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DATE. The designation or indication in an instrument of writing, of the time, and usually of the time and place, when and where it was made. When the place is mentioned in the date of a deed, the law intends, unless the contrary appears, that it was executed at the place of the date. Plowd. 7 b., 31 H. VI. This word is derived from the Latin datum, because when deeds and agreements were written in that language, immediately before the day, month and year in which they were made, was set down, it was usual to put the word datum, given.

2. All writings ought to bear a date, and in some it is indispensable in order to make them valid, as in policies of insurance; but the date in these instruments is not inserted in the body of the writing because as each subscription makes a separate contract, each underwriter sets down the day, month and year he makes his subscription. Marsh. Ins. 336.

3. Deeds, and other writings, when the date is an impossible one, take effect from the time of deliver; the presumption of law is, that the deed was dated on the day it bears date, unless, as just mentioned, the time is impossible; for example, the 32d day of January.

4. The proper way of dating, is to put the day, month, and year of our Lord; the hour need not be mentioned, unless specially required; an instance of which may be taken from the Pennsylvania Act of the 16th June, 1836, sect. 40, which requires the sheriff, on receiving a writ of fieri facias, or other writ of execution, to endorse thereon the day of the month, the year, and the hour of the day whereon he received the same.

5. In public documents, it is usual to give not only the day, the month, and the year of our Lord, but also the year of the United States, when issued by authority of the general government; or of the commonwealth, when issued under its authority. Vide, generally, Bac. Ab. Obligations, C; Com. Dig, Fait, B 3; Cruise, Dig. tit, 32, c. 20, s. 1-6; 1 Burr. 60; 2 Rol. Ab. 27, 1. 22; 13 Vin. Ab. 34; Dane's Ab. lndex, h. t. See Almanac.

DATION, civil law, contracts. The act of giving something. It differs from donation, which is a gift; dation, on the contrary, is giving something without any liberality; as, the giving of an office.

2. Dation in payment, datio in solutionem, which was the giving one thing in payment of another which was due, corresponds nearly to the accord and satisfaction of the common law.

DATION EN PAIEMFNT, civil law. This term is used in Louisiana; it signifies that, when instead of paying a sum of money due on a pre-existing debt, the debtor gives and the creditor agrees to receive a movable or immovable.

2. It is somewhat like the accord and satisfaction of the common law. 16 Toull. n. 45 Poth. Vente, U. 601. Dation en paiement resembles in some respects the contract of sale; dare in solutum, est quasi vendere. There is, however, a very marked difference between a sale and a dation en paiement. 1st. The contract of sale is complete by the mere agreement of the parties the dation en paiement requires a delivery of the thing given. 2d. When the debtor pays a certain sum which he supposed he was owing, and be discovers he did not owe so much, he may recover back the excess, not so when property other than money has been given in payment. 3d. He who has in good faith sold a thing of which he believed himself to be the owner, is not precisely required to transfer the property of it to the buyer and, while he is not troubled in the possession of the thing, he cannot pretend that the seller has not fulfilled his obligations. On the contrary, the dation en paiement is good only when the debtor transfers to the creditor the property in the thing which he has agreed to take in, payment and if the thing thus delivered be the property of another, it will not operate as a payment. Poth. Vente, n. 602, 603, 604.

DATIVE. That which may be given or disposed of at will and pleasure. It sometimes means that which is not cast upon the party by the law, or by a testator, but which is given by the magistrate; in this sense it is that tutorship is dative, when the tutor is appointed by the malistrate. Lec. Elem. 239; Civ. Code of L. art. 288, 1671.

DAUGHTER. An immediate female descendant. See Son.

DAUGHTER-IN-LAW. In Latin, nurus, is the wife of one's son.

DAY. A division of time. It is natural, and then it consists of twenty-four hours, or the space of time which elapses while the earth makes a complete revolution on its axis; or artificial, which contains the time, from the rising until the setting of the sun, and a short time before rising and after setting. Vide Night; and Co. Lit. 135, a.

2. Days are sometimes calculated exclusively, as when an act required that an appeal should be made within twenty days after a decision. 3 Penna. 200; 3 B. & A. 581; 15 Serg. & Rawle, 43. In general, if a thing is to be done within such a time after such a fact, the day of the fact shall be taken inclusively. Hob. 139; Doug. 463; 3 T. R. 623; Com. Dig. Temps, A; 3 East, 407.

