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2694. Humorists tell us there is no act of
our lives which can be performed without breaking through some one of the many
meshes of the law by which our rights are so carefully guarded; and those
learned in the law, when they do give advice without the usual fee, and in the
confidence of friendship, generally say, "Pay, pay anything rather than go
to law;" while those having experience in the courts of Themis have a
wholesome dread of its pitfalls. There are a few exceptions, however, to this
fear of the law's uncertainties; and we hear of those to whom a lawsuit is on
agreeable relaxation, a gentle excitement. One of this class, when remonstrated
with, retorted, that while one friend kept dogs, and another horses, he, as he
had a right to do, kept a lawyer; and no one had a right to dispute his taste.
We cannot pretend, in these few pages, to lay down even the principles of law,
not to speak of its contrary exposition in different courts; but there are a few
acts of legal import which all men--and women too--must perform; and to these
acts we may be useful in giving a right direction. There is a house to be leased
or purchased, servants to be engaged, a will to be made, or property settled, in
all families; and much of the welfare of its members depends on these things
being done in proper legal form.
2695. PURCHASING A HOUSE.--Few men will venture to purchase a freehold, or even a leasehold property, by private contract, without making themselves acquainted with the locality, and employing a solicitor to examine the titles,; but many do walk into an auction-room, and bid for a property upon the representations of the auctioneer. The conditions, whatever they are, will bind him; for by one of the legal fictions of which we have still so many, the auctioneer, who is in reality the agent for the vendor, becomes also the agent for the buyer, and by putting down the names of bidders and the biddings, he binds him to whom the lot is knocked down to the sale and the conditions,--the falling of the auctioneer's hammer is the acceptance of the offer, which completes the agreement to purchase. In any such transaction you can only look at the written or printed particulars; any verbal statement of the auctioneer, made at the time of the sale, cannot contradict them, and they are implemented by the agreement, which the auctioneer calls on the purchaser to sign after the sale. You should sign no such contract without having a duplicate of it signed by the auctioneer, and delivered to you. It is, perhaps, unnecessary to add, that no trustee or assignee can purchase property for himself included in the trust, even at auction; nor is it safe to pay the purchase money to an agent of the vendor, unless he give a written authority to the agent to receive it, besides handing over the requisite deeds and receipts.
2696. The laws of purchase and sale of property are so complicated that Lord St. Leonards devotes five chapters of his book on Property Law to the subject. The only circumstances strong enough to vitiate a purchase, which has been reduced to a written contract, is proof of fraudulent representation as to an encumbrance of which the buyer was ignorant, or a defect in title; but every circumstance which the purchaser might have learned by careful investigation, the law presumes that he did know. Thus, in buying a leasehold estate or house, all the covenants of the original lease are presumed to be known. "It is not unusual," says Lord St. Leonards, "to stipulate, in conditions of sale of leasehold property, that the production of a receipt for the last year's rent shall be accepted as proof that all the lessor's covenants were performed up to that period. Never bid for one clogged with such a condition. There are some acts against which no relief can be obtained; for example, the tenant's right to insure, or his insuring in an office or in names not authorized in the lease. And you should not rely upon the mere fact of the insurance being correct at the time of sale: there may have been a prior breach of covenant, and the landlord may not have waived his right of entry for the forfeiture." And where any doubt of this kind exists, the landlord should be appealed to.
2697. Interest on a purchase is due from the day fixed upon for completing: where it cannot be completed, the loss rests with the party with whom the delay rests; but it appears, when the delay rests with the seller, and the money is lying idle, notice of that is to be given to the seller to make him liable to the loss of interest. In law, the property belongs to the purchaser from the date of the contract; he is entitled to any benefit, and must bear any loss; the seller may suffer the insurance to drop without giving notice; and should a fire take place, the loss falls on the buyer. In agreeing to buy a house, therefore, provide at the same time for its insurance. Common fixtures pass with the house, where nothing is said about them.
2698. There are some well-recognized laws, of what may be called good-neighbourhood, which affect all properties. If you purchase a field or house, the seller retaining another field between yours and the highway, he must of necessity grant you a right of way. Where the owner of more than one house sells one of them, the purchaser is entitled to benefit by all drains leading from his house into other drains, and will be subject to all necessary drains for the adjoining houses, although there is no express reservation as to drains.
Thus, if his happens to be a leading drain, other necessary drains may be opened into it. In purchasing land for building on, you should expressly reserve a right to make an opening into any sewer or watercourse on the vendor's land for drainage purposes.
