time, and one of them dying, it was held, that this was a joint-tenancy which went to the survivor (1).

III. WHAT THINGS MAY BE HOLDEN IN JOINT-
TENANCY, OR IN COMMON.

GENERALLY speaking, there may be a joint-tenancy not only of lands and tenements, but also of chattels personal, as a horse, as well as real, such as leases for years, &c.; for where two come to these by a joint gift or purchase, they shall survive, and not go to the executors of the party.

But, as has been already intimated, an exception is to be made as to joint-merchants; for the stock, wares, merchandizes, debts, or duties, which persons have as jointmerchants or copartners, do not survive on the death of either, but go to the executors of the deceased, per legem mercatoriam, (which is part of the laws of the realm) for the advancement and continuance of trade and commerce; hence the rule, that jus accrescendi inter mercatores pro beneficio commercii, locum non habet.

And in like manner, also, there may be tenants in common, whether of lands or tenements, or of chattels real or personal, entire or several, as leases for years, horses, &c. and when any of those who were joint-tenants of them, grant over their interest to a stranger, the grantee and the others are tenants in common.

If, therefore, two persons take the lease of a farm, on the death of either, the lease shall survive to the other;

(1) But it is said to have been holden by the court, that if the money had not been actually laid out in a purchase, the survivor would have been entitled to a moiety only. Carth. 15, in Chan. Sed quære.

JOINT. TENANCY.

JOINT- but otherwise of the stock on the farm, though occupied jointly, for this is in the nature of merchandize.

TENANCY.

IV. WHO MAY HOLD ESTATES IN JOINT-TENANCY,
OR IN COMMON.

ALL persons acting or subsisting in their natural capacity, may be joint-tenants. An alien and subject may therefore be joint-tenants; for, says Coke, if an alien and subject purchase lands to them and their heirs, they will be jointtenants, and survivorship shall take place till office found (1).

But bodies politic or corporate cannot be joint-tenants with each other; neither can a corporation, whether sole or aggregate, be joint-tenant with a natural person; and therefore, if land be given to two bishops and their successors, they are tenants in common, and have no joint. estate for life, for they take in their politic capacities in Fight of their churches or houses, and are therefore seised in several rights, viz. each bishop is seised of his moiety, in right of his bishopric, and consequently, in a several i Lit. s. 296.

h1 Vern. 217.

(1) But on office found, the king will be entitled to the moiety of the alien, and the joint-tenancy be severed. Co. Lit. 180, b. 186, a.

Lord Coke in his Reports, 5 Rep. 52, b. qualifies this, by adding, "till office found, under the great seal;" but, says Hargrave, suppose the natural-born subject survives the alien, and then the king's title is found by office, shall this, by relation to the creation of the joint-tenancy, defeat the subject's title by survivorship? The words of Lord Coke, both here and in the fifth report, are ambiguous; his first words (180, b.) favour the surviving tenant, but his subsequent introduction of the rule, nullum tempus occurrit regi, with the qualification in the fifth report, tends to a different conclusion. And though Lord Coke takes notice of a joint purchase, by an alien and a subject, yet there is not enough to solve the difficulty. See Co. Lit. 288, a. And see as to this point of relation, of an office finding the king's title, in Jo. 78; and Nichol's case, Plow. 481; Co. Lit. 180, b. n. (2).

title and capacity, whereas joint-tenants, as
we have
seen, must be seised in one and the same right and
capacity, and by one and the same joint title. And
it is the same where lands are given to any other eccle-
siastical bodies, politic or corporate *.

And so also, if a lease for years, or other personal thing, be given to layman and bishop, &c. they will not be tenants in common, but joint-tenants; for as no chattel personal can go in succession (1), they must both take in their natural capacities'.

And if lands be given to a layman and a parson, and to the heirs of one and successors of the other, they are tenants in common; for the fee vests in them in several capacities; and therefore, says Coke, if land be given to John, Bishop of Norwich, and his successors, and to John Overall, D. D. and his heirs, (they being one and the same person), he is tenant in common with himselfTM (2).

