568

ADMISSIONS ACTED UPON BY OTHERS.

whose jurisdiction the cause of action did not arise, it would seem that, in the event of an action being brought in one of the superior courts, he could not deprive the plaintiff of costs, on the ground that the plaint should have been entered in the district court (u).

§ 610. So, where the order of a judge was bad as a proceeding under the interpleader act (v), for want of a statement of consent upon its face, it was nevertheless held to be conclusive upon the parties, who, by their conduct, had agreed to submit the matter in dispute to the decision of the judge (x). So, although a breach of covenant can in no case be justified by a parol licence to break it (y), a forfeiture occasioned by it may be sometimes waived by the conduct of the covenantee. Thus, where a covenant to insure on the tenant's part was qualified by an option given to the landlord to insure if the tenant made default, and to add the premiums to his rent; it was held, in ejectment for a forfeiture for not insuring, that the defendant might defeat the action, by proving that the landlord had represented to him that he had exercised the power, and had himself duly insured the premises (z). So also, a tenant, who has paid rent, and acted as such, is not permitted, as we have stated more fully in another place (a), to set up a superior title of a third person against his lessor, in bar of an ejectment brought by him; for he derived the possession from him as his tenant, and shall not be allowed to repudiate that relation.

§ 611. This doctrine is also applied to the relation of bailor and bailee, and to that of principal and agent; the rule of law being clear that bailees or agents cannot be permitted to dispute the respective titles of their bailors or principals (b). If, therefore, a

(u) See Robinson v. Searson, 6 M. & Gr. 762; Jefferies v. Watts, 1 N. R. 153; 9 & 10 Vict. c. 95, §§ 58, 128, 129.

(v) 1 & 2 Will. 4, c. 58. See 1 Vict. c. 45, § 2.

(x) Harrison v. Wright, 13 M. & W. 816.

(y) Doe v. Gladwin, 6 Q. B. 953, 962; West v. Blakeway, 2 M. & Gr. 729. (2) Doe v. Sutton, 9 C. & P. 706; explained by Patteson, J., in Doe v. Gladwin, 6 Q. B. 962, 963; Doe v. Rowe, Ry. & M. 343; 2 C. & P. 246, S. C. See ante, § 573. (a) Ante, §§ 82-84.

(b) Dixon v. Hamond, 2 B. & A. 310, 313, per Abbott, C. J.; Story on Agency, § 217; Phillips v. Hall, 8 Wend. 610; Drown v. Smith, 3 New Hamp. 299;

ADMISSIONS ACTED UPON BY OTHERS.

569

warehouseman, wharfinger, banker, attorney, agent, or other depositary of goods or monies, has once acknowledged the title of a person as his bailor or principal, and has agreed to hold the goods or monies subject to his order, or to sell the goods and to account for the proceeds, he will be estopped from setting up the title of a third person to the same goods or monies, or from otherwise defeating the rights of his bailor or principal, against his own manifest obligations to him (c). An exception, however, will be allowed, where the bailor or principal has obtained the goods fraudulently or tortiously from the third person (d), provided the defendant can further show, that he was unacquainted with the circumstances when he made the admission (e), and that such third person has actually made a claim to the goods or monies in question (f). Perhaps the bailor's title might also be impugned, should the circumstances be such as to show that he, in connection with some third person, had practised a fraud on the bailee, by representing goods to belong to the bailor, which, in fact, were the property of such third person, if, in this case, additional proof were given, that the defendant, in consequence of the fraudulent misrepresentation, had sustained any real injury (g). On the same principle, a vendor, who has sold goods to a party as a sole purchaser, and has directed his factors to weigh them over to such party, and to enter them in his name in their books, cannot, after such sale and transfer, dispute his title as sole proprietor, or detain the goods, on the authority of a third person, who claims to be a joint purchaser (h).

Eastman v. Tuttle, 1 Cowen, 248; M'Neil v. Philip, 1 M'Cord R. 392; Chapman v. Searle, 3 Pick. 38, 44; Jewett v. Torry, 11 Mass. 219; Lyman v. Lyman, id. 317; Story on Bailm. § 102.

(c) Gosling v. Birnie, 7 Bing. 339; 5 M. & P. 160, S. C.; Stonard v. Dunkin, 2 Camp. 344, per Lord Elienborough; Harman v. Anderson, id. 243, per id.; Hawes v. Watson, 2 B. & C. 540; 4 D. & R. 22, S. C.; Dixon v. Hamond, 2 B. & A. 310; Roberts v. Ogilby, 9 Price, 269; anon. per Gould, J., cited 3 Esp. 115, and there recognised by Lord Kenyon; Farringdon v. Clerk, 3 Doug. 124; 2 Chit. R. 429, S. C.; Holl v. Griffin, 10 Bing. 246; 3 Moore, 732, S. C.; Nickolson v. Knowles, 5 Mad. 47; Evans v. Nichol, 3 M. & Gr. 614.

(d) Hardman v. Willcock, 9 Bing. 382, n.

(e) Per Alderson, J., in Gosling v Birnie, 7 Bing. 346.

(f) Betteley v. Reed, 4 Q. B. 511, 517, 518.

(g) Scott v. Crawford, 4 M. & Gr. 1031. (h) Kieran v. Sandars, 6 A. & E. 515.

570

ADMISSIONS ACTED UPON BY OTHERS.

