Page:Harvard Law Review Volume 2.djvu/65

 THE LAW SCHOOL, 47

able view which Mr. Holmes supports,* that the line should be drawn just here. The defendant was not, therefore, guilty of larceny. In Flowers' case * the question, as it was presented, was simply whether one is guilty of larceny who receives money without a felonious inten- tion, and afterwards (no matter how soon) appropriates it; and the court say that, without question, he would not be.

Bills and Notes on which are Fictitious Names. Rights of Innocent Holders for Value. — {^Frotn Prof. Ames* Lectures,)

1 . If one draws a bill or makes a note in the belief that it is payable to a particular person, his intent is to pay to the order of that person. Hence if any one else indorses the instrument, the drawer or maker cannot be held, such indorsement not being within the contract.* But if one accept a bill payable to A, under the impression that Aj is meant, while the drawer really means A^, the court would probably hold the acceptor on the indorsement of A,, on the ground that the identity of the payee is a matter of indifference to the acceptor, who relies on only the drawer in accepting. On principle the acceptor of a bill payable to a fictitious name, which he believed to be the name of a real person, should be held under an indorsement by the drawer in that name. On the same reasoning one who draws a bill or makes a note for accommodation should be held, even if the payee is other than he supposed. He relies on the credit of the friend he is accommodating, and the identity of the payee is a matter of indifference to him.

2. If one draws or accepts a bill, or makes a note which he knows to be payable to a fictitious payee, he is bound by an indorsement which in form is the same as die name of the payee. But to hold the acceptor of a bill drawn in a fictitious name and payable to the drawer's order, it must be shown that the indorsement in the name of the payee was made by the drawer, or by his authority, for the acceptor's contract is to pay to the order of the drawer under this fictitious name.^

3. If one draws or accepts a bill or makes a note payable to some name of which he knows nothing, he is bound if the indorsement is by one having a right to use that name. If the name of the payee is fictitious, and is known to be such at the time of signing, the case comes under (2) above; if it is not known to be fictitious, or if no inquiry is made, or a blank form is signed, an acceptor is boimd.* This is on the theory that if the acceptance is given after the bill is drawn the acceptor contracts either (a) to pay to the order of any per- son, firm, etc., properly using that name, or (3) to pay to any one who holds the note as indorsee under an indorsement corresponding in form to the payee's name and made by the drawer; for the bill is really in the interest of the drawer, and not, as where there is a real payee, in the interest of the payee. Hence only the drawer properly has the right to indorse it. Thus the acceptor is liable whether the facts are as indicated in (a) or as in (3). If the acceptance is on a blank form the above reasoning applies, on the principle that an accept- ance in blank binds the acceptor in the same way that he would be

^ Holmes* Com. Law, 312, 313 ; cf. 135 Mass. 283.

« Queen v. Flowers, Q. B. D. 643.

s Bennett v. Famell^ i Campb. 130 ; Ames* Cnses on Bills and Notes, vol. 1, 461.


 * Cooper V. Meyer ^ 10 B. & C. 468 ; Ames' Cases on Bills and Notes, vol. i, 493.

■ Cooper V Meyer ^ supra.