« AnteriorContinuar »
with regard to the “State” and other ballots. This is
NEW YORK COURT OF APPEALS DECISIONS. the only legislation about folding. There is no statute, except this, “of a local nature," which directs a folding so as to show the nature of a ballot, but the
I THE following decisions were handed down Tuesday, word is “ endorsed” or “indorsed."
1 Nov. 16, 1880: OGDENSBURG, N. Y., Nov. 6, 1880.
Judgment affirmed with costs - Smith v. Holbrook;
Green v. The Homestead Fire Insurance Company. JUDICIAL NEPOTISM.
Judgment reversed and new trial granted, costs to Editor of the Albany Law Journal:
abide event-Morton v. Sweet: Van Cott v. Van Brunt. The trial justice alluded to by your correspondent | Judgment of General Term reversed and that of “Lawyer" in the LAW JOURNAL of October 2d, who Special Term affirmed, with leavo to defendant to anofficiates as constable to his own court, is certainly not swer on payment of costs - Wheeler v. Connecticut acting according to the doctrines of tho English com Mutual Life Insurance Company. - Judgment affirmed mon law.
and judgment absolute for respondent on stipulation In Bacon's Abridgment it is remarked that "offices with costs – Webb v. Buckelew. - Order affirmed are said to be incompatible and inconsistent so as to be with costs - Coit v. Campbell, Eaton v. Wells. -Orexecuted by the same person, when from the multi der affirmed without costs – Van Cott v. Van Cott. plicity of business in them they cannot be executed Order of General Term reversed, and judgment with caro and ability, or when they being subordinate Special Term affirmed with costs – Hier v. Abrahams. and interfering with each other it induces a presump - Appeal dismissed with costs-Devlin v. The Mayor; tion, they cannot be executed with impartiality and Grant v. Griswold, Douglas v. Haberstro; Eldridge v. honesty. * * * So if a forester by patent for his
N. Y. & Brighton Beach R. R. Co.; Clarle v. Lourie.life is made justice in eyre of the same forest pro haec Appeal dismissed without costs - People ex rel. Geer v. vice, the forestership is become void; for these offices are Common Council of Troy. Motion denied without incompatible because the forester is under the correc
costs- In re Guardian of Hubbard. - Motion denied tion of the justices in eyre and he cannot judge him with $10 costs — Tuthill v. Morris; People est rel. Smith self. * * * A coroner made sheriff ceases to be
v. Board of Police Commissioners of New York.coroner, so a parson made a bishop."
Motion granted with $10 costs - Argall v, Jacobs. Iu a note to tbis portion of the text, a case is mentioned where upon a writ of error the error assigned
IN COURT OF APPEALS, Nov. 16, 1880. was that the venire facias was to two bailiffs, and that
It is ordered, That the Court take a recess from Fri. the court was held before the mayor and these two bailiffs, so that the bailiffs being judges of the court
| day, the 19th inst., until Monday, the 29th inst., at could not be officers; but it is stated that the appellate
10 o'clock A. M., at the old Capitol in tho City of "court conceived it might be good by custom and not
Albany, then to proceed with tho call of the present error; for the judges are not the bailiffs only, but the
E. O. PERRIN, Clerk. mayor and bailiffs.” It is noted that this case, arising on a writ of error, does not directly meet the question. See Bacon's Abridgment, Offices and Officers. (k.)
NOTES. Lord Coke, in his fourth institute, remarks that it would be well were two offices never to be held by the MHE New Zealand Jurist, about whose fate we anxsame person.
