New York Lawyer WS
New York Layer, law dictionary, legal dictionary, dictionary online, word search, lawyer search, law and order, attorney, law school    
 
Google
 
Web new-york-lawyer.ws
 
D

DEBT, contracts. A sum of money due by certain and express agreement. 3 Bl. Com. 154. In a less technical sense, as in the "act to regulate arbitrations and proceedings in courts of justice" of Pennsylvania, passed the 21st of March, 1806, s. 5, it means an claim for money. In a still more enlarged sense, it denotes any kind of a just demand; as, the debts of a bankrupt. 4 S. & R. 506.

2. Debts arise or are proved by matter of record, as judgment debts; by bonds or specialties; and by simple contracts, where the quantity is fixed and specific, and does not depend upon any future valuation to settle it. 3 Bl. Com. 154; 2 Hill. R. 220.

3. According to the civilians, debts are divided into active and passive. By the former is meant what is due to us, by the latter, what we owe. By liquid debt, they understand one, the payment of which may be immediately enforced, and not one which is due at a future time, or is subject to a condition; by hypothecary debt is meant, one which is a lien over an estate and a doubtful debt, is one the payment of which is uncertain. Clef des Lois Rom. h. t.

4. Debts are discharged in various ways, but principally by payment. See Accord and Satisfaction; Bankruptcy; Confusion Compensation; Delegation; -Defeasance; Discharge of a contract; Extinction; Extinguishment; Former recovery; Lapse of time; Novation; Payment; Release; Rescission; Set off.

5. In payment of debts, some are to be paid before others, in cases of insolvent estates first, in consequence of the character of the creditor, as debts due to the United States are generally to be first paid; and secondly, in consequence of the nature of the debt, as funeral expenses and servants' wages, which are generally paid in preference to other debts. See Preference; Privilege; Priority.

DEBT, remedies. The name of an action used for the recovery of a debt eo nomine and in numero though damages are generally awarded for the detention of the debt; these are, however, in most instances, merely nominal. 1 H. Bl. 550; Bull. N. P. 167 Cowp. 588.

2. The subject will be considered with reference, 1. To the kind of claim or obligation on which this action may be maintained. 2. The form of the declaration. 3. The plea. 4. The judgment.

3. - 1. Debt is a more extensive remedy for the recovery of money than assumpsit or covenant, for it lies to recover money due upon legal liabilities, as, for money lent, paid, had and received, due on an account stated; Com. Dig. Dett, A; for work and labor, or for the price of goods, and a quantum valebant thereon; Com. Dig. Dett, B Holt, 206; or upon simple contracts, express or implied, whether verbal or written, or upon contracts under seal, or of record, or by a common informer, whenever the demand for a sum is certain, or is capable of being reduced to certainty. Bull. N. P. 167. It also lies to recover money due on, any specialty or contract under seal to pay money. Str. 1089; Com. Dig. Dett, A 4; 1 T. R. 40. This action lies on a record, or upon a judgment of a court of record; Gilb. Debt, 891; Salk. 109; 17 S. & R. 1; or upon a foreign judgment. 3 Shepl. 167; 3 Brev. 395. Debt is a frequent remedy on statutes, either at the suit of the party grieved, or of a common informer. Com. Dig. Action on Statute, E; Bac. Ab. Debt, A. See, generally, Bouv. Inst. Index, h. t.; Com. Dig. h. t.; Dane's Ab. h. t.. Vin. Ab. h. t.; Chit. Pl. 100 to 109; Selw. N. P. 553 to 682; Leigh's N. P. Index, h. t. Debt also lies, in the detinet, for goods; which action differs from detinue, because it is not essential in this action, as in detinue, that the property in any specific goods should be vested in the plaintiff, at the time the action is brought; Dy. 24 b; and debt in the debet and detinet may be maintained on an instrument by which the defendant is bound to pay a sum of money lent, which might have been discharged, on or before the day of payment, in articles of merchandise. 4 Yerg. R. 171; see, Com. Dig. Dett, A 5; Bac. Ab. Debt, F; 3 Woodd. 103, 4; 1 Dall. R. 458.