2699. CONSTRUCTIONS.--Among the cautions which purchasers of houses, land, or leaseholds, should keep in view, is a not inconsiderable array of constructive notices, which are equally binding with actual ones. Notice to your attorney or agent is notice to you; and when the same attorney is employed by both parties, and he is aware of an encumbrance of which you are ignorant, you are bound by it; even where the vendor is guilty of a fraud to which your agent is privy, you are responsible, and cannot be released from the consequences.
2700. THE RELATIONS OF LANDLORD AND TENANT are most important to both parties, and each should clearly understand his position. The proprietor of a house, or house and land, agrees to let it either to a tenant-at-will, a yearly tenancy, or under lease. A tenancy-at-will may be created by parol or by agreement; and as the tenant may be turned out when his landlord pleases, so he may leave when he himself thinks proper; but this kind of tenancy is extremely inconvenient to both parties. Where an annual rent is attached to the tenancy, in construction of law, a lease or agreement without limitation to any certain period is a lease from year to year, and both landlord and tenant are entitled to notice before the tenancy can be determined by the other. This notice must be given at least six months before the expiration of the current year of the tenancy, and it can only terminate at the end of any whole year from the time at which it began; so that the tenant entering into possession at Midsummer, the notice must be given to or by him, so as to terminate at the same term. When once he is in possession, he has a right to remain for a whole year; and if no notice be given at the end of the first half-year of his tenancy, he will have to remain two years, and so on for any number of years.
2701. TENANCY BY SUFFERANCE.--This is a tenancy, not very uncommon, arising out of the unwillingness of either party to take the initiative in a more decided course at the expiry of a lease or agreement. The tenant remains in possession, and continues to pay rent as before, and becomes, from sufferance, a tenant from year to year, which can only be terminated by one party or the other giving the necessary six months' notice to quit at the term corresponding with the commencement of the original tenancy. This tenancy at sufferance applies also to an under-tenant, who remains in possession and pays rent to the reversioner or head landlord. A six months' notice will be insufficient for this tenancy. A notice was given (in Right v. Darby, I.T.R. 159) to quit a house held by plaintiff as tenant from year to year, on the 17th June, 1840, requiring him "to quit the premises on the 11th October following, or such other day as his said tenancy might expire." The tenancy had commenced on the 11th October in a former year, but it was held that this was not a good notice for the year ending October 11, 1841. A tenant from year to year gave his landlord notice to quit, ending the tenancy at a time within the half-year; the landlord acquiesced at first, but afterwards refused to accept the notice. The tenant quitted the premises; the landlord entered, and even made some repairs, but it was afterwards held that the tenancy was not determined. A notice to quit must be such as the tenant may safely act on at the time of receiving it; therefore it can only be given by an agent properly authorized at the time, and cannot be made good by the landlord adopting it afterwards. An unqualified notice, given at the proper time, should conclude with "On failure whereof, I shall require you to pay me double the former rent for so long as you retain possession."
2702. LEASES.--A lease is an instrument in writing, by which one person grants to another the occupation and use of lands or tenements for a term of years for a consideration, the lessor granting the lease, and the lessee accepting it with all its conditions. A lessor may grant the lease for any term less than his own interest. A tenant for life in an estate can only grant a lease for his own life. A tenant for life, having power to grant a lease, should grant it only in the terms of the power, otherwise the lease is void, and his estate may be made to pay heavy penalties under the covenant, usually the only one onerous on the lessor, for quiet enjoyment. The proprietor of a freehold--that is, of the possession in perpetuity of lands or tenements--may grant a lease for 999 years, for 99 years, or for 3 years. In the latter case, the lease may be either verbal or in writing, no particular form and no stamps being necessary, except the usual stamp on agreements; so long as the intention of the parties is clearly expressed, and the covenants definite, and well understood by each party, the agreement is complete, and the law satisfied. In the case of settled estates, the court of Chancery is empowered to authorize leases under the 19 & 20 Vict. c. 120, and 21 & 22 Vict. c. 77, as follows:--
21 years for agriculture or occupation. 40 years for water-power. 99 years for building-leases. 60 years for repairing-leases.
2703. A lessor may also grant an under-lease for a term less than his own: to grant the whole of his term would be an assignment. Leases are frequently burdened with a covenant not to underlet without the consent of the landlord: this is a covenant sometimes very onerous, and to be avoided, where it is possible, by a prudent lessee.