T iously inquired some time ago, has been disconIn this opinion Mr. James Ryan of this city does not tinued. Its place is supplied by Ollivier, Bell & Fitzappear to have concurred. He having been appointed gerald's Reports of Cases in the Court of Appeal and to and accepted the office of deputy clerk of the court Supreme Court, of which wo have the first two of special sessions for the city and county of New monthly parts. Theso reports are well executed. — York, subsequently, while being such clerk, accepted | Tho Massachusetts Law Reporter has been united with and entered upon the performance of tho duties of the tho Banker and Tradesman, under tho namo of the somewhat incongruous office of member of tho State Bunker and Tradesman and Massachusetts Law Re. Legislature.
porter. We have found tho Reporter very timely and On an application for a mandamus to compel pay-|
useful. ment to him of his salary as clerk which had accrued while he was holding office as a legislator, Folger, J.,
The administration of justice in this State is almost in tho Court of Appeals, observes that “physical im
as much a farco in many cases as the long-drawn conpossibility is not the incompatibility of tho common
test known in history as Jarndyce v. Jarndyce, and law, which existing, oue office is ipso facto vacated by
tho machinery of courts not entirely unlike the maaccepting another. Incompatibility between two offices
chinery of the Circumlocution office. It is not the is au inconsistency in the functions of the two; as
fault of tho judges. They do not find any pleasure in judge and clerk of the same court - officer who pre
passing upon motions without point, and demurrers sents his personal account subject to audit, and officer
without foundation, or in wading through oceans of wbose duty it is to audit it. * * Where one office is
lawless slush in bad spelling, worse grammar, and the not subordinate to the other, nor the relations of the
worst possible substitute for logic — styled “briefs" by one to the other such as aro inconsistent and repug
their creators. Judges submit to these things, as do nant, there is not that incompatibility from which tho
attorneys and litigants who wish to terminate their law declares that the acceptance of the one is the vaca
litigation, simply because they cannot help it. The law tion of the other." People ec rel. Ryan v. Green, 58
seems to givo to parties the power to delay justice N. Y. 304; see, also, Rec v. Buteman, 2 T. R. 777 ; Milward v. Thatcher, id. 81.
until litigants dio of despair, and fraud goes unwhipped The case in 58 N. Y. may perhaps be thought to and crime unpunished by reason of that delay; and have gone very far in maintaining the common law judges, of themselves, are powerless to correct the validity of the holding, by the same person, of offices evil. Upon tho average, fivo years' time is required to physically incompatible. But it fully maintains the
dispose of an ordinary case, if the parties contest it invalidity of holding offices, the functions of which are inconsistent.
from the Common Pleas to the Supreme Court; and in This trial justice has been too eager in the pursuit the event of a reversal and remanding as much more of official honors.
time may elapse beforo the final adjudication. – Ohio NEW YORK, November 8, 1880.
C. W. S. Law Journal.
The Albany Law Journal.
evidence is to exclude no one, who believes in and understands the sanctions of an oath, for any reason whatever. See Alb. L. J., passim.
ALBANY, NOVEMBER 27, 1880.
Third: In regard to the reformation of criminals.
On this point he says: “In addition to the penal MHE address of President Bristow, at the late statutes which have been passed, some States have I meeting of the American Bar Association, of
endeavored to drive out and destroy the devil — which we have given an abstract, and which is now who, according to the old form of indictment, inbefore us in full, is an excellent production. In
stigates all offenders against the law to the commisthree points, especially, we have the pleasure of sion of crime — by the enactment of laws looking agreeing most heartily with the president. First,
to the reformation of criminals. Iowa, Massachuin regard to “the pernicious practice of special leg
setts, and Wisconsin, have established rules providislation.” On this point he remarks: “It was ing for the dir
ing for the diminution of the terms of imprisonment hardly befitting the dignity of the Legislature of a
| of convicts in case of good behavior. These rules sovereign State to occupy its time with the act, to
enable the prisoner to determine precisely at what be found in the last installment of the laws of Vir
date his term will expire in case his conduct gives ginia, which empowers the principal of Turkey
satisfaction to the keeper of the prison, and whero Cove High School, situated at Turkey Cove, in the
the term is a long one, a very considerable deduccounty of Lee, * * * to confer such certi tion is made. Such rules seem well calculated to ficates of proficiency and distinction as he may
secure order, but it would be expecting too much of think proper to promote the cause of education.' them perhaps to anticipate any real change of Nor was it exactly fair to the legal profession for heart' among prisoners as a consequence of their the Legislature of South Carolina to pass two spe
adoption. They undoubtedly create a conviction cial acts admitting Jolin Smith and Thomas Jones
that 'honesty is the best policy,' while in jail, but to the bar, although one was under twenty-one years
do little to make it plain that the same rule holds of age, and the other had not completed the pre
outside the prison walls. The Massachusetts Legisscribed two years' course of study.
