the plaintiff that he had given Clark another acceptance in renewal of it; that the defendant's conduct confirmed the plaintiff in his belief that the acceptance was genuine; and that the plaintiff had no notice that the bill was a forgery, until after the lapse of thirty days after he had delivered it up to the defendant,-whereby the plaintiff was delayed in his remedy against the drawer and endorser, and which delay he relies on as an answer to the defendant's plea. The plaintiff thus raises the question whether or not he was the bonâ fide holder for value of the first bill; which was left, and, as I think, properly left, to the jury. It is said that the Lord Chief Baron ought to have told the jury that the onus lay upon the defendant to prove that the plaintiff was not the bonâ fide holder for value, and not upon the plaintiff to prove that he was, for that the circumstances at all events raised a presumption in the plaintiff's favour that he was a *holder for value. I do not *285] think the principle contended for on the part of the plaintiff has any application here. Such a presumption can only arise in the case of a genuine instrument. If once you show a bill tainted with illegality or fraud, the presumption of bona fides which ordinarily arises from the endorsement ceases. A fortiori where you show that the instrument is forged. I therefore think that the Lord Chief Baron was quite right in holding that the onus lay on the plaintiff, and that he was bound to prove the allegation in his replication that he was the holder of the bill for value.

Then, as to the evidence,-I cannot say that the jury were not perfectly warranted in finding as they did. The plaintiff, having notice that the bill the giving up of which formed the consideration for the defendant's acceptance of the bill declared on, was a forgery, ought to have come prepared with a full and complete explanation of the circumstances under which he became possessed of it. He had ample opportunity to give such explanation; and I think the jury were justified in presuming strongly against him when he failed to make it out. It is suggested that he fell into a mistake. There is no affidavit of that: the application is simply on the ground that the verdict was against the evidence, not of surprise. It being admitted, then, that the plaintiff fell into a grievous mistake, I cannot see how it can be contended that the jury, upon the evidence as it stands, were not warranted in coming to the conclusion they came to: and the application not being in a form to enable us to give the plaintiff relief on any other ground, I think we should not be justified in sending the cause down again.

CRESSWELL, J.-I am entirely of the same opinion. First, as to the direction of the Lord Chief Baron to the jury,-it is said that he was wrong in leaving it to them to inquire whether the bill which was given up as the *consideration for the renewed bill,-the bill declared *286] on, came to the hands of the plaintiff as a bonâ fide holder for value. Upon the pleadings I think that question certainly did arise.

The plea in substance states that there was no consideration for the defendant's acceptance of the bill declared on, by reason of the fact of the bill in substitution for which it was given being a forgery. The plaintiff, in substance, replies that the defendant had consideration for his acceptance; for, that he, the plaintiff, was the bonâ fide holder for value of that bill, and delivered it up to the defendant in exchange for the bill declared on, and that the defendant kept it, so that the plaintiff lost his remedy against the drawer and endorser. I think it is impossible to say that upon that replication the question whether not the plaintiff was the bonâ fide holder for value was not in issue. The true question is, as to what was the evidence necessary to sustain the affirmative of that issue. There was indisputable evidence that the bill of the 16th of December, 1854, was a forgery. Did that cast upon the plaintiff the onus of proving that he was the bonâ fide holder for value? Take the old case of endorsee against acceptor, with a plea of the general issue. At the trial the plaintiff would produce the bill, which would be primâ facie evidence of value. The defendant then shows fraud. This casts upon the plaintiff the necessity of proving that he was a bonâ fide holder for value, the bill being tainted. Is not the bill as much tainted by showing that a felony has been committed with respect to it, so as to call upon the holder to prove consideration? Mr. Lush has argued very ingeniously that the defendant, by doing that which is tantamount to paying the bill, has materially altered the position of the plaintiff. It does not, however, appear to me that the plaintiff's position is at all altered with reference to this issue. With regard to the case of Cocks v. Masterman, and that *class, it is to be observed that it was [*287 taken for granted that the parties were bonâ fide holders for value. Payment could have no other effect than to raise a presumption of the genuineness of the bill. As to the evidence, I entirely concur with the Lord Chief Justice in thinking that there is no ground, framed as this motion is, for sending the cause down to a new trial.

