sum,

"which I promise to pay to A. B. or order," is not a note payable to bearer, but to A. B. or order. (a)]

If a bill or note import to be payable to a person not in esse, or his order,. and is issued with an endorsement in blank, purporting to be made by him thereon, it is as against the drawer or maker to be considered as a bill or note (61)

[(a) The bearer sued the maker of the following note, "Due the bearer hereof, £3 18s. 10d. which I promise to pay to Abraham Thompson or order." Thompson had not endorsed the note. Per Curiam. "The word, bearer, has reference to Thompson, and as the promise is expressly to pay to him or order, another person could not maintain an action on the note without his endorsement." Cook v. Fellows, 1 Johns. R. 143.]

(61) This point has been repeatedly discussed within a few years upon several bills drawn in 1798. A case of the kind had occurred at the London Sittings after Easter Term 1769; Stone v. Freeland, cited 1 H. Bl. 316. in the notes: a bill drawn by Cox on the defendant was made payable to Butler and Co. or their order, and endorsed in their name, and instead of proving that this endorsement was made by Butler and Co., the Plaintiff's own witnesses said, they believed it was made by Cox, and though there was a house under the firm of Butler and Co. with which Cox had dealings, it was proved that the bill had never been in their hands, upon which it was contended that the endorsement being fictitious, the plaintiff could not recover; but by Lord Mansfield, "the intent of the bill was only to enable Cox to raise money, and the reason why it was not made payable to his order was, that there would then have been too many payable to his order in circulation at the same time, which would have had the appearance of fictitious credit; names are often used of persons who never existed ;" and it appearing that the defendant promised to pay the bill at the time the plaintiff discounted it, the jury upon the footing of that undertaking found a verdict for the plaintiff. As this case however was distinguishable from those on the bills drawn in 1788, on account of the express undertaking to pay the plaintiff, which (as was admitted by Mr. J. Ashhurst, who held a brief in the cause, in 3 Term Rep. 176.) was the ground of the determination, as this was a nisi prius decision only, and as the amount of the bills in 1788 was very considerable, the point was very strongly contested in the actions on those bills. The first case that came before the court was Tatlock v. Harris, 3 Term Rep. 174. It was an action brought upon a bill drawn by the defendant, as one of several partners in a house at Nottingham upon himself in London, payable to Grigson and Co. or order, and purporting to be endorsed by Grigson and Co. and Lewis and Potter; the defendant was sued upon the bill, and the declaration contained counts upon the bill, and counts for money paid and money had and received. It appeared in evidince that there was no such house as that of Grigson and Co.; that the defendant paid the bill to Lewis and Potter, to whom he was indebted, and they gave him credit iu account; and that the plaintiffs discounted it for Lewis and Potter: to this evidence the defendant demurred; and after argument and time taken to consider, the court intimated a strong opinion that the plaintiffs might recover on the counts upon the bill; but the ground of their

payable to bearer; and so is a bill as against the acceptor, if he knew at the time of his acceptance, that the payee was a fictitious person.

decision was, that he was entitled to recover on the counts for money paid, and money had and received, because the giving the bill was an appropriation of so much money to be paid to the person who should become holder of the bill, and therefore when the plaintiffs discounted it, they paid the money to the use of the defendant, and when Lewis and Potter gave the defendant credit for the value of the bill, that was money had and received to the use of such persons as should afterwards be the holders of the bill.

The next case was that of Vere v. Lewis, 3 Term Rep. 182. which was brought against the defendant as acceptor, and the only difference between that and Tatlock v. Harris was, that there was no evidence to shew that the defendant had received any value for the bill, and that there was strong evidence to show that the endorsement, in the name of the payee, was made by the defendant; but the court held that the latter circumstance did not vary the question, and that the acceptance was evidence that the defendant had received value from the drawers, and therefore they gave judgment for the plaintiff without argument. Lord Kenyon, Mr. J. Ashhurst, and Mr. J. Buller, thought also that he was entitled to recover on one of the counts of the declaration, which stated the bill to be payable to bearer.

This case was followed by that of Minet v. Gibson, 3 Term Rep. 481. 1 H. Bl. 569. where a bill drawn by Livesay and Co. on the defendants was made payable to John White, or order, and it was found upon a special verdict, that White was a fictitious person, that his name was endorsed upon the bill by Livesay and Co.; that the defendants knew, when they accepted the bill, that no such person as John White, whose endorsement was then upon the bill, existed, and that the endorsement was not made by any person of that name, the court of King's Bench thought this case decided by Vere and Lewis, and gave judgment for the plaintiffs; and on a question from the House of Lords, whether the bill might not be deemed in law to be payable to the bearer, Hotham, Perryn, and Thompson, Barons, and Gould J. gave it as their opinions that it might; but Eyre C. B. and Heath J. differed; after which Lord Kenyon, Lord Loughborough, and Lord Bathurst spoke in favour of the judgment, and Lord Thurlow against it, and the judgment was affirmed without a division.