lature has embodied a novel idea in a statute providing for the appointment of probation officers,'
so called. It is made the duty of these officers to Second : In regard to the testimony of husband | examine into the cases of persons arrested for crime, and wife. On this point he observes: “In New and determine whether they may reasonably be exYork, husband and wife are in general competent pected to reform without punishment. If they so witnesses for or against each other in civil causes. recommend, the court may order the prisoner to be Certain exceptions exist with regard to confidential released on probation upon such terms as it may communications and actions of crim. con. Whether deem just. The probation officers may also inquire the general rule should apply to actions founded into the cases of convicted prisoners, if the term of upon allegations of -adultery is a matter as to which imprisonment, which they have still to undergo, the Legislature has displayed considerable indecis does not exceed six months, and recommend their ion, having changed its mind twice during the last release on probation. If the court so directs, or in two years. Up to 1879, the rule as to such actions case of the Superior Court, the district attorney and was that husband and wife were not competent wit- the county commissioner concur in the recommendanesses to establish any fact, except the fact of mar- tion, the prisoner is to be released, but on probariage. In 1879 this restriction was removed, and tion only, and may be rearrested and confined for husband and wife became competent witnesses in the remainder of his term. If the duties of these actions founded upon allegations of adultery to the | officers are wisely performed, it seems that some same extent as in other actions, but in 1880 the good may be accomplished. No doubt it often haporiginal rule was again adopted. However great pens that a man of average morality who desires to may be the probability of collusion between hus do right, and for a long time has succeeded as well band and wife in such an action, that is a considera- as most men, takes at last a single false step in a tion, it seems to me, which should affect the weight moment of dire temptation, and cases of sincere reof the evidence rather than its admissibility. A pentance may exist among criminals and convicts. provision that such testimony should be insufficient General rules which create rewards for good beunless corroborated by other evidence, might be havior are not likely to defeat the ends of criminal salutary, but to exclude it altogether, because it statutes, and a sound discretion may well be exermay mislead, shuts out light which might otherwise cised in favor of the most meritorious of the crimibe thrown upon the issues, and is contrary to the nal classes, to save them from utter and hopeless spirit of the modern law of evidence. The English degradation injurious to themselves and useless to law expressly declares that in proceedings instituted the State.” The Massachusetts system is, we unin consequence of adultery the parties and their derstand, substantially like the English “ ticket of husbands and wives shall be competent witnesses leave" system, and is also like a pardon on condi(32 and 33 Vict., ch. 68, § 3).” The true theory of | tion of good behavior.
VOL. 22.- No. 22..
