New York Lawyer WS
New York Layer, law dictionary, legal dictionary, dictionary online, word search, lawyer search, law and order, attorney, law school    
 
Google
 
Web new-york-lawyer.ws
 
J

JACTITATION. OF MARRIAGE, Eng. eccl. law. The boasting by an individual that he or she has married another, from which it may happen that they will acquire the reputation of being married to each other.

2. The ecclesiastical courts may in such cases entertain a libel by the party injured; and, on proof of the facts, enjoin the wrong-doer to perpetual silence; and, as a punishment, make him pay the costs. 3 Bl. Com. 93; 2 Hagg. Cons. R. 423 Id. 285; 2 Chit. Pr. 459.

JACTURA. The same as jettison. (q. v.) 1 Bell's Com. 586, 5th ed.

JAIL. A prison; a place appointed by law for the detention of prisoners. A jail is an inhabited dwelling-house within the statute of New York, which makes the malicious burning of an inhabited dwelling-house to be arson. 8 John. 115; see 4 Call, 109. Vide Gaol; Prison.

JEOFAILE. This is a law French phrase, which signifies, "I am in an error; I have failed." There are certain statutes called statutes of amendment and jeofails because, where a pleader perceives any slip in the form of his proceedings, and acknowledges the error, (jeofaile,) he is at liberty by those statutes to amend it. The amendment, however, is seldom made, but the benefit is attained by the court's overlooking the exception. 3 Bl. Com. 407; 1 Saund. 228, n. 1; Doct. Pl. 287; Dane's Ab. h. t.

JEOPARDY. Peril, danger. 2. This is the meaning attached to this word used in the act establishing and regulating the post office department. The words of the act are, "or if, in effecting such robbery of the mail the first time, the offender shall wound the person having the custody thereof, or put his life in jeopardy by the use of dangerous weapons, such offender shall suffer death." 3 Story's L. U. S. 1992. Vide Baldw. R. 93-95.

3. The constitution declares that no person shall "for the same offence, be twice put in jeopardy of life and limb." The meaning of this is, that the party shall, not be tried a second time for the same offence after he has once been convicted or acquitted of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him; but it does not mean that he shall not be tried for the offence, if the jury have been discharged from necessity or by consent, without giving any verdict; or, if having given a verdict, judgement has been arrested upon it, or a new trial has been granted in his favor; for, in such a case, his life and limb cannot judicially be said to have been put in jeopardy. 4 Wash. C. C. R. 410; 9 Wheat. R. 579; 6 Serg. & Rawle, 577; 3. Rawle, R. 498; 3 Story on the Const. 1781. Vide 2 Sumn. R. 19. This great privilege is secured by the common law. Hawk. P. C., B. 2, 35; 4 Bl. Com. 335.

4. This was the Roman law, from which it has been probably engrafted upon the common law. Vide Merl. Rep. art. Non bis in idem. Qui de crimine publico accusationem deductus est, says the Code, 9, 2, 9, ab alio super eodem crimine deferri non potest. Vide article Non bis in idem.

JERGUER, Engl. law. An officer of the custom-house, who oversees the waiters. Techn. Dict. h. t.

JETTISON, or JETSAM. The casting out of a vessel, from necessity, a part of the lading; the thing cast out also bears the same name; it differs from flotsam in this, that in the latter the goods float, while in the former they sink, and remain under water; it differ; also from ligan. (q. v.)

2. The jettson must be made for sufficient cause, and not from groundless timidity. In must be made in a case of extremity, when the ship is in danger of perishing by the fury of a storm, or is laboring upon rocks or shallows, or is closely pursued by pirates or enemies.

3. If the residue of the cargo be saved by such sacrifice, the property saved is bound to pay a: proportion of, the loss. In ascertaining such average. loss, the goods lost and saved are both to be valued at the price they would have brought at the place of delivery, on the ship's arrival there, freight, duties and other charges being deducted. Marsh. Ins. 246; 3 Kent, Com. 185 to 187; Park. Ins., 123; Poth. Chartepartie, n. 108, et suiv; Boulay-Paty, Dr. Com. tit. 13; Pardessus, Dr. Com. n. 734; 1 Ware's R. 9.

