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word is derived from the Latin, datum, because when deeds and agreements were written in that language, immediately before the day, month and year in which they were made, was set down, it was usual to put the word datum, given. All writings ought to bear a date, and in some it is indispensable, in order make them valid, as in policies of insurance; but the date in these instruments is not inserted in the body of the writing, because as each subscription makes a separate contract, each underwriter sets down the day, month and year, he makes his subscription. Marsh. Ins. 3.16. Deeds, and other writings, when the date is an impossible one, take effect from the time of delivery, the presumption of law is, that the > deed was dated on the day it bears date, unless, as just mentioned, the time is impossible; for example, the 32d day of January. The proper way of dating, is to put the day, month, and year of our Lord, the hour need not be mentioned, unless specially required; an instance of which may be taken from the Pennsylvania act, of the 1 tith of June, 1836, sect. 40, which requires the sheriff on receiving a writ of fieri facias, or other writ of execution, to endorse thereon the day of the month, the year and the hour of the day whereon he received the same. In public documents, it is usual to give not only the day, the month and the year of our Lord, but also the year of the United States, when issued by authority of the general government, or of the commonwealth, when issued under its authority. Vide, generally, Bac. Ab. Obligations, C; Com. Dig. Fait, B 3; Cruise, Dig. tit. 32, c. 20, s. 1-6; 1 Burr. 60; 2 Rol. Ab. 27, 1. 22; 13 Vin. Ab. 34; Dane's Ab. Index, h. t. See Almanac.
DATION, civil law, contracts, is the act of giving something. It differs from donation, which is a gift;
dation, on the contrary, is giving something without any liberality, as the giving of an office. Dation in payment, datio in subitum, which was the giving one thing in payment of another, which was due, corresponds nearly to the accord and satisfaction of the common law.
DATION EN PAIEMENT, civil law. This term is used in Louisiana; it signifies that, when instead of paying a sum of money due on a preexisting debt, the debtor gives and the creditor agrees to receive a movable or immovable. It is somewhat like the accord and satisfaction of the common law. 16 Toull. n. 45; Poth. Vente, n. 601. Dation en paiement is somewhat like the contract of sale; dare in solutum, est quasi vendor. There is, however, a very marked difference between a sale and a dation en paiement. 1st. The contract of sale is complete by the mere agreement of the parties; the dation en paiement requires a delivery of the thing given. 2d. When the debtor pays a certain sum which he supposed he was owing, and he discovers he did not owe so much, he may recover back the excess, not so when property other than money has been given in payment. 3d. He who has in good faith sold a thing of which he believed himself to be the owner, is not precisely required to transfer the property of it to the buyer; and, while he is not troubled in the possession of the thing, he cannot pretend that the seller has not fulfilled his obligations. On the contrary the dation en paiement is good only when the debtor transfers to the creditor the property in the thing which he has agreed to take in payment; and if the thing thus delivered be the property of another, it will not operate as a payment. Poth. Vente, n. 602, 603, 604.
DATIVE, that which may be given or disposed of at will and pleasure. It sometimes means that which is not cast upon the party by the law, or by a testator, but which is given by the magistrate; in this sense it is, that tutorship is dative, when the tutor is appointed by the magistrate. Lec,. Elem. § 239; Civ. Code of Lo. art. 268, 1671.
DAY, is a division of time. It is natural, and then it consists of twenty-four hours; or artificial, which contains the time, from the rising until the setting of the sun, except a short time before rising and after setting. Vide Night; and Co. Lit. 135, a. Days are sometimes calculated exclusively, as when an act required that an appeal should be made within twenty days after a decision. 3 Penna. 200; 3 B. & A. 581; 15 Serg. & Rawle, 43. In general, if a thing is to be done within such time after such a fact, the day of the fact shall be taken inclusively. Hob. 139; Doug. 463; 3 T. R. 623; Com. Dig. Temps, A; 3 East, 407. The law, generally, rejects fractions of days, but in some cases it takes notice of such parts. 2 B. & A. 586. Vide Date. By the custom of some places, the word days, is understood to be working days, and not including Sundays; 3 Espin. N. P. C. 121. Vide, generally^ Chit.Bl. 141, note 3; 1 Chit. Pr. 774, 775; 3 Chit. Pr. 110; Lill. Reg. h. t.; 1 Rop. Leg. 518; 15 Vin. Ab. 554; Dig. 33, 1, 2; Dig. 50, 16, 2, 1; lb. 2, 12, 8; and articles, Hour; Month; Year.
