ions from william c anderson's 1893 law dictionary

rION

unexeshyas been Ir e money ion

nent of of an

ho hl8 in disshylined a 1 from l credshy

amand fsteriaJ judg-

Id apshyIII t for him 3

e recshy

1W to

lW middotit ment 6

ded to goods Dossesmiddot

which e rule ve to beshy

mentj been I

may

6 re-

pershyproshy

rou

1 J ~so

S

v

EXECUTION 431 EXECUTOI

cause to be made out of the goods or lands or both the amount of the claim

Applies to p~rsonlty realty chattels real and chases in possession May be concurrent with an attachment in executien A single fieri facias mayexshyhaust the persenalty of the debtor and an alias fieri facias blgt issued to sell his realty But an alias fieri facias may denQte a second or new levy upen either personalty Qr realty A sale of realty upon a single fie facias may also be by express autherizatien from the debtorl

Levari facias (abbreviated lev fa) that you cause be levied -out of the land specishyfied Used to collect a charge upon land as a mortgage mechanics lien municipal claim taxes and the like

May issue after a scire facias has been determined in favor of the creditor as after judgment on a scire facias upen a mortgage See AnDampID

Venditioni eaJponas (abbreviated vend ex) that you expose for sale - realty embraced in a levy made under a preceding fie1-i facias and condemned under proceedings in exshytent q v

Regarded as a completion of a previous execution by which the preperty is appropriated not as an origshyinal or independent preceeding

Attachment-execution Reaches a chose in action money and other property in the hands of a stranger to which the defendant has no present right of possession also called an execution-attachment See ATshyTACH2

Ltberari facias that you cause to be deshylivered - to the creditor such portion of the premises not sold under a previous levari facias as will satisfy the claim according to the vpounduation of the inquest to hold ~s Us own free tenement See EXTENT 2

Elegit he has chosen Delivers ohattels to the creditor at an appraised value and if they are not sufficient then one-half of the defendants freehold till the rents and p fits pay the debt

Then plaintill elected this writ rather than a fieri facias or a levari facias which last writs gave sctisfactlon only to the extent of chattels and present prOfits of lands Authorized by statute of Westminshyster 2 c 18 Prior thereto possesslor of land could not be taken the feudal principle I ing that service was not transferable to a stranger The writ is still in use enlarged or narrowad in operation 3

See 3 BI Com 417 bull Mitchell 11 St Maxents Lessee 4 Wall 243 (1866) 1 aBI Com 418 2 id 161 4 Kent 431 43B Hutchinshy

Bon 11 Grubbs 80 Va 254 (1885) 3 Ala 561 10 Gratt 082

Mandamusmiddot execution Enforces payment of a judgment against a municipality See further MANDARE Mandamus

Sequest7-ation Reaches the revenues of a corporation a life-estate or the property of an absconding debtor See SEQUESTRATION 2

Capias ad sati9faciendum that you take for satisfying Process under which the ofshyficer arrests and detains the debtor till the judgment is satisfied See CAPERE Capias

Testatum execution certifies that the debtor has property in another coucty Isshysues into another county than that in which the record remains See TESTIS TestatullJ

Writs and precesses of execution are those which point out speCifically the thing to be se~ed and those which cemmand the officer to make Or levy certain sums of money out of the property of a party named In the first class the officer has no discretion but must do preCisely what he is commanded Therefore if the court had jurisdictien to issue the writ it is a protecshytion to the officer In the second class the efficer must determine at his own rlsk whether the property he propeses to seize Is legally liable to be taken For a mls take he is responsible to the extent of the injury As to this he exercises judgment and discretion - as to who is the Qwner of the property the kind that may be taken and the quantityl

If a writ be sued out of a court ef competent jurisshydiction directing an officer to seize specifically de scribed property as in adIhiralty replevin or ejectmiddot ment cases it is a protection to thA officer when he is sued in trespass for executing it If however it in general terms authorizes him to seize property withmiddot out a specific deSCription he acts at his own risk as regards the ownership of the property I f

See JURTSDICTION 2 COnClllrentj LEVY 2 MINISshy

TERIAL 1 WRIT

EXECUTOR He to whom acotller comshymits by wilt the eX9Cution of his Jast will and tetament3 Feminine form executrix Correhtive testator testatrix

He so closely resembles an administrator that that term will not amount to a substantial misdescripshytion in a deed er prose~on

Acting executor Such executor of two or more as actually performs the duties of the trust

(t General executor An executor whose power is unlimited as to time place or subshymiddotect-matter )Special executor An execshyutor who s~ves for a limited time in a particular place or as to a part of the esta teo

1 Buck 11 Colbath 3 Wall 343-44 (1865) llliller J Sharp v Doyle 102 U S 689 (1880) llliller J 2 Bl Com 503 1 Ga 330 ~5 Md 194 21 Wend 436

60 Barb 175 5 Hun Z1 ~ Humph 458 Sheldon 11 Smith rt7 Mass 35-36 (1867) cases ib4lt11

DENARIUS DEI 342 DEPARTMENT

Demurrer to interrogatory The reashy

son a witness offers for not answering a parshy

ticular question among interrogatories

DENARIUS DEI L Gods penny

money given to the church or to the poor

earnest-money q v DENIAL See DEFENSE 2 DENIZENl An alien born who has obshy

tained ex donatione regis letters-patent to

make him a subject2 Whence denizenize denizenation or denization Sand

denizenship The crown denizenizes parliament conshysents to naturalization

A denizen is in a kind of middle state between an alie and a natWal-born subjectand partakes of both He may take lands by purchase or devise but not by inheritance-for the parent has no inheritable )Iood But since 1870 in England an alien may hold and dispose of property as a natWal-born subject