2704. A lease for any term beyond three years, whether an actual lease or an agreement for one, must be in the form of a deed; that is, it must be "under seal;" and all assignments and surrenders of leases must be in the same form, or they are void at law. Thus an agreement made by letter, or by a memorandum of agreement, which would be binding in most cases, would be valueless when it was for a lease, unless witnessed, and given under hand and seal. The last statute, 8 & 9 Vict. c. 106, under which these precautions became necessary, has led to serious difficulties. "The judges," says Lord St. Leonards, "feel the difficulty of holding a lease in writing, but not by deed, to be altogether void, and consequently decided, that although such a lease is void under the statute, yet it so far regulates the holding, that it creates a tenancy from year to year, terminable by half a year's notice; and if the tenure endure for the term attempted to be created by the void lease, the tenant may be evicted at the end of the term without any notice to quit." An agreement for a lease not by deed has been construed to be a lease for a term of years, and consequently void under the statute; "and yet," says Lord St. Leonards, "a court of equity has held that it may be specifically enforced as an agreement upon the terms stated." The law on this point is one of glorious uncertainty; in making any such agreement, therefore, we should be careful to express that it is an agreement, and not a lease; and that it is witnessed and under seal.
2705. AGREEMENTS.--It is usual, where the lease is a repairing one, to agree for a lease to be granted on completion of repairs according to specification. This agreement should contain the names and designation of the parties, a description of the property, and the term of the intended lease, and all the covenants which are to be inserted, as no verbal agreement can be made to a written agreement. It should also declare that the instrument is an agreement for a lease, and not the lease itself. The points to be settled in such an agreement are, the rent, term, and especially covenants for insuring and rebuilding in the event of a fire; and if it is intended that the lessor's consent is to be obtained before assigning or underleasing, a covenant to that effect is required in the agreement. In building-leases, usually granted for 99 years, the tenant is to insure the property; and even where the agreement is silent on that point, the law decides it so. It is otherwise with ordinary tenements, when the tenant pays a full, or what the law terms rack-rent; the landlord is then to insure, unless it is otherwise arranged by the agreement.
2706. It is important for lessee, and lessor, also, that the latter does not exceed his powers. A lease granted by a tenant for life before he is properly in possession, is void in law; for, although a court of equity, according to Lord St. Leonards, will, "by force of its own jurisdiction, support a bonā fide lease, granted under a power which is merely erroneous in form or ceremonies," and the 12 & 13 Vict. c. 26, and 13 & 14 Vict. c. 19, compel a new lease to be granted with the necessary variations, while the lessor has no power to compel him to accept such a lease, except when the person in remainder is competent and willing to confirm the original lease without variations, yet all these difficulties involve both delay, costs, and anxieties.
2707. In husbandry leases, a covenant to cultivate the land in a husbandlike manner, and according to the custom of the district, is always implied; but it is more usual to prescribe the course of tillage which is to be pursued. In the case of houses for occupation, the tenant would have to keep the house in a tenantable state of repair during the term, and deliver it up in like condition. This is not the case with the tenant at will, or from year to year, where the landlord has to keep the house in tenantable repair, and the tenant is only liable for waste beyond reasonable wear and tear.
2708. INSURANCE.--Every lease, or agreement for a lease, should covenant not only who is to pay insurance, but how the tenement is to be rebuilt in the event of a fire; for if the house were burnt down, and no provision made for insurance, the tenant, supposing there was the ordinary covenant to repair in the lease, would not only have to rebuild, but to pay rent while it was being rebuilt. More than this, supposing, under the same lease, the landlord had taken the precaution of insuring, he is not compelled to lay out the money recovered in rebuilding the premises. Sir John Leach lays it down, that "the tenant's situation could not be changed by a precaution, on the part of the landlord, with which he had nothing to do." This decision Lord Campbell confirmed in a more recent case, in which an action was brought against a lessee who was not bound to repair, and neither he nor the landlord bound to insure; admitting an equitable defence, the court affirmed Sir John Leach's decision, holding that the tenant was bound to pay the rent, and could not require the landlord to lay out the insurance money in rebuilding. This is opposed to the opinion of Lord St. Leonards, who admits, however, that the decision of the court must overrule his dictum. Such being the state of the law, it is very important that insurance should be provided for, and that the payment of rent should be made to depend upon rebuilding the house in the event of a fire. Care must be taken, however, that this is made a covenant of the lease, as well as in the agreement, otherwise the tenant must rebuild the house.
2709. The law declares that a tenant is not bound to repair damages by tempest, lightning, or other natural casualty, unless there is a special covenant to that effect in the lease; but if there is a general covenant to repair, the repair will fall upon the tenant. Lord Kenyon lays it down, in the case of a bridge destroyed by a flood, the tenant being under a general covenant to repair, that, "where a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, because he might have guarded against it in the contract." The same principle of law has been applied to a house destroyed by lightning. It is, therefore, important to have this settled in the insurance clause.
