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DEBENTURE STOCK-continued. extent of the money raised by the issue of debenture stock the borrowing powers of the company are extinguished.

DEBT. This means a sum of money due by some certain and express agreement, e.g., on a bond, bill of exchange, &c., where the amount is determinate, and for the non-payment thereof an action of debt will lie.

Debts are of various kinds, namely:(1.) Judgment debts, as to which see title JUDGMENT DEBTS.

(2.) Specialty debts, as to which see title SPECIALTY DEBTS.

(3.) Simple contract debts, as to which see title SIMPLE CONTRACT DEBTS.

Originally debts were not payable out of real estate, but only out of personal estate. For it appears that

Anciently there was only one mode by which lands might become liable for the debts of the tenant, namely, by the tenant giving a bond specially binding his heir as well as himself. This of course he could not do until the power of alienation by deed inter vivos, so as to defeat the heirs, became established (see title ALIENATION); but the power to execute a bond of that sort is expressly recognised in Britton, who wrote in the reign of Edward I. But this specialty debt, as it was called, was only available against such part of the debtor's land as descended to his heir; and the word "heirs" did not include for this purpose the word "devisee" until the stat. 6 & 7 Will. 3, c. 14 (the Statute of Fraudulent Devises) was passed, so that, until the last-mentioned statute the obligor, after binding his heirs, might, by devising the lands away from his heirs, have defeated the obligee of his remedy. Such was the liability of the lands of a debtor after his decease. During the life of the debtor the lands were not liable at all, unless in virtue of judicial proceedings taken against the tenant, the debtor. It was necessary to enter up judgment against the debtor for the amount of the debt; and the creditor becoming a judgment creditor was enabled by the stat. 13 Edw. 1 (Statute of Westminster the Second), c. 18, to obtain an elegit, whereby he might take one moiety of the lands of the debtor, and satisfy himself his debt thereout. See titles ELEGIT; JUDGMENT DEBTS.

After the right of testamentary alienation became established (see title ALIENATION), it was competent to a debtor to charge his lands with the payment of his debts; and in the Court of Chancery such a charge was construed to extend to debts arising out of simple contract, as well as by specialty, so that all debts were payable

DEBT-continued.

out of the land rateably according to their respective amounts.

And the present liability of lands to the payment of debts is as follows:

(1.) During the lifetime of the debtorUpon entering up judgment, and duly registering same, execution may be sued out and registered, and under that execution lands, whether freehold, copyhold, or leasehold, and whether legal or equitable, may be taken possession of and sold in satisfaction of the debt. See title JUDGMENTS. (2.) After the decease of the debtor.

By the stat. 3 & 4 Will. 4, c. 104, it is enacted that the lands of a deceased person shall be assets in Equity for payment of all his just debts, as well owing by simple contract as by specialty.

See title ADMINISTRATION OF ASSETS.
See also title CROWN DEBTS.

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A writ of deceit used formerly to lie, and now an action on the case in the nature of a writ of deceit lies, where the plaintiff has received injury or damage through the deceit of the defendant or of his agent, where the defendant was privy thereto.

See also titles MISREPRESENTATION;
WARRANTY.

DECENNARY. A tithing or civil division of the country composed of ten freeholders with their families. The institution was introduced, it is believed, by the earliest Saxon settlers in England, and some say by Alfred. The members of a tithing were mutually responsible for each other's good behaviour (see title FRANKPLEDGE). Ten decennaires formed a hundred (see title HUNDRED).

DECENNIERS. Persons having the oversight of ten free burghs (Holthouse), or possibly only of ten free households (Tomlins), for the conservation of the king's peace therein, with power to try causes and give redress by judgment, and for these purposes to administer oaths.

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DECLARATION. At Law is a pleading which corresponds to the bill of complaint in Equity. It contains a succinct statement of the plaintiff's case, and generally comprises the following parts:(1.) Title In the Queen's Bench, and date the 10th July, 1874; (2.) Venue, Middlesex, to wit; (3.) Commencement,-A. B. by C. D., his attorney [or in person], sues E. F. for

(4.) Body of declaration,-consisting of the following parts (which, how

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DECLARATORY ACT. This is an Act which, by profession, at least, declares no new law, but only the formerly existing law, removing certain doubts which have arisen on the subject; e.g., the Statute of Treasons, 25 Edw. 3, stat. 5, c. 2, professes to create no new treasons, but only to enumerate the already existing treasons. See title STATUTES.

