Divisible

The power or ability
of being separated.

2. — A contract cannot, in general,
lie divided in such a manner that an
action may be brought, or a right ac-
crue, on a part of it. 2 Penna. U.
454. But some contracts are suscep-
tible of division, as when a reversioner
sells a part of the reversion to one
man, and a part to another, each shall
have an action for his share of the
rent, which may accrue on a contract,
to pay a particular rent to the rever-
sioner. 3 Whart. 404, and see Ap-
portionment. But when it is to do
several things, at several times, an ac-
tion will lie upon every default. 15
Pick. R. 409. Sec 1 Grccnl. R. 316;
6 Mass. 344. See Entire.

DIVISION, Eng. lata. Is a par-
ticular and ascertained part of a coun-
ty. In Lincolnshire, division means
what riding does in Yorkshire.

Division of opinion. When, in a
company or society, the parties having
a right to vote are so divided that there

DIV

DIV

479

is not u plurality of the whole in fa-
vour of any particular proposition, or
when the voters are equally divided, it
is said there; is division of opinion.

2. — In such a case, the Roman law,
which seems founded in reason and
common sense, directs, that when the
division relates to the quantity of things
included, ns in the case of a judgment,
if one of three judges votes lor con-
demning a man to a line of one hun-
dred dollars, another, to one of filly
dollars, and the third to twenty-five,
the opiuion or vote of the last shall be
the rule for the judgment ; because the
votes of nil the others include that of
the lowest ; this is the case when unan-
imity is required. But when the divi-
sion of opinions does not relate to the
quantity of things, then it is always to
be in favour of the defendant.

3. — When the judges of a court arc
divided into three classes, each holding
a different opinion, that class which has
the greatest number shall give the
judgment; for example, on a habeas
corpus, when a court is composed of
four judges, and one is for remanding
the prisoner, another is for discharging
him on his own recognizance, and two
others for discharging him absolutely,
the judgment will be, that he be dis-
charged. Rudynrd’s Cuse, Bac. Ab.
liabcus Corpus, B 10.

4. — It is provided, by the act of
Congress, of April 29, 1802, s. 6, that
whenever any question shall occur be-
fore a circuit court, upon which the
opinions of the judges shall be opposed,
the point upon which the disagreement
shall happen shall, during the same
term, upon the request of either party,
or their counsel, be stated, under the
direction of the judges, and certified,
under the seal of the court, to the su-
preme court, at their next session to be
held thereafter, and shall, by the said
court, be finally decided. And the de-
cision of the supreme court, aud their
order in the premises, shall be remitted
to the circuit court, and be there en-
tered of record ; and shall have cfTect
according to the nature of the said
judgment and order : Provided-. , That

nothing herein contained shall prevent
the cause from proceeding, if, in the
opinion of the court, further proceed*
iugs can lie had without prejudice to
the merits: Ami provided, also. That

imprisonment shall not be allowed, nor
punishment in any case be inflicted,
where the judges of the said court are
divided in opinion upon the question
touching the said imprisonment or
punishment. See 5 N. S. 407.

DIVORCE is the dissolution of a
marriage contracted between a man
and a woman, by the judgment of a
court of competent jurisdiction, or by
an net of the legislature.

2. — Divorces are of two kinds ; 1, cl
vinculo matrimonii , (q. v.), which dis-
solves and totally severs the marriage
tie ; and, 2, d memo, ct thoro , (q. v.),
which merely separates the; parties.

3. — 1. The divorce d vinculo was
never granted by the ecclesiastical law,
except for the most grave reasons.
These, according to Lord Coke, Co.
Litt. 235, a, arc causa preeamtractus.
causa met us, causa impotenlia, scu fri -
giditatis, causa affinitatis , ct causa con -
sanguinitalis. When the marriage
was dissolved for canonical causes of
impediment, existing previous to its
taking place, it was declared void ab
initio.

4. — In the United States, divorces d
vinculo arc granted by the state legis-
latures for such causes as may be suf-
ficient to induce the members to vote
in favour of granting them ; and they
are granted by the courts to which
such jurisdiction is given, for certain
causes particularly provided for by
law.

5. — In some states, the legislature
never grants a divorce until after the
courts have decreed one, and it is still
requisite that the legislature shall act,
to make the divorce valid. This is the
case in Mississippi. In some states, os
Wisconsin, the legislature cannot grant
a divorce. Const, art. 4, s. 24.

