DE DOMO REPARANDA. The name of an ancient common law writ1, by which one tenant2 in common might compel his co-tenant to concur3 in the expense of repairing the property held in common. 8 B. & C. 269; 1 Tho. Co. Litt. 216, note 17, and p. 787.
DE DONIS, STATUTE4. The name of an English statute passed the 13 Edwd. I. c. 1, the real design of which was to introduce perpetuities, and to strengthen the power of the barons5. 6 Co. 40 a; Co. Litt. 21; Bac. Ab. Estates in tail, in prin.
DE FACTO, i. e. in deed. A term used to denote a thing actually done; a president of the United States de facto is one in the exercise of the executive power, and is distinguished6 from one, who being legally entitled to such power is ejected from it; the latter would be a president de jure. An officer de facto is frequently considered as an officer de jure, and his official acts are of equal validity. 10 S. & R. 250; 4 Binn. R. 371; 11 S. & R. 411, 414; Coxe, 318; 9 Mass. 231; 10 Mass. 290; 15 Mass. 180; 5 Pick. 487.
DE HOMINE REPLEGIANDO. The name of a writ which is used to replevy a man out of prison, or out of the custody7 of a private person. See Homine replegiando; Writ de homine replegiando.
DE INJURIA, pleading. The name of a replication in an action for a tort, that the defendant8 committed the trespasses10 or crrievances of his own wrong, without the cause by,him in his plea alleged11.
2. The import of this replication is to insist that the defendant committed the act complained of, from a motive12 and impulse altogether different from that insisted on by the plea. For example, if the defendant has justified13 a battery under a writ of capias, having averred14, as he must do, that the arrest was made by virtue15 of the writ; the plaintiff may rely de injuria sua propria absque tali causa, that the defendant did the act of his own wrong, without the cause by him alleged. This replication, then, has the effect of denying the alleged, motive contained in the plea, and to insist that the defendant acted from another, which was unlawful, and not in, consequence of the one insisted upon in his plea. Steph. Pl. 186; 2 Chit. Pl. 523,.642; Hamm. N. P. 120, 121; Arch. Civ. Pl. 264; Com. Dig. Pleader, F 19.
3. The form of this replication is, "precludi non, because he says that the said defendant at the same time when, &c., of his own wrong, and without the cause by him in his said second plea alleged, committed the said trespass9 in the introductory part of that plea, in manner and form as the said plaintiff hath above in his said declaration complained against the said defendant, and this the said plaintiff prays, may be inquired of by the country," &c. This is the uniform conclusion of such a replication. 1 Chit. Pl. 585.
4. The replication de injuria is only allowed when an excuse is offered for personal injuries. 1 B. & P. 76; 5 Johns. R. 112; 4 Johns. 150; 12 Johns. 491. Vide 7 Vin. Ab. 503; 3 Saund. 295, note; 1 Lilly's Reg. 587.
5. In England, where the extent of the general issues has been confined in actions on contracts, and special pleas have become common in assumpsit, it has become desirable, that the plaintiff, who hss but one replication, should put in issue the several numerous allegations which the special pleas were found to contain; for, unless he could do this, he would labor16 under the hardship of being frequently compelled to admit the greater part of an entirely17 false story. It became, therefore, important to ascertain18 whether de injuria could not be replied to cases of this description and, after numerous cases which were presented for adjudication, it was finally settled that de injuria may be replied in assumpsit, when the plea consists of matters of excuse. 3 C.M. &,R. 65; 2 Bing. N. C. 579 4 Dowl. 647.
6. The improper19 use of de injuria is ground of general demurrer. 2 Lev. 65; 4 Tyrw. 771. But if the defendant do not demur20, the objection will not avail after verdict. Hob. 76: Sir T. Raym. 50.
7. De injuria puts in issue the whole of the defence contained in the plea. 5 B. & A. 420; 11 East, 451; 10 Bing. 157. But if the plea state some authority in law, which, prima facie, would be a justification21 of the act complained of, the plaintiff will not be allowed under the plea of de injuria to show an abuse of that authority so as to convert the defendant into a tort feasor ab initio. 1 Bing. 317; 1 Bing. N. S. 387. See 1 Smith's L. C. 53 to 61; 8 Co. 66.
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