« PreviousContinue »
no clue to guide him in his decision, because he does not know what his own object is. Undoubtedly, as he proceeds, he will generally have to alter, more or less, the details of his plan; but if he be possessed of competent skill, and have sufficiently acquainted himself, before he begins, with the state of facts, it is but seldom that he will be compelled to change his general design : and it may be observed, that a general design, on which a considerable part of a draft has been drawn, should never be changed without urgent reason; because, that part of the draft which has been previously prepared, will, unless revised with the most anxious care, be inconsistent with the remainder, and will, in spite of every precaution, frequently retain discrepancies, in reference and otherwise, of the most serious nature. Of course, however, if the original design be found inapplicable, it must be changed, and the mischiefs which have been pointed out be averted, as far as possible, by a careful revision.
The second rule to be stated is immediately connected with, and is a leading reason for, the observance of the first. It is, that nothing is to be omitted or admitted at random : all that is introduced should have an object and a reason for its introduction, and should be conducive to the general design. In stating facts, we should consider the bearing of each upon our object; and, in reciting instruments, we should scrupulously select such parts only of them as are essential to our purpose. Every sentence we write should have its intent and meaning clearly and distinctly expressed; for if, from trick or care
CUIU IUC VO NO
Rule the second not should be omitted or ad. mitted at ran. dom.
lessness, we insert things which are not significant to ourselves, we may be sure they will never be intelligible or satisfactory to others. It is that carelessness, full as much as ignorance, which occasions the verbosity with which legal instruments are reproached; for the draftsman, paying little attention to the precise meaning he desires to express, seeks to conceal his inattention and inaccuracy under a cloud of words. There is nothing which affords clearer evidence of his attention and knowledge, than the absence of those long lists of synonymes and superfluities which too generally disgrace our drafts.
It might be thought that this rule is so obviously useful that it would always be attended to, did not experience prove that there is none which is more frequently neglected and violated. We find powers and provisoes recited, and trusts set forth, without being able to form a conjecture as to the motive; we see forms introduced into drafts, to which they have no application, and qualifying clauses omitted apparently from mere inattention, or because they were not to be found in the precedent which the draftsman had before him. The man, however, who intends to rise to eminence in his profession, must avoid this slovenly habit as he would an error in law; he must think why he inserts or omits every clause that occurs, and be able to give a reason that will satisfy himself and others for every step he takes. There is one branch of this rule which is of such Necessary re
sults should extensive application, and points so directly against never be stated. a prevailing error, that it deserves a distinct notice :
we mean the rule, that necessary results should never be recited; that is to say, that consequences which inevitably flow from facts previously stated, should not be expressed. Thus, if we say, A. B. died leaving C. D. his heir at law, it is absurd to add, “ him surviving;" because, unless C. D. survived A. B., he could not be heir at law. It has, however, been very usual to transgress this rule, especially in the case of legal inferences; thus, it has been constantly the practice to recite that “A. B. died leaving C. D. his heir at law, and that the said C. D. thereby became seised of or entitled to the said messuage &c.;" and in reciting mortgage transactions we constantly find it stated that “ the said sum of £-- was not paid on the day appointed for the payment thereof, whereby the estate of the said [mortgagee] became absolute at law but redeemable in equity.” Now, in these cases the inferences or results stated are elementary rules of law, with which every one is acquainted, and the expression of which, therefore, gives no information whatever. The draft is quite as intelligible without the statements as with them, and for that reason they should be omitted (a).
We have confined the application of the rule to
(a) The plan of stating legal must compel him to admit or to inferences from the facts recited, deny the inference. Of course, probably owes its origin to an no such use can be derived in imitation of bills in equity, in conveyancing from the practice, which it is said to be desirable to but it will, probably, be pretty state them, for the sake of found- generally retained, as most equity ing on the statement an interro- draftsmen, at the present day, gatory to the defendant, which practise conveyancing likewise.
recitals; but there can be no doubt that it does bear as cogently on the operative part of the draft, although in practice it is not enforced with regard to that part with equal strictness; and the source of the relaxation is the abundant caution which conveyancers exercise, and which leads them to endeavour by fulness of explanation to exclude the possibility of the necessity of judicial interpretations of their drafts. The motive is a good one, and the precaution often reasonable; but still we cannot hesitate to pronounce that, even in the operative parts of our draft, if the inference, whether legal or otherwise, be certain, we ought not to encumber our draft by setting it forth.
In the application of our forms, attention should be given, to see that the inferences stated in the old forms have not since been rendered superfluous by judicial decision. Thus, on the old principle that estoppel could not be by recital, it was usual to add, after reciting a fact which was particularly intended to bind a party by way of estoppel, “ as he (the party] doth hereby admit and acknowledge,” but this addition is now, by the cases (a) which have decided that estoppel may be by recital, rendered unnecessary. It is another branch of the second general rule, The statement
of negatives that the statement of negatives should generally be should be avoided; thus, in creating a tenancy in common, it is proper to make the habendum to the grantees “ as tenants in common,” but it is very superfluous
(a) Lainson v. Tremeere, 1 Ad. & EH. 792; Bowman v. Taylor, 2 Ad. & Ell. 278.
to add, as is frequently done, “and not as joint tenants;” thus, too, after stating a mortgage, it is needless to recite that the loan was not repaid on the day appointed; it will be assumed that it was not repaid unless the positive fact of repayment be stated. Again, when we have mentioned two or more co-trustees and one dies, we recite his death, but we do not add, “ leaving the said [co-trustees] him surviving,” because we assume that they continue to live till their death is mentioned. There is, however, a class of cases in which we recite negatives, and that is, when subsequent events depend on a particular event not having happened, and nothing has been mentioned in the draft from which it can be inferred whether the event has or has not happened. Thus, in the case of dealing with an estate which is limited in default of appointment under a power, or in default of issue, it is usual to recite that the power has not been exercised, or that there has been no issue. But the deviation from the rule even in these cases (or at least in the first instance), is of doubtful propriety, and is not followed in many similar instances. As in dealing with an estate which has been in settlement, it is usual to recite not that such and such of the powers have not, but that such and such of them have been exercised.
The third rule for the draftsman's guidance is, that the order of his draft should be strictly logical. This rule follows directly from the general principle, that legal instruments should be distinct and clear in their testimony, since no composition can be readily understood which is not logical in its order.
Rule the third, that the order of the draft should be logical