DISSEISIN-continued. intending to usurp the possession, and to oust another from the freehold. Therefore quærendum est à judice quo animo he entered. To constitute an entry a disscisin, there must be an ouster of the freehold, either, first, by taking the profits; or, secondly, by claiming the inheritance (1 Cruise, 60). He who so enters and puts a party out of possession of the freehold is termed the disseisor. Litt. 279.

DISSENTERS. The stat. 1 Will. & M. sess. 1, c. 18 (Toleration Act), s. 4, exempted persons taking the oaths and subscribing the declaration therein mentioned from all prosecutions in the Ecclesiastical Courts for nonconformity; and it was held in Barnes v. Shore (8 Q. B. 640), that this provision extended not only to lay persons, but to clergymen who, after being ordained, dissented from the Church. For disturbing a Dissenting congregation each offender is liable to a penalty of £20. A Jewish synagogue is not at the present day an illegal establishment. Israel v. Simmons, 2 Stark. 356.

Dissenters, in respect of their religious worship have as full a right as Churchmen to the protection of the Courts (Rex v. Wroughton, 3 Burr. 1683); and a mandamus will lie to register and certify a dissenting meeting-house (Rex v. Derby (Justices), 4 Burr. 1991); also to compel the trustees of a meeting house to admit a Dissenting teacher. Rex v. Barker, 3 Burr. 1265.

DISSOLUTION: See titles PARLIAMENT ; PARTNERSHIP.

DISTANCE. Is to be measured in a straight line as the crow flies (Lake v. Butler, 5 El. & Bl. 92). And where the trustees of a turnpike road were prohibited by a local Act of Parliament from erecting any toll-gate within three miles of Bargate in the town of Southampton, it was held that the distance was to be measured by a straight line and not by the road (Jewell v. Stead, 6 El. & Bl. 350). See also Duignan v. Walker, 1 Johns. 446 (an injunction case).

DISTRESS. A power of distress may belong to a landlord either in virtue of express words conferring it, or in virtue of the general law. In the latter case, the following are the requisites to the power of

distress:

(1.) There must be an actual demise, and not a mere agreement for a lease;

(2.) The rent must be certain; (3.) The rent must be in arrear, but in

the case of rents payable in ad

DISTRESS-Continued.

vance, these are held to be in arrear instantly upon the commencement of the period for which they are payable (Buckley v. Taylor, 2 T. R. 600); and

(4.) The distrainor must have the reversion in him, either an actual reversion or (at the least) a reversion by estoppel. Morton v. Woods, L. R. 3 Q. B. 658.

With reference to the things that are liable to be distrained, generally speaking, all moveable chattels (whether the property of the tenant or of a stranger) which are upon the demised premises at the time when the distress is made are liable. 2 W.

& M., sess. 1, c. 5, s. 3.

With reference to the things that are not liable to be distrained, the following classes of things are not liable:

(1.) Fixtures, sed quære;
(2.) Title deeds;

(3.) Things delivered to a person exer-
cising a public trade to be managed
in the way of his trade;

(4.) Animals feræ naturæ ;
(5.) Things in actual use;
(6.) Perishable goods;

(7.) Goods in custody of the law;
(8.) Crops or produce sold by sheriff,
subject to an agreement to con-
sume same on land;
(9.) Frames, looms, &c., entrusted to
workmen ;

(10.) Goods of an ambassador; and
(11.) Effects of a company being wound

up.

And the following classes of things are conditionally privileged from being taken in distress:

(1.) Implements of trade not in actual use; and

(2.) Cattle and sheep.

The distress must be made, as a general rule, on the premises demised, subject, however, to the following exceptions :— (1.) Cattle or stock of the tenant feeding or being on a common appendant or appurtenant or otherwise belonging to the demised premises; (2.) Cattle seen driven off demised premises on purpose to defeat distress; and

(3.) Goods fraudulently removed from the demised premises.