DAY BOOK, mer. law, is an account book, in which merchants and others make entries of their daily transactions. This is generally a book of original entries, and as such may be given in evidence to prove the sale and delivery of merchandize or of work done.
DAY RULE, or DAY WRIT, in English practice, is a rule or order
of the court, by which a prisoner on civil process, and not committed, is enabled, in term time, to go out of the prison, and its rules or bounds; a prisoner is enabled to quit the prison, for more or less time, by three kinds of rules, namely; 1, the dayrule; 2, the term-rule; and, 3, the rules. See 9 East, R. 151.
DAYS IN BANK, Eng. practice, are days of appearance in the court of common pleas, usually called bancum. They are the distance of about a week from each other, and are regulated by some festival of the church. 3 Bl. Com. 277.
DAYS OF GRACE, are certain days after the time limited by the bill or note, which the acceptor or drawer has a right to demand for payment of the bill or note; these days were so called because they were formerly gratuitously allowed, but now, by the custom of merchants, sanctioned by decisions of courts of justice, they are demandable of right. The number of these in the United States is generally three. Chitty on Bills, h. t.; but where the last day of grace happens on the 4th of July, 2 Caines's Cas. in Err. 195, or on Sunday, 2 Caines's R. 343; 7 Wend. 460, the demand must be made on the day previous. In Louisiana, the days of grace are no obstacle to a set-off, the bill being due for this purpose, before the expiration of those days. Louis. Code, art. 2206. In France all days of grace, of favour, of usage, or of local custom, for the payment of bills of exchange are abolished. Code de Comm. art. 135.
DE, a preposition used in many Latin phrases; as, de bene esse, de bonis non.
DE BENE ESSE, practice. A technical phrase applied to certain proceedings which are deemed to be well done for the present, or until an exception or other avoidance; that is, conditionally, and in that meaning is the phrase usually accepted. For example, a declaration is filed or delivered, special bail put in, witness examined, &c, de bene esse, or conditionally; good for the present. When a judge has a doubt as to the propriety of finding a verdict, he may direct the jury to find one de bene esse; which verdict if the court shall afterwards be of opinion it ought to have been found, shall stand. Bac. Ab. Verdict, A. Vide 11 S. & R. 84.
DE BONIS NON. This phrase is used to signify that the goods of a deceased person have not all been administered. When an executor or administrator has been appointed, and the estate is not fully settled, and the executor or administrator is dead, has absconded, or from any cause has been removed, a second administrator is appointed to perform the duty remaining to be done, who is called an administrator de bonis non, an administrator of the goods not administered, and he becomes by the appointment the only representativc of the deceased. 11 Vin. Ab. I11; 2 P. Wms. 340; Com. Dig. Administration, B 1; 1 Root's R. 425. And it seems that though the estate has been distributed, an administrator de bonis non may be appointed, if some debts remain unsatisfied. 1 Root's R. 174.
DE BONIS PROPRIIS. Of his own goods. When an executor or administrator has been guilty of a devastavit, (q. v.) he is responsible for the loss which the estate has sustained, de bonis propriis. He may also subject himself to the payment of a debt of the deceased de bonis propriis, by his false plea, when sued in a representative capacity; as, if he plead plene administravit, and it be found against him, or a release to himself, when false. In this latter case the judgment is de bonis testatoris si, el si non de bonis propriis.
