DETAINER. 1. The act of keeping a person against his will, or of keeping goods or property. All illegal detainers of the person amount to false imprisonment, and may be remedied by habeas corpus.
2. - 2. A detainer or detention of goods is either lawful or unlawful; when lawful, the party having possession of them cannot be deprived of it. The detention may be unlawful, although the original taking was lawful; as when goods were distrained for rent, and the rent was -afterwards paid; or when they 'Were pledged, and the money borrowed, and interest were afterwards paid; in these, and the like cases, the owner should make a demand, (q. v.) and if the possessor refuse to restore them, trover, detinue, or replevin will lie, at the option of the plaintiff.
3. - 3. There may also be a detainer of land and this is either lawful and peaceable, or unlawful and forcible. 1. The detainer is lawful where the entry has been lawful, and the estate is held by virtue of some right. 2. It is unlawful and forcible, where the entry has been unlawful, and with force, and it is retained, by force, against right; or even when the entry has been peaceable and lawful, if the detainer be by force, and against right; as, if a tenant at will should detain with force, after the will has determined, he will be guilty of a forcible detainer. Hawk. P. C. ch. 64, s. 22; 2 Chit. Pr. 288; Com. Dig, B. 2; 8 Cowen, 216; 1 Hall, 240; 4 John. 198; 4 Bibb, 501. A forcible detainer is a distinct offence from a forcible entry. 8 Cowen, 216. See Forcible entry and detainer.
4. - 4. A writ or instrument, issued or made by a competent officer, authorizing the keeper of a prison to keep in his custody a person therein named. A detainer may be lodged against. one within the walls of a prison, on what account soever he is there. Com. Dig. Process, E 3 b.
DETENTION. The act of retaining a person or property, and preventing the removal of such person or property.
2. The detention may be occasioned by accidents, as, the detention of a ship by calms, or by ice; or it may, be hostile, as the detention of persons or ships in a foreign country, by order of the government. In general, the detention of a ship does not change the nature of the contract, and therefore, sailors will be entitled to their wages during the time of the detention. 1 Bell's Com. 517, 519, 5th ed.; Mackel. Man. 210.
3. A detention is legal when the party has a right to the property, and has come lawfully into possession. It is illegal when the taking was unlawful, as is the case of forcible entry and detainer, although the party may have a right of possession; but, in some, cases, the (retention may be lawful, although the taking may have been unlawful. 3 Penn. St. R. 20. When the taking was legal, the detention may be illegal; as, if one borrow a horse, to ride from A to B, and afterwards detain him from the owner, After demand, such detention is unlawful, and the owner may either retake his property, or have an actiqn of replevin or detinue. 1 Chit. Pr. 135. In some cases, the detention becomes criminal although the taking was lawful, as in embezzlement.
DETERMINABLE. What may come to an end, by the happening of a contingency; as a determnable fee. See 2 Bouv. Inst. n. 1695.
DETERMINABLE FEE. Also called a qualified or base fee, is one which has a quality subjoined to it, and which must be determined whenever the qualification annexed to it is at in end. A limitation to a man and his heirs on the part of his father, affords an example of this species of estate. Litt. 254; Co. Litt. 27 a, 220; 1 Prest. on Estates, 449; 2 Bl. Com. 109; Cruise, tit 1, 82; 2 Bouv. Inst; n., 1695.
DETERMINATE. That which is ascertained; what is particularly designated; as, if I sell you my horse Napoleon, the article sold is here determined. This is very different from a contract by which I would have sold you a horse, without a particular designation of any horse. 1 Bouv. Inst. n. 947, 950.
DETERMINATION. The end, the conclusion, of a right or authority; as, the determination of a lease. 1 Com. Dig. Estates by Grant, G 10, 11, and 12. The determination of an authority is the end of the authority given; the end of the return day of a writ determines the authority of the sheriff; the death of the principal determines the authority of a mere attorney. By determination is also understood the decision or judgment of a court of justice.
DETINET. He detains. Vide Debet et Detinet, and Detinuit.
DETINUE, remedies. The name of an action for the recovery of a personal chattel in specie. 3 Bl. Com. 152; 3 Bouv. Inst. n. 3472; 1 J. J. Marsh. 500.
2. This action may be considered, 1. With reference to the nature of the thing to be recovered. 2. The plaintiff's interest therein. 3. The injury. 4. The pleadings. 5. The judgment.
