DOMINANT. estates. In the civil law, this term is used to signify the
estate to which a servitude or easement is due from another estate; for example,
where the owners of the estate, Blackacre, have a right of way or passage over
the estate Whiteacre, the former is called the dominant, and the latter the
servient estate. Bouv. Inst. n. 1600.
DOMINION. The right of the owner of a thing to use it or dispose of it
at his pleasure. See Domain; 1 White's New Coll. 85; Jacob's Intr. 39.
DOMINIUM, empire, domain. It is of three kinds: 1, Directum dominium,
or usufructuary dominion; dominium utile, as between landlord and tenenant; or,
2. It is to full property, and simple property. The former is such as belongs to
the cultivator of his own estate; the other is the property of a tenant. 3.
Dominion acquired by the law of nations, and dominion acquired by municipal law.
By the law of nations, property may be acquired by occupation, by accession, by
commixtion, by use or the pernancy of the usufruct, and by tradition or
delivery. As to the dominium eminens, the right of the public, in cases of
emergency, to seize upon the property of individuals, and convert it to public
use, and the right of individuals, in similar cases, to commit a trespass on the
persons and properties of others, see the opinion of chief justice McKean in
Respublica v. Sparhawk, 1 Dallas, 362, and the case of Vanhorn v. Dorrance, 2
Dall. Rep. 304. See, further, as to dominium eminens, or the right of the
community to take, at a fair price, the property of individuals for public use,
the supplement of 1802 to the Pennsylvania compromising law, respecting the
Wyoming controversy; also, Vattel, l. 1, c. 20, §§244-248; Bynkershoek, lib. 2,
c. 15; Rousseau's Social Compact, c. 9; Domat; l. 1, tit. 8, §l, p. 381, fol.
ed.; the case of a Jew, whom the grand seignior was compelled by the mufti to
purchase out, cited in Lindsay et al. v. The Commissioners, 2 Bay. S. Car. Rep.
41. See Eminent domain.
DOMITAE. Subdued, tame,. not wild; as, animals domitae, which are tame
or domestic animals.
DOMO REPARANDO. the name of an ancient writ in favor of a party who
was in danger of being injured by the fall, of his neighbor's house.
DONATIO MORTIS CAUSA, contracts, legacies. A gift in prospect of
death. When a person in sickness, apprehend ing his dissolution near, delivers,
or causes to be delivered to another, the possession of any personal goods, to
keep as his own, in case of the donor's decease. 2 Bl. Com. 514 see Civ. Code of
Lou. art. 1455.
2. The civil law defines it to be a gift under apprehension of death; as,
when any thing is given upon condition that if the donor dies, the donee shall
possess it absolutely, or return it if the donor should survive, or should
repent of having made the gift, or if the donee should die before the donor. 1
Miles' Rep. 109-117.
3. Donations mortis causa, are now reduced, as far as possible, to the
similitude of legacies. Inst. t. 7, De Donationibus. See 2 Ves. jr. 119; Smith
v. Casen, mentioned by the reporter at the end of Drury v. Smith, 1 P. Wms. 406;
2 Ves. sen. 434; 3 Binn. 866.
4. With respect to the nature of a donatio mortis causa, this kind of gift so
far resembles a legacy, that it is ambulatory and incomplete during the donor's
life; it is, therefore, revocable by him; 7 Taunt. 231; 3 Binn. 366 and subject
to his debts upon a deficiency of assets. 1 P. Wms. 405. But in the following
particulars it differs from a legacy: it does riot fall within an
administration, nor require any act in the executors to perfect a title in the
donee. Rop. Leg. 26.
5. The following circumstances are required to constitute a good donatio
mortis causa. 1st. That the thing given be personal property; .3 Binn. 370 a
bond; 3 Binn. 370; 3 Madd. R. 184; bank notes; 2 Bro. C. C. 612; and a check
offered for payment during the life of the donor, will be so considered. 4 Bro.
C. C. 286.
6. - 2d. That the gift be made by the donor in peril of death, and to take
effect only in case the giver die. 3 Binn. 370 4 Burn's Ecc. Law, 110.
7. - 3d. That there be an actual delivery of the subject to, or for the
donee, in cases where such delivery can be made. 3 Binn. 370; 2 Ves. jr. 120.
See 9 Ves. 1 , 7 Taunt. 224. But such delivery can be made to a third person for
the use of the donee. 3 Binn. 370:
8. It is an unsettled question whether such kind of gift appearing in
writing, without delivery of the subject, can be supported. 2 Ves. jr. 120. By
the Roman and civil law, a gift mortis causa might be made in writing. Dig. lib.
