페이지 이미지



not treat a joint venture as identical with a partnership, it is so similar in its nature and in the contractual relationships created by such adventure that the rights as between themselves are governed practically by the same rules that govern partnerships. Goss v. Lanin, 170 Iowa 57.


or for performing it negligently. All persons who co-operate in an act directly causing injury are jointly liable for its consequences if they acted in concert, or united in causing a single injury, even though acting independent of each other." Consolidated Ice Machine Co. y. Keifer, 134 III. 481, citing 1 Shearm. & Redf. Neglig. § 122; Cuddy v. Horn, 46 Mich. 596; Stone v. Dickinson, 5 Allen 31; Cooper v. E. T. Co., 75 N. Y. 116; 2 Thomp. Neglig. 1088; Wabash, etc., R. Co. v. Shacklet, 105 Ill. 364.

"The test seems to be, whether or not the negligence of each directly contributed in producing the injurious result.” Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481.

A direction that the subject of a gift shall “be distributed in joint and equal proportions" creates a tenancy in common. 2 Jarm. 257, citing Ettricke v. Ettricke, Amb. 656.


[ocr errors]

A will which is both joint and mutual is one executed jointly by two or more

JOINT LIVES. persons, the provisions of which are reciprocal, and which shows on its face that A gift to two or more for their "joint the devises are made one in consideration

lives" and then over, will generally of the other. Frazier v. Patterson, 243 mean "for their joint lives and the lives Ill. 84.

or life of the survivors or survivor of

tbem" and then over. Townley v. BolJOINT COVENANT.

ton, 2 L. J. Ch. 25; 1 My. & K. 148;

Smith v. Oakes, 14 Sim. 122; Moffat v. When the legal interest in a covenant Burnie, 23 L. J. Ch. 591; Grant v. Winand in the cause of action thereon is bolt, 23 L. J. Ch. 282. joint, the covenant is joint, although it may, in its terms, be several or joint and several. Capen Barrows, 1 Gray

JOINT STOCK COMPANY. (Mass.) 379. “ 'No particular words are necessary

A joint stock company is defined in the to constitute a covenant of either kind

text books to be "an association of indi(joint or several]. If two covenant gen

viduals for purposes of profit, possessing erally for themselves, without any words a common capital, which is divided into of severance, or that they or one of them shares, of which each member possesses shall do such a thing, a joint charge is one or more, and which are transferable created; which shews the necessity of by the owner. These associations, formed adding words of severalty where the for business purposes, were at common covenantor's liability is to be confined to

law, and, as a general rule, still are conhis own acts.' Lord Halsbury, L. C.,

sidered merely as partnerships, and their in White v. Tyndall, 13 App. Cas. 269, rights and liabilities are in the main govquoting Platt Covenants 117, and citing erned by the same rules and principles, May v Woodward, Treem. 248; Robinson which regulate commercial partnerships." V. Walker, 1 Salk. 393.

17 Am. & Eng. Ency. of Law,--2d ed.,pp. 636, 637.

While it is true, that many JOINT LIABILITY.

companies, called joint stock companies,

have many of the essential characteris“If several persons are jointly bound tics of a corporation, yet there is a disto perform a duty, they are jointly and tinction between such companies and reg. severally liable for omitting to perform ularly organized corporations, so-called. JOINT STOCK COMPANY


[ocr errors]

In 17 Am. & Eng. Ency. of Law,-2d ed., transferrable. Moore v. Hillsdale County
-p. 638, it is said: In respect to their Telephone Co., 171 Mich. 388.
formation there is a broad distinction be- ! Stock issued by a club incorporated
tween a corporation, technically so called, under Mich. H. S., ch. 188, for yachting,
which always owes its existence to the etc., purposes, is not subject to levy and
sovereign power of the state, and a joint sale on execution under H. S. 7697, au-
stock company, which, being essentially thorizing levy, etc., on shares of a bank,
a partnership, is brought into being by insurance or other joint stock company.
the contract of its members inter sese." Lyon v. Denison, 80 M. 371.
In Robbins v. Butler, 24 Ill. 287, this "Joint stock companies in modern
court, speaking through Mr. Justice

times are nothing but commercial partBreese, said (p. 426): “These stock

nerships, which have taken the form of companies are nothing more than part

corporations for the greater facility of nerships, and every member of the com

transacting business and to prevent a pany is liable for the debts of the con- dissolution of the concern by those nucern, no matter what the private ar- merous events which are 80 liable to rangements among themselves may be, if

work a dissolution in a partnership comthey have not shifted their liability in

posed of a great number of individuals.”
the very mode pointed out in the articles Fougeray v. Card, 50 N. J. Eq. 200, quot-
of association." See also Pettis v. At- ing Pratt v. Pratt, 33 Conn. 446.
kins, 60 Ill. 454; Hodgson v. Baldwin, 65
Ill. 532. In Wadsworth v. Duncan, 164