It is probable that the amendment to the Consti- | poses is not taken away or impaired. This leaves tution, providing that any judge of the Supreme these corporations subject, as in former times, to Court, or of the Court of Appeals, who shall be re- taxation on their real estate, which was plainly intired from office at the age of seventy, as is now tended, subject to the new State tax on capital required by the State Constitution, but who shall stock and receipts, and also subject to assessment, have served at least ten years on the bench, shall be as before, on stock and personal property so far as entitled to his full compensation during the re- local purposes are concerned. They certainly have mainder of the term for which he was elected, has not calculated upon this, even if the joint special been carried. This amendment is good so far as it committee which muddled the tax laws last winter goes, but it does not go far enough. It is but fair | intended it.” Our legislative committees are usuto the judges who have grown old in the publically placed in a quandary between their desire to find service, and have arrived at an age when they are some one to pay the public burdens, and to exempt disqualified from practice or at a disadvantage in it, nearly everybody, or at least those best able, from to grant them pensions for life to some amount, and this necessary duty. It reminds us of the Irish we think to the amount of their salary annually. If gentleman, who, sitting for his portrait, directed it is conceded that a man ceases to be fit for the ju- the artist to paint his servant in the picture, “not dicial office at 70, it must also be conceded that he in plain sight, but just outside, within aisy call." then ceases to be fit for the active duties of the bar. The State should either pension its judges for life,
Lord Chief Justice Cockburn has closed his long or extend the judicial tenure to the age of 75, with
and useful life. He died, very suddenly and unexthe present provision for a pension of four years'
pectedly, on the 20th inst., at the age of 78, after a salary. Some of the newspapers are already grum
judicial service of 24 years. We shall await our bling about the expense. This is the merest dema
London exchanges to make up an account of the gogism. The State squanders, at the behest of
life and public services of this distinguished man. either political party, ten times more money every year than any probable pension list would aggregate. A State which can spend twenty millions for
NOTES OF CASES. a capitol, and not feel it, can afford to do its aged
IN the Vienna Juristische Blaetter we find the foljudicial servants justice. This should be the duty
T lowing decision on the subject of rewards: A's of the State, and not the mere pleasure of private charity, as has been suggested with regard to the
servant had embezzled 37,000 forins and had fled. proposed pension of ex-presidents.
A went to the director of police at Praguc and formally declared before him that he would give ten per
cent of the sum found with his servant on his arrest. We are glad to note that our State Bar Associa- The police authorities published this offer of reward tion have taken a new departure in the matter of l in the newspapers. A few days thereafter, B deliv. the presidency. The election of Mr. Sherman S.
ered A's servant into the hands of the police. Rogers, of Buffalo, will give unanimous satisfaction.
17,372 florins were found on his person. A refusing No fitter gentleman could have been selected, and to pay B ten per cent of this sum, B brought suit his geographical location makes the appointment a for 1,737 florins. The trial court nonsuited him, it wise one. The out-going president, ex-Judge appearing that the servant had voluntarily come to Hand, has graced the office by profound legal at
B and given himself up to him, and that then B tainments and ripe scholarship in literature, and had merely accompanied the servant to the police received the extraordinary compliment of a re-elec- station. B appealed, and the Bohemian Supreme tion. The association has now had presidents from
Court, and on A's further appeal, the Imperial ApNew York city, Albany, and Buffalo, and this geo
pellate Court, both decided that B was entitled to graphical distribution should be kept up and ex
the reward. They held that A was only interested tended. Nothing tends to kill an organization
in the success consequent upon his offer of reward; more surely than rotation in office which simply
the manner and mode of effecting it must be imma“ rotates” the old officers in again. The change of
terial to him. He has no right to scrutinize the acthe time of annual meeting from November to Sep
tion of B, his intent or meritoriousness. Because tember will doubtless be an improvement, and will
the servant was arrested, and a part of the money increase the attendance and the interest.
