1816. MILN v. 10th of August: defendants' letter is dated the 9th. The bill was not at that time in existence. No promise to accept a bill not in existence will bind a PREST and party. The doctrine of implied acceptance has been carried to the utmost verge of the law, and ought not to be extended. He cited Johnson v. Collings, 1 East, 98. Another. 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 communicated 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 acceptauce 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 receive and sell it. This is the precise case of Picr son v. Dunlop. I am of opinion that what the defendants have done is equivalent to an accept ance. Verdict for plaintiff. Best, serjeant, and Campbell, for plaintiff. Vaughan, and Copley, serjeant, for defendants. 1816. MILN D. PREST and Vide Pillans v. Van Mierop, Burr. 1663. Pierson v. Dun lop, Cowp. 571. Mason v. Hunt, Douglas, 284–297. A promise to accept, made upon an executory consideration, is not binding, so long as such consideration remains executory, unless it influence some person to take or retain the bill. See antea Pillans v. Van Mierop. A promise in a letter that a bill shall meet with due honour, or that the writer will accept or certainly pay it, is an acceptance. Vide Clarke v. Cock, 4 East, 57. and Wynne v. Raikes, 5 East, 514. Although the letter be not received until after the bill has become due; and although no person has been induced by such promise to take the bill: so a verbal promise to accept, though the party expressly defer a written acceptance, as where he says, leave the bill and I will accept it, is a complete acceptance. So a verbal promise to accept a returned bill when it shall come back is binding, if it do not come back. Vide D. Molloy, b. 2. c. 10. s. 20. Mar. 2d. ed. 17. and Cox v. Colman, M. 6 Geo. 2. cited arguendo Ann. 75. An answer by the drawee when a bill is called for, "there is your bill, it is all right," is no acceptance. Vide Powell v. Jones, Espinasse, 17. It seems that the drawee's keeping a bill presented to him for acceptance, may amount to an acceptance. Vide Harvey v. Martin, K. B. M. T. 1806. But by the usage of trade, a banker in London will not render himself responsible by retaining a check drawn on him, provided he return it any time before five o'clock in the 1816. MILN v. PREST and Another. evening, of the day on which it is drawn. Vide Fernandey v. Glynn, 1 Campb. N. P. C. 426. An acceptance to pay when remitted for, is a conditional acceptance. Vide Banbury v. Lissett, Str. 1211. So an answer by a drawee who lived in London, that a ship was consigned to him and a person at Bristol, and that till he should know to which port the ship would come he could not accept, connected with a subsequent answer that the bill was a good one, and would be paid though the ship should be lost, was held a conditional acceptance only; it being clear that the drawee looked for an opportunity of reimbursing himself, and had three events in contemplation; the ship's arrival at Bristol; her arrival in London; and her loss: in the two latter he should have the opportunity, and therefore accepted: in the former, he should not, and did not accept. Vide Sproat v. Mathews, 1 T. R. 182. A conditional acceptance becomes absolute as soon as its conditions are performed. Thus an answer by the drawee that he could not accept, until a Navy Bill should be paid, was thought to operate as an absolute acceptance upon the payment of the Navy Bill. See antea Pierson v. Dunlop, and Bayley on Bills of Exch. 79. 81. 84. 1816. THIS D'AGUILAR v. TOBIN. deviate some straight line of seek for con her track to HIS was an action on a policy of insurance A vessel may the ship, the Samuel Cumming, at and what from the upon from Jamaica, and Trinidad in the island of Cuba, to any port or ports of her discharge in the United Kingdoms; warranted to sail from Cuba on or be fore the 1st of August, 1814. Loss by capture. voy; and the expressly prohibited by the terms of the policy, may always do, when insured, whatever it would be expedient captain, unless for the common security The vessel took in ballast from Jamaica: sailed July 6th for Trinidad di Cuba: arrived the 10th. She sailed again the 1st of August at six o'clock, p. m. and got out of harbour that night. She took to do, if uniuher course for Cape Antonio at the west end of the Ships sailisland, which it was necessary to make in order to get into the gulph stream. She called off the Havannah, which is on the north side of the island, the sured. ing from fonot within the Convoy Act, unless there' reign ports are are persons at thorized to or licenses. sufficient to And it is not shew that con. but neither dropped anchor nor entered the har- those ports aubour; th the captain staid there less than an hour, grant convoy and during that time went in his boat within Moro castle. She then proceeded through the gulph in her course to England, and was captured by an American privateer on the 17th. The vessel had no convoy or license. There had been a convoy on the 30th of June from Jamaica to England, but she was not ready then. There was likewise a convoy at the latter end of July to England. Lens, serjeant, objected that the ship was not authorised to go to Havannah; though it might be contended that she went there to seek convoy. actually ap those ports, voys have been pointed from but proof must there are persons stationed there, legally authorized by the Admiralty to appoint them. be given that 1816. D'AGUILAR' 2. TOBIN. 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. 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 1st 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 convoys; 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 |