#### Davis’s Adm’r v. Thomas &c.

J anuary 1834,

Richmond.

(Absent Garb and. Green,* J.)

Promissory Note — Assignment—Estoppel to Allege Payment.† — A. the holder oí a promissory note of B. being about to transfer it to C. for valuable consideration, and this being known to B. the maker, he promises to pay the debt to G. who is induced by that promise to take the note ; in a suit in the name of A. for the benefit of C. upon the note, the maker pleads the general issue ; and on the trial thereof, B. offers proof that he had paid the contents of the note to A. before the transfer thereof *to*C. and to repel that defence, 0. offers proof of B’s promise to pay the debt to him : Hele, this evidence to repel the defence of payment, was admissible, and B.’s promise to pay the debt to 0. estopped him from alleging payment to A. before assignment.

Estoppel — When it Must Be Pleaded.‡ — Matter of estoppel cannot be relied on unless it be pleaded, where the matter to be concluded appears on the record ; but it is otherwise, where the matter is introduced on the general issue, for a party can-

*Debt on a promissory note for 500 dollars, brought, by David Thomas, suing for the benefit of Micajah Davis, against Tamerlane Davis, in the county court of Bedford. The defendant died pending the suit, and it was revived against his administrator. The defendant in his lifetime, pleaded nil debet; and the administrator, after the suit was revived against him, pleaded the statute of limitations ; on which issues were made up. At the trial, the plaintiff filed two bills of exceptions to opinions of the court.

1. It appeared from the first bill of exceptions, that it no otherwise appeared that the note had been transferred by the plaintiff Thomas to Micajah Davis, than that the suit was brought by Thomas for his benefit, as set forth in the declaration. And the defendant having adduced evidence to prove, that the debt demanded in this action had been paid by his intestate Tamerlane Davis, to the plaintiff Thomas, evidence was adduced, on the other side, to prove, that before the note was transferred by Thomas to Micajah Davis, the defendant’s intestate had promised to pay the debt or part of it to Micajah Davis ; and thereupon, the plaintiff prayed the court to instruct the jury, that if they should find, that the defendant’s intestate, before the transfer of the note to Micajah Davis, promised to pay the debt or part thereof to him, and that Micajah Davis was induced by that promise to take a transfer of the note for valuable consideration, then they ought to find a verdict for the plaintiff, for so much as was so admitted by the defendant’s intestate to be due, or by him promised to be paid to Micajah Davis, notwithstanding it should appear that the debt had been fully paid to Thomas before the transfer: but the court refused to give such instruction to the jury ; and the plaintiff excepted.

2. The defendant moved the court to instruct the jury, that if they should find, that the debt mentioned in the note had been paid by his intestate to Thomas, before his transfer of the note to Micajah Davis, they ought, upon the pleadings in the cause, to find for the defendant, notwithstanding they should find, that the defendant’s intestate, after *he had paid the debt to Thomas, promised to pay Micajah Davis the amount of the debt or part of it; which instruction the court gave to the jury ; and the plaintiff excepted.

There was a verdict and judgment for the defendant; to which the circuit court of *12Bedford, on the petition of the plaintiff, awarded a supersedeas. The circuit court held, that the county court erred in the instruction which it gave to the jury, mentioned in the second bill of exceptions, and therefore reversed the judgment, and remanded the cause to the county court for a new trial. And then the defendant appealed to this court.

Johnson, for the plaintiff in error.

Leigh, for the defendant.

*

Judge Green was prevented by sickness from sitting during this term.

†

Bonds — Assignment — Estoppel.—Though upon a bill in equity by an obligor against the obligee and his assignee, it be fully proved that the bond was given for a gaming consideration, still the obligor will not be discharged from liability to the assignee. if the assignee had no knowledge before the bond was assigned of its having been executed for money won at play, and was induced to purchase the same by the assurances of the obligor that there was no objection to it and that it would be paid; for in such case, the obligor will be estopped from repudiating his own representations. Pettit v. Jennings, 2 Rob. 676, 689, 691, citing the principal case; Buckner v. Smith, 1 Wash. 296. and Hoomes *v.*Smocke, 1 Wash. 389. See principal case also cited in Nicholas v. Austin, 82 Va. 823, 1 S. E. Rep. 132.

