Gambar halaman
PDF
ePub

t. 7, De Donationibus. See 2 Ves. jr. 119. Smith v. Casen, mentioned by the reporter at the end of Drury v. Smith, 1 P. Wms. 406; 2 Ves. sen. 434; 3 Binn. 366.

With respect to the nature of a donatio mortis causa, this kind of amphibious gift so far resembles a legacy, that it is ambulatory and incomplete during the donor's life, it is, therefore, revocable by him, 7 Taunt. 231; 3 Binn. 366, and subject to his debts upon a deficiency of assets, 1 P. Wms. 405. But in the following particulars it differs from a legacy; it does not fall within an administration, nor require any act 1 in the executors to constitute a title in the donee. Rop. Leg. 26.

The following circumstances are required to constitute a good donatio mortis causa; 1st. That the thing given be personal property, 3 Binn. 370; a bond, 3 Binn. 370; 3 Madd. R. 184; bank notes, 2 Bro. C. C. 612; and a check offered for payment during the life of the donor, will be so considered; 4 Bro. C. C. 286. 2dly. That the gift be made by the donor in peril of death, or during his last illness, and to take effect only in case the giver die. 3 Binn. 370 ; 4 Burn's Eccl. Law, 110. 3dly. That there be an actual delivery of the subject to, and for the donee, in cases where such delivery can be made. 3 Binn. 370 ; 2 Ves. jr. 120. See 9 Ves. 1; 7 Taunt. 224. But such delivery can be made to a third person for the use of the donee. 3 Binn. 370. It is an unsettled question whether such kind of gift appearing in writing, without delivery of the subject, can be supported; 2 Ves. jr. 120. By the Roman and civil law, a gift mortis causa, might be made in writing. Dig. lib. 39, t. 6, 1. 28; 2 Ves. sen. 440; 1 Ves. sen. 314.

See in general, 1 Fonb. Tr. Eq. 288, n. (p); Coop. Just. 474; Civ.

Code of Lo. B. 3, t. 2, c. 1 and 6.

No disposition, mortis causa, shall henceforth be made otherwise than by last will or testament. All other form is abrogated. Civ. Code of Lo. art. 1563; Vin. Abr. Executors, Z 4; Bac. Abr. Legacies, A; Supp. to Ves. jr. vol. 1, p. 143, 170; vol. 2, 97, 215; Rop. Leg. ch. 1; Swinb. pt. 1, s. 7.

DONATION, contracts, is the act by which the owner of a thing, voluntarily transfers the title and possession of the same, from himself to another person, without any consideration; a gift (q. v.) A donation is never perfected, until it has been accepted, for the acceptance, (q. v.) is requisite to make the donation complete. Vide Assent, and Ayl. Pand. tit. 9; Clef des Lois Rom. h. t.

DONATION INTER VIVOS, contracts, is a contract which takes place by the mutual consent of the giver, who divests himself of the thing given in order to transmit the title of it to the donee gratuitously, and the donee who accepts the thing and acquires a legal title to it. This donation takes place when the giver is not in any immediate apprehension of death, which distinguishes it from a donatio mortis causd, (q. v.) And see Civ. Code of Lo. art. 1453.

DONEE. He to whom a gift is made, or a bequest given.

DONIS, SATUTE DE, the stat. West. 2, namely, 13 Edw. 1, c. 1, called the statute de donis condition. alibus. This statute revives, in some sort, the ancient feudal restraints, which were originally laid on alienations. 2 Bl. Com. 12.

DONOR, he who makes a gift. (q. v.)

DOOR. The place of usual entrance in a house, or into a room in the house. Doors are distinguished into outer doors and inner doors. To authorise the breach of an outer door in order to serve process, the process must be of a criminal nature; and even then a demand of admittance must first have been refused. 5 Co. 93; 4 Leon. 41; T. Jones, 234; 1 N. H. Rep. 346; 10 John. 263; 1 Root, 83, 134; 21 Pick. R. 156; the outer door may also be broken open for the purpose of executing a writ of habere facias. 5 Co. 93; Bac. Ab. Sheriff, N 3. An outer door cannot in general be broken for the purpose of serving civil process, 13 Mass. 520 ; but after the defendant has been arrested, and he takes refuge in his own house, the officer may justify breaking an outer door to take him. Foster, 320; 1 Roll. R. 138; Cro. Jac. 555; 10 Wend. 300. When once an officer is in the house, he may break open an inner door to make an arrest. Kirby, 386; 5 John. 352; 17 John. 127.

