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If the ship after sailing puts back owing to contrary winds, and is detained in port by frost or bad weather, no demurrage is payable for that unavoidable delay; and when the ship is to be unloaded in the usual and customary time, no demurrage is payable for a detention caused merely by the crowded state of the docks (Jamieson v. Laurie, 6 Bro, P. C. 474; Burmester v. Hodgson, 2 Camp. 488). Where, however, the parties enter into a positive contract, that the goods shall be taken out of the ship within a specified number of days from her arrival, as such a contract is construed strictly, demurrage is payable for any delay beyond the specified period, although the shipper is powerless to remove the causes of the delay, provided only the shipowner is not to blame. Randall v. Lynch, 2 Camp. 352; Bessey v. Evans, 4 Camp. 131.
The contract to pay demurrage, which is contained in the charterparty, is made between the shipowner and the shipper, and the latter is therefore the person liable to pay the demurrage; but where, as is usually the case, the bill of lading mentions the demurrage, a consignee who accepts the goods under it may, and generally does, become liable for it on a new contract, to be implied from his acceptance of the goods under these circumstances; and such implied contract may arise, although the receiver at the time of receiving the goods states that he will not pay demurrage (Smith v. Sieveking, 4 E. & B. 945). But a mere reference in the bill of lading to the terms of the charterparty, in which demurrage is specified, will not of itself render the consignee receiving the goods liable for demurrage. Smith v. Sieveking, supra.
DEMURRER. In pleading, is the formal mode of disputing the sufficiency in law of the pleading of the other side.
Before the C. L. P. Act, 1852, demurrers were either general or special; but by s. 51 of that Act, special demurrers were abolished. There is now therefore but one kind of demurrer, namely, the general demurrer, which is admissible under s. 50 of the C. L. P. Act, 1852, but only when the pleading of the opposite party is bad in substance; fur if the pleading is bad for argumentativeness, generality, repugnance, duplicity, or other like reason not also amounting to matter of substance, it is to be objected to under s. 52 of the C. L. P. Act, 1852, by summary application to the Court to strike out or amend. Under s. 89 of the same Act, the forin of a demurrer is this :
* The defendant for “the plaintiff,” as the case may be], by his attorney (or
DEMURRER-continued. “in person,” as the case may be] says that the declaration (or “the plea,” &c., as the case may be] is bad in substance." And in the margin of the demurrer book the matter of law intended to be relied on is to be stated. The other side may thereupon join in demurrer in this form :“The plaintiff (or “ the defendant,” as the case may be] says that the declaration for “plea," &c., as the case may be] is good in substance."
Before the C. L. P. Act, 1862, a party was not at liberty both to plead and to demur to the same pleading ; but by s. 80 of that Act, he may by leave of the Court now do so upon affidavit, which however is seldom required.
In Chancery, whenever the statements contained in a plaintiff's bill of complaint (assuming them all to be true as stated) are insufficient to entitle him to the relief prayed, the defendant may demur to the plaintiff's bill, either to the relief (which would include the discovery) sought, or to the discovery alone (exclusive of the relief). The most usual grounds of demurrer are the following :(1.) Want of equity, whether
(a.) In respect of the subject matter; or (6.) In respect of the plaintiff per
sonally; or (c.) In respect of the defendant per
sonally ; (2.) Want of parties ; (3.) Multifariousness; and (4.) Insufficiency in Law of case made by
plaintiff. This fourth ground being analogous to the ground commonly taken at Law.
The demurrer, as to its form, commences with a formal protestation of the falsehood of the statements in plaintiff's bill, and then demurs to the bill, or to the part of it which it specifies, for the cause which it also specifies, concluding with a general allegation of other good causes of demurrer, and praying to be dismissed from the suit with costs, and without being compelled to answer the plaintiff's bill.
Twelve days after the date of his appearance to the bill is allowed the defendant for demurring alone; and twenty-eight days if he demur as to part, and plead or answer as to the rest.
The demurrer must be filed ; and within three weeks after the filing thereof, it may be set down for argument.