3.- 1. The goods which it is sought to recover, must be capable of being distinguished from all others, as a particular horse, a cow, &c., but not for a bushel of grain. Com. Dig. Detinue, B, C; 2 Bl. Com. 152; Co. Litt. 286 b; Bro. Det. 51. Detinue cannot be maintained where the property sued for had ceased to exist when the suit was commenced. 2 Dana, 332. See 5 Stew. & Port. 123; 1 Ala. R. 203.
4. - 2. To support this action, the plaintiff must have a right to immediate possession, although he never had actual possession; a reversioner cannot, therefore, maintain it. A bailee, who has only a special property, may nevertheless support it when he delivered the goods to the defendant, or they were taken out of the bailee's custody. 2 Saund. 47, b, c, d Bro. Ab. h. t.; 9 Leigh, R. 158; 1 How. Miss. R. 315; 5 How. Miss. R. 742; 4 B. Munr. 365.
5. - 3. The gist of the action is the wrongful detainer, and not the original taking. The possession must have been acquired by the defendant by lawful means, as by delivery, bailment, or. finding, and not tortiously. Bro. Abr. ])et. 53, 36, 21 1 Misso. R. 749. But a demand is not requisite, except for the purpose of entitling the plaintiff to damages for the detention between the time of the demand and that of the commencement of the action. 1 Bibb, 186; 4 Bibb, 340; 1 Misso. 9; 3 Litt. 46.
6. - 4. The plaintiff may declare upon a bailment or a trover; but the practice, by the ancient common law, was to allege, simply, that the goods came to the hands, &c., of the defendant without more. Bro. Abr. Det. 10, per Littleton; 33 H. VI. 27. The trover, or finding, when alleged, was not traversable, except when the defendant alleged delivery over of a chattel actually found to a third person, before action brought, in excuse of the detinue. Bro. Abr. Det. 1, 2. Nor is the bailment traversable, but the defendant must answer to the detinue. Bro. Abr. Det. 50-1. In describing the things demanded, much certainty is requisite, owing to the nature of the execution. A declaration for "a red cow with a white face," is not supported by proof that the cow was a yellow. or sorrel cow. 1 Scam. R. 206. The general issue is non detinet, and under it special matter may be given in evidence. Co. Litt. 283.
7. - 5. In this action the defendant frequently prayed garnishment of a third person, whom he alleged owned or had an interest in the thing demanded; but this he could not do without confessing the possession of the thing de-manded, and made privity of bailment. Bro. Abr. Garnishment, 1; Interpleader, 3. If the prayer of garnishment was allowed, a sci. fac. issued against the person named as garnishee. If he made default, the plaintiff recovered against, the defendant the chattel demanded, but no damages. If the garnishee appeared and the plaintiff made default, the garnishee recovered. If both appeared, and the plaintiff recovered; he had judgment against the defendant for the chattel demanded, and a distringas in execution and against the garnishee a judgment for damages, and a fi. fa. in execution. The verdict and judgment must be such, that a special remedy may be had for the recovery of the goods detained, or a satisfaction in value for each parcel, in case they, or either of them, cannot be returned. Walker, R. 538 7 Ala. R. 189; 4 Yerg. R. 570 4 Monr. 59; 7 Ala. R., 807.; 5 Miss. R. 489; 6 Monr. 52 4 Dana, 58; 3 B. Munr. 313; 2 Humph. 59. The judgment is in the alternative, that the plaintiff recover the goods or the value thereof, if he cannot have the goods themselves, and his damages. Bro. Abr. Det. 48, 26, 3, 25; 4 Dana, R. 58; 2 Humph. 59; 3 B. Mont. 313, for the detention and full costs. Vide, generally, 1 Chit. Pl. 117; 3 Bl. Com. 152; 2 Reeve's Hist. C. L. 261, 333,336; 3 Id. 66, 74; Bull. N. P. 50. This action has yielded to the more practical and less technical action of trover. 3 Bl. Com. 152.
DETINUIT, practice. He detained.
2. Where an action of replevin is instituted for goods which the defendant had taken, but which he afterwards restored, it is said to be brought in the detinuit; in such case the judgment is, that the plaintiff recover the damages assessed by the jury for the taking and unjust detention, or for the latter only, where the former was justifiable, and his costs. 4 Bouv. Inst. n. 3562. 3. When the replevin is in the detinet, that he detains the goods, the jury must find in addition to the above, the value of the chattels, (assuming they are still detained, not in a gross sum, but each separate article must be separately valued, for perhaps the defendant may restore some of them, in which case the plaintiff is to recover the value of the remainder. Vide Debet et Detinet.
DEVASTAVIT. A devastavit is a mis-management and waste by an executor, administrator, or other trustee of the estate and effects trusted to him, as such, by which a loss occurs.