In South Carolina the status seems to have heen created by law

DENOUNCEMENT In Mexican law

a judicial proceeding equivalent to the inshyquest of office at common law6

DENTIST See CAREMECHANlO rIY-

BIelANDE1~ See ADMISSION 2 DEFEN~ 2

TRAVERSE(( J DEODANDs Any personal chatte

which was the immediate cause of the death

of a rational creature j

The chattel whether an animal or inanimate obshyject was forreited to the king to be applied to religshyIons uses Designed originally as an expiation for the souls of such persons ~s were snatchell away by sudden death u any animal killed a person or if a cart ran over him It was to be forfeited- in part also as pUllisbment for the supposed negligence in the owner If the thing was in motion as a cart with its loading all that moved was forfeited if not in motion then only the pa rt which was the immediate cause of the death It muttered not whether the owner was concerned In the killing or not The right to deodands in time was granted to the lords of manors as a franchise a

Abolished by 9 and 10 Vict (1846) c 62

DEPART See DEPARTURE

DEPARTMENT (Adj Departmental)

The departments of government are the

1 F deinzein a trader middotwithin the privilege of a city franchise deinz wltbin-ffireat

bull 1 Bl Com 874 6 Pet 116 note Websters Dict 1 Bl Com 374 ( 1 Bl Com 374 [Merle v Mathews 26 Cal 477 (1864) L deomiddotdandum given to God bull [1 Bl Com 300 bull 1 Bl Com 300-2

legislative the executive and the judicial

departments In our system it is important that these departshy

ments be kept separate that one be not allowed to

encroach upon the domain of another While a general separation has been observed beshy

tween the different departments so that no clear enshycroachment by one upon the province of the other has been sustained the legislative department when not restrained by constitutionul provisions and a regalu for certain fundamental rights of the citizen which are recognized in this countly as the basis of all govmiddot ernment has acted upon everything within the rangEr of civil government2

The executive business of the general government under a permission rather than a mandate of the Conshystitution is distributed to seven executive departshy

ments of equal grade lministration of the duties of thesC3 respective deshy

pa~ nents is committed directly to a secretary or head who with his principal a8sistants is apmiddot pointed by the President as chief executive with the advice of the Senate

Themiddot departments are designated as of - the inteshyrior justice the navy6 the post-office8 state7 the treasury and war The department of agriculture 10

is of subordinate grade The head of a department is required to exercise

judgment and discretion in administering tbeconcerns of his office He exercises his own judgment in exshypounding the laws and resolutions of Congress under wblch he is to act If he doubts he may rollmiddot on the attorney-general for counsel If the Supreme Court Should cliffer with him as to the construction to be placed upon any of these laws it would pronounce judgment accordingly But the Interference of the courts with the performance of the ordinary duties of the executive departments wo~d be prod$tive of nothing but mischief - such power was never inmiddot tended to be given to them The court by manmiddot damus may direct the doing of a purely min~sterial act but not the exercise of a duty requiring judgment and discretion

The heads of departments are the Presidents aushythorized assistants in the performance of his execushytive duties and their official acts promnlgated in

1 See Mabry v Baxter 11 Heisk 689--90 (1872) bull ffIaynard v Hill 125 U S 205 (1888) As to the inshy

dependence of the departments of government see 21 Am Law Rev 210-27 (1887) cases

bull R S sect 437 Act 3 March 1849 bull R S sect 846 Act 24 Sept 1789 bull R S sect 415 Act 80 April 1798 a R S sect 388 Act 8 lIlay 1794 bull R S sect 1l9 Act 27 July 1789 bull R S sect 233 Act 2 Sept 1789 bull R S sect 214 Act 7 Aug 1789

lOR S sect 520 middotAct 15 May 1862 1l Decatur v Panlding 14 Pet 515-17 (1840) Taney

C J United States v lIfacdaniel 7 id15 (i83S) Kenshydall v United States 12 id 610 (1688) Litchfield v Register and Receiver 9 Wall 577 (1869) Carrick v Lamar 116 U S 426 (1888) cases shy

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35 ADMISSIONDIvilRALTY ADMISSION

lizance II of all ci7il~ jurisdiction savlilg 1 commonmiddotlaw remshynpetent tltgt give it 1

roceeding in rem to common-lawcourt pplicable to enforce sonam though such yo be commenced by

i limits the powersshyegardS cases arising aters connecting said Ssels of twenty tons icensed for the coastr lerce between placesshya jury trial if either

ion is expressly made as may be given by

diction granted by the itrict courts JI

extends to all conshyessentially maritime onds con tracts of afshyconveyance of passenshywharfage agreementsshy

ssels damages by the of materiul-men and

t of ships belonging to ates and the wages of rine torts and injuries other personal injuries lage illegal seizures or cy illegal disposition or he owners of ships conshyrs as to the employment ~ ships cases of salvage

lIltional courts As origshyhe appropliate tribunals eignerso ollisions on the high seas foreigners of diJferent

ges for death by neglishyjurisdiction of the vessel

) courts the instance nH

The same judge presides ~s this double jurisdiction

325 (1868) Tbe Moses Tayshy[ine ib 568 (1866)

lall 569 (ISGG) The Eagle

1877) Clifford J See Iso (1815) Story J 4 Woods

9 Bened 115 (1810) The 1 (1685) ) Pa 1881) 17-18 (1881) cases

A mixed case in admiralcy is a contract which does not depend altogether upon locality as the test of jurisdiction as a contract for supplies a charter shy

party and the like but not a tort begun on land and completed on navigable water nor a policy of insurshyaDce upon a ship and its cargo against marine perils_