DISTRESS INFINITE. In the case of a distress for fealty or suit of Court, no distress can be unreasonable, immoderate, or too large; for this is the only remedy to which the party aggrieved is entitled, and therefore it ought to be such as is sufficiently compulsory; and let it be of what value it may, there is no harm done, espe

DISTRESS INFINITE-continued. cially as it cannot be sold or made away with, but must be restored immediately on satisfaction made. A distress of this nature, that has no bounds with regard to its quantity, and which may be repeated from time to time, until the stubbornness of the party is conquered, is called a distress infinite. For some other purposes, as in summoning jurors and the like, a distress infinite used also to be allowed.

DISTRINGAS. A writ of distringas may be put upon stock or moneys in the Bank of England, and its effect is exactly that of a stop-order on a fund in Chancery (see title STOP-ORDER). Formerly, a writ bearing this name used to be directed to the sheriff, commanding him to distrain upon the goods and chattels of a defendant, in order to compel his appearance to a writ of summons. This distringas, however, was only granted when the person requiring the same had shewn by affidavit to the satisfaction of the Court out of which the writ of summons issued, that the defendant had not been personally served with the writ of summons, and had not, according to the exigency thereof, appeared to the action, and could not be compelled so to do without some more efficacious process (1 Arch. Prac. 202). The writ in this second use of it was abolished by the C. L. P. Act, 1852.

DISTRINGAS JURATORES. A writ directed to the sheriff peremptorily commanding him to compel the appearance of jurors in Court on a certain day therein appointed. This writ also has been abolished by the C. L. P. Act, 1852. 1 Arch. Prac. 365.

DISTURBANCE. A species of injury to real property, commonly consisting of a wrong done to some incorporeal hereditament by hindering or disquieting the owners in their regular and lawful enjoyment of it. There were five principal varieties of this injury, viz.: (1.) Disturbance of franchise; (2.) Disturbance of common; (3.) Disturbance of ways; (4.) Disturbance of tenure; and (5.) Disturbance of patronage. Finch, 187.

The separation

DIVORCE (divortium). of husband and wife by the operation of the law. There were two kinds of divorce, the one total, the other partial; the one à vinculo matrimonii, the other merely à mensâ et thoro. The total divorce, à vinculo matrimonii, used to be only for some canonical cause of impediment existing before the marriage, e.g., consanguinity, and not for any impediment that was supervenient, or arising afterwards, as may be the case in affinity or corporeal imbecility. In these

DIVORCE-continued.

cases of a total divorce, the marriage used to be declared null, as having been absolutely unlawful ab initio; and the parties were therefore separated pro salute animarum ; for which reason no such divorce could be obtained but during the life of the parties. In these divorces the wife, it was said, should receive all again that she brought with her, because the nullity of the marriage arose through some impediment, and the goods of the wife were given for her advancement in marriage which was now found never to have existed. (Dyer, 62). But at the present day a divorce à vinculo matrimonii may be obtained for a cause that is supervenient; thus, a husband may obtain it on account of his wife's adultery, and a wife may obtain it on account of her husband's adultery, coupled with cruelty or desertion on his part; and such divorces are not unfrequently granted under the provisions of the Act 21 & 22 Viet. c. 77, without the necessity (which for some time existed) of obtaining a special statute for the purpose. This divorce enables the parties to marry again, and to do all other acts as if they had never been married. Divorce à mensâ et thoro used to be granted when the marriage was just and lawful ab initio, and therefore the law was tender of dissolving it but for some supervenient cause it might become improper or impossible for the parties to live together, e.g., in case of intolerable ill-temper, or adultery in either of the parties. But at the present day there is no divorce à mensâ et thoro, but either a total divorce à vinculo matrimonii for the causes mentioned above, or else a judicial separation for causes that are insufficient to justify a total divorce, e.g., cruelty or incompatibility of temper, being extreme. Parties separated in this manner cannot afterwards marry again, until, at any rate, the one party is dead, when the other may lawfully marry again.

See also title ALIMONY.

