
    Samuel Grant and Another versus Robert G. Shaw.
    One who has received the bill of lading and invoice of goods consigned to him, cannot be charged as the trustee of the consignor, until the goods have arrived, and the consignee has accepted the consignment.
    The drawee of a bill of exchange, after protest for non-payment, and after the bill had been returned, called on the endorsee, who had presented .t, and promised him, if he would obtain the bill, that he, the drawee, would pay it; and the promise was holden to be binding.
    The defendant was summoned on the 5th of April, 1816, as the trustee of Ridgioay if Balch, merchants in Philadelphia; and not appearing in the original, action, the plaintiffs sued this writ of scire facias, to have judgment against him', as for his own debt.
    The defendant appeared upon the scire facias, and submitted to examination ; upon which the following facts appeared. On the 20th of March, 1816, Ridgioay If Balch *drew [ * 343 ] a bill of exchange on the defendant for 2000 dollars, payable' to «S'. if T. Nevins If Co. or order, at three days’ sight; which being presented by Gilbert if Bean, to whom it was endorsed, was refused acceptance on the 25th of March, and was protested for non-payment at its maturity. The bill was drawn on the strength of a shipment of goods, which Ridgioay if Balch were about making to the defendant, and which were actually shipped on the 29th of March, and the bills of lading and invoices thereof came to the defendant’s hands on the first of April. Immediately on the receipt of these, the defendant called on Gilbert if Bean, and offered to. pay the bill; but was informed that it was returned to Philadelphia. He then told them, if they would send for the-bill, he would pay it out of the funds in his hands. Gilbert if Bean accordingly sent for the bill, and again presented it; but the defendant having been, in the mean time, summoned as trustee of Ridgioay if Balch by the plaintiffs and others, he declined paying it, until those suits should be determined, and he be discharged therefrom. The goods arrived and were received by the defendant on the 9th of April; after which he was served with divers processes as the trustee of Ridgioay if Balch. The plaintiffs caused the defendant to be again summoned after the arrival of the goods, but not until after other creditors had also served him with processes.
    
      Thatcher, for the plaintiffs.
    The defendant had a constructive possession of the goods shipped to him, at the time our process was served upon him. When they were shipped, they were in the hands oí the shipmaster, as his agent.
    The promise of the defendant to Gilbert if Bean was not binding oh him: They were not then the holders of the bill. By protesting and returning it, they had fixed their claims on the drawers and endorsers. It had ceased to be negotiable, and had lost all the features of a bill of exchange. His promise must have been made [ * 343 ] upon condition * that he could indemnify himself from the proceeds of the goods. These were arrested in his hands before the bill came back. They might have been lost on the voyage . Here too was but a verbal promise to accept the bill, which has never been held to be binding.
    
      Hubbard, for the defendant.
    The drawing of the bill in this case amounted to an assignment of the property shipped . The defendant promised the holders of the bill, to pay them out of the proceeds of the goods shipped, and he had the authority and directions of the shippers so to pay it . The promise was good as a conditional acceptance; and the holders of the bill having fulfilled the condition, the promise became absolute. Such an acceptance may be verbal . An acceptance after the day of payment is binding .
    If the defendant is charged as trustee in this suit, he will still have no defence against Gilbert & Dean 
      .
    But it is clear, upon the facts disclosed, that Ridgway Sf Raich. had no cause of action against Shaw, at the time the plaintiffs summoned him as their trustee. On the 5th of April he had no effects of theirs in his hands.
    
      
       1 East, 98, Johnson vs. Collings.
      
    
    
      
       12 Mass. Rep. 206, Cutts vs. Perkins.
      
    
    
      
       5 Mass. Rep. 330.
    
    
      
      
        Cowp. 571. —1 D. & E. 182. —Chitty, 140. —Doug. 197. —5 East, 514.
      
    
    
      
       1 L. Raym. 364, 547. —Cas. Temp. Hardw. 74.
    
    
      
       4 Mass. Rep. 85.
    
   Parker, C. J.,

delivered the opinion of the Court. There are two reasons, each of which is decisive against charging the trustee in the present suit.

Unless he is chargeable on account of the shipments to him from Philadelphia, before the goods came into his possession here, the plaintiff cannot prevail; because processes were served upon him by other creditors, before the plaintiffs’ writ was served after the arrival of the goods. And we are very clear that he was not trustee, until he had accepted the consignment, and had received the goods Until then it rested in contingency, whether he would be a debtor of the consignors or not. Had the goods been lost, he would have owed nothing; and had he refused the consignment, which he might have done, the effect would have been the same. Several cases cited in the argument, establish the principle, that where the [ * 344 ] person summoned * as trustee is not the absolute debtor, or has not the effects of the principal in his hands, he cannot be charged.

But as there are other suits depending upon the other question in the cause, we think it best to state, that the facts disclosed by the defendant show an assignment of the balance in his hands to Gilbert fy Dean, to the amount' of the bill of exchange drawn by Ridgway Sf Balch in favor of Nevins & Co., and endorsed to them.

Had the defendant accepted the bill when presented to him, there could have been no question. His promise to accept and pay it, if it should be returned, was binding on him, and he could not have refused to pay it, if, in consequence of this promise, they had omitted to look to the drawers and endorsers, relying upon his promise. This engagement on his part gave him a lien upon the goods for his indemnity.

Several of the cases cited show that a promise to accept, even . after a protest for non-acceptance, is binding; and that a promise to accept, made after the bill becomes due according to its tenor, amounts to a promise to pay immediately.

Conditional promises also, if accepted by the holder, are binding upon the happening of the condition. The defendant promised Gilbert Demi, if they would get the bill back, he would accept and pay it; and they obtained the bill. This promise was binding on him; and being made before he was summoned as trustee, he has a right to retain the goods for his indemnity .

Trustee discharged. 
      
       [Vide Chitty on Bills, 8th Edition, London, pp. 350—353. —Ed.]
     