The libelant propounds the substantive facts prays tor appropriate relief and asks for process suited to the action which is in rem or in personam The reshyspondentanswers those facts by admitting denying or declaring his ignorance thereof ana alleges the facts ot his defense to the case nmde by the libel The proofs must substantially agree with the allegatiOns There are no co=on-law ruies or variance or departshyure The court grants relief on the case made out

The criminal jurisdiction of the Federal courts does not extend to the Great Lakes and their connecting watersj amp5 for example the Detroit river See SEA

High See further ACCIDENT CANAL COLLIEION 2 CONshy

SORT 2 DAMAGES FIDEJUSSOR LAKEs LIBEL 4

MARINEi lLutrrIMEj MONITION NAVIGABLE PETITORY

Rzs2 SEA STIPULATION 1 TIDE TORT2

ADIDSSION5 I Receiving reception Whence admit admissible inadmissible nonshyadmission

Used of assenting to allowing or receiv ing-a claim a will to probate any other writing or testimony

Also applied to making a person a member of a privileged class or body as of the legal profession or of a partnership or association See DELECTUS

2 Recognition as fact or truth acknowlmiddot edgment concession also the expression in which such assent is conveyed

In evidence applied to civil transactions and to facts in criminal cases not involving criminal intent

( ( In pleading whnt is not denied ig taken as admitted )

Direct or express admission An adshymiSSIon made openly and in direct terms Implied admission Results from an aqt done or undone as from character assumed from conduct or silence

Incidental admission Is made in anshyother connection _or involved in some other fact admitted

Tudicial or solemn admission So plainly made in pleadings filed or in the progress of a trial as to dispense with the stringency of some rule of practice

I The Plymouth 3 Wall 84--85 (1865) cases bull N ev Engiand lns Co v DlWham 11 Wall 1 (1870) Dupont de Nemours v Vance 19 How 171 (16i6)

The Clement 2 Curtis 866 (1855)

bull Exp Byers 32 F R 404 (1887) Brown J bull L ad-mittere to send to receive I Greelll Ev sect 170

Partial admission In equity practice delivered in terms of uncertainty with exshyplanation or qualification Plenary admisshysion Without any qualification)

Admissions are treated as declarations against inshyterest and therefore probably true In the absence of fraud they bind all joint parties -nd privies

The credibility of an admission is a qupstion of fact The admission of a right is not the same as vf a fact All the words must be considered May be by a document conduct predecessor in title agent at-shytorney referee joint party trustee officer prinCipal husband wifeshy

Where the act of the agent will bind the princlplll his admission respecting the subject-matter will also bind him if made at the same time and constituting part of the res gestremiddot

But an act done by an agent caru~t be varied qualified or explained either by declarations which amount to DO more than a mere narrative of a past occurrence or by an isoiated conversation held or an isolated act done at a later period_ The reason Is the agent to do the act Is not authorized to nITate what he had done or how he had done it and IiIs decshylaration is no part of the res gestre

For example the declaration of the engineer of B

train which met with an accident as to the speed (lt which the train was running made fOro ten to thirty minutes after the accident occurred Is not admissible against the company in on action by a passenger to shyrecover damages for injuries sustainrd Ii His declarashytlon after the accident had become a completed fact and when he was not performing the duties of en shygine-er that the train at the moment the plaintiff was injured was being run at the rate of eighteen miles an hour was not explanatory of anything in which he was engaged It did not accompany the act from which thA injuries in question arose It was In its essence the mere narrative of a past occurrence not a part of the res gestre - simply an assertion or represhysentatioD in the course of a conversation as to a mpt ter not then pending and in r espect to which his uthority M~ngineer had been fuil y exerted It is not to be deemed part or the res g~stCe simply because of the brief period Intervening between the accident and the making ot the declaration The fact remains that the occurrence had ended when the declaration in question was made and the engineer was not in the act

-of doing anything that couid possibly aflecc it If his declaration had been made the nex t doy after the acshycident it would scarcely be clalmed that it was admisshysible evidence against the company And yet the circumstDnce that it was made between ten and twenty minutes - an appreciable period of time - after the

I See 1 Greenl Ev sectsect 194--211 1 Chitty P 600 1 Green Ev sect 169

S See Whart Ev Ch xm bull Story Agency sect 134 See also 1 Greelll Ev sect 113 Packet Company v _ Clough 20 Wall 540 (1874)

Strong J American Lite Ins Co v Mahone 21 id 157 (1874) BalTeda v Silsbee 21 How 1C~5 (1858) cases Whiteside v United States 03 U S 247 (1876)

