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The trial justice alluded to by your correspondent "Lawyer" in the LAW JOURNAL of October 2d, who officiates as constable to his own court, is certainly not acting according to the doctrines of the English common law.

In Bacon's Abridgment it is remarked that "offices are said to be incompatible and inconsistent so as to be executed by the same person, when from the multiplicity of business in them they cannot be executed with caro and ability, or when they being subordinate and interfering with each other it induces a presumption, they cannot be executed with impartiality and honesty. * * *So if a forester by patent for his life is made justice in eyre of the same forest pro haec vice, the forestership is become void; for these offices are incompatible because the forester is under the correction of the justices in eyre and he cannot judge himself. * * A coroner made sheriff ceases to be coroner, so a parson made a bishop."

In a note to this portion of the text, a case is mentioned where upon a writ of error the error assigned was that the venire facias was to two bailiffs, and that the court was held before the mayor and these two bailiffs, so that the bailiffs being judges of the court could not be officers; but it is stated that the appellate "court conceived it might be good by custom and not error; for the judges are not the bailiffs only, but the 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.)

Lord Coke, in his fourth institute, remarks that it would be well were two offices never to be held by the same person.

In this opinion Mr. James Ryan of this city does not appear to have concurred. He having been appointed to and accepted the office of deputy clerk of the court of special sessions for the city and county of New York, subsequently, while being such clerk, accepted and entered upon the performance of the duties of the somewhat incongruous office of member of tho State Legislature.

On an application for a mandamus to compel payment to him of his salary as clerk which had accrued while he was holding office as a legislator, Folger, J., in the Court of Appeals, observes that "physical impossibility is not the incompatibility of the common law, which existing, one office is ipso facto vacated by accepting another. Incompatibility between two offices is an inconsistency in the functions of the two; as judge and clerk of the same court-officer who presents his personal account subject to audit, and officer whose duty it is to audit it. * * Where one office is not subordinate to the other, nor the relations of the one to the other such as are inconsistent and repugnant, there is not that incompatibility from which the law declares that the acceptance of the one is the vacation of the other." People ex rel. Ryan v. Green, 58 N. Y. 304; see, also, Rex v. Bateman, 2 T. R. 777; Milward v. Thatcher, id. 81.

The case in 58 N. Y. may perhaps be thought to have gone very far in maintaining the common law validity of the holding, by the same person, of offices physically incompatible. But it fully maintains the invalidity of holding offices, the functions of which are inconsistent.

This trial justice has been too eager in the pursuit of official honors.

NEW YORK, November 8, 1880.

C. W. S.

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Judgment affirmed with costs- -Smith v. Holbrook; Green v. The Homestead Fire Insurance Company. Judgment reversed and new trial granted, costs to abide event -Morton v. Sweet: Van Cott v. Van Brunt, Judgment of General Term reversed and that of Special Term affirmed, with leave to defendant to answer on payment of costs- Wheeler v. Connecticut Mutual Life Insurance Company. — Judgment affirmed and judgment absolute for respondent on stipulation with costs Webb v. Buckelew. Order affirmed with costs-Coit v. Campbell, Eaton v. Wells.-Order affirmed without costs-Van Cott v. Van Cott.— Order of General Term reversed, and judgment Special Term affirmed with costs - Hier v. Abrahams.

-Appeal dismissed with costs-Devlin v. The Mayor; Grant v. Griswold, Douglas v. Haberstro; Eldridge v. N. Y. & Brighton Beach R. R. Co.; Clark v. Lourie.Appeal dismissed without costs - People ex rel. Geer v. Common Council of Troy.- Motion denied without costs-In re Guardian of Hubbard. Motion denied with $10 costs Tuthill v. Morris; People ex rel. Smith v. Board of Police Commissioners of New York.— Motion granted with $10 costs-Argall v. Jacobs.

