repudiation of an infant or wife's deed, after majority or upon widowhood.

(b) By dissent of strangers, as the grantee of a deed-poll or an indenture not executed by him, disclaiming the estate thereby given to him, or a husband repudiating his wife's purchase.

(III.) Those making it void by something ex post facto; as

is

(30.) Warrant of attorney and cognovit ac

tionem.

(31.) Debenture.
(32.) Recognizance.
(33.) Deed of covenant.

(34.) Declaration of trust.

(35.) Appointment of new trustees.

[The deed mostly in use in the United States that of Bargain and Sale. Consult Kent's Com.]

DEED OF COVENANT.

(a.) By an extra-judicial act, as razure or interlineation, or breaking off the seal, with the assent of the parties, or delivering up the deed to be cancelled. The act of a spoliator will not avoid a deed. To prevent any after-dispute, any alteration or interlineation made in a deed before execution, should be particularized in the attesCovenants are tation-clause. If a freehold estate have already frequently entered into by a separate deed, for passed by the deed, its cancellation will not divest title or for the indemnity of a purchaser or mortsuch estate so as to revest it in the original own-gagee, or for the production of title-deeds. A er; there must be a re-transfer to effect this. covenant with a penalty is sometimes taken for (b.) By a judicial act, as where by a decision the payment of a debt, instead of a bond with a of a court a deed is declared void (technically condition, but the legal remedy is the same in called a vacat of the instrument), by reason of either case. fraud, or an illegal consideration, or that it attempts to derogate a prior and superior right. The several species of deeds and assurances may be thus classed :

(I.) Those which wholly operate by virtue of the Common Law, subdivided into

(a.) Primary or original which create or divide estates, being

(1.) Feoffment.

(2.) Bargain and sale improper. (3.) Gift.

(4.) Grant.

(5.) Bill of sale.

(6.) Lease.

(7.) Exchange.

(8.) Partition.

(b.) Secondary or derivative, which enlarge, extinguish, delegate the dealing with, or renounce estates already created, being

(9.) Release.

(10.) Confirmation.

(11.) Surrender.

(12.) Assignment.

(13.) Under-lease.

(14.) Power or letter of attorney. (15.) Defeazance.

(16.) Disclaimer.

(II.) Those which wholly operate by virtue of the Statute of Uses, as

(17.) Appointment in exercise of a power concerning uses.

(18.) Revocation and new appointment. (19.) Bargain and sale proper. (20.) Covenant to stand seised. (III.) Those which operate partly by the Common Law and partly by the Statute Law,

as

(21.) Grant to uses.

(22.) Statutory release.

(23.) Feoffment to uses.

DEED-POLL, a single deed in the form of a manifesto or declaration to all the world of the grantor's act and intention. If there be no recital it usually speaks in the first person, but where recitals are introduced it speaks in the third person.

DEEMSTERS (fr. dema, Sax., a judge or umpire), a kind of Common Law Judges in the Isle of Man and in Jersey, who, without process or any charge to the parties, decide all controversies in that island; and they are chosen from among the parties themselves.-Cam. Brit.

DEER-FALD, a park or deer-field.

DEER HAYES, engines or great nets made of cord to catch deer.-19 Hen. VIII. c. 11.

DE ESSENDO QUIETUM DE TOLONIO, a writ which lay for those who were by privilege free from the payment of toll, on their being molested therein.-F. N. B. 226.

DE EXPENSIS CIVIUM ET BURGENTIUM, an obsolete writ addressed to the sheriff to levy the expenses of every citizen and burgess of Parliament.-4 Inst. 46.

DE EXPENSIS MILITUM, a similar writ to the last, to levy the expenses of the knights of the shire for attendance in Parliament.

DE FACTO, of a deed in fact, opposed to de jure, of right lawfully.

The 11 Hen. VII. c. 1. (A. D. 1494) was made for the protection of those who have assisted and supported the king in possession of the crown, whether his title be a good one or not; as the preamble recites it, "to be the duty of the subject to serve their prince and sovereign lord for the time being."

