, and his laches will discharge the indorsers. Chit, on Bills, 394, 395, 256 to 278.
DISINHERISON, civil law, is the act of depriving a forced heir of the inheritance which the law gives him. In Louisiana forced heirs may be deprived of their legitime, or legal portion and of the seisin granted them by law, for just cause. The disinherision must be made in proper form, by name and expressly, and for a just cause, otherwise it is null. The just causes for which parents may disinherit their children, are ten in number; 1. If the child has raised his or her hand to strike the parent, or, if he or she has actually struck the parent; but a mere threat is not sufficient. 2. If the child has been guilty, towards a parent, of cruelty, or of a crime or grievous injury. 3. If the child has attempted to take away the life of either parent. 4. If the child has accused either parent of any capital crime, except, however, that of high treason. 5. If the child has refused sustenance to a parent, having the means to afford it. 6. If the child has neglected to take care of a parent, become insane. 7. If a child has refused to ransom them, when detained in captivity. 8. If the child used any act of violence or coercion to hinder a parent from making a will. 9. If the child has refused to become security for a parent, having the means, in order to take him out of prison. 10. If the son or daughter, being a minor, marries without the consent of his or her parents. Civil Code, art. 16091613. The ascendants may disinherit their legitimate descendants, coming to their succession, for the first nine causes above expressed, when the acts of ingratitude there mentioned have been committed towards them, instead of towards their parents; but they cannot disinherit their descendants for the last cause. Art. 1614. Legitimate children, dying without issue, and leaving a parent, cannot disinherit him or her, unless for the seven following causes, to wit: 1. If the parent has accused the child of a capital crime, except however, the crime of high treason. 2. If the parent has attempted to take the child's life. 3. If the parent has, by any violence or force, hindered the child from making a will. 4. If the parent has refused sustenance to the child in necessity, having the means of affording it. 5. If the parent has neglected to take care of the child, when in a state of insanity.
6. If the parent has neglected to ransom the child when in captivity.
7. If the father or mother have attempted the life the one of the other, in which case the child or descendant, making a will, may disinherit the one who has attempted the life of the other. Art. 1615. The testator must express in the will for what reason he disinherited his forced heirs, or any of them, and the other heirs of the testator are moreover obliged to prove the facts on which the disinherision is founded, otherwise it is null. Art. 1616. Vide Nov. 115; Avl. Pand. B. 2, t. 29.
DISJUNCTIVE TERM, is one which is placed between two contraries, by the affirming of one of which, the other is taken away: it is usually expressed by the word or. Vide 3 Ves. 450; 7 Ves. 454; 2 Rop. Leg. 290; 1 P. Wms. 433; 2 Cox, Rep. 213; 2 P. Wms. 283; 2 Atk. 643; 6 Ves. 341 ; 2 Ves. Sr. 67; 2 Str. 1175; Cro. Eliz. 525; Pollexf. 645; 1 Bing. 500; 3 T. R. 470; 1 Ves. Sr. 409; 3 Atk. 83, 85; Ayl. Pand. 56. In the civil law when a legacy is given to Caius or Titius, the word or, is considered and, and both Caius and Titius are entitled to the legacy in equal parts.
6 Toull. n. 704. See Copulative term; Construction, subdivision, And; Or. Also Bac. Ab. Conditions, P, 5.
DISMES. Another name for tithes. Dime, (q. v.) a piece of federal money is sometimes written disme.
TO DISMISS A CAUSE, practice, a term used in courts of chancery for removing a cause out of court without any further hearing.
DISOBEDIENCE is the want of submission to the orders of a superior. In the army, disobedience is a misdemeanor. For disobedience to parents, children may be punished; and apprentices may be imprisoned for disobedience to the lawful commands of their master. Tide Correction.
DISORDERLY HOUSE, crim. law, is a house the inmates of which behave so badly as to become a nuisance to the neighbourhood. The keeper of such house may be indicted for keeping a public nuisance. Hawk. b. 1, c. 78, s. 1 & 2; Bac. Ab. Inns, A; 1 Russ. on Cr. 298; 1 Wheel. C. C. 290; 1 Serg. & Rawle, 342; 2 Serg. <fc Rawle, 298; Bac. Ab. Nuisances, A; 4 Chit. Bl. Corm 167, 8, note. Vide Bawdy house; 111 fame.
TO DISPAUPER, Engl, law, is to deprive a person of the privilege of suing in forma pauperis (q. v.) When a person has been admitted to sue in forma pauperis, and before the suit is ended, it appears that the party has become the owner of a sufficient estate real or personal, or has been guilty of some wrong, he may be dispaupered.
TO DISPONE, Scotch law. This is a technical word, which implies, it is said, a transfer of feudal property by a particular deed, and is not equivalent to the term alienate; but Lord Eldon says, "with respect to the word dispone, if I collect the opinions of a majority of the judges