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PRECEDENTS IN CONVEYANCING.
INTRODUCTION. The different classes and parts of legal instru- object of the
. , introduction to
ments, according to their technical divisions, and the explain the use rules of law which apply to them, are discussed in a dents.prece different part of this work (Vol. I. Books 2 and 3); but it has been deemed expedient to prefix to this part some account of the rules by which the draftsman ought to be guided in the framing of legal instruments, because a right comprehension of these rules is necessary, in order to use, with advantage, the precedents which follow. The subsequent observations assume, that the reader has acquired, from the ordinary sources, a competent knowledge of law; as it is in vain for any one to hope to become a skilful draftsman unless he is tolerably acquainted with the law, so far as it is connected with conveyancing. Without a fair knowledge of the law, of course he can only copy from what others have done before him, and is exposed, at every step, to the danger of falling into errors, the existence of which he cannot perceive.
It seems to be often considered that the business dangerof
relying on pre
of the draftsman is a very easy one; that he has cedent* alonelittle more to do than to find an appropriate prece
VOL. III. B
dent, and then, by changing names and dates, to construct the new instrument required: and, indeed, it is true, that there is a class of draftsmen who draw from the precedents from which their predecessors drew, without knowing why or wherefore, who have little or no knowledge of the commonest practical rules of their art, and not an idea of those general rules or principles on which it depends. But men who trust thus implicitly to their precedents, and remain in ignorance of the rules of their art, are not fit objects of imitation: they may be enabled, by good fortune, to avoid doing any material mischief, so long as they are confined to every-day matters; but when new combinations of circumstances arise, of which precedents afford no example, they are either totally unable to proceed without assistance, or fall into the most pernicious mistakes. Even under the most favourable circumstances their drafts are rude and undigested; as discreditable to their authors as they are disagreeable to peruse and difficult to understand. We recommend a more laborious, but a safer and more creditable, course; and our present object is to explain those principles and rules by which our business is conducted, so as to enable the student of these volumes to employ the precedents they contain in a safe and profitable way; not copying servilely from the page before him, but adapting the forms to the exigency of the case he is required to meet. kgail^tTu^ The great principle on which all legal instruserveV^dence" ments are, or ought to be, framed, is perfectly simple tinct^)^!' and intelligible, and is immediately suggested by the consideration of the object with which such instruments are prepared. This object, of course is, that they may bear witness—may preserve testimony clearly and distinctly respecting the matters to which they relate; and therefore, all that the draftsman has to accomplish, is to state the intentions of the parties in such language as to render them clear and free from ambiguity. To do this, he must first explain the relation of the parties to the subject-matter at the date of the instrument, and then set forth what is intended to be done. Of course, he must follow the forms which the law prescribes: but he must make those forms subservient to his purpose; not be led away from his purpose by the consideration of the forms. It will, indeed, be obvious on reflection, that all instruments, when disembarrassed of their technical divisions, are divisible into two parts :—the first, which explains how the subject-matter stands in relation to the parties who propose to deal with it; and the second, which explains what they intend to do. The first part, in ordinary instruments, prepared according to English forms, includes the parties (a) and recitals; the se
(a) In a scientific view, there stand in our drafts, convey no inis no occasion for parties to legal formation, and are, in fact, merely instruments; but they are abso- a repetition of the names in the lutely necessary, according to subsequent parts of the instruEnglish forms. Some of the ment, with the addition of deforms, however, given for con- scriptions. It is very usual, veyances under railway and other however, to add short descripacts of parliament, dispense with tions of the characters in which the parties, without in anywise the parties act, in order to enable injuring the symmetry of the a person who reads them to form draft. The parties, as they now an idea of the nature of the draft. cond, all the subsequent parts of the instrument. The best illustration of this division is a simple deed of arrangement, because it is free from technical forms. In a deed of this nature, the parties are stated in such order as may be convenient, and are followed by recitals of the instruments and circumstances affecting the subject-matter, and the relation of the parties thereto, including an account of the disputes, doubts, and difficulties which have arisen or been suggested, and a statement of the desire of all parties to enter into the subsequent arrangement. Then follows the operative part, which simply bears witness, that it has been agreed by the parties that the subject-matter shall be disposed of in the way it proceeds to mention. If, however, the arrangement be of a complicated nature, the general terms first stated may require to be qualified, and this is effected by means of powers, provisoes, and other like clauses, which complete the evidence of the intentions of the parties, and form subordinate divisions of the second part of the instrument. So, too, it may be necessary to add covenants, that particular persons shall do particular acts, and these will form another division of the second part. And if we dissect any other species of instrument, we shall find that all the different technical divisions which our law or practice prescribes, may be arranged under one or other of the two leading parts we have mentioned. There are, indeed, one or two apparent exceptions to the foregoing rules, but which do not affect the general application of them. One of these is, that when a person is seised in fee simple of an estate, and intends to convey the inheritance, the recital of his interest in the estate is not inserted in the instrument; but this is because it is understood, that, in the absence of recital, the grantor is assumed to be seised in fee simple; and because his subsequent contract to sell and his conveyance of the inheritance necessarily imply the same fact. So in wills, too, recitals are comparatively rare, because, generally, the testator either disposes of all he possesses, or has the absolute ownership of all he devises or bequeaths. In leases, recitals are generally wanting, partly for the foregoing reasons, and partly because, as the lessor does not shew the nature of his interest or power, it is impossible to explain it in the instrument. On principle, however, leases ought to contain precisely the same recitals as any other instrument of the like nature.
Recollecting that the object of legal instruments Rule the first—
'P J ° before a draft is
is to bear witness clearly and distinctly respecting begun, the
the matters to which they relate; and that clearness should be conceived.
and distinctness can be attained only by proceeding on a fixed plan, and in regular order, we have no hesitation in laying down the first rule on which the draftsman must act. It is this—that, before any draft is commenced, the whole design of it should be conceived; for if a man proceed without any settled design, it is manifest that his draft will be confused and incoherent; that many things will be done which ought not to be done, and many left undone which ought to be done. He will be puzzled at every step of his progress in determining what ought to be inserted and what to be omitted, and will have