DECREE. This is the judgment of a Court of Equity, and is to most intents and purposes the same as a judgment of a Court of Common Law. A decree as distinguished from an order is final, and is made at the hearing of the cause, whereas an order is interlocutory, and is made on motion or petition; wherever an order may, in a certain event resulting from the direction contained in the order, lead to the termination of the suit in like manner as a decree made at the hearing, it is called a decretal order.

DECRETAL ORDER: See title DECREE.

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DEDIMUS POTESTATEM. A writ issuing out of Chancery empowering certain persons therein named to perform certain acts; as when a justice of the peace appointed under the king's commission intends to act under this commission, a writ of dedimus potestatem issues, empowering certain persons therein named to administer the usual oaths to him, which being done, he is at liberty to act. Lamb. 23.

DEDIMUS POTESTATEM DE ATTORNATO FACIENDO. At Common Law the parties in an action were obliged to appear in Court in person, unless allowed by a special warrant from the Crown (bearing the above title) to appoint an attorney; or unless after appearance they had appointed a deputy, called a responsalis, to act for them, and which the Court allowed them to do in some instances. But now a general liberty is given to parties in an action to appear by attorney, excepting in the cases of infants, idiots, and married women. F. N. B. 25; 1 Arch. Pract. 84.

DE DONIS. This is the name of a celebrated statute (13 Edw. 1, or Statute of Westminster the Second, c. 1), in virtue of which an estate in freehold lands, which was formerly known as a donum conditionale (whence the name of the statute), was converted into an estate tail, and required to descend according to the formedon (formam doni), so as to be inalienable as well against the lord in prejudice of his reversion as against the issue in prejudice of their succession. A donum conditionale, on the other hand, was alienable, immediately upon the birth of issue, that being construed as the condition of the gift (whence the name); the condition being discharged, the estate, of course, became absolute. See title ESTATE TAIL.

DEEDS.

These are of two kinds, being either deeds-poll or indentures.

(1.) A deed-poll was a bald or shorn deed, and was made by one person only, beginning with the words, "Know all men," &c. Under such a deed, any person may accept a grant.

(2.) An indenture was an indented deed, and was made between two or more parties, beginning with the words, "This indenture," &c., and stating the parties at the outset. Formerly no person who was not a party could take any immediate estate, interest, or benefit under such a deed; but now, by the 8 & 9 Vict. c. 106, such an

DEEDS-continued. estate, interest, or benefit may now be taken under it by a person not a party to it.

A deed may be made either on paper or on parchment.

DEER. Deer in a park when reclaimed become personal chattels, and cease to be parcel of the inheritance. Ford v. Tynte, 2 J. & H. 150; Morgan v. Abergavenny (Earl), 8 C. B. 768.

By the stat. 24 & 25 Vict. c. 96, s. 12, it is made a criminal offence to wilfully course, hunt, snare, or carry away, or kill, or wound deer in an uninclosed forest, the penalty for a first conviction not to exceed £50, and for a second or other subsequent offence imprisonment not exceeding two years, with or without hard labour. Doing the like to deer in inclosed ground is punishable even for a first offence with the like imprisonment (s. 13). Setting engines for taking or killing deer, whether in an uninclosed or in an inclosed place is punishable with a fine not exceeding £20.

DE FACTO. A king de facto is one actually reigning, as opposed to one de jure merely, who, although having the lawful succession, has either been ousted from, or never actually taken, the possession of the sovereignty.

The constitutional statute,

11 Hen. 7, c. 1, enacts that obedience to the king for the time being de facto shall be a protection to the subject against all forfeitures under any succeeding sovereign claiming adversely.

See also title ALLEGIANCE.

DEFAMATION: See title Libel.

DEFAULT, JUDGMENT BY. Where a defendant omits to appear, or (having appeared) to plead or to put in his answer to an action or suit within the time or times limited for either of these purposes by the Courts, and he has obtained no enlargement or extension of the time for doing so, it is presumed that he has no defence, and the plaintiff is thereupon entitled to sign judgment against him. Either:

(1.) For the non-appearance, if the writ has been specially indorsed; s. 27, C. L. P. Act, 1852: or,

(2.) For want of plea, if the writ has not been specially indorsed; s. 28, C. L. P. Act, 1852.

Moreover, by s. 93, C. L. P. Act, 1852, when the plaintiff in any action seeks to recover a debt or liquidated demand in money, judgment by default is final; and by 8. 94 of the same Act, where he seeks to recover an unliquidated sum, the ascertainment of which is merely matter of calculation, the Court directs the master to ascer

DEFAULT, JUDGMENT BY-continued. tain the amount, without reference to the distinction between debt and damages, but the judgment is in the meantime interlocutory only. Of course, where the ascertainment of the damages is not merely matter of calculation, the jury must find the amount and, semble, there is no judgment at all (by default or otherwise) until the jury have so found.

