the acceptor, (as that case-Wilkinson v. Lutwidge-[213] seems to have been), and where it is brought by an indorsee for a valuable consideration, as in the present, (Jenys v. Fawler)." The dictum of Buller J., in Smith v. Chester (1 T. R. 654, 655), will probably be relied on by the other side. His lordship said, "when a bill is presented for acceptance, the acceptor only looks to the hand-writing of the drawer, which he is afterwards precluded from disputing; and it is on that account that an acceptor is liable, even though the bill be forged;" but that dictum was not necessary for the decision of the case. There is a similar dictum by Dampier J. in Bass v. Clive (4 M. & S. 13, 15), but which also was extra-judicial. Price v. Neal (3 Burr. 1354, i W. Bl. 390), in which Jenys v. Fawler was cited (3 Burr. 1356), will likewise be relied on; but it does not bear upon this case; the only question there being, whether, under the circumstances, an action for money had and received could be maintained. Secondly, even supposing the defendants were concluded from disputing the drawing of the bills, such matter is not pleadable by way of estoppel. The plaintiffs have endeavoured to put matter of evidence upon the record; which is contrary to one of the first rules of pleading. A defendant, in his plea, may always traverse a material allegation made by the plaintiff in his declaration. In an action against a drawer of a bill, although the bill has been accepted, it is not necessary to aver the acceptance (e); but, in a declaration against the acceptor, it is necessary to allege the drawing; and that allegation, therefore, may be traversed. It does not follow that what may be conclusive as evidence, can be pleaded by way of estoppel. In the instances of land-[214]-lord and tenant, and several other cases, one party is estopped from disputing certain things, but the estoppel is not pleadable. In an action by landlord against tenant, if the defendant plead nil habuit, the plaintiff may demur (a), If the lease be by deed, the plaintiff may certainly reply that fact by way of estoppel, because the demise is by indenture.

Thirdly, if the estoppel here was pleadable, it has not been properly pleaded. Although this is a technical objection, it is entitled to consideration. Matter of estoppel must be pleaded with every particularity. In order to raise an estoppel in this case it should have been shewn that the defendants had an opportunity of inspecting the bills when, or before, they accepted them. But the replications here have not stated the circumstances necessary to give rise to such an estoppel. They do not allege that the defendants had sight of the bills, and accepted them in writing; and the language of the declaration does not help the omission. Both counts of the declaration, indeed, state that "the defendants had sight of the said bill of exchange, and then accepted the same;" but the defendants had no opportunity of traversing the allegation that they had sight of the bills. The statute (1 & 2 G. 4, c. 78, s. 2), having made no alteration with respect to the acceptance of foreign bills, a foreign bill may still be accepted by parol, or by a writing not on the face of the instrument. The allegation in the declaration-that the defendant had sight of the bills,-was therefore immaterial, and consequently not traversable. The allegation in question is, in fact, made with reference to the sixty days which are computed from the day of sight; and any thing tantamount, that would have fixed the day of [215] payment, would have answered the purpose, as well as a reference to the day of sight.

Bompas Serjt. in support of the replications. The first question in this case is, whether the acceptance of the bills would be conclusive, in evidence, so as to preclude the acceptors from setting up that the bills were not drawn by the alleged drawers. In Wilkinson v. Lutwidge there was no decision on the point; and if it is to be taken to have been decided in Cooper v. Le Blanc, that case is contrary to the rest of the authorities. In Jenys v. Fawler the judge refused to admit evidence of the forgery. The language of the judges in Smith v. Chater and Bass v. Clive is very strong in support of this position. So, in Cooper v. Meyer (10 B. & C. 468, 5 M. & R. 387),

(e) Unless the bill be accepted, payable at a particular place, in which case it is necessary to account for, as well as to shew, the special presentment at that place for payment, and the allegation is traversable.

ture.

(a) This would only be so where the declaration stated the demise to be by indenIf the demise were so in fact, but it was not stated in the declaration, the plaintiff should reply the indenture by way of estoppel; for if he plead over, he loses the benefit of the estoppel. See 1 Wms. Saund. 325 a., n. (4).

