DEPOSITOR, contracts. He who makes a deposit.
2. He is generally entitled to receive the deposit from the depositary, but
to this rule there are exceptions; as. when the depositor at the time of making
the deposit had no title to the property deposited, and the owner claims it from
the depositary, the depositor cannot recover it; and for this reason, that he
can never be in a better situation than the owner. 1 Barn. & Ald. 450; 5
Taunt. 759. As to the place where the depositor is entitled to receive his
deposit, see Story on Bailm. §117-120 1 Bouv. Inst. n. 1063.
DEPREDATION, French law. The pillage which is made of the goods of a
decedent. Ferr. Mod. h. t.
DEPRIVATION, ecclesiastical Punishment. A censure by which a clergyman
is deprived of his parsonage, vicarage, or other ecclesiastical promotion or
dignity. Vide Ayliffe's Parerg. 206; 1 Bl. Com. 393.
DEPUTY. One authorized by an officer to exercise the office or right
which the officer possesses, for and in place of the latter.
2. In general, ministerial officers can appoint deputies; Com. Dig. Officer,
D 1; unless the office is to be exercised by the ministerial officer in person;
and where the office partakes of a judicial and ministerial character, although
a deputy may be made for the performance of ministerial acts, one cannot be made
for the performance of a judicial act; a sheriff cannot therefore make a deputy
to hold an inquisition, under a writ of inquiry, though he may appoint a deputy
to serve a writ.,
3. In general, a deputy has power to do every act which his principal might
do but a deputy cannot make a deputy.
4. A deputy should always act in the name of his principal. The principal is
liable for the deputy's acts performed by him as such, and for the neglect of
the deputy; Dane's Ab. vol. 3, c. 76, a. 2; and the deputy is liable himself to
the person injured for his own tortious acts. Dane's Ab. Index, h. t.; Com. Dig.
Officer, D; Viscount, B. Vide 7 Vin. Ab. 556 Arch. Civ. Pl. 68; 16 John. R.
DEPUTY OF THE ATTORNEY GENERAL. An officer appointed by the attorney
general, who is to hold his office during the pleasure of the latter, and whose
duty it is to perform, within a specified district, the duties of the attorney
general. He must be a member of the bar. In Pennsylvania, by an act of assembly,
passed May 3, 1850, district attorneys are elected by the people, who are
required to perform the duties which, before that act, were performed by
deputies of the attorney general.
DEPUTY DISTRICT ATTORNEYS. The Act of Congress of March 3, 1815, 2
Story L. U. S. 1530, authorizes and directs the district attorneys of the United
States to appoint by warrant, an attorney as their substitute or deputy in all
cases when necessary to sue or prosecute for the United States, in any of the
state or county courts, by that act invested with certain jurisdiction, within
the sphere of whose jurisdiction the said district attorneys do not themselves
reside or practice; and the said substitute or deputy shall be sworn or affirmed
to the faithful execution of his duty.
DERELICT, common law. This term is applied in the common law in a
different sense from what it bears in the civil law. In the former it is applied
to lands left by the sea.
2. When so left by degrees the derelict land belongs to the owner of the soil
adjoining but when the sea retires suddenly, it belongs to the government. 2 Bl.
Com. 262 1 Bro. Civ. Law, 239; 1 Sumn. 328, 490 1 Gallis. 138; Bee, R. 62, 178,
260; Ware, R. 332.
DERELICTO, civil law. Goods voluntarily abandoned by their owner; he
must, however, leave them, not only sine spe revertendi, but also sine animzo
revertendi; his intention to abandon them may be inferred by the great length of
time during which he may have been out of possession, without any attempt to
regain them. 1 Bro. Civ. Law, 239; 2 Bro. Civ. Law, 51; Wood's Civ. Law, 156; 19
Amer. Jur. 219, 221, 222 Dane's Ab. Index, h. t.; 1 Ware's R. 4 1.
DERIVATIVE. Coming from another; taken from something preceding,
secondary; as derivative title, which is that acquired from another person.
There is considerable difference between an original and a derivative title.