39, t. 6, 1. 28 2 Ves. sen. 440 1 Ves. sen. 314.
9. In Louisiana, no disposition mortis causa, otherwise than by last will and
testament, is allowed. Civ. Code, art. 1563. See, in general, 1 Fonb. Tr. Eq.
288, n. (p); Coop. Just. 474, 492; Civ. Code of Lo. B. 3, 2, c. 1 and 6. Vin.
Abr. Executors, Z 4; Bac. Abr. Legacies, A; Supp. to Ves. jr. vol. 1, p. 143,
170; vol. 2, 97. 215; Rop. Leg: oh. 1; Swinb. pt. 1, s. 7 1 Miles, 109.
DONATION, contracts. The act by which the owner of a thing,
voluntarily transfers the title and possession of the same, from himself to
another person, without any consideration; a gift. (q. v.)
2. A donation is never perfected until it is has been accepted, for the
acceptance (q. v.) is requisite to make the donation complete. Vide Assent, and
Ayl. Pand. tit. 9 Clef des Lois Rom. h. t.
DONATION INTER Vivos, contracts. A contract which takes place by the
mutual consent, of the giver, who divests himself of the thing given in order to
transmit the title of it to the donee gratuitously, and the donee, who accepts
the thing and acquires a legal title to it.
2. This donation takes place when the giver is not in any immediate
apprehension of death, which distinguishes it from a donatio mortis causa. (q.
v.) 1 Bouv. Inst. n. 712. And see Civ. Code of Lo. art. 1453 Justin. Inst. lib.
2, tit. 7, §2 Coop. Justin. notes 474-5 Johns. Dig. N. Y. Rep. tit. Gift.
DONEE. He to whom a gift is made, or a bequest given; one who is
invested with a power to select an appointee, he is sometimes called an
appointer. DONIS, STATUTE DE. The stat. West. 2, namely, 13 Edw. I. , c. 1,
called the statute de donis conditionalibus. This statute revives, in some sort,
the ancient feudal restraints, which were originally laid on alienations. 2 Bl.
DONOR. He who makes a gift. (q. v.)
DOOM. This word formerly signified a judgment. T. L.
DORMANT PARTNER. One who is a participant in the profits of a firm,
but his name being concealed, his interest is not apparent. See Partners,
DOOR. The place of usual entrance in a house, or into a room in the
2. To authorize the breach of an outer door in order to serve process, the
process must be of a criminal nature; and even then a demand of admittance must
first have been refused. 5 Co. 93; 4 Leon. 41; T. Jones, 234; 1 N. H. Rep. 346;
10 John. 263; 1 Root, 83 , 134; 21 Pick. R. 156. The outer door may also be
broken open for the purpose of executing a writ of habere facias. 5 Co. 93; Bac.
Ab. Sheriff, N. 3.
3. An outer door cannot in general be broken for the purpose of serving civil
process; 13 Mass. 520; but after the defendant has been arrested, and he takes
refuge in his own house, the officer may justify breaking an outer door to take
him. Foster, 320; 1 Roll. R. 138; Cro. Jac. 555.; 10 Wend. 300; 6 Hill, N. Y.
Rep. 597. When once an officer is in the house, he may break open an inner door
to make an arrest. Kirby, 386 5 John. 352; 17 John. 127, See 1 Toull. n. 214, p.
DOT. This French word is adopted in Louisiana. It signifies the
fortune, portion, or dowry, which a woman brings to her hushand by the marriage.
6 N. S. 460. See Dote; Dowry.
DOTAL PROPERTY. By the civil law, and in Louisiana, by this term is
understood that property, which the wife brings to the hushand to assist him in
bearing the expenses of the marriage establishment. Civil Code of Lo. art. 2315.
Vide Extradotal property.
DOTATION, French law. The act by which the founder of a hospital, or
other charity, endows it with property to fulfil its destination.
DOTE, Span. law. The property which the wife gives to the hushand on
account of marriage.
2. It is divided into adventitia and profectitia; the former is the dote
which the father or grandfather, or other of the ascendants in the direct
paternal line, give of their own property to the hushand; the latter
(adventitia) is that property which the wife gives to the hushand, or that which
is given to him for her by her mother, or her collateral relations, or a
stranger. Aso & Man. Inst. B. 1, t. 7, c . 1, §i.
DOTE ASSIGNANDO, Eng. law. The name of a writ which lay in favor of a
widow, when it was found by office that the king's tenant was seised of
tenements in fee or fee tail at the time of his death, and that he held of the
king in chief.