restored to A, he must pay the promised reward to
the person who brought this about. Without B, The recent decision of Judge Gilbert, of the the servant might have changed his mind, concealed Second Department, in regard to the taxation of himself and wasted the money. For a succinct corporations, will probably surprise the public, the treatment of the subject of rewards, see note, 26 corporations, and the committee which framed the Am. Rep. 5. act of 1880. The New York Times says: “He holds that the exemption from assessment of the Judge Barrows, of the Maine Supreme Court, capital stock and personal property of certain cor- | writes us as follows: “I am induced to send you porations upon which the special State tax is levied the inclosed opinion by seeing in the last number applies only to taxation for State purposes, and that of the Law Journal (p. 397), Iowa Sup. Court abauthority to assess and collect taxes for local pur- stract, that Judge Day, while his opinion in the
principal case is clearly correct (see Getchell v. , that the plaintiff must show a present right of posManey, 69 Me. 442), has unwittingly ranged Maine session. The cases have no tendency to sustain the on the wrong side of the question of the assigna- | doctrine in support of which they are cited.” bility of mechanic's or laborer's liens on the strength of the very generally misunderstood decision in In Stewart v. Terre Huute and Ind. R. Co., United Pearsons v. Tincker, 38 Me. 384.” The following States Circuit Court, East District of Missouri, Oct. are the material portions of the opinion, which is 1, 1880, 10 Rep. 618, it was held that in the absence by Judge Barrows: “We cannot find either in prin- | of a special contract, a common carrier is liable to ciple or sound authority any good reason for holding the extent only of his own line, and for safe delivthat the transfer by the laborer to a third party of ery to the next carrier. The court said: “In the an equitable interest in the sum due him for his labor, present case the question is whether a special conshould work a forfeiture of his lien. The object of tract on the part of the defendant to carry through the statute, giving the lien, is to make certain the to Buffalo is established by proof that the cattle payment for the labor, which has gone to increase were delivered to defendant, that its agent knew of the value of the timber. See Spofford v. True, 33 their destination, and that he named the price to be Me. 254. And it would detract much from the charged for carrying through to Buffalo, the price benefit designed to be conferred, to hold that the having been paid at the end of the route, and to the laborer must necessarily personally incur all the de- last carrier. The fact that the defendant gave the lay and expense that not unfrequently arise from the through rate with knowledge of the point of destitedious litigation which follows an effort to enforce | nation is most relied upon by plaintiff. Ordinarily, a lien of this sort, at the peril of losing it altogether. men contract with reference to the use or disposition If the lien can be enforced in his name by one who of their own property, and do not undertake to conhas assumed this risk and burden for him, another trol that of others. It follows, I think, that a conobject of the statute, which is to make his pay tract by which one carrier agrees to carry freight prompt as well as secure, will be materially advanced." over a railroad belonging to and under the control “We think it would be laying an unnecessary bur- | of another, being out of the usual course, must be den upon the laborer for whose benefit the statute established by something more clear and definite than was designed, to say that he should not avail him- by proving the fact that such carrier has named a self of the security which the statute gives him, in through rate. It is commonly known that it is the the way most beneficial to himself, and if he can duty of a railroad agent to inform himself and adbetter himself by giving to an assignee the right to vise all inquirers as to the rates of fare and freight proceed in his name, instead of 'waiting around to distant points, and it would be a hard rule that there' for the slow process of the law, we see no would make the giving of this information equivareason why he may not do it without forfeiting the lent to an agreement to carry to all such distant lien from which he derives the advantage. The points. If it had appeared in evidence that there claims of laborers, secured