When the acquisition is original, the right thus acquired to the thing becomes
property, which must be unqualified and unlimited, and since no one but the
occupant has any right to the thing, he must have the whole right of disposing
of it. But with regard to derivative acquisition, it may be otherwise, for the
person from whom the thing is acquired may not have an unlimited right to it, or
he may convey or transfer it with certain reservations of right. Derivative
title must always be by contract.
2. Derivative conveyances are, those which presuppose some other precedent
conveyance, and serve only to enlarge, confirm, alter, restrain, restore, or
transfer the interest granted by such original conveyance, 3 Bl. Com. 321.
DERIVATIVE POWER. An authority by which one person enables another to
do an act for him. See Powers.
DEROGATION, civil law. The partial abrogation of a law; to derogate
from a law is to enact something which is contrary to it; to abrogate a law is'
to abolish it entirely. Dig. lib. 50, t. 17, 1. 102. See Abrogation.
DESCENDANTS. Those who have issued from an individual, and include his
children, grandchildren, and their children to the remotest degree. Ambl. 327 2
Bro. C. C. 30; Id. 230 3 Bro. C. C. 367; 1 Rop. Leg. 115; 2 Bouv. n. 1956.
2. The descendants form what is called the direct descending line. Vide Line.
The term is opposed to that of ascendants. (q. v.)
3. There is a difference between the number of ascendants and descendants
which a man may have every one his the same order of ascendants, though they may
not be exactly alike as to numbers, because some may be descended from a common
ancestor. In the line of descendants they fork differently, according to the
number of children and continue longer or shorter as generations continue or
cease to exist. Many families become extinct, while others continue; the line of
descendants is therefore diversified in each family.
DESCENDER. In the descent; as formedon in the descender. Bac. Ab.
Formedon, A 1. Vide Formedon.
DESCENT. Hereditary succession. Descent is the title, whereby a
person, upon the death of his ancestor, acquires the estate of the latter, as
his heir at law: This manner of acquiring title is directly opposed to that of
purchase. (q. v.) 2 Bouv. Inst. n. 1952, et seq.
2. It will be proper to consider, 1. What kind of property descends; and, 2.
The general rules of descent.
3. - §1. All real estate, and all freehold of inheritance in land, descend to
the heir. And, as being accessory to the land and making a part of the
inheritance, fixtures, and emblements, and all things annexed to, or connected
with the land, descend with it to the heir. Terms for years, and other estates
less than freehold, pass to the executor, and are not subjects of descent. It is
a rule at common law that no one can inherit read estate unless he was heir to
the person last seised. This does not apply as a general rule in the United
States. Vide article Possessio fratris.
4. - §2. The general rules of the law of descent. 1. It is a general rule in
the law of inheritance, that if a person owning real estate, dies seised, or as
owner, without devising the same, the estate shall descend to his descendants in
the direct line of lineal descent, and if there be but one person, then to him
or her alone; and if more than one person, and all of equal degree of
consanguinity to the ancestor, then the inheritance shall descend to the several
persons as tenants in common in equal parts, however remote from the intestate
the common degree of consanguinity may be. This rule is in favor of the equal
claims of descending line, in the same degree, without distinction of sex, and
to the exclusion of all other claimants. The following example will, illustrate
it; it consists of three distinct cases: 1. Suppose Paul shall die seised of
real estate, leaving two sons and a daughter, in this case the estate would
descend to them in equal parts; but suppose, 2. That instead of children, he
should leave several grandchildren, two of them the children of his son Peter,
and one the son of his son John, these will inherit the estate in equal
proportions; or, 3. Instead of children and grandchildren, suppose Paul left ten
great grandchildren, one the lineal descendant of his son John, and nine the
descendants of his son Peter; these, like the others, would partake equally of
the inheritance as tenants in common. According to 'Chancellor Kent, this rule
prevails in all the United States, with this variation, that in Vermont the male
descendants take double the share of females; and in South Carolina, the widow
takes one-third of the estate in fee; and in Georgia, she tales a child's share
in fee, if there be any children, and, if none, she then takes in each of those
states, a moiety of the estate. In North and South Carolina, the claimant takes
in all cases, per stirpes, though standing in the same degree. 4 Kent, Com. 371;
Reeves' Law of Desc. passim; Griff. Law Reg., answers to the 6th interr. under
the head of each state. In Louisiana the rule is, that in all cases in which
representation is admitted, the partition is made by roots; if one root has
produced several branches, the subdivision is also made by root in each branch,
and the members of the branch take between them by heads. Civil Code, art.