After the judgment in Minet v. Gibson, in the King's Bench, and before its determination in the House of Lords, came on the case of Collis v. Emett, 1 H. Bl. 313. where Livesay and Co (who were authorized by the defendant to draw for him by his writing his name on a piece of blank paper with a shilling bill stamp thereon,) made a bill payable to George Chapman, or order, and endorsed it with George Chapman's name; and it appearing that there was no such person as George Chapman, the Court of Common Pleas, after two arguments, and time taken to consider, held that the action might fairly be supported on a count that stated the bill to be payable to bearer, and there being such a count in the declaration, they gave the plaintiffs judgment upon it. Vide Bennet v. Farnell, 1 Camp. 180.

[The principles stated in the text with regard to fictitious payees have been fully recognised in various courts in the United States. See

It was for some time unsettled whether it was not essential that a bill or note should be payable either to order, or to (62) bearer, but it is now decided that it is not.

Hunter v. Blodgett, 2 Yeates, 480, which was an action brought against the acceptor of a bill drawn by the same firm of Livesay and Co., mentioned above, and payable to a fictitious payee: and Mussi v. Lorain, 2 Browne, 56.

In an action by the endorsee against the makers of a note, it was declared on as payable to Moses Foster, or order, and by him endorsed. The endorsement was made by Moses Foster of Milford; the defendants contended that Moses Foster of Andover was the person intended. The jury found that the plaintiff had always possessed the note, which was given for money loaned by him to one of the defendants, and "that 66 no person of the name of Moses Foster had ever possessed any interest "in the note, or been particularly intended as payee." Woodbury J. said, "When a note is made payable to the name of some person, not “having any interest, and not intended to become a party in the trans"action, whether a person of such a name is or is not known to exist, “the payee may be deemed fictitious." He said that where money passed between the parties, a recovery might in such case be had on the money counts; and that in the present case where only one of the makers of the note received the money, a recovery might be had on the note on a count alleging it to be payable to bearer," after alleging that "the nominal payee is fictitious." Foster v. Shattuck, 2 N. Hamp. Rep. 446.]

(62) Smith v. Kendall, 6 Term Rep. 123. In an action for money paid and lent, the defendant pleaded the statute of limitations, and the plaintiff replied a latitat sued out 26th Sept. 1793. A note was given in evidence dated 25th June, 1787, and payable to the plaintiff three months after date, but it was not payable either to order or to bearer, and the court on consideration held that it was a good note within the statute, that it was entitled to three days' grace, and consequently that the statute of limitations did not begin to run until those three days had expired, which was on 28th Sept. 1787, and therefore within six years of 26th September, 1793. See also Chadwick v. Allen, ante, p. 3. The old entries also describe the custom upon bills to be to pay the payee without adding any words to make them payable to order or to bearer. Lutw. 231, 277, 891. Vid. 1 Brownl. Rep. 77. Clift. 916.; and see Lord Raym. 1545.

Řex v. Box, 6 Taunt. 325. Indictment for forging a promissory note. The note was as follows: "On demand we promise to pay Mesdames "S. W. and S. D., stewardesses for the time being of the Provident "Daughters Society, held at the Hope, Smithfield, or their successors “in office, £64, with £5, per cent. interest, value received this 7th "February, 1815, for F. C. and Co. J. Forster." This society was not enrolled according to 33 G. 3. c. 34., so that these payees were not strictly stewardesses, nor could they legally have successors in office, and it was insisted that this was not in law a promissory note; but on a case for the opinion of the twelve judges, they were unanimously of opinion that it was: that it was not essential a note should be negotiable, that the description of stewardesses was one which went to designate the payees, and the note, if genuine, would have enured to them, and the survivor of them, and the executors and administrators of such survivor, and the conviction of the prisoner was held right.

But where the bill or note is payable otherwise than to the bearer, it must contain the name of the payee.

Uncertainty as to the person to whom the payment shall be made will prevent an instrument from being a bill or note, as making it payable to A. or B. (63)

[So if no person be named as payee, the instrument is not a bill or note. (a)]

If a bill or note is issued with a blank for the payee's name, any bonâ fide holder may insert his own name as payee. (64)

[It has been held in New York, in conformity with the English decisions, that a note is within the statute though not payable to bearer or order. Downing v. Backenstoes, 3 Cain. R. 137. Dutchess Cotton Manufactory v. Davis, 14 Johns. R. 238.]