DOTE UNDE NIHIL HABET. The name of a writ of dower which a widow sues
against the tenant, who bought land of her hushand in his lifetime, and in which
her dower remains, of which he was seised solely in fee simple or fee tail. F.
N. B. 147; Booth, Real Act. 166. See Dower unde nihil habet
DOUBLE. Twofold; as, double cost; double insurance; double plea.
DOUBLE COSTS practice. According to the English law, when double costs
are given by the statute, the term is not to be understood, according to its
literal import, twice the amount of single costs, but in such case the costs are
thus calculated. 1. the common costs; and, 2. Half of the common costs. Bac. Ab.
Costs, E; 2 Str. 1048. This is not the rule in New York, nor in Pennsylvania. 2
Dunl. Pr. 731; 2 Rawle's R. 201.
2. In all cases where double or treble costs are claimed, the party must
apply to the court for them before he can proceed to the taxation, otherwise the
proceeding will be set aside as irregular. 4 Wend. R. 216. Vide Costs; and
DOUBLE ENTRY. A term used among merchants to signify that books of
account are kept in such a manner that they present the debit and credit of
every thing. The term is used in contradistinction to single entry.
2. Keeping books by double entry is more exact, because, presenting all the
active and all the passive property of the merchant, in their respective
divisions, there cannot be placed an article to, an account, which does not pass
to some correspondent account elsewhere. It presents a perfect, view of each
operation, and, from the relation and comparison of the divers accounts, which
always keep pace with each other, their correctness is proved; for every
commercial operation is necessarily composed of two interests, which are
connected together. The basis of this mode of keeping books, and the only
condition required, is to write down every transaction and nothing else; and to
make no entry without putting it down to the two agents of the operation. By
this means a merchant whose transactions are extensive, comprising a great
number of subjects, is able to known not only the general situation of his
affairs, but also the situation of each particular operation. For example, when
a merchant receives money, his cash account becomes debtor, and the person who
has paid it, or the merchandise sold, is credited with it; when he pays money,
the cash account, is credited, And the merchandise bought, or the obligation
paid, is debited with it. See Single entry.
DOUBLE INSURANCE, contracts. Where the insured makes, two insurances
on the same risk, and the same interest. 12 Mass. 214. It differs from
re-insurance in this, that it is made by the insured, with a view of receiving a
double satisfaction in case of loss; whereas a re-insurance is made by a former
insurer, his executors or assigns, to protect himself and his estate from a risk
to which they were liable by the first insurance. The two policies are
considered as making but one insurance. They are good to the extent of the value
of the effects put in risk; but the insured shall not be permitted to recover a
double satisfaction. He can sue the underwriters on both the policies, but he
can only recover the real amount of his loss, to which all the underwriters on
both shall contribute in proportion to their several subscriptions. Marsh. Ins.
B. 1, c. 4, s. 4; 5 S. & R. 473; 4 Dall. 348; 1 Yeates, 161; 9 S. & R.
103; 1 Wash . C. C. Rep. 419; 2 Wash. C. C. Rep. 186; 2 Mason, 476.
DOUBLE PLEA. The alleging, for one single purpose, two or more
distinct grounds of defence, when one of them would be as effectual in law, as
both or all. Vide Duplicity.
DOUBLE VOUCHER. A common recovery is sometimes suffered with double
voucher, which occurs when the person first vouched to warranty, comes in and
vouches over a third person. See a precedent, 2 Bl. Com. Appx. No. V. p. xvii.;
2. The neecessity for double voucher arises when the tenant in tail is not
the tenant in the writ, but is tenant by warranty; that is, where he is vouched,
and comes in and confesses the warranty. Generally speaking, to accomplish this
result, a previous conveyance is necessary, by the tenant in tail, to a third
person, in order to make such third person tenant to a writ of entry. Preston on
DOUBLE WASTE. When a tenant, bound to repair, suffers a house to be
wasted, and then unlawfully fells timber to repair it, he is said to commit
double waste. Co. Litt. 53. See Waste.
DOUBT. The uncertainty which exists in relation to a fact, a
proposition, or other thing; or it is an equipoise of the mind arising from an
equality of contrary reasons. Ayl. Pand. 121.
2. The embarrassing position of a judge is that of being in doubt, and it is
frequently the lot of the wisest and most enlightened to be in this condition,
those who have little or no experience usually find no difficulty in deciding
the most, problematical questions.
