DANBY, IMPEACHMENT OF-contd. (2.) Whether a minister might plead in bar to an impeachment the fact that the king had subsequently pardoned the offence, if any-Held, that such plea was not so admissible, although the king's pardon after conviction or attainder would be a good deliverance. This opinion was only hesitatingly arrived at on the occasion of Lord Danby's impeachment, and was not finally adopted or declared by the legislature until 13 Will. 3, c. 2 (Act of Settlement).

And (3.) Whether an impeachment abated by a dissolution of Parliament :Held, that an impeachment did not abate upon a prorogation merely, nor yet upon a dissolution. This decision was not, however, final, for the contrary was held in 1685; and it was not till 1717 (in the case of the Earl of Oxford), that a prorogation, and not until 1791 (in the case of Warren Hastings) that a dissolution, was finally declared to be no abatement of an impeachment in parliament.

DANE-GELT, OR DANE-GELD. This means Dane-tribute, and was a tax of 18. (afterwards 28.) upon every hide of land throughout the kingdom. It was originally imposed by the Danes, and was afterwards levied for clearing the seas of Danish pirates; sometimes it was applied by way of bribing these pirates to abstain from their invasions. The tax was released by Edward the Confessor, but was again imposed by William I.; it was again released by Henry I., and re-imposed in the form of ship-money by Charles I.

See title SHIP-MONEY.

DARREIN PRESENTMENT: See title ASSIZE OF DARREIN PRESENTMENT.

DAY: See title TIME. DEAD FREIGHT. This is freight payable by the charterer of a vessel under his charterparty when the cargo has for some cause not been conveyed as intended.

See title CHARTERPARTY,

DEAF AND DUMB. Such persons may lawfully intermarry (Harrod v. Harrod, 1 Kay & J. 4); and, if married women, may make acknowledgments (In re Harper, 6 M. & G. 732). But their wills are regarded with much suspicion (In the Goods of Owston, 2 S. & T. 461). If deaf, dumb, and blind they are idiots, and have no capacity, sed quære.

DEAN. An ecclesiastical dignitary who presides, or originally presided, over ten (deka) canons or prebendaries. He is next in rank to the bishop, and is head of the chapter of a cathedral.

DEAN-continued.

A dean and chapter is a spiritual corporation, and forms the council of the bishop, assisting him with advice and management in spiritual matters, and also in the temporal concerns of the diocese.

Deans of the old foundation-e.g., St. Paul's are elected by the chapters of cathedrals upon a congé d'élire from the Sovereign; deans of the new foundationi.e., deans created by Henry VIII., e.g., Canterbury-are appointed by the letters patent of the sovereign. Deaneries of the former class are thence called elective, those of the latter donative; but some are presentative, i.e., in the gift of private patrons.

DEATH. Where a person has not been heard of for seven years, and his absence is not explainable, the law raises a primâ facie presumption that he is dead (Row v. Hasland, 1 W. Bl. 406); but that presumption does not in any way fix the time of death, of which strict evidence must be given by the party who derives any interest therefrom. Doe v. Nepean, 2 Sm. L. C.

510.

DE BENE ESSE: See title EVIDENCE DE BENE ESSE.

DEBENTURE. Is a security issued by a public company, usually railway company, and which may or may not be a mortgage of the lands and stock of the company. If not mortgages, debentures are not an interest in land within the meaning of the Statute of Frauds (29 Car. 2, c. 3), or within the Mortmain Act (9 Geo. 2 c. 36); but otherwise if they are mortgages (Toppin v. Lomas, 16 C. B. 159). Debentures are usually in the form of a promissory note, subject to certain strict regulations as to the mode of transfer, and usually have coupons attached to them to facilitate the payment of interest. The interest on these coupons, although payable half-yearly, accrues due de die in diem, and is apportionable like ordinary interest. In re Rogers, 1 Dr. & Sm. 338.

See also title SHARES.

DEBENTURE STOCK is a species of funded debt contracted by a public company under the authority of the Companies Clauses Act, 1863 (26 & 27 Vict. c. 118), ss. 22-35, and intended to be applied in discharge of the mortgages or bonds of the company. It carries interest at 4 per cent., and both principal and interest are a charge upon the undertaking of the company, and are prior to all shares or stock of the company. They are personal estate. They do not entitle the holders to vote, or even to be present, at any meeting of the company. To the

DEBENTURE STOCK-continued. extent of the money raised by the issue of debenture stock the borrowing powers of the company are extinguished.

DEBT. This means a sum of money due by some certain and express agreement, e.g., on a bond, bill of exchange, &c., where the amount is determinate, and for the non-payment thereof an action of debt will lie.