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The administration of justice in this State is almost as much a farce in many cases as the long-drawn contest known in history as Jarndyce v. Jarndyce, and the machinery of courts not entirely unlike the machinery of the Circumlocution office. It is not the fault of the judges. They do not find any pleasure in passing upon motions without point, and demurrers without foundation, or in wading through oceans of lawless slush in bad spelling, worse grammar, and the worst possible substitute for logic-styled "briefs" by their creators. Judges submit to these things, as do attorneys and litigants who wish to terminate their litigation, simply because they cannot help it. The law seems to givo to parties the power to delay justice until litigants dio of despair, and fraud goes unwhipped and crime unpunished by reason of that delay; and judges, of themselves, are powerless to correct the evil. Upon the average, fivo years' time is required to dispose of an ordinary case, if the parties contest it from the Common Pleas to the Supreme Court: and in the event of a reversal and remanding as much more time may elapse beforo the final adjudication. - Ohio Law Journal.

The Albany Law Journal.

THE

ALBANY, NOVEMBER 27, 1880.

CURRENT TOPICS.

HE address of President Bristow, at the late meeting of the American Bar Association, of which we have given an abstract, and which is now before us in full, is an excellent production. In three points, especially, we have the pleasure of agreeing most heartily with the president. First, in regard to "the pernicious practice of special legislation." On this point he remarks: "It was hardly befitting the dignity of the Legislature of a sovereign State to occupy its time with the act, to be found in the last installment of the laws of Virginia, which empowers the principal of Turkey Cove High School, situated at Turkey Cove, in the county of Lee, to confer such certificates of proficiency and distinction as he may think proper to promote the cause of education.' Nor was it exactly fair to the legal profession for the Legislature of South Carolina to pass two special acts admitting John Smith and Thomas Jones to the bar, although one was under twenty-one years of age, and the other had not completed the prescribed two years' course of study.

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Second: In regard to the testimony of husband and wife. On this point he observes: "In New York, husband and wife are in general competent witnesses for or against each other in civil causes. Certain exceptions exist with regard to confidential communications and actions of crim. con. Whether the general rule should apply to actions founded upon allegations of adultery is a matter as to which the Legislature has displayed considerable indecision, having changed its mind twice during the last two years. Up to 1879, the rule as to such actions was that husband and wife were not competent witnesses to establish any fact, except the fact of marriage. In 1879 this restriction was removed, and husband and wife became competent witnesses in actions founded upon allegations of adultery to the same extent as in other actions, but in 1880 the original rule was again adopted. However great may be the probability of collusion between husband and wife in such an action, that is a consideration, it seems to me, which should affect the weight of the evidence rather than its admissibility. A provision that such testimony should be insufficient unless corroborated by other evidence, might be salutary, but to exclude it altogether, because it may mislead, shuts out light which might otherwise be thrown upon the issues, and is contrary to the spirit of the modern law of evidence. The English law expressly declares that in proceedings instituted in consequence of adultery the parties and their husbands and wives shall be competent witnesses (32 and 33 Vict., ch. 68, § 3)." The true theory of VOL. 22.- No. 22.

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.

Third: In regard to the reformation of criminals. On this point he says: "In addition to the penal statutes which have been passed, some States have endeavored to drive out and destroy the devil — who, according to the old form of indictment, instigates all offenders against the law to the commission of crime by the enactment of laws looking to the reformation of criminals. Iowa, Massachusetts, and Wisconsin, have established rules providing for the diminution of the terms of imprisonment of convicts in case of good behavior. These rules enable the prisoner to determine precisely at what date his term will expire in case his conduct gives satisfaction to the keeper of the prison, and where the term is a long one, a very considerable deduction is made. Such rules seem well calculated to secure order, but it would be expecting too much of them perhaps to anticipate any real change of heart' among prisoners as a consequence of their adoption. They undoubtedly create a conviction that 'honesty is the best policy,' while in jail, but do little to make it plain that the same rule holds outside the prison walls. The Massachusetts Legislature 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 examine into the cases of persons arrested for crime, and determine whether they may reasonably be expected to reform without punishment. If they so recommend, the court may order the prisoner to be released on probation upon such terms as it may deem just. The probation officers may also inquire into the cases of convicted prisoners, if the term of imprisonment, which they have still to undergo, does not exceed six months, and recommend their release on probation. If the court so directs, or in case of the Superior Court, the district attorney and the county commissioner concur in the recommendation, the prisoner is to be released, but on probation only, and may be rearrested and confined for the remainder of his term. If the duties of these officers are wisely performed, it seems that some good may be accomplished. No doubt it often happens that a man of average morality who desires to do right, and for a long time has succeeded as well as most men, takes at last a single false step in a moment of dire temptation, and cases of sincere repentance may exist among criminals and convicts. General rules which create rewards for good behavior are not likely to defeat the ends of criminal statutes, and a sound discretion may well be exercised in favor of the most meritorious of the criminal classes, to save them from utter and hopeless degradation injurious to themselves and useless to the State." The Massachusetts system is, we understand, substantially like the English "ticket of leave" system, and is also like a pardon on condition of good behavior.