3. Some rules, not always infallible, have been adopted in doubtful cases, in
order to arrive at the truth. 1. In civil cases, the doubt ought to operate
against him, who having it in his power to prove facts to remove the doubt, has
neglected to do so. In cases of fraud when there is a doubt, the presumption of
innocence (q. v.) ought to remove it. 2. In criminal cases, whenever a
reasonable doubt exists as to the guilt of the accused that doubt ought to
operate in his favor. In such cases, particularly, when the liberty, honor or
life of an individual is at stake, the evidence to convict ought to be clear,
and devoid of all reasonable doubt. See Best on Pres. §195; Wils. on Cir. Ev.
26; Theory of Presumptive Proof, 64; 33 How. St. Tr. 506; Burnett, Cr. Law of
Scotl. 522; 1 Greenl. Ev. §1 D'Aguesseau, Oeuvres, vol. xiii. p. 242; Domat,
liv. 3, tit. 6.
4. No judge is presumed to have any doubt on a question of law, and he cannot
therefore refuse to give a judgment on that account. 9 M. R. 355; Merlin,
Repert. h. t.; Ayliffe's Pand. b. 2, t. 17; Dig. lib. 34, t. 5; Code, lib. 6, t.
38. Indeed, in some countries; in China, for example, ignorance of the law in a
judge is punishable with blows. Penal Laws of China, B. 2, s. 61.
DOVE. The name of a well known bird.
2. Doves are animals ferae naturae, and not the subject of larceny, unless
they are in the owner's custody; as, for example, in a dove-house, or when in
the nest before they can fly. 9 Pick. 15. See Whelp.
DOWAGER. A widow endowed; one who has a jointure.
2. In England, this is a title or addition given to the widows of princes,
dukes, earls, and other noblemen.
DOWER. An estate for life, which the law gives the widow in the third
part of the lands and tenements, or hereditaments of which the hushand, was
solely seised, at any time during the coverture, of an estate in fee or in tail,
in possession, and to which estate in the lands and tenements, the issue, if
any, of such widow might, by possibility, have inherited. Watk. Prin. Con. 38;
Litt. §36; 7 Greenl. 383. Vide Estate in Dower. This is dower at common law.
2. Besides this, in England there are three other species of dower now
subsisting; namely, dower by custom, which is, where a widow becomes entitled to
a certain portion of her hushand's lands in consequence of some local or
particular custom, thus by the custom of gavelkind, the widow is entitled to a
moiety of all the lands and tenements, which her hushand held by that
3. Dower ad ostium ecclesiae, is, when a man comes to the church door to be
married, after troth plighted, endows his wife of a certain portion of his
4. Dower ex assensu patris, was only a species of dower ad ostium ecclesice,
made when the hushand's father was alive, and the son, with his consent
expressly given, endowed his wife, at the church door, of a certain part of his
5. There was another kind, de la plus belle, to which the abolition of
military tenures has put an end. Vide Cruise's Dig. t. 6, c. 1; 2 Bl. Com. 129;
15 Serg. & Rawle, 72 Poth. Du Douaire.
6. Dower is barred in various ways; 1. By the adultery of the wife, unless it
has been condoned. 2. By a jointure settled upon the wife. 2 Paige, R. 511. 3.
By the wife joining her hushand in a conveyance of the estate. 4. By the hushand
and wife levying a fine, or suffering a common recovery. 10 Co. 49, b Plowd.
504. 5. By a divorce a vinculo matrimonii. 6. By an acceptance, by the wife, of
a collateral satisfaction, consisting of land, money, or other chattel interest,
given instead of it by the hushand's will, and accepted after the hushand's
death. In these cases she has a right to elect whether to take her dower or the
bequest or devise. 4 Monr. R. 265; 5 Monr. R. 58; 4 Desaus. R. 146; 2 M'Cord,
Ch. R. 280; 7 Cranch, R. 370; 5 Call, R. 481; 1 Edw. R. 435 3 Russ. R. 192; 2
Dana, R. 342.
7. In some of the United States, the estate which the wife takes in the lands
of her deceased hushand, varies essentially from the right of dower at common
law. In some of the states, she takes one-third of the profits, or in case of
there being no children, one half. In others she takes the same right in fee,
when there are no lineal descendants; and in one she takes two-thirds in fee,
when there are no lineal ascendauts or descendants, or brother or sister of the
whole or half blood. 1 Hill. Ab. 57, 8; see Bouv. Inst. Index, h. t.
DOWER UNDE NIHIL HABET. This is a writ of right in its nature. It lies
only against the tenant of the freehold. 12 Mass. 415 2 Saund. 43, note 1; Hen.
& Munf. 368 F. N. B. 148. It is a writ of entry, where the widow is deforced
of the whole of her dower. Archb. Plead. 466, 7. A writ of right of dower lies
for the whole or a part. 1 Rop. on Prop.430; Steph. on Pl. 10. n; Booth, R. A.