Lord Tenterden C. J. said, "The acceptor ought to know the handwriting of the drawer, and is therefore precluded from disputing it" (b)1.

Secondly, there being an estoppel in fact, it may be pleaded. [Tindal C. J. Is there any case in which matter of evidence has been pleaded by way of estoppel?] A deed is an instance; for that is a matter of fact which is pleadable by way of estoppel (c). In Veale v. Warner (1 Wms. Saund. 323 c., 326; 2 Keble, 568) the declaration was in debt on bond; the defendant having set out the bond on oyer, which was conditioned to perform an award, pleaded an award made that he, the defendant, should pay a certain sum, and averred payment; the plaintiff in his replication traversed the payment; whereupon the defendant rejoined, by way of estoppel, that the plaintiff had given a receipt for the money, and prayed judgment-if the plaintiff, against his own acknowledgment, ought to be admitted to deny payment of the money. Upon which [216] Serjt. Williams remarks in a note (1 Wms. Saund. 325 a., n. (4)), "This rejoinder, though a frivolous one, and pleaded with a view to entrap the plaintiff, is, however, in the nature of an estoppel in pais; viz. that the plaintiff, after acknowledging in writing that the defendant had paid him the money, ought not to be admitted to deny the payment of it; like the case of an estoppel by acceptance of rent (b)2 in Co. Litt. 352 a., and therefore properly concludes with relying upon the estoppel; according to the rule of pleading, that every plea ought to have its proper conclusion,-as a plea to the writ, to conclude to the writ; a plea in bar, to conclude to the action; an estoppel, to rely upon the estoppel." The definition of an estoppel given in the Termes de la Ley (tit. Estoppel, p. 330, ed. 1667) is as follows; "Estoppel is, when one is concluded and forbidden in law to speak against his own act, or deed, yea though it be to say the truth ;" and several instances are there given. The plaintiffs here contend that the defendants by their own act-namely, by having accepted the bills-are concluded from disputing the fact that they were drawn by Daniker and Wegmann. Not only was it competent to the plaintiffs to rely on the acceptance as an estoppel, but it was requisite that they should do so; for there are instances where a matter, which is sufficient as an estoppel, if so pleaded, is not conclusive as evidence; as, for example, a judgment in ejectment is not conclusive evidence of title in the action for mesne profits, unless it be pleaded by way of estoppel; Doe v. Huddard (d); neither is a recital in a deed; Bowman v. Rostron (e).

[217] Thirdly, the estoppel here is sufficiently pleaded. It was not necessary for the plaintiffs to shew that the defendants had sight of the bills before they accepted them. If they, in fact, accepted them, it is immaterial whether they had sight of them or not. If this be not so, the averment in the declaration, that the defendants had sight of the bills, and then accepted the same, is material. The allegation in the replication that the plaintiffs, at the time the bills were indorsed, had no notice or knowledge that they were not drawn by Daniker and Wegmann is probably immaterial; but that will not affect the validity of the replication. At any rate, if the replications be bad in form, the plea is bad also; for the validity of both depends upon the same question. To deny that Dæniker and Wegmann drew the bills, is no answer to the declaration.

Channell Serjt. in reply. The plea undoubtedly depends upon the same question as the replications. The note of Mr. Serjt. Williams to Veale v. Warner, which has been cited, only means that the estoppel was rightly pleaded in point of form, though it was bad in substance (a). Doe v. Huddart does not apply to the present case; for

(b)1 See also Schultz v. Astley, 2 N. C. 544.

(c) If by deed indented, Plowd. 434 a. W. Jones, 317, 459; 4 N. & M. 29. (b) This is in the realty.

(d) 5 Tyrwh. 846, 2 C. M. & R. 316. See also Doe v. Wright, 10 A. & E. 763, 2 P. & D. 672. A judgment, generally speaking, is no estoppel, unless so pleaded; see Outram v. Morewood, 3 East, 346; Vooght v. Winch, 2 B. & A. 662. See also Magrath v. Hardy, 4 N. C. 782, 6 Scott, 627.

