DENIZEN. A denizen is an alien by birth, who has obtained, ex donatione regis, letters patent making him an English subject. The king may denizenize but not naturalize a man, the latter requiring the consent of Parliament, either pro re natȧ or under a general Act, such as the Naturalization Act, 1870 (33 & 34 Vict. c. 14). A denizen holds a middle position between an alien and a natural born or naturalized subject, being able to take lands by purchase or devise (which an alien could not until 1870 do), but not having been able to take lands by descent (which a naturalborn or naturalized subject may do).

See also titles ALLEGIANCE; ALIENS;
NATURALIZATION.

DEODAND. Any personal chattel that is the immediate occasion of the death of any reasonable creature, and which by reason thereof precisely is forfeited to the king, to be applied to pious or charitable uses,-being in Roman Catholic countries, the expiation by masses, and otherwise, of the sins of the deceased; and in Protestant countries, the relief of the deserving poor. Where the person killed is an infant under the age of discretion, no deodand arises, there being in his case no sins of commission to expiate.

DEPARTURE. In pleading, where a man departs from one line of defence, and has recourse to another line of defence either inconsistent with or not confirmatory of his former defence, this is called a departure, and the effect of it is to render the entire pleading demurrable. Wells, 1 B. & S. 836.

Bartlett v.

DEPOSIT: See title BAILMENT.

DÉPÔT. In French law, is the depositum of Roman and the deposit of English Law. It is of two kinds, being either (1.) Dépôt simply so called, and which may be either voluntary or necessary; and (2.) Séquestre, which is a deposit made either under an agreement of the parties, and to abide the event of pending litigation regarding it, or by virtue of the direction of the Court or a judge, pending litigation regarding it.

DEPOSITION-continued.

for decree to examine his own unwilling witness in this way, but only upon notice to the other side, who then and there may cross-examine the deponent, the side who have called him in that case re-examining him. Also, in a suit in which replication has been filed, such depositions may be taken, but in this case ex parte. In either case the deposition is to be regarded as the reluctant affidavit of the deponent.

Depositions are also taken before magistrates for the purposes of a criminal prosecution; and in case the deponent should die before the trial, or be too ill to attend, these depositions may be used in evidence, subject to certain restrictions mentioned in the stat. 11 & 12 Vict. c. 42.

DEPRIVATION: See title DEGRADATION.

DERELICT. Anything thrown away or abandoned, with the intention of quitting the ownership thereof. Goods thrown out of a vessel to lighten same in time of distress are not derelict, for want of the intention. See Just. Inst. ii. 1, 48.

DESCENDER, - Writ of formedon in. This writ used to lie where a tenant in tail, having aliened the land otherwise than by fine or common recovery, or having been disseised thereof, died, and the heir in tail claimed to recover the land as against the person in possession thereof under the alienation or disseisin.

DESCENTS.

Estates descend from ancestor to heir, as the blood trickles.

The following stages in the growth of the present law of descents may be indicated: :

(1.) Fee simple estates were originally

confined to the issue or lineal descendants of the ancestor; (2.) By the reign of Henry II., collateral descendants were admitted to the succession upon the failure of lineals;

(3.) By the time of Henry III., primogeniture, i.e., descent to the eldest son in exclusion of the others, was established;

(4.) By the time of Henry III., the doc

trine of representation was estalished, whereby the issue of the eldest son who was dead stood in his place, to the exclusion of the

DESCENTS-continued.

other sons (being the uncles of

such issue);

(5) In the year 1833, the lineal ancestors were as such rendered capable of being heirs ;

(6.) In the year 1833, the half-blood of the purchaser became admissible to succeed as heir; and

(7.) In the year 1859, the widow of the purchaser became admissible to succeed as heir.

The following are the canons which at present regulate the descent of lands:(1.) The inheritance is to descend to the lineal descendants of the purchaser in infinitum (see title PURCHASER):

(2.) And to the male issue in preference to females;

(3.) And to the eldest male issue in exclusion of the others (see title PRIMOGENITURE); but if there are no male issue, then to the female issue altogether (see title CoPARCENERS);

(4.) Lineal descendants in infinitum are to represent their ancestor (see title REPRESENTATION); (5.) Failing lineal descendants of the purchaser, the inheritance is to go to the nearest lineal ancestor, the father succeeding before the brother or sister of the purchaser, and every more remote ancestor succeeding before his issue other than any less remote ancestor or ancestors, and his or their issue; (6.) In the application of the 5th canon, the succession is to be according to the following order,(a.) The father and all male paternal ancestors and their descendants in infinitum;

(b.) All the female paternal ancestors and their heirs;

