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 (a), Lord Tenterden C. J. said, "The acceptor ought to know the handwriting of the drawer, and is therefore precluded from disputing it." (b) 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 (d) 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 (a) 10 B. & C. 468., 5 M. &R. 387. (b) See also Schultz v. Astley, 2'N. C. 544. (c) If by deed indented, Plowd. 434a., W. Jones, 317. (d) 1 Wms. Saund. 323 c., 1842. SANDERSON บ. COLLMAN. 1842. SANDERSON V. Serjt. Williams remarks in a note (a), "This rejoinder, though a frivolous one, and pleaded with a view to entrap the plaintiff, is, however, in the nature of an COLLMAN. 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 (6) 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 (c) 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. Huddart (d); neither is a recital in a deed; Bowman v. Rostron. (e) (a) 1 Wms. Saund. 325 a. (b) This is in the realty. (d) 5 Tyrwh. 846., 2 C. M. 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. 1842. v. COLLMAN. 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 SANDERSON 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 Daniker 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 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 (b) that "where the demise is not by deed, there can be no pleading by way of estoppel; especially as (a) 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 1842. บ. COLLMAN. the declaration may, by virtue of the statute 11 G. 2. c. 19., be in the general form for use and occupation; SANDERSON 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 (d) 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 (a) i. e. by deed indented. (c) Wilkinson v. Lutwidge, 1 Stra. 648.; Cooper v. Le Blanc, 2 Stra. 1051. (d) 2 B. & C. 293., 3 D. & R. 534. 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 (a), 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 (a) 8 M. & W. 616. (b) See Mackay v. Wood, 7 M. & W. 420, 1842. SANDERSON V. COLLMAN. |