5. - 2. It is also a rule, that if a person dying seised, or as owner of the
land, leaves lawful issue of different degrees of consanguinity, the inheritance
shall descend to the children and grandchildren ofthe ancestor, if any be
living, and to the issue of such children and grandchildren as shall be dead,
and so on to the remotest degree, as tenants in common; but such grandchildren
and their descendants, shall inherit only such share as their parents
respectively would have inherited if living. This rule may be illustrated by the
following example: 1. Suppose Peter, the ancestor, had two children; John, dead,
(represented in the following diagram by figure 1,) and Maria, living (fig. 2);
John had two children, Joseph, living, (fig. 3,) and Charles, dead (fig. 4);
Charles had two children, Robert, living, (fig. 5,) and James, dead (fig. 6.);
James had two children, both living, Ann, (fig. 7,) and William, (fig. 8.)
Peter (0) the ancestor. - È¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸Ø - -
(1) John (2) Maria - È¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸Ø - - (3) Joseph (4) Charles -
È¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸Ø - - (5) Robert (6) James - È¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸Ø - -
(7) Ann (8) William
In this case Maria would inherit one-half; Joseph, the son of John, one-half
of the half, or quarter of the whole; Robert, one-eighth of the whole; and Ann
and William, each one-sixteenth of the whole, which they would hold as tenants
in common in these proportions. This is called inheritance per stirpes, by
roots, because the heirs take in such portions only as their immediate ancestors
would have inherited if living.
6. - 3. When the owner of land dies without lawful issue, leaving parents, it
is the rule in some of the states, that the inheritance shall. ascend to them,
first to the father, and then to the mother, or jointly to both, under certain
regulations prescribed by statute.
7. - 4. When the intestate dies without issue or parents, the estate descends
to his brothers and sisters and their representatives. When there are such
relations, and all of equal degree of consanguinity to the intestate, the
inheritance descends to them in equal parts, however remote from the intestate
the common degree of consanguinity may be. When all the heirs are brothers and
sisters, or all of them nephews and nieces, they take equally. When some are
dead who leave issue, and some are living, then those who are living take the
share they would have taken if all had been living, and the descendants of those
who are dead inherit only the share which their immediate parents would have
received if living. When the direct lineal descendants stand in equal degrees,
they take per capita, by the head, each one full share; when, on the contrary,
they stand in different degrees of consanguinity to the common ancestor, they
take per stirpes, by roots, by right of representation. It is nearly a general
rule, that the ascending line, after parents, is postponed to the collateral
line of brothers and sisters. Considerable difference exists in the laws of the
several states, when the next of kin are nephews and nieces, and uncles and
aunts claim as standing in the same degree. In many of the states, all these
relations take equally as being next of kin; this is the rule in the states of
New Hampshire, Vermont, (subject to the claim of the males to a double portion
as above stated,) Rhode Island, North Carolina, and Louisiana. In Alabama,
Connecticut, Delaware, Georgia, Indiana, Illinois, Kentucky, Maine, Maryland,
Massachusetts, Mississippi, Missouri, New Jersey, New York, Ohio, Pennsylvaaia,
South Carolina, Tennessee, and Virginia, on the contrary, nephews and nieces
take in exclusion of uncles and aunts, though they be of equal degree of
consanguinity to the intestate. In Alabama, Connecticut, Georgia, Maryland, New
Hampshire, Ohio, Rhode Island, and Vermont, there is no representation among
collaterals after the children of brothers and sisters in Delaware, none after
the grandchildren. of brothers and sisters. In Louisiana, the ascending line
must be exhausted before the estate passes to collaterals, Code, art. 910. In
North Carolina, claimants take per stirpes in every case, though they stand in
equal degree of consanguinity to the common ancestor. As to the distinction
between whole and half blood, vide Half blood.