Xenia Nat Bank v Stewart 114 ia 22il (1885) cases_

~CE

rson to promshy

lded or ie debt ~ was to

n to do age has

It of anshyFRAUDS

omplete

to do court

the time at the t entered

t bull y neglect

y be nonshy3e shown

is said to duty ( the parshyemJ)nd in e decarashy1 a difrershy Judicial against

9 that a l he poundles

~id past s bonds

ION2 undoing deprivashy

lce or deshylitting of

~t as indeshy

3ized he same

58S

t ante See also 398 (1876) See Cent Law lts 21 Am

DEFEAT

time with another conveyance containing conditions upon the performance of which the estate created may be defeated or totally undone l

A bond fu1 a reconveyance upon the payshym3nt of a specific SUIll at a specified time made at the same time and of the same date as a deed of conveyance2

Formely every mortgagor enfeoffed the mort gagee who simultaneously executed a deed of defeasshyance considered a part of the mortgage whereby the

A person sued or prosecuted a respondent)feoffment was rendered void on repayment of the In the rules in admiralty framed by the Supreme

money at a certain day But things that were merely Court defendant is used indifferentlypr a respondshyexecutory or to be completed by matters subsequent

ent ina suit in perscmam and for a clalmant in a suitcould always be recalled by defeasances made subseshy in rI1 quent to the time of their creation I Co-defendant A joint or fellow deshyIt is not of the essence of a mortgage that there should be a defeasance and there may be a defeasshyance of a deed of conveyance without constituting it a mortgage The essence of a defeasance is to defeat the principal deed and make it void ab initio if the condition be performed

A defeasance made subsequently to an executed contrnct must be part of the original transaction At law the instrument must be of as high a nature as the principal deed Defeasances of deeds conveying realty are subject to the same rules as such deeds themselves as to record and notice to purchasers but in some States notice of the existence of a defeasance to be binding must be derived from the public recordsshy

When an absolute deed is shown to have been origshyinally made as security for a loan of money a court ()f equity will treat it as a mOrtgaae and allow the grantor to redeem the estate on the groUld that the defeasance was omitted from the deed by fraud or mistake

But to reduce a conveyance to a mortgage the deshyfeasance may be required by statute to be in writiilg duly acknowledged and recordedshy

2 A defeasance to a bond recognizance or judgment recovered is a condition which when performed defeats or undoes it in the same manner as a defeasance to an estate

The condition of a bond is always inserted in the bond or deed itself i a defeasance n is made by a separate and frequently by a subsequent deed This like the condition of a bond when performed disinshy~wnbers the obligors estate See CONDITION

DEFEAT See DEFEASANCE CONDITION

1 [2 B Com 327 bull [Butman v James 34 Minn 550 (1885) Berry J 4

Pick 852 bull Flagg v Mann 2 Sumn 540 (1837) Story J - See 21 Ala 9 3 Mich 482 7 Watts 261 401 13 Mass

443 40 Me 381 43 id 206 14 Wend 63 17 S amp R 70 II Washh R P 489

bull 2 Kent 142 Butman v James 34 Minn 550 (1886) - See PeUl Act 8 June 1881 Mich R S 261 Minn

it L 1878 34 sect 23 2 Bl Com 842 43 Me 371 14 N J L864

327 DEFENDAclT

DEFECT Under the covenant in a charter-party that the vessel is tight staunch and strong the owner is answer able for latent as well as for visible defects whereby the cargo is damaged l

See CAVEATj CHALLENGE CUREt 2

DEFENCE See DEFENSE

DEFENDANT One who is called upon in a court t o make satisfaction for an injury

done or complained of 2 ~

fendant Defendant above or defendant in

error The party against whom a writ of eITor is taken

Material defendant In equity a deshyfendant against whom relief is sought opshyposed to nominal defendant

Where a code provided that a bill in equlty should be filed in the district where the defendants or a mateshyrial defendnnt resides It was held that the object was to discriminate between defendants whose attitude to the case does and does not make them real partici shypants in the litigation that a material defendant was one who is really interested in the suit and against whom a decree is sought shy

As employed in sections of a code relating to jurisshydiction the word defendants was held to mean not nominal defendants merely but parties who had a real and substantial interest adverse to the plaintiff and against whom substantial relief was sought nnd that to decide otherwise would encourage colorable practices Itlrdefeating juriSllction in the particular class of cases

In a judgment defendant may be a colecth-e terni embacing all who by the record are liable under the judgment

A garnishee is a defendant in the action who In pursuance of a statute may be restrained trom disshyposing of property to the injury of the attaching creditor

In the Massachusetts Gen Sts c 146 sect 38 providshying that If an execution has not been satisfied the court upon petition of the defendant may order a stay if the petitioner gives the adverse party security for the prosecution of the review refers to the party

1 Hubert v Reckoagel 18 F R 912 (1882)bull bull [3 Bl Com 25] bull Atlantic Mutual Marine Ins Co v Alexander II

F R 281 (1883) - Lewis v Elrod 38 Ala 21 (1861) Walker C J bull Allen v Miller 11 Ohio St 378 (1860) bull Claggett v Blanchard 8 Dana 43 (lsa9) Almy v Platt 16 Wisbull169 (1862)

DEFENSE 328 DEFENSE DE

against whom the judgment sought to be reversed is the violence of the assault before he turns upon his rendered not to the defendant in the original actionl assailant he must fiee as far as he conveniently

Ordinarily a municipaJ corporation is not affected can hy reason of some wall ditch or other impedishyby law willch speaks in general terms of defendants ment or as far as tlle fierceness of the assault will unless expressly brought within the provisions permit for it may be so fierce as not to allow him to

