Obrazy na stronie

IN VENTRE SA MÈRE-continueil. ISSUABLE PLEA-continued. lands, the produce or profits go in the action brought, has been held an issuable interim to the heir-at-law, or residuary plea (Wilkinson v. Page, 1 Dowl. & L. 913); devisee (if there be any such). Hopkins v.

see also Staples v. Holdsworth, 4 Bing. N. O. Hopkins, Ca. t. Talb. 44, and Tud. Convey. 144). Where the Court grants an extension L. C. p. 711.

of time, or other like indulgence to a de

fendant, it is generally upon this condition INVESTITURE (from the Fr. investir). (among others) that within that extended A ceremony which accompanied the grant time he shall“ plead issuably." See Smith's of lands in the feudal ages, and consisted Action at Law. in the open and notorious delivery of possession in the presence of the other vassals, ISSUE (exitus). Is the disputed point which perpetuated among them the æra of or question to which the parties in an action their new acquisition at the time when the have narrowed their several allegations, art of writing was very little known, and

and upon which they are desirous of obthus the evidence of the property was taining the decision of the proper tribunal. reposed in the memory of the neighbour- When the plaintiff and defendant have hood, who in case of disputed title were arrived at some specific point or matter afterwards called upon to decide upon it. affirmed on the one side and denied on the

other, they are said to be at issue (ad exitum, IRELAND. By the stat. 3 & 4 Will. 4,

i.e., at the end or result of their pleading); c. 42, s. 7, no part of the United Kingdom

the question so set apart is called the issue, of Great Britain and Ireland shall be

and is designated, according to its nature, deemed to be beyond the seas, within the as an issue in fact, or an issue in law. If it meaning of the Statutes of Limitation, as

is an issue in fact, it is almost universally to personal actions, nor is it beyond seas

tried by the country (i.e., a jury of twelve within the meaning of the Mercantile Law

men); if an issue in law, by the judges of Amendment Act, 1856 (19 & 20 Vict. c.

the land constituting the Court in which 97). By s. 7 of the last-mentioned Act, the action has been brought. Steph, on every bill of exchange or promissory note

Pleading, 25, 4th edit. drawn or made in any part of the United Kingdom of Great Britain and Ireland, ISSUE ROLL. In ancient times it was and made payable in or drawn upon any

the practice of the Courts, when the pleadperson resident in any part of the said

ings were carried on orally, to have a conUnited Kingdom, shall be deemed to be

temporaneous record of the ceedings an inland bill, excepting (if at all) as to

made out upon a parchment roll called the the stamp duty. Nevertheless, under the “ Issue Roll.” This practice, although long C. L. P. Act, 1852, 8. 18, a writ of sum

grown into disuse, was until recently still mons cannot be issued against or served

supposed in contemplation of law to exist; upon a British subject residing in Ireland,

and the Courts still required that it should in respect of a cause of action accruing in be made up, or at all events commenced, or England. It is a rule of law, that every

an incipitur, as it was called, was entered Act of Parliament since the Union (1801)

upon the roil, and certain fees were paid embraces Ireland, unless that country is to the officers for the making it up. Practiexpressly excluded. Reg. v. Mallow Union,

cally, however, this roll was of no use, and 12 Ir. L. R., Q. B., 35.

in consequence it was by a late rule of

Court abolished; and the only entry of the IRREPLEVIABLE or IRREPLEVISABLE. Not to be replevied, or set at large on sure

proceedings upon record, in the present

day, is that made upon the Nisi Prius ties (Cowel). It is contrary to the nature of a distress for rent to be irrepleviable. cording to the nature of the case, and no

Record, or upon the Judgment Roll, acTomlins.

fees are allowed to be paid in respect of ISSUABLE PLEA. An issuable plea is

any other entry made or supposed to be that which puts the merits of the cause,

made upon any roll or other record whateither on the facts or law, in issue; in other

ever. 1 Pl. R. H. T. 4 Will. 4. words, which will decide the action (Steele v. Harmer, 14 M. & W. 139). It seems,

ITINERANT. Travelling or moving however, to be by no means clear that a about; thus the judges who are now called plea to be “issuable” must put the sub- justices of assize, were formerly called stantial or moral merits of the cause at justices itinerant, from the circumstance of issue. Thus, a plea which goes simply to their travelling into several counties to shew that the plaintiff had no present cause hear causes ready for trial (3 Bl. 59). These of action, as in an action by an attorney for judges were appointed for the first time by work and labour, that the plaintiff had not King Henry II., at the Parliament of delivered a signed bill a month before Northampton, in 1187.

