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tiously comes in collision with another carriage, 1 Stark. R. 423; 1 Campb. R. 167; or does not exercise a sound and reasonable discretion in travelling on the road, to avoid dangers and difficulties, and any accident happens by which any passenger is injured, both the driver and his employers will be responsible. 2 Stark. R. 37; 3 Engl. C. L. Rep. 233; 2 Esp. R. 533; 11 Mass. 57; 6 T. R. 659; 1 East, R. 106; 4 B. & A. 590; 6 Eng. C. L. R. 528. Vide Common Carriers; Negligence; Quasi Offence.
DROIT, a French word, in which that language signifies the whole collection of laws, written and unwritten, and is synonymous to our word law. It also signifies a right, il n'existe point de droits sans devoirs, et vice versa. 1 Toull. n. 96; Poth. h. t. With us it means right,
fit of intoxication, and which is the immediate result of it. When the act is a remote consequence, superinduced by the antecedent drunkenness of the party, as in cases of delirium tremens or mania a potu, the insanity excuses the act. 5 Mason's R. 28; Amer. Jurist, vol. 3, p. 5-20; Martin & Yeager's R. 133, 147; Dane's Ab. Index, h. t.;
1 Russ. on Cr. 7; Ayliffe's Parerg. 231; 4 Bl. Com. 26. As there must be a will and intention in order to make a contract, it follows that a man who is in such a state of intoxication as not to know what he is doing, may avoid a contract entered into by him while in this state. 2 Aik. Rep. 167; 1 Green, R. 233;
2 Verm. 97; 1 Bibb, 168; 3 Hayw. R. 82; 1 Hill, R. 313; 1 South.' R. 361 ; Bull. N. P. 172; 1 Ves. 19; 18 Ves. 15; 3 P. Wms. 130,n. (a);
jus. Co. Litt. 158. A person was Sugd. Vend. 154; 1 Stark. 126; 1
said to have droit droit, plurimum juris, and plurimum posse.isio?iis, when he had a freehold, the fee, and the property in him. Ib. Crabb's H. Eng. L. 400.
DROIT D'AUBAINE, jus albi. natus, was a rule by which all the property of a deceased foreigner, whether movable or immovable, was confiscated to the use of the state, to the exclusion of his heirs, whether
South. R. 361; 2 Hayw. 394; but see 1 Bibb, R. 406; Rav's Med. Jur. cb. 23, 24; Fonbl. Eq.B. 1, c. 2, § 266 ; I 3; 22 Am. Jur. 290. Vide EbrioJ sity; Habitual drunkard. •
DRY EXCHANGE, contracts.— A term invented for disguising and covering usury; in which something was pretended to pass on both sides, when in truth nothing passed on one side, whence it was called dry. Stat.
claiming ab intestate, or under a will 3 Hen. 7, c. 5. of the deceased. As the darkness of | DRY RENT, contracts, rentthe middle ages wore away, and the i seek, was a rent reserved without a light of civilization appeared, this . clause of distress.
barbarous and inhospitable usage was by degrees discontinued, and is now nearly abolished in the civilized world. Vide Albinatus jus.
DRUNKENNESS, intoxication with strong liquor. This is . an offence generally punished by local regulations, more or less severely. Although drunkenness reduces a man to a temporary insanity, it does not excuse him or palliate his oflence, when he commits a crime during a
DUCES TECUM, practice, evidence, i. e. bring with thee. A writ, commonly called a subpoena duces tecum, commanding the person to whom it is directed to bring with him some writings, papers, or other things therein specified and described, before the court. 1 Phil. Ev. 386. In general all papers in the possession of the witness must be produced ; but to this general rule there are exceptions, among which are the following.