DOTAL PROPERTY. By the civil law and in Louisiana, by this term is understood that property which the wife brings to the husband to assist him in bearing the expenses of the marriage establishment. Civil Code of Lo. art. 2315. Vide Extradotal property.

DOTATION, French law. Is the act by which the founder of a hospital, or other charity, endows it with property to fulfil its destination.

DOTE, Span, law, is the property which the wife gives to the husband on account of marriage. It is divided into adventitia and profectici'a; the former is the dote which the father or grandfather, or other of the ascendants in the direct paternal line, give of their own property to the husband; the latter (adventitia) is that property which the wife gives to the husband, or that which is given to him for her by her mother, or her collateral relations, or a stranger. Aso & Man. Inst. B. 1, t. 7, c. 1, §1.

DOTE ASSIGNANDO, Eng. law. The name of a writ which lay in favour of a widow, when it was found by office that the king's tenant was seised of tenements in fee or fee tail at the time of his death, and that he held of the king in chief.

DOTE UNDE NIHIL HABET. The name of a writ of dower which a widow sues against the tenant, who bought land of her husband in his life-time, and in which her dower remains, of which he was seised solely in fee simple or fee tail. F. N. B. 147; Booth, Real Act. 166.

DOUBLE COSTS, practice. According to the English law, when double costs are given by the statute, the term is not to be understood, according to its literal import, twice the amount of single costs, but in such case the costs are thus calculated; 1, the common costs, and, 2, half of the common costs. Bac. A b. Costs, E; 2 Str. 1048. This is not the rule in New York, nor in Pennsylvania. 2 Dunl. Pr. 731; 2 Rawle's R. 201. In all cases where double or treble costs are claimed, the party must apply to the court for them before he can proceed to the taxation, otherwise the proceedings will be set aside as irregular. 4 Wend. R. 216. Vide Costs; and Treble Costs.

DOUBLE INSURANCE, contracts, is where the insured makes two insurances on the same risk, and the same interest. It differs from re-insurance in this, that it is made by the insured, with a view of receiving a double satisfaction in case of loss; whereas a re-insurance is made by a former insurer, his executors or assigns, to protect himself and his estate from a risk to which they were liable by the first insurance. The two policies are considered as making but one insurance. They are good to the extent of the value of the effects put in risk; but the insured shall not be permitted to recover a double satisfaction. He can sue the underwriters on both the policies, but he can only recover the real amount of his loss, to which all the underwriters on both shall contribute in proportion to their several subscriptions. Marsh. Ins. 8. 1, c. 4 s. 4.

'DOUBLE PLEA. Vide Duplicity.

DOUBT, is the uncertainty which exists in relation to a fact, a proposition, or other thing; or it is an equipoise of the mind arising from an equality of contrary reasons. Ayl. Pand. 121. The embarrassing position of a judge is that of being in doubt, and it is frequently the lot of the wisest and most enlightened to be in this condition; those who have little or no experience usually find no difficulty in deciding the most problematical questions. Some rules, not always infallible, have beerradopted in doubtful cases, in order to arrive at the truth. 1. In civil cases, the doubt ought to operate against him, who having it in his power to prove facts to remove the doubt has neglected to do so. In cases of fraud when there is a doubt, the presumption of innocence (q. v.) ought to remove it. 2. In criminal cases, whenever a reasonable doubt exists as to the guilt of the accused, that doubt ought to operate in his favour.

No judge is presumed to have any doubt on a question of law, and he cannot therefore refuse to give a judgment on that account. 9 M. R. 355; Merlin, Repert. h. t.; Ayliffe's Pand. b. 2, t. 17; Dig. lib. M, t. 5; Code, lib. 6, t. 38. Indeed, in some counties, in China, for example, ignorance of the law in a judge is punishable with blows. Penal Laws of China, B. 2, s. 61.