Compare LITIGANT PARTY PLAINTJFJ RESPOND- yield a step without manifest danger of his life o~ ENT SUITOR See DELICTOM In pari etc enormous hodily harm and then in ills defense he ma

DEFENSE or DEFENCE3 1~kill his assailant instantly But no one may revenge himself by striking an unshyampnce of an attack i resistance with force of

ne~essary blow as when all danger is passed nor an attack made with force or violence strike when the assault is technical and triviaJ l I

~Self-defense P rotection of person or The principles of the law of selfmiddotdefense may be property from injury stated in three propositions (1) A person who in the

The defense of ones self or the mutwJI and recipshy lawful pursuit of his business is attacked by another rocal defense of such as stand in the relation of husshy under circumstances which denote an Intention to take band and wife parent and child master and servant his life or to do illm some enormous bodily harm may is a species of redress of private injury which arises lawfully kill the assailant provided he uses all the from the act of the injured party In these cases if means in ills power otherwise to save his own life or the party Wroself or a person in one of these relashy prevent the intended harm- such as retreating as far tions be forcibly attacked in his person or property it as he can or disobling ills adversary without killing is lawful for illm to repel force with force The him if it be in his power (2) When the attack upon law in tills case respects the passions of the human him is so sudden fierceand violent that retreat would mind and makes it lawful in a man to do illmself tilat not diminish but increase his da nger he may instan tly immediate justice to which he is prompted by nature kill ills adversary without retreating at all (3) When And willell no prudential motives are strong enough to from the nature of the attack there is reasonable restrain It considers that the future process of the ground to believe that there is a design to destroy his law is by no means an acJequate remedy for injuries life or commit any felony upon his person killing the accompanied witl force since it is impossible to say assailant will he excusable homicide although It to what wanton lengths of rapine or cruelty outrages should afterward appear that no felony was intended of this sort might be carried unless it were permitted The law of selfmiddotdefense is a law of necessity real Or a man immediately to oppose one violence with anmiddot apparently real A party may act upon appearances other Selfmiddotdefense therefore as it is justly though they turn out to have been false Whether called the primary law of nature so it is not neither they were real or apparently real is for the jury in a can it be in fact taken away by the law of society criminaJ case to decide upon consideration of all the Care must be taken that the resistance does not circumstances out of which the necessity springs It

exceed the bounds of mere defense and prevention the jury should find from the evidence thot the cirmiddot tor then the defender would Wrosel become an agshy cumstances were such as to excite the fear of a reashygressor shy sonable man and that the defendant acting under the

Homicide in self-defense upon a sudden affray is influence of such tear killed the aggressor to prevent also excusable This species of self-4ense must be the commission of a telony upon his person 0 prop-distinguished from such as Is caJculatJa to illnder the erty he would not be criminally responsible for his perpetration of a capita crime This is that wherehy death although the circumstances might be insuffishy

cient to prove by a preponderance of evidence

like In the course of a sudden broil or quarrel by a man may protect Wrosel from an assault or the

that the aggressor was actually about to commit kIlliDg him who assaults him The right of natshy felony ural defense does not imply a right of attacking for The right of selfmiddotdefense does not imply the right of Instead of attaeking one another for injuries past or attack and it w1ll not a vail in any case where the difshyimpending men need only have recourse to the proper ficulty is sought or induced by the party himself On tribunals of justice They cannot therefore legally the other hand to justify killing an adversary on tills exercise this right of preventive defense but in sudden ground it is not necessary that the danger appreshyand violent cases when certain and immediate suffershy hended should be real or actually impending It is Ing would be the consequence of wa iting for the assistshy only necessary that the defendant should have had ance of the law Wherefore to excuse homicide by reasonable cause to apprehelld that there was an imshythe plea of selfmiddotdefense it must appear that the slayer mediate design to kill or to do him some great bodily had no other possible (or at least probable) means of harm and that there should have been reasonable escaping from ills assallantmiddot The law requires that the person who kills another in ills own defense

1 4 Bl Com 184-85should have retreated as far as he safely can to avoid CommonweaJth v Selfridge Sup Ct Mass (1806)

1 Leavitt v Lyons 118 Mass 470 (1875) Parker J Same case Whart Homicide App No1 bull Schuyler County v Mercer County 9 ill 24 (1847) HoI amp T Cases On Self-Defense 17 2 Am Cr R bull F defense L defensa defendere to strike down (Hawley) 259

or away ward off repel Mid Eng defence bull People v Flanagan 60 Cal 4 (1881) McKee J 1)2 bull 3 BI Com 3 4 id 186 1 id 130 id 208 807 59 id 251 Unlted States v Wiltenberger bull 4 Bl Com 183-84 8 Wash 521 (1819)

cause being

Adj Ictsw Ire thl to mal taking him cansin publiCI FreCOD

weapo battelJ weapo) voking words purpos

See ImrnOL

2 1 suffici justif~

cause Au

ing in Whe

Iaratior sonable plea el fault q fies not its pop (French plaint generaJ action mainta