1. That a party is not bound to exhibit his own title deeds, 1 Stark. Ev. 87; 3 C. & P. 591; 2 Stark. R. 203; 9 B. & Cr. 288.-2. One who has advanced money on a lease and holds it as his security, is not bound to produce it, 6 C. & P. 728.—3. Attorneys and solicitors, who hold the papers of their clients cannot be compelled to produce them, unless the client could have been so compelled. 6 Carr. &. P. 728. See 5 Cowen, R. 153, 419; Esp. R.405; 11 Price, R. 455; 1 Adol. '\c Ell. 31; 1 C. M. & R. 38; 1 Hud. & Brooke, 749.
DUCKING STOOL, punishment, an instrument used in dipping women in the water as a punishment on conviction of being common scolds. It is sometimes confounded with tumbrel (q. v.) This barbarous punishment was never in use in Pennsylvania. 12 Serg. & Rawle, 220.
DUELLING, crim. law, is the fighting of two persons one against the other, at an appointed time and place, upon a precedent quarrel. It differs from an affray in this, that the latter occurs on a sudden quarrel, while the former is always the result of design. When one of the parties is killed, the survivor is guilty of murder. I Russ. on Cr. 443; 1 Yerger's R. 228; fighting a duel, even where there is no fatal result is of itself a misdemeanor. Vide 2 Com. Dig. 252; Roscoe's Cr. Ev. 610; 2 Chit. Cr. Law, 728; lb. 848f Com. Dig. Battel, B; 3 Inst. 157; 6 East, 464; Hawk. B. 1, c. 31, s. 21; 3 East, R. 581; 3 Bulst. 171; 4 Bl. Com. 199; Prin. Pen. Law, c. 19, p. 245. For cases of mutual combat upon a sudden quarrel, vide 1 Russ. on Cr. 495.
DUMB. Vide Mute.
DUMB BIDDING, contracts. In sales at auction, when the amount which the owner of the thing sold is willing to take for the article, is
written and placed by the owner under a candlestick or other thing, and it is agreed that no bidding shall avail unless equal to that, this is called dumb bidding. Babingt. on Auct. 44.
DUNG. Vide Manure.
DUNNAGE, mer. law, pieces of wood placed against the sides and bottom of the hold of a vessel to preserve the cargo from the effect of leakage, according to its nature and quality. 2 Magens, 101, art. 125, 126; Abbott on Shipp. 227.
DUPLICATA. It is the double of letters-patent, letters of administration or other instrument.
DUPLICATE, is the double of any thing. It is usually applied to agreements, letters, receipts, and the like, when two originals are made of either of them. Each copy has the same effect. In the English law, it also signifies the certificate of discharge given to an insolvent debtor, who takes the benefit of the act for the relief of insolvent debtors.
DUPLICITY, pleading. Duplicity, or double pleading, consists in alleging, for one single purpose or object, two or more distinct grounds of complaints or defence, when one of them would be as effectual in law, as both or all. This the common law does not allow, because it produces useless prolixity, and always tends to confusion, and to the multiplication of issues. Co. Litt. 304, a; Finch's Law, 393; 3 Bl. Com. 311; Bac. Ab. Pleas, K 1. Duplicity may be in the declaration, or the subsequent proceedings. Duplicity in the declaration consists in joining, in one and the same count, different grounds of action, of different natures. Cro. Car. 20; or of the same nature, 2 Co. 4 a; 1 Saund. 58, n. 1; 2 Ventr. 198; Steph. PI. 266; to enforce only a single right of recovery. This is a fault in pleading, only be. cause it tends to useless prolixity and confusion, and is, therefore, only a fault in form. The rule forbidding double pleading "extends," according to Lord Coke, " to pleas perpetual or peremptory, and not to pleas dilatory; for in their time and place a man may use divers of them." Co. Litt. 304, a. But by this is not meant that any dilatory plea may be double, or, in other words, that it may consist of different matters, or answers to one and the same thing; but merely, that as there are several kinds or classes of dilatory pleas, having distinct offices or effects, a defendant may use " divers of them" successively, (each being in itself single,) in their proper order. Steph. PI. App. note 56. The inconveniences which were felt in consequence of this strictness were remedied by the statute 4 Ann, c. 16, s. 4, which provides that "it shall be lawful, for any defendant, or tenant in any action or suit, or for any plaintiff in replevin, in any court of record, with leave of the court to plead as many several matters thereto as he shall think necessary for his defence." This provision, or a similar one, is in force probably in most of the states of the American Union. Under this statute, the defendant may, with leave of court, plead as many different pleas in bar, (each being in itself single,) as he may think proper; but although this statute allows the defendant to plead several distinct and substantive matters of defence, in several distinct pleas, to the whole, or one and the same part of the plaintiff's demand; yet, it does not authorise him to allege more than one ground of defence in one plea. Each plea must still be single, as by the rules of the common law. Lnwes, PI. 131; 1 Chit PI. 512. This statute extends only to pleas to the declaration, and does not embrace replications, rejoinders, nor any of the subsequent