(63) Blankenhagen v. Blundell, 2 Barn. and Ald. 417. Declaration on a note by which it was stated that defendant promised to pay J. P. Dahmer or plaintiffs, or his or their order; another count stated Dahmer to be since dead: each count averred that the note was delivered to plaintiffs, and negatived payment to Dahmer: defendant demurred, and on argument the court were clear this was not a note within the statute, because it was not payable in certain either to Dahmer or the plaintiffs, but the claim of either or of the endorsee of either, might be defeated by payment to the other; and if it were not within the statute, when issued, subsequent events could not make it so. It was urged, that in legal operation it was payable to Dahmer and plaintiffs, but the court said they could not take that to be its operation as the declaration was framed, and judgment was given for the defendant.

[(a) In an action on the following memorandum-" Boston, 15th May, 1810. Good for one hundred and twenty-six dollars on demand. Gilman & Hoyt"-Mr. Chief Justice Parker, giving the opinion of the court, said, "It is not a negotiable promissory note. It is not payable to bearer. It is not a contract which, ex proprio vigore, constitutes a promise to whomsoever shall produce it. Its effect is nothing more than that of a memorandum to the parties to it, to operate as a promise to pay money; or a receipt for money; or proof of a sum of money to be accounted for, according to evidence to show the intention of the parties. It imports no promise to the holder without evidence that it was actually given to him." Brown v. Gilman, 13 Mass. R. 158.]

(64) Cruchley v. Clarance, Maule, 90. In an action by the payee of a bill against the drawer, it appeared that defendant drew the bill in Jamaica, and sent it to England with a blank for the payee's name, that it was put into negotiation here, and afterwards paid to the plaintiff for an old debt, without the blank's being filled up; and that he inserted his own name as payee: plaintiff had a verdict; and on motion for nonsuit or new trial, the court held plaintiff warranted in inserting his own name, for by leaving the blank the defendant authorized any bonû fide holder to fill it up. and the rule was refused.

Cruchley v. Mann, 5 Taunt. 529. Plaintiff brought another action on the same bill against the acceptor: one objection was that the blank was filled up without Clarance's authority, and Clarance gave in evi

But until the blank is filled up it is not a bill or note. (65) Unless perhaps where it may be considered in legal operation as payable to the order of the drawer.

Giving a payee a wrong description, if there is no doubt as to the person, is of no (66) consequence.

Sect. 9.-The (67) name of the person making it must be inserted in the body, or subscribed at the bottom of every

dence that he did not authorize the insertion; but it appears that Clarance had passed the bill to Vashon, that Vashon had passed it to plaintiff, and that defendant accepted it under Clarance's eye and at Clarance's instance, after plaintiff's name was inserted; the court was clear Clarance's consent must be implied, and a rule for a new trial was refused.

(65) Rex v. Randall. Trin. 1811. The prisoner was indicted for forging a bill of exchange, the bill was payable to or order (leaving a space for the payee's name), and was in appearance a navy-bill for an officer's wages; the point was saved for the consideration of the judges, whether this could be deemed a bill, there being no payee: it was urged that such a bill authorized any proper holder to fill up the blank as he might choose but the judges held it was no bill till the blank was filled up, and recommended it to the judge who tried the prisoner to apply to the Crown for his pardon.

:

(66) See Rex v. Box, ante, p. 21.

(67) Taylor v. Dobbins, Str. 399. The declaration upon a note stated that the defendant wrote it with his own hand, but did not allege that he signed it, and an exception was taken on that ground. Sed per cur. If the defendant wrote it, his subscription to it was unnecessary; it is sufficient if his name appeared in any part. "I, J. S. promise to pay" is as good as "I promise to pay," subscribed J. S.

Elliot v. Cowper, Str. 609. Lord Raym. 1376. 8 Mod. 307. It was objected on demurrer to a declaration on a note, that it alleged only that the defendant made it, but did not state that he signed it; but by the court, if he did not either write or sign it, he did not make it, for making implies signing, and making is alleged. Judgment for plaintiff.

Smith v. Jarves, Lord Raym. 1484. The declaration upon a note drawn by Jarves and Baily, stated that Jarves for himself and partner made his note in writing with his own hand subscribed, whereby he promised for himself and partner to pay. It was objected on demurrer, that it was not charged, that Jarves had signed the note for himself and Baily; but the court held the statement showed that Jarvis did sign for himself and Baily, and gave the plaintiff judgment.

Ereskin v. Murray, Lord Raym. 1542. In an action on a bill it was alleged that the plaintiff made his bill in writing, and thereby requested the defendant to pay. It was objected on error, that it did not appear that the plaintiff signed the bill; but it was answered, that the allegation that he made it, and required the defendant to pay, implied that his name was in it, (otherwise he could not request,) and that he or somebody for him wrote it. Judgment for the plaintiff was affirmed,