In case the demurrer is allowed, it puts the plaintiff wholly out of Court, unless he obtains leave to amend ; on the other hand if the demurrer is overruled, the defendant is obliged to put in his full defence by
See titles ANSWER; PLEA.
DEPOSITION—continued. for decree to examine his own unwilling witness in this way, but only upon notice to the other side, who then and there may cross-examine the deponent, the side who have called him in that case re-examining him. Also, in a suit in which replication has been filed, such depositions may be taken, but in this case ex parte. In either case the deposition is to be regarded as the reluctant attidavit of the deponent.
Depositions are also taken before magistrates for the purposes of a criminal prosecution; and in case the deponent should die before the trial, or be too ill to attend, these depositions may be used in evidence, subject to certain restrictions mentioned in the stat. 11 & 12 Vict. c. 42.
DEPRIVATION: See title DEGRADATION.
DENIZEN. A denizen is an alien by birth, who has obtained, ex donatione regis, letters patent making him an English subject. The king may denizenize but not naturalize a man, the latter requiring the consent of Parliament, either pro re natii or under a general Act, such as the Naturalization Act, 1870 (33 & 34 Vict. c. 14). A denizen holds a middle position between an alien and a natural born or naturalized subject, being able to take lands by purchase or devise (which an alien could not until 1870 do), but not having been able to take lands by descent (which a naturalborn or naturalized subject my do).
See also titles ALLEGIANCE; ALIENS ;
NATURALIZATION. DEODAND. Any personal chattel that is the immediate occasion of the death of any reasonable creature, and which by reason thereof precisely is forfeited to the king, to be applied to pious or charitable uses,-being in Roman Catholic countries, the expiation by masses, and otherwise, of the sins of the deceased ; and in Protestant countries, the relief of the deserving poor. Where the person killed is an infant under the age of discretion, no deodand arises, there being in his case no sins of commission to expiate.
DEPARTURE. In pleading, where a man departs froin one line of defence, and bas recourse to another line of defence either incousistent with or not confirmatory of his former defence, this is called a departure, and the effect of it is to render the entire pleading demurrable. Bartlett v. Wells, 1 B. & S. 836.
DEPOSIT: See title BAILMENT.
DÉPÔT. In French law, is the depositum of Roman and the deposit of English Law. It is of two kinds, being either (1.) Dépôt simply so called, and which may be either voluntary or necessary; and (2.) Séquestre, which is a deposit made either under an agreement of the parties, and to abide the event of pending litigation regarding it, or by virtue of the direction of the Court or a judge, pending litigation regarding it.
DEPOSITION This word is used generally to denote any affidavit on oath, or solemn aflirmation in lieu thereof. But it is more commonly used in a more particular sense, as meaning, -a statement written down by an officer of the Court (called an examiner in Chancery), embodying the substance of the answers obtained from the deponent in the course of his examination. It is competent for either party to a suit wliich is intended to be heard upon motion
DERELICT. Anything thrown away or abandoned, with the intention of quitting the ownership thereof. Goods thrown out of a vessel to lighten same in time of distress are not derelict, for want of the intention. See Just. Inst. ii. 1, 48.
DESCENDER, — Writ of formedon in. This writ used to lie where a tenant in tail, having aliened the land otherwise than by fine or common recovery, or having been disseised thereof, died, and the heir in tail claimed to recover the land as against the per:on in possession thereof under the alienation or disse sin.
DESCENT Where the title to land vests in any one by mere operation of law, such title is said to vest in him by descent. As thus used, the term is distinguished from purchase, which may be either decise or grant.
See also next title.
DESCENTS. Estates descend from ancestor to heir, as the blood trickles.