DOCKET, STRIKING A. A phrase that was formerly used in the practice of bankruptcy. It referred to the entry of certain papers at the bankrupt office, preliminary to the prosecution of the fiat against a trader who had become bankrupt. These papers consisted of the affidavit, the bond, and the petition of the petitioning creditor; and their object was to obtain from the Lord Chancellor his fiat, authorizing the petitioner to prosecute his complaint against the bankrupt, either in Her Majesty's Court of Bankruptcy in London, or in one of the district Courts of Bankruptcy in the country. The affidavit had to be left at the office of the Secretary of Bankrupts, who used to make an entry in the

DONATION-continued.

English law differs from both, holding that not only is assent on the part of the donee necessary, but also delivery of the thing given. In French law such gifts are irrevocable, excepting for one of three causes,(1.) The non-performance of conditions when there are any such; (2.) The ingratitude of the donee; or (3.) The subsequent birth of offspring.

DONATIO MORTIS CAUSÂ. Is a gift made in contemplation of death, and taking absolute effect upon the death. The great essential to it is a delivery actual or constructive of the thing given and provided that requisite is observed, there is nothing which may not be the subject of such a gift, excepting a cheque (inasmuch as the authority to pay that is revoked upon the death), and excepting perhaps real property (inasmuch as the law prescribes particular formalities for the conveyance of such). There may, however, be a donatio mortis causâ of a mortgage debt charged on real property; and such gift is made by a delivery of the mortgage deeds.

DORMANT PARTNER. A sleeping partner.

See title PARTNERSHIP.

DOTE ASSIGNANDA. The writ thus described lay for a widow whose husband held of the king in chief, and was issued to the escheators upon the widow's making oath in Chancery not to marry without the king's leave. Such widows were called the king's widows.

DOTE UNDE NIHIL HABET. The writ thus described lay for a widow against a purchaser of the lands from her husband.

5 & 6 Vict. c. 97, all previous Acts of Parliament (whether public or private) which awarded double or treble costs are repealed, and party and party costs only, or reasonable costs upon taxation only, are to be given, when given at all.

DOUBLE PLEA. The plea thus dedescribed is faulty on the ground of duplicity. Duplicity in pleading is a fault which may arise either in the declaration or in any subsequent pleading, and signifies the allegation of several distinct matters in support of, or in answer to, a single demand, any one of which matters would be sufficient of itself to support the demand, or to answer it. Leave to plead several pleas may, however, be obtained under the C. L. P. Act, 1852, s. 81. The fault of duplicity used formerly to be taken advantage of by special demurrer; but since the C. L. P. Act, 1852, it is now to be

DOUBLE PLEA-continued.

met by application in a summary way under s. 52 of that Act, to amend or strike out the faulty pleading.

DOWAGER. A widow who is endowed, or who has a jointure in lieu of dower, is thus described; but in common practice the word is confined to the widows of princes, dukes, and other like persons only. DOWER. Is the right of a widow during the residue of her life to one-third part of the lands late of her deceased husband.

(1.) In the case of widows who were married before the 1st of January, 1834, the right to dower attached to all lands of which the husband was solely seised for an estate of inheritance, and, having once attached, the right was not capable of being barred or defeated excepting by a fine in which the wife joined. In the absence of a fine, it attached upon the lands even when in the hands of a purchaser. It was not necessary that she should have any issue actually born. To exclude her dower from attaching at all was therefore the great object of every purchaser of land; and two methods were in common use, called respectively the old method and the modern method of barring dower. Under the old method, the lands were conveyed to the grantee and his heirs, to the use of the grantee and a trustee and the heirs of the grantee, with a declaration that the estate of the trustee was in trust only for the grantee and his heirs. Under the modern method, a general power of appointment was in the first place given to the grantee, and subject thereto to the grantee for his life, with remainder to a trustee and his heirs during the purchaser's life, with an ultimate remainder to the heirs and assigns of the purchaser for ever.