JEUX DE BOURSE, French law. This is a kind of gambling or speculation, which consists of sales and purchase's, which bind neither of the parties to deliver the things which are the object of the sale, and which are settled by paying the difference in the value of the things sold between the day of the sale, and that appointed for delivery of such things. 1 Pard. Dr. Com. n. 162.

JEWS. See De Judaismo Statutum.

JOB. By this term is understood among workmen, the whole of a thing which is to be done. In this sense it is employed in the Civil Code of Louisiana, art. 2727; "to build by plot, or to work by the job," says that article, "is to undertake a building for a certain stipulated price." See Durant. du Contr. de Louage, liv. 8, t. 8, n. 248, 263; Poth. Contr. de Louage, n. 392, 394 and Deviation.

JOBBER, commerce. One who buys end sells articles for others. Stock jobbers are those who buy, and sell stocks for others; this term is also applied to those who speculate in stocks on their own account.

JOCALIA. Jewels; this term was formerly more properly applied to those ornaments which women, although married, call their own. When these jocalia are not suitable to her degree, they are assets for the payment of debts. 1 Roll. Ab. 911. Vide Paraphernalia.

JOINDER OF ACTIONS, practice. The putting two or more causes of action in the same declaration.

2. It is a general rule, that in real actions there can never be but one count. 8 Co. 86, 87; Bac. Ab. Action, C; Com. Dig. Action, G. A count in a real, and a count in a mixed action, cannot be joined in the same declaration; nor a count in a mixed action, and a count in a personal action; nor a count in a mixed action with a count in another, as ejectment and trespass.

3. In mixed actions, there may be two counts in the same declaration; for example, waste lies upon several leases, and ejectment upon several demises and ousters. 8 Co. 87 b Poph. 24; Cro. Eliz. 290; Ow. 11. Strictly, however, ejectment at common law, is a personal action, and a count in trespass for an assault and battery, may be joined with it; for both sound in trespass, and the same judgment is applicable to both.

4. In personal actions, the use of several counts in the same declaration is quite common. Sometimes they are applied to distinct causes of actions, as upon several promissory notes; but it more frequently happens that the various counts introduced, do not really relate to different claims, but are adopted merely as so many different forms of propounding the same demand. The joinder in action depends on the form of action, rather than on the subject-matter of it; in an action against a carrier, for example, if the plaintiff declare in assumpsit, he cannot join a count in trover, as he may if he declare against him in case. 1 T. R. 277 but see 2 Caines' R. 216; 3 East, R. 70. The rule as to joinder is, that when the same plea may be pleaded, and the same judgment given on all the counts of the declaration, or when the counts are all of the same nature, and the same judgment is to be given upon them all, though the pleas be different, as in the case of debt upon bond and simple contract, they may be joined. 2 Saund. 117, c. When the same form of action may be adopted, th may join as many causes of action as he may choose, though he acquired the rights affected by different titles; but the rights of the plaintiffs, and the liabilities of the defendant, must be in his own character, or in his representative capacity, exclusively. A, plaintiff cannot sue, therefore, for a cause of, action in his own right, and another cause in his character as executor, and join them; nor can he sue the defendant for a debt due by himself, and another due, by him as executor.

5. In criminal case s, different offences may be joined in the same indictment, if of the same nature, but an indictment may be quashed, at the discretion of the court, when the counts are joined in such a manner as will confound the evidence. 1 Chit. Cr. Law, 253-255. In Pennsylvania, it has been decided that when a defendant was indicted at one session of the court for a conspiracy to cheat a third person, and at another session of the same court he was indicted for another conspiracy to cheat another person, the two bills might be tried by the same jury against the will of the defendant, provided he was not thereby deprived of any material right, as the right to challenge; whether he should be so tried or not seems to be a matter of discretion with the court. 5 S. & R. 59 12 S. R. 69. Vide Separate Trial. Vide, generally, 2 Saund. 117, b. to 117, c.; Com. Dig. Action, G; 2 Vin. Ab. 38; Bac. Ab. Actions in General, C; 13 John. R. 462; 10 John. R. 240; 11 John. R. 479; 1 John. R. 503; 3 Binn. 555; 1 Chit Pl. 196 to 205; Arch. Civ. Pl. 172 to 176; Steph. Pl. Index, h. t. Dane's Ab. h. t.

