KFLCC Kingdom Law 2nd Ed.

401

DUE-BILL

DUE

particular circumstances. Lawrence v. Bow man, 1 McAll. 420, 15 Fed. Cas. 21; Slattery v. Doyle, 180 Mass. 27, 61 N. E. 264; Wilde v. Wilde, 2 Nev. 306.— 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 permit and sanction, and under* such safe guards 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. Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be "no doubt of their meaning when applied to judi cial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must be a tri bunal competent by its constitution—that is, by the law of its creation—to pass upon the sub ject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or his voluntary appearance. Pennoyer v. Neff, 95 U. S. 733, 24 L. Ed. 565. Due pro cess of law implies the right of the person af fected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most com prehensive sense; to be heard, by testimony or otherwise, and to have the right of controvert ing, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclu sively presumed against him, this is not due process of law. Zeigler v. Railroad Co., 58 Ala. 599. These phrases in the constitution do not mean the general body of the law, com mon and statute, as it was at the time the con stitution took effect; for that would seem to deny the right of the legislature to amend or repeal the law. They refer to certain funda mental rights, which that system of jurispru dence, of which ours is a derivative, has always recognized. Brown v. Levee Com'rs, 50 Miss. 468 "Due process of law," as used in the con stitution, cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for as certaining guilt, or determining the title to property. Embury v. Conner, 3 N. Y. 511, 517, 53 Am. Dec. .325; Taylor v. Porter, 4 Hill (N. Y.) 140, 40 Am. Dec. 274; Burch v. New bury, 10 N. Y. 374, 397. And see, generally, Davidson v. New Orleans, 96 U. S. 104, 24 L. Ed. 616; Adler v. Whitbeck,' 44 Ohio St 539; Duncan v Missouri. 152 U. S. 377, 14 Sup. Ct. 571, 38 L. Ed 485; Cantini v. Tillman (C. C.) 54 Fed. 975; Griffin V. Mixon, 38 Miss. 458; East Kingston v. Towle. 48 N. H. 57, 97 Am. Dec. 575, 2 Am Rep. 174; Hallenbeck v. Hahn, 2 Neb. 377; Stuart v. Palmer, 74 N. Y. 191, 30 Am. Rep. 289; Bailey v. People, 190 111. 28, 60 N. E 98, 54 L. R. A. 838, 83 Am. St. Rep. 116; Eames v. Savage, 77 Me. 221. 52 Am. Rep. 751; Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct 77, 44 L. Ed. 119; Hagar v. Reclamation Dist, 111 U. S. 701, 4 Sup. Ot. 663, 28 L. Ed. 569; Wynehamer v. People. 13 N. Y. 395; State v. Beswick, 13 R. I. 211, 43 Am. Rep. 26; In re Rosser, 101 Fed. 567, 41 C. C. A. 497. A brief written acknowledg ment of a debt. It is not made payable to order, like a promissory note. See Feeser DUE-BIIX.

a person where he is the party owing it, or primarily bound to pay, whether the time for payment has or has not arrived. 4. Payable. A bill or note is commonly said to be due when the time for payment of it has arrived. The word "due" always imports a fixed and settled obligation or liability, but with refer ence to the time for its payment there is con siderable ambiguity in the use of the term, as will appear from the foregoing definitions, the precise signification being determined in each case from the context. It may mean that the debt or claim in question is now (presently or immediately) matured and enforceable, or that it matured at some time in the past and yet remains unsatisfied, or that it is fixed and cer tain but the day appointed for its payment has not yet arrived. But commonly, and in the absence of any qualifying expressions, the word "due" is restricted to the first of these meanings, the second being expressed by the term "overdue," and the third by the word "payable." See Feeser v. Feeser, 93 Md. 716, 50 Atl. 406; Ames v. Ames, 128 Mass. 277; Van Hook v. Walton, 28 Tex. 75; Leggett V. Bank, 24 N. T. 286; Scudder v. Scudder. 10 N. J. Law, 345; Barnes v. Arnold, 45 App. Div. 314, 61 N. Y. Supp. 85; Yocum v. Allen, 58 Ohio St. 280, 50 N. E. 909; Gies v. Becht ner, 12 Minn. 284 (Gil 183); Marstiller v. Ward, 52 W. Va. 74, 43 S. E. 178. —Due care. Just, proper, and sufficient care, so far as the circumstances demand it; tht. absence of negligence. This term, as usually understood in cases where the gist of the ac tion is the defendant's negligence, implies not only that a party has not been negligent 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 action. 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 actions the aver ment in the declaration of the use of due care and the denial of it in the answer, properly and distinctly put in issue the legality of the con duct of the party as contributing to the acci dent or injury which forms the groundwork of the action, No specific averment of the par ticular unlawful act which caused or contrib uted to produce the result complained of should, in such cases, be deemed necessary. See Ryan v. Bristol, 63 Conn. 26, 27 Atl. 309; Paden v. Van Blarcom, 100 Mo. App 185, 74 S. W. 124; Joyner v. Railway Co., 26 S. C. 49, 1 S. E. 52; Nicholas v. Peck, 21 R. I. 404, 43 Atl 1038; Railroad Co. v. Yorty, 158 111. 321, 42 N. E 64;' Schmidt v. Sinnott, 103 111. 165; Butterfield v. Western R. Corp., 10 Allen (Mass.) 532, 87 Am. Dec. 678; Jones v. An dover, 10 Allen (Mass.) 20—Due course of law. This phrase is synonymous with "due process of law," or "the law of the land," and the general definition 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 desig nate the kind of an eviction, or ouster, from real estate by which a party is dispossessed, as to preclude thereunder proof of a construc tive eviction resulting from the purchase of a paramount title when hostilely asserted by the party holding it. See Adler v. Whitbeck, 44 Ohio St. 569, 9 N. E 672; In re Dorsey, 7 Port. (Ala.) 404; Backus v. Shipherd, 11 Wend. (N. Y.) 635; Dwight v. Williams, 8 Fed. Cas. 187— 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 6f the discretion of the court in view of the

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