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them discounted for my account as favourably as possible, and remit me the balance in notes per registered letter to the address at foot. In the event of your not feeling disposed to discount the bills, I request you to return them to me provided with the needful. Excusing the trouble, I am Gentlemen, yours respectfully,

“Care of Mr. H. Henry Sultzberger."

"Henry Plana.

Upon receipt of these letters the Plaintiffs showed them with the bills and the indorsements on them to the Defendant, and inquired whether he would accept for honour of Messrs. Canevaro & Co., and the Defendant stated that he would. The Plaintiffs afterwards informed Mr. H. H. Sultzberger, and the person calling himself Plana, that they would discount the said bills upon their being accepted by the Defendant. The bills were thereupon duly protested for non-acceptance, and were then presented to the Defendant, and were left in his office for acceptance for twenty-four hours in the ordinary course of business, and he accepted the same in the following form:—

Accepted for honour and account of Messrs. Canevaro & Co., with charges 4s. London, 24th June. J. C. Im

Thurm & Co."

The Plaintiffs thereupon discounted the bills upon the faith of the acceptance of the Defendant, and remitted the proceeds as directed in the letters before set out. Shortly after the Plaintiffs had discounted the bills the Defendant received information of the facts above stated, and informed the Plaintiffs thereof, and upon the bills being presented to the Defendant at maturity he refused to pay them.

The Court was to be at liberty to draw any inferences from the above facts which a jury might draw.

The question for the opinion of the Court was whether under these circumstances the Plaintiffs were entitled to recover the amount of the bill from the Defendant. If the

Court should be of opinion in the affirmative, their judgment to be entered for the Plaintiffs for 4007. and interest, with costs; if in the negative, judgment to be entered for the Defendant with costs.

Hannen for the Plaintiffs.-This case was before the Court on a former occasion (a), on a demurrer to a plea which set up as a defence that the payee was a fictitious person. The Court held the plea bad on the ground that the Defendant, by accepting for the honour of the drawer, put himself in his position, and so was estopped from setting up that defence. The decision on the demurrer ought to decide the present question. Erle, C. J., there says, p. 701: "I take it to be clear that if the Defendant had not intervened, and the action had been brought by the holder of the bill against the drawer, the drawer would have been by law compelled to admit that the bill was a valid bill payable to bearer, or, in other words, that he would have been estopped from denying the indorsement of the payee. It seems to me that there is good. reason for saying, that that which the drawer would be estopped from denying the acceptor for honour should also be estopped from denying. I think he is equally bound to admit that the bill is a valid bill." These words are precisely applicable here. In Byles on Bills, 8th ed., p. 184, it is stated: "By acceptance, the drawee admits the signature and capacity of the drawer, and cannot, after thus giving the bill currency, be admitted to prove that the drawer's signature was forged. He moreover admits the then capacity of the payee, to whose order the bill. . . . is made payable, to endorse." Part of Lord Tenterden's judgment in Cooper v. Meyer (b), is to the following effect: "The acceptor ought to know the handwriting of the drawer, and is, therefore, precluded from disputing it; but it is said that he may,

(a) 18 C. B., N. S. 694.

(b) 10 B. & C. 468, 471.

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nevertheless, dispute the indorsement. Where the drawer is a real person, he may do so; but if there is in reality no IM THURM. Such person, I think the fair construction of the acceptor's undertaking is that he will pay to the signature of the same person that signed for the drawer." So here the Defendant must be taken to have known the handwriting of Canevaro. [Smith, J. In that case the bill was payable to the order of the drawer.] Gibson v. Minet (a) shows that in the case of an ordinary acceptor, who knows the payee to be fictitious, a bonâ fide holder may recover against him on the bill, and declare on it as payable to bearer. He may recover also on the money counts. Then the Defendant is estopped from denying the validity of the bill, on the ground that he has by his act warranted the genuineness of the signature of Canevaro. Wightman, J., in Ashpitel v. Bryan (b), in treating of estoppel, refers to the definition of it in "Les Termes de la Ley"-" Estoppel is where one is concluded and forbidden in law to speak against his own act or deed, yea, though it be to say the truth;" and he approves of a dictum of Tindal, C. J., in Sanderson v. Collman (c): "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."

