Page:Black's Law Dictionary (Second Edition).djvu/363

DEPARTURE 7. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983.

A departure, in pleading, is when a party quits or departs from the case or defense which he has first made, and has recourse to another. White v. Joy, 13 N. Y. 83; Allen v. Watson, 16 Johns. (N. Y.) 205; Kimberlin v. Carter, 49 Ind. 111.

A departure takes place when, in any plead- ing, the party deserts the ground that he took in his last antecedent pleading, and resorts to another. Steph. Pl. 410. Or, in other words. when the second pleading contains matter not pursuant to the former, and which does not support and fortify it. Co. Litt. 304a. Hence a departure obviously can never take place till the replication. Steph. Pl. 410. Each subse- quent pleading must pursue or support the for- mer one; i. e.. the replication must support the declaration, and the rejoinder the plea, without departing out of it. 3 Bl. Comm. 310.

DEPARTURE IN DESPITE OF COURT. In old English practice. The ten- ant in a real action, having once appeared, was considered as constructively present in court until again called upon. Hence if, upon being demanded, he failed to appear, he was said to have "departed in despite [i. e., contempt] of the court."

DEPASTURE. In old English law. To pasture. "If a man depastures unprofitable cattle in his ground." Bunb. 1, case 1.

DEPECULATION. A robbing of the prince or commonwealth; an embezzling of the public treasure.

DEPENDENCY. A territory distinct from the country in which the supreme sovereign power resides, but belonging right, fully to it, and subject to the laws and regulations which the sovereign may think proper to prescribe. U. S. v. The Nancy, 3 Wash. C. C. 286. Fed. Cas. No. 15,854. It differs from a colony, because it is not settled by the citizens of the sovereign or mother state; and from possession, because It is held by other title than that of mere conquest.

DEPENDENT. Deriving existence, support, or direction from another; conditioned. in respect to force or obligation, upon an extraneous act or fact.

-Dependent contract. One which depends or is conditional upon another. One which it is not the duty of the contractor to perform until some obligation contained in the same agree- ment has been performed by the other party. Ham. Parties, 17, 29, 30, 109.-Dependent covenant. See COVENANT.

DEPENDING. In practice. Pending or undetermined; in progress. See 5 Coke, 47.

DEPESAS. In Spanish-American law. Spaces of ground in towns reserved for commons or public pasturage. 12 Pet. 443, note, 9 L. Ed. 1150.

DEPONE. In Scotch practice. To depose; to make oath in writing.

DEPONENT. In practice. One who de- poses (that is, testifies or makes oath in writing) to the truth of certain facts; one who gives under oath testimony which is re- duced to writing; one who makes oath to a written statement. The party making an af- fidavit is generally so called.

The word "depone," from which is derived "deponent," has relation to the mode in which the oath is administered, (by the witness plac- ing his hand upon the book of the holy evange- lists.) and not as to whether the testimony is delivered orally or reduced to writing. "De- ponent" is included in the term "witness," but "witness" is more general. Bliss v. Shuman, 47 Me. 248.

DEPONER. In old Scotch practice. A deponent. 3 How. State Tr. 695.

DEPOPULATIO AGRORUM. In old English law. The crime of destroying, ravaging, or laying waste a country. 2 Hale, P. C. 333; 4 Bl. Comm. 373.

DEPOPULATION. In old English law. A species of waste by which the population of the kingdom was diminished. Depopulation of houses was a public offense. 12 Coke, 30. 31.

DEPORTATIO. Lat. In the civil law. A kind of banishment, where a condemned person was sent or carried away to some foreign country, usually to an island, (in insulam deportatur,) and thus taken out of the number of Roman citizens.

DEPORTATION. Banishment to a foreign country, attended with confiscation of property and deprivation of civil rights. A punishment derived from the deportatio (q. v.) of the Roman law, and still in use in France.

In Roman law. A perpetual banishment, depriving the banished of his rights as a citizen; it differed from relegation (q. v.) and exile, (q. v.) 1 Brown, Civil & Adm. Law, 125, note; Inst. 1, 12, 1, and 2; Dig. 48, 22, 14, 1.

In American law. The removal or sending back of an alien to the country from which he came, as a measure of national police and without any implication of punishment or penalty.

"Transportation," "extradition," and "deportation," although each has the effect of removing a person from a country, are different things and for different purposes. Transportation is by way of punishment of one convicted of an offense against the laws of the country; extradition is the surrender to another country of one accused of an offense against its laws, there to be tried and punished if found guilty. Deportation is the removing of an alien out of the country simply because his presence is deemed inconsistent with the public welfare, and without any punishment being imposed or contemnplated, either under the laws of the country out of which he is sent, or under those of the country to which he is taken. Fong Yue Ting v. U. S.. 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. M 905.