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sometimes regulated by statute, which, in the absence of express contract apportions the taxes between the lessor and lessee. The expression in the lease, (form No. 14,) “and also all taxes &c., that may be payable &c. during said term, &c." received judicial construction in the case of Wilkinson vs. Libbey, 1 Allen, 375, in which case it was held, not to in'clude taxes assessed before the commencement but payable during the term, and to include taxes assessed during the term, but payable after its expiration. Those preferring such entire accuracy of expression as will exclude the necessity of judicial construction, will, perhaps, select the phrase, "which may be assessed upon said premises during said term:" and, while the former is more commonly used, the latter has the advantage of being more certain and definite. It is well, in all cases, to add an exception of assessment for permanent improvements.

There are usually covenants against alterations or additions without consent of the lessor, and against waste. The former will not prevent the lessee from making repairs without consent; and the latter would receive the same construction as when applied to a mortgagor retaining possession, by which, as we have seen, he may be restrained from the cutting of timber trees, doing permanent injury to the building, &c.

The covenant, "to allow the lessor to enter to make repairs, &c.," would seem to be important to the lessor, only when the lease covers a part of the building, which it may become necessary to repair for the safety of the rest of the building.

We have stated that the landlord is not, in the absence of express covenant, bound to make repairs: so the tenant, if there be no agreement in relation thereto, is bound only to make ordinary repairs, such as would keep the premises wind and water tight; and to repair windows and doors broken by him; but not to make lasting repairs. Kent, vol. 4, 110; 10 Allen, 121; 4 Cush., 384.

The lessor is not entitled to enter and turn out the tenant on account of non-payment of rent, unless that right is expressly reserved; and only then, in strict accordance with the stipulation contained in the lease. Sometimes the lease.

contains, in connection with the clause reserving the right of entry by the lessor upon breach of covenant by the lessee, the phrase, "and therefrom expel and remove the lessee, forcibly, if necessary, &c." These words do not authorize such degree of force as would amount to an inexcusable assault or a breach of the peace, but only such as would sustain a plea of justification by the lessor, that he "gently laid his hands upon the lessee and removed him, using no other or greater force than was necessary therefor." If the landlord commit a breach of the peace, he will be liable in trespass, and also to a criminal prosecution therefor. What, under such circumstances, will amount to a breach of the peace, is a question of some difficulty.. Probably, the same degree of force and violence, which would amount to "forcible entry and detainer," under statutes existing in most of the States, would be held to constitute a breach of the peace. This subject is discussed by Blackstone, vol. 4, p. 148; in Stearns on Real Actions, p. 120; and in the following cases, Benedict vs. Hart, 1 Cush., 487; Saunders vs. Robinson, 5 Met., 343; Fifty Associates vs. Howland, 5 Cush., 214, 218.

The stamps required upon leases are, at the rate of fifty cents for the first three hundred dollars, and the same amount for each two hundred dollars additional rent reserved. If the lease be executed in duplicate, instead of one original and copy or copies thereof, each part should be stamped. An original and copies are of equal practical use, as the copies may always be used in evidence, if the party having the original fails to produce it upon reasonable notice. Where, as in forms Nos. 6 and 7, the lease consists of separate agreements, by the landlord and by the tenant, as both constitute but a single instrument of lease, one stamp, upon the part signed by the landlord, would, probably, be held sufficient. Sometimes, an agreement stamp is put upon the other part.

An assignment of a lease under seal should be by a sealed instrument: otherwise it will transfer only the equitable interests, and the assignee cannot bring an action upon the

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covenants in his own name. Hunt vs. Thompson, 2 Allen, 341.

As to notice to quit, none is required at the expiration of the lease for a definite time, whether written or verbal; or, second, where by the terms of the lease the tenancy is upon condition, either precedent or subsequent, or is to expire upon the happening of some contingent event, and the condition has been broken or the contingency has arisen; or, third, where it is agreed that the tenant shall leave the premises, if he fail to pay his rent quarterly in advance, or, that the tenancy shall cease when the estate shall be sold. When a notice is required and when not, and what particular form and service of notice is sufficient, are matters of some nicety, and should ordinarily be entrusted to the care of a competent lawyer, unless the landlord or his agent is unusually familiar with the business, by having in his care numerous tenancies. The subject has been discussed in the following cases: Prickett vs. Ritter, 16 Ill., 96; Currier vs. Purley, 4 Foster, 219; Currier vs. Barker, 2 Gray, 224; Howard vs. Merriam, 5 Cush., 571; Elliott vs. Stone, 12 Cush., 174; Critch vs. Crocket, 5 Cush., 176; Bartlett vs. Greenleaf, 11 Gray, 98; McFarlan vs. Chase, 7 Gray, 462, and in numerous other

cases.