JOINDER IN DEMURRER. When a demurrer is offered by one party, the adverse party joins with him in demurrer, and the answer which he makes is called a joinder in demurrer. Co. Litt. 71 b. But this is a mere formality.

JOINDER OF ISSUE, pleadings. The act by which the parties to a cause arrive at that stage of it in their pleadings, that one asserts a fact to be so, and the other denies it. For example, when one party denies the fact pleaded by his antagonist, who has tendered the issue thus, "And this he prays may be inquired of by the country," or, "And of this he puts himself upon the country," the party denying the fact may immediately subjoin, "And the said A B does the like;" when the issue is said to be joined.

JOINDER OF PARTIES TO ACTIONS. It is a rule in actions ex contractu that all who have a legal interest in the contract, and no others, must join in action founded on a breach of such contract; whether the parties are too many or too few, it is equally fatal. 8 S. & R. 308: 4 Watts, 456; 1 Breese, 286; 6 Pick. 359. 6 Mass. 460; 2 Conn. 697; 6 Wend. 629; 2 N. & M. 70; 1 Bailey, 13; 5 Verm. 116; 3 J. J. Marsh. 165; 16 John. 34; 19 John. 213; 2 Greenl. 117; 2 Penn. 817.

2. In actions ex contractu all obligors jointly and not severally liable, and no others, must be made defendants. 1 Saund. 153, note 1; 1 Breese, 128; 11 John. 101; J. J. Marsh. 38; 2 John. 213.

3. In actions ex. delicto, when an injury is done to the property of two or more joint owners, they must join in the action. 1 Saund. 291, g; 11 Pick. 269; 12 Pick. 120; 7 Mass. 135; 13 John. 286.

4. When a tort is of such a nature that it may be committed by several, they may all be joined in an action ex delicto, or they may be sued severally. But when the tort cannot be committed jointly, as, for example, slander, two or more persons cannot be sued jointly, although they may have uttered the same words. 6 John. 32. See, generally, 3 Bouv. Inst. n. 2648, et seq.

JOINT. United, not separate; as, joint action, or one which is brought by several persons acting together; joint bond, a bond given by two or more obligors.

JOINT CONTRACT. One in which the contractors are jointly bound to perform the promise or obligation therein contained, or entitled to receive the benefit of such promise or obligation.

2. It is a general rule that a joint contract survives, whatever may be the beneficial interests of the parties under it; where a partner, covenantor, or other person entitled, having a joint interest in a contract not running with the land, dies, the right to sue survives in the other partner, &c. 1 Dall. 65, 248; Addis. on Contr. 285. And when the obligation or promise is to perform something jointly by the obligor or promissors, and one dies, the action must be brought against the survivor. Ham. on Part. 156.

3. When all the parties interested in a joint contract die, the action must be brought by the executors or administrators of the last surviving, obligee, against the executors or administrators of the last surviving obligor. Addis. on Contr. 285. See Contracts; Parties to Actions; Co-obligor.

JOINT EXECUTORS. It is proposed to consider, 1. The interest which they have in the estate of the deceased. 2. How far they are liable for each other's acts. 3. The rights of the survivor.

2. - 1. Joint executors are considered in law as but one person, representing the testator, and, therefore, the acts of any one of them, which relate either to the delivery, gift, sale, payment, possession or release of the testator's goods, are deemed, as regards the persons with whom they contract, the acts of all. Bac. Abr. h. t.; 11 Vin. Abr. 358; Com. Dig. Administration, B 12; 1 Dane's Abr. 583; 2 Litt. (Kentucky) R. 315; Godolph. 314; Dyer, 23, in marg. 16 Serg. & Rawle, 337. But an executor cannot, without the knowledge of his co-executor, confess a judgment for a claim, part of which was barred by the act of limitations, so as to bind the estate of the testator. 6 Penn. St. Rep. 267.

