vivors to be trustees of the share of the deceased for favoured in securities. Indeed, as a general rule, joint ownership is not Joint ownerfavoured in equity, on account of the right of survivor- ship not ship which attaches to it (v). If, therefore, two persons equity. advance money by way of mortgage or otherwise, and No survivorship in equity take the security to themselves jointly, and one of them of joint die, the survivor will be a trustee in equity for the representatives of the deceased, of the share advanced by him (a). And it was formerly necessary, when the intention was that the survivor should receive the whole, that a declaration should be inserted that his receipt alone should be a sufficient discharge for the money secured (y). An enactment contained in the Conveyancing and Law of Property Act, 1881, has rendered unnecessary the insertion of such a declaration in mortgages or obligations made or transferred to two or more persons jointly after the 31st of December, 1881 (~). common. An ownership in common (or, as it is usually styled Ownership in in analogy to real estate, a tenancy in common) of chattels may arise either from the severance of a joint ownership, or from a gift to two or more to hold in common (a). But a joint ownership of a chose in action cannot be severed at law by either, or even by both, of the joint owners. And in case of the bankruptcy of a (t) Phillips v. Phillips, 1 My. & Keen, 649, 663; Broom v. Broom, 3 My. & Keen, 443; Morris v. Kearsley, 2 You. & Coll. 139; Bligh v. Brent, 2 You. & Coll. 258; Houghton v. Houghton, 11 Sim. 491; Custance v. Bradshaw, 4 Hare, 315, 322; Darby v. Darby, 3 Drew. 495; see Cookson v. Cookson, 8 Sim. 529; Waterer v. Waterer, L. R. 15 Eq. 402. joint creditor, by which all his estate became vested in his assignees, an action against the debtor must formerly have been brought in the joint names of the assignees and the other joint creditors (b). And if two joint creditors should have become bankrupt, the action must have been brought in the joint names of the assignees of both of them (c). But by the Bankruptcy Act, 1883 (d), as under the Act of 1869 (e), where a bankrupt is a contractor in respect of any contract jointly with any person or persons, such person or persons may sue or be sued in respect of the contract, without the joinder of the bankrupt. A tenancy in common cannot in fact exist at law of a chose in action. A. may owe 201. to B. and C. jointly, or he may owe 107. to B. and 10l. to C.; but he cannot owe 20l. to B. and C. in common. If each has a several cause of Otherwise in action, each must sue separately. In equity, however, equity. No tenancy law of a chose Letters patent. the case is different. Though B. and C. are joint owners at law, in equity they may be owners in common; and on the decease of either of them, his share may in equity belong to his representatives, instead of accruing beneficially to his companion. And with regard to letters patent, it appears that, even at law, they may be the subject of an ownership in common, and that the assignee of an undivided share may alone sue for an infringement of that part of the patent, without joining the persons interested in the remaining shares (ƒ). And one owner in common of letters-patent can work the patent on his own account, without the concurrence of the others (g). In deciding whether a (b) Thomason v. Frere, 10 East, (c) See Hancock v. Heywood, 3 (d) Stat. 46 & 47 Vict. c. 52, s. 114. (c) Stat. 32 & 33 Vict. c. 71, s. 112. (f) Dunnicliff v. Mallet, 7 C. B., N. S. 209; Walton v. Lavater, 8 C. B., N. S. 162. (g) Mathers v. Green, L. C., L. R. 1 Ch. 29; Steers v. Rogers, 1893, A. C. 232. tenancy in common has been created by deed, there is tenancy in very seldom any difficulty. But in wills, where greater Gifts by will indulgence is given to informal words, the rule is, that which make a any words which denote an intention to give to each of common. the legatees a distinct interest in the subject of gift, will be sufficient to make them tenants in common. Thus a gift by will to two or more persons "equally to be divided between them" (h), or simply "between them" (i), or "in joint and equal proportions" (k), or “equally” (l) or “respectively " (m), or “to be enjoyed alike" (n), will make such persons tenants in common, and not joint tenants, as they would have been without the insertion of such words. In this respect the rule is the same whether the subject of the devise or bequest be real or personal estate (o). common have session. Owners in common of personal estate, like tenants in Owners in common of lands, have merely a unity of possession: merely a the interest of one may be larger or smaller than that unity of posof the other, one having, for instance, one-third, and the other two-thirds of the property. So the title need not be the same, as one may have been originally a joint. tenant with a third person, who may have severed the joint tenancy by assigning his moiety to the other. The right of survivorship, which springs from a unity No survivorof