2710. Lord St. Leonards asserts that "his policies against fire are not so framed as to render the company legally liable." Generally the property is inaccurately described with reference to the conditions under which you insure. They are framed by companies who, probably, are not unwilling to have a legal defence against any claim, as they intend to pay what they deem just claim without taking advantage of any technical objection, and intending to make use of their defence only against what they believe to be a fraud, although they may not be able to prove it. "But," says his lordship, "do not rely upon the moral feelings of the directors. Ascertain that your house falls strictly within the conditions. Even having the surveyor of the company to look over your house before the insurance will not save you, unless your policy is correct." This is true; but probably his lordship's legal jealousy overshoots the mark here. Assurance companies only require an honest statement of the facts, and that no concealment is practised with their surveyor; and the case of his own, which he quotes, in which a glass door led into a conservatory, rendering it, according to the view of the company, "hazardous," and consequently voiding the policy, when a fire did occur, the company paid, rather than try the question; but even after the fire they demurred, when called upon, to make the description correct and indorse on the policy the fact that the drawing-room opened through a glass door into conservatories. One of two inferences is obvious here; either his lordship has overcoloured the statement, or the company could not be the respectable one represented. The practice with all reputable offices is to survey the premises before insurance, and to describe them as they appear; but no concealment of stoves, or other dangerous accessories or inflammable goods, should be practised. This certainly binds the office so long as no change takes place; but the addition of any stove, opening, or door through a party wall, the introduction of gunpowder, saltpetre, or other inflammable articles into the premises without notice, very properly "voids the policy." The usual course is to give notice of all alterations, and have them indorse on the policy, as additions to the description of the property: there is little fear, where this is honestly done, that any company would adopt the sharp practice hinted at in Lord St. Leonards' excellent handy book.
2711. BREAKS IN THE LEASE.--Where a lease is for seven, fourteen, or twenty-one years, the option to determine it at the end of the first term is in the tenant, unless it is distinctly agreed that the option shall be mutual, according to Lord St. Leonards.
2712. NOXIOUS TRADES.--A clause is usually introduced prohibiting the carrying on of any trade in some houses, and of noxious or particular trades in others. This clause should be jealously inspected, otherwise great annoyance may be produced. It has been held that a general clause of this description prohibited a tenant from keeping a school, for which he had taken it, although a lunatic asylum and public-house have been found admissible; the keeping an asylum not being deemed a trade, which is defined as "conducted by buying and selling." It is better to have the trades, or class of trades objected to, defined in the lease.
2713. FIXTURES.--In houses held under lease, it has been the practice with landlords to lease the bare walls of the tenement only, leaving the lessee to put in the stoves, cupboards, and such other conveniences as he requires, at his own option. Those, except under particular circumstances, are the property of the lessee, and may either be sold to an incoming tenant, or removed at the end of his term. The articles which may not be removed are subject to considerable doubt, and are a fruitful source of dispute. Mr. Commissioner Fonblanque has defined as tenants' property all goods and chattels; 2ndly, all articles "slightly connected one with another, and with the freehold, but capable of being separated without materially injuring the freehold;" 3rdly, articles fixed to the freehold by nails and screws, bolts or pegs, are also tenants' goods and chattels; but when sunk in the soil, or built on it, they are integral parts of the freehold, and cannot be removed. Thus, a greenhouse or conservatory attached to the house by the tenant is not removable; but the furnace and hot-water pipes by which it is heated, may be removed or sold to the in-coming tenant. A brick flue does not come under the same category, but remains. Window-blinds, grates, stoves, coffee-mills, and, in a general sense, everything he has placed which can be removed without injury to the freehold, he may remove, if they are separated from the tenement during his term, and the place made good. It is not unusual to leave the fixtures in their place, with an undertaking from the landlord that, when again let, the in-coming tenant shall pay for them, or permit their removal. In a recent case, however, a tenant having held over beyond his term and not removed his fixtures, the landlord let the premises to a new tenant, who entered into possession, and would not allow the fixtures to be removed--it was held by the courts, on trial, that he was justified. A similar case occurred to the writer: he left his fixtures in the house, taking a letter from the landlord, undertaking that the in-coming tenant should pay for them by valuation, or permit their removal. The house was let; the landlord died. His executors, on being applied to, pleaded ignorance, as did the tenant, and on being furnished with a copy of the letter, the executors told applicant that if he was aggrieved, he knew his remedy; namely, an action at law. He thought the first loss the least, and has not altered his opinion.
