2 - banker's cheque provided it were payable to bearer on demand,' might have defrauded a bonâ fide holder for value, by proving that the cheque was post-dated, and, as such, inadmissible in evidence without a bill stamp. But this doctrine, which certainly savoured of cruel injustice, has been repudiated by the Court of Exchequer; and it seems now to be the law, that if a cheque,whether payable to bearer or to order,-appears, when tendered in evidence, to bear on its face a sufficient stamp, the court will receive the document, and will not allow any proof to be given that it had actually been post-dated, and that the holder had taken it with knowledge of that fact.* 3 5 7 § 851. The acceptance of a bill of exchange is also deemed a ? 778 conclusive admission, as against the acceptor, of the signature of the drawer, of his capacity to draw; and if the bill be payable to the order of the drawer, of his capacity to indorse; and if it be drawn by procuration, of the authority of the agent to draw in the name of the principal; and it matters not in this respect, whether 8 1 Whistler v. Forster, 32 L. J., C. P. 161; 14 Com. B., N. S. 248, S. C.; Austin . Bunyard, 4 Fost and Fin. 253, per Cockburn, C. J.; Bull v. O'Sullivan, 6 Law Rep., Q. B. 209; 40 L. J., Q. B. 141, S. C. 2 Field . Woods, 7 A. & E. 114; 2 N. & P. 117, S. C.; recognised in Steadman v. Duhamel, 1 Com. B. 892, 893. 3 Austin r. Bunyard, 34 L. J., Q. B. 217; 6 B & S. 687, S. C. Gatty r. Fry, L. R., 2 Ex. D. 265; 46 L. J., Ex. 605, S. C.; Emanuel v. Robarts, 6 B. & S. 687; 34 L. J., Q. B. 217, S. C. See 45 & 46 V., c. 61, 54. 6 Sanderson v. Collman, 4 M. & Gr. 209; 4 Scott, N. R. 638, S. C.; Bass v. Clive, 4 M. & Sel. 13. Id. See Haly v. Lane, 2 Atk. 182, per Ld. Hardwicke. 8 Taylor v. Croker, 4 Esp. 187, per Ld. Ellenborough; Pitt v. Chappelow, 8 M. & W. 616; Drayton v. Dale, 2 B. & C. 293; 3 D. & R. 534, S. C. All these cases were recognised by the court in Sanderson v. Collman, 4 M. & Gr. 218, 219, 224. See, also, Braithwaite v. Gardiner, 8 Q. B. 473, where, in an action by the indorsee against the acceptor of a bill, the defendant was held to be estopped from pleading that the drawer and first indorser was an uncertificated bankrupt when the acceptance was given, and that his assignees had demanded payment. So, in a similar action, it was held, that the defendant could not plead under the old law, that the drawer and first indorser was a married woman from the date of the drawing down to the time of the indorsing of the bill. Smith v. Marsack, 6 Com. B. 486; 6 Dowl. & L. 363, S. C. See ante, ? 842. 9 Robinson v. Yarrow, 7 Taunt. 455; Jones v. Turnour, 4 C. & P. 204, per Ld. Tenterden. 5 the bill be drawn before or after the acceptance.' The law, however, in general, recognises no such admission on the part of the acceptor, either of the signature of the payee, though he be the same party as the drawer, or of that of any other indorser;3 and this, too, although, at the time of the acceptance, the indorsements were on the bill. Neither does the acceptance admit, that an agent, who has drawn a hill by procuration, payable to the order of the principal, has authority to indorse the same; nor is the acceptor of a bill, which a partner has drawn in the partnership name and made payable to the firm's order, estopped from showing that in fact it was not indorsed by the firm or negotiated for any partnership purpose. So, if on a bill payable to the order of the drawer the name of a real person as drawer and indorser be forged, it seems that the mere acceptance of such bill, in ignorance of the forgery, will not preclude the acceptor from denying the genuineness of the indorsement, though it be in the same handwriting as the drawing which he is bound to admit; but if the acceptor, with knowledge of the forgery, puts the bill in circulation, he will be estopped from disputing the validity