498 HARVARD LAW REVIEW. with the illegality of maintenance. But the court gave judgment for the plaintiff, holding that the doctrine of maintenance did not apply to crimi- nal proceedings. " Maintenance consists in interfering with matters in which the person has no concern. It is for the public benefit that any one should be entitled to prosecute." In both cases the general propositions as to the law of maintenance are undoubtedly correct. In the second case, however, it is worth while noticing that the defendant was not sued in tort for maintenance, but was sued in contract. While the contract was clearly not tainted with main- tenance, it does not follow that it was quite unobjectionable on some other ground of public policy. It is one thing to say every man is en- titled to prosecute a criminal action, and another to assist him in making a profit by so doing. It is not the policy of the law to stimulate an im- proper prosecution, nor to assist those who inaugurate such proceedings. The injured party has, to be sure, his action for malicious prosecution. That is probably one reason why the tort of maintenance has never been applied to criminal actions. But the wrong-doer should not be aided by the court to profit by his tort. If it could be shown that the plaintiff in the principal case knowingly undertook a malicious prosecution, that would seem to be a good defence to the action on the contract. The point was not brought out by the pleadings or argued on the appeal, and perhaps was not justified by the facts. Offer and Acceptance. — The New York Court of Appeals last December divided almost evenly on a question of some interest to the business community. Two parties had been exchanging letters with a view to an agreement, and finally one made an offer, definite in all its terms, and added, "If satisfactory, answer, and I will forward contract." The reply was, " All right ; send contract." When the contract was sent, the other party refused to sign it. A bare majority of the court held that there was a contract. Sanders w. Pottlitzer Bros. Fruit Co.., 144 N. Y. 209. It seems to be well settled, as the cases collected in 40 Cent. L. J. 92 show, that the mere fact that parties wish to have a formal agreement drawn up will not prevent their being bound by a previous agreement, if it is clear that such an agreement has been made. Bo7inewell v. yetikins^ 8 Ch. D. 70 ; Bellv. Offutt, 10 Bush, (Ky.) 632 ; Blaney v. Hoke, 14 Oh. St. 292 ; Mackeyv. Mackey., 29 Gratt. 158 ; Cheney . Eastern Trans. Lifte, 59 Md. 557 ; Faige v. Fullerton, 27 Vt. 485 ; Chimiock v. Marchioness of Ely, I De G. J. & S. 638; Winn v. Bull, Ch. D. 29, 32. On the other hand, if the acceptance is made subject to a written agreement, or if the terms of the bargain are not definitely settled, there is no contract, and in all cases the fact that a subsequent agreement is to be drawn up is cogent, although not conclusive, evidence that the parties do not intend to be bound. Ridgway v. Wharton, 6 H. L. C. 238; Win?i v. Bull, 7 Ch. D. 29. But when there is a definite proposal, definitely assented to, and when the acceptance is not expressly made subject to a future agreement, it seems more reasonable to suppose that the parties intend the very terms agreed upon to be put into form, than that they intend them to be subject to a future agreement, the terms of which are not ex- pressed in detail. There is in such a case little more than the mere fact that a future agreement is to be drawn up, and that, as already stated, is not enough. A definite offer, accepted in terms, is in most