by statute lien, stand was an arrangement between the several lines comsubstantially, in this respect, upon the same footing | prising the through route by which each was the as those of mechanics. The weight of authority agent of all the others to solicit and ship freight and reasoning is in favor of the assignability of the over the combined through line, the case would lien of the mechanics, and the right of his assignee have been very different, and I think that such proof to assert his claim in the same manner and to the would have been sufficient to make out a prima same extent that the mechanic could. Kerr v. Moore, J.facie case for the plaintiff. This for the reason that 54 Miss. 286, citing Gaege v. Bossieux, 15 Gratt. 83; in such a case each of the several companies may be Tuttle v. Howe, 14 Minn, 150; Davis v. Bilsland, 18 regarded as operating the whole line as if it was its Wall. 689, and other cases of like purport and effect. owner, and therefore its contracts would be preSee, also, Hull of a New Ship, Daveis, 199; The sumed to run to the destination of the freight anySarah J. Weed, 2 Lowell, 556. Nor is there any where upon such line, unless the contrary should apthing adverse to this doctrine in our decisions cited pear. But in the absence of any further showing, by the claimant of the logs. Assignability is one the naming of the through rate and knowledge of thing, negotiability is another. In Pearsons v. | the destination of the freight are not enough.” This Tincker, 36 Me. 387, it was rightly held that a lien is the ordinary American ruling, and is supported claim which had been assigned could not be en- by the following authorities and later ones in the forced in the name of the assignee ; but it does not same States: Railroad Co. v. Manufacturing Co., 16 touch the right of such assignee to enforce the lien Wall. 318; Nutting v. R. Co., 1 Gray, 502; R. Co. in the name of the assignor. Whether chapter 235 | v. Berry, 68 Penn. St. 272; Root v. R. C., 45 N. Y. of the Laws of 1874 would operate a change in the 524; Converse v. Transportation Co., 33 Conn. 166; rights of the assignee we need not now inquire. Perkins v. R. Co., 47 Me. 573; Bank v. TransportaThe point decided in Ames v. Palmer, 42 Me. 197, tion Co., 23 Vt. 209; Express Co. v. Rush, 24 Ind. was simply that a trespasser could not interpose the 403; McMillan v. R. Co., 16 Mich. 79; Hoagland v. lien of a third party as a common carrier upon the R. Co., 39 Mo. 451; Balt, und Ohio R. Co. v. Schu. goods which were the subject of suit, in which lien | maker, 29 Md. 176; Irish v. Railroad, 19 Minn. he had no interest or concern as assignee or other- 376; Crawford v. R. Assoc., 51 Miss. 222; Philwise, to bar the action of the general owner against lips v. Railroad, 78 N. C. 294. In Gray v. Jackhimself for a tortious interference, upon the ground I son, 51 N. H. 9; 12 Am. Rep. 1, the agreement was held to be a question of fact, and where there was ' The following propositions in respect to contract no agreement for liability beyond the carrier's own by letters are established by the cases: line there was no liability beyond. But in Mobile 1. Where the offer is made by letter, and is acand Girard R. Co. v. Copeland, Supreme Court of cepted by letter posted within a reasonable time, Alabama, 1880, 10 Rep. 625, the carrier was held the contract is complete, although the acceptance liable for delivery at the destination, even beyond may be delayed or may not be received, owing to his own line, unless he expressly limits his liability. | the fault of the post. Dunlop v. Higgins, 1 H. L. The court said: “When goods are consigned to a Cas. 381; Duncan v. Topham, 8 C. B. 225; Adams place on his own line of transportation, the known v. Lindsell, 1 B. & Ald. 681; In re Imperial Land Co. and established duty of the carrier is to deliver of Marseilles, Harris' case, L. R., 7 Ch. App. 587; them at that place, and to the person who has the Townsend's case, L. R., 13 Eq. 148; Potter v. Sanders, right to receive them. A mistake, however inno- 6 Hare, 1; Stocken v. Collin, 7 M. & W. 515; Hobb's cent, in making delivery, either to the proper per- case, L. R., 4 Eq. 9; Tayloe v. Merchants' Fire Ins. son or at the proper place, involves him in liability. Co., 9 How. 390; Trevor v. Wood, 36 N. Y. 307; When he accepts goods directed to a place beyond 'Abbott v. Shepard, 48 N. H. 14; Hutcheson v. Blakethe line of his own route, not limiting his liability, man, 3 Metc. (Ky.) 80; Hamilton v. Lycoming Ins. what difference is there