3. The law, generally, rejects fractions of days, but in some cases it takes notice of such parts. 2 B. & A. 586. Vide Date.

4. By the custom of some places, the word day's is understood to be working days, and not including Sundays. 3 Espin. N. P. C. 121. Vide, generally, 2 Chit. Bl. 141, note 3; 1 Chit. Pr. 774, 775; 3 Chit. Pr. 110; Lill. Reg. h. t; 1 Rop. Leg. 518; 15 Vin. Ab. 554; Dig. 33, 1, 2; Dig. 50, 16, 2, 1; Id. 2, 12, 8; and articles Hour; Month; Year.

DAY BOOK, mer. law. An account book, in which merchants and others make entries of their daily transactions. This is generally a book of original entries, and as such may be given in evidence to prove the sale and delivery, of merchandise or of work done.

DAY RULE, or DAY WRIT, English practice. A rule or order of the court, by which a prisoner on civil process, and not committed, is enabled, in term time, to go out of the prison, and its rule or bounds; a prisoner is enabled to quit the prison, for more or less time, by three kinds of rules, namely: 1. The day-rule. 2. The term-rule; and 3. The rules. See 9 East, R. 151.

DAYS IN BANK, Eng. practice. Days of appearance in the court of common pleas, usually called bancum. They are at the distance of about a week from each other, and are regulated by some festival of the church. 8 Bl. Com. 277.

DAYS OF GRACE. Certain days after the time limited by the bill or note, which the acceptor or drawer has a right to demand for payment of the bill or note; these days were so called because they were formerly gratuitously allowed, but now, by the custom of merchants, sanctioned by decisions of courts of justice, they are demandable of right. 6 Watts & Serg. 179. The number of these in the United States is generally three. - Chitty on Bills, h. t. But where the established usage of the where the instrument is payable, or of the bank at which it is payable, or deposited for collection, be to make the demand on the fourth or other day, the parties to the note will be bound by such usage. 5 How. U. S. Rep. 317; 1 Smith, Lead. Cas. 417. When the last day of grace happens on the 4th of July; 2 Caines Cas. in Err. 195; or on Sunday; 2 Caines' R. 343; 7 Wend. 460; the demand must be made on the day previous. 13 John. 470; 7 Wend. 460; 12 Mass. 89; 6 Pick. 80; 2 Caines, 343: 2 McCord, 436. But see 2 Conn. 69. See 20 Wend. 205; 1 Metc. R. 43; 2 Cain. Cas. 195; 7 How. Miss. R. 129; 4 J. J. Marsh. 332.

2. In Louisiana, the days of grace are no obstacle to a set off, the bill being due, for this purpose before the expiration of those days. Louis. Code, art. 2206.

3. In France all days of grace, of favor, of usage, or of local custom, for thne payment of bills of exchange, are abolished. Code de Com. art. 185. See 8 Verm. 833; 2 Port. 286; 1 Conn. 329; 1 Pick. 401; 2 Pick. 125; 3 Pick. 414; 1 N. & M. 83.

DAYS OF THE WEEK. These are Sunday, Monday, Tuesday, Wednesday, Thursday, Friday, Saturday. See Week.

2. The court will take judicial notice of the days of the week - for example, when a writ of inquiry was stated in the pleadings to have been executed on the fifteenth of June, and, upon an examination, it was found to be Sunday, the proceeding was held to be defective. Forteso. 373; S. C. Str. 387.

DE. A preposition used in many Latin phrases - as, de bone esse, de bonis non.

DE ARBITRATIONE FACTA, WRIT. In the ancient English law, when an action was brought for the same cause of action which had been before settled by arbitration, this writ was brought. Wats. on Arb. 256.

DE BENE ESSE, practice. A technical phrase applied to certain proceedings which are deemed to be well done for the present, or until an exception or other avoidance, that is, conditionally, and in that meaning the phrase is usually accepted. For example, a declaration is filed or delivered, special bail put in, witness examined, &c. de bene esse, or conditionally; good for the present.