4. - 2. When the action is on a simple contract, the declaration must show the consideration of the contract, precisely as in assumpsit; and it should state either a legal liability or an express agrement, though not a promise to pay the debt. 2 T. R. 28, 30. When the action is founded on a specialty or record, no consideration need be shown, unless the performance of the consideration constitutes a condition precedent, when performance of such consideration must be averred. When the action is founded on a deed, it must be declared upon, except in the case of debt for rent. 1 New R. 104.

5. - 3. The plea to an action of debt is either general or special. 1. The plea of general issue to debt on simple contracts, or on statutes, or when the deed is only matter of inducement, is nil debet. See Nil debet. In general, when the action is on a specialty, the plea denying the existence of the contract is non est factum; 2 Ld. Raym. 1500; to debt on record, nul tiel record. 16 John. 55. Other matters must, in general, be pleaded specially.

6.- 4. For the form of the judgment, see Judgment in debt. Vide Remedy.

DEBTEE. One to whom a debt is due a creditor, as, debtee executor. 3 Bl. Com. 18.

DEBTOR, contracts. One who owes a debt; he who may be constrained to pay what he owes.

2. A debtor is bound to pay his debt personally, and all the estate he possesses or may acquire, is also liable for his debt.

3. Debtors are joint or several; joint, when they all equally owe the debt in solido; in this case if a suit should be necessary to recover the debt, all the debtors must be sued together or, when some are dead, the survivors must be sued, but each is bound for the whole debt, having a right to contribution from the others; they are several, when each promises severally to pay the whole debt; and obligations are generall binding on both or all debtors jointly and severally. When they are severally bound each may be sued separately, and on the payment of debt by one, the others will be bound to contribution, where all had participated in the money or property, which was the cause of the debt.

4. Debtors are also principal and surety; the principal debtor is bound as between him and his surety to pay the whole debt. and if the surety pay it, he will be entitled to recover against the principal. Vide Bouv. Inst. Index, h. t.; Vin. Ab. Creditor and Debtor; Id. Debt; 8 Com. Dig. 288; Dig. 50, 16, 108 Id. 50, 16, 178, 3; Toull. liv. 2, n. 250.

DECAPITATION, punishment. The punishment of putting a person to death by taking off his head.

DECEDENT. In the acts of descent and distribution in Pennsylvania, this word is frequently used for a deceased person, testate or intestate.

DECEIT, tort. A fraudulent. misrepresentation or contrivance, by which one man deceives another, who has no means of detecting the fraud, to the injury and damage of the latter.

2. Fraud, or the intention to deceive, is the very essence of this injury, for if the party misrepresenting was himiself mistaken, no blame can attach to him. The representation must be made malo animo, but whether or not the party is himself to gain by it, is wholly immaterial.

3. Deceit may not only be by asserting a falsebood deliberately to the injury of another as, that Paul is in flourishing circumstances, whereas he is in truth insolvent; that Peter is an honest man, when he knew him to be a, rogue; that property, real or personal, possesses certain qualities, or belongs to the vendor, whereas he knew these things to be false; but by any act or demeanor which would naturally impress the mind of a careful man with a mistaken belief.

4. Therefore, if one whose manufactures are of a superior quality, distinguishes them by a particular mark, which facts are known to Peter, and Paul counterfeits this work, and affixes them to articles of the same description, but not made by such person, and sells them to Peter as goods of such manufacture, this is a deceit.

5. Again, the vendor having a knowledge of a defect in a commodity which cannot be obvious to the buyer, does not disclose it, or, if apparent, uses an artifice and conceals it, he has been guilty of a fraudulent misrepresentation for there is an implied condition in every contract that the parties to it act upon equal terms, and the seller is presumed to have assured or represented to the vendee that he is not aware of any secret deficiencies by which the commodity is impaired, and that he has no advantage which himself does not possess.

