then given the said Edward Rawson Clark another acceptance and a check for 1007. for the purpose of renewing the same: that the said conduct and behaviour of the defendant on the occasion aforesaid, and his conduct next thereinafter mentioned, respectively, confirmed the plaintiff in his, the plaintiff's, belief that the acceptance of the said bill in this replication first aforesaid was the genuine signature and acceptance of the defendant, and that he was liable thereon as the acceptor of the last-mentioned bill, and induced the plaintiff to act, and the plaintiff did accordingly and in *consequence thereof act, as thereinafter [*277 alleged that, after the lapse of eight days after the defendant had so inspected the last-mentioned bill, the defendant by and through the said Edward Rawson Clark, his, the defendant's, agent in that behalf, and in consideration of the delivery up to him of the said last-mentioned bill as thereinafter mentioned, delivered to the plaintiff the said bill in the declaration mentioned, so drawn, accepted, and endorsed as therein and herein alleged, and paid to the plaintiff the sum of 607.; and the plaintiff thereupon, at the request of the defendant, by the said Edward Rawson Clark, his agent in that behalf, then delivered to the said Edward Rawson Clark, as and being such agent as aforesaid, who then, as such agent as aforesaid, took and received respectively for and on behalf of the defendant the said bill of exchange in that replication first above mentioned: and that the said bill of exchange so given up by the plaintiff to or for the defendant as aforesaid has never been returned by the defendant or otherwise howsoever to the plaintiff, and the defendant did not give the plaintiff notice, nor did the plaintiff receive notice, nor did he know or believe, nor had he reason to believe, that the last-mentioned bill was not accepted by him the defendant, or by his authority, until thirty days had elapsed after the same had been so as aforesaid delivered to and received by the said Edward Rawson Clark, as such agent as aforesaid.

The defendant joined issue upon the second replication; and, for a second rejoinder, said,—that he did not discover that the signature of his name upon the said bill of exchange so given up by the plaintiff for the defendant as aforesaid, was not his, the defendant's, signature, until the expiration of the said period of thirty days in the second replication mentioned; and that then, when he first discovered the same, he forthwith gave notice thereof to the plaintiff, and then offered to return to the plaintiff the last-mentioned bill of exchange, and then [*278 tendered the same to the plaintiff, but the plaintiff refused to receive the same; and that, from the time of his, the defendant's, first discovering that the said signature was not his, the defendant's, signature, hitherto, he the defendant had always been ready and willing to return to the plaintiff the last-mentioned bill of exchange, whereof the plaintiff had always during that period had notice: and that, at the time. when he offered to return the last-mentioned bill of exchange to the

plaintiff as aforesaid, and tendered the same as aforesaid, and from thence hitherto, the plaintiff might and could have enforced payment of the last-mentioned bill against the said Francis Villiers and Edward Rawson Clark, or any other party to the said bill, and recovered from them the amount thereof, as fully and effectually as he the plaintiff could have enforced payment or recovered the amount thereof at the time when the plaintiff first gave up the last-mentioned bill for the defendant as aforesaid, or any time between that period and the time when the defendant offered to return and tendered the last-mentioned bill of exchange to the plaintiff; and that the plaintiff did not lose, nor was he deprived of, any remedy upon the last-mentioned bill, nor was he nor had he been in any way prejudiced by reason of his having given up the last-mentioned bill of exchange for the defendant as aforesaid, otherwise than as in the said replication and herein appeared. Issue thereon.

The cause was tried before Pollock, C. B., at the last assizes at Guildford. It appeared that Lord Maidstone had, in the year 1852, accepted two bills for 1000l. each for the accommodation of Mr. Villiers, which bills had been renewed several times, but, according to the defendant's evidence, ultimately paid; that the bill declared on had been accepted by the defendant, and delivered by him to one Clark,-who acted as a sort of go-between, *but whether as the agent of the plaintiff or *279] of the defendant did not very distinctly appear,-upon the faith of a representation that there was a bill outstanding and about to become due, for the like amount, drawn by Villiers and accepted by the defendant, in the hands of the plaintiff; that the bill in lieu of which the defendant so accepted the bill declared on was shown to the defendant by the plaintiff's attorney, and ultimately given up to the defendant, and was kept by him for about a month without any objection, but at the end of that time was pronounced by him to be a forgery.