‡

Estoppel — When It Must Be Pleaded. — Matter of estoppel may be relied on in evidence by the plaintiff when the only defence is the general issue, for the reason that the estoppel in such case cannot be pleaded. But when the matter to which estoppel applies is specially pleaded, then the estoppel must be specially replied or it cannot avail. Hayes v. Mut. Prot. Ass’n, 76 Va. 231, citing principal case. To the same effect, the principal case was cited in Pettit v. Jennings, 2 Rob. 700; *foot-note*to Carroll County v. Collier, 22 Gratt. 302; Muhleman v. National Ins. Co., 6 W. Va. 523.

On the subject of estoppel, the principal case was also referred to in Poague v. Spriggs, 21 Gratt. 224; Tatum v. Ballard, 94 Va. 376, 26 S. E. Rep. 871. See principal case distinguished in Steptoe v. Pollard, 30 Gratt. 701. For further information on the subject of estoppel, see monographic *note*on “Estoppel” appended to Bower v. McCormick, 23 Gratt. 310. not be called on to shew his estoppel until his adversary has attempted to use the improper defence.

TUCKER, P.

It is well settled, that an obligor is precluded from setting up any equity against his bond, when by his promise of payment a third person has been induced to take an assignment or transfer of it; yet I am not aware of any case, in which a plea in bar of the demand, has at law been avoided by a replication of a promise to pay. The question is now for the first time presented, whether there is any mode, in a court of law, in which the plaintiff can avail himself of the promise of payment, in avoidance of an otherwise good defence set up by the defendant ?

These defences either go to shew the bond to have been void in its inception, as for usury, gambling or the like, — or to prove its discharge by payment, release, accord and satisfaction, or former recovery. Now, it is certainly no answer to any of them, that, notwithstanding these substantial defences, the defendant had promised to pay the bond to the assignee or transferee. Such promise could only constitute a new contract, or operate to conclude or estop the defendant from relying upon a defence, which by act in pais, namely, by that promise, he must be considered as having waived. If the assignee elects to sue upon the bond, and the defendant pleads usury or payment before notice of the assignment, though Icannot think the promise could be ^pleaded as an answer, I do not perceive why it should not be replied as an estoppel. To create an estoppel it is not essential that the act in pais should be by deed. Acceptance of an estate, or acceptance of rent, are estoppels, though there be no deed ; and so, I presume, where a party has by any act concluded himself absolutely from setting up any defence, his adversary may rely upon it as an estoppel. Now, in case of assignment, it is the settled law, that if, before the assignee takes it, he applies to the obligor, informs him of his design to buy, and receives assurances that there is no objection to the bond, and that it will be duly paid, the obligor cannot afterwards set up, against the assignee, the defence of payment or illegal consideration. He is then concluded from making this defence, and the matter might, I conceive, be well replied by way of estoppel. Thus, in the present case, if the defendant, instead of nil debet, had pleaded payment before notice of the transfer, can there be a doubt, that the plaintiff might- have replied the promise and inducement to take the bond, as an estoppel, and have concluded with a prayer of judgment whether the defendant, against his own promise, should be permitted to plead or allege the matter set forth by him for his defence ? I think not. Upon a demurrer, I have no doubt judgment should be given for the plaintiff.

In this case, however, the defendant has pleaded nil debet. That being the general issue, it admitted of no reply, nor could the promise have been replied as an estoppel, since the plea was proper to enable the defendant to defend himself by proof of payment to the transferree himself after the transfer. Is the plaintiff then to be deprived of the benefit of the promise, because the defendant has pleaded one plea instead of another ? Surely not. Although matter of estoppel is not taken notice of, unless relied on in pleading, where the matter to be concluded appears on the record, yet, where that matter is introduced in evidence upon the general issue, it is otherwise. The party cannot be called on to rely on his estoppel, until his adversary has attempted to use the improper defence. Whenever he does this, it may be arrested. *Thus, in the present case, after evidence of the promise to pay, it was competent to the plaintiff, upon proof of a payment to the promisee, to move the court to instruct the jury to disregard the latter evidence, if they believe the former to be true ; for if true, the defendant had no right to introduce such evidence in support of his plea. This is not the precise form of the instruction moved in this case, but the difference is not, I think, substantial.

It is objected, that this course leads to surprize upon the defendant, to which two answers may be given: first, it is his own fault to have pleaded the general issue, instead of the special matter of defence of payment before notice of assignment; had he done so, he would have forced the plaintiff to reply the estoppel. Secondly, surprizes in trials of the general issue are very common, and are always easily and effectually remedied by a new trial.

I am of opinion, that the judgment of the circuit court be affirmed.

The other judges concurring, judgment affirmed.