2714. TAXES.--Land-tax, sewers-rate, and property-tax, are landlord's taxes; but by 30 Geo. II. c. 2, the occupier is required to pay all rates levied, and deduct from the rent such taxes as belong to the landlord. Many landlords now insert a covenant, stipulating that land-tax and sewers-rate are to be paid by the tenants, and not deducted: this does not apply to the property-tax. All other taxes and rates are payable by the occupier.
2715. WATER-RATE, of course, is paid by the tenant. The water-companies, as well as gas-companies, have the power of cutting off the supply; and most of them have also the right of distraining, in the same manner as landlords have for rent.
2716. NOTICE TO QUIT.--In the case of leasing for a term, no notice is necessary; the tenant quits, as a matter of course, at its termination; or if, by tacit consent, he remains paying rent as heretofore, he becomes a tenant at sufferance, or from year to year. Half a year's notice now becomes necessary, as we have already seen, to terminate the tenancy; except in London, and the rent is under forty shillings, when a quarter's notice is sufficient. Either of these notices may be given verbally, if it can be proved that the notice was definite, and given at the right time. Form of notice is quite immaterial, provided it is definite and clear in its purport.
2717. Tenancy for less than a year may be terminated according to the taking. Thus, when taken for three months, a three months' notice is required; when monthly, a month's notice; and when weekly, a week's notice; but weekly tenancy is changed to a quarterly tenure if the rent is allowed to stand over for three months. When taken for a definite time, as a month, a week, or a quarter, no notice is necessary on either side.
2718. DILAPIDATIONS.--At the termination of a lease, supposing he has not done so before, a landlord can, and usually does, send a surveyor to report upon the condition of the tenement, and it becomes his duty to ferret out every defect. A litigious landlord may drag the outgoing tenant into an expensive lawsuit, which he has no power to prevent. He may even compel him to pay for repairing improvements which he has effected in the tenement itself, if dilapidations exist. When the lessor covenants to do all repairs, and fails to do so, the lessee may repair, and deduct the cost from the rent.
2719. RECOVERY OF RENT.--The remedies placed in the hands of landlords are very stringent. The day after rent falls due, he may proceed to recover it, by action at law, by distress on the premises, or by action of ejectment, if the rent is half a year in arrear. Distress is the remedy usually applied, the landlord being authorized to enter the premises, seize the goods and chattels of his tenant, and sell them, on the fifth day, to reimburse himself for all arrears of rent and the charges of the distress. There are a few exceptions; but, generally, all goods found on the premises may be seized. The exceptions are--dogs, rabbits, poultry, fish, tools and implements of a man's trade actually in use, the books of a scholar, the axe of a carpenter, wearing apparel on the person, a horse at the plough, or a horse he may be riding, a watch in the pocket, loose money, deeds, writings, the cattle at a smithy forge, corn sent to a mill for grinding, cattle and goods of a guest at an inn; but, curiously enough, carriages and horses standing at livery at the same inn may be taken. Distress can only be levied in the daytime, and if made after the tender of arrears, it is illegal. If tender is made after the distress, but before it is impounded, the landlord must abandon the distress and bear the cost himself. Nothing of a perishable nature, which cannot be restored in the same condition--as milk, fruit, and the like, must be taken.
2720. The law does not regard a day as consisting of portions. The popular notion that a notice to quit should be served before noon is an error. Although distraint is one of the remedies, it is seldom advisable in a landlord to resort to distraining for the recovery of rent. If a tenant cannot pay his rent, the sooner he leaves the premises the better. If he be a rogue and won't pay, he will probably know that nine out of ten distresses are illegal, through the carelessness, ignorance, or extortion of the brokers who execute them. Many, if not most, of the respectable brokers will not execute distresses, and the business falls into the hands of persons whom it is by no means desirable to employ.
2721. Powers to relieve landlords of premises, by giving them legal possession, are given by 19 & 20 Vict., cap. 108, to the county courts, in cases where the rent does not exceed £50 per annum, and under the circumstances hereinafter mentioned; i.e.:--
1. Where the term has expired, or been determined by notice to quit.
2. Where there is one half-year's rent in arrear, and the landlord shall have right by law to enter for the nonpayment thereof. As proof of this power is required, the importance of including such a power in the agreement for tenancy will be obvious.
In the county courts the amount of rent due may be claimed, as well as the possession of the premises, in one summons.