1 Saund. 330 b, n. 10; Bac. Ab. Executor, B 3.
DE FACTO, i. e. in deed; a term used to denote a thing actually done; a president of the United States de facto is one in the exercise of the executive power, and is distinguished from one who being legally entitled to such power is ejected from it; the latter would be a president de jure. An officer de facto is frequently considered as an officer de jure, and his official acts are of equal validity. 10 S. & R. 350; 4 Binn. R. 371; 11 S. & R. 411, 414.
DE HOMINE REPLEGIANDO. Vide Homine Repltgiando,
DE INJURIA, pleading. The name of a replication in an action for a tort, that the defendant committed the trespasses or grievances of his own wrong without the causo by him in his plea alleged. The import of this replication is to insist that the defendant committed the act complained of, from a motive and impulse altogether different from that insisted on by the plea. For example, if the defendant has justified a battery under a writ of capias, having averred as he must do, that the arrest was made by virtue of the writ; the plaintiff may reply de injuria sua propria absque tali causa, that the defendant did the act of his own wrong, without the cause by him alleged. This replication, then, has the effect of denying the alleged motive contained in the plea, and to insist that the defendant acted from another, which was unlawful, and not in consequence of the one insisted upon in his plea. Steph. PI. 186;
2 Chit. PI. 523, 642; Hamm. N. P. 120, 131; Arch. Civ. PI. 264 ; Com. Dig. Pleader, F 19. The form of this replication is, "precludi non, because he says that the said defendant at the same time when, <Scc. of his own wrong and, without the cause by him in his said second plea alleges cd, committed the said trespass in the introductory part of that plea, in manner and form as the said plaintiff hath above in his said declaration complained against the said defendant, and this the said plaintiff prays may be inquired of by the country, &C." This is the uniform conclusion of such a replication. 1 Chit. PI. 585. The replication de injuria is only allowed when an excuse is offered for personal injuries. 1 B. & P. 76; 5 Johns. R. 112; 4 Johns. 100; 12 Johns. 491. Vide 7 Vin. Ab. 503; 3 Saund. 295, note; 1 Lilly's Reg. 587.
DE JURE, by right. Vide De facto.
. DE MERCATORIBUS. This is the name of a statute passed in the 11 Edw. I.; it is usually called the statute of Acton Burnell, De Mercatoribus. It was passed in consequence of the complaints of foreign merchants, who could not recover their claims because the lands of the debtors could not be sold for their debts. It enacted that the chattels and devisable burgages of the debtor might be sbld for the payment of their debts. Cruise, Dig. t. 14, s. 6.
DE NOVO. Anew; afresh.— When a judgment is reversed on error, for some mistake made by the court, in the course of the trial, a venire de novo is awarded in order that the case may again be submitted to a jury.
DE 'ODIO ET ATIA. Vide Writ de odio et atia.
DE PROPRIETATE PROBANDA, Eng. practice, is the name of a writ which issues in a case of replevin, when the defendant claims property in the chattels replevied, and the sheriff makes a return accordingly. This writ directs the sheriff to summon an inquest to determine on the validity of the claim, and, if they find for the plaintiff to replevy the chattels; but- if they find for the
defendant, the sheriff merely returns their finding. The plaintiff is not concluded by such finding, he may come into the court above and traverse it. Hamm. N. P. 456.
DE SON TORT. Of his own wrong. This term is usually applied to a person who, having no right to meddle with the affairs or estate of a deceased person, yet undertakes to do so, by acting as executor of the deceased. Vide Executor <le son tort.
DE SON TORT DEMESNE, pleading. The name of a replication in an action for a wrong or injury. When the defendant pleads a matter merely in excuse of an injury to the person or reputation of another, the plaintiff may reply de son tort demesne sons tie! cuuse; that it was the defendant's own wrong without such cause. Vide the articles, De Injuria, and Without, and also 8 Co. 67 a; Bro. h. t.; Com. Dig Pleader, F 18.