of the indorsement equally with that of the drawing In this last event the case is considered to fall within the principle of Cooper v. Meyer, which decides that if the bill be drawn in a wholly fictitious name, and the handwriting of the indorsement be the same as that of the drawing, the acceptor will be estopped from denying it, because he admits that the bill is drawn by somebody, that is, by the person who indorses in the same handwriting, and the fair construction to be put on his undertaking is, that he will pay to the signature of the same person who signed for the drawer." 8 1 Schultz v. Astley, 2 Bing. N. C. 544, 552, 553; 2 Scott, 815, S. C.; Hallifax v. Lyle, 3 Ex. R. 446; Lond. & S. West. Bk. v. Wentworth, L. R., 5 Ex. D. 96. But see Baxendale v. Bennett, L. R., 3 Q. B. D. 525, per Ct. of App.; 47 L. J., Q. B. 625, S. C. 2 Forster v. Clements, 2 Camp. 17; Macferson v. Thoytes, Pea. R. 20; Bosanquet v. Anderson, 6 Esp. 44, per Ld. Ellenborough; Cooper v. Meyer, 10 B. & C. 471, per Ld. Tenterden. 3 Id. Smith v. Chester, 1 T. R. 654; Robarts v. Tucker, 16 Q. B. 560. 5 Robinson v. Yarrow, 7 Taunt. 455; recognised in Beeman v. Duck, 11 M. & W. 255. Garland v. Jacomb, 8 Law Rep., Ex. 216, per Ex. Ch. 8 Id. 9 Cooper v. Meyer, 10 B. & C. 468, 471, per Ld. Tenterden; 5 M. & R. 387, § 852. The reasons for this distinction between the case of a 8 779 drawer and that of an indorser, who signs the bill before the acceptance, are not very clear; but those usually assigned are, that, as the acceptor is only presumed to be acquainted with the handwriting of the drawer, it is sufficient if he ascertains that his signature is genuine; that he is not bound to look at the back of the bill at all; that, even if he were, he could not be supposed to know the handwriting of indorsers, who would probably be strangers to him; and that a different rule would raise nice questions of fact in every case, as to whether the bill was indorsed before or after acceptance, and would consequently embarrass the circulation of negotiable securities, by rendering the position of acceptors hazardous and undefined.1 $853. In accordance with the law which estops an acceptor from 780 disputing the genuineness of the drawing, the indorsement by the payee of a promissory note is a conclusive admission of the handwriting of the maker; and the indorsement of a bill of exchange will also operate as an estoppel on the indorser to deny any of the preceding signatures.3 § 854. Having now fully discussed the effect of such admissions & 781 as have been acted upon, it is right to point out that those admissions, which either have been made without any intention of being acted upon, or which have not been acted upon, or by which the situation of the opposite party has not been prejudiced or altered, though receivable in evidence against the parties making them, are not conclusive. Thus, if A. contracts to sell timber S. C.; explained and recognised by Parke, B., in Beeman v. Duck, 11 M. & W. 1 See Story, Bills, 263; Robinson v. Yarrow, 7 Taunt. 458, per Park, J.; See Howard v. Hudson, 2 E. & B. 1; White v. Greenish, 11 Com. B., 5 to B., and gives him a delivery order, he may still, on B.'s bankruptcy, meet an action of trover brought by B.'s trustee, by showing that the delivery order was invalid, and therefore did not amount to a constructive delivery of the goods, provided B. has neither paid for them, nor sold them to a third party. So, in an action against a marshal, for the escape of a prisoner arrested at the suit of the plaintiff, the defendant, by having received the prisoner into custody, is not estopped from disputing the legality of the custody.2 Neither will the court treat as conclusive evidence the admission that his trade was a nuisance, by one indicted for setting it up in another place; or the admission by the defendant, in a petition for damages by reason of