3. - 2. As a general rule, it may be laid down that each, executor is liable for his own wrong, or devastavit only, and not for that of his colleague. He may be rendered liable, however, for the misplaced confidence which he may have reposed in his coexecutor. As, if he signs a receipt for money, in conjunction with another executor, and he receives no part of the money, but agrees that the other, executor shall retain it, and apply it to his own use, this is his own misapplication, for which he is responsible. 1 P. Wms. 241, n. 1; 1 Sch. & Lef. 341; 2 Sch. & Lef. 231; 7 East, R. 256; 11 John. R. 16; 11 Serg. & Rawle, 71; Hardr. 314; 5 Johns. Ch. R. 283; and see 2 Bro. C. C. 116; 3 Bro. C. C. 112; 2 Penn. R. 421; Fonb. Eq. B. 2, c. 7, s. 5, n. k.

4. - 3. Upon the death of one of several joint executors, the right of administering the estate of the testator devolves upon the survivor. 3 Atk. 509 Com. Dig. Administration, B 12; Hamm. on Parties, 148.

5. In Pennsylvania, by legislative enactment, it is provided, "that where testators may devise their estates to their executors to be sold, or direct such executors to sell and convey such estates, or direct such real estate to be sold, without naming, or declaring who shall sell the same, if one or more of the executors die, it shall or may be lawful for the surviving executor to bring actions for the recovery of the possession thereof, and against trespassers thereon; to sell and "convey such real estate, or manage the same for the benefit of the persons interested therein." Act of March 12, 1800, 3 Sm. L. 433.

JOINT STOCK BANKS. In England they are a species of quasi corporations, or companies regulated by deeds of settlement; and, in this respect, the stand in the same situation as other unincorporated bodies. But they differ from the latter in this, that they are invested by certain statutes with powers and privileges usually incident to corporations. These enactments provide for the continuance of the partnership, notwithstanding a change of partners. The death, bankruptcy, or the sale by a partner of his share, does not affect the identity of the partnership; it, continues the same body, under the same name, by virtue of the act of parliament, notwithstanding these changes. 7 Geo. IV., c. 46, s. 9.

JOINT TENANTS, estates. Two or more persons to whom are granted land's or tenements to hold in fee simple, fee tail, for life, for years, or at will. 2 Black. Com. 179. The estate which they, thus hold is called an estate in joint tenancy. Vide Estate in joint tenancy; Jus accrescendi; Survivor.

JOINT TRUSTEES. Two or more persons who are entrusted with property for the benefit of one or more others.

2. Unlike joint executors, joint trustees cannot act separately, but must join both in conveyances and receipts, for one cannot sell without the others, or receive more of the consideration money, or be more a trustee than his partner. The trust having been given to the whole, it requires their joint act to do anything under it. They are not responsible for money received by their co-trustees, if the receipt be given for the mere purposes of form. But if receipts be given under circumstances purporting that, the money, though not received by both, was under the control of both, such a receipt shall charge, and the consent that the other shall misapply the money, particularly where he has it in his power to secure it, renders him responsible. 11 Serg. & Rawle, 71. See 1 Sch. & Lef. 341; 5 Johns. Ch. R. 283; Fonbl. Eq. B. 2, c. 7, s. 5; Bac. Abr. Uses and Trusts, K; 2 Bro. Ch. R. 116; 3 Bro. Ch. R. 112. In the case of the Attorney General v. Randall, a different doctrine was held. Id. pl. 9.

JOINTRESS or JOINTURESS. A woman who has an estate settled on her by her hushand, to hold during her life, if she survive him. Co. Litt. 46.

JOINTURE, estates.. A competent livelihood of freehold for the wife, of lands and tenements; to take effect in profit or possession, presently after the death of the hushand, for the life of the wife at least.