The following stages in the growth of the present law of descents may be indicated: (1.) Fee simple estates were originally
contined to the issue or lineal
descendants of the ancestor; (2.) By the reign of Henry II., collateral
descendants were admitted to the succession upon the failure of
lineals; (3.) By the time of Henry III., primo
geniture, i.e., descent to the eldest son in exclusion of the others, was
established; (4.) By the time of Henry III., the doc
trine of representation was estalished, whereby the issue of the eldest son who was dead stood in his place, to the exclusion of the
other sons (being the uncles of
such issue); (5) In the year 1833, the lineal ancestors
were as such rendered capable of
being heirs ; (6.) In the year 1833, the half-blood of
the purchaser became admissible
to succeed as heir ; and (7.) In the year 1859, the widow of the
purchaser became admissible to
succeed as beir. The following are the canons which at present regulate the descent of lands:(1.) The inheritance is to descend to the
lineal descendants of the purchaser ist infinitum (see title
PURCHASER): (2.) And to the male issue in preference
to females ; (3.) And to the eldest male issue in ex
clusion of the others (see title PRIMOGENITURE); but if there are no male issue, then to the female issue altogether (see title Co
PARCENERS); (4.) Lineal descendants in infinitum
are to represent their ancestor
(see title REPRESENTATION); (5.) Failing lineal descendants of the
purchaser, the inheritance is to go to the nearest lineal ancestor, the father succeeding before the brother or sister of the purchaser, and every more remote ancestor succeeding before his issue other than any less remote ancestor or
ancestors, and his or their issue; (6.) In the application of the 5th canon,
the succession is to be according
to the following order, (a.) The father and all male paternal
ancestors and their descendants
in infinitum ; (6.) All the female paternal ancestors
and their heirs ; (c.) The mother and all male maternal
ancestors, and her and their
descendants in infinitum; and (d.) All the female maternal ancestors
and their heirs ; (7.) The half-blood of the purchaser
shall inherit,(a.) Where the common ancestor is a
male, next after a kinsman in the same degree of the whole blood, and the issue of such
kinsman in infinitum ; and (1.) Where the common ancestor is a
female, next after that female; (8.) In the application of the 6th
canon,(a.) In the admission of female pater
nal ancestors, the mother of the more remote male paternal an
cestor and her heirs are to be preferred to the mother of the
less remote and her heirs; and (6.) In the admission of female mater
nal ancestors, the mother of the more remote male maternal ancestor and her heirs are to be preferred to the mother of the
less remote one and her heirs ; (9.) Failing the discovery of an heir
after the application of all the first eight canons, the land is to descend to the heir of the person last entitled, although he was not the purchaser thereof: and such heirs will of course have to be ascertained by the renewed application of the first eight canons, starting only from a different
point of departure, or propositus. DESIGNS, COPYRIGHT IN: See title COPYRIGHT.
DE SON TORT DEMESNE. These are words which were commonly used in the replication to a defendant's plea in an action of trespass quare clausum fregit as thus:-A. sues B., B. pleads that he committed the alleged trespass by the command of X.; A. replies that B. did it de son tort demesne, sans ceo que X. lui command modo et formů. Since the cases of Trevelian v. Pyne (Salk. 107), and Chambers v. Donaldson (11 East, 65), the alleged command has been traversable in pleading; and by the C. L. P. Act, 1852, s. 77, a plaintiff is at liberty to traverse the whole of any plea or subsequent pleading of the defendant by a GENERAL denial (in the form “ The plaintiff takes issue, &c.''), or admitting some part or parts thereof to deny all the rest, or to deny any one or more allegations; so that the plea de son tort demesne, semble, is now superfluous.
DETAINER. This word was used in two kindred senses ; firstly, it signified the forcibly keeping another out of possession of lands or tenements, an injury which was not only of a civil nature, entitling the dispossessed party to damages, but also of a criminal nature, rendering the dispossessor liable to a fine to the king for bis breach of the king's peace. Compare in Roman law the Lex Julia de l'i. Secondly, it signified a writ which lay against persons imprisoned in the Marshalsea or the Fleet, and which was directed to the marsbal or warden (as the case might be), and directed him to detain the prisoner in his custody until he should be lawfully discharged therefrom. In this latter sense, detainer is become obsolete, in consequence of the Debtors' Act, 1869 (32 & 33 Vict. c. 62).
DETERMINATION. This word, as used in Law, denotes the ending or expiration of any estate or interest in property ; e.g., an estate during widowhood determines upon re-marriage, and an estate during minority upon attaining twenty-one years of age, and so forth.
