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 L50 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 L20 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 L20.

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.

L10. 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 L2 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 prima 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 L20 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.

THE END