Forms of such notice are hereto subjoined. The notice should usually fix a day or time when the tenant is to quit, by definitely denoting the day, or naming the time with reasonable exactness and certainty. See Currier vs. Barker, 2 Gray, 224.

A notice, which should require the tenant to quit in a certain number of days" from the service of this notice," is not valid, unless so served as to enable the tenant to know when the service was made.. For example: it would be bad if left at the house of the tenant during his absence for several days. Hultain vs. Munigle, 6 Allen, 220. The mode of service of notice, what shall dispense with notice, &c., &c., is usually regulated by statute, in most of the States, as to details; and I shall here only attempt to give such general principles as are applicable universally.

An "estate at sufferance" is the technical name of that estate which a man has, who holds over after the termination of his estate: as, where one having a lease for a year, continues to hold after the year expires. This estate is a mere naked possession, and exists only during the sufferance of the landlord, who may enter at any time, (using, however, no such force as would amount to a breach of the peace or an assault,) and remove the tenant. Upon such holding over, the law implies a new contract, as to rent, similar in its terms and conditions to the original one, but not one which will continue the liability of a surety for rent, &c., unless in the case hereinbefore referred to.

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Where a tenant enters into possession with consent of the landlord, without an express bargain, he is tenant at will. It was determined very early in England, at common law, that estates at will were equally at the will of both parties, and neither of them was permitted to exercise his pleasure in a wanton manner, nor contrary to good faith and fair dealing. That is, the landlord could not determine the estate after the tenant had sowed and before he had reaped, and thereby prevent the lessee from taking his crops: but the possession was held to remain of right in the lessee, till his crops should be harvested. Nor could the tenant, before the rent day should arrive, determine his estate and deprive the landlord of his rent. These estates, with the incidents which belonged to them at common law, are almost extinguished. Wherever they now exist, they are terminable only upon reasonable notice, unless specific statute provisions regulate the period of notice. There is no uniformity of usage or rule, as to what (in the absence of statute regulations) this reasonable notice should be. In some instances, the estate is a tenancy from year to year, which can be terminated only upon six months notice.

A notice of three months is not infrequent, and, in some of the States, the rule has been adopted of making the length of notice cover the same period as is the interval between payments of rent.

Several forms of notice to quit are given in the subjoined specimens.

SECTION 2.

Of Fixtures.

A fixture, in the legal sense, is a personal chattel, in some way placed upon, and connected with, the realty; but so connected, or annexed, that it may be removed by him who placed it there. In common speech, men say a thing has become a fixture, meaning that it has become immovably fixed. Land was originally the important species of property, and personalty was of small consequence, and it was early made an invariable rule, that a thing once attached to the realty could not be removed. Personal property has now changed places with real estate, and become the more valuable and important possession; and with the increasing value, the rule, requiring that once connected with the realty it shall remain, has been from time to time relaxed.

The earliest relaxations were made in favor of what were called "trade fixtures," in which class was included all things which the tenant has affixed to the freehold for the purposes of trade or manufacture. A liberal privilege of removal has been allowed to the tenant, in cases of this kind. He has been permitted to remove coppers, tables, partitions, fats used by him as a soap boiler, chimney pieces, and even wainscoting, if put up by himself; cider mill and press, erected by him on the land; pump, put into a well by him; a building, resting upon blocks and not let into the soil; machinery for spinning and carding, though nailed to the floor; blinds, verandahs, gas fixtures, gas pipes in the street, a hydraulic press fixed in the ground, walled up with solid masonry and nailed to the building, it being necessary to the business for which he occupied the building.

Probably, the courts would hold, in most States in the Union, that any implements or instruments of trade, no matter how affixed to the freehold, may be taken away by an out-going tenant, whenever he can remove them, and restore the premises substantially to their original condition. In

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