« PoprzedniaDalej »
DISENTAILING ASSURANCE-contd. to a middle man (or man of straw), to the use of himself, the tenant in tail, his heirs and 'assigns, by which means, and under the Statute of Uses, he instantly emerges a legal tenant in fee simple. It is usuul (but not apparently necessary) to add, that the object of the assurance is to dock and bar the entail and all remainders, &c. Where there is a protector, and he refuses to concur, the disentailing deed has the effect of a fine only, but otherwise it has the effect of a common recovery (see these two titles).
DISFRANCHISE, To deprive of certain privileges, freedoms, or franchises, See title EN FRANCHISE, which is the
opposite. DISHONOUR, NOTICE OF: See title BILL OF EXCHANGE.
DISPAUPER. When a poor person has been admitted to sue in formâ pauperis, and through the subsequent acquisition of property or any other sufficient cause it is proper that he should be deprived of the privilege of suing in that quality, then he is deprived of the privilege accordingly; in other words, he is dispaupered.
DISPENSING POWER. The early English sovereigns, in imitation of the Popes of Rome, had assumed to dispense with the laws by issuing proclamations and making grants non obstante any particular law to the contrary.” This assumption was odious to the Common Law. Thus, in the reign of Henry III., in a suit between the Bishop of Carlisle and a certain baron, the kịng having resorted to his dispensing power in favour of the bishop, and afterwards in favour of the baron, the chief justiciary complained of the introduction of ecclesiastical maxims into the Civil Courts; and in the same reign, the king having referred to the practice of the popes in vindication of his use of the clause non obstante, the Master of the Hospitallers exclaimed, “God forbid that your majesty should utter such a graceless speech.”
The practice, notwithstanding, continued to be exercised, and in some reigns more extensively than in others. In particular the exercise of the power by Richard II. is said to have been such as to set aside the very principles of the statutes dispensed trom; but the more usual practice was to dispense in particular cases only of an exceptional character. It was the opinion of Lord Coke (Case of Non Obstante, 12 Rep. 30) that no Act of Parliament could bind the king from any prerogative that was inseparable from his person, so as that he might not dispense with the statute by non obstante, But the true nature and
DISPENSING POWER—continued. limits of the king's right of dispensing with statutes was not fully understood until the case of Thomas v. Sovell, decided in 1666, and reported in Vaughan. The plaintiff in that case was a conimon informer, who brought his qui tam action against the defendant (a vintner) to recover his share of a penalty under the stat 7 Edw. 6, c. 5, incurred by the defendant in selling wine by retail without a licence, in the county of Iliddlesex. It was found, on special verdict, that James I., who incorporated the Company of Vintners in the City of London, had given them licence in the letters patent of their incorporation to sell wine by retail or in gross within the city and its suburbs, “non obstante the statute of Edw. VI.” The judgment given was to the effect that the king was able to dispense in some cases and not in others, and that the distinction between the two classes of cases did not depend (as had at one time been said) upon whether the act prohibited by the statute was malum in se or malum prohibitum only, but that it depended upon whether the king himself was the only person affected by it or whether his subjects also were affected by it. He could dispense with his own privileges, but not with his subjects' rights.
Clearly, therefore, the practice or privilege of dispensing was considered as being not in itself wrong, but only wrong in the abuse of it. Such abuse was again illustrated in 1685, in the case of Goriden v. Hales, James II, having in that case dispensed with the Test Act in favour of the defendant upon his appointment to a military ottice, and in express fraud. not only of the Test Act itself, but also of successive resolutions of parliament confirmatory of the Act. In the Bill of Rights (1 W. & M. sess. 2, c. 2), it is accordingly declared, with reference evidently to James II., that the dispensing power as of late exercised was illegal, thus indicating at once the legitimate use and the illegal abuse of that prerogative. In the recent Case of Eton College, 1815, it was held that a dispensation of Elizabeth granted to the fellows of Eton College to hold ecclesiastical preferment together with their fellowships, notwithstanding a statute of Henry VI. to the contrary, was a legitimate exercise of the dispensing power.