CROWDER, J.-I am of the same opinion. As to the first point, I think there clearly was no misdirection on the part of the learned judge. The real question to be decided by the jury upon these pleadings, was, whether or not the plaintiff was the bonâ fide holder for value of the' forged bill. The defence set up by the plea, is, that the bill declared on was accepted by the defendant for the purpose of renewing a former bill which was represented to bear his signature as acceptor, but which he subsequently discovered to have been forged. To this the plaintiff replies, though true it is that that former bill was forged, you had consideration for the giving of the bill declared on, by my giving up the forged bill, of which I was the bonâ fide holder for value, and my remedies thereon against the drawer and endorser. When this case was before the court upon demurrer, the question was whether the defendant was not estopped by his conduct in not at once repudiating the forged

bill, from setting up this defence. According to Mr. Lush's argument to-day, the plea would have been bad for not negativing that the plaintiff was a bonâ fide holder for value. The court suggested, on the first argument, that the replication was bad for not averring that the plaintiff was the bonâ fide holder for value: and the replication was amended accordingly. The real question, therefore, the parties went down to try, was, whether or not the plaintiff was the bona fide holder for value of that forged bill. It is now said that the Lord Chief Baron misdirected the jury; for that he *should have told them to find *288] for the plaintiff unless they were of opinion that the defendant had established the fact of the forgery of the bill of the 16th of December, 1854, and that the plaintiff was not the bonâ fide holder for value. I am, however, of opinion that the direction of the Lord Chief Baron was perfectly right. I entirely agree with my Brother Cresswell as to the rule of law in the case of a bill tainted with fraud or illegality: and the rule applies with equal force to the case of a bill which is forged. No implication arises in favour of the holder of a forged bill. If he attempts to take the benefit of it as a valid instrument, it lies on him to establish his right to maintain an action upon it, by showing that he took it bonâ fide and for value.

As to the evidence,-I own I should have been inclined to agree with the Lord Chief Baron that there ought to have been a new trial, if the plaintiff had shown by affidavit that he had fallen into a mistake in giving his evidence. He has not, however, done so: and, upon the evidence as it stands, I cannot see that the jury came to a wrong conclusion. Rule discharged.

*289]

*PROSSER, Administrator of ROBERT SLOLEY, deceased, v. WAGNER and Another. Nov. 26.

Semble, that payment of a debt to an administrator to whom letters of administration have been regularly granted, exonerates the debtor, though it should turn out that there is a will existing.

The court refused to stay the proceedings in an action at the suit of an administrator, upon a suggestion that there was a will in India, which the intestate's widow, who was thereby appointed executrix, had intimated her intention to bring to this country to prove.

THIS was an action brought by the plaintiff, as administrator of Robert Sloley, deceased, to recover a sum of 3301. for money alleged to have been received by the defendant in the lifetime of the intestate, and also for money received after his death; with a count in trover. Pleas to the indebitatus counts, never indebted, and payment; and to the count in trover, not guilty, and that the goods were not the property of the plaintiff.

Upon affidavits stating, that Sloley had formerly resided in Calcutta,

but returned to England, and died in London on or about the 26th of June last; and showing, from statements made by him a short time before his death, and from letters since received from his wife in Calcutta, that he had left a will there, whereof he had appointed his wife and one Braddon executrix and executor; and that the widow intended to come to this country to prove the same,

