¶1The possession of a promissory note payable to bearer, or of a note payable to the maker’s order and by him indorsed in blank, which makes it in legal effect a note payable to bearer, is sufficient prima facie evidence of the plaintiff’s title to sue thereon. And the ruling of the court upon this point was correct. Pettee v. Prout, 3 Gray, 502. Way v. Richardson, Ib. 412.
¶2But the defendant requested the court to rule that he was not estopped, upon the evidence produced, from setting up the illegality of the consideration of the note. This request was refused, and such instructions were given as authorized the jury to find that the defendant was so estopped. And we think the defendant’s exceptions to this refusal and to the instructions given on this point are well taken.
¶3The modern doctrine on this subject of estoppels in pais is thus stated by Lord Campbell, in Howard v. Hudson, 2 El. & Bl. 10 : “ If a party wilfully makes a representation to another, meaning it to be acted upon, and it is so acted upon, that gives rise to what is called an estoppel. It is not quite properly so called; but it operates as a bar to receiving evidence contrary tc that representation, as between those parties. lake the *351ancient estoppel, this conclusion shuts out the truth, and is odious, and must be strictly made out. The party setting up such a bar to the reception of the truth must show that there was a wilful intent to make him act on the faith of the representation, and that he did so act.”
¶4The law is thus stated, in affirmation of the decision in Pickard v. Sears, 6 Ad. & El. 469, and Freeman v. Cooke, 2 Exch. 663. And the law of these cases has been adopted and approved in the decisions of this court. Coggill v. Hartford & New Haven Railroad, 3 Gray, 549. Osgood v. Nichols, 5 Gray, 420. Audenried v. Betteley, 5 Allen, 384. Plumer v. Lord, 9 Allen, 455. Langdon v. Doud, 10 Allen, 437.
¶5Applying this doctrine to the facts disclosed in this case, it will be seen that there is no evidence that the defendant, at the time be made the statements which it is insisted that he is concluded from denying, had any knowledge that the plaintiff intended to act upon the statements made in purchasing the note, or otherwise changing his position in regard to it. There is nothing in the evidence inconsistent with a belief on the part of the defendant, at the time he made the alleged statements in regard to the validity of the note, that the plaintiff was then the owner of it, or was acting as agent to obtain information for the assignees of the payees of it. The proof therefore entirely fails to establish the important element of knowledge and intent, on the part of the defendant, that the representation was to be acted on by the plaintiff. Estoppels are, not favored in law, and everything necessary to establish them must be strictly made out in evidence.
¶6The instructions to the jury are objectionable in authorizing them to find for the plaintiff in the absence of evidence which upon the law as above stated was necessary to make the statements of the defendant in regard to the note conclusive upon him.
¶7 Exceptions sustained.