O 2


JACENS HÆREDITAS. An estate in abeyance. This was one of the fictitious personæ of law referred to by Austin. It was supposed to continue the persona of the deceased person, until the entry (aditio) of the hures (executor) upon the estate. In English Law, the authority of the executor or administrator arises from the grant of probate or administration; and until such grant is made, the Judge Ordinary is the only legal personal representative of the deceased; but the subsequent grant to the executor or administrator when made relates back (for most purposes) to the date of the death.

JACTITATION (jactitatio). A false boasting. The word is commonly used with reference, 1st, to marriage ; 2nd, to the right to a seat in a church; and, 3rdly, to tithes.

(1.) Jactitation of marriage is the boasting or giving out by a party that he or she is married to some other, whereby a common reputation of their matrimony may

To defeat that result, the person may be put to a proof of the actual marriage, failing which proof she or he is put to silence about it.

(2.) Jactitation of a right to a seat in a church appears to be the boasting by a man that he has a right or title to a pew or sitting a church to which he has legally no title.

(3.) Jartitation of tithes is the boasting by a man that he is entitled to certain tithes, to which he has legally no title. See Rog. Eccl. Law, 482.



The king, or his grantee, shall have flotsam, jet sam, or lagan when the ship is lost and the owners of the goods are unknown. F. N. B. 122.


JOINDER. Joining, uniting together, &c. Thus, joinder in action signifies the joining or uniting of two persons together in one action against another; and such an action is termed a joint action. Joinder of issue is where the plaintiff or plaintitts and the defendant or defendants unite upon a statement of their respective grounds of action and defence, and agree to stund or fall by that statement.

JOINDER IN DEMURRER. When a defendant in an action tenders an issue of law (called a demurrer), the plaintiff, if he means to maintain his action, must accept it, and this acceptance of the defendant's tender, signified to the plaintiff in a set form of words, is called a joinder in demurrer. The usual words of a demurrer are,—“The defendant (or plaintiff) says that the declaration (or plea) is bad in substance; " and it is necessary to state in the margin some substantial matter of law intended to be argued. Thereupon the other side joins issue on the demurrer in these terms,—“The plaintiff (or defendant) suys that the declaration (or plea) is good in substance."

JOINDER OF ISSUE. In an action at law, in any stage of the pleadings, when either side traverses or denies the facts pleaded by his antagonist, he usually tenders an issue, as it is called, which, if the other party accepts, issue is said to be joined. Smith's Action at Law.

JOINT AND SEVERAL. A joint and several bond is a bond in which the obligors have rendered themselves both jointly and individually liable to the obligee; so that the latter, in the event of the nonperformance of the conditions of the bond by the obligors, may sue them either jointly or separately as he deems the more advisable. The phrase is also frequently used with reference to contracts not under seal (i.e., simple contracts), and it often becomes a matter of serious moment to know whether a given contract is a joint or a several contract. Thus, where a broker was employed to sell a ship belonging to three part owners, two of whom communicated with him on the subject, and to them he paid their shares of the proceeds of the sale; but after admitting the amount of the third part owner's share to be in his hands, refused to pay it to him without the consent of the other two, and

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JOINT AND SEVERAL-continued. he alone brought an action for his share, it was held that he could not sue alone, but should have sued jointly with the other two part owners : 1 Cn. Pl. 9, 6th edit.; 1 Saund. 153, n. (1).

JOINT INDICTMENTS. When several offenders are joined in the same indictment, such an indictment is called a joint indictment; as when principals in the first and second degree, and accessaries before and after the fact, are all joined in the same indictment. 2 Hale, 173. JOINT STOCK COMPANIES.