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poses is not taken away or impaired. This leaves these corporations subject, as in former times, to taxation on their real estate, which was plainly intended, subject to the new State tax on capital stock and receipts, and also subject to assessment, as before, on stock and personal property so far as local purposes are concerned. They certainly have not calculated upon this, even if the joint special committee which muddled the tax laws last winter intended it." Our legislative committees are usually placed in a quandary between their desire to find some one to pay the public burdens, and to exempt nearly everybody, or at least those best able, from this necessary duty. It reminds us of the Irish gentleman, who, sitting for his portrait, directed the artist to paint his servant in the picture, "not in plain sight, but just outside, within aisy call."

It is probable that the amendment to the Constitution, providing that any judge of the Supreme Court, or of the Court of Appeals, who shall be retired from office at the age of seventy, as is now required by the State Constitution, but who shall have served at least ten years on the bench, shall be entitled to his full compensation during the remainder of the term for which he was elected, has been carried. This amendment is good so far as it goes, but it does not go far enough. It is but fair to the judges who have grown old in the public service, and have arrived at an age when they are disqualified from practice or at a disadvantage in it, to grant them pensions for life to some amount, and we think to the amount of their salary annually. If it is conceded that a man ceases to be fit for the judicial office at 70, it must also be conceded that he then ceases to be fit for the active duties of the bar. The State should either pension its judges for life, or extend the judicial tenure to the age of 75, with the present provision for a pension of four years' salary. Some of the newspapers are already grumbling about the expense. This is the merest demagogism. The State squanders, at the behest of either political party, ten times more money every year than any probable pension list would aggregate. A State which can spend twenty millions for a capitol, and not feel it, can afford to do its aged N the Vienna Juristische Blaetter we find the foljudicial servants justice. This should be the duty IN of the State, and not the mere pleasure of private servant had embezzled 37,000 florins and had fled. lowing decision on the subject of rewards: A's charity, as has been suggested with regard to the proposed pension of ex-presidents.

We are glad to note that our State Bar Association have taken a new departure in the matter of the presidency. The election of Mr. Sherman S. Rogers, of Buffalo, will give unanimous satisfaction. No fitter gentleman could have been selected, and his geographical location makes the appointment a wise one. The out-going president, ex-Judge Hand, has graced the office by profound legal attainments and ripe scholarship in literature, and received the extraordinary compliment of a re-election.

The association has now had presidents from New York city, Albany, and Buffalo, and this geographical distribution should be kept up and extended. Nothing tends to kill an organization more surely than rotation in office which simply "rotates" the old officers in again. The change of the time of annual meeting from November to September will doubtless be an improvement, and will increase the attendance and the interest.

Lord Chief Justice Cockburn has closed his long and useful life. He died, very suddenly and unexpectedly, on the 20th inst., at the age of 78, after a judicial service of 24 years.

We shall await our

London exchanges to make up an account of the life and public services of this distinguished man.

NOTES OF CASES.

