No. 2426. Book 4, tit. 1, chap. 1, sec. 4. No. 2426. acts have long, by common consent, of merchants and courts of all nations, had peculiar weight and respect attached to them. SECTION 4.-OF CONVEYANCERS. 2426. A conveyancer is one who makes it his business to draw deeds of conveyance of lands for others. These are not officers appointed by law, any one having the right to exercise that profession. It is usual for conveyancers to act as brokers for the seller. In these cases, the conveyancer should examine with scrupulous exactness the title to the lands which are conveyed by his agency, and, if this be found good, that the estate is altogether unincumbered. In cases of doubt, he should always suggest to his employer to take the advice of counsel. Conveyancers also act as brokers for the loan of money on real estate, secured by mortgage. In these cases, the same care should be observed, that the title is good, and the property is clear of incumbrances. For this purpose the conveyancer should make a brief of title, that is, an abridgment of all the patents, deeds, indentures, agreements, records, and papers relating to the estate. In making a brief of title, the practitioner should be careful to place every deed and other paper in chronological order. The date of each deed; the names of the parties; the description of the property, and all covenants affecting the estate, should be particularly inserted. A vendor of an interest in realty ought to have his called engrossing. When thus engrossed, the contract was signed by the parties, when they could sign, if not, mention was made of that fact. As these contracts required to be proved in court in case of dispute. it became usual, and afterward it was required, that they should be recorded on the public registers, in order to give them complete authenticity. Merl. Répert. verbo Notaire, § 1; Encyclopédie de D'Alembert, verbo Tabellion; 6 Toull. n. 211, note. No. 2427. Book 4, tit. 1, chap. 2. No. 2428. title investigated, abstracted, and evidence in proof of it, ready to be produced and established before he sells, for if he sells with a confused title, or without being ready to produce deeds and vouchers, he must be at the expense of clearing it.(a) He is bound, at his own expense, to furnish the purchaser with an abstract of his muniments, and deduce a clear title to the estate. (b) CHAPTER II.-OF THE BRIEF OF THE CASE. 2427. A prudent practitioner and professional adviser, will, as soon as he has been employed in a case, obtain a correct statement of the facts; for this purpose he ought to put in writing all questions in the slightest degree connected with the case, not forgetting such as, if answered in the affirmative, would be most against his client; this is requisite, because many clients tell only the side of the case most favorable to themselves. These questions should all be answered fully in writing. Not satisfied with this examination, the attorney should read all papers connected with the case, and examine all the witnesses within his reach, and make memoranda of what they say. 2428. Being thus possessed of the facts, the attorney should make a brief of the case, that is, a detailed statement of the facts; and by that means ascertain what is wanting to support the plaintiff's case, when he acts for the plaintiff. When he is the attorney of the defendant, his brief should extend to all the pleadings, and also to the points of law or questions raised by the issue. Such a full brief should contain : (a) 1 Chit. Pr. 304; Wilson v. Allen, 1 Jac. & Walk. 623, 624; Sugd. on Vend. 294. (b) Sugd. on Vend. 294. No. 2129. Book 4, tit. 1, chap. 3. No. 2429. 1. A statement of the names of the parties, and their residences and occupations, the character in which they sue and are sued, and wherefore they prosecute or resist the action. 2. The name of the court where the action is brought, the number and term of the action, and the names of the respective attorneys. 3. An extract of the docket entries. 4. A clear and distinct abridgment of all the pleadings. 5. A regular, chronological, and methodical statement of the facts, in plain common language. 6. A summary of the points or questions in issue, and of the proof which is to support the issues, mentioning specially the names of the witnesses by which the facts are to be proved, or if there be written evidence, an abstract of such evidence. 7. The personal character of the witnesses should be mentioned; whether their moral character is good, bad or doubtful, whether they are naturally timid or over zealous, whether firm or wavering. 8. When known, the evidence of the opposite party, and such facts as are calculated to oppose, confute or repel it. Perspicuity and conciseness are the most desirable qualities of a brief, but when the facts are material they cannot be too numerous; when the argument is convincing and weighty, it cannot be too extended. CHAPTER III.-OF THE MEANS OF SECURING EVIDENCE. 2429. After having made a brief, it is easy to perceive what is requisite to enable the plaintiff to make out his case; and what the defendant needs to complete his defence. Before suit is brought, both parties may do many acts which will enable them, the one to No. 2430. Book 4, tit. 1, chap. 3, sec. 1. No. 2432. maintain his action, and the other to establish his defence. SECTION 1.-ACTS TO BE DONE BY PLAINTIFF BEFORE ACTION BROUGHT, TO SECURE EVIDENCE. 2430. It may be premised that even before a cause of action arises, many acts may be done to entitle the plaintiff to recover, after it has arisen, or which may defeat the plaintiff. A purchaser of personal goods should take possession of them, or, if they are in the hands of a third person, he should give notice to him that he has become the purchaser of them, and, after such notice, the possessor will part with them at his peril: for the same reason, an assignee of a chose in action should give notice of the assignment to the debtor, and all securities for such a debt or chose in action should be required to be delivered to the assignee. The want of this precaution may subject the assignee to a loss, for, until notice, the assignor would be entitled to receive payment, or, if he assigned to another person who had no notice, he would be entitled to the chose in action, if he gave the first notice, in preference to the first assignee, and acquire a better equity. 2431. The purchaser of real estate should see that his title is clear and free from incumbrances, and place his deed upon record, within the time prescribed by law. The deeds should also be delivered to the purchaser; for if the vendor should retain them, and afterward sell to a third person, who had no notice of the first sale, and the deed was not recorded, the latter would be entitled to the property if his deed was first recorded. 2432. When a party is bound to fulfil a condition precedent to entitle himself to the performance of a contract, he must be cautious to perform such condi No. 2433. Book 4, tit. 1, chap. 3, sec. 1. No. 2434. 2433. In some cases, in order to make a party responsible, notice must be given to him and a request that he should fulfil his engagement; for example, notice of non-payment of a bill of exchange must be given to an indorser to hold him responsible. As a general rule, whenever the defendant's liability to perform an act depends on another occurrence which is best known to the plaintiff, and of which the defendant is not bound to take notice, the plaintiff must prove that due notice was in fact given. (a) 2434. It is advisable, if not necessary, in many cases to give notice, make demands, and require explanations, before action brought. Not unfrequently, in such cases, litigation may be avoided, but if it has to be resorted to, the party may so place himself in the right, that, on this account alone, he will have the favorable ear of the court and jury, and, in some cases in equity, he may throw the costs on the opposite party. When a man's wife, child, or apprentice is unlawfully detained by another, a demand for the restoration of them should be made. (b) If goods have been illegally taken away, or wrongfully detained, it is proper to make a demand of them, before action brought, unless they have been taken and held in such a manner as to amount to a conversion. Notice must be given to a sheriff not to sell the goods he has levied upon, when they belong to another than the defendant.(c) Before making an entry on the land of another to carry away your goods, a request should be made to him to deliver them to you. (d) And before entering upon the land of another to abate a private nuisance, a request to remove it should first be made.(e) (a) Lundie r. Robertson, 7 East, 231. (b) Fawcett r. Beaver, 2 Lev. 63; Winsmore v. Greenbank, Willes, 582. (c) Dean v. Whittaker, 1 Car. & P. 347. (d) Anthony v. Hany, 8 Bing. 191. (e) Lonsdale v. Nelson, 2 Bar. & Cr. 302, 311; Willes, 583. |