civil officer or magistrate, unless in case of a rebellion declared by the legislature.

III. Penalty, if in case of an insurrection, a commissioned officer of the militia refuse to execute orders.

The same statute has further enacted, that if any commissioned officer of the militia, shall refuse or wilfully neglect to execute any orders he may receive from his superior officer, to make a detachment from the corps under his command, or to march for the support of the civil authority, or the suppression of any insurrection as aforesaid, in addition to the punishment which may be inflicted by virtue of any act for regulating the militia, if convicted thereof before the justices of the supreme judicial court, he shall be subject to be fined in a sum not exceeding fifty pounds, and to be adjudged incapable of sustaining any office in this commonwealth, for a term not exceeding ten years; to either or both of the said penalties, according to the aggravation of the offence. and circumstances of the offender, as to the justices of the said court shall seem meet.

IV. Penalty, if in case of an insurrection, a non-commissioned officer or private refuse to obey orders.

By the same statute it is enacted, that if any person, whether non-commissioned officer or private, and belonging either to the train-band or the alarm-list, who shall be detached or ordered to march for the support of the civil authority, or the suppression of any insurrection existing or apprehended as aforesaid, shall refuse or neglect to march, armed and equipped, in the manner and at the time which the officer, by whom he shall be detached, shall direct, or shall desert or leave the service before he shall be regularly discharged, if convicted thereof before the justices of the supreme judicial court, he shall be subject to be fined, at the discretion of the said court, in a sum not exceeding ten pounds.

Ibid. s. 3.

Ibid. s. 4.

1

Ibid. s. 5.

V. Penalty, for dissuading an officer or private from performing the duty required of him in case of an insurrection.

The same statute has further enacted, that if any person in public or private discourse or conversation, or by any ways or means, shall dissuade, or endeavour to prevent any military officer from performing the duty required of him by this act, or any person or persons detached or ordered to march for the purposes aforesaid, from marching to the place of rendezvous, or from continuing in the service until regularly discharged, each person so offending, being convicted thereof as aforesaid, shall pay a fine, to the use of the commonwealth, not exceeding fifty pounds, and shall recognize for his good behaviour, for a term not exceeding three years.

NOTE.-For further information on this subject, see title MILI. TIA, 10th head.

TITLE XCII.

JOINT-TENANTS, TENANTS IN COMMON,

AND COPARCENERS.

I. JOINT-TENANTS.

How a joint-tenancy

law.

At common law, if an estate be given to a plurality of 2 Bl. Com. 180. persons, without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A and B is created at common and their heirs, this makes them immediately jointtenants of the lands. For the law interprets the grant so as to make all parts of it take effect; which can only be done by creating an equal estate in them both. As therefore, the grantor has thus united their names, the common law gives them a thorough union in all other respects.

Stat. 1785, c. 62, s. 4.

How created by

But now, by statute it is enacted, that all gifts, grants, feoffments, devises, and other conveyances, of any lands, tenements, and hereditaments, which have been, or shall statute. be made to two or more persons, whether for years, for life, in tail or in fee, shall be taken, deemed, and adjudged, to be estates in common, and not in joint-tenancy, unless it has been or shall be therein said, that the grantees, feoffees, or devisees, shall have or hold the same Jands, tenements or hereditaments, jointly, or as jointtenants, or in joint-tenancy, or to them and the survivor or survivors of them, or unless other words be therein used, clearly and manifestly shewing it to be the intention of the parties to such gifts, grants, feoffments, devises, or other conveyances, that such lands, tenemants, and hereditaments, should vest, and be held as joint estates, and not as estates in common.(1)

(1) The act contains a proviso, that where any estate had already vested in the survivor, it should be held in like manner, as it would have been held if the act had never been passed.

2 Bl. Com. 180.

The properties of a joint-tenancy.

Ibid. 182.

Ibid.

The properties of a joint estate are derived from its unity, which is fourfold; the unity of interest, the unity of title, the untity of time, and the unity of possession : or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession.

Upon these principles of a thorough and intimate union of interest and possession, depend many other consequences and incidents to the joint-tenants' estate. If two joint-tenants make a verbal lease of their land, reserving rent to be paid to one of them, it shall enure to both, in respect of the joint reversion. So livery of seisin made to one joint-tenant shall enure to both, because of the privity or relation of their estate.

So by the common law, in all actions relating to their joint estate, one joint-tenant cannot sue or be sued withand be joined in suits. out joining the other.

How they must join,

Stat. 1785, c. 62, s. 3.

2 Bl. Com. 183.

Stat. 1785, c. 62, s. 2.

2 Bl. Com. 183,

But now by statute it is enacted, that in all actions of waste, ejectment, or other real actions, where possession of the inheritance, alleged to have descended, is the object of the suit, all the heirs, or any two or more of them may join therein, or each one may prosecute for his particular share of such inheritance; and the same rule shall extend to joint-tenants, who are or may be disseized.

So also, at common law, one joint-tenant cannot have an action against another for trespass in respect of his land.

But now by statute, such action will lie where a trespass has been committed, pending a writ of partition. Before the statute of 4 Ann. c. 16, one joint-tenant Sul. Hist. L. T. 170. might take all the profits of the estate, and his partner had no remedy; but since that statute, joint-tenants may have actions of account against each other, for receiving more than their due share of the profits of the tenements held in joint-tenancy.

So also, if one joint-tenant commit waste, his companion may have an action against him.

2 Bl. Com. 183.

Ibid.

At common law, the most important incident to an estate in joint-tenancy, is that of survivorship: by which when two or more persons are seized of a joint estate, Survivorship. of inheritance, for their own lives, or for the life of a third person, or are jointly possessed of any chattel interest, the entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivor; and he shall be entitled to the whole estate, whatever it be, whether an inheritance, or a common freehold only, or even a less estate.

By statute of 1783, c. 52, s. 3, it was enacted, that the principle of survivorship should no longer be in force in this commonwealth. This statute however has been since repealed by statute, 1785, c. 62.

We will now consider how an estate in joint-tenancy may be severed and destroyed.

The joint-tenants' estate may be destroyed, without any alienation, by merely disuniting their possession. For joint-tenants being seized by the moiety and by the whole, every thing that tends to narrow that interest, so that they shall not be seized throughout the whole, and throughout every part, is a severance or destruction of the jointure. And therefore, if two joint-tenants agree to part their lands, and hold them in severalty, they are no longer joint-tenants; for they have now no joint interest in the whole, but only a several interest respectively in the several parts. And for that reason also, the right of survivorship is by such separation destroyed.

By common law all the joint-tenants might agree to make partition of the lands, but one of them could not compel the other so to do: for this being an estate originally created by the act and agreement of the parties, the law would not permit any one or more of them to destroy the united possession, without a similar universal

consent.

How such estate may be severed and destroyed.

2 Bl. Com. 185.

Ibid.