in the measure of his duty | Co., 5 Barr, 339; Levy v. Cohen, 4 Ga. 1; Falls v. and liability ? The true doctrine, that which is Gaither, 9 Port. 614; Averill v. Hedge, 12 Conn. 436; most consistent with all the principles which govern Wheat v. Cross, 31 Md. 99; S. C., 1 Am. Rep. 28; the liability and duty of carriers, and which seems Potts v. Whitehead, 5 C. E. Green, 55; Washburn v. to us required by the same necessity and public pol- Fletcher, 42 Wis. 152. The case of British Am. Tel. icy upon which these principles are founded, is that Co. v. Colson, L. R., 6 Ex. 108, must be regarded as a common carrier who receives goods destined to a of no authority. The gist of that decision is thus place beyond his own line of transportation, not stated by Kelly, C. B.: “It appears to me that if expressly otherwise limiting his duty and liability, l'one proposes to another by a letter through the post, must be regarded as contracting for a delivery at to enter into a contract for the sale or purchase of the point of destination. It cannot be said that goods, or as in this case, of shares in a company, this rule is more unjust to the carrier than that and the proposal is accepted by letter, and the letwhich holds him liable as an insurer for loss or in- ter put into the post, the party having proposed the jury not occurring by the act of God, or of the pub- contract is not bound by the acceptance of it until lic enemy. Nor is it more unjust than the rule the letter of acceptance is delivered to him, or which compels him to receive all goods within the otherwise brought to his knowledge, except (in some scope of his business, which are offered for trans cases) where the non-receipt of the acceptance has portation on his own line. The injustice seems to been occasioned by his own act or default." The us to be visited upon the public, who are compelled | like doctrine is held in Massachusetts, McCulloch y. to employ carriers, if the opposite rule is adopted." | Eagle Ins Co., 1 Pick. 278 (disapproved by both This is the English doctrine, founded on Muschamp Story and Parsons), and in Tennessee, Gillespie v. v. Ry. Co., 8 M. & W. 421, and followed in this Edmonston, 11 Humph. 553. country in Ill. Cent. R. Co. v. Copeland, 24 Ill. 332; 1 The latest English case illustrating proposition 1 Carter v. Peck, 4 Sneed, 203; Angle v. Railroad, 9 is Household Fire and Carriage Accident Ins. Co. v. Iowa, 487; Bennett v. Filyans, 1 Fla. 403; Bradford Grant, C. P. Div. It was there held that a contract v. Railroad, 7 Rich. 201; Mosher v. South. Ex. Co., is binding upon the proposer as soon as a letter of 33 Ga. 37; Lock Co. v. Railroad, 48 N. H. 339. See acceptance, properly directed to him, has been posted Hutchinson on Carriers, SS 146-150. Mr. Lawson | by any person to whom the proposal has been made, says (Cont. of Carriers, $ 240), “the arguments of notwithstanding such letter never reaches him, proconvenience as well as justice are in favor of the vided that there is no unreasonable delay in acceptEnglish rule."
ing the proposal, and that the ordinary and natural mode of transmitting the acceptance is through the
post. This case was affirmed in the Court of ApCONTRACT BY LETTER.
peal, July 1, 1879, by Thesiger and Baggallay, L.
JJ., Bramwell, L. J., dissenting, 41 L. T. (N. S.) TN Maclay v. Harvey, 90 Ill. 525; S. C., 32 Am. 1 Rep. 35, the defendant offered, by letter sent 2. If the delivery of the letter of offer is delayed through the mail, to engage the plaintiff in his em- | by the fault of the sender, the offer is extended unployment, stating terms, and asking for a reply by | til its arrival. Adams v. Lindsell, 1 B. & Ald. 681. return mail. The plaintiff received the letter on This was where the letter of offer was misdirected the 22d of March and next day gave a postal card, by the sender's fault, and was consequently delayed accepting the offer, to a boy to be mailed, but he two days in transmission, and before receipt of the neglected to mail it until the 25th. Held, that de
acceptance be sold the goods to a third person. To fendant was not bound by his offer, nor was he the same effect, McTier v. Frith, 6 Wend. 103; bound after receiving the postal card to notify her Averill v. Hedge, 12 Conn. 436. that it was not in time; nor was he estopped by his 3. If undue delay or failure of delivery of the mere subsequent intention to accept her services | letter of acceptance is caused by the fault of the and an unsuccessful attempt to see her.
accepting party, there is no contract. As where the