2722. When a tenant deserts premises, leaving one half-year's rent in arrear, possession may be recovered by means of the police-court. The rent must not exceed £20 per annum, and must be at least three-fourths of the value of the premises. In cases in which the tenant has not deserted the premises, and where notice to quit has been given and has expired, the landlord must give notice to the tenant of his intended application. The annual rent in this case, also, must not exceed £20.
2723. THE I. O. U.--The law is not particular as to orthography; in fact, it distinctly refuses to recognize the existence of that delightful science. You may bring your action against Mr. Jacob Phillips, under the fanciful denomination of Jaycobb Fillipse, if you like, and the law won't care, because the law goes by ear; and, although it insists upon having everything written, things written are only supposed in law to have any meaning when read, which is, after all, a common-sense rule enough. So, instead of "I owe you," persons of a cheerful disposition, so frequently found connected with debt, used to write facetiously I. O. U., and the law approved of their so doing. An I. O. U. is nothing more than a written admission of a debt, and may run thus:--
15th October, 1860. To Mr. W. BROWN.
I. O. U. ten pounds for coals.
£10. JOHN JONES.
If to this you add the time of payment, as "payable in one month from this date," your I. O. U. is worthless and illegal; for it thus ceases to be a mere acknowledgment, and becomes a promissory note. Now a promissory note requires a stamp, which an I. O. U. does not. Many persons, nevertheless, stick penny stamps upon them, probably for ornamental effect, or to make them look serious and authoritative. If for the former purpose, the postage-stamp looks better than the receipt stamp upon blue paper. If you are W. Brown, and you didn't see the I. O. U. signed, and can't find anybody who knows Jones's autograph, and Jones won't pay, the I. O. U. will be of no use to you in the county court, except to make the judge laugh. He will, however, allow you to prove the consideration, and as, of course, you won't be prepared to do anything of the sort, he will, if you ask him politely, adjourn the hearing for a week, when you can produce the coalheavers who delivered the article, and thus gain a glorious victory.
2724. APPRENTICES.--By the statute 5 Eliz. cap. 4, it is enacted that, in cases of ill-usage by masters towards apprentices, or of neglect of duty by apprentices, the complaining party may apply to a justice of the peace, who may make such order as equity may require. If, for want of conformity on the part of the master, this cannot be done, then the master may be bound to appear at the next sessions. Authority is given by the act to the justices in sessions to discharge the apprentice from his indentures. They are also empowered, on proof of misbehaviour of the apprentice, to order him to be corrected or imprisoned with hard labour.
2725. HUSBAND AND WIFE.--Contrary to the vulgar opinion, second cousins, as well as first, may legally marry. When married, a husband is liable for his wife's debts contracted before marriage. A creditor desirous of suing for such a claim should proceed against both. It will, however, be sufficient if the husband be served with process, the names of both appearing therein, thus:--John Jones and Ann his wife. A married woman, if sued alone, may plead her marriage, or, as it is called in law, coverture. The husband is liable for debts of his wife contracted for necessaries while living with him. If she voluntarily leaves his protection, this liability ceases. He is also liable for any debts contracted by her with his authority. If the husband have abjured the realm, or been transported by a sentence of law, the wife is liable during his absence, as if she were a single woman, for debts contracted by her.
2726. In civil cases, a wife may now give evidence on behalf of her husband in criminal cases she can neither be a witness for or against her husband. The case of assault by him upon her forms an exception to this rule.
2727. The law does not at this day admit the ancient principle of allowing moderate correction by a husband upon the person of his wife. Although this is said to have been anciently limited to the use of "a stick not bigger than the thumb," this barbarity is now altogether exploded. He may, notwithstanding, as has been recently shown in the famous Agapemone case, keep her under restraint, to prevent her leaving him, provided this be effected without cruelty.
2728. By the Divorce and Matrimonial Causes Act, 1857, a wife deserted by her husband may apply to a magistrate, or to the petty sessions, for an order to protect her lawful earnings or property acquired by her after such desertion, from her husband and his creditors. In this case it is indispensable that such order shall, within ten days, be entered at the county court of the district within which she resides. It will be seen that the basis of an application for such an order is desertion. Consequently, where the parties have separated by common consent, such an order cannot be obtained, any previous cruelty or misconduct on the husband's part notwithstanding.
2729. When a husband allows his wife to invest money in her own name in a savings-bank, and he survives her, it is sometimes the rule of such establishments to compel him to take out administration in order to receive such money, although it is questionable whether such rule is legally justifiable. Widows and widowers pay no legacy-duty for property coming to them through their deceased partners.