Fuller (Holy State, b. iv. c. viii.) hath given us rather a quaint, but at the same time strongly descriptive account of the perilous situation of the subject before this wise statute. "For they lived in a troublesome world, wherein the cards

(IV.) Those which operate by special custom, were so shuffled, that two kings were turned up

as

as

(24.) Surrender to a lord.

(25.) Admittance of a new tenant. (V.) Those which operate by matter of record,

(26.) Private Act of Parliament. (27.) Royal grants.

trumps at once, which amazed men how to play their games.-Barr on Stat. 451.

DEFAMATION, scandalous words spoken concerning another, tending to the injury of his reputation, for which an action on the case for damages will lie; the 18 & 19 Vict. c. 41. abolished the jurisdiction of the ecclesiastical courts

in suits for defamation as grievous and oppres

sive.

DEFAULT, omission of that which we ought to do; neglect,

When a defendant has a day certain given him in court, and is then demandable, and being demanded does not appear, the court thereupon gives judgment against him by default. The defendant allows judgment by default either intentionally or through mistake or neglect; intentionally, where he has no merits, or where he does so according to a previous agreement with the plaintiff; through mistake when he delivers a plea or rejoinder, &c., so informal or defective that it is treated as a nullity; and through neglect when perhaps he has no merits, but omits to plead, rejoin, &c., within the time limited by the rules of the court for that purpose. This is an implied confession of the action. See JUDG

MENT BY DEFAULT.

Where a defendant makes default at the hearing of a cause in equity, the decree is absolute in the first instance, without giving the defendant a day to show cause, and such decree shall have the same force and effect as if the same had been a decree nisi in the first instance, and afterwards made absolute in default of cause shown by the defendant.-Orders, 26th August, 1841,

44.

the passing of this act (13th of August 1859), be given to any lessee or his assigns, every such license shall, unless otherwise expressed, extend only to the permission actually given, or to any specific breach of any proviso or covenant made or to be made, or to the actual assignment, under-lease, or other matter thereby specifically authorized to be done, but not so as to prevent any proceeding for any subsequent breach (unless otherwise specified in such license); and all rights under covenants and powers of forfeitures and re-entry in the lease contained shall remain in full force and virtue, and shall be available as against any subsequent breach of covenant or condition, assignment, under-lease, or other matter not specifically authorized or made dispunishable by such license, in the same manner as if no such license had been given; and the condition or right of reentry shall be, and remain in all respects as if such license had not been given, except in respect of the particulur matter authorized to be done.—(s. 1.)

Where in any lease heretofore granted, or to be hereafter granted, there is or shall be a power or condition of re-entry on assigning or underletting or doing any other specified act without license, and a license at any time after the passing of this act shall be given to one of several DEFAULTER, one who makes default. lessees or co-owners to assign, or underlet his DEFEAZANCE (fr. defaire, Fr., to undo), a share or interest, or to do any other act procollateral deed accompanying another, and pro- hibited to be done without license, or shall be vides that upon the performance of certain given to any lessee or owner, or any one of sevematters, an estate or interest created by such ral lessees or owners to assign or underlet part other deed, shall be defeated and determined. only of the property, or to do any other such act It is of three kinds: (1.) As applicable to free- as aforesaid in respect of part only of such proholds, but this is now seldom done, as it is pre-perty, such license shall not operate to destroy ferable to set forth the conditions in the deed creating the freehold, so as to be complete in itself. (2.) As applicable to chattels real and executory interests, such as covenants, rents, and annuities; and (3.) as applicable to bonds, recognizances, and warrants of attorney. The first kind, when it is adopted, must be made at the same time with the assurance to which it relates, and form a part of the same transaction. The second and third kinds may be made either at the time of, or at any time after, the execution of the principal assurance.

A defeazance should recite the deed to be defeated and its date: and must be made between the same parties as are interested in the recited deed or their representatives; made with the same formalities which created the estate to be defeated; it must be of a thing defeasible, and all the conditions must be strictly performed before the defeazance can be consummated.

or extinguish the right of re-entry in case of any breach of the covenant or condition by the colessee or co-lessees, or owner or owners, of the other shares or interests in the property, or by the lessee or owner of the rest of the property (as the case may be), over or in respect of such shares or interests, or remaining property, but such right of re-entry shall remain in full force over or in respect of the shares or interests or property not the subject of such license.-(s. 2.)