DETINUE. An action which lies for the recovery of goods wrongfully detained by any one; e.g., for a horse lent. The judgment in this action is, that the plaintiff (when successful) do recover the articles or their value, together with the damages and costs found by the verdict, and the costs of increase (see title INCREASE, COSTS OF). Prior to the C. L. P. Act, 1854, the defendant had the option either to pay the value or restore the goods, but now, by s. 78 of that statute, such option belongs to the plaintiff, wlio, upon application to the Court or a judge, may (at the discretion of the Court or judge) have execution for the goods detained, enforceable by distress. But Courts of Equity could always upon bill filed order the delivery up of chattels improperly detained, e.g., deeds, court rolls; also, old family pictures, horns, snuff-boxes, &c. Fells v. Read, 3 Ves. 70.
DEVASTAVIT. In an action against an executor or administrator, where the plaintiff has obtained judgment that he do recover his debt and costs out of the assets of the testator (if any), and, failing these, do recover his costs out of the executor or administrator's own goods, the usual writ of execution is a fi. fa. de bonis testatoris ; but if the sheriff return to this nulla bona testatoris nec propria, AND a devastavit, the plaintiff may forth with upon the return sue out a fi. fa. de bonis propriis, or (at his election) an elegit or a ca. 8a. against the property or the person of the executor or administrator, in as full a manner as in an action against him in his own right. A devastavit is therefore strictly such a return by the sheriff; however, the word is commonly employed in the general sense of wasting the goods of the deceased, or in Equity in the sense of a breach of trust or misappropriation of the assets.
DE VENTRE INSPICIENDO. Where a widow is suspected of feigning herself with child, the heir may have a writ de ventre inspiciendo, to examine her womb whether it be as feigned or not; and in case her womb be as feigned, the heir may until her delivery keep her under surveillance. DEVISAVIT VEL NON.
This was an issue directed not unfrequently by the Court of Chancery, to be tried before a
DEVISAVIT VEL NON-continued. jury at Common Law; and a like issue may be tried by that Court itself at the present day in a proper case. The object of the issue is to ascertain whether or not certain properties are comprised within a devise which appears primâ facie not to comprise them. A proper case for such an issue was that of Newburgh v. Newburgh, 5 Madd. 364.
DEVISE, This word meant originally to divide or distribute property, but it is now used exclusively to signify the giving of real estates by will, the testator being called the devisor, and the object of his bounty the devisee. The word "devise” is properly applicable to real estate only, while the word “ bequeath” is properly applicable to personal estate only; and upon the strength of the word "devise" alone, an intention has been found to pass real pro. perty, which nothing else in th will seemed to indicate: see Coard v. Holderness, 20 Beay. 147.
DICTUM. Called also obiter dictum, or “remark by the way," is a remark more or less casual dropping from a judge with respect to the law in matters like that at the time before him.
DIES NON JURIDICUS. A day on which the Courts, for reasons of religion, do not sit; e.g., Good Friday, Sunday, and the like. In Roman Law it is called dies nefastus. The days on which the Courts may sit are called dies juridici, and in Roman Law were called dies fasti. Vacations are non-court days for a very different reason, namely, the health of the judges, counsellors, and officers.
DIET. A legislative assembly; e.g., the Diet of Frankfort.
DIEU ET MON DROIT (“God and my right”). This is the motto of the royal family, and is said to have been first used by Richard I. It signifies that the sovereignty is subject only to the divine and not to any human law. But it is no pretext either for absolutism on the one hand, or for the subjection of the State to the Church on the other.
DIGNITIES. These are titles of honour; and having been originally annexed to land, they are considered as real property. 1 Cru. 55.
DILAPIDATIONS. This word denotes generally letting a house get into bad repair, and is applicable generally to all tenants who are under a covenant to repair (see title WASTE). But it is more peculiarly applicable to the bad repair of
DILAPIDATIONS-continued. ecclesiastical residences, the Ecclesiastical Law enabling a succeeding rector to bring an action for dilapidations against the executor or administrator of his predecessor, or (if he should be still living) against the predecessor himself.