2. When a judge has a doubt as to the propriety of finding a verdict, h(, may direct the jury to find one de bene esse; which verdict, if the court shall afterwards be of opinion it ought to have been found, shall stand. Bac. Ab. Verdict, A. Vide 11 S. & R. 84.

DE BONIS NON. This phrase is used in cases where the goods of a deceased person have not all been administered. When an executor or administrator has been appointed, and the estate is not fully settled, and the executor or administrator is dead, has absconded, or from any cause has been removed, a second administrator is appointed to to perform the duty remaining to be done, who is called an administrator de bonis non, an administrator of the goods not administered and he becomes by the appointment the only representative of the deceased. 11 Vin. Ab. 111; 2 P. Wms. 340; Com. Dig. Administration, B I; 1 Root's 11. 425. And it seems that though the estate has been distributed, an administrator de nonis non may be appointed, if debts remain unsatisfied. 1 Root's R. 174.

DE BONIS PROPRIIS. Of his own goods. When an executor or administrator has been guilty of a devastavit, (q. v.) he is responsible for the loss which the estate has sustained, de bonis propriis. He may also subject himself to the payment of a debt of the deceased, de bonis propriis, by his false plea, when sued in a representative as, if he plead plene administravit, and it be found against him, or a release to himself, when false. In this latter case the judgment is de bonis testatoris si, et si non de bonis propriis. 1 Saund. 336 b, n. 10 Bac. Ab. Executor, B 8.

DE CONTUMACE CAPIENDO. The name of a writ issued for the arrest of a defendant who is in contempt of the ecclesiastical court. 1 Nev. & Per. 680, 685, 689; 5 Dowl. 213, 646.

DE DOMO REPARANDA. The name of an ancient common law writ, by which one tenant in common might compel his co-tenant to concur in the expense of repairing the property held in common. 8 B. & C. 269; 1 Tho. Co. Litt. 216, note 17, and p. 787.

DE DONIS, STATUTE. The name of an English statute passed the 13 Edwd. I. c. 1, the real design of which was to introduce perpetuities, and to strengthen the power of the barons. 6 Co. 40 a; Co. Litt. 21; Bac. Ab. Estates in tail, in prin.

DE FACTO, i. e. in deed. A term used to denote a thing actually done; a president of the United States de facto is one in the exercise of the executive power, and is distinguished from one, who being legally entitled to such power is ejected from it; the latter would be a president de jure. An officer de facto is frequently considered as an officer de jure, and his official acts are of equal validity. 10 S. & R. 250; 4 Binn. R. 371; 11 S. & R. 411, 414; Coxe, 318; 9 Mass. 231; 10 Mass. 290; 15 Mass. 180; 5 Pick. 487.

DE HOMINE REPLEGIANDO. The name of a writ which is used to replevy a man out of prison, or out of the custody of a private person. See Homine replegiando; Writ de homine replegiando.

DE INJURIA, pleading. The name of a replication in an action for a tort, that the defendant committed the trespasses or crrievances of his own wrong, without the cause by,him in his plea alleged.

2. The import of this replication is to insist that the defendant committed the act complained of, from a motive and impulse altogether different from that insisted on by the plea. For example, if the defendant has justified a battery under a writ of capias, having averred, as he must do, that the arrest was made by virtue of the writ; the plaintiff may rely de injuria sua propria absque tali causa, that the defendant did the act of his own wrong, without the cause by him alleged. This replication, then, has the effect of denying the alleged, motive contained in the plea, and to insist that the defendant acted from another, which was unlawful, and not in, consequence of the one insisted upon in his plea. Steph. Pl. 186; 2 Chit. Pl. 523,.642; Hamm. N. P. 120, 121; Arch. Civ. Pl. 264; Com. Dig. Pleader, F 19.

3. The form of this replication is, "precludi non, because he says that the said defendant at the same time when, &c., of his own wrong, and without the cause by him in his said second plea alleged, committed the said trespass in the introductory part of that plea, in manner and form as the said plaintiff hath above in his said declaration complained against the said defendant, and this the said plaintiff prays, may be inquired of by the country," &c. This is the uniform conclusion of such a replication. 1 Chit. Pl. 585.

4. The replication de injuria is only allowed when an excuse is offered for personal injuries. 1 B. & P. 76; 5 Johns. R. 112; 4 Johns. 150; 12 Johns. 491. Vide 7 Vin. Ab. 503; 3 Saund. 295, note; 1 Lilly's Reg. 587.

