Blacks Law Dict. 1st ed

DUE CARE

DULY

399

oan be no doubt of their meaning when applied to judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our sys tems of jurisprudence for the enforcement and protection of private rights To give such pro ceedings any validity, there must be a tribunal competent by its constitution—that is, by the law of its creation—to pass upon the subject-mat ter of the suit; and, if that involves merely a de termination of the personal liability of the defend ant, he must be brought within its jurisdiction by service of process within the state, or his volun tary appearance. 95 U. S. 733. Due process of law implies the right of the per son affected thereby to be present before the tri bunal which pronounces judgment upon the ques tion of life, liberty, or property, in its most com prehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved If any question of fact or liability be conclusively pre sumed against him, this is not due process of law. 58 Ala. 599. These phrases in the constitution do not mean the general body of the law, common and statute, as it was at the time the constitution took effect; for that would seem to deny the right of the legis lature to amend or repeal the law. They refer to certain fundamental rights, which that system of jurisprudence, of which ours is a derivative, has always recognized. 50 Miss. 468. "Due process of law," as used in the constitu tion, cannot mean less than a prosecution or suit instituted and conducted according to the pre scribed forms and solemnities for ascertaining guilt, or determining the title to property. 8 N. Y 511, 517; 4 Hill, 140; 10 N. Y. 374, 397. DUEL. A duel is any combat with dead ly weapons, fought between two or more persons, by previous agreement or upon a previous quarrel. Pen. Code Cal. § 225. DUELLUM. The trial by battel or judi cial combat. See BATTEL. DUES. Certain payments; rates or taxes. DUKE, in English law, is a title of no bility, ranking immediately next to the Prince of Wales. It is only a title of digni ty. Conferring it does not give any domain, territory, or jurisdiction over the place whence the title is taken. Duchess, the con sort of a duke. Wharton. DUKE OF EXETER'S DAUGHTER. The name of a rack in the Tower, so called after a minister of Henry VI.• who sought to introduce it into England. DULOCRACY. A government where servants and slaves have so much license and privilege that they domineer. Wharton. DULY. In due or proper form or man ner.

DUE CARE. Just, proper, and suffi cient care, so far as the circumstances de mand it; the absence of negligence. This term, as usually understood in cases where the gist of the action is the defendant's negligence, implies not only that a party has not been negli gent or careless, but that he has been guilty of no violation of law in relation to the subject-matter or transaction which constitutes the cause of ac tion. Evidence that a party is guilty of a violation of law supports the issue of a want of proper care; nor can it be doubted that in these and similar ac tions the averment in the declaration of the use of due care, and the denial of it in the answer, prop erly and distinctly put in issue the legality of the conduct of the party as contributing to the acci dent or injury which forms the groundwork of the action. No specific averment of the particular unlawful act which caused or contributed to pro duce the result complained of should, in such oases, be deemed necessary. 10 Allen, 18. See, also, Id. 532. DUE COURSE OP LAW. This phrase is synonymous with "due process of law," or "the law of the land," and the general defi nition thereof is "law in its regular course of administration through courts of justice;" and, while not always necessarily confined to judicial proceedings, yet these words have such a signification, when used to designate the kind of an eviction, or ouster, from real estate by which a party is dispossessed, as to preclude thereunder proof of a constructive eviction resulting from the purchase of a paramount title when hostilely asserted by the party holding it. 19 Kan. 542. See, also, 34 Ala. 236; 11 Wend. 635; 63 Ala. 436; 88 Miss. 424; 3 Stew. 108; 4 Dill. 266. DUE NOTICE. No fixed rule can be established as to what shall constitute "due notice." "Due" is a relative term, and must be applied to each case in the exercise of the discretion of the court in view of the particu lar circumstances. 1 McAll. 420. DUE PROCESS OF LAW. Law in its regular course of administration through courts of justice. 3 Story, Const. 264, 661. "Due process of law in each particular case means such an exercise of the powers of the government as the settled maxims of law per mit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs." Cooley, Const. Lim. 441. See, also, 12 N. Y. 209; 5 Mich. 251; 6 Cold. 233; 49 Cal. 403. Whatever difficulty may be experienced in giv ing to those terms a definition which will embrace every permissible exertion of power affecting pri vate rights, and exclude such as is forbidden, there

Archive CD Books USA