6. But in all these cases the party injured must have no means of detecting the fraud, for if he has such means his ignorance will not avail him in that case he becomes the willing dupe of the other's artifice, and volenti non fit injuria. For example, if a horse is sold wanting an eye, and the defect is visible to a common observer, the purchaser cannot be said to be deceived, for by inspection he might discover it, but if the blindness is only discoverable by one experienced in such diseases, and the vendee is an inexperienced person, it is a deceit, provided the seller knew of the defect.

7. The remedy for a deceit, unless the right of action has been suspended or discharged, is by an action of trespass on the case. The old writ of deceit was brought for acknowledging a fine, or the like, in another name, and this being a perversion of law to an evil purpose, and a high contempt, the act was laid contra pacem, and a fine imposed upon the offender. See Bro. Abr. Disceit; Vin Abr. Disceit.

8. When two or more persons unite in a deceit upon another, they may be indicted for a conspiracy. (q. v.) Vide, generally, 2 Bouv. Inst. n. 2321-29; Skin. 119; Sid. 375; 3 T. R. 52-65; 1 Lev. 247; 1 Strange, 583; D Roll. Abr. 106; 7 Barr, Rep. 296; 11 Serg. & R. 309, 310; Com. Dig. Action upon the case for a deceit; Chancery, 3 F 1 and 2; 3 M 1; 3 N 1; 4 D 3; 4 H 4; 4 L 1; 4 O 2; Covin; Justices of the Peace, B 30; Pleader, 2 H; 1 Vin. Ab. 560; 8 Vin. Ab. 490; Doct. Pl. 51; Dane's Ab. Index, h. t.; 1 Chit. Pr. 832 Ham. N. P. c. 2, s. 4; Ayl. Pand. 99 2 Day, 531; 12 Mass. 20; 3 Johns. 269; 6 Johns. 181; 2 Day, 205, 381; 4 Yeates, 522; 18 John. 395: 8 John. 23; 4 Bibb, 91; 1 N. & M. 197. Vide, also, articles Equality; Fraud; Lie.

TO DECEIVE. To induce another either by words or actions, to take that for true which is not so. Wolff, Inst. Nat. 356.

DECEM TALES, practice. In the English law this is a writ which gives to the sheriff apponere decem tales; i. e. to appoint ten such men for the supply of jurymen, when a sufficient number do not appear to make up a full jury.

DECENNARY, Eng. law. A town or tithing, consisting originally of ten families of freeholders. Ten tithings composed a hundred. 1 Bl. Com. 114.

DECIES TANTUM, Eng. law. The name of an obsolete writ which formerly lay against a juror who had taken money for giving his verdict; called so, because it was sued out to recover from him ten times as much as he took.

DECMATION. The punishment of every tenth soldier by lot, was, among the Romans, called decimation.

DECIME. A French coin, of the value of a tenth part of a franc, or nearly two cents.

DECISION, practice. A judgment given by a competent tribunal. The French lawyers call the opinions which they give on questions propounded to them, decisions. Vide Inst. 1, 2, 8 Dig. 1, 2, 2.

DECLARANT. One who makes a declaration. Vide Declarationis.

DECLARATION, pleading. A declaration is a specification, in a methodical and logical form, of the circumstances which constitute the plaintiff's cause of action. 1 Chit. Pl. 248; Co. Litt. 17, a, 303, a; Bac. Abr. Pleas, B; Com. Dig. Pleader, C 7; Lawes on Pl. 35; Steph Pl. 36; 6 Serg. & Rawle, 28. In real actions, it is most properly called the count; in a personal one, the declaration. Steph. Pl. 36 Doct. Pl. 83; Lawes, Plead. 33; see P. N. B. 16, a, 60, d. The latter, however, is now the general term; being that commonly used when referring to real and personal actions without distinction. 3 Bouv. Inst. n. 2815.

2. The declaration in an action at law answers to the bill in chancery, the libel of the civilians, and the allegation of the ecclesiastical courts.

3. It may be considered with reference, 1st. To those general requisites or qualities which govern the whole declaration; and 2d. To its form, particular parts, and requisites.