DOVE. The name of a wellknown bird. Doves are animals fera natiira, and not the subject of larceny, unless they are in the own

Vol. I.—42.

er's custody, as, for example, in a dove-house, or when in the nest before they can fly. 9 Pick. 15. See Whelp.

DOWAGER. A widow endowed; one who has a jointure. In England, this is a title or addition given to the widows of princes, dukes, earls, and other noblemen.

DOWER is the right of a woman in a third part of all the lands and tenements in fee simple, fee tail general, or as heir in special tail, of which her deceased husband was seized, either in deed or in law, at any time during the coverture, and of which any issue she might have had, might by possibility have been heir. Litt. § 36. Vide Estate in Dower. This is dower at common law. Besides this, in England there are three other species of dower now subsisting; namely, dower by custom, which is, where a widow becomes entitled to a certain portion of her husband's lands in consequence of some local or particular custom: thus by the custom of gavelkind, the widow is entitled to a moiety of all the lands and teuements, which her

husband held by that tenure Dower

ad ostium ecclesia, is, when a man of full age comes to the church door to be married, after troth plighted, endows his wife of a certain portion of his lands.—Dower ex assensu patris, was only a species of dower ad ostium ecclesia, made when the husband's father was alive, and the son, with his consent expressly given, endowed his wife, at the church door, of a certain part of his father's lands. —There was another kind, de la pint belle, to which the abolition of military tenures has put an end. Vide Cruise's Dig. t. 6, c. 1; 2 Bl. Com. 129; 15 Serg. & Rawle, 72; Poth. Du Douaire.

In the United'States, the estate which the wife takes in the lands of her deceased husband, varies essentially from the right of dower at common law. In some of the states, she takes one-third of the profits, or in case of there being no children, one half. In others' she takes the same right in fee, when there are no lineal descendants; and in one she takes two-thirds in fee, when there are no lineal ascendants or descendants, or brother or sister of the whole or half blood. 1 Hill. Ab. 57,8.

DOWRESS. A woman entitled to dower. In order to entitle a woman to the rights of a dowress at common law, she must have been lawfully married, her husband must be dead, he must have been seised, during the coverture, of an estate subject to dower. Although the marriage may be voidable, if it is not absolutely void at his death, it is sufficient to support the rights of the dowress. The husband and wife must have been of sufficient age to consent. At common law an alien could not be endowed, but this rule has been changed in several states. 2 John. Cas. 29; 1 Harr. & Gill, 280; 1 Cowen, R. 89; 8 Cowen, R. 713. The dowress's right may be defeated when her husband was not of right seised of an estate of inheritance; as, for example, dower will be defeated upon the restoration of the seisin under the prior title in the case of defeasible estates, as in case of re-entry for a condition broken, which abolishes the intermediate seisin. Perk. s. 311, 312, 317. Dower is barred in various ways; 1. By the adultery of the wife, unless it has been condoned. 2. By a jointure settled upon the wife. 2 Paige, R. 511. 3. By the wife joining her husband in a conveyance of the estate. 4. By the husband and wife levying a fine, or suffering a common recovery^ 10 Co. 49, b; Plowd. 504. 5. By a divorce a vinculo matrimonii. 6. By an acceptance, by the wife of a collateral

satisfaction, consisting of land, money, or other chattel interest, given instead of it by the husband's will, and accepted after the husband's death. In these cases she has a right to elect whether to take her dower or the bequest or devise. 4 Monr. R. 265; 5 Monr. R. 58; 4 Desaus. R. 146; 2 M'Cord, Ch. R. 280; 7 Cranch, R. 370; 5 Call, R. 481; 1 Edw. R. 435; 3 Russ. R. 192: 2 Dana, R. 342.

DOWRY, was formerly applied to mean that which a woman brings to her husband in marriage; this is now called a portion. This word is sometimes confounded with dower. Vide Qo. Litt. 31 ; Civ. Code of Lo. art. 2317; Dig. 23, 3, 76; Code, 5, 12, 20.