The ing ou which plainti

Defer andparl all1davit

Def statem

defensl davit 0

1 lltate State v

Cam cases E 7 71 id Ky 86 1 403 13 287-G9 1 Rep 288

bull Unite BBI

d 148 1

bull [Utab

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DEFENSE

poundause to apprehend immediate danger of such design being accomplished

Adjudicated cases hold that among the slayers cts which abrogate or abridge his right of self-defense are the following 1 Devices to provoke the deceased to make an assault which will furnish a pretext for taking his life or inflicting serious bodily injury upon him 2 Provocation of the deceased into a quarrel causing the tatal affray but mere words or libelous publications lthJ not amount to such provocation a Preconcert win the deceased to fight him with deadly weapons 4 Commencing an attack assault or a battery upon the deceased 5 Going with a deadly weapon where the deceased is for the purpose of promiddot voking a difficulty or bringing on an affray and by words OI acts making some demonstration of such purpose calculated to provoke them

See ARMS ASSAULT BATTERY FORCE HOMICIDE

IllMEDUTE RETREAT THREAT

2 That which is ollered by a defendant as sufficient to defeat a suit - by nenying justifying or confessing and avoiding the cause of actioD

A term of art used in common-law pleadshying in t he sense merely of deuid 3

When the plaintiff bath stated his case in the decmiddot laration it is incumbent on the defendant within a reamiddot sonable time to make his defense and to put in a plea else the plaintiff will recover judgment by deshyfault q 1J Defense in its true legal sense signishyfies not a justification protection or guard which is its popular signification but an opposing or denial (French defender) of the truth or validity of the comshyplaint It is the contestatio litis of the civilians a general assertion that the plaintiff hath no ground of action which assertion is afterward extended and maintained in the plea Compare TRAVEasE

The r ight possessed by a defendant arisshybull ing out of the facts alleged in his pleadings ~~i w hich either partially or wholly def eats the

_ plaintiffs clairn6

Defenses In civil procedure are stated with fullness and particularity in answers to bills and libels and in affldavits of defense filed to affidavits of chum

Defense affidavit of A sworn written statement of the facts which constitute the defense in a civil action also called affishydavit of merits Opposed affidavit of claim

8tate 1J Johnson 76 Mo 122 126 (1882) Norton J State 1J Umfried ib 408 (1882) 69 id 469

bull Cartwright 1J State 14 Tex Ap 486 499 (1883) cases Hart J Reed v State 11 ill 517(1882) 70 Ala 7 71 id 8313-S7 32 Conn 83 64 Ind 340 89 id 195 80 Ky 36 14 B Mon 103 614 38 Mich 270 732 middot55 Miss 403 13 Johns 12 89 N C 481 29 Ohio Se 186 38 Pa 267-C8 101 id 823 45 Vt 308 2 Bish Cr L 877 12 Rep 268

bull United States 1J Ordway 30 F R 32 (1887) middot 8 BI Com 206 Sec 83 Ind 449 8 How Pro 442 10

d 148 24 Barb 631 bull [Utah ampc R Co 1J Crawford 1 Idaho 773 (1880)

329 DEFENSE

The practice which requires affidavits of claims and defense has been systemized in Pennsylvania to a deshygree of completeness scarcely known elsewhere The subject is usually discussed in connection with the inmiddot quiry Wbat are the essentials of a sufficient affishydavit of defense In that State the practice originated in an agreement between members of the bar at Philshyadelphia signed September II 1795 After that statshyutes extended the practice until it became general Yet the courts by mere rule could have required deshyfendants to file a statement of defense

The practice does not contlict with the right of trial by jury If a defendant presents no defense to be tried by a jury he cannot claim that p-ivilege is demiddot nied him The affidavit is nothing more than a special plea under oath - by which the defendant states the facts of his case for the consideration of the court Trial by jury in civil cases ha never involved the right of the jury to decide the law of the case That the defendant is obliged to state his plea or his demiddot fense under oath is merely a means to prevent delay by falseh00d and fraud Nor can it be objected hen all the facts have been stated by the defendant which he either knows Or is infonned of believes and exshypects to be able to prove tllat the court decides the law arising upon the facts as stated This is no moro than the court does upon a demurrer a special vershydict a nonsuit or an issue In equity The affidavit I oniya modern mode of making up the issue for the jury And when upon a statement of all the facts a defendant can conscien tiously swear to the court finds that the law upon those facts is against him clearly he has no right to go before a jury The court hus then done no more than It would have a right to do by Instruction to the jury when all the evidence is in with the advantage to the defendant that by his affidMit he has made the evidence to support his own case

The object is to prevent delay of justice through false defenses At the same tinle the pactice being In derogation of the right of trial by jury regulatiorumiddot are to receive a strict construction

TIle proce~e being som~hat summary the plaintiff in his affidavit must have complied with every requirement of the law 7 otherwise a judgment given him for IU insufficiency in the matter relied upon by the defendant will be reversed although that matter is really insufficient8

Sellers 1J Burk 47 Pa 844 (1864) Clark 1J Dotter 54shyill 215 (1867) Detmold1J Gate Vein Coal Co 3 W N C 567 ro S D C E D Pa 1876)

bull 2 Brightly Purd Dig 1356 1357 pI 24 note d bull Hogg v Charlton 25 Pa 200 (1855) Harres 1J Comshy

monwealth 85 ill 416 (1860) bull Lawrence 1J Borm 86 Pa 226 (1878) Per Curiam 19middot

id ~7 20 id 384 Hunt 1J Lucas 99 Mass 409 (1868)

Chapman C J bull Wilson 1J Hayes 18 Pa 354 (1852) Bloomer 1J Reed

22 id 51 (1853) Yates 1J Burrough of Meadville 56 Pa 21 (1867)