4. - 1. The general requisites or quali- ties of a declaration are first, that it correspond with the process. But, according to the present practice of the courts, oyer of the writ cannot be craved; and a variance between the writ and declaration cannot be pleaded in abatement. 1 Saund. 318; a.

5. - Secondly. The second general requisite of a declaration is, that it contain a statement of all the facts necessary in point of law, to sustain the action, and no more. Co. Litt. 303, a; Plowd. 84, 122. See 2 Mass. 863; Cowp. 682; 6 East, R. 422 5 T. R. 623; Vin. Ab. Declarations.

6. - Thirdly. These circumstances must be stated with certainty and truth. The certainty necessary in a declaration is, to a certain intent in general, which should pervade the whole declaration, and is particularly required in setting forth, 1st. The parties; it must be stated with certainty who are the parties to the suit, and therefore a declaration by or against "C D and Company," not being a corporation, is insufficient. See Com. Dig. Pleader, C I 8 1 Camp. R. 446 I T. R. 508; 3 Caines, R. 170. 2d. The time; in personal actions the declaration must, in general, state a time when every material or traversable fact happened; and when a venue is necessary, time must also, be mentioned. 5 T. R. 620; Com. Dig. Plead. C 19; Plowd. 24; 14 East, R. 390.; The precise time, however, is not material; 2 Dall. 346; 3 Johns. R. 43; 13 Johns. R. 253; unless it constitutes a material part of the contract declared upon, or whlere the date, &c., of a written contract or record, is averred; 4 T. R. 590 10 Mod. 313 2 Camp. R. 307, 8, n.; or, in ejectment, in which the demise must be stated to have been made after the title of the lessor of the plaintiff, and his right of entry, accrued. 2 East, R. 257; 1 Johns. Cas. 283. 3d. The Place. See Venue. 4th. Other circumstances necessary to maintain the action.

7. - 2. The parts and particular requisites of a declaration are, first, the title of the court and term. See 1 Chit. Pl. 261, et seq.

8. - Secondly. The venue. Immediately after the title of the declaration follows the statement in the margin of the venue, or county in which the facts are alleged to have occurred, and in which the cause is tried. See Venue.

9. - Thirdly. The commencement. What is termed the commencement of the declaration follows the venue in the margin, and precedes the more circumstantial statement of the cause of action. It contains a statement, 1st. Of the names of the parties to the suit, and if they sue or be sued in another right, or in a political capacity, (as executors, assignees, qui lam, &c.) of the character or right in respect of which they are parties to the suit. 2d. Of the mode in which the defendant has been brought into court; and, 3d. A brief recital of the form of action to be proceeded in. 1 Saund. 318, Id. 111, 112; 6 T. R. 130.

10. Fourthly. The statement of the cause (if action, in which all the requisites of certainty before mentioned must be observed, necessarily varies, according to the circumstances of each particular case, and the form of action, whether in assumpsit, debt, covenant, detinue, case, trover, replevin or trespass.

11. Fifthly. The several counts. A declaration may consist of as many counts as the case requires, and the jury may assess entire or distinct damages on. all the counts; 3 Wils. R. 185; 2 Bay, R. 206; and it is usual, particularly in actions of assumpsit, debt on simple contract, and actions on the case, to set forth the plaintiff's cause of action in various shapes in different counts, so that if the plaintiff fail in proof of one count, he may succeed in another. 3 Bl. Com. 295.

12. - Sixthly. The conclusion. In personal and mixed actions the declaration should conclude to the damage of the plaintiff; Com. Dig. Pleader, C 84; 10 Co. 116, b. 117, a.; unless in scire facias and in penal actions at the suit of a common informer.

13. - Seventhly. The profert and pledges. In an action at the suit of an executor or administrator, immediately after the conclusion to the damages, &c., and before the pledges, a profert of the letters testamentary or letters of administration should be made. Bac. Abr. Executor, C; Dougl. 6, in notes. At the end of the declaration, it is usual to add the plaintiff is common pledges to prosecute, John Doe and Richard Roe.