DRAGOMAN, an interpreter employed in the east, and particularly at the Turkish court. The act of Congress of August 26, 1842, c. 201, s. 8, declares that it shall not be lawful for the president of the United States to allow a dragoman at Constantinople, a salary of more than two thousand five hundred dollars.

DRAIN. Conveying the water

from one place to another, for the

purpose of drying the former. The

right of draining water through ants o ©

other man's land. This is an easement or servitude acquired by grant or prescription. Vide 3 Kent, Com. 436; Jvs aquaductus; Rain water; Stillicidium.

DRAWBACK, comm. law, is an allowance made by the government to merchants on the re-exportation of certain imported goods liable to duties, which in some cases consists of the whole, in others of a part of the duties which had been paid upon the importation. For the various acts of congress which regulated drawbacks, see Story, L. U. S. Index, h. t.

DRAWEE. A person to whom a bill of exchange is addressed, and who is requested to pay the amount of money therein mentioned. The drawee may be only one person, or there may be several persons. The drawee may be a third person, or a man may draw a bill on himself. 18 Yes, Jr. 69; Carth. 509; 1 Show. 163; Burr. 1077. The drawee should accept or refuse to accept the bill at furthest within twenty-four hours after presentment. 2 Smith's R. 243; 1 Ld. Raym. 281 ; Com. Dig. Merchant, F6; Marius, 15; but it is said the holder is entitled to a definite answer if the mail go out in the mean time. Marius, 62. In case the bill has been left with the drawee for his acceptance, he will be considered as having accepted it, if he keep the bill a great length of time, or do any other act which gives credit to the bill, and induces the holder not to protest it; or is intended as a surprise upon him, and to induce him to consider the bill as accepted. Chit, on Bills, 227. When he accepts it, it is his duty to pay it at maturity.

DRAWER, contracts. The party who makes a bill of exchange. The obligations of the drawer to the drawee and every subsequent holder lawfully entitled to the possession, that the person on whom he draws is capable of binding himself by his acceptance; that he is to be found at the place where he is described to reside, if that description be mentioned in the bill; that if the bill be duly presented to him, he will accept in writing on the bill itself, according to its tenor, and that he will pay it when it becomes due, if presented in proper time for that purpose; and that if the drawee fail to do either, he, the drawer, will pay the amount provided he have due notice of the dishonour. The engagement of the drawer of a bill is in all its parts absolute and irrevocable. 2 H. Bl. 378; 3 B. & P. 291; Poth. Contr.

de Change, n. 58; Chit. Bills, 214; Dane's Ab. h. t.

DRAWING. A representation on paper, card, or other substance, of something. The act of congress of July 4, 1836, section 6, requires all persons who apply for letters-patent for an invention to accompany their petitions or specifications with a drawing or drawings of the whole, and written references, when the nature of the case admits of drawings.

DREIT. The same as Droit, (q. v.)

DRIFTWAY. A road or way over which cattle are driven. 1 Taunt. R. 279; Selw. N. P. 1037; Wool, on Ways, 1.

DRIP. The right of drip is an easement by which the water which falls on one house is allowed .to fall upon the land of another. Unless the owner has acquired the right by grant or prescription, he has no right so to construct his house as to let the water drip over his neighbour's land. 1 Roll. Ab. 107. Vide Rain water; Slillicidium; and 3 Kent, Com. 436; Dig. 43, 23, 4 et 6; 11 Ad. & Ell. 40; S. C. 39 E. C. L. R. 21.

DRIVER. One employed in conducting a coach, carriage, wagon or other vehicle, with horses, mules or other animals. Frequent accidents occur in consequence of the neglect or want of skill of drivers of public stage-coaches, for which the employers are responsible. The law requires that drivers should possess reasonable skill andbe of good habits for the journey; if therefore he is not acquainted with the road he undertakes to drive, 3 Bingh. Rep. 314, 321; drives with reins so loose that he cannot govern his horses, 2 Esp. R. 533; does not give notico of any serious danger on the road, 1 Campb. R. 67; takes the wrong side of the road, 4 Esp. R. 273; incau

« SebelumnyaLanjutkan »