1816. TALVER and Another v. WEST. Best, serjeant, and Comyn, for plaintiffs. Vaughan, and Copley, serjeants, for defendant. [Attornies, Cluton and C. -Meyrick and B.] Where goods are ponderous, and incapable of being handed over from one to another, there needs not be an actual delivery, but it may be done by that which is tantamount, such as the delivery of a key of the warehouse in which the goods are lodged, or by the delivery of other indicia of property. So if the purchaser deal with the commodity as if it were in his actual possession, this will supersede the necessity of proving actual delivery. Chaplin v. Rogers, 1 East, 192. See likewise Kent ▼. Huskinson, 3 B. and P. 233. Hinde v. Whitehouse, 7 East, 558. Anderson v. Scott, 1 Camp. 235. 1816. MILN V. PREST and Another. A promise accept a nonexisting bill is no acceptance of a bill when drawn, unless nicated to the to receive the bill, and who thereby in. duced to take is in it. An accept ance is as valid by parole as by writing, and a condi fectual as an ACTION on a bill of exchange, drawn on the 10th of August, 1815, by Wilson in favour of Smart, and indorsed to the plaintiff. The question was, whether under the circumstances of the case, the act of the defendant was equivalent to a legal it be commuacceptance. The drawer, who resided at Dundee, person who is was agent for the defendants, and had consigned some wheat to them. He had been employed to purchase corn, and the present bill was given payment for the wheat. Some letters of the defendants were read, in one of which (9th August, 1815,) they write to Wilson, "We acquit you of tional acceptbuying wheat instead of oats-we will however ance is as ef accept the bills for the wheat when we receive no- absolute one, tice of its being shipped." On the 14th, Wilson wrote to the defendants, and inclosed an invoice of the wheat which was then on the voyage, and requested the defendants to honour the bill which he had drawn. On the 16th, a clerk took the bill to Prest and Sons to be accepted, and left it. On the next morning he called, and was told the defendants had no advice, and was requested to call again. On the 18th he called for the last time, and was told that the bill would not be accepted until the wheat arrived. Shortly afterwards the wheat arrived, which the defendants accepted and sold. Vaughan, for defendants.-The bill is drawn the if the condi tion be com plied with. 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 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 receive and sell it. This is the precise case of Pier 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 v. PREST and Another. Vide Pillans v. Van Mierop, Burr. 1663. Pierson v. Dunlop, 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. |