pleadings. Lawes, PI. 132; 2 Chit. PI. 421; Com. Dig. Pleader, E 2; Story's PI. 72, 76. Vide, generally; 1 Chit. PI. 230, 512; Steph. PI. c. 2, s. 3, rule 1; Gould on PI. c. 8, p. 1; Archb. Civ. PI. 191; Doct. PI. 222; 5 John. 240; 8 Vin. Ab. le3.
DURANTE, a term equivalent to during, which is used in some law phrases, as durante absentia, during absence; durante minore state, during minority; durante bene placito, during our good pleasure.
DURANTE ABSENTIA. When the executor is out of the jurisdiction of the court or officer to whom belongs the probate of wills and granting letters of administration, letters of administration will be granted to another during the absence of the executor; and the person thus appointed is called the administrator durante absentia.
DURESS, is an actual or a threatened violence or restraint of a man's person contrary to law, to compel him to enter into a contract, or to discharge one. Sir William Blackstone divides duress into two sorts ; first, duress of imprisonment, where a man actually loses his liberty. If a man is illegally deprived of his liberty until he signs and seals a bond or the like, he may allege this duress and avoid the extorted bond. But if a man be legally imprisoned, and either to procure his discharge, or on any other fair account, seals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it. 2 Inst. 482; 3 Caines's R. 168; 6 Mass. R. 511; 1 Lev. 69; 1 Hen. & Munf. 350; 5 Shipl. R. 338. Where the proceedings at law are a mere pretext, the instrument may be avoided. Aleyn, 92; 1 Bl. Com. 136. Secondly, Duress per minas, which is either for fear of loss of life, or else for fear of mayhem, or loss of limb; and this must be upon a sufficient reason. 1 Bl. Com. 131. In this case a man may avoid his own act. Ib. Lord Coke enumerates four instances in which a man may avoid his own act by reason of menaces; 1st, for fear of loss of life; 2dly, of member; 3dly, of mayhem; 4thlv, of imprisonment. 2 Inst. 483; 2 Roll. Abr. 124; Bac. Ab. Duress; Id. Murder, A; 2 Str. R. 856 ; Fost. Cr. Law, 322; 2 St. R. 884; 2 Ld. Raym. 1578.
In Louisiana consent to a contract is void if it be produced by violence or threats, and the contract is invalid. Civ. Code of Louis. art. 1844. It is not every degree of violence or any kind of threats, that will invalidate a contract; they must be such as would naturally operate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputation or fortune. The age, sex, state of health, temper and disposition of the party, and other circumstances calculated to give greater or less effect to the violence or threats, must be taken into consideration. Ib. art. 1845. A contract by violence or threats, is void, although the party in whose favour the contract is made, did not exercise the violence or make the threats, and although he were ignorant of them. Ib. 1846. Violence or threats are cause of nullity, not only where they are exercised on the contracting party, but when the wife, the husband, the descendants or ascendants of the party are the object of them. Ib. 1847. If the violence used be only a legal constraint, or the threats only of doing that which the party using them had a right to do, they shall not invalidate the contract. A just and legal imprisonment, or threats of any measure authorised by law, and the circumstances of the case, are of this description. Ib. 1850. But the mere forms of law
to cover coercive proceedings for an unjust and illegal cause, if used or threatened in order to procure the assent to a contract, will invalidate it; an arrest without cause of action or a demand of bail in an unreasonable sum, or threat of such proceeding, by this rule invalidate a contract made under their pressure. Ib. 1851. All the above articles relate to cases where there may be some other motive besides the violence or threats for making the contract. When, however, there is no other cause for making the contract, any threats, even of slight injury, will invalidate it. Ib. 1853.
