英文法律词典 D-77

DISTRINGAS, remedies. A writ¹ directed to the sheriff, commanding him to distrain² one of his goods and chattels³, to enforce his compliance⁴ of what is required of him, as for his appearance in a court on such a day, and the like. Com. Dig. Process, D 7; Chit. Pr. Index, h. t. Sellon's Pr. Index, h. t.; Tidd's Pr. Index, h. t. 11 East, 353. It is also a form of execution in the action of detinue, and assize of nuisance. Registrum Judiciale, 56; 1 Rawle, 44, 48; Bro. Abr. pl. 26; 22; H. VI. 41. This writ is likewise used to compel the appearance of a corporation agregate. 4 Bouv. Inst. n. 4191.

DISTURBANCE⁵, torts. A wrong done to an incorporeal⁶ hereditament, by hindering or disquieting⁷ the owner in the enjoyment⁸ of it. Finch⁹. L. 187; 3 Bl. Com. 235; 1 Swift's Dig. 522; Com. Dig. Action upon the case for a disturbance, Pleader, 3 I 6; 1 Serg. & Rawle, 298.

DIVIDEND¹⁰. A portion of the principal, or profits, divided among several owners of a thing.

2. The term is usually applied¹¹ to the division of the profits arising out of bank or other stocks; or to the division, among the creditors¹², of the elects of an insolvent¹³ estate.

3. In another sense, according to some old authorities, it signifies one part of an indenture¹⁴. T. L.

DIVISIBLE. The susceptibility of being divided.

2. A contract cannot, in general, be divided in such a manner that an action may be brought, or a right accrue¹⁵, on a part of it. 2 Penna. R. 454. But some contracts are susceptible¹⁶ 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 reversioner. 3 Whart. 404; and see Apportionment. But when it is to do several things, at several times, an action will lie upon every default. 15 Pick. R. 409. See 1 Greenl. R. 316; 6 Mass. 344. See Entire.

DIVISION, Eng. law. A particular and ascertained¹⁷ part of a county. 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 is not a plurality of the whole in favor 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, as in the case of a judgment¹⁸, if one of three judges votes for condemning¹⁹ a man to a fine of one hundred dollars, another, to one of fifty dollars, and the third to twenty-five, the opinion or vote of; the last shall be the rule for the judgment; because the votes of all the others include that of the lowest; this is the case when unanimity²⁰ is required. But when the division of opinions does not relate to the quantity of things, then it is always to be in favor of the defendant²¹. It was a rule among the Romans that when the judges were equal in number, and they were divided into two opinions in cases of liberty, that opinion which favored it should prevail; and in other cases, it should be in favor of the defendant. Poth. Pand. liv. L. n. MDLXXIV.

3. When the judges of a court are 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 discharged. Rudyard's Case, Bac. Ab. Habeas Corpus, B 10, Court 5.

4. It is provided, by the Act of Congress of April 29, 1802, s. 6, that whenever any question shall occur before 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 certified²², under the seal of the court, to the supreme²³ court, at their next session to be hold thereafter, and shall, by the said court, be finally decided²⁴. And the decision of the supreme court, and their order in the premises²⁵, shall be, remitted²⁶ to the circuit court, and be there entered *of record and shall have effect according to the nature of the said judgment and order: Provided, That nothing herein contained shall prevent the cause from proceeding²⁷, if, in the opinion of the court, further proceedings²⁸ can be had without prejudice to the merits: And Provided, also, That imprisonment²⁹ shall not be allowed, nor punishment in any case be inflicted³⁰, where the judges of the said court are divided in opinion upon the question touching³¹ the said imprisonment or punishment. See 5 N. S. 407.