A joint stock company established before the passing of the Acts presently mentioned, and which has not adopted their provisions, is simply a partnership (see that title), consisting of a large number of members, whose rights and liabilities are precisely the same as those of any other sort of partners, subject only to the peculiar regulalations contained in an instrument called a deed of settlement. The capital is divided into equal parts called shares, each member of the company has a certain number of these, and is entitled to participate in profits according to his number of shares. The management of the business is confided to some few shareholders, called directors, and the general body of the shareholders have, unless on extraordinary occasions, no power to interfere in the concerns of the company.

It was not unusual for such companies to obtain a private Act of Parliament in aid of their deed of settlement; and at length certain general Acts were passed for the regulation of such companies. The result of the various legislative measures of a general character so passed may be stated as follows:

I. Joint stock banking companies – (1.) All such companies, if formed under 7 Geo. 4, c. 46, and not registered since, are governed by that Act and their deed of settlement. (2.) All such companies, if formed and registered under the Act of 1857 (20 & 21 Vict. c. 49), are governed by their deed of settlement, and so much of the Companies Act, 1862, as applies to companies registered, but not formed under it. (3.) All such companies, if formed under the 20 & 21 Vict. c. 14, and 21 & 22 Vict. c. 91, are governed by their rules and articles of association and the Companies Act, 1862. Lastly, (4.) All such companies, if formed under the Companies Act, 1862 (25 & 26 Vict. c. 89), are governed exclusively by the provisions of that Act.

II. Joint stock companies other than banks — and hereunder the following principal classes, viz. :

(1.) Companies incorporated by statute

JOINT STOCK COMPANIES - continued. or charter, and companies for executing any bridge, road, railway, or other like public object, not capable of being carried out unless with the authority of Parliament, and being the companies expressly excepted from the operation of the Act 7 & 8 Vict. c. 110. Formerly, each of such companies was governed by the provisions of its own charter or special Act of Parliament; but latterly, general provisions were made for the regulation thereof by the Companies Clauses Consolidation Act, 1845, the Lands Clauses Consolidation Act, 1815, and (but only as to railways) the Railways Clauses Consolidation Act, 1815 (being respectively the Acts 8 & 9 Vict. cc. 16, 18, and 20); and these three general Acts apply also to all companies established by Act of Parliament after the 8th of May, 1845, for the execution of undertakings of a public nature.

(2.) Companies not excepted from the stat. 7 & 8 Vict. c. 110, and requiring under that statute to be registered. That statute was, however, superseded by the Joint Stock Companies Act, 1856 (19 & 20 Vict. c. 47), which has since been repealed by the Companies Act, 1862 (25 & 26 Vict. c. 89); and this latter statute is now in force. It consolidates the laws relating to joint stock companies, and includes in its operation all companies formed and registered under the Act of 1856 (19 & 20 Vict. c. 47), or under the Act 18 & 19 Vict. c. 133, together with certain companies not formed under the above-mentioned Acts, nor registered (s. 199). Aud under its provisions, with the exception of companies and partnerships formed under some other Act, or under letters-patent, or engaged in working mines within the jurisdiction of the Stannaries, every banking company or partnership consisting of moro than ten persons, and every other company or partnership having for its object the acquisition of gain, and consisting of more than twenty persons, established since the 1st of November, 1862, MUST, and any company consisting of seven or more persous associated for any lawful purpose MAY, be formed and registered under the statute. And mining companies in the Stannaries may register under it, and then become subject to its provisions and a peculiar jurisdiction of the Stannaries Court, conferred by the statute. Every other company, too (except a railway company), whether previously existing, or formed afterwards in pursuance of an Act of Parliament or letters-patent, or otherwise duly constituted by law, and every unregistered company consisting of more than seven members, may, with the assent of the shareholders, be registered as


JOINT STOCK COMPANIES--continued. JUDGMENT-continued. limited or unlimited company under its claim is admitted by him, either (1) in expr. visions.

press terms, as by giving a cognovit, or If not thus registered, the law of com- (2) by conduct, as by failing to take proper panies established under private Acts of steps in the suit. A judgment upon (3) nonParliament, charters, or letters-patent, is suit is a judgment given to the defendant that laid down by their Acts, charters, or whenever it clearly appears that the plainletters-patent.