2. It takes place by direct abuse, by mal-administration, and by neglect.
3. - 1. By direct abuse. This takes place when the executor, administrator, or trustee, sells, embezzles, or converts to his own use, the goods entrusted to him; Com. Dig. Administration, I 1; releases a claim due to the estate; 8 Bac. Abr. 700; Hob. 266; Cro. Eliz. 43; 7 John. R. 404; 9 Mass. 352; or surrenders a lease below its value. 2 John. Cas. 376; 3 P. Wms. 330. These instances sufficiently show that any wilful waste of the property will be considered as a direct devastavit.
4. - 2. By mal-administration. Devastavit by mal-administration most frequently occurs by the payment of claims which were not due nor owing; or by paying others out of the order in which they ought to be paid; or by the payment of legacies before all the, debts have been satisfied. 4 Serg. & Rawle, 394; 5 Rawle, 266.
5. - 3. By neglect. Negligence on the part of an executor, administrator, or trustee, may equally tend to the waste of the estate, as the direct destruction or mal-administration of the assets, and render him guilty of a devastavit. The neglect to sell the goods at a fair price, within a reasonable time, or, if they are perishable goods, before they are wasted, will be a devastavit. And a neglect to collect a doubtful debt, which by proper exertion might have been collected, will be so considered. Bac. Ab. Executors, L.
6. The law requires from trustees, good faith and due diligence, the want of which is punished by making them responsible for the losses which may be sustained by the property entrusted to them when, therefore, a party has been guilty of a devastavit, he is required to. make up the loss out of his own estate. Vide Com. Dig. Administration, I; 11 Vin. Ab. 306; 1 Supp. to Ves. jr. 209; 1 Vern. 328; 7 East, R. 257 1 Binn. 194; 1 Serg. & Rawle, 241 1 John. R. 396; 1 Caines' Cas. 96 Bac. Ab. Executor, L; 11 Toull. 58, 59, n. 48.
DEVIATION, insurance, contracts. A voluntary departure, without necessity, or any reasonable cause, from the regular and usual course of the voyage insured.
2. From the moment this happens, the voyage is changed, the contract determined, and the insurer discharged from all subsequent responsibility. By the contract, the insurer only runs the risk of the contract agreed upon, and no other; and it is, therefore, a condition implied in the policy, that the ship shall proceed to her port of destination by the. shortest and safest course, and on no account to deviate from that course, but in cases of necessity. 1 Mood. & Rob. 60; 17 Ves. 364; 3 Bing. 637; 12 East, 578.
3. The effect of a deviation is not to vitiate or avoid the policy, but only to determine the liability of the underwriters from the time of the deviation. If, therefore, the ship or goods, after the voyage has commenced, receive damage, then the ship deviates, and afterwards a loss happen, there, though the insurer is discharged from the time of the deviation, and is not answerable for the subsequent loss, yet he is bound to make good the damage sustained previous to the deviation. 2 Lord Raym. 842 2 Salk. 444.
4. But though he is thus disebarged from subsequent responsibility, he is entitled to retain the whole premium. Dougl. 271; 1 Marsh. Ins. 183; Park. Ins. 294. See 2 Phil. Ev. 60, n. (b) where the American cases are cited.
5. What amounts to a deviation is not easily defined, but a departure from the usual course of the voyage, or remaining at places where the ship is authorized to touch, longer than necessary, or doing there what the insured is not authorized to do; as, if the ship have merely liberty to touch at a point, and the insured stay there to trade, or break bulk, it is a deviation. 4 Dall. 274 1 Peters' C. C. R. 104; Marsh. Ins. B. 1, c. 6, s. 2. By the course of the voyage is not meant the shortest course the ship can take from her port of departure to her port of destination, but the regular and customary track, if such there be, which long us usage has proved to be the safest and most convenient. 1 Marsh. Ins. 185. See 3 Johns. Cas. 352; 7 T. R. 162.