8. - 5. Chancellor Kent lays it down as a general rule in the American law of
descent, that when the intestate has left no lineal descendants, nor parents,
nor brothers, nor sisters, or their descendants, that the grandfather takes the
estate, before uncles and aunts, as being nearest of kin to the intestate.
9. - 6. When the intestate dies leaving no lineal descendants, nor parents,
nor brothers, nor sisters, nor any of their descendants, nor grand parents, as a
general rule, it is presumed, the inheritance descends to the brothers and
sisters, of both the intestate's parents, and to their descendants, equally.
When they all stand in equal degree to the intestate, they take per capita, and
when in unequal degree, per stirpes. To this general rule, however, there are
sligbt variations in some of the states, as, in Now York, grand parents do not
take before collaterals.
10. - 7. When the inheritance came to the intestate on the part of the
father, then the brothers and sisters of the father and their descendant's shall
have the preference, and, in default of them, the estate shall descend to the
brothers and sisters of the mother, and their descendants and where the
inheritance comes to the intestate on the part of his mother, then her brothers
and sisters, and their descendants, have a preference, and in default of them,
the brothers and sisters on the side of the father, and their descendants,
inherit. This is the rule in Connecticut, New Jersey, New York, North Carolina,
Ohio, Rhode island, Tennessee, and Virginia. In Pennsylvania, it is provided by
act of assembly, April 8, 1833, that no person who is not of the blood of the
ancestors or other relations from whom any real estate descended, or by whom it
was given or devised to the intestate, shall in any of the cases before
mentioned, take any estate of inheritance therein, but such real estate subject
to such life estate as may be in existence by virtue of this act, shall pass to
and vest in such other persons as would be entitled by this act, if the persons
not of the blood of such ancestor, or other relation, had never existed, or were
dead at the decease of the intestate. In some of the states there is perhaps no
distinction as to the descent, whether they have been acquired by purchase or by
descent from an ancestor.
11. - 8. When there is a failure of heirs under the preceding rules, the
inheritance descends" to the remaining next of kin of the intestate, according
to the rules in the statute of distribution of the personal estate, subject to
the doctrine in the preceding rules in the different states as to the half
blood, to ancestral estates, and as to the equality of distribution. This rule
prevails in several states, subject to some peculiarities in the local laws of
descent, which extend to this rule.
12. It is proper before closing this article, to remind the reader, that in
computing the degrees of consanguinity, the civil law is followed generally in
this country, except in Norrh Carolina, where the rules of the common law in
their application to descents are adopted, to ascertain the degree of
consanguinity. Vide the articles Branch; Consanguinity; Degree; Line.
DESCRIPTIO PERSONAE. Description of the person. In wills, it
frequently happens, that the word heir is used as a descriptio personae; it is
then a sufficient designation of the person.
DESCRIPTION. A written account of the state and condition of personal
property, titles, papers, and the like. It is a kind of inventory, (q. v.) but
is more particular in ascertaining the exact condition of the property, and is
without any appraisement of it.
2. When goods are found in the possession of a person accused of stealing
them, a description ought to be made of them. Merl. Rep. h. t.
3. A description is less perfect than a definition. (q. v.) It gives some
knowledge of the accidents and qualities of a thing; for example, plants,
fruits, andanimals, are described by their shape, bulk, color, and the like
accidents. Ayl. Pand. 60.
4. Description may also be of a person, as description of a legatee. 1 Roper
on Leg. chap. 2.
DESERTER. One who abandons his post; as, a soldier who abandons the
public service without leave; or a sailor who abandons a ship when he has
engaged to serve.
DESERTION, crim. law. An offence which consists in the abandonment of
the public service, in the army or navy, without leave.
2. The Act of March 16, 1802, s. 19, enacts, that if any non-commissioned
officer, musician, or private, shall desert the service of the United Staies, he
shall, in addition to the penalties mentioned in the rules and articles of war,
be liable to serve for and during such period as shall, with the time he may
have served previous to his desertion, amount to the full term of his
enlistment; and such soldier shall and may be tried by a court-martial, and
punished, although the term of his enlistment may have elapsed previous to his
being apprehended or tried.