Judgment by default is also sometimes called judgment by Nil dicit.

DEFEASANCE: See title CONVEYANCES.

DEFENCE: See titles PLEA; JUSTIFICA

TION.

DEFORCEMENT. This is the holding of any lands or tenements wrongfully as against any person who has the right thereto but who has not as yet at any time been in the possession thereof; e.g., where a lessee for years or pur autre vie holds over after the determination of his interest and refuses to deliver up the possession to the reversioner or remainderman. But when such a tenant holds over without any such refusal to deliver up, he is not a deforciant, but only a tenant by sufferance. The deforciant must have come in by right in the first instance; for if the person wrongfully holding came in by wrong in the first instance, he is not a deforciant, but either,

(1.) An intruder: see title INTRUSION; (2.) A disseisor: see title DISSEISIN; or, (3.) An abator: see title ABATEMENT. Deforcement in respect that the deforciant comes in by right in the first instance is like discontinuance, as to which see title DISCONTINUANCE.

DEGRADATION. This phrase was applied: (1.) To the case of a peer deprived of his nobility, e.g., the case of the Duke of Bedford, of Edward IV.'s reign, who was deprived by that sovereign on account of his poverty. And at the present day, a peer who becomes bankrupt ceases for the time being to be capable of sitting in the House of Lords (Bankruptcy Disqualification Act, 1871). (2.) To the case of an ecclesiastic who is divested of his holy orders; degradation is a greater punishment than deposition, being not merely the displacing one from his office (which deposition also is) but also the divesting him of all his badges of honour, privileges, &c. (which deposition is not).

DE INJURIA, REPLICATION. This was a form of taking issue, but which has been superseded by the C. L. P. Act, 1852, s. 79. The exact nature of the form may be col

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DE INJURIA, REPLICATION_contd. lected from Crogate's Case (8 Rep. 66), and appears to have been in substance the following:-It was a general replication putting in issue all the material averments in the plea. Properly, therefore, it was to be replied to a plea of the defendant where, and only where, that plea consisted of matter of excuse, as that the plaintiff, e.g., in an action of trespass for driving the plaintiff's cattle, was himself in fault in the first instance in so doing; to which plea it is of course proper for the plaintiff to reply that the defendant's act was of his (the defendant's) own proper wrong (de injuria suâ propria), and without any such ground of excuse as the defendant alleged (absque tali causâ). But where, as in Crogate's Case, the defendant justified under the command of his master, the replication de injuriâ was held inapplicable, not being accompanied with a traverse of the command.

See also titles NEW ASSIGNMENT;
REPLICATION.

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DEMESNE LANDS. These were such parts of the lands of a manor as the lord kept to himself as being necessary for his own use. Ancient demesne lands are those which were so kept by the king as lord in the reigns of Edward the Confessor and William I., being the lands referred to in Domesday Book as Terræ Regis, or Terræ Regis Edwardi.

Of such lands, one part was retained by the lord in his actual occupation for the purposes of his family; a second part was held in villenage, and out of it the tenures of Copyhold, Customary Freehold, and Ancient Demesne have arisen (see these three titles respectively); and the remaining part was left uncultivated, whence also it was called the waste lands of the manor, serving for public roads and for common of pasture to the lord and his tenants.

See titles COMMONS; WASTE.

DEMISE. A word used in leases for terms of years, and being synonymous with lease, or let, from which it differs only in this respect, namely, that demise ex vi termini implies a covenant for title, and also a covenant for quiet enjoyment, whereas lease, or let, implies neither of these covenants. Where there are mutual leases of the same land, or of something out of the same land, made from one party to another on each side, it is said to be a conveyance by Demise and Re-demise, e.g., where A. grants a lease to B. at a nominal rent and B. re-demises the same property to A. for a shorter term at a substantial rent.

The word "demise " is also frequently used as a euphemism for decease or death, e.g., the demise of the king, more properly, of the Crown, which means, speaking strictly, that in consequence of the king's natural body having by reason of the death thereof become disunited from his politic body, the kingdom is transferred or demised to his successor, for the king, as a corporation sole, never dies. The word demise should not be confounded with the word devise.