Ill. 360, this court speaking through Mr.
Justice Phillips, again said, endorsing the

A joint tenancy is where two or more doctrine announced in Robbins v. Butler,

persons have any subject of property, supra, as follows: The members of a

jointly, in which there is unity of interjoint stock association are partners, and

est, unity of title, unity of time and each member is liable for the debts of

unity of possession. 2 Blackstone's Com. the association, unless he has shifted his

180. At common law a grant or devise liability in the very mode pointed out in

to two or more persons without limitathe articles of association.” The People

tions created a joint tenancy. Aveling v. v. Rose, 219 Ill. 59, 60.

Knipe, 19 Ves. 441; Freeman on Co-tenA joint stock company is an associa

ancy, sec. 118. Words or circumstances tion of individuals possessing a common

of negation were necessary to avoid this capital divided into shares, of which

result. The chief characteristic of joint each member possesses one

more. estates is the doctrine of survivorship. 2 These shares represent the interest of the Blackstone's Com. 184. The doctrine of members, and are transferable by the

survivorship is not in accordance with the owners without the consent of the other

genius of our institutions, hence this inmembers or the creditors of the associa

cident of estates has been generally aboltion. Kossakowski v. The People, 177 ished in the United States except in a few Ill. 568.

instances, and in those jurisdictions Associations known as "joint stock where joint estates are still recognized companies," though unincorporated, they are very much restricted by statutes. have many features in common with cor- Burnett v. Pratt, 22 Pick. 557; Warvelle porations and for this reason have some- On Abstracts of Title, sec. 247; Gaunt v. times been called quasi corporations. Stevens, 241 Ill. 546, 547. Fletcher Cyclopedia Corporations 119. A joint tenancy is said to be distin

A joint stock company is defined as an guished by unity of possession, unity of association of individuals for purposes of interest and unity of time of the comprofit, possessing a common capital con- mencement of such title. Tenants in tributed by the members and commonly common are such as have a unity of posdivided into shares of which each mem- session, but a distinct and several title to ber possesses one more which are their shares.

Between a joint


[ocr errors]


[blocks in formation]

tenancy and tenancy in common the only not be revocable at the pleasure of either similarity that exists is, therefore, the party, according to the circumstances and unity of possession. A tenant in common understanding upon which they were exis, as to his own individual share, pre- ecuted. To deprive either party of the cisely in the position of the owner of an right to revoke such mutual will it is necentire and separate estate. Mittel v. Karl, essary to prove, by clear and satisfactory 133 Ill. 69.

evidence, that such wills were executed "The distinguishing feature of joint in pursuance of a contract or a compact tenancy is the right of the survivor to between the parties, and that each is the take the whole estate." Melte v. Feltgen,

consideration for the other; and even in 148 Ill. 371.

cases where mutual wills have been exeWhere husband and wife are tenants by cuted in pursuance of a compact or agreeentireties, a decree absolute of divorce ment between the parties, the law appears makes them joint tenants—they ceasing

to be well settled that either party may, to be one person—and the woman is en- during the lifetime of both, withdraw titled to an account of rents and profits

from the compact and revoke the will as as from the date of the decree. Thorn

to him. A joint and mutual will is reley y. Thornley (1893), 2 Ch. 229.

vocable during the joint lives of either A joint tenancy is not confined to real party, so far as relates to his own dispoestate but may exist in personal prop

sition, upon giving notice to the other, erty. Erwin v. Felter, 283 Ill. 36.

but it becomes irrevocable after the death of one of them if the survivor takes ad

vantage of the provision made by the JOINT WILL.