Several witnesses who were acquainted with the defendant's handwriting distinctly swore that the acceptance on that bill was not the defendant's.

On the part of the plaintiff, evidence was offered to show that he had given value for the bill of which the bill alleged to be a forgery was one of a series of renewals; but there was considerable confusion as to the identity of the several bills, which ultimately led the jury to discredit the plaintiff's testimony.

The plaintiff's attorney also proved, that, when the bill which was alleged to be forged was first shown to the defendant, he took it up and looked at it, but never suggested that it was not his genuine acceptance; and he further proved, that, on the dishonour of the supposed forged bill, notice of that fact was duly given to the drawer and endorser.

The Lord Chief Baron reported to the Court, that, "in leaving the case to the jury, he told them, that the action was brought upon a genu

ine acceptance of Lord Maidstone's, and the defence was that it had been given to pay or take up a forged bill; that, although the forgery would have been a ground of defence to an action on the forged bill, it was no defence to an action on the bill with which the forged bill was paid or taken up, if the plaintiff was a bonâ fide holder for value; and that the jury *must find that the defendant had been defrauded out of the bill, and that the plaintiff had not given value, and was not the bonâ fide holder."

[*280

The jury found that the defendant had been defrauded, and that the plaintiff had not given value for the bill; and accordingly they returned a verdict for the defendant.

Montagu Chambers, Q. C., in Michaelmas Term last, obtained a rule nisi for a new trial, on the ground that the learned judge had misdirected the jury in telling them, that, to entitle the plaintiff to recover, it was incumbent on him to prove that he gave value for the forged bill,-such question not being in issue or raised by the pleadings, and also on the ground that the verdict was against the evidence.

There being some misapprehension as to how the matter really was left by the Lord Chief Baron, Cresswell, J., on a subsequent day conferred with his Lordship, who stated that the only question at the trial was, as to the consideration given for the bill declared on; for, that, if the plaintiff was not the bonâ fide holder of the forged bill, there was no consideration for this bill.

E. James, Q. C., Ballantine, Serjt., and Holl, showed cause. [CRESSWELL, J.-The way in which the Lord Chief Baron puts it seems to get rid of the difficulty. If the plaintiff was not the bonâ fide holder for value of the forged bill, he could not be the bonâ fide holder for value of the bill declared on: and that is distinctly put in issue by the replication, which alleges that the plaintiff was "the lawful holder thereof for value." Lush (for the plaintiff).—It is only that which is material that is in issue. The giving up of the forged bill may be a sufficient consideration for the renewed bill. CRESSWELL, J.— *The Lord Chief Baron seems to think that a mistake which the [*281 plaintiff fell into in giving his evidence, led to a misapprehension of the real facts, and that there ought to be a new trial.] The defendant's case was substantially this,―The bill declared on was dated the 17th of March, 1855. That was a genuine bill; but it was accepted by the defendant, and handed over by him (through Clark) to the plaintiff in substitution for a bill which Clark represented to be a genuine acceptance at three months from the 16th of December, 1854, and which consequently would become due on the 19th of March, 1855, but which turned out to be a forgery. The plaintiff, in substance says,-I was the bonâ fide holder for value of that bill, and by your laches I have lost my remedy against the drawer and endorser, and that gives me a remedy against you on the substituted bill. When this case was before the