5. In England, where the extent of the general issues has been confined in actions on contracts, and special pleas have become common in assumpsit, it has become desirable, that the plaintiff, who hss but one replication, should put in issue the several numerous allegations which the special pleas were found to contain; for, unless he could do this, he would labor under the hardship of being frequently compelled to admit the greater part of an entirely false story. It became, therefore, important to ascertain whether de injuria could not be replied to cases of this description and, after numerous cases which were presented for adjudication, it was finally settled that de injuria may be replied in assumpsit, when the plea consists of matters of excuse. 3 C.M. &,R. 65; 2 Bing. N. C. 579 4 Dowl. 647.

6. The improper use of de injuria is ground of general demurrer. 2 Lev. 65; 4 Tyrw. 771. But if the defendant do not demur, the objection will not avail after verdict. Hob. 76: Sir T. Raym. 50.

7. De injuria puts in issue the whole of the defence contained in the plea. 5 B. & A. 420; 11 East, 451; 10 Bing. 157. But if the plea state some authority in law, which, prima facie, would be a justification of the act complained of, the plaintiff will not be allowed under the plea of de injuria to show an abuse of that authority so as to convert the defendant into a tort feasor ab initio. 1 Bing. 317; 1 Bing. N. S. 387. See 1 Smith's L. C. 53 to 61; 8 Co. 66.

DE JUDAISMO, STATUTUM. The name of a statute passed in the reign of Edw. I., which enacted severe and absurd penalties against the Jews. Barr. on Stat. 197.

2. The Jews were exceedingly oppressed during the middle ages throughout Christendom, and, are so still in some countries. In France, a Jew was a serf, and his person and goods belonged to the baron on whose demesnes he lived. He could not change his domicil without permission of the baron, who could pursue him as a fugitive even on the domains of the king. Like an article of commerce, he might be lent or hired for a time, or mortgaged. If he became a Christian, his conversion was considered a larceny of the lord, and his property and goods were confiscated. They were allowed to utter their prayers only in a low voice and without chanting. They were not allowed to appear in public without some badge or mark of distinction. Christians were forbidden to employ Jews of either sex as domestics, physicians or surgeons. Admission to the bar was forbidden to Jews. They were obliged to appear in court in person, when they demanded justice for a wrong done them, and it was deemed disgraceful to an advocate to undertake the cause of a Jew. If a Jew appeared in court against a Christian, he was obliged to swear by the ten names of God, and invoke a thousand imprecations against himself, if he spoke not the truth. Sexual intercourse between a Christian man and a Jewess was deemed a crime against nature, and was punishable with death by burning. Quia est rem habere cum cane, rem habere a Christiano cum Judaea quae CANIS reputatur - sic comburi debet. 1 Fournel, Hist. des Avocats, 108, 110. See Merlin, Repert. au mot Juifs.

3. - In the fifth book of the Decretals, it is provided, that if a Jew have a servant that desireth to be a Christian, the Jew shall be compelled to sell him to a Christian for twelve pence that it shall not be lawful for them to take any Christian to be their servant that they may repair their old synagogues, but not build new - that it shall not be lawful for them to open their doors, or windows on good Friday; that their wives neither have Christian nurses, nor themselves be nurses to Christian women - that they wear different apparel from the Christians, whereby they may be known, &c;See Ridley's View of the Civ. and Eccl Law, part 1, chap. 5, sect. 7 and Madox Hist. of the Exchequer, Index, as to their condition in England.

DE JURE, by right. Vide De facto.

DE LUNATICO INQUIRENDO. The name of a writ directed to the sheriff, directing him to inquire by good and lawful men whether the party charged is, a lunatic or not. See 4 Rawle, 234; 1 Whart. 52; 5 Halst. 217; 6 Wend. 497.

DE MEDIETATE LINGUAE. Of half tongue. Vide Medietas linguae.

DE MELIORIBUS DAMNIS. Of the better damages. When a plaintiff has sued several defendants, and the damages have been assessed severally against each, he has the choice of selecting the best, as he cannot recover the whole. This is doue by making, an election de melioribus damnis.

