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1816. 10th of August : 'defendants' letter is dated the 9th.

✓ The bill was not at that time in existence. No pro

mise to accept a bill not in existence will bind a Prest and party. The doctrine of implied acceptance has Another.

been carried to the utmost verge of the law, and ought not to be extended. He cited Johnson v. Collings, 1 East, 98.

GIBBS, C. J. I shall never extend it. You are within that case, unless they shew that the letter was communicated to the plaintiff, and that he received the bill with a knowledge. A promise to accept, not communicated to the person who takes the bill, does not amount to an acceptance. But if a person be thereby induced to take a bill, he gains a right, equivalent to an actual acceptance, against the party who has given the promise to accept..

It was then proved that the letter had been commanicated to the plaintiff.

Vaughan, serjeant, next objected, that the evidence did not amount to an acceptance. The import of the answer in the defendants' countinghouse is : We will not accept till the corn arrives; come to us then. They propose a condition which the plaintiff does not comply with.

Gibbs, C. J.-An acceptance may be as effectual by parole as by writing ; a conditional acceptance is as valid as an express one, if the condition be satisfied. The wheat arrived; the defendants re. ceive and sell it. This is the precise case of Picr1816.

son v. Dunlop. I am of opinion that what the defendants have done is equivalent to an acceptance.

MIN

Prest and
Another.

Verdict for plaintiff.
Best, serjeant, and Campbell, for plaintiff.

Vaughan, and Copley, serjeant, for defendants.

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Vide Pillans v. Van Mierop, where he says, leave the bill Burr. 1663. Pierson v. Dun. and I will accept it, is a com. lop, Cowp. 571. Mason . plete acceptance. So a verbal Hunt, Douglas, 281–297. promise to accept a returned

A promise to accept, made bill when it shall come back is upon an executory considera. binding, if it do not come back. tion, is not binding, so long as Vide D. Molloy, b. 2. c. 10. such consideration remains ex. S. 20. Mar. 2d. ed. 17. and ecutory, unless it influence Cox v. Colman, M. 6 Geo. 2., some person to take or retain cited arguendo Ann 75. An the bill. See antea Pillans v. answer by the drawee when a Van Mierop. A promise in a bill is called for, there is letter that a bill shall meet your bill, it is all right,” is with due honour, or that the , no acceptance. Vide Powell writer will accept or certainly v. Jones, Espinasse, 17. It pay it, is an acceptance. Vide seems that the drawee's keepo Clarke v. Cock, 4 East, 57. ing a bill presented to him for and Wynne v. Raikes, 5. East, acceptance, may amount to an 514. Although the letter be acceptance. Vide Harvey v. not received until after the bill Martin, K. B. M. T. 1806. has become due ; and although But by the usage of trade, a no person has been induced by banker in London will not such promise to take the bill: reader himself responsible by so a verbal promise to accept retainiog a check drawn on though the party expressly him, provided he return it any defer a written acceptance, as time before five o'clock in the

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evening, of the day on' which himself, and had three events it is drawn. Vide Fernandey in contemplation; the ship’s v. Glynn, i Campb. N. P. C. arrival at Bristol ; her arrival 426. An acceptance to pay in London; and her loss: in when remitted for, is a condi- the two latter he should have tional acceptance. Vide Ban. the opportunity, and therefore bury o. Lissett, Str. 1211. So accepted : in the former, he an answer by a drawee who should not, and did not accept. lived in London, that a ship Vide Sproat v. Mathews, 1 T. was consigned to him and a R. 182. A conditional acceptperson at Bristol, and that tillance becomes absolute as soon he should know to which port as its conditions are performed. the ship would come he could Thus an answer by the drawee not accept, connected with a that he could not accept, until subsequent answer that the bill a Navy Bill should be paid, was a good one, and would be was thought to operate as an paid though the ship should be absolute acceptance upon the lost, was held a conditional payment of the Navy Bill. acceptance only; it being clear See antea Pierson v. Dunlop, that the drawee looked for an and Bayley on Bills of Exch. opportunity of reimbursing 79. 81. 84.

1816.

D'AGUILAR v. TOBIN.

TVIS was an action on a policy of insurance A vessel may

1 upon the ship, the Samuel Cumming, at and what from the from Jamaica, and Trinidad in the island of Cuba, straight line of

by her track to to any port or ports of her discharge in the United seek for con

voy; and the Kingdoms; warranted to sail from Cuba on or be- captain, unless fore the 1st of August, 1814. Loss by capture. hibited by pathe

terms of the

policy, may alThe vessel took in ballast from Jamaica: sailed ways do, when

insured, what July 6th for Trinidad di Cuba: arrived the 10th. ever it would

be expedient She sailed again the 1st of August at six o'clock, for the com

mon security p. m. and got out of harbour that night. She took to do, it uniu. her course for Cape Antonio at the west end of the ships sailisland, which it was necessary to make in order to ing from fo..

reign ports are get into the gulph stream. She called off the Ha- not within the

Convoy Act, vannah, which is on the north side of the island, unless there

are persons at but neither dropped anchor nor entered the har.

those ports aubour; the captain staid there less than an hour,

thorized to

grant convoy and during that time went in his boat within the

or licenses.

And it is not Moro castle. She then proceeded through the sufficient to

shew that con. gulph in her course to England, and was captured voys have been by an American privateer on the 17th. The vessel pointed from had no convoy or license.

those ports,

There had been a con- but proofinust voy on the 30th of June from Jamaica to England, be gi

be given that

bul, there are perbut she was not ready then. There was likewise sono stationed

there, legally a convoy at the latter end of July to England. authorized by

the Admiralty

to appoint Lens, serjeant, objected that the ship was not them. authorised to go to Havannah ; though it might be contended that she went there to seek convoy

1816.

The clause in the policy.as to the return of premium if she sail with convoy, does not authorise a deviation in quest of it.

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GIBBS, C. J.-Whatever is necessary for the safety of the ship, provided it be not excluded by the terms of the policy, may be done by the captain ; and what is so done, is done as agent to the underwriters. A vessel, when insured, may always do whatever it would be expedient to do if uninsured. She may deviate somewhat from the straight line of her track to seek convoy, when it is for the common good and preservation. It may be as justifiable to seek convoy as to avoid an enemy. Therefore, not only does the reduction of the premium, in case she sails with convoy, authorize her to seek it, but she is at liberty to do so for her own security.

The defendant's Counsel then relied on the Ist and 8th section of the Convoy Act, and contended that the vessel should have waited for convoy. In 1814, Admiral Brown was on the Jamaica station, and had actually appointed conyoys; one on the 30th of June ; another on the 30th of July. They did not produce any order from the Admiralty, which authorized Admiral Brown to grant convoy or licenses; but they contended, that it was to be inferred that he had this power from being nominated to the station, and having actually appointed convoys. . .

GIBBS, C. J.-Ships sailing from foreign ports are excluded from the restrictions of the Convoy

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