(e) 2 A. & E. 295, n. 4 N. & M. 551. See also Carpenter v. Buller, 8 M. & W. 209 ; and Bowman v. Taylor, 2 A. & E. 278, 4 N. & M. 265.

(4) This was, at least, not so decided. The rejoinder was probably pleaded to provoke the demurrer which ensued; but the question turned upon the validity of the award as set out in the plea; the defendant's counsel having purposely omitted part of the award so as to make it appear insufficient: and the plaintiff, by pleading

it may be admitted that matter of estoppel by record or by deed, is not conclusive unless pleaded; but it is not so with matters in pais. It is laid down in Chitty on Pleading (vol. i. p. 603) that "where the demise is not by deed, there can be no pleading by way of estoppel; especially as [218] the declaration may, by virtue of the statute 11 G. 2, c. 19, be in the general form for use and occupation; but it must be remembered that in general, even in such case, the party to whom the premises were let, or his assignee, shall not be permitted to dispute the title of the landlord by whom the former was let into possession, or the title of the assignee of such lessor.” [Cresswell J. Suppose it appeared from the declaration that the plaintiff had let the defendant into possession of the premises as tenant.] Unless it appeared that it was by deed (a), it is submitted, it could not be pleaded as an estoppel (b). The instances given in the Termes de la Ley appear to be all of estoppel by deed or by matter of

record.

TINDAL C. J. The first point in this case is, whether the drawee, after accepting and thereby giving an apparent validity to a bill, has a right, in an action against him as acceptor, to set up as a defence that the name of the drawer was forged, or other matter invalidating the bill. And it appears to me that he has no such right. It certainly does seem that, in the two authorities cited from Strange (c), there was a readiness on the part of the judges to admit evidence of forgery; but subsequent cases have excluded such a line of defence. Most of these have been mentioned in the argument; but I will refer to two others which appear to me very strong upon this point. Drayton v. Dale (2 B. & C. 293, 3 D. & R. 534) was an action by the indorsee, against the maker, of a promissory note, made payable to one Clarke or his order; the defendant, by his second plea, pleaded that Clarke before the making of the note, became a bank-[219]-rupt and that his property was duly assigned to assignees, whereby the interest, title and right to indorse the promissory note, before the time of indorsement, became vested in the assignees; whereby the indorsement by Clarke was void, and created no right in the plaintiffs to sue. The plaintiff replied that the indorsement was made with the consent of the assignees; and issue was taken on that allegation; upon which a verdict was found for the defendant. But the court held that the plaintiff was entitled to judgment non obstante veredicto, because the defendant, who had made the note payable to Clarke or his order, was estopped from saying that Clarke was not competent to make an order. In Pitt v. Chappelow (8 M. & W. 616), which was an action by the indorsee against the acceptor of a bill drawn by one Baker, payable to his own order, there was a somewhat similar plea, but setting forth a second commission of bankruptcy against the drawer, under which 15s. in the pound had not been paid, and alleging that thereby the bill vested in the assignee under such second commission, and that Baker had no right to indorse; but the court held there also that the defendant was estopped by his acceptance of the bill, payable to Baker's order, from saying that Baker was incapable of transferring the bill by indorsement (b). The only difference I can see between these two cases, is, that in the former, the objection was taken after verdict; in the latter, upon demurrer, as in the present case. These are both strong authorities to shew that an acceptor having once acknowledged the right of a party to indorse, cannot afterwards deny that right; and I think they are equally strong, by inference, to establish, that an acceptor cannot set up a want of authority, or a want of identity, as to the party by whom the bill professes to have been [220] drawn. And this doctrine is of the greatest importance as applicable to bills drawn abroad, which obtain their credit and currency here on the faith of the acceptance, and not on the signature of the drawer, who generally is a stranger.

The question then arises,-whether the plaintiffs can set this up by way of estoppel. It is said that this may be evidence-and even conclusive evidence-against the defen

over, instead of setting out the real award, having admitted the award as set out to be the true one. It was for this "trick," and "subtle pleading," that Saunders, the defendant's counsel, was "reprehended" by Kelynge C. J.