A went to the director of police at Prague and formally declared before him that he would give ten per cent of the sum found with his servant on his arrest. The police authorities published this offer of reward in the newspapers. A few days thereafter, B delivered A's servant into the hands of the police. 17,372 florins were found on his person. A refusing to pay B ten per cent of this sum, B brought suit for 1,737 florins. The trial court nonsuited him, it appearing that the servant had voluntarily come to B and given himself up to him, and that then B had merely accompanied the servant to the police station. B appealed, and the Bohemian Supreme Court, and on A's further appeal, the Imperial Appellate Court, both decided that B was entitled to the reward. They held that A was only interested in the success consequent upon his offer of reward; the manner and mode of effecting it must be immaterial to him. He has no right to scrutinize the action of B, his intent or meritoriousness. Because the servant was arrested, and a part of the money restored to A, he must pay the promised reward to the person who brought this about. Without B, the servant might have changed his mind, concealed himself and wasted the money. For a succinct treatment of the subject of rewards, see note, 26 Am. Rep. 5.

The recent decision of Judge Gilbert, of the Second Department, in regard to the taxation of corporations, will probably surprise the public, the corporations, and the committee which framed the 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

that the plaintiff must show a present right of possession. The cases have no tendency to sustain the doctrine in support of which they are cited."

United

principal case is clearly correct (see Getchell v. Maney, 69 Me. 442), has unwittingly ranged Maine on the wrong side of the question of the assignability of mechanic's or laborer's liens on the strength of the very generally misunderstood decision in Pearsons v. Tincker, 38 Me. 384." The following are the material portions of the opinion, which is by Judge Barrows: "We cannot find either in principle or sound authority any good reason for holding that the transfer by the laborer to a third party of an equitable interest in the sum due him for his labor, should work a forfeiture of his lien. The object of the statute, giving the lien, is to make certain the payment for the labor, which has gone to increase the value of the timber. See Spofford v. True, 33 Me. 254. And it would detract much from the benefit designed to be conferred, to hold that the laborer must necessarily personally incur all the delay and expense that not unfrequently arise from the tedious litigation which follows an effort to enforce a lien of this sort, at the peril of losing it altogether. If the lien can be enforced in his name by one who has assumed this risk and burden for him, another object of the statute, which is to make his pay prompt as well as secure, will be materially advanced." "We think it would be laying an unnecessary burden upon the laborer for whose benefit the statute was designed, to say that he should not avail himself of the security which the statute gives him, in the way most beneficial to himself, and if he can better himself by giving to an assignee the right to proceed in his name, instead of waiting around there' for the slow process of the law, we see no reason why he may not do it without forfeiting the lien from which he derives the advantage. The claims of laborers, secured by statute lien, stand substantially, in this respect, upon the same footing as those of mechanics. The weight of authority | and reasoning is in favor of the assignability of the lien of the mechanics, and the right of his assignee to assert his claim in the same manner and to the same extent that the mechanic could. Kerr v. Moore, 54 Miss. 286, citing Gaege v. Bossieux, 15 Gratt. 83; Tuttle v. Howe, 14 Minn. 150; Davis v. Bilsland, 18❘ Wall. 689, and other cases of like purport and effect. See, also, Hull of a New Ship, Daveis, 199; The Sarah J. Weed, 2 Lowell, 556. Nor is there any thing adverse to this doctrine in our decisions cited by the claimant of the logs. Assignability is one thing, negotiability is another. In Pearsons v. Tincker, 36 Me. 387, it was rightly held that a lien claim which had been assigned could not be enforced in the name of the assignee; but it does not touch the right of such assignee to enforce the lien in the name of the assignor. Whether chapter 235 of the Laws of 1874 would operate a change in the rights of the assignee we need not now inquire. The point decided in Ames v. Palmer, 42 Me. 197, was simply that a trespasser could not interpose the lien of a third party as a common carrier upon the goods which were the subject of suit, in which lien he had no interest or concern as assignee or otherwise, to bar the action of the general owner against himself for a tortious interference, upon the ground I son, 51 N. H. 9; 12 Am. Rep. 1, the agreement was