DISS EISIN. When one man invades the possession of another, and by force or surprise turns him out of the occupation of his lands, this is termed a disseisin, being a deprivation of that actual seisin or corporal possession of the freehold which the tenant before enjoyed. In other words, a disseisin is said to be when one enters DISSEISIN-continued. intending to usurp the possession, and to oust another from the freehold. Therefore quærendum est à judice quo animo he entered. To constitute an entry a disseisin, there must be an ouster of the freehold, either, first, by taking the profits; or, secondly, by claiming the inheritance (1 Cruise, 60). He who so enters and puts a party out of possession of the freehold is termed the disseisor, Litt. 279.
DISSENTERS. The stat. 1 Will. & M. sess. 1, c. 18 (Toleration Act), s. 4, exempted persons taking the oaths and subscribing the declaration therein mentioned from all prosecutions in the Ecclesiastical Courts for nonconformity; and it was held in Barnes v. Shore (8 Q. B. 640), that this provision extended not only to lay persons, but to clergymen who, after being ordained, dissented from the Church. For disturbing a Dissenting congngition each offender is liable to a penalty of £20. A Jewish synayogue is not at the present day an illegal establishment. Israel v. Simmons, 2 Stark, 356.
Dissenters, in respect of their religious worship have as full a right as Churchmen to the protection of the Courts (Rex v. Wroughton, 3 Burr. 1683); and a mandamus will lie to register and certify a dissenting meeting - house (Rex v. Derby (Justices), 4 Burr. 1991); also to compel the trustees of a meeting house to admit a Disseuting teacher. Rex v. Barker, 3 Burr. 1265.
vance, these are held to be in arrear instantly upon the commencement of the period for which they are payable (Buckley v. Tay
lor, 2 T. R. 600); and (4.) The distrainor must have the rever
sion in him, either an actual reversion or (at the least) a rcversion by estoppel. Morton v.
Woods, L. R. 3 Q. B. 658. With reference to the things that are liable to be distrained, generully speaking, all moveable chattels(whether the property of the tenant or of a stranger) wbich are upon the demised premises at the time when the distress is made are liable. 2 W. & M., sess. 1, c. 5, s. 3.
With reference to the things that are not liable to be distrained, the following classes of things are not liable:
(1.) Fixtures, sed quare ;
cising a public trade to be managed
in the way of his trade; (4.) Animals feræ naturæ ; (5.) Things in actual uso; (6.) Perishable goods ; (7.) Goods in custody of the law; (8.) Crops or produce sold by sheriff,
subject to an agreement to con
sume same on land; (9.) Frames, looms, &c., entrusted to
workmen ; (10.) Goods of' an ambassador; and (11.) Effects of a company being wound
up: And the following classes of things are conditionally privileged from being taken in distress : (1.) Implements of trade not in actual
The distress must be made, as a general rule, on the premises demised, subject, however, to the following exceptions :(1.) Cattle or stock of the tenant feeding
or being on a common appendant or appurtenant or otherwise be
longing to the demised premises; (2.) Cattle seen driven off demised pre
mises on purpose to defeat dis
the demised preinises.
DISSOLUTION : See titles PARLIAMENT ; PARTNERSHIP.
DISTANCE Is to be measured in a straight line as the crow flies (Lake v. Butler, 5 El. & Bl. 92). And where the trustees of a turnpike road were prohibited by a local Act of Parliament from erecting any toll-vate within three miles of Bargate in the town of Southampton, it was held that the distance was to be measured by a straight line and not by the road (Jewell v. Stead, 6 El. & Bl. 350). See also Duignan v. Walker, 1 Johns. 446 (an injunction case).
DISTRESS. A power of distress may belong to a landlord either in virtue of express words conferring it, or in virtue of the general law. In the latter case, the following are the requisites to the power of distress : (1.) There must be an actual demise,
and not a mere agreement for a
lease; (2.) The rent must be certain ; (3.) The rent must be in arrear, but in
the case of rents payable in ad
DISTRESS INFINITE. In the case of a distress for fealty or suit of Court, no distress can be unreasonable, immoderate, or too large; for this is the only remedy to which the party aggrieved is entitled, and therefore it ought to be such as is sufliciently compulsory; and let it be of what value it may, there is no harm done, espe
DISTRESS INFINITE-continued. cially as it cannot be sold or made away with, but must be restored immediately on satisfaction made. A distress of this nature, that has no bounds with regard to its quantity, and which may be repeated from time to time, until the stubbornness of the party is conquered, is called a distress infinite. For some other purposes, as in summoning jurors and the like, distress infinite used also to be allowed.