Companies thus consti- tiff has failed to make out his case by evituted certainly differ very materially from dence. A judgment of (4) non pros. is a ordinary firms; but, so far as their Acts, judgment which the defendant is entitled charters, or letters-patent have not pro- to have against the plaintiff when he does vided, they are governed by the ordinary not follow up (non prosequitur) his suit as law of partnership.

he ought to do, as by delaying to take any See titles LIMITED LIABILITY; PART- of those steps which he ought to take be

yond the time appointed by the practice of JOINT TENANTS. Those who hold

the Courts for that purpose. A (5) retraxit, lands or tenements by joint tenancy. It

or (6) nolle prosequi, is when the plaintiff,

of his own accord, declines to follow up may be further described by the following

his action; the difference between thenı is, passage from Cruise :“When lands are granted to two or more

that a retraxit is a bar to any future action persons to hold to them and their heirs, or

brought for the same cause, whereas a nolle for the term of their lives, or for the term

prosequi is not, unless made after judg. of another's life, without any restrictive,

ment (Bowden v. Horn, 1 Bing. 716). A exclusive, or explanatory words, all the

judgment on a (7) discontinuance is when

the plaintiff finds that he has misconceived persons namel in such grant, to whom the

his action and obtains leave from the Court lands are so given, take a joint estate, and are thence called joint tenants.” 2 Cruise,

to discontinue it, on which judgment is 431; Litt. s. 277.

given against him, and he has to pay the See also title SurvivORSHIP,

expenses. A judgment on a (8) stet pro

cessus is entered when it is agreed, by leave JOINTURE. A settlement of lands or of the Court, that all further proceedings tenements made to a woman on account of shall be stayed ; though in form this is a marriage. It is defined by Lord Coke to judgment for the defendant, yet it is genebe “a competent livelihood of freehold for rally like a discontinuance, being, in point the wife of lands or tenements, &c., to

of fact, for the benefit of the plaintift, and take effect presently in possession or profit, entered on his application; as, for instance, after the decease of her husband, for the when the defendant has become insolvent, life of the wife at least.” The woman on &c. Judgment on (9) demurrer is such a whom such a settlement of lands is made judgment as is pronounced by the Court is termed a jointress (1 Cruise, 199; 1 upon a question of law submitted to them, Inst. 3;). A legal jointure was first autho- as opposed to a question of fact, which is rized by the Statute of Uses, 27 Hen. 8, submitted to a jury. A judgment upon an c. 10, by which statute if the jointure is (10) issue of nul tiel record is when a matter before marriage, the woman shall not have of record is pleaded in any action--as a her election between jointure and duwer, fine, a judgment, or the like—and the oppobut if the jointure is after marriage, then site party pleads nul tiel record,i.e., that she shall have her election.

there is no such matter of record existing;

upon this issue is joined and tendered in the JUDGMENT. Is defined to be the sen- following form:

And this he prays may tence of the law pronounced by the Court be inquired of by the record, and the other upon the matter appearing from the pre- doth the like;" and thereupon the party vious proceedings in the suit. Judgment pleading the record has a day given him is given either for the plaintiff or the

to bring it in, and proclamation is made in defendant; when for the plaintiff, it is Court for him to “bring forth the record either a judgment (1) by confession, or by him in pleading alleged, or else he shall (2) by default ; when given for the de- be condemned ;” and ou his failure to do so fendant it is either a judgment of (3) non- his antagonist shall have judgment to resuit, (4) non pros., (5) retruxit, (6) nolle

cover. A judgment upon (11) a verdict, is prosequi, (7) discontinuance, or (8) stet pro- the judgment of the Court pronounced cessus ; and judgment may be given for after the jury have given their verdict. As either party upon (9) demurrer, (10) issue to interlocutory and final judgments see of nul tiel record, or (11) verdict. A judg. titles INTERLOCUTORY, Final; and see also ment (1) by confession, or (2) default, is next title. such a judginent as is signed against the defendant when the justice of the plaintiffos JUDGMENT DEBTS. These are debts,