other. 30 Am. & Eng. Ency. of Law (2d

ed.), 621, and cases cited; 1 Redfield on A joint will contained in a single in- Wills, 182, 183; Walpole v. Orford, 3 Ves. strument is the will of each of the mak- Jr. 402; Schouler on Wills, sec. 455, et ers, and at the death of one may be pro- seq. bated as his will and be again probated When mutual or joint wills first came at the death of the other as the will of up for consideration, the courts of Engthe latter. Wills may be joint or mutual land, both common law and spiritual, proor both joint and mutual. A joint will is nounced against them, and the same unone where the same instrument is made favorable position was taken by some of the will of two or more persons and is the earlier American cases, but the later jointly signed by them. It is not neces- and better opinions in both countries now sarily either mutual or reciprocal. Mu

sustain such wills where they have been tual wills may be defined as the separate executed with the necessary formalities wills of two persons which are reciprocal

and have not been revoked by some later in their provisions. A will that is both instrument. Schouler on Wills, 456, and joint and mutual is one executed jointly cases there cited. The leading case in by two or more persons, the provisions of England on this subject is Dufour v. which are reciprocal, and which shows on

Pereira, 1 Dick. 419. In that case it was its face that the devises are made one in held that a joint and mutual will might consideration of the other. These sev

be revoked by both jointly or that it eral classes of wills have some character- might be revoked separately, provided the istics that distinguish them one from the party intending it had given notice to the other.' A joint will which is not recip- other of such revocation, but that neither rocal is simply the individual personal of them could, during their joint lives, will of each of the persons signing the revoke it secretly, nor could it be done same and is subject to the same rules that by the survivor after the death of the would apply if the will were several. other; that such wills constituted a muMutual wills,—that is, where two persons tual contract between the parties which execute wills reciprocal in their provisions could not be rescinded by the survivor but separate instruments,—may or may after the death of one, on the theory that

[blocks in formation]

the first that dies carries his part of the contract into execution. In such a case the courts will not permit the other party to afterward break the contract. The doctrine of this case has een approved in a number of well considered cases in this country. Allen v. Boomer, 86 Wis. 364; Edson v. Parsons, 155 N. Y. 555; Carmichael v. Carmichael, 72 Mich. 76; Bower v. Daniel, 198 Mo. 289; Frazier v. Patterson, 243 Ill. 84, 85.

to a sole estate, limited to the wife only,
is thus defined by Sir Edward Coke,-"a
competent lively-hood of freehold for the
wife, of lands and tenements; to take
effect, in profit or possession, presently
after the death of the husband; for the
life of the wife at least." The same
definition is to be found in 2 Bacon's
Abridgment, 744." Stirling, J. in In re
De Hoghton (1896) 2 Ch. 392, citing
also Co. Litt. 36b; Burton Compend. 8th
ed., 125; Sugd. Powers, 8th ed. 484.

[ocr errors]




JOS. The word "jointly,” found in the de

Courts may take notice of the ordinary vise, cannot be accepted as sufficient to

abbreviations of Christian names, as, Jos. show, clearly and explicitly, that the tes

as common abbreviation for Joseph. tator intended that the estate devised

Feld v. Loftus, 240 Ill. 105. should possess the attribute of survivorship. Tenants in common or coparceners hold the estate "jointly" until a severance

JOURNEYMAN. is effected. Davis v. Smith, 4 Harr. 68; Billingslea v. Baldwin, 23 Md. 115. It is

A journeyman is a servant by the day; entirely consistent with the use made by

and it makes no difference whether the the testator of this word “jointly" to con

work is done by the day or by the piece. strue it as indicating only an intent to de

Hart v. Aldridge, 1 Cowp. 55. vise the estate to both devisees, and as it

An omnibus conductor

cancannot be construed to declare, explicitly

not be included in the term “journeyand clearly, the intent that the estate, as

Smith, J. in Morgan v. London an entirety, should inure to the survivor

etc. Omnibus Co., 12 Q. B. D., 207. of the devisees, it cannot avail to take the devise out of the operation of the

JUDGE. statute. The statute must be given effect and the estate devised decla ed to be an

See also Court. estate in tenancy in common. Mustain v.

