DEBT, ACTION OF

One of the old forms of personal actions in common-law pleading, being used, under that system, to recover a sum certain, or capable of being ascertained by computation only. Formerly the declaration alleged the debet ct detinet, on the theory that the defendant owed the money and was guilty of an unjust detention of the goods or whatever happened to be the consideration, but this fell into disuse and is no longer proper.

Where the obligation is founded on a simple contract the declaration must allege the consideration, and if on a specialty or on a record it must be set out in full. It differs from assumpsit, where a special promise is necessary. It is still retained in some of the United States where common-law pleading is used, but has been abolished by statute in England, where it originated.

DECLARATION

Under the common-law practice, the first pleading in an action, consisting of a sufficient statement, in legal form, of all the material facts constituting the plaintiff's cause of action, together with a demand for relief. The facts alleged must be sufficient to give the plaintiff a right to recover if he establishes them; otherwise the defendant may demur and get judgment in his favor. Originally, in England, it applied only to personal actions, the first pleading in causes involving real property being called a count; but this distinction is no longer maintained in England or the United States.

The declaration is made up of the following general parts, viz. the title, being the name of the court; the venue, or county in which the cause of action arose; the commencement, containing the names of the parties and the capacities in which they are joined in the action, together with a statement that the defendant has been summoned; the body, a statement of the facts constituting the cause of action; and a conclusion, or formal demand for relief at the end. The body must conform to the particular common form which is adapted to the nature of the action, but the general characteristics remain the same. It corresponds to a complaint in code practice, and a bill in equity or chancery, and statement of claim in England.

DECLARATION or AFFIRMATION IN LIEU OF AN OATH

A solemn statement in court or before a judicial or legislative body, by a witness, that he will tell the whole truth in such testimony as he may be called upon to give in the matter pending. Any one who objects to taking an oath, for religious or other reasons, may, in nearly all jurisdictions today, thus declare or affirm that he will tell the truth, but usually an oath is administered unless the witness objects. This practice was adopted generally because at common law no witness who did not believe in a Supreme Being and who, therefore, had no sense of the obligation of an oath from that standpoint, was allowed to testify, which rule excluded much valuable testimony. Violation of such declaration or affirmation is legal perjury and the witness may be punished as if he had taken an oath.

DEFAULT

In law, the failure of a party to a suit to take the next step in the process of litigation incumbent upon him, within the time limited by the practice of the court. Originally, the term was limited to the non-appearance of a party in court on the day assigned in the writ or summons, but it is now employed of a similar failure at any stage of the cause. In general, the effect of a default on the part of the plaintiff is to entitle the opposing party to a non-suit, and the default of the defendant renders him liable to a judgment in accordance with the demand of the declaration or complaint. Formerly, in suits at law, these results were final, but the procedure of the equity tribunals permitted the opening of defaults for cause shown, and this is now the general practice, at law as well as in equity, in the courts of England and the United States. Usually, however, the default can be reopened and the cause reinstated on the calendar of the court only on the payment of moderate costs by the party in default. See PROCEDURE.

DEFENDANT

The person who is sued in action at law or in equity. Blackstone says, "In every court there must be at least three constituent parts, the actor, or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, to determine the law arising upon that fact, and, if any injury appears to have been done, to ascertain, and, by its officer, to apply the remedy" (3 Bl. Com. 25).

The term was originally limited to the person sued in a personal action at common law, the one against whom a real action was brought being described as "the tenant," the complaining party in that case being known as 'the demandant', and these expressions are still employed to distinguish the contending claimants to real property in several of the United States. But in most States, as well as in England, the term defendant has come to designate the party used in any form of action and in any court. See PARTIES.

DEMURRER

A pleading which in legal effect admits the facts alleged by the opposite party to be true for the purpose of argument, but denies that they are sufficient, as a matter of law, to sustain his claim; or which sets up that there is some other defect on the face of the pleading which is a legal reason why the plaintiff should not be allowed to proceed under it. It is always based solely upon what is stated in the pleading to which it is interposed, and cannot contain any other defense.