interest and title, has accordingly no place between owners in common (p). ship. Connected with the subject of joint ownership is that Joint liability. of joint liability. Two or more persons may be jointly liable to the same debt or demand. In a joint bond, the obligors, according to the usual form, bound themselves, their heirs, executors and administrators jointly; and in a joint covenant, they, in like manner, covenanted for themselves, their heirs, executors and administrators jointly. For reasons already given (q), there is now no necessity for the express mention of the heirs, executors, or administrators of the persons to be jointly bound by any covenant, or bond under seal; and such instruments are now constantly drawn without naming them. In every case of joint liability, each is liable for the whole debt (r), yet they are all, like joint owners, considered as one person. They should accordingly all be sued together during their joint lives (s); for if an action be brought and judgment obtained against one only, the discharges all. others will be discharged, though the judgment remain unsatisfied (f). So a release to one of them will disDischarge by charge them all (u). But, as we have seen, the order bankruptcy. of discharge of a bankrupt will not release any person who at the date of the receiving order was a partner or co-trustee with the bankrupt, or was jointly bound, or Discharge by had made any joint contract with him (x). And if any person jointly liable upon any simple contract shall be discharged by the Statute of Limitations (y), but his Judgment against or release of one Statute of (q) Ante, p. 200. (r) 1 Barn. & Ald. 35. (s) 1 Wms. Saund. 291 b. n. (4); Kendall v. Hamilton, 4 App. Cas. 504, 515, 516, 542-544. (4) King v. Hoare, 13 M. & W. 494; Kendall v. Hamilton, 4 App. Cas. 504; Hammond v. Schofield, 1891, 1 Q. B. 453. The rule is the same in every case of joint liability, on tort as well as in contract, 13 M. & W. 504-506; Brinsmead v. Harrison, L. R. 7, C. P. 547; but it is subject to an exception in the case of the absence beyond seas of any one jointly liable with the person, against whom judgment has been obtained; see note (z) below. (u) 2 Rol. Abr. 412 (G), pl. 4; Clayton v. Kynaston, 3 Salk. 574; 2 Wms. Saund. 47 gg, n. (1); Warwick v. Richardson, 14 Sim. 281. But a covenant not to sue one of several joint debtors or tort-feasors will not discharge the others Hutton v. Eyre, 6 Taunt. 289 Duck v. Mayeu, 1892, 2 Q. B. 511. (x) Stat. 46 & 47 Vict. c. 52, s. 30, sub-s. 4, ante, p. 255. The previous enactments were stats. 32 & 33 Vict. c. 71, s. 50; 24 & 25 Vict. c. 134, s. 163; 12 & 12 Vict. c. 106, s. 200; 5 & 6 Vict. c. 122, s. 37; and 6 Geo. IV. c. 16, s. 121. (y) Stat. 21 Jac. 1, c. 16. decease of one co-contractor or co-contractors shall be liable by virtue of a new acknowledgment or promise (2), judgment may be given against the latter person or persons only (a). If one liable jointly with others be sued for the whole debt or demand, he will be entitled, as a rule, to have the others added as co-defendants to the action (b). And if one joint debtor pays the whole debt, he will be entitled in equity to contribution from Contribution. the others in equal shares (c). After the decease of any After the one joint debtor the survivors or survivor of them may joint debtor still be sued for the whole debt, as though the deceased the survivor had no share in it (d), and the estate of the deceased solely liable. will be discharged from all liability both at law and in equity (e). So if a judgment be obtained against two or more jointly, and one of them die, the estate of the survivor or survivors, whether real or personal, will be exclusively liable to be taken in execution; although formerly the real estate of the deceased, having been bound from the date of the judgment, was liable to (z) See ante, pp. 159, 164. No joint contractor shall lose the benefit of the Statute of Limitations by reason of any written acknowledgment or promise made and signed by any other joint contractor; stat. 9 Geo. IV. c. 14, s. 1; or by payment of any principal or interest by any co-contractor or co-debtor; stat. 19 & 20 Vict. c. 97, s. 14. Formerly, where one of several joint debtors was beyond seas, the time of limitation did not begin to run, so as to discharge the others remaining in England, until his return; stat. 4 & 5 Anne,c. 3 (c. 16 in Ruffhead), s. 19; Fannin v. Anderson, 7 Q. B. 811; Towns v. Mead, 16 C. B. 123. But by stat. 19 & 20 Vict. c. 97, ss. 11, 12, the fact of one joint debtor being beyond the seas at the time when the cause of action accrues, will not deprive the others of the benefits of the Statute of Limitation; and the recovery of judgment against any who were (a) Stat. 9 Geo. IV. c. 14, s. 1. (c) Dering v. Earl of Winchelsca, 2 Bos. & Pul. 270; 1 White & Tudor, L. C. Eq. See ante, p. 210. (d) Richards v. Heather, 1 B. & A. 29. (e) Richardson v. Horton, 6 Beav. 185; Wilmer v. Currey, 2 De G. & S. 347; Crossley v. Dobson, 2 De G. & S. 486; Other v. Iveson, 3 Drew. 177. |