(c.) The mother and all male maternal ancestors, and her and their descendants in infinitum; and (d.) All the female maternal ancestors and their heirs;

(7.) The half-blood of the purchaser shall inherit,

(a.) Where the common ancestor is a

male, next after a kinsman in the same degree of the whole blood, and the issue of such kinsman in infinitum ; and (b.) Where the common ancestor is a female, next after that female; (8.) In the application of the 6th

canon,

(a.) In the admission of female paternal ancestors, the mother of the more remote male paternal an

DESCENTS-continued.

cestor and her heirs are to be preferred to the mother of the less remote and her heirs; and (b.) In the admission of female maternal ancestors, the mother of the more remote male maternal ancestor and her heirs are to be

preferred to the mother of the less remote one and her heirs: (9.) Failing the discovery of an heir after the application of all the first eight canons, the land is to descend to the heir of the person last entitled, although he was not the purchaser thereof and such heirs will of course have to be ascertained by the renewed application of the first eight canons, starting only from a different point of departure, or propositus. DESIGNS, COPYRIGHT IN: See title COPYRIGHT.

DE SON TORT DEMESNE. These are words which were commonly used in the replication to a defendant's plea in an action of trespass quare clausum fregit as thus:-A. sues B., B. pleads that he committed the alleged trespass by the command of X.; A. replies that B. did it de son tort demesne, sans ceo que X. lui command modo et formâ. Since the cases of Trevelian v. Pyne (Salk. 107), and Chambers v. Donaldson (11 East, 65), the alleged command has been traversable in pleading; and by the C. L. P. Act, 1852, s. 77, a plaintiff is at liberty to traverse the whole of any plea or subsequent pleading of the defendant by a GENERAL denial (in the form "The plaintiff takes issue, &c."), or admitting some part or parts thereof to deny all the rest, or to deny any one or more allegations; so that the plea de son tort demesne, semble, is now superfluous.

DETAINER. This word was used in two kindred senses; firstly, it signified the forcibly keeping another out of possession of lands or tenements, an injury which was not only of a civil nature, entitling the dispossessed party to damages, but also of a criminal nature, rendering the dispossessor liable to a fine to the king for his breach of the king's peace. Compare in Roman law the Lex Julia de Vi. Secondly, it signified a writ which lay against persons imprisoned in the Marshalsea or the Fleet, and which was directed to the marshal or warden (as the case might be), and directed him to detain the prisoner in his custody until he should be lawfully discharged therefrom. In this latter sense, detainer is become obsolete, in consequence of the Debtors' Act, 1869 (32 & 33 Vict. c. 62).

DETERMINATION. This word, as used in Law, denotes the ending or expiration of any estate or interest in property; e.g., an estate during widowhood determines upon re-marriage, and an estate during minority upon attaining twenty-one years of age, and so forth.

DETINUE. An action which lies for the recovery of goods wrongfully detained by any one; e.g., for a horse lent. The judgment in this action is, that the plaintiff (when successful) do recover the articles or their value, together with the damages and costs found by the verdict, and the costs of increase (see title INCREASE, COSTS OF). Prior to the C. L. P. Act, 1854, the defendant had the option either to pay the value or restore the goods, but now, by s. 78 of that statute, such option belongs to the plaintiff, who, upon application to the Court or a judge, may (at the discretion of the Court or judge) have execution for the goods detained, enforceable by distress. But Courts of Equity could always upon bill filed order the delivery up of chattels improperly detained, e.g., deeds, court rolls; also, old family pictures, horns, snuff-boxes, &c. Fells v. Read, 3 Ves. 70.

DEVASTAVIT. In an action against an executor or administrator, where the plaintiff has obtained judgment that he do recover his debt and costs out of the assets of the testator (if any), and, failing these, do recover his costs out of the executor or administrator's own goods, the usual writ of execution is a fi. fa. de bonis testatoris; but if the sheriff return to this nulla bona testatoris nec propria, AND a devastavit, the plaintiff may forthwith upon the return sue out a fi. fa. de bonis propriis, or (at his election) an elegit or a ca. sa. against the property or the person of the executor or administrator, in as full a manner as in an action against him in his own right. A devastavit is therefore strictly such a return by the sheriff; however, the word is commonly employed in the general sense of wasting the goods of the deceased, or in Equity in the sense of a breach of trust or misappropriation of the assets.

DEVISAVIT VEL NON-continued. jury at Common Law; and a like issue may be tried by that Court itself at the present day in a proper case. The object

of the issue is to ascertain whether or not certain properties are comprised within a devise which appears prima facie not to comprise them. A proper case for such an issue was that of Newburgh v. Newburgh, 5 Madd. 364.

DEVISE.