Phipson, on a former day in this term, moved for leave to add a plea to the effect that Sloley had made a will, and appointed executors, and that they had not renounced probate thereof; or that the proceedings in this suit might be stayed until the will should be proved. It is true, it was held in Allen v. Dundas, 3 T. R. 125, that a probate, as long as it remains unrepealed, cannot be impeached in the temporal courts; and that payment of money to an executor who had obtained probate of a forged will, was a discharge to the debtor of the intestate, notwithstanding the probate was afterwards declared null, and administration was granted to the intestate's next of kin. But letters of administration stand upon a different footing: the grant of probate is a judicial act of a *court having competent jurisdiction; the taking out administration is the act of the party. [WILLES, J. [*290 -Could you not have pleaded ne unques administrator?] That seems doubtful. [WILLES, J.-There was a case of the sort in the Exchequer recently, where the plea is set out in extenso.] Stokes v. Bate, 5 B. & C. 491 (E. C. L. R. vol. 11), 8 D. & R. 247 (E. C. L. R. vol. 16), is to the same effect. In Com. Dig. Administrator (B. 10), it is said: "If administration be granted upon the concealment of a will, and afterwards the will appears, all mesne acts by the administrator are void: Pl. Com. 280; Abram v. Cunningham, 2 Lev. 182: (a) though the executor refuse, and do not prove the will when it is produced; for, the administration was void, and cannot be of effect by the refusal of the executor afterwards: vide Show. 411." [WILLIAMS, J.-Suppose the executors set up the will, and the ecclesiastical court granted letters of administration,-could you raise the point, and try the validity of the will by a jury?] Probably not. In Hensloe's Case, 9 Co. Rep. 40 b, 41 a, it is said: "It is worth observation for the reason of the principal case, how probate of wills and granting of administrations shall be tried, if they are traversed or denied in the King's courts; and, therefore, if issue be joined in the King's courts, that the ordinary did not commit administration to the plaintiff, &c., or that the will is not proved before the ordinary, or that he whose will is proved before the ordinary died intestate, or that he of whose goods administration is granted as of one who died intestate, made a will, &c., in none of these cases it shall be tried or certified by the ordinary, as in the case of excommengement, but it shall be tried by jury, because these

(a) S. C., 1 Freem. 445, 1 Vent. 363, 2 Mod. 146, T. Jones, 72, 3 Keb. 725.

N. S., VOL. I.—14

two cases of probate of wills, and constituting administrators, originally did not belong to the conusance of ecclesiastical judges, but were given them of later times; and therefore nothing but the probate, and *granting of administration, which were given them, belong to *291] their jurisdiction; but the trial of them is not given to them, but is left to the trial of the common law." [WILLIAMS, J.-If you object to the letters of administration, must you not go to the proper court to get them recalled?] In Com. Dig. Administrator (B. 1.), it is said, that, "if a man make a will and an executor, administration granted before probate, or refusal, is void, if the will be afterwards proved; though it was concealed, and not known at the time of administration granted." Buller, J., in Allen v. Dundas, says: "This case was compared to a probate of a supposed will of a living person; but, in such a case, the ecclesiastical court has no jurisdiction, and the probate can have no effect. Their jurisdiction is only to grant probates of the wills of dead persons. The distinction in this respect is this: if they have jurisdiction, their sentence, as long as it stands unrepealed, shall avail in all other places; but, where they have no jurisdiction, their whole proceedings are a nullity." The statute 31 Ed. 3, c. 11, only gives the ordinary jurisdiction to grant letters of administration. in cases of intestacy. It appearing, therefore, in this case, that there is a will, the court will stay the proceedings until it is properly proved. In Williams on Executors, 4th edit., p. 488, treating of the effect of revocation of probate or letters of administration, the learned author says: "The first important distinction on this subject, is, between grants which are void, and such as are merely voidable. If the grant be of the former description, the mesne acts of the executor or administrator, done between the grant and its revocation, shall be of no validity: as, if administration be granted on the concealment of a will, and afterwards a will appear, inasmuch as the grant was void from its commencement, all acts performed by the administrator in that character shall be equally void; nor can they, although the executor should refuse to act, be made good by *relation,”—citing *292] Abram v. Cunningham. A payment to the administrator here would clearly be no answer to an action at the suit of the executrix when she has proved the will.

CRESSWELL, J.-I think there is no pretence whatever for granting the first part of the rule. But, as to the rest, the rule may go for a stay of the proceedings, upon the defendant's bringing 3301. into court within a week.

WILLIAMS, J.-I think the proposed plea would clearly be a bad one and I am surprised that any effort should be made to have it added. The fact of the existence of a will can only be ascertained by probate.