DUTIES. In its most enlarged sense, this word is nearly equivalent to taxes, embracing all impositions or charges levied on persons or things; in its more restrained sense, it is often used as equivalent to distorts, (q. v.) or imposts, (q. v.) Story Const. § 949. Vide for the rate of duties payable on goods and merchandize, Gord. Dig. B. 7, t. l,c. 1; Story's L. U. S. Index, h. t.; Act of August 30, 1842.
DUTY, natural law, is a human action which is exactly conformable to the laws which require us to obey them. It differs from a legal obligation, because a duty cannot always be enforced by the law; it is our duty, for example, to be temperate in eating, but we are under no legal obligation to be so; we ought to love our neighbours, but no law obliges us to love them. Duties may be considered in the relation of man towards God, towards himself, and towards mankind. 1. We are bound to obey the will of God as far as we are able to discover it, because he is the sovereign Lord of the universe who made and governs all things by his almighty power, and infinite wisdom. The general name of this duty is piety; which consists partly in entertaining just opinions concerning him, and partly in such affections towards him, and such worship of him, as is suitable to these opinions. 2. A man has a duty to perform towards himself; he is bound by the law of nature to protect his life and his limbs; it is his duty, too, to avoid all intemperance in eating and drinking, and in the unlawful gratification of all his other appetites. 3. He has duties to perform towards others. He is bound to do others the same justice which he would have a right to expect them to do to him.
DWELLING HOUSE. A building inhabited by man. A mansion, (q. v.) A part of a house, is in one sense, a dwelling house; for example, where two or more persons rent of the owner different parts of a house, so as to have among them the whole house, and the owner does not reserve or occupy any part, the separate portion of each will, in cases of burglary, be considered the dwelling house of each. 1 Mood. Cr. Cas. 23. At common law in cases of burglary, under the term dwelling house are included the out-houses within the curtilage or common fence with the dwelling house. 3 Inst. 64; 4 Bl. Com. 225; and vide Russ. & Ry. Cr. Cas. 170; Id. 186; 16 Mass. 105; 16 John. 203; 18 John. 115;
4 Call, 109; 1 Moody, Cr. Cas. 274; Burglary; Door; House; Jail; Mansion.
DYING DECLARATION. Vide Death; Declarations.
DYSPEPSIA, med. jur., contracts. A state of the stomach in which its functions are disturbed, without the presence of other diseases ; or when, if other diseases are present, they are of minor importance. Dunglisson's Med. Diet. h. t. Dyspeptia is not, in general, considered as a disease which tends to shorten life, so as to make a life uninsurable; unless the complaint has become organic dyspepsia, or it was of such a degree at the time of the insurance as, by its excess, it tended to shorten life. 4 Taunt. 763.
DYVOUR in the Scotch law, is a bankrupt.
DYVOUR'S HABIT, in Scotland, is a habit which debtors who are set free on a cessio bonorum, are obliged to wear, unless in the summons and process of cessio, it be libelled, sustained, and proved that the bankruptcy proceeds from misfortune. And bankrupts are condemned to submit to the habit, even where no suspicion of fraud lies against them, if they have been dealers in an illicit trade. Ersk. Pr. L. Scot. 4, 3, 13.