This word meant originally to divide or distribute property, but it is now used exclusively to signify the giving of real estates by will, the testator being called the devisor, and the object of his bounty the devisee. The word "devise" is properly applicable to real estate only, while the word "bequeath" is properly applicable to personal estate only; and upon the strength of the word "devise" alone, an intention has been found to pass real property, which nothing else in the will seemed to indicate: see Coard v. Holderness, 20 Beav. 147.

DICTUM. Called also obiter dictum, or "remark by the way," is a remark more or less casual dropping from a judge with respect to the law in matters like that at the time before him.

DIES NON JURIDICUS. A day on which the Courts, for reasons of religion, do not sit; e.g., Good Friday, Sunday, and the like. In Roman Law it is called dies nefastus. The days on which the Courts may sit are called dies juridici, and in Roman Law were called dies fasti. Vacations are non-court days for a very different reason, namely, the health of the judges, counsellors, and officers.

DIET. A legislative assembly; e.g., the Diet of Frankfort.

DIEU ET MON DROIT ("God and my right"). This is the motto of the royal family, and is said to have been first used by Richard I. It signifies that the sovereignty is subject only to the divine and not to any human law. But it is no pretext either for absolutism on the one hand, or for the subjection of the State to the Church on the other.

DIGNITIES. These are titles of honour; and having been originally annexed to land, they are considered as real property. 1 Cru. 55.

DILAPIDATIONS. This word denotes generally letting a house get into bad repair, and is applicable generally to all tenants who are under a covenant to repair (see title WASTE). But it is more peculiarly applicable to the bad repair of

DILAPIDATIONS-continued. ecclesiastical residences, the Ecclesiastical Law enabling a succeeding rector to bring an action for dilapidations against the executor or administrator of his predecessor, or (if he should be still living) against the predecessor himself.

DILATORY PLEAS: See title ABATEMENT, PLEAS IN.

DIRECTING THE JURY: See title JURY.

DISABILITY.

This means any incapacity either of acquiring or of transmitting a right, or of resisting a wrong. Such disability may arise either from the act of the party, or from the act of his ancestor, or from the act of law, or from the act of God. (1.) From the act of the party,-as where, after having agreed upon the surrender of an old lease to grant a new one, he grants the reversion to another, whereby he incapacitates himself to grant the new lease: (2.) From the act of the ancestor,as where he was attainted or convicted of treason or felony, whereby formerly he rendered his children incapable of inheriting: (3.) From the act of law,—as where (prior to 1870) he was an alien born, whereby, or in consequence thereof, the law struck him with a general incapacity to hold lands: and (4.) From the act of God, as where he is a lunatic or idiot, and incapable therefore generally of contracting.

DISBAR. To deprive a barrister permanently of the privileges of his position. It is analogous to striking an attorney off the rolls. Being an extreme measure, it is more common to suspend than to dis

bar.

DISCONTINUANCE-continued.

process regularly from day to day or from time to time, as he ought to do, the defendant is no longer bound to attend, but the suit is discontinued, and the plaintiff must pay the defendant his costs before he recommences his action. However, by rule 31 T. T. 1853, "no entry or continuances by way of imparlance, curia advisari vult, vicecomes non misit breve, or otherwise, shall be made on any record or roll whatever, or in the pleadings." On the other hand, if the plaintiff find that he has misconceived his action, or that for some defect in the pleadings, or other reason, he is not able to maintain it, he may either, upon application at the proper office of the Court, or upon motion to the Court itself, obtain a rule for leave to discontinue upon the terms of paying the defendant his costs. After a discontinuance, a plaintiff may commence a new action for the same cause; and therefore the Court, in many cases of hard actions, refuses leave to discontinue (Boucher v. Lawson, Hardw. 200); as it also does after a peremptory rule for judgment on demurrer. Turner v. Turner, 1 Salk. 179.

DISCOVERY. By the Common Law, neither party to an action was required to make discovery to the other of any documents or circumstances which might be useful in evidence; and an application required to be made to the Court of Chancery, which would in certain cases, upon a BILL OF DISCOVERY being filed, decree that the defendant thereto should make a particular discovery to the plaintiff. But, at the present day, bills of discovery are become unnecessary; for, in the Court of Chancery, discovery of documents may be obtained under the Jurisdiction Act, 1852, by summons at Chambers; and, under the stats. 14 & 15 Vict. c. 99, and 17 & 18 Vict. c. 125, discovery may now also be had at law. There are also numerous particular provisions in those statutes regarding discovery by means of interrogatories.

See title INTERROGATORIES.