DE MERCATORIBUS. This is the name of a statute passed in the 11 Edw. I.; it is usually called the statute of Acton Burnell De Mercatoribus. It was passed in consequence of the complaints of foreign merchants, who could not recover the claims, because the lands of the debtors could not be sold for their debts. It enacted that the chattels and devisable burgages of the debtor might be sold for the payment of their debts. Cruise, Dig. t. 14, s. 6.

D.E NOVO. Anew. afresh. When a judgment upon an issue in part is reversed on error, for some mistake made by the court, in the course of the trial, a venire de novo is awarded in order that the case may again be submitted to the jury.

DE NOVI OPERIS NUNCIATIONE, Civil law. Where a thiug is intended to be done against another man's right, the party aggrieved may have in many cases, according to the civilians, an interdict or injunctIion, to hinder that which is intended to his prejudice: as where one buildeth an house contrary to the usual and received form of building to the injury of his neighbor, there lieth an injunction de novi operis nunciatione, which being served, the offender is either to desist from his work or to put in sureties that he shall pull it down, if he do not in a short time avow, i. e. show, the lawfulness thereof. Ridley's Civ. and Eccl. Law, part 1, chap 1, sect. 8.

DE ODIO ET ATIA. These words sisignify "from hatred and ill will." When a person was committed on a charge of a crime, from such a motive, he could sue the writ de otio et atia, and procure his liberty on giving bail. The object is now obtained by a writ of habeas corpus. Vide Writ de odio et atia.

DE PARTITIONE FACIENDA. The name of a writ for making partition. Vide Partition.

DE PROPRIETATE PROBANDA, Eng. Practice. The name of a writ which issues in a case of replevin when the defendant claims property in the chattels replevied, and the sheriff makes a return accordingly. The writ directs the sheriff to summon an inquest to determine on the validity of the claim, and, if they find for the defendant, the sheriff merely returns their finding. The plaintiff is not concluded by such finding, he may come into the court above and traverse it. Hamm. N. P. 456.

DE QUOTA LITIS. The name of a part or contract, in the civil law, by which one who has a claim difficult to recover, agrees with another to give a part for the purpose of obtaining his services to recover the rest. 1 Duv. n. 201.

2. Whenever such an agreement amounts to champerty, it is void by law. 5 Monr. 416; 5 John. Ch. 44.

3. Attorneys cannot lawfully make a bargain with their clients to receive for their compensation, a part of the thing sued for; in New York, 2 Caines, 147; Ohio, 1 Ham. 132; Alabama, 755; and some other states - but in some of the states such contracts are not unlawful.

DE REPARATIONE FACIENDA. The name of a writ which lies by one tenant in common against the other, to cause him to aid in repairing the common propert. 8 B. & C. 269.

DE RETORNO HABENDO The name of a writ issued after a judgment has been given in replevin, that the defendant should have a return of the goods replevied. See 3 Bouv. Inst. n. 3376.

DE SON TORT. Of his own wrong. This term is usually applied to a person who, having no right to meddle with the affairs or estate of a deceased person, yet undertakes to do. so, by acting as executor of the deceased. Vide Executor de son tort.

DE SON TORT DEMESNE, Of his own wrong, pleading. The name of a replication in an action for a wrong or injury. When the defendant pleads a matter merely in excuse of an injury to the person or reputation of another, the plaintiff may reply de son tort demesne sans tiel cause; that it was the defendant's own wrong without such cause. Vide the articles, De Injuria, and Without, and also 8 Co. 69 a; Bro. h. t.; Com. Dig. Pleader, F 18.

DE UNA PARTE. A deed de una parte, is one where only one party grants, gives, or binds himself to do.a thing to another. It differs from a deed inter partes. (q. v.) 2 Bouv. Inst. n. 2001.

DE WARRANTIA DIEI, WRIT, Eng. law. Where a man is required to appear on a certain day in person, and before that day the king certifies that the party is in the king's service, he may sue this writ, commanding the justices not to record his default for that day for the cause before mentioned. F. N. B. 36.

DEACON, Eccl. law. A minister or servant in the church whose office, in some churches, is to assist the priest in divine service, and the distribution of the sacrament.

DEAD Something which has no life; figuratively, something of no value.

 
 
 
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