So if land be given to the king and a subject, and their heirs, they are tenants in common, and not joint-tenants, for the king is not seised in his natural capacity, but in his royal and politic capacity, in jure corona, which cannot stand in jointure with the seisin of a subject in his natural capacity".

* Co. Lit. 190, a; 5 Co.

8, a.

1 Co. Lit. 46, b; 190, a.

m Co. Lit. 189, b. 190, a; Moor, 202.

n Co. Lit. 190, a.

(1) It is a general rule, that personal chattels cannot go in succession; but there are some exceptions, as in the case of the king. Co. Lit. 93, b. And so, in the case of a special custom, as the Chamberlain of London's custody of orphanage monies. 4 Co. 65, a; and see Co. Lit. 9, a. n. (1), 190, a. n. (2).

(2) But if lands be given to A. of such a place, with the addition of bishop of B. and to a secular person and their heirs, they may be joint-tenants, because here the bishop takes in his natural capacity, and is styled bishop only by way of a further description. Co. Lit. 190, a.

JOINT

TENANCY.

JOINTTENANCY.

Infants may be joint-tenants; and if there be two infant joint-tenants, and they alien in fee, and one of them dies, the survivor shall nevertheless have the whole, for the joint-tenancy is not severed by the alienation, because of the possibility of its being afterwards defeated by the writ of dum fuit infra ætatem°.

And it is said in the books, that husband and wife may be joint-tenants; but as husband and wife are considered but as one person in law, if an estate be granted or devised to husband and wife, and a third person, and their heirs, the husband and wife will take but one moiety, and the third person the other P, in the same manner as if it had been granted to two single persons only. And so if an estate be limited to husband and wife, and two others, the husband and wife will take but one third part, and the other two the remaining parts 2.

And, strictly speaking, as joint-tenants must be seised per mie et per tout, an estate thus given, i. e. to a man and his wife, is neither an estate in joint-tenancy nor in common, for man and wife being considered in law as but one person, they cannot take the estate by moieties, but both are seised of the entirety per tout only, and not per mie'. And therefore, as there can be no moieties between them, if lands be given to husband and wife after marriage, and their heirs, neither the husband nor the wife can dispose of any part without the assent of the other, but on the death of either the whole will go to the survivor of them' (1).

• 2 Rol. Abr. 87.

P Lit. s. 291.

Ibid.

• Co. Lit. 187, a; Buck

v. Andrews, 2 Vern. 120; Prec. Ch. 1; Bricker v.

Doe v. Parratt, 5 Durnf. Whatley, Ib. 233.

& E. 652.

(1) And as a husband, jointly seised with his wife of the lands, cannot alien them, so neither can he charge such lands; and therefore, where the husband in such case acknowledged a recognizance, and died, it was held, that the wife should hold the lands discharged. Rol, Abr. 346.

TENANCY.

Thus, where a copyhold was surrendered to the use of F. JOINTand E. his wife, and the survivor of them, with remainder to their right heirs, they were held not to be joint-tenants ; for, per Grey, C. J. the same words which would make two other persons joint-tenants, will make husband and wife tenants of the entirety, so that neither can sever the jointure, but the whole must accrue to the survivor'. So, per Kenyon, Ch. J. although a devise to A. and B. who are strangers to and have no connection with each other, creates a joint-tenancy, and the conveyance by one of them severs the joint-tenancy and passes a moiety, yet it has been settled for ages, that when the devise is to husband and wife, they take by entireties and not by moieties, and the husband alone cannot, by his own conveyance, without joining with his wife, divest the estate out of the wife ; but otherwise of a chattel interest".

But if an estate be given to a man and a woman, and their heirs, before marriage, and afterwards they marry, the husband and wife will have moieties between them", for they were several persons when they respectively took, and the marriage does not alter their respective rights.

But if they afterwards, on a warranty, or by suffering a recovery, take a new estate, they will not have moieties of the estate recovered, for though they were sole when the warranty was made, yet, at the time when they recovered they were husband and wife, and were incapacitated to take by moieties * (1).

(1) And as there can be no moieties between husband and wife of an estate given to them after their marriage, it hath been holden, that if the husband be attainted and executed, the wife shall, by petition, regain all lands conveyed jointly to her and her husband. Co. Lit. 187, a.