DISENTAILING ASSURANCE. By the stat. 3 & 4 Will. 4, c. 74, which abolished the ancient Fines and Recoveries, whereby formerly (amongst other things) an estate tail might be barred, there was substituted a new assurance, called a disentailing assurance, which was calculated to produce the same effect. By this assurance, which is in the form of a simple indenture, but which requires to be enrolled within six months of its execution in the Court of Chancery, the tenant in tail (with or without the consent of the protector, see that title, when there is any such) conveys the lands

DISENTAILING ASSURANCE-contd. to a middle man (or man of straw), to the use of himself, the tenant in tail, his heirs and assigns, by which means, and under the Statute of Uses, he instantly emerges a legal tenant in fee simple. It is usual (but not apparently necessary) to add, that the object of the assurance is to dock and bar the entail and all remainders, &c. Where there is a protector, and he refuses to concur, the disentailing deed has the effect of a fine only, but otherwise it has the effect of a common recovery (see these two titles).

DISFRANCHISE. To deprive of certain privileges, freedoms, or franchises.

See title ENFRANCHISE, which is the opposite.

DISHONOUR, NOTICE OF: See title BILL OF EXCHANGE.

DISPAUPER. When a poor person has been admitted to sue in formâ pauperis, and through the subsequent acquisition of property or any other sufficient cause it is proper that he should be deprived of the privilege of suing in that quality, then he is deprived of the privilege accordingly; in other words, he is dispaupered.

DISPENSING POWER. The early English sovereigns, in imitation of the Popes of Rome, had assumed to dispense with the laws by issuing proclamations and making grants non obstante any particular law to the contrary." This assumption was odious to the Common Law. Thus, in the reign of Henry III., in a suit between the Bishop of Carlisle and a certain baron, the king having resorted to his dispensing power in favour of the bishop, and afterwards in favour of the baron, the chief justiciary complained of the introduction of ecclesiastical maxims into the Civil Courts; and in the same reign, the king having referred to the practice of the popes in vindication of his use of the clause non obstante, the Master of the Hospitallers exclaimed, "God forbid that your majesty should utter such a graceless speech.'

The practice, notwithstanding, continued to be exercised, and in some reigns more extensively than in others. In particular the exercise of the power by Richard II. is said to have been such as to set aside the very principles of the statutes dispensed from; but the more usual practice was to dispense in particular cases only of an exceptional character. It was the opinion of Lord Coke (Case of Non Obstante, 12 Rep. 30) that no Act of Parliament could bind the king from any prerogative that was inseparable from his person, so as that he might not dispense with the statute by non obstante, But the true nature and

The

DISPENSING POWER-continued. limits of the king's right of dispensing with statutes was not fully understood until the case of Thomas v. Sowell, decided in 1666, and reported in Vaughan. plaintiff in that case was a common informer, who brought his qui tam action against the defendant (a vintner) to recover his share of a penalty under the stat. 7 Edw. 6, c. 5, incurred by the defendant in selling wine by retail without a licence, in the county of Middlesex. It was found, on special verdict, that James I., who incorporated the Company of Vintners in the City of London, had given them licence in the letters patent of their incorporation to sell wine by retail or in gross within the city and its suburbs, "non obstante the statute of Edw. VI." The judgment given was to the effect that the king was able to dispense in some cases and not in others, and that the distinction between the two classes of cases did not depend (as had at one time been said) upon whether the act prohibited by the statute was malum in se or malum prohibitum only, but that it depended upon whether the king himself was the only person affected by it or whether his subjects also were affected by it. He could dispense with his own privileges, but not with his subjects' rights.

Clearly, therefore, the practice or privilege of dispensing was considered as being not in itself wrong, but only wrong in the abuse of it. Such abuse was again illustrated in 1685, in the case of Godden v. Hales, James II. having in that case♦ dispensed with the Test Act in favour of the defendant upon his appointment to a military office, and in express fraud, not only of the Test Act itself, but also of successive resolutions of parliament confirmatory of the Act. In the Bill of Rights (1 W. & M. sess. 2, c. 2), it is accordingly declared, with reference evidently to James II., that the dispensing power as of late exercised was illegal, thus indicating at once the legitimate use and the illegal abuse of that prerogative. In the recent Case of Eton College, 1815, it was held that a dispensation of Elizabeth granted to the fellows of Eton College to hold ecclesiastical preferment together with their fellowships, notwithstanding a statute of Henry VI. to the contrary, was a legitimate exercise of the dispensing power.

DISSEISIN. When one man invades the possession of another, and by force or surprise turns him out of the occupation of his lands, this is termed a disseisin, being a deprivation of that actual seisin or corporal possession of the freehold which the tenant before enjoyed. In other words, a disseisin is said to be when one euters