adultery, that the "teterrima causa was the wife of the plaintiff. So a sheriff's return, though it be conclusive evidence, in the particular cause in which it is made, or for the purposes of an attachment, does not operate as an estoppel in any other action or proceeding, either as against the sheriff or as against his bailiff. So, also, a creditor is not estopped from bringing an action against a sheriff for a false return, by accepting the amount levied on account and towards the satisfaction of the debt mentioned in the writ; and where a person brought an action of trover for a dog, he was held not to be precluded from proving his title to it, though he had previously authorised a third party, against whom the defendant had brought a similiar action, to deliver it to the defendant, in the place of paying 501, which was the alternative directed by the verdict; the third person having, at the time of delivery, demanded back the dog, on behalf of the 6 N. S. 209; Foster v. Mentor Life Assur. Co., 3 E. & B. 48; Carr v. Lond. & N. West. Ry. Co., 44 L. J., C. P. 109; 10 Law Rep., C. P. 307, S. C.; Coventry v. Gt. East. Ry., L. R., 11 Q. B. D. 776. 1 Lackington . Atherton, 7 M. & Gr. 360, 363-365. 2 Contant . Chapman, 2 Q. B. 771. 3 R. v. Neville, Pea. R. 91, per Ld. Kenyon. * See 20 & 21 V., c. 85, § 33. 5 Morris v. Miller, 4 Burr. 2057; further explained in Rigg r. Curgenven, 2 Wils. 399. 6 Standish v. Ross, 3 Ex. R. 527; Brydges v. Walford, 6 M. & Sel. 42; 1 Stark. R. 389, n. S. C.; Jackson v. Hill, 10 A. & E. 477; Remmett v. Lawrence, 15 Q. B. 1004; Levy v. Hale, 29 L. J., C. P. 127; Stimson v. Farnham, 41 L. J., Q. B. 52; 7 Law Rep., Q. B. 175, S. C. 154. Holmes v. Clifton, 10 A. & E. 673, overruling Beynon v. Garrat, 1 C. & P. 2 plaintiff, as his property.' In these, and the like cases, no wrong is done to the other party, by receiving any legal evidence to show that the admission was erroneous, and by leaving the whole evidence, including the admission, to be weighed by the jury. § 855. The case of Freeman v. Cooke' carries this doctrine to 782 its extreme limit, if it does not transgress the strict bounds of law. That was an action of trover brought against a sheriff for seizing the plaintiff's goods under a fi. fa. against his brother, to which the defendant pleaded not guilty, not possessed, and leave and licence. It appeared at the trial, that the plaintiff, fearing an execution, had removed his goods to his brother's house, and when the sheriff's officer came there, the plaintiff, supposing that he had a writ against himself, warned him not to seize the goods, as they belonged to his brother. The officer, however, producing his writ, which was against the brother, the plaintiff, before the goods were actually seized, told him that they were the property of a third party; but the officer disregarded this last statement, and seized and sold the goods, as belonging to the brother. On this state of facts, the jury found that the goods were the plaintiff's, but that, before the seizure, he falsely stated to the officer that they belonged to his brother, and that the officer was thereby induced to seize them as his brother's. The court, on this finding, directed the verdict to be entered for the plaintiff, on the grounds, first, that the plaintiff did not intend to induce the officer to sieze the goods as those of the brother; and next, that no reasonable man would have seized the goods on the faith of the plaintiff's representations taken altogether. § 856.5 In some few cases, connected with the administration of 2783 public justice and of government, admissions have been held con 1 Sandys v. Hodgson, 10 A. & E. 472. 2 Gr. Ev. 209, four lines. 3 See ante, 22 804-808. See, also, Machu v. Lond. & S. West. Ry. Co., 2 Ex. R. 415; Greenish v. White, 31 L. J., C. P. 93. 2 Ex. R. 654, 664; 6 Dowl. & L. 187, S. C. 5 Gr. Ev. 210, in part. |