J. A. Russell for the Defendant.-It is important to observe that the case finds that the handwriting on the face of the bill was undoubtedly in the handwriting of Arnaboldi, but it is only surmised that the indorsements were his. The whole writing on the face of the bill is a forgery, and, upon the evidence and correspondence, it appears that the Defendant accepted the names of Raffo and Plana as

(a) 1 H. Bl. 569.

(b) 3 B. & S. 474, 189.

(c) 4 M. & G. 209, 218.

genuine, upon the representation of the Plaintiffs and Sultz-
berger. It may be said that the acceptor for honour, by
putting his name on the bill, vouched for all the names
upon it; but that was not so, for the Defendant vouched
for the signature of the drawer only. It is argued on be-
half of the Plaintiffs that the acceptor stands in the position
of the drawer, with all his rights and liabilities; but it is
clear that if the drawer were sued on this bill, a denial of
the drawing would be a good defence. Hence the remedy
which an acceptor would have, in an ordinary case, would
in this instance fail. Then if a drawer can deny a signa-
ture alleged to be his, why should not the acceptor for
honour deny the drawer's signature also? There is no
authority for saying that in no state of circumstances can
the acceptor deny such a signature. [Byles, J. The ac-
ceptor gives currency to the bill here.] Reliance was placed
on Minet v. Gibson (a); but that case is not applicable, for
there all the parties knew the facts; and during the argu-
ment of Ashpitel v. Bryan, in error (b), Willes, J., p. 725,
points out that distinction. [Keating, J. This Defendant
knew that the Plaintiffs were about to advance money on
the representation arising from his acceptance.] Then the
law of estoppel does not go so far as this case.
It applies,
first, where the party who is sought to be estopped has
made a direct representation of some fact, or secondly,
where the parties have agreed to be bound by certain
assumed facts. But this is a case of mutual mistake, and
the Court, sitting as a jury, will not, without the strongest
ground for so doing, hold that the Defendant is estopped
by his acceptance of a bill, afterwards found to be forged:
Beeman v. Duck (c).

Hannen in reply.—It is said that this is a case of mutual mistake, but who took the first prejudicial step? Clearly

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the Defendant, upon whose acceptance it was that the Plaintiffs agreed to part with their money, i. e. to alter their position. According to the rule in Pickard v. Sears (a), for the representation thereby made the Defendant must be responsible.

ERLE, C. J. I am of opinion that our judgment should be for the Plaintiffs. If it were necessary I should be inclined to decide this case on one of the grounds pressed by Mr. Hannen that, on the effect to be given to the facts stated, this was a bill payable to bearer. The Defendant accepted the bill for the honour of Canevaro, whose name was forged. The acceptor for the honour of Canevaro cannot dispute his name as drawer; and as the payee is one Raffo, and the case finds that there is no such person, I should be inclined to hold, if need were, that according to the authorities the Defendant in so accepting was in the position that Canevaro would have been in if he had signed the bill, and that he has made himself liable as acceptor for a bill payable to bearer. But there is another ground on which it may be sufficient to rest our judgment. The bill in question was sent to the Plaintiffs with a letter from Sultzberger, informing them that the Defendant would intervene on behalf of the drawers, and saying that he presumed the Plaintiffs would, on the Defendant's signature being affixed, discount the bill. The Plaintiffs accordingly presented it to the Defendant, who in due course of business signed an acceptance for the honour of the drawer. Under these circumstances the Plaintiffs agreed to discount the bill, and the money was advanced. It is clear therefore that the Plaintiffs were induced by the Defendant to make that advance on the faith that he had a negotiable instrument, properly indorsed. The money of the Plaintiffs having been advanced on that representation, the Defendant is estopped from denying the facts, and the Plaintiffs are therefore entitled to recover.

(a) 6 A. & E. 469, 474.