14. A declaration may be general or special; for example, in debt or bond, a declaration counting on the penal part only, is general; when it sets out both the penalty and the condition, and assigns the breach, it is special. Gould on Pl. c. 4, 50. See, generally, Bouv. Inst. Index, h. t. 1 Chit. Pl. 248 to 402; Lawes, Pl. Index) h. t.; Arch. Civ. Pl. -index, h. t.; Steph. Pl. h. t.; Grab. Pr. h. t.; Com. Dig. Pleader, h. t.; Dane's Ab. h. t.; United States Dig. Pleadings ii.

DECLARATION OF INDEPENDENCE. This is a state paper issued by the congress of the United States of America, in the name and by the authority of the people, on the fourth day of July, 17 76, wherein are set forth:

2. - 1. Certain natural and unalienable rights of man; the uses and purposes of governments the right of the people to institute or to abolish them; the sufferings of the colonies, and their right to withdraw from the tyranny of the king of Great Britain.

3. -2. The various acts of tyranny of the British Icing.

4. - 3. The petitions for redress of these injuries, and the refusal. to redress them; the recital of an appeal to the people of "Great Britain, and of their being deaf to the voice of justice and consanguinity.

5. - 4. An appeal to the Supreme Judge of the world for the rectitude of the intentions of the representatives.

6. - 5. A declaration that the United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown, and that all political connexion between them and the state of Great Britain, is and ought to be dissolved.

7. - 6. A pledge by the representatives to each other, of their lives, their fortunes, and their sacred honor.

8. The effect of this declaration was the establishment of the government of the United States as free and independent) and thenceforth the people of Great Britain have been held, as the rest of mankind, enemies in war, in peace friends.

DECLARATION OF lNTENTION. The act of an alien, who goes before a court of record, and in a forma manner declares that it is, bona fide, his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, whereof he may at the time be a citizen or subject. Act of Congress of April 14, 18O2, s. 1.

2. This declaration must, in usual cases, be made at least three years before his admission. Id. But there are numerous exceptions to this rule. See Naturalization.

DECLARATION OF TRUST. The act by which an individual acknowledges that a property, the title of which he holds, does in fact belong to another, for whose use he holds the same. The instrument in which the acknowledgment is made, is also called a declaration of trust; but such a declaration is not always in writing, though it is highly proper it should be so. Will. on Trust, 49, note y; Sudg. on Pow. 200. See Merl. Rep. Declaration au profit d'un tiers.

DECLARATION OF WAR. An act of the national legislature, in which a state of war is declared to exist between the United States and some other nation.

2. This power is vested in congress by the constitution, art. 1, s. 8. There is no form or ceremony necessary, except the passage of the act. A manifesto, stating the causes of the war, is usually publishied, but war exists as soon as the act takes effect. It was formerly usual to precede hostilities by a public declaration communicated to the enemy, and to send a herald to demand satisfaction. Potter, Antiquities of Greece, b. 3, c. 7; Dig. 49, 15, 24. But that is not the practice of modern times. In some countries, as England, the, power of declaring war is vested in the king, but he has no power to raise men or money to carry it on, which renders the right almost nugatory.

4. The public proclamation of the government of a state, by which it declares itself to be at war with a foreign power, which is named, and which forbids all and every one to aid or assist the common enemy, is also called a declaration of war.

DECLARATIONS, evidence. The statements made by the parties to a transaction, in relation to the same.

2. These declarations when proved are received in evidence, for the purpose of illustrating the peculiar character and circumstances of the transaction. Declarations are admitted to be proved in a variety of cases.

3. - 1. In cases of rape, the fact that the woman made declarations in relation to it, soon after the assault took place, is evidence; but the particulars of what she said cannot be heard. 2 Stark; N. P. C. 242; S. C. 3 E. C. L. R. 344. But it is to be observed that these declarations can be used only to corroborate her testimony, and cannot be received as independent evidence; where, therefore, the prosecutrix, died, these declarations could not be received. 9 C. & P. 420; S. C. 38 Eng. C. L. R. 173; 9 C. & P. 471; S. C. 38 E. C. L. It. 188.