DISTRINGAS. A writ of distringas may be put upon stock or moneys in the Bank of England, and its effect is exactly that of a stop-order on a fund in Chancery (see title STOP-ORDER). Formerly, a writ bearing this name used to be directed to the sheriff, commanding him to distrain upon the goods and chattels of a defendant, in order to compel his appearance to a writ of summons. This distringas, however, was only granted when the person requiring the same had shewn by affidavit to the satisfaction of the Court out of which the writ of summons issued, that the defendant had not been personally served with the writ of summons, and had not, according to the exigency thereof, appeared to the action, and could not be compelled so to do without some more efficacious process (1 Arch. Prac. 202). The writ in this second use of it was abolished by the C. L. P. Act, 1852.
DISTRINGAS JURATORES. A writ directed to the sheriff peremptorily commanding him to compel the appearance of jurors in Court on a certain day therein appointed. This writ also has been abolished by the C. L. P. Act, 1852. 1 Arch. Prac. 365.
DISTURBANCE. A species of injury to real property, commonly consisting of a wrong done to some incorporeal hereditament by hindering or disquieting the owners in their regular and lawful enjoy. ment of it. There were five principal varieties of this injury, viz. : (1.) Disturbance of franchise; (2.) Disturbance of common; (3.) Disturbance of ways ; (4.) Disturbance of tenure; and (5.) Disturbance of patronage. Finch, 187.
DIVORCE (divortium). The separation of husband and wife by the operation of the law. There were two kinds of divorce, the one total, the other partial; the one à vin. culo matrimonii, the other merely à mensů et thoro. The total divorce, à vinculo matrimonii, used to be only for some canonical cause of impediment existing before the marriage, e.g., consanguinity, and not for any impediment that was supervenient, or arising afterwards, as may be the case in allinity or corporcal imbecility. In these
DIVORCE-continued. cases of a total divorce, the marriage used to be declared null, as having been absolutely unlawful ab initio ; and the parties were therefore separated pro salute animarum ; for which reason no such divorce could be obtained but during the life of the parties. In these divorces the wife, it was said, should receive all again that she brought withi her, because the nullity of the marriage arose through some impediment, and the goods of the wife were given for her advancement in marriage which was now found never to have existed. (Dyer, 62). But at the present day a divorce à vinculo matrimonii may be obtained for a cause that is supervenient; thus, a husband may obtain it on account of his wife's adultery, and a wife may obtain it on account of her husband's adultery, coupled with cruelty or desertion on his part; and such divorces are not unfrequently granted under the provisions of the Act 21 & 22 Vict. c. 77, without the necessity (which for some time existed) of obtaining a special statute for the purpose. This divorce enables the parties to marry again, and to do all other acts as if they had never been married. Divorce à mensâ et thoro used to be granted when the marriage was just and lawful ab initio, and therefore the law was tender of dissolving it: but for some supervenient cause it might become improper or impossible for the parties to live together, e.g., in case of intolerable ill-temper, or adultery in either of the parties. But at the present day there is no divorce à mensâ et thoro, but either a total divorce à vinculo matrimonii for the causes mentioned above, or else a judicial separation for causes that are insufficient to justify a total divorce, e.g., cruelty or incompatibility of temper, being extreme. Parties separated in this manner cannot afterwards marry again, until, at any rate, the one party is dead, when the other may lawfully marry again.
See also title ALIMONY.
DOCKET, STRIKING A. A phrase that was formerly used in the practice of bankruptcy. It referred to the entry of certain papers at the bankrupt office, preliminary to the prosecution of the fiat against a trader who had become bankrupt. These papers
consisted of the aflidavit, the bond, and the petition of the petitioning creditor; and their object was to obtain from the Lord Chancellor his fiat, authorizing the petitioner to prosecute his complaint against the bankrupt, either in Her Majesty's Court of Bankruptcy in London, or in one of the district Courts of Bankruptcy in the country. The aftidavit had to be left at the oflice of the Secretary of Bankrupts, who used to make an entry in the
DOMESDAY-BOOK-continued. thereof in 1086, when the whole returns were thrown together and formed the two volumes of Domesday Book.