In Stewart v. Terre Haute and Ind. R. Co., States Circuit Court, East District of Missouri, Oct. 1, 1880, 10 Rep. 618, it was held that in the absence of a special contract, a common carrier is liable to the extent only of his own line, and for safe delivery to the next carrier. The court said: "In the present case the question is whether a special contract on the part of the defendant to carry through to Buffalo is established by proof that the cattle were delivered to defendant, that its agent knew of their destination, and that he named the price to be charged for carrying through to Buffalo, the price having been paid at the end of the route, and to the last carrier. The fact that the defendant gave the through rate with knowledge of the point of destination is most relied upon by plaintiff. Ordinarily, men contract with reference to the use or disposition of their own property, and do not undertake to control that of others. It follows, I think, that a contract by which one carrier agrees to carry freight over a railroad belonging to and under the control of another, being out of the usual course, must be established by something more clear and definite than by proving the fact that such carrier has named a through rate. It is commonly known that it is the duty of a railroad agent to inform himself and advise all inquirers as to the rates of fare and freight to distant points, and it would be a hard rule that would make the giving of this information equivalent to an agreement to carry to all such distant points. If it had appeared in evidence that there was an arrangement between the several lines comprising the through route by which each was the agent of all the others to solicit and ship freight over the combined through line, the case would have been very different, and I think that such proof would have been sufficient to make out a prima facie case for the plaintiff. This for the reason that in such a case each of the several companies may be regarded as operating the whole line as if it was its owner, and therefore its contracts would be presumed to run to the destination of the freight anywhere upon such line, unless the contrary should appear. But in the absence of any further showing, the naming of the through rate and knowledge of the destination of the freight are not enough." This is the ordinary American ruling, and is supported by the following authorities and later ones in the same States: Railroad Co. v. Manufacturing Co., 16 Wall. 318; Nutting v. R. Co., 1 Gray, 502; R. Co. v. Berry, 68 Penn. St. 272; Root v. R. C., 45 N. Y. 524; Converse v. Transportation Co., 33 Conn. 166; Perkins v. R. Co., 47 Me. 573; Bank v. Transportation Co., 23 Vt. 209; Express Co. v. Rush, 24 Ind. 403; McMillan v. R. Co., 16 Mich. 79; Hoagland v. R. Co., 39 Mo. 451; Balt. and Ohio R. Co. v. Schumaker, 29 Md. 176; Irish v. Railroad, 19 Minn. 376; Crawford v. R. Assoc., 51 Miss. 222; Phillips v. Railroad, 78 N. C. 294. In Gray v. Jack

The following propositions in respect to contract by letters are established by the cases:

1. Where the offer is made by letter, and is accepted by letter posted within a reasonable time, the contract is complete, although the acceptance may be delayed or may not be received, owing to the fault of the post. Dunlop v. Higgins, 1 H. L. Cas. 381; Duncan v. Topham, 8 C. B. 225; Adams v. Lindsell, 1 B. & Ald. 681; In re Imperial Land Co. of Marseilles, Harris' case, L. R., 7 Ch. App. 587; Townsend's case, L. R., 13 Eq. 148; Potter v. Sanders, 6 Hare, 1; Stocken v. Collin, 7 M. & W. 515; Hobb's case, L. R., 4 Eq. 9; Tayloe v. Merchants' Fire Ins. Co., 9 How. 390; Trevor v. Wood, 36 N. Y. 307; Abbott v. Shepard, 48 N. H. 14; Hutcheson v. Blakeman, 3 Metc. (Ky.) 80; Hamilton v. Lycoming Ins. Co., 5 Barr, 339; Levy v. Cohen, 4 Ga. 1; Falls v. Gaither, 9 Port. 614; Averill v. Hedge, 12 Conn. 436; Wheat v. Cross, 31 Md. 99; S. C., 1 Am. Rep. 28; Potts v. Whitehead, 5 C. E. Green, 55; Washburn v. Fletcher, 42 Wis. 152. The case of British Am. Tel. Co. v. Colson, L. R., 6 Ex. 108, must be regarded as of no authority. The gist of that decision is thus stated by Kelly, C. B.: "It appears to me that if one proposes to another by a letter through the post, to enter into a contract for the sale or purchase of goods, or as in this case, of shares in a company, and the proposal is accepted by letter, and the letter put into the post, the party having proposed the