(a) I.e. by deed indented.

(b) See 1 Wms. Saund. 325 a., n. (c) ; 6 N. & M. 641, 643. Ante, vol. i. 129, 142; vol. ii. 843; vol. iv. 147, n.

(c) Wilkinson v. Lutwidge, 1 Stra. 648; Cooper v. Le Blanc, 2 Stra. 1051. (b)2 See Mackay v. Wood, 7 M. & W. 420.

dant, but that the plaintiffs cannot avail themselves of it as an estoppel. If, however, we find upon the record, a fact which would have entitled the plaintiffs to a verdict, I do not see why they may not rely upon that fact by way of estoppel. Estoppel may be by matter of record, by deed, and by matter in pais (Co. Litt. 352 a.). If, by the last branch, it is meant only that the matter may be given in evidence, it would certainly not be pleadable, and ought not to be put on the record. But there seems to be no reason why the meaning should be so confined. No very precise instances are given in the books where matter of this sort has been pleaded. But it is to be remembered that under the old system of pleading, almost every defence might have been given under the general issue; and the plaintiff, therefore, could not have known that a defence would be attempted to be set up which the defendant was estopped from making (6). Lord Coke in Co. Litt. 352 a., speaking of estoppel by matter in pais, refers to estoppel by acceptance of rent; and it may be said that this naturally would be matter of evidence; but looking at the whole of the context, he appears to me to be treating it as being on the record, rather than as a matter for the jury.

[221] With regard to the third objection, it appears to be answered by the declaration, which, after setting out each bill of exchange, alleges that the defendants had sight thereof, and then, that is after having had sight of the bill,-accepted the same. Upon the whole I think there must be judgment for the plaintiffs.

COLTMAN J. I am of the same opinion. Notwithstanding some of the earlier cases, I think it may be taken as settled, that the acceptor of a bill of exchange is not at liberty to shew that it was not drawn by the party who appears to be the drawer. My brother Channell has argued that this is not a matter of plea, but matter of evidence, and that matter of evidence cannot be pleaded. But the meaning of that rule, I apprehend, is, that a party shall not plead facts from which another fact, material to the issue, is to be inferred. But here the defence itself is pleaded. Then it is said that matter in pais cannot be pleaded by way of estoppel. Veale v. Warner is certainly no authority for such a mode of pleading. I think, however, that if a party has a legal defence to that which is set up against him, he cannot be precluded from pleading such defence. Then, it is argued that, at any rate, the estoppel is not sufficiently pleaded, inasmuch as it does not appear in the replications, that the defendants had sight of the bills. But if the bills were accepted by the drawees, it is not material whether they saw them or not. It is of immense importance that it should be understood as settled that a party who accepts a bill, is thereby precluded from disputing the drawing of that bill. Bills are received by bankers and bill-brokers upon the faith of the acceptance by the drawees, who must be presumed to have sufficient means of satisfying themselves as to the authenticity of the instruments.

4

[222] ERSKINE J. If this action had been brought before the new rules came into operation, the question would have arisen at nisi prius; for under the plea of non assumpsit, the defence now raised by the second plea, would have been set up in evidence. And the question is, would the matter now replied have been a good answer to such defence, if raised under the general issue. Though former cases tend to shew that an opinion existed that forgery of the drawer's signature might be given in evidence in an action against the acceptor, the later authorities all concur in deciding that this cannot be done. In addition to those already cited, I will mention the case of Leach v. Buchanan (4 Esp. N. P. C. 226), which was an action against the acceptor of a bill, and where Lord Ellenborough held, that the defendant could not be allowed to shew that the acceptance was a forgery after he had 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. I am, therefore, of opinion that if this question had arisen upon evidence given at the trial, the plaintiffs would have been held not to be at liberty to dispute the regular drawing of the bill.