6. A deviation that will discharge the insurer, must be a voluntary departure from the usual course of the voyage insured, and not warranted by any necessity. If a deviation can be justified by necessity, it will not affect the contract; and necessity will justify a deviation, though it proceed from a cause not insured against. The cases of necessity which are most frequently adduced to justify a departure from the direct or usual course of the voyage, are, 1st. Stress of weather. 2d. The want of necessary repairs. 3d. Joining convoy. 4th. Succouring ships in distress. 5th. Avoiding capture or detention. 6th. Sickness of the master or mariner. 7th. Mutiny of the crew. See Park, Ins. c. 17; 1 Bouv. Inst. n. 1187, et seq.; 2 John. Cas. 296; 11 Johns. R. 241; Pet. C. C. R. 98; 2 Johns. Rep. 89; 14 Johns. R. 315; 2 Johns. R. 138; 9 Johns. R. 192; 8 Johns. Rep. 491; 13 Mass. 68 13 Mass. 539; Id. 118; 14 Mass. 12 1 Johns. Cas. 313; 11 Johns. R. 241; 3 Johns. R. 352; 10 Johns. R. 83; 1 Johns. R. 301; 9 Mass. 436, 447; 3 Binn. 457 7 Mass. 349; 5 Mass. 1; 8 Mass. 308 6 Mass. 102 121 6 Mass. 122 7 Cranch, 26; Id. 487; 3 Wheat. 159 7 Mass. 365; 10 Mass. 21 Id. 347 7 Johns. Rep. 864; 3 Johns. R. 352; 4 Dall. R. 274 5 Binn. 403; 2 Serg. & Raw. 309; 2 Cranch, 240.
DEVIATION, contracts. When a plan has been adopted for a building, and in the progress of the work a change has been made from the original plan, the change is called a deviation.
2. When the contract is to build a house according to the original plan, and a deviation takes place, the contract shall be traced as far as possible, and the additions, if any have been made, shall be paid for according to the usual rate of charging. 3 Barn. & Ald. 47; and see 1 Ves. jr. 60; 10 Ves. jr. 306; 14 Ves. 413; 13 Ves. 73; Id. 81 6 Johns. Ch. R. 38; 3 Cranch, 270; 5 Cranch, 262; 3 Ves. 693; 7 Ves. 274; Chit. Contr. 168; 9 Pick. 298.
3. The Civil Code of Louisiana, art. 2734, provides, that when an architect or other workman has undertaken the building of a house by the job, according to a plot agreed on between him and the owner of the ground, he cannot claim an increase of the price agreed on, on the plea of the original plot having been changed and extended, unless he can prove that such changes have been made in compliance with the wishes of the proprietor.
DEVISAVIT VEL NON, practice. The name of an issue sent out of a court of chancery, or one which exercises chancery jurisdiction, to a court of law, to try the validity of a paper asserted and denied to be a will, to ascertain whether or not the testator did devise, or whether or not that paper was his will. 7 Bro. P. C. 437; 2 Atk. 424; 5 Barr, 21.
DEVISE. A devise is a disposition of real property by a person's last will and testament, to tale effect after the testator's death.
2. Its form is immaterial, provided the instrument is to take effect after the death of the party; and a paper in the form of an indenture, which is to have that effect, is considered as a devise. Finch. 195 6 Watts, 522; 3 Rawle, 15; 4 Desaus. 617, 313; 1 Mod. 117; 1 Black. R. 345.
3. The term devise, properly and technically, applies only to real estate the object of the devise must therefore be that kind of property. 1 Hill. Ab. ch. 36, n. 62 to 74. Devise is also sometimes improperly applied to a bequest or legacy. (q. v.) Vide 2 Bouv. Inst. n. 2095, et seq; 4 Kent, Com. 489 8 Vin. Ab. 41 Com. Dig. Estates by Devise.
4. In the Year Book, 9 H. VI. 24, b. A. D. 1430, Babington says, the nature of a devise, when lands are devisable, is, that one can devise that his lands shall be sold by executors and this is good. And a devise in such form has always been in use. And so a man may have frank tenement of him who had nothing, in the same manner as one may have fire from a flint, and yet there is no fire in the flint. But it is to perform the last will of the devisor.
DEVISEE. A person to whom a devise has been made.
2. All persons who are in rerum natura, and even embryos, may be devisees, unless excepted by some positive law. In general, he who can acquire property by his labor and industry, may receive a devise. C. & N. 353.
DEVISOR. A testator; one, who devises his real estate.
2. As a general rule all persons who. may sell an estate may devise it. The disabilities of devisors may be classed, in three divisions. 1. Infancy. In some of the United States this disability is partially removed; in Illinois, Maryland, Mississippi and Ohio, an unmarried woman at the age of eighteen years may devise. 2. Coverture. In general, a married woman cannot devise; but in. Connecticut and Ohio she may devise her lands; and in Illinois, her separate estate. In Louisiana, she may devise without the consent of her hushand. Code, art. 132. 3. Idiocy and non sane memory. It is evident that a person non compos can make no devise, because he has no will.