This work is an authority upon certain points of real property law; e.g., upon the question whether lands of copyhold tenure are or are not of that peculiar species of copyhold which is called Ancient Demesne : see that title.
DOCKET, STRIKING A-continued. “docket book," and this seems to have been what was technically termed striking a docket. The bond formerly entered into by the petitioner was by the statute 5 & 6 Vict. c. 122, no longer required; but upon the affidavit being left at the office, the clerk prepared the petition, annexed the affidavit to it, and thereupon obtained the Lord Chancellor's fiat. The modern equivalent seems to be putting the petition in bankruptcy upon the files of the Court, no fiat of the Lord Chancellor being now required in order to prosecute the bankruptcy. See Bankruptcy Act, 1869.
DOGS. The stat. 30 & 31 Vict. c. 5, has imposed a tax on dogs. It seems that the owner of a dog is liable for damage done by it to cattle or sheep, without proof of his scienter of the nature of the dog, but that he is not liable without such proof for damage done to human beings. The stat. 34 & 35 Vict. c. 56, provides for the detention of stray dogs, and for the slaughter of such as are daugerous.
DOLE. This word is derived from the Saxon delan, to divide, and denotes a part or portion of a meadow which is divided; and the word still retains the meaning of divide, e.g., to dole out alms is to divide or distribute alms.
DOME, or DOOM. This is literally a judgment, and obtained at first a neutral meaning; e.g., in the Black Book of Hereford, fo. 46, this phrase occurs,—“So help me God at his holy dome,”-meaning at the day of last judgment. But the word has more recently acquired the meaning of condemnation.
DOME-BOOK. A book of judgments (dooms, domes). The book thus called was compiled during the time of Alfred the Great, and is said to have been extant so late as the reign of Edward IV., after which it was lost. It is generally assumed to have contained the principal rules of the Common Law (so far as these rules were then developed), together with the then penalties for misdemeanors, and the then forms of judicial proceedings.
DOMESDAY-BOOK. The book thus called was compiled in the reign and by the direction of William I., commonly called the Conqueror, and is one of the many works of permanent utility of that sovereign. It was in two volumes, and contained the details of a great survey of the kingdom, throughout all its counties, five men in each county (called justices) having been assigned in 1081 for the purpose of collecting the necessary statistics, and having completed their statement
DOMICILE. Is the place at which a person has his principal residence, and that is generally construed to be the place at which he usually keeps his wife and family (or household gods, ubi lar et penates). In the case of infants and married women, their domicile is that of their parents or husband. A domicile may be either original or acquired. The original domicile (domicilium originis, is that at which the parents of the person are domiciled at the time of his birth, and usually agrees (under English law) with his nationality. To acquire another domicile, tho rule of law is that both the animus (or intention to acquire it) and the factum (or actual acquisition of it) must combine. Now the acquisition of a new domicile is only complete when the former domicile is detinitively abandoned, and an actual removal is made to the place of the acquired domicile. But for the re-acquisition of the original domicile, the definitive abandonment of the acquired domicile when followed up, or rather when evidenced, by one step towards a return to the original domicile, is sufficient.
The law of a man's domicile for the time being (whether original or acquired) determines all his personal capacities and incapacities; and to that extent it often controls the operation of the Lex loci situs (see that title), although not also the operation of the Lex loci rei sita (see that title). Further, the Lex Domicilii also regulates the distribution of his personal estate in case of his death intestate. See Story on Conflict of Laws; Westlake's Private International Law.
DOMINANT TENEMENT. In the law of easements, the tenement whose owner as such enjoys an easement over an adjoining tenement is called by this name.