3. By the articles of war, it is enacted, that "any non-commissioned officer
or soldier who shall, without leave from his commanding officer, absent himself
from his troop, company, or detachment, shall, upon being convicted thereof, be
punished, according to the nature of his offence, at the discretion of a
court-martial." Art. 21.
4. By the articles for the government of the navy, art. 16, it is enacted,
that "if any person in the navy shall desert to an enemy, or rebel, he shall
suffer death;" and by art. 17, "if any person in the navy shall desert, or shall
entice others to desert, he shall suffer death, or such other punishmemt as a
court-martial shall adjudge."
DESERTION, torts. The act by which a man abandons his wife and
children, or either of them.
2. On proof of desertion, the courts possess the power to grant the 'Wife, or
such children as have been deserted, alimony (q. v.)
DESERTION, MALICIOUS. The act of a hushand or wife, in leaving a
consort, without just cause, for the purpose of causing a perpetual separation.
Vide Abandonment, malicious.
DESERTION OF SEAMEN, contracts. The abandonment, by a sailor, of a
ship or vessel, in which he engaged to perform a voyage, before the expiration
of his time, and without leave.
2. Desertion, without just cause, renders the sailor liable, on his shipping
articles, for damages, and will, besides, work a forfeiture of his wages
3 Kent, Com. 155. It has been decided, in England, that leaving the ship
before the completion of the voyage is not desertion, in the case, 1. Of the
seaman's entering into the public service, either voluntarily or by impress; and
2. When he is compelled to leave it by the inhuman treatment of the captain. 2
Esp. R. 269; 1 Bell's Com. 514, 5th ed.; 2 Rob. Adm. R. 232.
DESIGNATIO PERSONAE. The persons described in a contract as being
parties to it.
2. In all contracts, under seal, there must be some designatio personae. In
general, the names of the parties,appear in the body of the deed, "between A B
of, &c., of the one part, and C D of, &c., of the other part," being the
common formula. But there is a sufficient designation and description of the
party to be charged, if his name is written at the foot of the instrument.
3. A deed alleged to have been made between plaintiff and defendant began as
follows: "Tis agreed that a gray nag bought of A B by C D shall run twenty five
miles in two hours for X, In witness whereof, we have hereunto set our hands and
seals." The plaintiff and defendant subscribed their names at the bottom of the
writing, and afterwards sealed and delivered the document as their deed. Held,
that the omission to state the names of the contracting parties in the body of
the instrument, was supplied by the signatures at the bottom, and it
sufficiently appeared whose deed it was. 1 Raym. 2; 1 Salk. 214 2 B. & P.
4. When a person is described in the body of the instrument by the name of
James, and he signs the name of John, on being sued by the latter name he cannot
deny it. 3 Taunt. 505; Cro. Eliz. 897, n. (a.) Vide 11 Ad. & Ell. 594; 3 P.
& D. 271.
DESIGNATION, wills. The expression used by a testator, instead of the
name of the person or the thing he is desirous to name; for example, a legacy
to. the eldest son of such a person, would be a designation of the legatee. Vide
1 Rop. Leg. ch. 2.
2. A bequest of the farm which the testator bought of such a person; or of
the picture he owns, painted by such an artist, would be a designation of the
thing devised or bequeathed.
DESPACHEURS. The name given, in some countries, to persons appointed
to settle cases of average. Ord. Hamh. t. 21, art. 10.
DESPATCHES. Official communications of official Persons, on the
affairs of government.
2. In general, the bearer of despatches is entitled to all the facilities
that can be given him, in his own country, or in a neutral state; but a neutral
cannot, in general, be the bearer of despatches of one of the belligerent
parties. 6 C. Rob. 465 see 2 Dodson, 54; Edw. 274.
DESPERATE. Of which there is no hope.