(2.) In the case of widows who have been married since the 1st of January, 1834, the right of dower attaches to all lands of which the husband is solely seised, or even equitably possessed, for an estate of inheritance; but although it may have once attached, the right is of the most fragile sort, being defeated by any declaration in the will of the husband, or by his devise of the lands, or by his alienation of them during his life, and even, pro tanto, by his debts. And it is not infrequent to exclude it from attaching even from the first, by inserting a declaration to that effect in the deed of grant, which is also now effectual to defeat the widow's right.

DOWRY. This is the proper name for the property which the wife brings to her

DOWRY-continued.

husband upon her marriage with him, and, like the dos of Roman Law is distinguished from the dower (or jointure in lieu thereof), which corresponds to the donatio propter nuptias of Roman law. The wife's dowry is often called her maritagium in the old

statutes.

DROIT. This word signifies right. Droit-droit signifies. therefore, a right upon a right, or a double right, and was used to denote the title of one in whom the right of possession and the right of property were combined. The phrase droitural was used of actions which were brought upon a writ of right, as dis tinguished from that other group of actions called possessory, which were brought upon the fact of, or right to, the possession merely.

DROITS CIVILS. In French Law, denote private rights, and the exercise of which is independent of the status (qualité) of citizen. Foreigners enjoy them, and the extent of that enjoyment is determined by the principle of reciprocity. Conversely, foreigners, although not resident in France, may be sued on contracts made by them in France, and (unless possessed of sufficient real property in France) are obliged to give security. This provision meets such a case, semble, as that of Leroux v. Brown, 12 C. B. 801.

DRUNKENNESS. Where total, is a qualified incapacity for contracting; and where the drunkenness, being partial, is caused by the other contracting party to the fraud of the intoxicated person, then it is also a ground for avoiding the contract. And with reference to crime, habitual drunkards are placed under police supervision; and persons committing any crime while in a state of temporary drunkenness are not excused thereby, but the circumstance at the very most goes only in extenuation of the offence. 1 Hawk. c. 1, s. 6; Arch. Crim. Pl. 18.

DUCES TECUM. When a person, who is not a party to an action or suit, has in his possession any written instrument which is capable of being used as evidence at the trial or hearing, he is brought before the Court upon a subpoena duces tecum, which is a writ commanding him to appear at the trial and bring the instrument with him. And, notwithstanding he may have some good reason for not producing it, still he must obey the writ in the first instance, not himself judging, but leaving the Court to judge, of the sufficiency of his reason for the non-production.

DUCHY COURT OF LANCASTER: See title CHANCELLOR.

DUM FUIT INFRA ÆTATEM. This was a writ which lay for the recovery of lands which a man had alienated while under age. The writ lay also for the heir of the infant alienor.

DUM FUIT IN PRISONÂ.

This was a

writ which lay for the recovery of lands which a man had alienated while in prison or under duress.

DUM FUIT NON COMPOS MENTIS. This was a writ which lay for the recovery of lands which a man had alienated while insane.

DUPLICATE. Any copy or transcript of a deed or writing is called a duplicate.

DURESS. Is of two kinds, being either (1.) To the person; or (2.), To the goods. The object of placing either the person or the goods under duress being to extort money in excess of what (if anything) is rightfully owing, the law holds that the excess so obtained may be recovered back as money had and received; also, that duress (like fraud) vitiates all contracts made under its influence.

In criminal

DYING DECLARATIONS. law the dying declarations of the injured person, being an adult, are admissible, but being an infant of very tender years are not admissible in evidence, the reason for the exclusion of the latter being that the child's mind is not affected by the prospect of death, as the adult's is supposed to be.

DYING WITHOUT ISSUE. Formerly, if lands were given to A., and if he died without issue, then to B. in fee simple, A. took an estate tail by implication, and B. an estate in fee simple in remainder, which, however, A. could defeat. But now, under 1 Vict. c. 26, under the same words, A. would take an estate in fee simple defeasible in case he left no issue when he died, and B. would take an estate in fee simple that was executory upon the same event, namely, A.'s leaving no issue at the time of his, A.'s, death.