SIR FREDERICK POLLOCK, BART., LL.D., CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD. - 3 RUSSELL-2 SIMONS 5 BARNEWALL & CRESSWELL- LONDON: SWEET AND MAXWELL, LIMITED, 3, CHANCERY LANE. BOSTON : LITTLE, BROWN & CO. 1897. PREFACE TO VOLUME XXIX. In this volume Doe d. Garnons v. Knight, p. 355, is a case not very often applied, but of great interest and some difficulty on the point of principle. The rule there laid down is, in the words of the Court (at p. 362), that where an instrument is formally sealed and delivered, and there is nothing to qualify the delivery but the keeping the deed in the hands of the executing party, nothing to shew he did not intend it to operate immediately, it is a valid and effectual deed, and delivery to the party who is to take by it, or to any person for his use, is not essential. This has been fully confirmed within recent times by the House of Lords in Xenos v. Wickham, L. R. 2 H. L. 296 and there can be no doubt that it is in conformity with the whole treatment of deeds by the earlier Common Law, though we gather from American writers that it is now rejected, on the ground of inconvenience, by most jurisdictions in the United States. Apart from cases of fraud and the like, and also from cases where the requirements of public policy have intervened in modern times, a man's deed is conclusive against himself. If he has expressed himself to grant, or to be bound, without conditions, he may not allege that the acceptance or consent of the person to be benefited, or any other person, was necessary for the conveyance or obligation to be complete. At first sight this is inelegant or even anomalous, when we consider it with regard to the general rules of the modern law of contract. It has seemed so to the present writer, and to learned friends for whose opinion he has the greatest respect. An offer becomes a promise only when it is accepted, and in the meantime (subject to the rules about communication, which we have not now to discuss) it can be withdrawn. That is among the fundamental points of the common-law system. In the region of simple contracts our courts (and in this term I include the leading American courts) have acquiesced in obvious instances of hardship, and have left open obvious opportunities for conduct amounting to fraud in the eyes not only of moralists, but of business men, rather than admit the notion of a merely one-sided obligation. In this last part of the history of the law, as well as in our whole doctrine of construing promises, lies the objection to Mr. Harriman's extremely ingenious proposal to define the obligation of contracts in general in a form that leaves. mutuality out of sight. The question our law loves to come round to, under every disguise and variation of circumstances, is not what a man said in terms, but what his words or conduct, or both together, gave the other party reasonable ground to expect. When we light upon a one-sided set of mortgagor's covenants, as in the case in hand (where we may assume that the deed was in common form and contained the usual covenants), or, what is stronger, on a formally, though not substantially, one-sided contract of insurance as in Xenos v. Wickham (where the real preceding agreement, being on an unstamped "slip," could not be proved), we seem driven to say that either there is a promise which was never an offer, and is not related to any offer, or there is an offer which cannot be revoked. But if we say this, we overlook the original nature and office of a deed. The E. A. Harriman, Elements of the Law of Contracts. Boston. 1896. writing under seal has been a thing of the commonest uses for centuries. The seal itself has long ceased to be the party's authentic token; the delivery is neither public nor ceremonial, nor even bound to any particular form. But in the Anglo-Norman time, and later, the deed was a thing of exceptional solemnity; a private record it might be, but solemn and a record still. Its very purpose was to be conclusive. It was just to avoid any question how or why he should be bound that a man declared himself under his seal to be actually bound. Probably the Norman -in other words, Continental and Romanized-conception of an authentic document was reinforced by the Germanic archaism of English procedure. A deed was one mode of proof, obviously the most desirable mode when it could be had, clearing away as it did the uncertainties of the trial by combat or oath. But the procedure of the English courts in existence at the date of the Norman Conquest knew nothing of any proof that was not conclusive. The party who first succeeded in being admitted to definitive proof was master of the cause unless he made a slip in the formalities, or the conscience of his oath-helpers broke down; the former cause of failure was probably more common than the latter. Thus in the early Middle Ages the intrinsic operation of a deed could hardly be distinguished from its probative force. We who have the benefits of more advanced legal ideas and terminology can now see that what is before us is not an anomalous rule of law, but a rule of estoppel inherent in the nature of a deed. The grantor's solemn declaration against himself covers all ordinary conditions of validity, and precludes their discussion. The statement, once rather frequent, that consideration for a deed is presumed, is erroneous, not because the principle would not amply suffice to cover this deduction if it were wanted, but because the effect of a |