2730. RECEIPTS for sums above £2 should now be given upon penny stamps. A bill of exchange may nevertheless be discharged by an indorsement stating that it has been paid, and this will not be liable to the stamp. A receipt is not, as commonly supposed, conclusive evidence as to a payment. It is only what the law terms primā facie evidence; that is, good until contradicted or explained. Thus, if A sends wares or merchandise to B, with a receipt, as a hint that the transaction is intended to be for ready money, and B detain the receipt without paying the cash, A will be at liberty to prove the circumstances and to recover his claim. The evidence to rebut the receipt must, however, be clear and indubitable, as, after all, written evidence is of a stronger nature than oral testimony.
2731. BOOKS OF ACCOUNT.--A tradesman's books of account cannot be received as evidence in his own behalf, unless the entries therein be proved to have been brought under the notice of, and admitted to be correct by the other party, as is commonly the case with the "pass-books" employed backwards and forwards between bakers, butchers, and the like domestic traders, and their customers. The defendant may, however, compel the tradesman to produce his books to show entries adverse to his own claim.
2732. WILLS.--The last proof of affection which we can give to those left behind, is to leave their worldly affairs in such a state as to excite neither jealousy, nor anger, nor heartrendings of any kind, at least for the immediate future. This can only be done by a just, clear, and intelligible disposal of whatever there is to leave. Without being advocates for every man being his own lawyer, it is not to be denied that the most elaborately prepared wills have been the most fruitful sources of litigation, and it has even happened that learned judges left wills behind them which could not be carried out. Except in cases where the property is in land or in leases of complicated tenure, very elaborate details are unnecessary; and we counsel no man to use words in making his will of which he does not perfectly understand the meaning and import.
2733. All men over twenty-one years of age, and of sound mind, and all unmarried women of like age and sanity, may by will bequeath their property to whom they please. Infants, that is, all persons under twenty-one years of age, and married women, except where they have an estate to their "own separate use," are incapacitated, without the concurrence of the husband; the law taking the disposal of any property they die possessed of. A person born deaf and dumb cannot make a will, unless there is evidence that he could read and comprehend its contents. A person convicted of felony cannot make a will, unless subsequently pardoned; neither can persons outlawed; but the wife of a felon transported for life may make a will, and act in all respects as if she were unmarried. A suicide may bequeath real estate, but personal property is forfeited to the crown.
2734. Except in the case of soldiers on actual service, and sailors at sea, every will must be made in writing. It must be signed by the testator, or by some other person in his presence, and at his request, and the signature must be made or acknowledged in the presence of two or more witnesses, who are required to be present at the same time, who declare by signing that the will was signed by the testator, or acknowledged in their presence, and that they signed as witnesses in testator's presence.
2735. By the act of 1852 it was enacted that no will shall be valid unless signed at the foot or end thereof by the testator, or by some person in his presence, and by his direction; but a subsequent act proceeds to say that every will shall, as far only as regards the position of the signature of the testator, or of the person signing for him, be deemed valid if the signature shall be so placed at, or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of it that the testator intended to give it effect by such signature. Under this clause, a will of several sheets, all of which were duly signed, except the last one, has been refused probate; while, on the other hand, a similar document has been admitted to probate where the last sheet only, and none of the other sheets, was signed. In order to be perfectly formal, however, each separate sheet should be numbered, signed, and witnessed, and attested on the last sheet. This witnessing is an important act: the witnesses must subscribe it in the presence of the testator and of each other; and by their signature they testify to having witnessed the signature of the testator, he being in sound mind at the time. Wills made under any kind of coercion, or even importunity may become void, being contrary to the wishes of the testator. Fraud or imposition also renders a will void, and where two wills made by the same person happen to exist, neither of them dated, the maker of the wills is declared to have died intestate.
2736. A will may always be revoked and annulled, but only by burning or entirely destroying the writing, or by adding a codicil, or making a subsequent will duly attested; but as the alteration of a will is only a revocation to the extent of the alteration, if it is intended to revoke the original will entirely, such intention should be declared,--no merely verbal directions can revoke a written will; and the act of running the pen through the signatures, or down the page, is not sufficient to cancel it, without a written declaration to that effect signed and witnessed.
2737. A will made before marriage is revoked thereby.
2738. A codicil is a supplement or addition to a will, either explaining or altering former dispositions; it may be written on the same or separate paper, and is to be witnessed and attested in the same manner as the original document.
2739. WITNESSES.--Any persons are qualified to witness a will who can write their names; but such witness cannot be benefitted by the will. If a legacy is granted to the persons witnessing, it is void. The same rule applies to the husband or wife of a witness; a bequest made to either of these is void.