Debts are of various kinds, namely :— (1.) Judgment debts, as to which see title JUDGMENT DEBTS.

(2.) Specialty debts, as to which see title SPECIALTY DEBTS.

(3.) Simple contract debts, as to which see title SIMPLE CONTRACT DEBTS.

Originally debts were not payable out of real estate, but only out of personal estate. For it appears that

Anciently there was only one mode by which lands might become liable for the debts of the tenant, namely, by the tenant giving a bond specially binding his heir as well as himself. This of course he could not do until the power of alienation by deed inter vivos, so as to defeat the heirs, became established (see title ALIENATION); but the power to execute a bond of that sort is expressly recognised in Britton, who wrote in the reign of Edward I. But this specialty debt, as it was called, was only available against such part of the debtor's land as descended to his heir; and the word "heirs" did not include for this purpose the word "devisee" until the stat. 6 & 7 Will. 3, c. 14 (the Statute of Fraudulent Devises) was passed, so that, until the last-mentioned statute the obligor, after binding his heirs, might, by devising the lands away from his heirs, have defeated the obligee of his remedy. Such was the liability of the lands of a debtor after his decease. During the life of the debtor the lands were not liable at all, unless in virtue of judicial proceedings taken against the tenant, the debtor. It was necessary to enter up judgment against the debtor for the amount of the debt; and the creditor becoming a judgment creditor was enabled by the stat. 13 Edw. 1 (Statute of Westminster the Second), c. 18, to obtain an elegit, whereby he might take one moiety of the lands of the debtor, and satisfy himself his debt thereout. See titles ELEGIT; JUDGMENT DEBTS.

After the right of testamentary alienation became established (see title ALIENATION), it was competent to a debtor to charge his lands with the payment of his debts; and in the Court of Chancery such a charge was construed to extend to debts arising out of simple contract, as well as by specialty, so that all debts were payable

DEBT-continued.

out of the land rateably according to their respective amounts.

And the present liability of lands to the payment of debts is as follows:

(1.) During the lifetime of the debtorUpon entering up judgment, and duly registering same, execution may be sued out and registered, and under that execution lands, whether freehold, copyhold, or leasehold, and whether legal or equitable, may be taken possession of and sold in satisfaction of the debt. See title JUDGMENTS. (2.) After the decease of the debtor.

By the stat. 3 & 4 Will. 4, c. 104, it is enacted that the lands of a deceased person shall be assets in Equity for payment of all his just debts, as well owing by simple contract as by specialty.

See title ADMINISTRATION OF ASSETS.
See also title CROWN DEBTS.

see title FRAUD,

A writ of deceit used formerly to lie, and now an action on the case in the nature of a writ of deceit lies, where the plaintiff has received injury or damage through the deceit of the defendant or of his agent, where the defendant was privy thereto.

See also titles MISREPRESENTATION;
WARRANTY.

DECENNARY. A tithing or civil division of the country composed of ten freeholders with their families. The institution was introduced, it is believed, by the earliest Saxon settlers in England, and some say by Alfred. The members of a tithing were mutually responsible for each other's good behaviour (see title FRANKPLEDGE). Ten decennaires formed a hundred (see title HUNDRED).

DECENNIERS. Persons having the oversight of ten free burghs (Holthouse), or possibly only of ten free households (Tomlins), for the conservation of the king's peace therein, with power to try causes and give redress by judgment, and for these purposes to administer oaths.

DECREE. This is the judgment of a Court of Equity, and is to most intents and purposes the same as a judgment of a Court of Common Law. A decree as distinguished from an order is final, and is made at the hearing of the cause, whereas an order is interlocutory, and is made on motion or petition; wherever an order may, in a certain event resulting from the direction contained in the order, lead to the termination of the suit in like manner as a decree made at the hearing, it is called a decretal order.

DEDI-continued.

a warranty of title, but implying no such warranty at the present day, since 8 & 9 Vict. c. 106.

DEDIMUS POTESTATEM. A writ issuing out of Chancery empowering certain persons therein named to perform certain acts; as when a justice of the peace appointed under the king's commission intends to act under this commission, a writ of dedimus potestatem issues, empowering certain persons therein named to administer the usual oaths to him, which being done, he is at liberty to act. Lamb. 23.

DEDIMUS POTESTATEM DE ATTORNATO FACIENDO. At Common Law the parties in an action were obliged to appear in Court in person, unless allowed by a special warrant from the Crown (bearing the above title) to appoint an attorney; or unless after appearance they had appointed a deputy, called a responsalis, to act for them, and which the Court allowed them to do in some instances. But now a general liberty is given to parties in an action to appear by attorney, excepting in the cases of infants, idiots, and married women. F. N. B. 25; 1 Arch. Pract. 84.