DEMURRAGE. This term is occasionally used to signify the delay or period of delay of a vessel in port (from the Latin demorari); but in law, it is more commonly used to denote the sum which is fixed by the contract of carriage as a remuneration to the shipowner for the detention of his ship beyond the number of days allowed for loading or unloading. It is usual to calculate this sum at so much per day, and also to specify in the contract the allowed days of demurrage; in which case, if the ship is delayed beyond the agreed demurrage, the freighter becomes liable to pay damages for the excess, which damages are usually estimated at the demurrage rate per day.

DEMURRAGE—continued.

If the ship after sailing puts back owing to contrary winds, and is detained in port by frost or bad weather, no demurrage is payable for that unavoidable delay; and when the ship is to be unloaded in the usual and customary time, no demurrage is payable for a detention caused merely by the crowded state of the docks (Jamieson v. Laurie, 6 Bro. P. C. 474; Burmester v. Hodgson, 2 Camp. 488). Where, however, the parties enter into a positive contract, that the goods shall be taken out of the ship within a specified number of days from her arrival, as such a contract is construed strictly, demurrage is payable for any delay beyond the specified period, although the shipper is powerless to remove the causes of the delay, provided only the shipowner is not to blame. Randall v. Lynch, 2 Camp. 352; Bessey v. Evans, 4 Camp. 131.

The contract to pay demurrage, which is contained in the charterparty, is made between the shipowner and the shipper, and the latter is therefore the person liable to pay the demurrage; but where, as is usually the case, the bill of lading mentions the demurrage, a consignee who accepts the goods under it may, and generally does, become liable for it on a new contract, to be implied from his acceptance of the goods under these circumstances; and such implied contract may arise, although the receiver at the time of receiving the goods states that he will not pay demurrage (Smith v. Sieveking, 4 E. & B. 945). But a mere reference in the bill of lading to the terms of the charterparty, in which demurrage is specified, will not of itself render the consignee receiving the goods liable for demuriage. Smith v. Sieveking, supra.

DEMURRER. In pleading, is the formal mode of disputing the sufficiency in law of the pleading of the other side.

Before the C. L. P. Act, 1852, demurrers were either general or special; but by s. 51 of that Act, special demurrers were abolished. There is now therefore but one kind of demurrer, namely, the general demurrer, which is admissible under s. 50 of the C. L. P. Act, 1852, but only when the pleading of the opposite party is bad in substance; for if the pleading is bad for argumentativeness, generality, repugnance, duplicity, or other like reason not also amounting to matter of substance, it is to be objected to under s. 52 of the C. L. P. Act, 1852, by summary application to the Court to strike out or amend. Under s. 89 of the same Act, the form of a demurrer is this::

"The defendant [or "the plaintiff,” as the case may be], by his attorney [or

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DEMURRER-continued.

"in person," as the case may be] says that the declaration [or "the plea," &c., as the case may be] is bad in substance." And in the margin of the demurrer book the matter of law intended to be relied on is to be stated. The other side may thereupon join in demurrer in this form:"The plaintiff [or "the defendant," as the case may be] says that the declaration [or 'plea," &c., as the case may be] is good in substance.'

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Before the C. L. P. Act, 1862, a party was not at liberty both to plead and to demur to the same pleading; but by s. 80 of that Act, he may by leave of the Court now do so upon affidavit, which however is seldom required.

In Chancery, whenever the statements contained in a plaintiff's bill of complaint (assuming them all to be true as stated) are insufficient to entitle him to the relief prayed, the defendant may demur to the plaintiff's bill, either to the relief (which would include the discovery) sought, or to the discovery alone (exclusive of the relief). The most usual grounds of demurrer are the following:

(1.) Want of equity, whether

(a.) In respect of the subject matter; or (b.) In respect of the plaintiff personally; or

(c.) In respect of the defendant per-
sonally;

(2.) Want of parties;
(3.) Multifariousness; and
(4.) Insufficiency in Law of case made by
plaintiff.

This fourth ground being analogous to the ground commonly taken at Law.

The demurrer, as to its form, commences with a formal protestation of the falsehood of the statements in plaintiff's bill, and then demurs to the bill, or to the part of it which it specifies, for the cause which it also specifies, concluding with a general allegation of other good causes of demurrer, and praying to be dismissed from the suit with costs, and without being compelled to answer the plaintiff's bill.

Twelve days after the date of his appearance to the bill is allowed the defendant for demurring alone; and twenty-eight days if he demur as to part, and plead or answer as to the rest.

The demurrer must be filed; and within three weeks after the filing thereof, it may be set down for argument.

In case the demurrer is allowed, it puts the plaintiff wholly out of Court, unless he obtains leave to amend; on the other hand if the demurrer is overruled, the defendant is obliged to put in his full defence by

answer.

See titles ANSWER; PLEA.

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