held to be a question of fact, and where there was no agreement for liability beyond the carrier's own line there was no liability beyond. But in Mobile and Girard R. Co. v. Copeland, Supreme Court of Alabama, 1880, 10 Rep. 625, the carrier was held liable for delivery at the destination, even beyond his own line, unless he expressly limits his liability. The court said: "When goods are consigned to a place on his own line of transportation, the known and established duty of the carrier is to deliver them at that place, and to the person who has the right to receive them. A mistake, however innocent, in making delivery, either to the proper person or at the proper place, involves him in liability. When he accepts goods directed to a place beyond the line of his own route, not limiting his liability, what difference is there in the measure of his duty and liability? The true doctrine, that which is most consistent with all the principles which govern the liability and duty of carriers, and which seems to us required by the same necessity and public policy upon which these principles are founded, is that a common carrier who receives goods destined to a place beyond his own line of transportation, not expressly otherwise limiting his duty and liability, must be regarded as contracting for a delivery at the point of destination. It cannot be said that this rule is more unjust to the carrier than that which holds him liable as an insurer for loss or injury 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 which compels him to receive all goods within the scope of his business, which are offered for transportation on his own line. The injustice seems to us to be visited upon the public, who are compelled to employ carriers, if the opposite rule is adopted." This is the English doctrine, founded on Muschamp v. Ry. Co., 8 M. & W. 421, and followed in this country in Ill. Cent. R. Co. v. Copeland, 24 Ill. 332; Carter v. Peck, 4 Sneed, 203; Angle v. Railroad, 9 Iowa, 487; Bennett v. Filyans, 1 Fla. 403; Bradford v. Railroad, 7 Rich. 201; Mosher v. South. Ex. Co., 33 Ga. 37; Lock Co. v. Railroad, 48 N. H. 339. See Hutchinson on Carriers, §§ 146-150. Mr. Lawson says (Cont. of Carriers, § 240), "the arguments of convenience as well as justice are in favor of the English rule."

IN

CONTRACT BY LETTER.

N Maclay v. Harvey, 90 Ill. 525; S. C., 32 Am. Rep. 35, the defendant offered, by letter sent through the mail, to engage the plaintiff in his employment, stating terms, and asking for a reply by return mail. The plaintiff received the letter on the 22d of March and next day gave a postal card, accepting the offer, to a boy to be mailed, but he neglected to mail it until the 25th. Held, that defendant was not bound by his offer, nor was he bound after receiving the postal card to notify her that it was not in time; nor was he estopped by his mere subsequent intention to accept her services and an unsuccessful attempt to see her.

the letter of acceptance is delivered to him, or otherwise brought to his knowledge, except (in some cases) where the non-receipt of the acceptance has been occasioned by his own act or default." The like doctrine is held in Massachusetts, Mc Culloch v. Eagle Ins Co., 1 Pick. 278 (disapproved by both Story and Parsons), and in Tennessee, Gillespie v. Edmonston, 11 Humph. 553.

The latest English case illustrating proposition 1 is Household Fire and Carriage Accident Ins. Co. v. Grant, C. P. Div. It was there held that a contract is binding upon the proposer as soon as a letter of acceptance, properly directed to him, has been posted by any person to whom the proposal has been made, notwithstanding such letter never reaches him, provided that there is no unreasonable delay in accepting 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 Appeal, July 1, 1879, by Thesiger and Baggallay, L. JJ., Bramwell, L. J., dissenting, 41 L. T. (N. S.) 298.

2. If the delivery of the letter of offer is delayed by the fault of the sender, the offer is extended until its arrival. Adams v. Lindsell, 1 B. & Ald. 681. This was where the letter of offer was misdirected by the sender's fault, and was consequently delayed two days in transmission, and before receipt of the acceptance he sold the goods to a third person. To the same effect, McTier v. Frith, 6 Wend. 103; Averill v. Hedge, 12 Conn. 436.

3. If undue delay or failure of delivery of the letter of acceptance is caused by the fault of the accepting party, there is no contract. As where the

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