6. — The courts in nearly all the
states have power to decree divorces
u vinculo , for, first, causes which ex-
isted and which were a bar to a lawful

480

DIV

DIV

marriage, ns, precontract, or the ex-
istence of a marriage between one of
the contracting parties and another
person, at the time the marriage sought
to Iks dissolved took pluco ; consan-
guinity, or that degree of relationship
forbidden by law ; affinity in some
states, as Vermont, Rev. Sint. tit. 10,
c. 03, s. 1 ; impotence (q. v.) ; idiocy,
lunacy, or other mental imbecility,
which renders the party subject to it
incapable of making a contract ; when
the contract was entered into in conse-
quence of fraud. Secondly, the mar-
riage may Ikj dissolved by divorce for
causes which havo arisen since the
formation of the contract. The prin-
cipal of which arc adultery ; cruelty ;
wilful and malicious desertion for a
period of time specified in the acts of
the several states ; to these arc added,
in some states, conviction of felony or
other infamous crime, Ark. Rev. Stat.

c. 50, s. 1, p. 333; being a fugitive
from justice, when charged with an
infamous crime. Laws of Lo. Act of
April 2, 1832. In Tennessee the hus-
band may obtain a divorce when the
wife was pregnant at the time of mar-
riage with a child of colour ; and also
when the wife refuses for two years to
follow her husband, who has gone,
bona fide, to Tennessee to reside. Act
of 1819, c. 20, and Act of 1835, c.
20 ; Carr. Nich. & Comp. 250, 257.
In Kentucky and Maine, where one of
the parties has formed a connexion
with certain religionists, whose opinions
and practices arc inconsistent with the
marriage duties. And, in some states,
ns Rhode Island and Vermont, for
neglect and refusal on the part of the
husband (he being of sufficient ability)
to provide necessaries for the subsist-
ence of his wife. In others, habitual
drunkenness is a sufficient cause.

7. — In some of the states divorces

d, mensa ct thoro are granted for cru-
elty, desertion, and such like causes,
while in others the divorce is a vin-
culo.

8. — When the divorce is prayed for
on the ground of adultery, in some
and jicrhaps in most of the states, it is

a good defence, 1st, that the other
party has been guilty of the same
offence ; 2, that the husband has pros-
tituted his wife, or connived at her
amours ; 3, that the offended party has
been reconciled to the other by cither
express or implied condonation (q. v.) ;
4, that there was no intention to com-
mit adultery, ns when the party sup-
posing his or her first husband or wife
dead, married again ; 5, that the wife
was forced or ravished.

9. — The cflbct8 of a divorce a vin •
cido , on the property of the wife arc
various in the several states. When
the divorce is for the adultery or other
criminal nets of the husband, in gene-
ral the wife’s lands arc restored to her ;
when it is caused by the adultery or
other criminal act of the wife, the
husband has in general some qualified
right of curtesy to her lands ; when
the divorce is caused by some pre-ex-
isting cause, as consanguinity, affinity
or impotence, in some states, ns Maine
and Rhode Island, the lands of the
wife arc restored to her. 1 Hill. Ab.
51,2. Sec 2 Ashm. 455; 5 Black f.
309.

10. — When a divorce d vinculo
takes place, it is, in general, a bar to
dower ; but in Connecticut, Illinois,
New York, and, it seems, in Michigan,
dower is not barred by a divorce for
the fault of the husband. In Ken-
tucky, when a divorce takes place for
the fault of the husband, the wife is
entitled as if he were dead. 1 Hill.
Ab. 61, 2.

11. — 2. Divorces d mensa et thoro,
are a mere separation of the parties
for n time for causes arising since the
marriage ; they arc pronounced by
tribunals of competent jurisdiction.
The effects of the sentence continue
for the time it was pronounced, or until
the parties are reconciled. Children
born after a divorce d mensa ct thoro
are not presumed to be the husband’s,
unless he afterwards cohabited with
his wife. Bac. Ab. Marriage, &c., E.

Vide, generally, I Bl. Com. 440,
441 ; 3 Bl. Com.*94 ; 4 Vin. Ab. 205 ;
1 Bro. Civ. Law, 86; Ayl. Parcrg.

DOC

DOL

481

225 ; Com. Dig. Baron and Feme, C ; j
Poynt. on Marr. & Divorce, Index,
h. *t. ; Merl. Rep. h. t. ; Clef dcs I#ois
Rom. I). t. ; as to the effect of the laws
of a foreign state, where the divorce
was decreed, see Story’s Confl. of
Laws, ch. 7, § 200. With regard to
the ceremony of divorce among the
Jews, see 1 Mann. & Gran. 228 ; S.
C. 30 Eng. C. L. R. 425, 428. And
ns to divorces among the Romans, sec
Troplong, de Pinflucnco du Christian-
isme sur 1c Droit civil des Remains,
ch. 6. ]>. 205.

DOCKET, practice, is a formal
record of judicial proceedings.

2. — The docket should contain the
names of the parties, and a minute of
every proceeding in the case. It is
kept by the clerk or prothonotory of
the court. Docket is also said to be a
brief writing, on a small piece of paper
or parchment containing the substance
of a larger writing.