DE DONIS. This is the name of a celebrated statute (13 Edw. 1, or Statute of Westminster the Second, c. 1), in virtue of which an estate in freehold lands, which was formerly known as a donum conditionale (whence the name of the statute), was converted into an estate tail, and required to descend according to the formedon (formam doni), so as to be inalienable as well against the lord in prejudice of his reversion as against the issue in prejudice of their succession. A donum conditionale, on the other hand, was alienable, immediately upon the birth of issue, that being construed as the condition of the gift (whence the name); the condition being discharged, the estate, of course, became absolute. See title ESTATE TAIL,

DEEDS. These are of two kinds, being either deeds-poll or indentures.

(1.) A deed-poll was a bald or shorn deed, and was made by one person only, beginning with the words, "Know all men," &c. Under such a deed, any person may accept a grant.

(2.) An indenture was an indented deed, and was made between two or more parties, beginning with the words, "This indenture,' &c., and stating the parties at the outset. Formerly no person who was not a party could take any immediate estate, interest, or benefit under such a deed; but now, by the 8 & 9 Vict. c. 106, such an

DEEDS-continued. estate, interest, or benefit may now be taken under it by a person not a party to it. A deed may be made either on paper or on parchment.

DEER.

Deer in a park when reclaimed become personal chattels, and cease to be parcel of the inheritance. Ford v. Tynte, 2 J. & H. 150; Morgan v. Abergavenny (Earl), 8 C. B. 768.

By the stat. 24 & 25 Vict. c. 96, s. 12, it is made a criminal offence to wilfully course, hunt, snare, or carry away, or kill, or wound deer in an uninclosed forest, the penalty for a first conviction not to exceed £50, and for a second or other subsequent offence imprisonment not exceeding two years, with or without hard labour. Doing the like to deer in inclosed ground is punishable even for a first offence with the like imprisonment (s. 13). Setting engines for taking or killing deer, whether in an uninclosed or in an inclosed place is punishable with a fine not exceeding £20.

DE FACTO. A king de facto is one actually reigning, as opposed to one de jure merely, who, although having the lawful succession, has either been ousted from, or never actually taken, the possession of the Sovereignty.

The constitutional statute,

11 Hen. 7, c. 1, enacts that obedience to the king for the time being de facto shall be a protection to the subject against all forfeitures under any succeeding sovereign claiming adversely.

See also title ALLEGIANCE.

DEFAMATION: See title LIBEL,

DEFAULT, JUDGMENT BY. Where a defendant omits to appear, or (having appeared) to plead or to put in his answer to an action or suit within the time or times limited for either of these purposes by the Courts, and he has obtained no enlargement or extension of the time for doing so, it is presumed that he has no defence, and the plaintiff is thereupon entitled to sign judgInent against him. Either:

(1.) For the non-appearance, if the writ has been specially indorsed; s. 27, C. L. P. Act, 1852: or,

(2.) For want of plea, if the writ has not been specially indorsed; s. 28, C. L. P. Act, 1852.

Moreover, by s. 93, C. L. P. Act, 1852, when the plaintiff in any action seeks to recover a debt or liquidated demand in money, judgment by default is final; and by s. 94 of the same Act, where he seeks to recover an unliquidated sum, the ascertainment of which is merely matter of calculation, the Court directs the master to ascer

DEFAULT, JUDGMENT BY-continued. tain the amount, without reference to the distinction between debt and damages, but the judgment is in the meantime interlocutory only. Of course, where the ascertainment of the damages is not merely matter of calculation, the jury must find the amount and, semble, there is no judgment at all (by default or otherwise) until the jury have so found.

Judgment by default is also sometimes called judgment by Nil dicit.

DEFEASANCE: See title CONVEYANCES.

DEFENCE: See titles PLEA; JUSTIFICA

TION.

DEFORCEMENT. This is the holding of any lands or tenements wrongfully as against any person who has the right thereto but who has not as yet at any time been in the possession thereof; e.g., where a lessee for years or pur autre vie holds over after the determination of his interest and refuses to deliver up the possession to the reversioner or remainderman. But when such a tenant holds over without any such refusal to deliver up, he is not a deforciant, but only a tenant by sufferance. The deforciant must have come in by right in the first instance; for if the person wrongfully holding came in by wrong in the first instance, he is not a deforciant, but either,

(1.) An intruder: see title INTRUSION; (2.) A disseisor: see title DISSEISIN; or, (3.) An abator: see title ABATEMENT. Deforcement in respect that the defor ciant comes in by right in the first instance is like discontinuance, as to which see title DISCONTINUANCE.