Its purposes vary somewhat in different jurisdictions; but, generally, in addition to denying that the facts alleged constitute a cause of action, it may be used to put in issue the jurisdiction of the court, the capacity of the plaintiff to sue, that another action is pending between the parties for the same cause, that there is a defect of parties plaintiff or defendant, or that several causes of action are improperly joined in the same pleading. It may be interposed to any pleading of either plaintiff or defendant which alleges 'new matter', that is, something in addition to what was set out in the last previous pleading.

It is in the discretion of the court to allow the party whose pleading is thus attacked to amend if the objection is well taken and sustained, and great liberality is shown by the courts in this respect, especially where the defect is in some technical matter of form and an amendment curing it would not prejudice the opposite party. On the other hand, if the demurrer is overruled the demurrant is usually allowed to answer if he can convince the court there is probable merit in his proposed defense. These privileges are usually granted upon terms, as the imposition of costs to date of the argument. They have been abolished and other proceedings designed to accomplish like results substituted in the King's Bench and Chancery divisions of the High Court in England, but are retained and in constant use in most of the United States, both under the codes and the modified common-law system of pleading. See ANSWER; PLEADING.

DETINUE

A personal common-law action for the recovery of specific goods and chattels, wrongfully detained from the claimant, together with damages for their detention and costs of the action. The chattels must be such as can be distinguished from others; the action would not lie where claimant's property as wheat, was lawfully mixed with other wheat so that it could not be separated. The action is not based on contract, express or implied, but is for the redress of a wrong. The value of the chattel is always alleged in the declaration, and if the chattels have been destroyed, or cannot be returned for any reason, the plaintiff may recover their value. It is immaterial whether the defendant came into possession of the chattels lawfully or wrongfully. It is sufficient if he has no present right to retain them as against the claimant. Thus, if the defendant held goods as a gratuitous bailee, his possession would be lawful until a demand was made by the proper party for their return; but in case of refusal to do so, the claimant might maintain detinue, as the detention would then be unlawful. Demand before suit is not necessary if the original taking was wrongful. Possession of the chattels cannot be obtained until final judgment, and in this respect it is not so desirable as replevin where the plaintiff gets immediate possession. The plaintiff must have a general or special property or interest in the chattels and a right to immediate possession in order to maintain the action. A judgment for the plaintiff was formerly enforced by a special form of execution, called a writ of distringas. This form of action has been abolished in England, but is retained in several of the United States.

DICTUM

In legal parlance, an unauthoritative expression of opinion on a point of law uttered by a judge in a judicial proceeding. In a legal system based, as is that of England and America, largely upon precedent, only so much of a judicial opinion as is directly concerned with the decision of the case in hand has commanding authority. This is due to the fact that the courts have no power to decide cases not before them for adjudication. The principle of stare decisis, that is, of abiding by a rule once settled by a formal decision, invests such a decision with the force of law, and makes it a binding authority upon the courts in similar cases. But a decision upon a collateral point, or upon a state of facts not before the court for its determination, has no such binding force. It is a mere pronouncement, or expression of opinion, which derives its authority solely from the learning and personal weight of the judge declaring it. It is usual, therefore, to distinguish between the 'law of a case' and the dicta, or judicial opinions expressed in it, which, however important and influential they may be, have not the force of law. This process of 'sifting' the law from the dicta of a judicial opinion is one of the chief, as it is one of the most difficult, functions of the lawyer and the judge.

It is not to be inferred, however, that judicial dicta are entirely without legal authority. The opinions of eminent and learned judges have the same weight with the courts as that which attaches to the disinterested opinions of great lawyers and legal writers, and are classified as having 'persuasive' as distinguished from 'imperative' authority. It is often desirable and sometimes necessary to resort to such opinions as an aid to the formation of a sound though independent judgment upon a question of law, and many cases have been decided and many important legal doctrines established in deference to such authority. In this view of the matter, judicial dicta constitutes a long and valuable series of commentaries on the law of the land, scattered through the law reports, to which resort may be had as to the more systematic writings of eminent lawyers and judges, as those of Coke, Blackstone, Kent, and Story. Wambaugh, The Study of Cases (2d ed., Boston, 1894)