DEAD BODY, crim. law. A corpse. To take up a dead body i without lawful authority, even for the purposes of dissection, is a misdemeanor, for which the offender may be indicted at common law. 1 Russ. on Cr. 414; 1 Dowl. & R. 13; Russ. & Ry. 366, n. (b); 2 Chit. Cr. Law, 35; this offence is punished by statute in New Hampshire, Laws of N. H. 339, 340; in Vermont, Laws of Vermont, 368, c. 361; in Massachusetts, stat. 1830, c. 51 ; 8 Pick. 370; 11 Pick. 350; in New York, 2 Rev. Stat. 688. Vide 1 Russ. 414, n. (A). The preventing a dead body from being buried is also an indictable offence. 2 T. R. 734: 4 East, 460; 1 Russ. on Cr. 415 and 416, note (A). To inter a dead body found in a river, it seems, would render the offender liable to an indictment for a misdemeanor, unless he first sent for the coroner. 1 Kenyon's R. 250.
DEAD BORN, descent, persons. Children dead born are considered in law as if they had never been conceived, so that no one can claim a title by descent through such dead born child. This is the doctrine of the civil law, Dig. 50,16, 129. Non nasci, et nutuni mori, pari sunt. Mortuus exitus, non est exitus. Civil Code of Louis. art. 28; as a child in ventre sa mere is considered by the common law in being only when it is for its advantage, and not for the benefit of a third person, the rule in the common law is probably the same, that a dead born child is to be considered as if he had never been conceived or born; in other words it is presumed he never had life. It being a maxim of the common law that mortuus exitus non est exitus. Co. Lift. 29 b. See 2 Paige, R. M.
DEAD FREIGHT, contracts. When the charterer of a vessel has shipped part of the goods on board, and is not ready to ship the remainder, the master, unless restrained by his special contract, may take other goods on board, and the amount which is not supplied, required to complete the cargo, is called dead freight. The dead freight is to be calculated according to the actual capacity of the vessel. 3 Chit. Com. Law, 399; 2 Stark. 4511.
DEAD MAN'S PART, English law. By the custom of London, when a deceased freeman of the city left a widow and children, after deducting what was called the widow's chamber, (q. v.) his personal property was divided into three parts; one of which belonged to the widow, another to the children, and the third to the administrator. When there was only a widow, or only children, in either case they respectively took one moiety, and the administrator the other; when there was neither widow nor child, the administrator took the whole for his own use; and this
portion was called the dead man's part. By statute of 1 Jac. 2, c. 17, this was changed and the dead man's part is declared to be subject to the statute of distribution. 2 Bl. Com. 518. Sec Bac. Ab. Customs of London, D 4.
DEAD LETTERS, are those which remain in the post office, uncalled for. By the act of March 3, 1825, 3 Story, L. U. S. 1993, it is enacted by § 26, " That the postmasters shall, respectively, publish, at the expiration of every three months, or oltener, when the postmaster general shall so direct, in one of the newspapers published at or nearest the place of his residence, for three successive weeks, a list of all the letters | remaining in their respective offices; or, instead thereof, shall make out a number of such lists, and cause them to be posted at such public places in their vicinity, as shall appear to them best adapted for the information of the parties concerned; and, at the expiration of the next three months, shall send such of the said letters as then remain on hand, as dead letters, to the general post office, where the same shall be opened and inspected; and if any valuable papers or matters of consequence, shall be found therein, it shall be the duty of the postmaster general to return such letter to the writer thereof, or cause a descriptive list thereof to be inserted in one of the newspapers published at the place most convenient to the supposed residence of the owner, if within the United States; and such letter, and the contents, shall be preserved, to be delivered to the person to whom the same shall be addressed, upon payment of the postage, and the expense of publication. And if such letter contain money, the postmaster general may appropriate it to the use of the department, keeping an account thereof, and the amount shall be paid by the department to the rightful claim