2740. FORM OF WILLS.--Form is unimportant, provided the testator's intention is clear. It should commence with his designation; that is, his name and surname, place of abode, profession, or occupation. The legatees should also be clearly described. In leaving a legacy to a married woman, if no trustees are appointed over it, and no specific directions given, "that it is for her sole and separate use, free from the control, debts, and incumbrances of her husband," the husband will be entitled to the legacy. In the same manner a legacy to an unmarried woman will vest in her husband after marriage, unless a settlement of it is made on her before marriage.
2741. In sudden emergencies a form may be useful, and the following has been considered a good one for a death-bed will, where the assistance of a solicitor could not be obtained; indeed, few solicitors can prepare a will on the spur of the moment: they require time and legal forms, which are by no means necessary, before they can act.
I, A.B., of No. 10, ----, Street, in the city of ---- [gentleman, builder, or grocer, as the case may be,] being of sound mind, thus publish and declare my last will and testament. Revoking and annulling all former dispositions of my property, I give and bequeath as follows:--to my son J.B., of ----, I give and bequeath the sum of ---; to my daughter M., the wife of J., of ----, I give and bequeath the sum of ---- [if intended for her own use, add "to her sole and separate use, free from the control, debts, and incumbrances of her husband"], both in addition to any sum or sums of money or other property they have before had from me. All the remaining property I die possessed of I leave to my dear wife M. B., for her sole and separate use during her natural life, together with my house and furniture, situate at No. 10, ---- Street, aforesaid. At her death, I desire that the said house shall be sold, with all the goods and chattels therein [or, I give and bequeath the said house, with all the goods and chattels therein, to ----], and the money realized from the sale, together with that in which my said wife had a life-interest, I give and bequeath in equal moieties to my son and daughter before named. I appoint my dear friend T.S., of ----, and T.B., of ----, together with my wife M.B., as executors to this my last will and testament.
Signed by A.B., this 10th day of October, 1861, in our presence, both being present together, and both having signed as witnesses, in the presence of the testator:--A.B.
T.S., Witness. F.M., Witness.
It is to be observed that the signature of the testator after this attestation has been signed by the witnesses, is not a compliance with the act; he must sign first.
2742. STAMP-DUTIES.--In the case of persons dying intestate, when their effects are administered to by their family, the stamp-duty is half as much more as it would have been under a will. Freehold and copyhold estates are now subject to a special impost on passing, by the Stamp Act of 1857.
2743. The legacy-duty only commences when it amounts to £20 and upwards; and where it is not directed otherwise, the duty is deducted from the legacy.
2744. You cannot compound for past absence of charity by bequeathing land or tenements, or money to purchase such, to any charitable use, by your last will and testament; but you may devise them to the British Museum, to either of the two universities of Oxford and Cambridge, to Eton, Winchester, and Westminster; and you may, if so inclined, leave it for the augmentation of Queen Anne's bounty. You may, however, order your executors to sell land and hand over the money received to any charitable institution.
2745. In making provision for a wife, state whether it is in lieu of, or in addition to, dower.
2746. If you have advanced money to any child, and taken an acknowledgment for it, or entered it in any book of account, you should declare whether any legacy left by will is in addition to such advance, or whether it is to be deducted from the legacy.
2747. A legacy left by will to any one would be cancelled by your leaving another legacy by a codicil to the same person, unless it is stated to be in addition to the former bequest.
2748. Your entire estate is chargeable with your debts, except where the real estate is settled. Let it be distinctly stated out of which property, the real or personal, they are paid, where it consists of both.
2749. Whatever is devised, let the intention be clearly expressed, and without any condition, if you intend it to take effect.
2750. Attestation is not necessary to a will, as the act of witnessing is all the law requires, and the will itself declares the testator to be of sound mind in his own estimation; but, wherever there are erasures or interlineations, one becomes necessary. No particular form is prescribed; but it should state that the testator either signed it himself, or that another signed it by his request, or that he acknowledged the signature to be his in their presence, both being present together, and signed as witnesses in his presence. When there are erasures, the attestation must declare that--The words interlined in the third line of page 4, and the erasure in the fifth line of page 6, having been first made. These are the acts necessary to make a properly executed will; and, being simple in themselves and easily performed, they should be strictly complied with, and always attested.
2751. A witness may, on being requested, sign for testator; and he may also sign for his fellow-witness, supposing he can only make his mark, declaring that he does so; but a husband cannot sign for his wife, either as testator or witness, nor can a wife for her husband.