2. Jointures are regulated by the statute of 27 Hen. VIII. o. 10, commonly called the statute of uses.

3. To make a good jointure, the following circumstances must concur, namely; 1. It must take effect, in possession or profit, immediately from the death of the hushand. 2. It must be for the wife's life, or for some greater estate. 3. It must be limited to the wife herself, and not to any other person in trust for her. 4. It must be made in satisfaction for the wife's whole dower, and not of part of it only. 5. The estate limited to the wife must be expressed or averred to be, in satisfaction of her whole dower. 6. It must be made before marriage. A jointure attended with all these circumstances is binding on the widow, and is a complete bar to the claim of dower; or rather it prevents its ever arising. But there are other. modes of limiting an estate to a wife, which, Lord Coke says, are good jointures within the statute, provided the wife accepts of them after the death of the hushand. She may, however, reject them, and claim her dower. Cruise, Dig. tit. 7; 2 Bl. Com. 137; Perk. h. t. In its more enlarged sense, a jointure signifies a joint estate, limited to both hushand and. wife. 2 131. Com. 137. Vide 14 Vin. Ab. 540; Bac. Ab. h. t.; 2 Bouv. Inst. n. 1761, et seq.

JOUR. A French word, signifying day. It is used in our old law books, as, tout jours, for ever. It is also frequently employed in the composition of words, as, journal, a day book; journeyman, a man 'who works by the day; journeys account. (q. v.)

JOURNAL, mar. law. The book kept on board of a ship or other vessel, which contains an account of the ship's course, with a short history of every occurrence during the voyage. Another name for logbook. (q. v.) Chit. Law of Nat. 199. JOURNAL, common law. A book used among merchants, in which the contents of the waste-book are separated every month, and entered on the debtor and creditor side, for more convenient posting in the ledger.

JOURNAL, legislation. An account of the proceedings of a legislative body.

2. The Constitution of the United States, art. 1, s. 5, directs that "each house shall keep a journal of its proceedings; and from time to time publish the same, excepting such parts as may, in their judgment, require secrecy." Vide 2 Story, Const., 301.

3. The constitutions of the several states contain similar provisions.

4. The journal of either house is evidence of the action of that house upon all matters before it. 7 Cowen, R. 613 Cowp. 17.

JOURNEYS ACCOUNT, Eng. practice. When a writ abated without any fault of the plaintiff, he was permitted to sue out a new writ, within as little time as he possibly could after abatement of the first writ, which was quasi a continuance of the first writ, and placed him in a situation in which he would have been, supposing he had still, proceeded on that writ. This was called journeys account.

2. This mode of proceeding has fallen into disuse, the practice now being to permit that writ to be quashed, and torque out another. Vide Termes de la Ley, h. t.; Bac. Ab. Abatement, Q; 14 Vin. Ab. 558; 4 Com. Dig. 714; 7 Mann. & Gr. 762.

JUDEX. This word has several significations: 1. The judge, one who declares the law, quijus dicit; one who administers justice between the parties to a cause, when lawfully submitted to him. 2. The judicial power, or the court. 3. Anciently, by judex was also understood a juror. Vide Judge.

JUDEX A Quo. A judge from whom an appeal may be taken; a judge of a court below. See A quo; 6 Mart. Lo. Rep. 520.

JUDEX AD OUEM. A judge to whom an appeal may be taken: a superior judge.

JUDGE. A public officer, lawfully appointed to decide litigated questions according to law. This, in its most extensive sense, includes all officers who are appointed to decide such questions, and not only judges properly so called, but also justices of the peace, and jurors, who are judges of the facts in issue. See 4 Dall. 229; 3 Yeates, IR. 300. In a more limited sense, the term judge signifies an officer who is so named in his commission, and who presides in some court.

2. Judges are appointed or elected, in a variety of ways, in the United States they are appointed by the president, by and with the consent of the senate; in some of the states they are appointed by the governor, the governor and senate, or by the legislature. In the United States, and some of the states, they hold their offices during good behaviour; in others, as in New York, during, good behaviour, or until they shall attain a certain age and in others for a limited term of years.