166; Glanv. lib. 4. c. 4, 5; 9 S. & R. 367. If the heir is fourteen years of
age, the writ goes to him, if not, to his guardian. If the land be wholly
aliened, it goes to the tenant, F. N. B. 7, or pernor of the profits, who may
vouch the heir. If part only be aliened, the writ goes to the heir or guardian.
The tenant cannot impart; 2 Saund. 44, n;. 1 Rop. on Prop. 430; the remedy being
speedy. Fleta, lib. 5. o. 25, §8, p. 427. He pleads without defence. Rast. Ent.
232, b. lib. Int. fo. 15; Steph. Pl. 431 Booth, 118; Jackson on Pl. 819.
DOWRESS. A woman entitled to dower.
2. In order to entitle a woman to the rights of a dowress at common law, she
must have been lawfully married, her hushand must be dead, he must have been
seised, during the coverture, of an estate subject to dower. Although the
marriage may be void able, if it is not absolutely void at his death, it is
sufficient to support the rights of the dowress. The hushand and wife must have
been of sufficient age to consent. 3. At common law an alien could not be
endowed, but this rule has been changed in several states. 2 John. Cas. 29; 1
Harr. & Gill, 280.; 1 Cowen, R. 89; 8 Cowen, R. 713.
4. The dowress' right may be defeated when her hushand was not of right
seised of an estate of inheritance; as, for example, dower will be defeated upon
the restoration of the seisin under the prior title in the case of defeasible
estates, as in case of reentry for a condition broken, which abolishes the
intermediate seisin. Perk. s. 311, 312, 317.
DOWRY. Formerly applied to mean that which a woman brings to her
hushand in marriage; this is now called a portion. This word is sometimes
confounded with dower. Vide Co. Litt. 31; Civ. Code of Lo. art. 2317; Dig. 23,
3, 76; Code, 5, 12, 20.
DRAGOMAN. An interpreter employed in the east, and particularly at the
2. The Act of Congress of August 26, 1842, c. 201, s. 8, declares that it
shall not be lawful for the president of the United States to allow a dragoman
at Constantinople, a salary of more than two thousand five hundred dollars.
DRAIN. Conveying the water from one place to another, for the purpose
of drying the former
2. The right of draining water through another map's land. This is an
easement or servitude acquired by grant or prescription. Vide 3 Kent, Com. 436 7
Mann. & Gr. 354; Jus aguaeductus; Rain water; Stillicidium.
DRAwhACK, com. law. An allowance made by the government to merchants
on the reexportation of certain imported goods liable to duties, which, in some
cases, consists of the whole; in others, of a part of the duties which had been
paid upon the importation. For the various acts of congress which regulate
drawhacks, see Story, L. U. S. Index, h. t.
DRAWEE. A person to whom a bill of exchange is addressed, and who is
requested to pay the amount of money therein mentioned.
2. The drawee may be only one person, or there may be several persons. The
drawee may be a third person, or a man may draw a bill on himself. 18 Ves. jr.
69; Carth. 509; 1 Show. 163; 3 Burr. 1077.
3. The drawee should accept or refuse to accept the bill at furthest within
twenty-four hours after presentment. 2 Smith's R. 243; 1 Ld. Raym. 281 Com. Dig.
Merchant, F 6; Marius, 15; but it is said the holder is entitled. to a definite
answer if the mail go out in the meantime. Marius' 62. In case the bill has been
left with the drawee for his acceptance, he will be considered as having
accepted it, if he keep the bill a great length of time, or do any other act
which gives credit to the bill, and induces the holder not to protest it; or is
intended as a surprise upon him, and to induce him to consider the bill as
accepted. Chit. on Bills, 227. When he accepts it, it is his duty to pay it at
DRAWER, contracts. The party who makes a bill of exchange.
2. The obligations of the drawer to the drawee and every subsequent holder
lawfully entitled to the possession, are, that the person on whom he draws is
capable of binding himself by his acceptance that he isto be found at the place
where he is described to reside, if a description be given in the bill; that if
the bill be duly presented to him, he will accept in writing on the bill itself,
according to its tenor, and that he will pay it when it becomes due, if
presented in proper time for that purpose; and that if the drawee fail to do
either, he, the drawer, will pay the amount, provided he have due notice of the
dishonor. 3. The engagement of the drawer of a bill is in all its parts absolute
and irrevocable. 2 H. Bl. 378; 3 B. & P. 291; Poth. Contr. de Change, n. 58;
Chit. Bills, 214, Dane's Ab. h. t.