Then comes the next question, whether this answer to the defence set up, is pleadable by way of estoppel. Since the new rules, the defence itself could clearly not have been given in evidence under the plea of non assumpsit. The defendants therefore have pleaded that Dæniker and Wegmann, the alleged drawers, did not make the bills. The plaintiffs, in their replications, add, as a further fact, that which Lord

(b) This was so for more than a century preceding the rules of H. 4 W. 4, in actions of assumpsit and case. Matter of estoppel, however, arose more frequently in actions of trespass and replevin, in which, practically, there was no general issue.

Ellenborough considered material in Buchanan v. Leach,-namely, that they took the bills upon the faith of the defendant's accept-[223]-ance thereof. Why should that not be pleaded? It is laid down that an estoppel may be by act of record, by deed, or by act in pais. In the present case the estoppel arises by an act done by the defendants, which is neither of record nor by deed. It is difficult to say that at the trial the judge might have admitted evidence to prove that the drawing of the bills had been authenticated by the defendant's acceptance; but that the fact could not be pleaded.

But then, it is contended, that if the matter be pleadable, it is not well pleaded; for it is said, it does not appear, on the face of the replications, that the bills were accepted after the drawees had had an opportunity of seeing the handwriting of the drawers. But it appears to me that each of the answers given by my brother Bompas to this objection is sufficient. It is alleged in the declaration, and admitted by the plea, that the defendants accepted the two bills in question; for the admission is, not that the defendants accepted some bills, but that they accepted these very bills (a)1. Besides which, taking the replications and the admitted parts of the declaration together, it appears that the defendants had sight of the bills purporting to be drawn by Daniker and Wegmann, before the acceptance.

CRESSWELL J. I also think that there must be judgment for the plaintiffs upon this record. The declaration states that certain persons using the style and firm of Dæniker and Wegmann, in parts beyond the seas, made [224] their bills of exchange in writing, and thereby required the defendants to pay to Bahlsen or order, 6001. and 10001., at sixty days' sight; and that the defendants had sight of the said bills of exchange, and then accepted the same. The defendants plead that Dæniker and Wegmann did not make the bills in the declaration mentioned. The first question is, -does this plea disclose any legal defence to the action? It is a very common method of testing the validity of a defence set up at nisi prius, to inquire how the evidence would look if expanded on the record. Supposing, under the old plea of the general issue, it had been admitted, or proved, that the bills declared on had been accepted by the defendants, and evidence had been then tendered on the part of the defendants that the bills were not drawn by the alleged drawers, there can be no doubt that the evidence would have been immediately rejected. Then why should a party be allowed to allege on the record that which he would not be allowed to prove? Drayton v. Dale was even a stronger case than the present. There, a defendant, who had made a promissory note payable to A., or his order, was held to be estopped from saying that A. had not legal capacity to indorse the note. In Taylor v. Croker (4 Esp. N. P. C. 187) the acceptor of a bill drawn by two infants, payable to their own order, was held to be estopped from saying that the drawers, by reason of their infancy, were not competent to indorse. It has been ingeniously suggested that the acceptance, in this case, may have been by letter. To this it is sufficient to say, that the acceptance is admitted as it is alleged. As the fact is stated in the declaration, I think the plea is clearly bad; because it sets up as a defence, an allegation which, if true, is no answer to the action. I will merely add that I see no reason why the matter upon which [225] the plaintiff's rely should not be replied by way of estoppel (a)2. Judgment for the plaintiffs (b).

(a) If the defendants, without seeing the bills held by the plaintiffs, had agreed verbally or in writing to accept two bills for 6001., &c., drawn by D. & W., and the bills held by the plaintiffs (and produced at the trial), had been forgeries, the proper plea would seem to have been,-not that the bills accepted by the defendants were not drawn by D. & W., but that the bills held and sued on by the plaintiffs were not accepted by the defendants.

(a) The plaintiff might, it would seem, have demurred to the plea, the matter of estoppel appearing on the face of the declaration (vide ante, p. 209), and the plea containing no answer to the action.

(b) And see Lainson v. Tremere, 1 A. & E. 792, 3 N. & M. 603.