JUDGMENT DEBTS-continued. whether on simple contract or by specialty, for the recovery of which judgment has been entered up, either upon a cognovit, or as the result of a successful action. The olil law of judgments was in many respects different from the present law. Thus, under the ol'l law, which rested substantially upon the Acts 13 Elw. 1, c. 18, 29 Car. 2, c. 3, and 4 & 5 W. & M. c. 20, the lands affected by a judgment were the entirety of terms for years only, and one moiety of freehold lands, tithes, reversions, and trust estates whereof the trustee was seised for the debtor at the time of execution sued. Estates tail were liable to the extent of one moiety thereof, but only during the life of the tenant in tail; and joint tenancies were in the same position. Moreover, trust terms for years, joint trust estates, and equities of redemption were altogether exempt; as were also copy. holis, glebe, and advowsons in gross. Moreover, purchasers (including mortgagees) were not bound by a judgment which was either udocketted or misdocketted (Tunstall v. Trappes, 3 Sim. 286; Brandling v. Plummer, 8 De G. M. & G. 747); unless they had notice thereof, in which case they were bound (Davis v. Strathmore (Earl), 16 Ves. 419). However, Equity assisted the judgment.creditor towards enforcing his execution in respect of those equitable interests before enumerated which were not statutorily liable on an elegit ; thus, in the case of an equitable freehold estate, the judgment-creditor, after suing out an elegit, might file his bill in Equity for relief (Neute v. Marlborough (Duke), 3 My & Cr. 407); and in the case of an equitable leasehold or term of years, the judgment creditor, after suing out a fi. fa., might in like manner file his bill in Equity for relief (Gore v. Bowser, 1 Jur (N.S.), 392); and this seems to be still the law. Padwick v. Duke of Newcastle, L. R. 8 Eq. 700.

On the other hand, under the present law, which depends substantially upon the followiny statutes, namely :

1 & 2 Vict. c. 110,
2 & 3 Vict. c. 11,
3 & 4 Vict. c. 82,
23 & 24 Vict, c. 38, and

27 & 28 Vict. c. 112, the lands affected by a judgment are the entirety of lands. tenements, and hereditaments, whether freehold, copyhold, or leasehold, and whether legal or equitable, and whether possessed at the time of entering up judgment or afterwards, and whether joint or sole, and whether the interest of the debtor therein amount to an estate in, or only to a general power over them. Advowsons are no longer exempt from lia

JUDGMENT DEBTS-continued. bility; but with reference to rectories and tithes, only lay and not ecclesiastical ones are intended (Hawkins v. Guthercole, 6 De G. M. & G. 1). The judgment prevails against the jus accrescendi in the case of joint tenants (1 Dart's V. & P. 431), and also against the issue of tenant in tail, and against remaindermen in tail. Lewis v. Duncombe 20 Beav. 398.

The before mentioned Victorian Statutes also ma de provision for the registration and re-registration of judgments and executions thereon, the short result of which may be stated as follows:- From the 16th of August, 1838, to the 23rd of July, 1860, every judgment that was entered up against the owner of lands required to be registered in the owner's name (i.e., in the name of the debtor), and to be re-registered every five years, in order to become a charge upon the land; from the 23rd of July, 1860, to the 29th of July, 1864, every like judgment required to be registered in the name of the debtor, and to be re-registered every five years, and execution thereon required also to be sued out, and also rexis. tered in the name of the creditor, and also within three months from the date of such registration to have been executed, in order to become a charge upon the land ; but since the 29th of July, 1864, no such judgment requires to be registered at all, but execution is to be sued out thereon, and to be also registered in the name of the debtor, although even then it is not a charge upon the land until such land has been actually taken upon the execution by summary process.

The date of the registration, and not that of entering up the judgment, or of the registration, and not that of suing out the execution, is the point of time which regulates the priorities or rights of adverse successive claimants; thus, judgment creditors, as between themselves, take rank according to the order of the dates of their several registrations, and notice of an unregistered judgment entered up at a prior date does not affect them (Benham v. Keane, 1 J. & H. 685), as neither does such notice affect a subsequent purchaser or mortgagee, this being the construction of the stats. 3 & 4 Vict. c. 82, s. 2, and 18 & 19 Vict. c. 15, s. 5. But notice of an unregistered judgment does atfi ct a subsequent cestui que trust (Benham v. Keane, supra). And notice of a judgment which has been re-registered within five years prior to the date of the purchase or mortgage does affect a purchaser or mortgagee having notice thereof, notwithstanding an interval of more than five years may have elapsed between such re-registration and the next preceding registration (Simpson

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