Wall 1J Dovey 60 ill 212 (1869) Boas 1J Nagle 3 S amp R 250 (1817)

Knapp 1J Duck Creek Valley Oil Co 58 Pa 185

(1866) bull Gottman 1J Shoemaker 86 Pa 31 (1877)

DEFENSE 330 DEFENSE

The question of insufficiency is brought directly bemiddot tore the court by a rule on the defendant to show cause why judgment should not be entered against him for want of a sufficient affidavit of defenseshythe particulars of the alleged Insufficiency being at the same time specified in writing and filed with the rule

The court considers the facts setout in the affidavit and passes upon their legal sufficiency For this purpose it takes the facts as true not to be contra dlcted even by a record

It is sufficient to set forth in the affidavit - facts showing a valid defense which can properly be estabmiddot lished bull - specifically and at length such facts a9 will warrant the inference of a complete legal deshytense - a substantially good defense - a prima facie good and valid defense bull

The defendant must state the grounds and nature of his defense so that the court may judge how far it will avail agamst the plaintiffs demand if established by proof

The facts are to be averred with reasonabie precismiddot Ion but the evidence by which the defendant will prove them need not be stated Nor need he meet every objection which fine critical skill may deduce While an allegation doubtfully stated or clearly evashyGive is to be disregarded the defendant is not to be held to a rigor of statement so severe as to catch him In a mere net ot form

The facts are to be averred with reasonable precis ion and with certainty to a common intent Toward sustaining the affidavit a reasonable intendment will be given the languagemiddot

But no essential fact is to be left to inference II what is not said is taken as not existing Igt Furthermiddot more inasmuch as a party swearing in his own cause is presumed to swear as hard as he can with a good conscience inferences when justifiable are not to be pressed beyond the ordinary ~ea=g of the ~elmB employed

A material fact which if it actually exists would readily and naturally be expressly averred must be averred 16

The practIce which requires affidavits of defense is limited to obligatiOns for the payment of a certain

-- sum of money Hence it does not apply inactions for

Stitt v Garrett 3 Whart 281 (1337) Comly v Bryan 5 ill 281 (1339) Marsh v Marshall 63 Pa 896

(1866) Feust v Fell 6 W N C 48 (1878) KIrkpatrick 11

Wensell 2 Leg Chron 303 (1874) Lelbersperger v Reading Bank 30 Pa 631 (1858) f Bryar v HarrisoIl 87 Pa 223 (1880) bull Thompson v Clark 56 Pa 33 (1867) bull Chartiers R 00 v Hodgens 77 Pa 187 (1874) Walker v Geisse 4 Whart 256 (1338) bull Bronson v Silverman 77 Pa 94 (1874) bull Lawrence v Smedley 6 W N C42 (Sup Ct 1878) Markley v Stevens 89 Pa 281 (1879) 77 ie 283 89

ill 261 II Peck v Jones 70 Pa 83 (1871) Lord v Ocean Bank 20 Pa 884 (1858) II Selden v Neemes 4l Pa 421 (1862) Marsh v Marshall 53 Pa 396 (1866) Markley v Stevens 89 Pa 281 (1879)

torts nor in actions upon contracts for the payment of an uncertain sum or where there is no standard by which to liquldate the judgment

The defendant is to make the affidavit unless cause such as sickness or necessary absence is shown why he cannot make it Then an agent and perhaps even a stranger to the transaction may make it

When defendant avers facts on infonnation and [)eshylief he must add that he expects to be able to prove them or else set out specifically the sourCG of his inmiddot formation or the facts themselves upon which his belief rests This affords a presumption that proof can be made Positive averment of truth is enough

The practice does not permit the filing of a trUpplemiddot mentary affidavit of claim to obtain a judgment for an insufficient defense Such affidavit may be filed for use as evidence at the trial so too as to a supplemiddot mental affidavit of defense in reply to a supplementah affidavit of claim But the court will not consider thll sufficiency of eitner affidavit

Should the court deem the defense set out fn the original affidavit to be probably good but obscurely Or otherwise defectively stated it may allow a supplemiddot mental affidavit of defense to be filed 7 Notice thereof is to be given to prevent surprise and delay at the time for trial

Ther is no rule that such supplemental affidavit must be confined to an explanation of the original demiddot fense and cannot set up a new and different defense such a course however is suspicious and requires that the new defense be closely scrutinizedmiddot

Where judgment has been entered for want of a sufficient affidavit of defense and the record shows It to be according to law a motion to take it off is admiddot dressed to the discretion of the court and in the absence of statutory provision to the contrary Is not the subject of a writ of error

It would seem that an affidavit o~ ~fense tobe come part of the record should be offered in evmiddot

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dence 10

Dilatory defense A defense designed to dismiss suspend or obstruct the prosecushytion of a claim without touching upon the defendants meritorious defense See MERITS

Borlin v Commonwealth 99 Pa 46 (1331) See 89 ie 28 00 id 276

I See City v Devine 1 W N C 358 (1875) Clymer v Fitler ib 626 (1875) Blew v Schock ib 612 (1875) Crine v Wallace ib 293 (1875) Burkhart v Parker 6 W amp S 480 (1843) Hunter v Reilly 36 Pa 500 (1360)

bull Black v Halstead 89 Pa 64 (1861) Thompson v Olark 66 ie 33 (1867)

bull Clarion Bank v Gregg 79 Pa 384 (1875) Renzor v Supplee 81 icl ISO (1876)

bull Eyre v Yohe 67 Pa 477 (1871) Moeck v Littell 82 ill 354 (1876)

bull Anderson v Nichols 12 Pitts Leg J 231 (1882) Laird v Campbell 92 Pa 475 (188O) bull Callan v Lukens 89 Pa 184 (1879) Per Curiam I White v Leeds 51 Pa 187 (1885) See Act 18 April