DEGRADATION. This phrase was applied: (1.) To the case of a peer deprived of his nobility, e.g., the case of the Duke of Bedford, of Edward IV.'s reign, who was deprived by that sovereign on account of his poverty. And at the present day, a peer who becomes bankrupt ceases for the time being to be capable of sitting in the House of Lords (Bankruptcy Disqualification Act, 1871). (2.) To the case of an ecclesiastic who is divested of his holy orders; degradation is a greater punishment than deposition, being not merely the displacing one from his oflice (which deposition also is) but also the divesting him of all his badges of honour, privileges, &c. (which deposition is not).

DE INJURIA, REPLICATION. This was a form of taking issue, but which has been superseded by the C. L. P. Act, 1852, s. 79. The exact nature of the form may be col

DE INJURIA, REPLICATION—contd. lected from Crogate's Case (8 Rep. 66), and appears to have been in substance the following:-It was a general replication putting in issue all the material averments in the plea. Properly, therefore, it was to be replied to a plea of the defendant where, and only where, that plea consisted of matter of excuse, as that the plaintiff, e.g., in an action of trespass for driving the plaintiff's cattle, was himself in fault in the first instance in so doing; to which plea it is of course proper for the plaintiff to reply that the defendant's act was of his (the defendant's) own proper wrong (de injuria sua propria), and without any such ground of excuse as the defendant alleged (absque tali causâ). But where, as in Crogate's Case, the defendant justified under the command of his master, the replication de injuria was held inapplicable, not being accompanied with a traverse of the command.

See also titles NEW ASSIGNMENT;
REPLICATION.

DEL CREDERE, In mercantile transactions, if a factor or agent agrees with his principal, in consideration of some additional compensation, to guarantee to the latter the debt to become due from the buyer, the excess of this compensation over the ordinary compensation is that which distinguishes a del credere commission from an ordinary one. Of course the del credere commission agent is liable on his guarantie in case of the purchaser's default to pay the price.

DELICTO, ACTIONS EX. These are actions arising from a tort or wrong, being independent of contract, C. L. P. Act, 1852. The wrong must not amount to a crime, otherwise it is no tort in English Law. The division of obligations in Roman law is the following:

Obligationes.

(1.) Ex contractu. (2.) Ex delicto. (3.) Ex variis

causarum

figuris.

Quasi ex Quasi ex contractu. delicto.

The same division is substantially adopted in English Law; and the C. L. P. Act, 1852, s. 74, provides that in the case of actions which are founded upon obligations which are doubtfully ex contractu and doubtfully ex delicto, the defendant may treat the declaration as framed in either he pleases, and may plead accordingly.

DEMESNE LANDS. These were such parts of the lands of a manor as the lord kept to himself as being necessary for his own use. Ancient demesne lands are those which were so kept by the king as lord in the reigns of Edward the Confessor and William I., being the lands referred to in Domesday Book as Terræ Regis, or Terræ Regis Edwardi.

Of such lands, one part was retained by the lord in his actual occupation for the purposes of his family; a second part was held in villenage, and out of it the tenures of Copyhold, Customary Freehold, and Ancient Demesne have arisen (see these three titles respectively); and the remaining part was left uncultivated, whence also it was called the waste lands of the manor, serving for public roads and for common of pasture to the lord and his tenants.

See titles COMMONS; WASTE.

DEMISE. A word used in leases for terms of years, and being synonymous with lease, or let, from which it differs only in this respect, namely, that demise ex vi termini implies a covenant for title, and also a covenant for quiet enjoyment, whereas lease, or let, implies neither of these covenants. Where there are mutual leases of the same land, or of something out of the same land, made from one party to another on each side, it is said to be a conveyance by Demise and Re-demise, e.g., where A. grants a lease to B. at a nominal rent and B. re-demises the same property to A. for a shorter term at a substantial rent.

The word "demise "is also frequently used as a euphemism for decease or death, e.g., the demise of the king, more properly, of the Crown, which means, speaking strictly, that in consequence of the king's natural. body having by reason of the death thereof become disunited from his politic body, the kingdom is transferred or demised to his successor, for the king, as a corporation sole, never dies. The word demise should not be confounded with the word devise.

DEMURRAGE. This term is occasionally used to signify the delay or period of delay of a vessel in port (from the Latin demorari); but in law, it is more commonly used to denote the sum which is fixed by the contract of carriage as a remuneration to the shipowner for the detention of his ship beyond the number of days allowed for loading or unloading. It is usual to calculate this sum at so much per day, and also to specify in the contract the allowed days of demurrage; in which case, if the ship is delayed beyond the agreed demurrage, the freighter becomes liable to pay damages for the excess, which damages are usually estimated at the demurrage rate per day.