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LEGAL MEMORANDA.
CHAPTER XLIV.
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.