Gardner, 203 Ill. 286, 287.
A gift to two or more "jointly and be-

A public officer appointed to preside

and to administer the law in a court of tween them" is a tenancy in common.

justice; the chief member of a court, Perkins V. Baynton, 1 Bro. C. C. 118;

charged with the control of its proceedRichardson v. Richardson, 14 Sim. 526.

ings and the decision of questions of law

or discretion. Moline v. Chicago, etc., JOINTURE

R. Co., 262 Ill. 56.

The tangible, living oracle of the court, "What is a jointure? I think accord- who speaks and acts for it, and is in law ing to the common acceptation of the its only accredited agent. Bowman v. word both popularly and by legal writers, Venice, etc., R. Co., 102 Ill. 459;.U. 8., it means a provision made for the wife etc., Co. v. Shattuck, 57 Ill. App. 385. after the death of the husband.

A person whose office is to administer In 2 Blackstone's Commentaries, 137, justice in courts held for that purpose, a there is this statement: 'A jointure, public officer authorized by law to hear which strictly speaking signifies a joint and determine causes and who holds estate, limited to both husband and wife, courts statedly for that purpose. Foot v. but in common accept on extends also Stiles, 57 N. Y. 405.



A judge is a public officer, lawfully ap- v. Illinois V. Ry. Co., 216 Ill. 404; St. pointed to decide litigated questions ac- Louis & C. R. Co. v. Postal, etc., Co., 173 cording to law. Lawyees Tax Cases, 8 Ill. 515. Heisk. (Tenn.) 650. "Judge" (as used in an act declaring

JUDGMENT. that the 'court or judge' shall declare, etc.) must mean one who in himself con

Defined. stitutes the court, and not a judge sitting

At common law a judgment was deat Nisi Prius.” Bramwell, B., Wilson v.

fined as the sentence of the law proHood (1864), 3 H. & C. 152.

nounced by the court upon the matter

contained in the record. 3 Blackstone's Justices of the Peace.

Com. 395. Freeman, in his work on Justices of the peace are judges in the

Judgments, after mentioning the fact legal sense of the word, having power to

that the authorities were not all in hardecide upon the rights of others by au

mony, says:

“I think that from the cases thority of law; and the place in which a

this general statement may be safely justice exercises his power by adjudicat

made: That whatever appears upon its ing and deciding as a justice is a court.

face to be intended as the entry of a judg3 BI. Com. 23; The People v. Wilson, 15

ment will be regarded as sufficiently forIll. 391.

mal if it shows (1) the relief granted,

and (2) that the grant was made by the JUDGE OF AN INFERIOR COURT court in whose record the entry is writOF RECORD

ten. In specifying the relief granted, the

parties against and to whom it is given The judge of a city court is a "judge of

must, of course, be sufficiently identified." an inferior court of record" within the 1 Freeman on Judgments,—4th ed.,-sec. meaning of section 5 of the Fees and Sal- 50. This court has said that no particuaries Act. Wolf v. Hope, 210 Ill. 65. lar · form is required in proceedings in

court in order to constitute a judgment. JUDGE OF ANY COURT.

Wells v. Hogan, Breese 337; Foster v.

Jared, 12 Ill. 451; Minkhart v. Hankler, The word “judge,” used in section 11 19 Ill. 47; Faulk v. Kellums, 54 Ill. 188; of article 5 of the Constitution of 1848, City of Alton v. Heidrick, 248 Ill. 76; prescribing the qualifications for a "judge Stein v. Meyers, 253 Ill. 218, 219. of any court in this state," is used in a A judgment is the conclusion of the law restricted sense, and does not include all upon the rights of the parties. Ambler who may properly be called judges of v. Whipple, 139 Ill. 318. courts in this state, as, for example, the A judgment is a judicial sentence or recorder of the city of Chicago, and in- decision and not a creature of legislative cludes only such as are made judges, or enactment. Fulton County v. Boyer, 116 recognized as such by the Constitution. Ill. App. 390. People v. Wilson, 15 III. 391.

The conclusion of law upon facts

found, or admitted by the parties, or upon JUDGE OR COURT.

their default in the course of the suit.

Magruder, J., dissenting opinion Siddall It was not the intention of the Eminent v. Jansen, 143 Ill. 548. Domain Act, by the use in several of its A debt of record created by operation sections of the expression “judge or of law, in which the original demand, court," to provide two tribunals for the whether evidenced by oral testimony or hearing of condemnation cases, one the specialty, is merged. Woodworth V. judge, sitting as an individual, and the Paine, 1 Ill. 376. other the court, as a judicial tribunal, so It is only the finding by a court, that that a petition under the act should be one person owes another a certain specimade returnable to the court. Hartshorn fied sum of money, and a sentence that it

[ocr errors]
« 이전계속 »