DILATORY PLEAS: See title ABATEMENT, PLEAS IN.
DIRECTING THE JURY : See title JURY.
DISCONTINUANCE- continued. process regularly from day to day or from time to time, as he ought to do, the defendant is no longer bound to attend, but the suit is discontinued, and the plaintiff must pay the defendant his costs before he recommences his action. However, by rule 31 T. T. 1853, “no entry or continuances by way of imparlance, curia advisari vult, vicecomes non misit breve, or otherwise, shall be made on any record or roll whatever, or in the pleadings.” On the other hand, if the plaintiff find that he has misconceived his action, or that for some defect in the pleadings, or other reason, he is not able to maintain it, he may either, upon application at the proper office of the Court, or upon motion to the Court itself, obtain a rule for leave to discontinue upon the terms of paying the defendant his costs. After a discontinuance, a plaintiff may commence a new action for the same cause; and therefore the Court, in many cases of hard actions, refuses leave to discontinue (Boucher v. Lawson, Hardw. 200); as it also does after a peremptory rule for judgment on demurrer. Turner v. Turner, 1 Salk. 179.
DISABILITY This means any incapacity either of acquiring or of transmitting a right, or of resisting å wrong. Such disability may arise either from the act of the party, or from the act of his ancestor, or from the act of law, or from the act of God. (1.) From the act of the party,-as where, after having agreed upon the surrender of an old lease to grant a new one, he grants the reversion to another, whereby he incapacitates himself to grant the new lease: (2.) From the act of the ancestor,as where he was attainted or convicted of treason or felony, whereby formerly he rendered his children incapable of inheriting: (3.) From the act of law,-as where (prior to 1870) he was an alien born, whereby, or in consequence thereof, the law struck him with a general incapacity to hold lands: and (4.) From the act of God,
,-as where he is a lunatic or idiot, and incapable therefore generally of contracting.
DISBAR. To deprive a barrister permanently of the privileges of his position. It is analogous to striking an attorney off the rolls. Being an extreme measure, it is more common to suspend than to disbar.
DISCLAIMER: See CONVEYANCES.
DISCONTINUANCE. This phrase is applied to the cessation of an estate or of an action. As applied (1.) to the cessation of an estate, it arises when he who hath an estate tail maketh a larger estate of the land than by law he is entitled to do, in which case the estate is good, but so far only as his estate extends who made it, e.g., if tenant in tail makes a feoffment in fee simple, or for the life of the feoffee, or in tail-all which are beyond his power to make-and if the feoffee having entered (as lawfully he may) during the life of the feoffor, retains the possession after the death of the latter, the injury which he does by such retention is a discontinuance of the legal estate of the heir in tail.
As applied (2.) to the cessation of an action, it is somewhat similar to a nonsuit; for when a plaintiff makes a break in the proccedings by not continuing the
DISCOVERY By the Common Law, neither party to an action was required to make discovery to the other of any documents or circumstances which might be useful in evidence; and an application required to be made to the Court of Chancery, which would in certain cases, upon a BILL OF DISCOVERY being filed, decree that the defendant thereto should make a particular discovery to the plaintiff. But, at the present day, bills of discovery are become unnecessary; for, in the Court of Chancery, discovery of documents may be obtained under the Jurisdiction Act, 1852, by summons at Chambers; and, under the stats. 14 & 15 Vict. c. 99, and 17 & 18 Vict. c. 125, discovery may now also be had at law. There are also numerous particular provisions in those statutes regarding discovery by means of interrogatories.
See title INTERROGATORIES. DISENTAILING ASSURANCE. stat. 3 & 4 Will. 4, c. 74, which abolished the ancient Fines and Recoveries, whereby formerly (amongst other things) an estate tail might be barred, there was substituted a new assurance, called a disentailing assurance, which was calculated to produce the same effect. By this assurance, which is in the form of a simple indenture, but which requires to be enrolled within six months of its execution in the Court of Chancery, the tenant in tail(with or without the consent of the protector, see that title, when there is any such) conveys the lands