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
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,
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,
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
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.
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
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
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.
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.
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