3. The removal of the disability which existed at the time of the devise does, not, of itself, render it valid. For example, when the hushand dies, and the wife becomes a feme sole; when one non compos is restored to his sense; and when an infant becomes of age; these several acts do not make a will good, which at its making was void. 11 Mod. 123, 157; 2 Vern . 475; Comb, 84; 4 Rawle, R. 3.36. Vide. Testament or ill.
DEVOIR. Duty. It is used in the statute of 2 Ric. II., c. 3, in the sense of duties or customs.
DEVOLUTION, eccl. law. The transfer, by forfeiture, of a right and power which a person has to another, on account of some act or negligence of the person who is vested with such right or power: for example, when a person has the right of preseptation, and he does not present within the time prescribed, the right devolves on his next immediate superior. Ayl. Par. 331.
DI COLONNA, mar. contracts. This contract tales place between the owner of a ship, the captain and the mariners, who agree that the voyage shall be for the benefit of all. This is a term used in the Italian law. Targa, oh. 36, 37: Emerigon, Mar. Loans, s. 5.
2. The New England whalers are owned and navigated in this manner, and under this species of contract. The captain and his mariners are all interested in the profits of the voyage in certain proportion, in the same manner as the captain and crew of a privateer, according to the agreement between them. Such agreement, being very common in former times, all the mariners and the masters being interested in the voyage. It is. necessary to know this, in order to understand many of the provisions of the laws of Oleron, Wishuy, the Consolato del Mare, and other ancient codes of maritime and commercial law. Hall on Mar. Loans, 42.
TO DICTATE. To pronounce word for word what is destined to be at the same time written by another. Merlin Rep. mot Suggestion, p. 5 00; Toull. Dr. Civ. Fr. liv. 3, t. 2, c. 5, n. 410.
DICTATOR, civil law. A Magistrate at Rome invested with absolute power. His authority over the lives and fortunes of the citizens was without bounds. His office continued but for six months. Hist. de Ia Jur. h. t.; Dig. l, 2, 18; Id. 1, 1, 1.
DICTUM, practice. Dicta are judicial opinions expressed by the judges on points that do not necessarily arise in the case.
2. Dicta are regarded as of little authority, on account of the manner in which they are delivered; it frequently happening that they are given without much reflection, at the bar, without previous examination. "If," says Huston, J., in Frants v. Brown, 17 Serg. & Rawle, 292, "general dicta in cases turning on special circumstances are to be considered as establishing the law, nothing is yet settled, or can be long settled." "What I have said or written, out of the case trying," continues the learned judge, "or shall say or write, under such circumstances, maybe taken as my opinion at the time, without argument or full consideration; but I will never consider myself bound by it when the point is fairly trying and fully argued and considered. And I protest against any person considering such obiter dicta as my deliberate opinion." And it was considered by another learned judge. Mr. Baron Richards, to be a "great misfortune that dicta are taken down from judges, perhaps incorrectly, and then cited as absolute propositions." 1 Phillim. Rep. 1406; S. C. 1 Eng. Ecc. R. 129; Ram. on Judgm. ch. 5, p. 36; Willes' Rep. 666; 1 H. Bl. 53-63; 2 Bos. & P. 375; 7 T. R. 287; 3 B. & A. 341; 2 Bing. 90. The doctrine of the courts of France on this subject is stated in 11 Toull. 177, n. 133.
3. In the French law, the report of a judgment made by one of the judges who has given it, is called the dictum. Poth. Proc. Civ. partie 1, c. 5, art. 2.
DIES. A day. There are four sorts of days: 1. A natural day; as, the morning and the evening made the first day. 2. An artificial day; that is, from day-break until twilight in the evening. 3. An astrological day, dies astrologicus, from sun to sun. 4. A legal day, which is dies juridicus, and dies non juridicus. 1. Dies juridici, are all days given in term to the parties in court. Dies non juridici are those which are not appointed to do business in court, as Sundays, and the like. Dies in banco, days of appearance in the English court of common bench. 3 Bl. Com. 276. Vide Day, and 3 Com. Dig. 358.
DIES DATUS, practice. A day or time given to a defendant in a suit, which is in fact a continuance of the cause. It is so called when given before a declaration; when it is allowed afterwards it assumes the name of imparlance. (q. v.)
DIES NON or DIES NON JURIDICI. Non-judicial days. Days during which courts do not transact any business, as Sunday. The entry of judgment upon such a day is void. W . Jones, 156.
DIET. An assembly held by persons having authority to manage the public affairs of the nation. In Germany, such assemblies are known by this name:
DIFFERENCE. A dispute, contest, disagreement, quarrel.