3. Impartiality is the first duty of a judge; before he gives an opinion, or sits in judgment in a cause, he ought to be certain that he has no bias for or against either of the parties; and if he has any (the slightest) interest in the cause, he is disqualified from sitting as judge; aliquis non debet esse judex in propria causa; 8 Co. 118; 21 Pick. Rep. 101; 5 Mass. 92; 13 Mass. 340; 6 Pick. R. 109; 14 S. & R. 157-8; and when he is aware of such interest, he ought himself to refuse to sit on the case. It seems it is discretionary with him whether he will sit in a cause in which he has been of counsel. 2 Marsh. 517; Coxe, 164; see 2 Binn. 454. But the delicacy which characterizes the judges in this country, generally, forbids their sitting in such a cause.

4. He must not only be impartial, but he must follow and enforce the law, whether good or bad. He is bound to declare what the law is , and not to make it; he is not an arbitrator, but an interpreter of the law. It is his duty to be patient in the investigation of the case, careful in considering it, and firm in his judgment. He ought, according to Cicero, "never to lose sight that he is a man, and that he cannot exceed the power given him by his commission; that not only power, but public confidence has been given to him; that he ought always seriously to attend not to his wishes but to the requisitions of law, of justice and religion." Cic. pro. Cluentius. A curious case of judicial casuistry is stated by Aulus Gellius Att. Noct. lib: 14, cap. 2, which may be interesting to the reader.

5. While acting within the bounds of his jurisdiction, the judge is hot responsible for any error of judgment, nor mistake he may commit as a judge. Co. Litt. 294; 2 Inst. 422; 2 Dall. R. 160; 1 Yeates, R. 443; N. & M'C. 168; 1 Day, R. 315; 1 Root, R. 211; 3 Caines, R. 170; 5 John. R. 282; 9 John. R. 395; 11 John. R. 150; 3 Marsh. R. 76; 1 South. R. 74; 1 N. H. Rep. 374; 2 Bay, 1, 69; 8 Wend. 468; 3 Marsh. R. 76,. When he acts corruptly, he may be impeached. 5 John. R. 282; 8 Cowen, R. 178; 4 Dall. R. 225.

6. A judge is not competent as a witness in a cause trying before him, for this, among other reasons, that he can hardly be deemed capable of impartially deciding on the admissibility of his own testimony, or of weighing. it against that of another. a Martln's R, N. S. 312. Vide, Com. Dig. Courts, B 4, C 2, E 1, P 16 justices, 1 1, 2, and 3; 14 Vin. Ab. 573; Bac. Ab. Courts, &c., B; 1 Kent, Com. 291; Ayl. Parerg. 309; Story, Const. Index, h. t. See U. S. Dig. Courts, I, where will be found an abstract of various decisions relating to the appointment and powers of judges in different states. Vide Eguality; Incompetency.;

JUDGE ADVOCATE. An officer who, is a member of a court martial. 2. His duties are to prosecute in the name of the United States, but he shall so far consider himself as counsel for the prisoner, after the prisoner shall have made his plea, as to object to leading questions to any of the witnesses, or any question to the prisoner, the answer to which might tend to criminate himself. He is further to swear the members of the court before they proceed upon any trial. Rules and Articles of War, art. 69, 2 Story, L. U. S. 1001; Lid. Jud. Adv. passim.

JUDGE'S NOTES. They are short statements, made by a judge on the trial of a cause, of what transpires in the course of such trial. They usually contain a statement of the testimony of witnesses; of documents offered or admitted in evidence; of offers of evidence and whether it has been received or rejected, and the like matters.

2. In general judge's notes are not evidence of what transpired at a former trial, nor can they be read to prove what a deceased witness swore to on such former trial, for they are no part of the record, and he is not officially bound to make them. But in chancery, when a new trial is ordered of an issue sent out of chancery to a court of law, and it is suggested that some of the witnesses in the former trial are of an advanced age, an order may be made that, in the event of death or inability to attend, their testimony may be read from the judge's notes. 1 Greenl. Ev. 166.

 
 
 
Copyright © 2004 New-York-Lawyer .WS