See title EASEMENTS. DONATION. In French law, every donation in order to be complete must be assented to by the donee, and if a married woman, with the consent of her husband. Immediately upon such assent being given, the gift is complete (just as in Roman Law) without any traditio ; for a necessity is laid on the donor or his heirs to make traditio. In this respect, the
DOUBLE PLEA—continued. English law differs from both, holding that met by application in a summary way not only is a sent on the part of the donee under 8. 52 of tbat Act, to amend or strike necessary, but also delivery of the thing out the faulty pleading. given. In French law such gifts are irre.
DOWAGER. A widow who is endowed, vocable, excepting for one of three causes, (1.) The non-performance of conditions
or who has a jointure in lieu of dower, is when there are any such : (2.) The ingra
thus described ; but in common practice
the word is confined to the widows of titude of the donee; or (3.) The subsequent birth of offspring.
princes, dukes, and other like persons only. DONATIO MORTIS CAUSÂ.
Is a gift
DOWER. Is the right of a widow made in contemplation of death. and taking during the residue of her life to one-third absolute effect upon the death. The great part of the lands late of her deceased husessential to it is a delivery actual or con
band. structive of the thing given : and provided (1.) In the case of widows who wero that requisite is observed, there is nothing
married before the 1st of January, 1831, which may not be the subject of such a the right to dower attached to all lands of gift, excepting a cheque (inasmuch as the
which the husband was solely seised for authority to pay that is revoked upon the an estate of inheritance, and, having once death), and excepting perhaps real pro
attached, the right was not capable of perty (inasmuch as the law prescribes par
being barred or defeated excepting by a ticular formalities for the conveyance of fine in which the wife joined. In the such). There may, however, be a donatio
ab:ence of a fine, it attached upon the mortis causâ of a mortgage debt charged on
lands even when in the hands of a pur
chaser. real property; and such gilt is made by a
It was not necessary that she delivery of the mortgage deeds.
should have any issue actually born. To
exclude her dower from attaching at all DORMANT PARTNER, A sleeping was therefore the great object of every partner.
purchaser of land; and two methods were See title PARTNERSHIP.
in common use, called respectively the old DOTE ASSIGNANDÂ.
The writ thus
method and the modern method of barring
dower. Under the old method, the lands described lay for a widow whose husband held of the king in chief, and was issued to
were conveyed to the grantee and his heirs, the escheators upon the widow's making
to the use of the grantle and a trustee and oath in Chancery not to marry without the
the heirs of the grantee, with a declaration
that the estate of the trustee was in trust king's leave. Such widows were called the king's widows.
only for the grantee and his heirs. Under
the modern method, a general power of DOTE UNDE NIHIL HABET. The appointment was in the first place given to writ thus described lay for a widow against the grantee, and subject thereto to the a purchaser of the lands from her husband. grantee for his life, with remainder to a
trustee and his heirs during the purDOUBLE COSTS. Under the statute, chaser's life, with an ultimate remainder 5 & 6 Vict. c. 97, all previous Acts of to the heirs and assigns of the purchaser Parliament (whether public or private) for ever. which awarded double or treble costs are
(2.) In the case of widows who have repealed, and party and party costs only, or been married since the 1st of January, reasonable costs upon taxation only, are 1834, the right of dower attaches to all to be given, when given at all.
lands of which the husband is solely
seised, or even equitably possessed, for an DOUBLE PLEA. The plea thus de
estate of inheritance; but although it may described is faulty on the ground of
have once attached, the right is of the duplicity. Duplicity in pleading is a fault
most fragile sort, being defeated by any which may arise either in the declaration
declaration in the will of the husband, or or in any subsequent pleading, and signi
by his devise of the lands, or by his alienfies the allegation of several distinct
ation of them during his life. and even, pro matters in support of, or in answer to, a
tanto, by his debts. And it is not intresingle demand, any one of which matters
quent to exclude it from attaching even would be sufficient of itself to support the
from the first, by inserting a declaration to demand, or to answer it. Leave to plead
that effect in the deed of grant, which is several pleas may, however, be obtained
also now effectual to defeat the widow's under the C. L. P. Act, 1852, s. 81. The
right. fault of duplicity used formerly to be taken advantage of by special demurrer; but DOWRY. This is the proper name for since the C. L. P. Act, 1852, it is now to be the property which the wife brings to her