DEFEASIBLE (fr. defaire, Fr., to make void), that which may be annulled or abrogated. DEFECTUM, challenge, propter. See CHAL

LENGE.

DEFENCE (fr. defensio, Lat.), popularly a justification, protection, or guard; in law, an opposing or denial by the defendant of the truth or validity of the plaintiff's complaint.

At common law, a defendant, after a plaintiff has declared, must either demur or plead. One or other of these courses he is bound to take, if he mean to maintain his defence. If he do neither, but confess the plaintiff's right, or say nothing, the court immediately gives judgment for the plaintiff in the former case as by confession-in the latter, by non pros or nil dicet.

It having hitherto been the law for centuries that a condition in a lease not to alien without license was determined by the first license granted (Dumpor's Case, 4 Co. 119; 45 Eliz. and 1 Smi. L. C. 25-35); a defeazance was frequently adopted in order to revive the condition, and so virtually to limit the license to the particular-Step. Plead. 150. assignment; but the 22 & 23 Vict. c. 35, provides that where any license to do any act which without such license would create a forfeiture, or give a right to re-enter, under a condition or power reserved in any lease heretofore granted, or to be hereafter granted, shall at any time after

In equity, the matters of defence which may be relied on, are in their nature susceptible of two divisions, viz.: (1.) into those which are dilatory, which merely delay or suspend, or obstruct the suit without touching the merits, until the impediment or obstacle insisted on is

removed; and (2.) into those which are peremptory and permanent, and go to the entire merits of the suit.

Dilatory defences may be again divided into four sorts; first to the jurisdiction of the court, insisting that the bill is not preferred to the proper tribunal, which is authorized to entertain the case upon its merits; secondly, to the person, that the bill is preferred by or against an improper person, not competent to maintain or defend it; thirdly, to the form of proceedings, that the suit is irregularly brought, or defective in its appropriate allegations or parties; and, fourthly to the propriety of maintaining the suit itself, because of the pendency of another suit for the same controversy.

Peremptory or permanent defences, may be divided into two sorts; first, those which insist that the plaintiff never had any right to institute the suit; and, secondly, those which insist that the original right, if any, is extinguished or determined. Under the former head may be included the following defences: (1.) that the plaintiff has not a superior right to the defendant; (2.) that the defendant has no interest; and (3.) that there is no privity with the plaintiff, nor any other right to sustain the suit. Under the latter head may be included the following defences (1.) that the right is determined by the act of the parties; or (2.) that it is determined by operation of law.

The modes of defence are four, viz.: (1.) by demurrer, by which the defendant demands the judgment of the court, whether he shall be compelled to answer the bill or not; (2.) by plea, whereby he shows some cause why the suit should be dismissed, delayed, or barred; (3.) by answer, which, controverting the case stated by the bill, confesses and avoids it; or traverses and denies the material allegations in the bill; or, admitting the case made by the bill, submits to the judgment of the court upon it; or relies upon a new case, or upon new matter stated in the answer, or upon both; (4.) by disclaimer, which seeks at once a determination of a suit, by the defendant's disowning all right and interest in the matter sought by the bill. All or any of these modes of defence may be joined; and by the 36th Order, 26th August, 1841, it is ordered, that no demurrer or plea shall be held bad and overruled upon argument, only because it shall not cover so much of the bill as it might by law have extended to. And by the 37th id., no demurrer or plea shall be held bad and overruled upon argument, only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea.-Story's Eq. Plead. 345.

In criminal matters, when a prisoner is brought to the bar and arraigned, he either confesses the charge, stands mute of malice, or does not answer directly to the charge, which may be entered as a plea of not guilty, or pleads to the jurisdiction, or in abatement, or demurs, or pleads specially in bar, or generally, that he is not guilty. In addition to these several modes of defence, there were formerly what were called declinatory pleas the plea of sanctuary and the plea of clergy--both now abolished.-Arch. Plead. by Jervis, 72.

The defence in ecclesiastical courts may be called the answer, in which the defendant denies, extenuates or justifies.