court on demurrer,-18 C. B. 273,-Jervis, C. J., said: "As a general rule, the holder of a bill of exchange has a right to know whether or not it has been duly honoured by the acceptor at maturity; and, when the bill is presented, if the acceptor pays it, the money cannot be recovered back, if the acceptor has the means of satisfying himself of his liability to pay it, though it should turn out that the acceptance was a forgery. Can it make any difference, that, instead of paying money for the bill, he takes the bill, examines it, and gives another acceptance in lieu of it?" And Cresswell, J., said: "A man accepts a bill of exchange purporting to be drawn by one Thompson, and pays it, and it afterwards turned out to be a forgery; he cannot afterwards be permitted to say that he paid the money under a mistake. I apprehend the same result must follow, if, in lieu of money, a fresh acceptance is given; and particularly where the party has retained the instrument in his hands so long as the defendant has done in this case. From the circumstances disclosed on this *record, the law will infer a loss to *282] the plaintiff." No complaint is made of that decision upon the then state of the record. But the important question here is, what was the substantial issue the parties went down to try? The material allegations on the part of the plaintiff are, that he was the lawful holder for value, and had no notice or knowledge at the time of giving up the bill to the defendant that the signature thereto purporting to be the defendant's was not his genuine signature. The plaintiff attempted to prove that he was the holder for value of the forged bill. That was the real and substantial issue to be tried; and as to that the proof failed. The bill being tainted, the onus of proving value given for it clearly lay on the plaintiff: Bailey v. Bidwell, 13 M. & W. 73,† 2 D. & L. 245; Berry v. Alderman, 14 C. B. 95 (E. C. L. R. vol. 78). [COCKBURN, C. J.— The plaintiff will contend that the bill declared on is not tainted.] The same principle equally applies: the plaintiff is substantially suing upon the forced acceptance. Besides, as the plaintiff thought fit to take upon himself the burthen of proving that he was the bonâ fide holder for value, the learned judge was well warranted in assuming that that was the true issue between the parties; and it is not competent to the plaintiff now to dispute it: Martin v. The Great Northern Railway Company, 16 C. B. 179 (E. C. L. R. vol. 81).

Montagu Chambers, Q. C., and Lush, in support of the rule.-The Lord Chief Baron clearly misdirected the jury, in so putting it to them as to cast the burthen of proof upon the wrong party. The statement in the replication, that the plaintiff was the lawful holder for value of the bill of the 16th of December, 1854, was wholly immaterial. It was not an affirmative allegation which the plaintiff was called upon or bound to prove. The real issue was, whether the plaintiff had not, when he gave up the bill which is alleged to have been forged, a *remedy *283] against Villiers and Clark upon it, which remedy he lost by the

defendant's conduct. If he had, the judgment of this court upon the demurrer is conclusive of the question. In Cocks v. Masterman, 9 B. & C. 902 (E. C. L. R. vol. 17), 4 M. & R. 676, a bill purporting to have been accepted by A. was presented to his bankers on the day when it became due. The latter, believing it to be the genuine acceptance of A., paid the amount, but, on the following day, having discovered that the acceptance was a forgery, they gave notice of that fact to the party to whom they had paid the bill, and required him to return the money. In giving the judgment of the court, Bayley, J., says: "We give no opinion upon the point whether the plaintiffs would have been entitled to recover if notice of the forgery had been given to the defendants on the very day on which the bill was paid, so as to enable the defendants on that day to have sent notice to other parties on the bill. But we are all of opinion that the holder of a bill is entitled to know on the day when it becomes due whether it is an honoured or dishonoured bill, and that, if he receive the money, and is suffered to retain it during the whole of that day, the parties who paid it cannot recover it back. The holder, indeed, is not bound by law (if the bill be dishonoured by the acceptor) to take any steps against the other parties to the bill till the day after it is dishonoured. But he is entitled so to do, if he thinks fit; and the parties who pay the bill ought not by their negligence to deprive the holder of any right or privilege." Then, as to the consideration, but for the mistake which the plaintiff made in describing one of the series of bills with the defendant's acceptance which had passed through his hands, the jury could have had no difficulty in coming to the conclusion that he had given full value for the bill (whichever it was) of which he took upon himself to show that he was the bonâ fide holder. He ought, therefore, to have an opportunity of correcting that blunder before another jury.

*COCKBURN, C. J.--I am of opinion that this rule must be dis[*284 charged. In the first place, I think there was no misdirection on the part of the Lord Chief Baron. The plaintiff brings his action upon a bill of exchange alleged to have been drawn by one Lawley upon and accepted by the defendant, and endorsed by Lawley to Clark, and by Clark to the plaintiff. The defendant admits the acceptance, but says that there was no consideration for that acceptance but the giving up to him by the plaintiff of another bill which purported to bear his acceptance, and which he believed at the time to be his genuine acceptance, but which he afterwards discovered to be a forgery, whereof he immediately, and within a reasonable time, gave the plaintiff notice. The plaintiff, in answer to that, replies, that, when the forged bill became due, he, then being the lawful holder thereof for value, and having no notice or knowledge that it was a forgery, caused the same to be presented; that the defendant inspected the last-mentioned bill, and, instead of declining to pay the bill on the ground that it was forged, informed