DISBARMENT

The act of depriving an attorney, counselor at law, solicitor, or barrister of his rights and privileges as such. The power to do this rests with the courts, and they may take this action, upon sufficient cause, on complaint of any one, or of their own motion, where the cause comes to their knowledge directly. It may be exercised when an attorney has been guilty of gross contempt of court, dishonesty, extortion, or professional misconduct of a serious nature, and in some jurisdictions where he becomes a person of general bad character, so that he cannot be considered a fit person to be entrusted with the legal business of others. He must be given an opportunity to be heard in his own behalf, usually in open court, and may cross-examine any witness who may testify against him, and produce witnesses in his own favor, much as if he were under indictment for a crime. It is considered a severe penalty, as it deprives the person from earning a livelihood by his profession, and is only imposed in grave cases and after a thorough investigation and consideration. Where the conduct has been culpable, but there is reason to believe that it will not be repeated, the court will sometimes suspend the attorney from practice for a definite period, on the expiration of which he resumes his former rights and privileges. The court may restore one who has been disbarred to practice, in its discretion, where proof is presented that he will probably conduct himself properly in the future. See ATTORNEY.

DISCOVERY, BILL OF

An equitable remedy which is sometimes used to enable a plaintiff or defendant in an action, either at law or in equity, to obtain information and proof as to facts and documents necessary for the prosecution or defense of his case, where such means of proof are within the knowledge or possession of the opposite party. The bill should not ask for any relief as to the matters in controversy, but may ask for an injunction staying further proceedings in the action until the discovery is obtained. It must only ask for the disclosure of facts or the production of deeds, writings, or other things in which the party has a title or interest, and which are essential to be established in order to sustain his side of the case, and must show some merit in his claim or defense. Thus a devisee of real property under a will might maintain such a bill for the production of the title deeds of the particular property to which he has become entitled, in order to trace the devisor's interest, and consequently enable him to establish his claim. it must not demand any information which is clearly only in the nature of evidence for the opposite party, as it is not for the purpose of compelling him to disclose the manner in which he will endeavor to establish his side of the case. It will only be entertained in civil actions. It is still a common remedy in States having distinctly separate courts of law and equity, but has been abolished or has fallen into disuse in States having codes of civil procedure, as in New York, where a party has a right to call his adversary as a witness and compel the production of books and documents by subpoena duces tecum. See EQUITY; EVIDENCE; SUBPOENA.

DISTRICT ATTORNEY

In the United States, the public prosecuting officer within a defined district. The Federal Government has one set of district attorneys, and each State has an entirely different set for the same territory. The former are appointed by the President, and are in reality deputies of the Attorney-General of the United States, to whom they are required to make report of their official acts, and to whose direction and control they are subject. They are appointed for the several districts into which the United States are divided for district courts, and are charged with prosecuting offenses against the Federal Government, as well as with conducting civil actions on behalf of the Government, and in some cases on behalf of Government officers. As a rule their compensation comes from fees, and is not in the form of a stated salary.

In most of the States a State district attorney is elected in each county, although his most important duties, as a rule, are discharged in prosecuting criminals before the State courts. He is also the prosecuting officer before the county court of the county in which he is elected. He is subject at times to the control of the Attorney-General of the State, and in New York is removable by the Governor. In certain contingencies he may call upon the State Attorney-General for assistance in important criminal prosecutions. His duties and powers are regulated under the provisions of the statutes in accordance with which he is appointed or elected. For these consult the Federal and State statutes.

DISTRINGAS

The name of a writ or process in the nature of an attachment or execution, taken from the emphatic word of the writ directed to the sheriff, viz. "It is hereby commanded that you distrain" the defendant, etc. It was formerly issued in England for a variety of purposes, such as forcing a defendant who neglected to appear to present himself in court, or forcing a corporation to obey a subpoena, or compelling jurors to attend court, or a defendant in an action in detinue after judgment to deliver the goods to the plaintiff. The writ has been abolished in England, as well as in most of the United States, although in Virginia it is retained as a form of execution in cases of detinue. See EXECUTION.