§ 612. Again, in an action against the acceptor of a bill, the defendant cannot show that his signature has been forged, if he has accredited the bill, and induced the plaintiff to take it, by saying that the acceptance was his, and that the bill would be duly paid (h). But here we must remember, that no consideration of estoppel as between the parties can have any weight, where the rights of the revenue intervene; and, consequently, an acceptor of a bill of exchange, which purported on its face to have been drawn abroad, has been allowed to defeat an action, by showing that the bill was in fact drawn in this country, and, being an inland bill, was void for want of a stamp; and this, too, though it was proved that the bill was drawn in the form in which it appeared at the express request of the defendant, and that the plaintiff, a holder for value, was not cognizant of the circumstance (i). So, the maker of a banker's cheque may defraud a bonâ fide holder for value, by proving that the cheque was post-dated, and as such inadmissible in evidence without a stamp (j).

§ 613. The acceptance of a bill of exchange is also deemed a conclusive admission, as against the acceptor, of the signature of the drawer (k), and of his capacity to draw (7); and if the bill be payable to the order of the drawer, of his capacity to indorse (m); and if it be drawn by procuration, of the authority of the agent to draw in the name of the principal (n); and it matters not, in this respect, whether the bill be drawn before or after the

(h) Leach v. Buchanan, 4 Esp. 226, per Lord Ellenborough; recognised by Erskine, J., in Sanderson v. Collman, 4 M. & Gr. 222.

(i) Steadman v. Duhamel, 1 Com. B. 888.

(j) Field v. Woods, 7 A. & E. 114; 2 N. & P. 117, S. C.; recognised in Steadman v. Duhamel, 1 Com. B. 892, 893. These cases certainly savour of cruel injustice.

(k) Sanderson v. Collman, 4 M. & Gr. 209; 4 Scott, N. R. 638, S. C.; Bass v. Clive, 4 M. & Sel. 13.

(7) Id. See Haly v. Lane, 2 Atk. 182, per Lord Hardwicke.

(m) Taylor v. Croker, 4 Esp. 187, per Lord 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.

(n) Robinson v. Yarrow, 7 Taunt. 455; Jones v. Turnour, 4 C. & P. 204, per Lord Tenterden.

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571

acceptance (o). There is however, in general, no such admission on the part of the acceptor, of the genuineness of the signature of the payee, though he be the same party as the drawer (p), or of any other indorser (q); and this, too, although at the time of the acceptance, the indorsements were on the bill (r). Neither does the acceptance admit, that an agent, who has drawn a bill by procuration, payable to the order of the principal, has authority to indorse the same (s). 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 (t); 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 (u). 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 (x).

§ 614. The reasons for this distinction between the case of a drawer and that of an indorser, who signs the bill before the

(0) Schultz v. Astley, 2 Bing. N. C. 544, 552, 553; 2 Scott, 815, S. C. (p) Macferson v. Thoytes, Pea. R. 20; Bosanquet v. Anderson, 6 Esp. 44, per Lord Ellenborough; Cooper v. Meyer, 10 B. & Cr. 471, per Lord Tenterden. (q) Id.

(r) Smith v. Chester, 1 T. R. 654.

(s) Robinson v. Yarrow, 7 Taunt. 455; recognised in Beeman v. Duck, 11 M. & W. 255.

(t) Beeman v. Duck, 11 M. & W. 251, 255.

(u) Id.

(x) Cooper v. Meyer, 10 B. & C. 468, 471, per Lord Tenterden; 5 M. & Ry. 387, S. C.; explained and recognised by Parke, B., in Beeman v. Duck, 11 M. & W. 253-256.

572

ADMISSIONS ACTED UPON BY OTHERS.

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 negociable securities, by rendering the position of acceptors hazardous and undefined (y).

§ 615. In accordance with the law which estops an acceptor from disputing the genuineness of the drawing, it has been held that the indorsement by the payee of a promissory note is a conclusive admission of the handwriting of the maker (z); and it was long the prevailing opinion in Westminster Hall that the indorsement of a bill of exchange also operated as an estoppel on the indorser to deny any of the preceding signatures. This last doctrine, however, has lately been questioned by the Court of Exchequer (a); and though an indorsee who sues an indorser, may doubtless be saved the necessity of proving the prior indorsements, by alleging in the declaration that the defendant indorsed a bill purporting to be drawn by the drawer, and indorsed by him to defendant (b); yet if he chooses to aver positively that the bill was drawn by a certain person, it seems that the defendant is still competent in law to deny that fact, though his indorsement is cogent, and almost irresistible, evidence of its truth (c). In those cases where the admission is conclusive, it may either be replied by way of estoppel in pais (d), or if the matter of estoppel

(y) See Story on Bills of Ex. § 263; Robinson v. Yarrow, 7 Taunt. 458, per Park, J.; Smith v. Chester, 1 T. R. 654; Canal Bk. v. Bk. of Albany, 1 Hill, N. Y. R. 287.

(*) Free v. Hawkins, Holt, N. P. R. 550, per Gibbs, C. J.

(a) Armani v. Castrique, 13 M. & W. 443. But see Critchlow v. Parry,

2 Camp. 182, per Lord Ellenborough.

(b) Armani v. Castrique, 13 M. & W. 449, 450, per Parke, B.

(c) Id. 451, 452, per Pollock, C. B.

(d) Sanderson v. Collman, 4 M. & Gr. 209; 4 Scott, N. R. 638, S.C.