2. This term is used frequently, in making an inventory of a decedent's
effects, when a debt is considered so bad that there is no hope of recovering
it. It is then called a desperate debt, and, if it be so returned, it will be
prima facie, considered as desperate. See Toll. Ex. 248 2 Williams, Ex. 644; 1
Chit. Pr. 580. See Sperate.
DESPITUS. This word signifies, in our ancient law books, a
contemptible person. Flet. lib. 4, c. 5, §4. The English word despite is derived
from it, which signifies spite or contempt against one's will - defiance with
contempt, or contempt of opposition.
DESPOT. This word, in its most simple and original acceptation,
signifies master and supreme lord; it is synonymous with monarch; but, taken in
bad part, as it is usually employed, it signifies a tyrant. In some states,
despot is the title given to the sovereign, as king is given in others. Encyc.
DESPOTISM, government. That abuse of government, where the sovereign
power is not divided, but united in the hands of a single man, whatever may be
his official title. It is not, properly, a form of government. Toull. Dr. Civ.
Fr. tit. prel. n. 32; Rutherf Inst. b. 1, c. 20, §1. Vide Tyranny; Tyrant.
DESRENABLE, Law French. Unreasonable. Britt. c. 121.
DESTINATION. The application which the testator directs shall be made
of the legacy he gives; for example, when a testator gives to a hospital a sum
of money, to be applied in erectiug buildings, he is said to give a destination
to the legacy. Destination also signifies the intended application of a thing.
Mill stones, for example, taken out of a mill to be picked, and to be returned,
have a destination, and are considered as real estate, although detached from
the freehold. Heir looms, (q. v.) although personal chattels, are, by their
destination, considered real estate and money agreed or directed to be laid out
in land, is treated as real property. Newl. on Contr. ch. 8; Fonbl. Eq. B. 1, c.
6, §9; 3 Wheat. R. 577; 2 Bell's Com. 2; Ersk. Inst. 2 §14. Vide Mill.
2. When the owner of two adjoining houses uses, during his life, the property
in such a manner as to make one property subject to the other, and devises one
property to one person, and the other to another, this is said not to be an
easement or servitude, but a destination by the former owner. Lois des Bat.
partie 1, c. 4, art. 3, §3; 5 Har. & John. 82. See Dedication.
DESTINATION, com. law. The port at which a ship is to end her voyage
is called her port of destination. Pard. n. 600.
DESUETUDE. This term is applied to laws which have become obsolete.
DETAINER. 1. The act of keeping a person against his will, or of
keeping goods or property. All illegal detainers of the person amount to false
imprisonment, and may be remedied by habeas corpus.
2. - 2. A detainer or detention of goods is either lawful or unlawful; when
lawful, the party having possession of them cannot be deprived of it. The
detention may be unlawful, although the original taking was lawful; as when
goods were distrained for rent, and the rent was -afterwards paid; or when they
'Were pledged, and the money borrowed, and interest were afterwards paid; in
these, and the like cases, the owner should make a demand, (q. v.) and if the
possessor refuse to restore them, trover, detinue, or replevin will lie, at the
option of the plaintiff.
3. - 3. There may also be a detainer of land and this is either lawful and
peaceable, or unlawful and forcible. 1. The detainer is lawful where the entry
has been lawful, and the estate is held by virtue of some right. 2. It is
unlawful and forcible, where the entry has been unlawful, and with force, and it
is retained, by force, against right; or even when the entry has been peaceable
and lawful, if the detainer be by force, and against right; as, if a tenant at
will should detain with force, after the will has determined, he will be guilty
of a forcible detainer. Hawk. P. C. ch. 64, s. 22; 2 Chit. Pr. 288; Com. Dig, B.
2; 8 Cowen, 216; 1 Hall, 240; 4 John. 198; 4 Bibb, 501. A forcible detainer is a
distinct offence from a forcible entry. 8 Cowen, 216. See Forcible entry and
4. - 4. A writ or instrument, issued or made by a competent officer,
authorizing the keeper of a prison to keep in his custody a person therein
named. A detainer may be lodged against. one within the walls of a prison, on
what account soever he is there. Com. Dig. Process, E 3 b.