4. - 2. When more than one person is concerned in the commission of a crime, as in cases of riots, conspiracies, and the like, the declarations of either of the parties, made while acting in the common design, are evidence against the whole; but the declarations of one of the rioters or conspirators, made after the accomplishment of their object, and when they no longer acted together, are evidence only against the party making them. 2 Stark. Ev. 235 2 Russ. on Cr. 572 Rosc. Cr. Ev. 324; 1 Breese, Rep. 269.

5. In. civil cases the declarations of an agent, made while acting for his principal, are admitted in evidence as explanatory of his acts; but his confessions after he has ceased to, act, are not evidence. 4. S. R. 321.

6. - 3. To prove a pedigree, the declarations of a deceased member of the family are admissible. Vide Hearsay, and the cases there cited.

7. - 4. The dying declarations of a man who has received a mortal injury, as to the fact itself, and the party by whom it was committed, are good evidence; but the party making them must be under a full consciousness of approaching death. The declarations of a boy between ten and eleven years of age, made under a consciousness of approaching death, were received in evidence on the trial of a person for killing him, as being declarations in articulo mortis. 9 C. & P. 395; S. C. 38 E. C. L. R. 168. Evidence of such declarations is admissible only when the death of the deceased is the subject of the charge, and the circumstances of the death the subject of the dying declarations. 2 B. & C. 605; S. C. 9 E. C. L. R. 196; 2 B. & C. 608; S. C. 9 E. C. L. R. 198; 1 John. Rep. 159; 15 John. R. 286; 7 John. R. 95 But see contra, 2 Car. Law Repos. 102. Vide Death bed, or Dying declarations. 3 Bouv. Inst. n. 3071.

DECLARATORY. Something which explains, or ascertains what before was uncertain or doubtful; as a declaratory statute, which is one passed to put an end to a doubt as to what the law is, and which declares what it is, and what it has been. 1 Bl. Com. 86.

TO DECLARE. To make known or publish. By tho constitution of the United States, congress have power to declare war. In this sense the word, declare, signifies, not merely to make it known that war exists, but also to make war and to carry it on. 4 Dall. 37; 1 Story, Const. 428; Rawle on the Const. 109. In pleading, to declare, is the act of filing a declaration.

DECOCTION, med. jurisp. The operation of boiling certain ingredients in a fluid, for the purpose of extracting the parts soluble at that temperature. Decoction also means the product of this operation.

2. In a case in which the indictment charged the prisoner with having administered to a woman a decoction of a certain shrub called savin, it appeared that the prisoner had administered an infusion (q. v.) and not a decoction; the prisoner's counsel insisted that he was entitled to an acquittal, on the ground that the medicine was misdescribed, but it was held that infusion and decoction are ejusdem generis, and that the variance was immaterial. 3 Camp. R. 74, 75.

DECONFES, canon law in France. Formerly those persons who died without confession were so called; whether they refused to confess or whether they were criminals to whom the sacrament was refused. Droit Canon, par M. L'Abbe Andre. Dupin, Gloss. to Loisel's Institutes, says, Le deconfes est celui qui meurt sans confession et sans testament car l'un n'alloit point sans l'autre. See Intestate.

DECORUM. Proper behaviour; good order.

2. Decorum is requisite in public places, in order to permit all persons to enjoy their rights; for example, decorum is indispensable in church, to enable those assembled, to worship. If, therefore, a person were to disturb the congregation, it would be lawful to put him out. The same might be done in case of a funeral. 1 Mod. 168; 1 Lev. 196 2 Kebl. 124. But a request to desist should be first made, unless, indeed," when the necessity of the case would render such precaution impossible. In using force to restore order and decorum, care must be taken to use no more than is necessary; for any excess will render the party using it guilty of an assault and battery. Vide Battery.

DECOY. A pond used for the breeding and maintenance of water-fowl. 11 Mod. 74, 130; S. C. 3 Salk. 9; Holt, 14 11 East, 571.

 
 
 
Copyright © 2004 New-York-Lawyer .WS