The defence of one's self, or the mutual and reciprocal defence of such as stand in the rela tions of husband and wife, parent and child, master and servant, is a right which belongs to persons. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace which happens is chargeable upon him only who began the affray. Self-defence, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay, even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor. DEFEND, to forbid or deny.

DEFENDANT, the person sued in a personal action, or indicted as tenant, is he who is sued in a real action; but the former term, however, is applicable to actions of every description, and is the expression most commonly used.

DEFENDEMUS, a word used in grants and donations, which binds the donor and his heirs to defend the donee, if any one go about to lay any incumbrance on the thing given, other than what is contained in the deed of donation.— Bract. 1. ii. c. 16.

DEFENDER OF THE FAITH (fidei defensor, Lat.), a peculiar title belonging to the Sovereign of England, as Catholic to the King of Spain, and Most Christian to the King of France. These titles were originally given by the Popes of Rome; and that of Defensor Fidei was first conferred by Pope Leo X. on our King Henry VIII. as a reward for writing against Martin Luther; and the bull for it bears date quinto Idus, Octob. 1521. Yet the Pope, on King Henry's suppressing the houses of religion at the time of the Reformation, not only sentenced him to be deprived of this title, but to be deposed also from his crown; though in the thirty-fifth year of his reign, this title was confirmed by Parliament, and has continued to be used by all succeeding sovereigns to this day.-Encyc. Lond.

DEFENDERE se per corpus suum. To offer duel or combat as a legal trial and appeal. Abolished by 59 Geo. III. c. 46. See BATTEL.

DEFENDERE unicâ manu, to wage law; & denial of an accusation upon oath. See WAGER oF LAW.

DEFENERATION (fr. de of, and fœnero, Lat., to lend upon usury), the act of lending money on usury.

DEFENSA, a park or place fenced in for

deer.

DEFENSIVA, a lord or earl of the marches, who were the wardens and defenders of their country.-Cowel.

DEFENSIVE ALLEGATION, the mode of propounding circumstances of defence by a de

DEGRADATION, a deprivation of dignity; dismission from office. An ecclesiastical cenDEFENSO, that part of any open field or sure, whereby a clergyman is divested of his holy place that was allotted for corn or hay, and orders. There are two sorts by the canon law: upon which there was no common or feeding, one, summary, by word only; the other solemn, was anciently said to be in defenso: so of any by stripping the party degraded of those ornameadow ground that was laid in for hay only. ments and rights which are the ensigns of his It was likewise the same of a wood where part degree. Degradation is otherwise called depowas inclosed or fenced, to secure the growth sition, but the canonists have distinguished beof the underwood from the injury of cattle.-tween those two terms; deeming the former as Cowel.

DEFENSUM, an inclosure of land, any fenced likewise a degradation of a lord or knight at ground. DEFERRED LIFE ANNUITIES, granted | 13 Car. II. c. 16. by Commissioners for reduction of the National Debt. See 16 & 17 Vict. c. 45, s. 2.

DE IDIOTA INQUIRENDO, an obsolete common law writ to inquire whether a man be an idiot or not, which must have been tried by a jury of twelve men; and if they find him purus DEFINITIVE SENTENCE, the final judg-idiota, the profits of his lands and the custody ment of a spiritual court, in opposition to provisional or interlocutory judgment.

the pleading to be answered consists of or comprises matter of title, or interest in the land, &c., the commandment of the plaintiff, or authority derived from him, matter of record, of discharge, satisfaction, or release, in any of these cases the traverse de injuria is generally improper, and the denial of any of these matters should be in the common form, that is, in the words of the allegation traversed.

Where this replication has been improperly adopted, instead of an ordinary traverse, the objection must be taken by way of special and not of general demurrer. Consult Crogate's case, 8 Rep. 67a; 2 Saund. 295 n. (1.); Stephen's Plead.

190.

tion, that one or more of the firm shall have as-
sented to his introduction; for the dissent of a
single partner will exclude him, since it would,
in effect, otherwise amount to a right of one or
more of the partners to change the nature, and
terms, and obligations of the original contract,
and to take away the delectus persona, which is
essential to the constitution of a partnership.
So stubborn, indeed, is this rule, that even the
executors and other personal representatives of
a partner do not, in that capacity, succeed to
the state and condition of that partner. The
Roman law is direct to the same purpose. It
even pressed the rule to a still further extent.
and held that a positive stipulation between the
partners at the commencement of the partner-

DEIS or DAIS. See DAGUS.
DEJERATION (fr. dejero, Lat.), a taking ship, that the heir or personal representative of

of a solemn oath.