1874 P L 64 2 W N 0707 II Maynard v National Bank 98 Pa 250 (1881)

DENARIUS DEI 342 DEPARTMENT

Demurrer to interrogatory The reashy

son a witness offers for not answering a parshy

ticular question among interrogatories

DENARIUS DEI L Gods penny

money given to the church or to the poor

earnest-money q v DENIAL See DEFENSE 2 DENIZENl An alien born who has obshy

tained ex donatione regis letters-patent to

make him a subject2 Whence denizenize denizenation or denization Sand

denizenship The crown denizenizes parliament conshysents to naturalization

A denizen is in a kind of middle state between an alie and a natWal-born subjectand partakes of both He may take lands by purchase or devise but not by inheritance-for the parent has no inheritable )Iood But since 1870 in England an alien may hold and dispose of property as a natWal-born subject

In South Carolina the status seems to have heen created by law

DENOUNCEMENT In Mexican law

a judicial proceeding equivalent to the inshyquest of office at common law6

DENTIST See CAREMECHANlO rIY-

BIelANDE1~ See ADMISSION 2 DEFEN~ 2

TRAVERSE(( J DEODANDs Any personal chatte

which was the immediate cause of the death

of a rational creature j

The chattel whether an animal or inanimate obshyject was forreited to the king to be applied to religshyIons uses Designed originally as an expiation for the souls of such persons ~s were snatchell away by sudden death u any animal killed a person or if a cart ran over him It was to be forfeited- in part also as pUllisbment for the supposed negligence in the owner If the thing was in motion as a cart with its loading all that moved was forfeited if not in motion then only the pa rt which was the immediate cause of the death It muttered not whether the owner was concerned In the killing or not The right to deodands in time was granted to the lords of manors as a franchise a

Abolished by 9 and 10 Vict (1846) c 62

DEPART See DEPARTURE

DEPARTMENT (Adj Departmental)

The departments of government are the

1 F deinzein a trader middotwithin the privilege of a city franchise deinz wltbin-ffireat

bull 1 Bl Com 874 6 Pet 116 note Websters Dict 1 Bl Com 374 ( 1 Bl Com 374 [Merle v Mathews 26 Cal 477 (1864) L deomiddotdandum given to God bull [1 Bl Com 300 bull 1 Bl Com 300-2

legislative the executive and the judicial

departments In our system it is important that these departshy

ments be kept separate that one be not allowed to

encroach upon the domain of another While a general separation has been observed beshy

tween the different departments so that no clear enshycroachment by one upon the province of the other has been sustained the legislative department when not restrained by constitutionul provisions and a regalu for certain fundamental rights of the citizen which are recognized in this countly as the basis of all govmiddot ernment has acted upon everything within the rangEr of civil government2

The executive business of the general government under a permission rather than a mandate of the Conshystitution is distributed to seven executive departshy

ments of equal grade lministration of the duties of thesC3 respective deshy

pa~ nents is committed directly to a secretary or head who with his principal a8sistants is apmiddot pointed by the President as chief executive with the advice of the Senate

Themiddot departments are designated as of - the inteshyrior justice the navy6 the post-office8 state7 the treasury and war The department of agriculture 10

is of subordinate grade The head of a department is required to exercise

judgment and discretion in administering tbeconcerns of his office He exercises his own judgment in exshypounding the laws and resolutions of Congress under wblch he is to act If he doubts he may rollmiddot on the attorney-general for counsel If the Supreme Court Should cliffer with him as to the construction to be placed upon any of these laws it would pronounce judgment accordingly But the Interference of the courts with the performance of the ordinary duties of the executive departments wo~d be prod$tive of nothing but mischief - such power was never inmiddot tended to be given to them The court by manmiddot damus may direct the doing of a purely min~sterial act but not the exercise of a duty requiring judgment and discretion

The heads of departments are the Presidents aushythorized assistants in the performance of his execushytive duties and their official acts promnlgated in

1 See Mabry v Baxter 11 Heisk 689--90 (1872) bull ffIaynard v Hill 125 U S 205 (1888) As to the inshy

dependence of the departments of government see 21 Am Law Rev 210-27 (1887) cases

bull R S sect 437 Act 3 March 1849 bull R S sect 846 Act 24 Sept 1789 bull R S sect 415 Act 80 April 1798 a R S sect 388 Act 8 lIlay 1794 bull R S sect 1l9 Act 27 July 1789 bull R S sect 233 Act 2 Sept 1789 bull R S sect 214 Act 7 Aug 1789

lOR S sect 520 middotAct 15 May 1862 1l Decatur v Panlding 14 Pet 515-17 (1840) Taney

C J United States v lIfacdaniel 7 id15 (i83S) Kenshydall v United States 12 id 610 (1688) Litchfield v Register and Receiver 9 Wall 577 (1869) Carrick v Lamar 116 U S 426 (1888) cases shy

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ions from william c anderson's 1893 law dictionary

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