DE JURE (Lat.), by right.

a partner should succeed him in the partnership. was inoperative and incapable of being enforced. De jure decimarum, originem ducens de jure The common law, however, treats such a stipupatronatus, tunc cognitio, spectat ad legem civi-lation as valid and obligatory. This also, acTem, i. e. communem. Godb. 63. With regard cording to Pothier, was the doctrine of the old to the right of tithes, deducing its origin from French law; and the modern code of France the right of the patron, then the cognizance of has expressly adopted it, in opposition to the them belongs to the civil law, that is, the com- Roman law. Such is the law of Scotland.— mon law.) Story on Partnership, 6.

De jure judices, de facto juratores, respondent. (The judges answer to the law, the jury to the fact.)

Delegata potestas non potest delegari. 2 Inst. 597. A delegated power cannot be delegated.)

A fundamental rule of the common law, upon which the whole system of pleading is built. "It is of the greatest consequence," said Lord Hard-1 wicke, "to the law of England, and also to the subject, that the power of the judge and jury be kept distinct that the judge determine the law, and the jury the fact: if ever they come to be confounded, it will prove the confusion and destruction of the law of England."

DELAMERE, Forest of. See 19 & 20 Vict.

c. 13.

The Crown may, however, delegate to an individual the power of appointing the first members of a corporation created by charter under Vict. c. 78; or a person to ascertain the individuals who compose the class to whom the charter is granted.

DELEGATES, the High Court of, the appeal tribunal from the Ecclesiastical and Admiralty Court. Abolished; the Judicial Committee of the Privy Council being constituted the immediate court of appeal in such cases.-2 & 3 Wm. IV. c. 92; 3 & 4 Wm. IV. c. 41; 6 & 7 Vict. c. 38.

DE LA PLUS BELLE, Dower, where a wife was endowed with the fairest part of her DELEGATION, a sending away; a putting husband's estate. It being a consequence of the into commission; the assignment of a debt to tenure by knight's service, it is virtually abo-another; the intrusting another with a general lished by the statute 12 Car. II. c. 24, which power to act for the good of those who depute converts those tenures into socage. him. DELATOR (Lat.), an accuser, an informer, a sycophant.

DELATURA, an accusation, also the reward of an informer.

Delegatus debitor est odiosus in lege. 2 Buls. 148. (A delegated debtor is hateful in law.) Delegatus non potest delegare. (A delegate cannot delegate.)

DEL CREDERE (a phrase borrowed from The person to whom any office or duty is delethe Italians, exactly equivalent to our word gua- gated, cannot lawfully devolve the duty upon ranty or warranty, or the Scotch term warran- another, unless he be expressly authorized so to dice), an agreement, so called, by which a factor, do. An exception to this maxim arises from an for an additional premium, when he sells goods implied authority by the recognized usage of on credit, becomes bound to warrant the sol- trade; as, for instance, in the case of an archivency of the purchasers, and renders himself lia-tect or builder, who employs a surveyor to make ble at all events to the payment of the price of out the quantities of the building proposed to be the goods sold. It is in fact a guaranty.-Story's erected; here the civil law maxim applies-in Agency, 28. A del credere factor or agent is a surety to his principal.

DELECTUS PERSONE (the choice of a person.) It is an established principle of the common law, that, as a partnership can commence only by the voluntary contract of the parties; so, when it is once formed, no third person can be afterwards introduced into the firm as a partner, without the concurrence of all the partners who compose the original firm. It is not sufficient, to constitute the new rela

contractis tacitè insunt quæ sunt moris et consuetudinis-terms which are in accordance with, and warranted by custom and usage, may, in some cases, be tacitly imported into contracts.

Deliberandum est diu quod statuendum est semel. 12 Co. 74. (That which is to be resolved once for all, should be long deliberated upon.)

DELICTUM, challenge propter. See CHAL