But while a patent issued to a person not in exist-der of the notes is not one of contract but of tort. ence is void, if the patentee used a name different from his own to designate himself where he bought property, and made the entry in that name for him. self, merely using it as he would the one by which he was usually known, and indorses the patent in that name with the same view, the title will inure to the transferee. Thomas v. Wyatt, 31 Mo. 188, 77 Am. Dec. 640.

So, an instrument in the form of a mortgage, which is filed for record, but which was payable to a fictitious person, and which secured no indebted-12 L. T.IN. S. 457, 13 Week. Rep. 750, infra, IV. b. ness and there was no delivery, is not such an encumbrance upon the property mortgaged as will invalidate an insurance policy thereon providing that if any encumbrance existed the policy should be void. Fitchner v. Fidelity Mut. F. Asso. (Iowa) 26 Ins. L. J. 326.

all the security to the exclusion of the others. | of such person, may be sued under that name The deed of conveyance from C. Phillips for breach of covenants in the deed. -Robertson and wife to C. Phillips (assumed name), and the deed of trust made by C. Phillips to D. L. Grayson, trustee, operated as a conveyance by C. P. Robertson and wife immediately, and immediately to D. L. Grayson,

tract was not designed to be a personal contract. | such agent's principal. Lane v. Krekle, 22 Iowa, Pease v. Pease, 35 Conn. 131, 95 Am. Dec. 225, dictum.

P. Robertson seems at one time to have been a | which $1,500 was acknowledged to be paid man of some mercantile reputation in the city and the balance evidenced by six bonds of of Chattanooga. Whether as the result of bad $1,000 of the grantee, payable in five years, habits or not does not appear, but he finally with interest coupons payable semi-annually passed out of business, and at the same time attached. At the same time he drafted a trust his condition was such that for a while he was deed, by the terms of which C. Phillips conunder treatment in a sanitarium or asylum. veyed this property to one Grayson as trustee On his release his need of money being great, to secure the payment of these bonds and a plan, according to his statement, was sub- coupons, with the usual power of foreclosure mitted to him for raising enough to relieve this by a public sale in the event the grantee should need. The plan thus suggested was that Rob- fail to pay either the coupons or the principal ertson, who was the owner of certain lots in of these bonds. When prepared, Robertson Chattanooga, should bond these, -a method took possession of this instrument, and carried which he was made to understand was very it with him to his home in Georgia, and very prevalent, and which, if adopted in this case, late in the evening of October 17, 1892, he could work no injury to anyone. This plan went to the office of one Head, a notary public commended itself to Robertson as possessing of that state, taking this trust deed with him, superior advantages, and therefore he set about with a certificate attached and already filled carrying it out. The details of the scheme out, and told the notary that he desired to acwere as follows: Robertson had prepared a knowledge it. Knowing Robertson, and susdeed, which was executed by himself and pecting no foul play, the officer took his acwife, conveying these lots to one C. Phillips knowledgment, and without any examination for an expressed consideration of $7,500, of attached his official signature and seal to the But the holder of a negotiable promissory note name or order, when no particular person of made to raise money, which is advanced by a third | that name was intended to be the payee or had any person instead of the payee, may declare upon such note as made payable to himself by the name of the payee, or as payable to bearer, regarding the name of the payee as fictitious. Hunt v. Aldrich, 27 N. H. 31; Elliot v. Abbot, 12 N. H. 549, 37 Am. Dec. 227.

And a recovery may he had on a promissory note made payable to a fictitious person where money had passed between the parties, on the money counts, and when it did not pass between them a recovery can be had on a connt alleging the note to have been made payable to bearer. Foster v. Shattuck, 2 N. H. 446.

But to warrant a recovery by a holder of a note against the maker, which had not been indorsed, he must prove affirmatively that the payee is a fictitious person. Maniort v. Roberts, 4 E. D. Smith, 83.

Where a note is given to a person by a name other than his real name, he may aver in a declaration thereon that the note was given to him by the name specified in the note, but it will then be necessary to prove to the satisfaction of the jury that he was the person intended as the payee. Chenot v. Lefevre, 8 Ill. 637.

So, a party may become an indorser of a bill or note by any mark or designation he chooses to adopt, provided it be used as a substitute for his name and he intends to be bound by it. Brown v. Butchers' & D. Bank, 6 Hill, 443, 41 Am. Dec. 755.

And a person to whom a note is given which is drawn payable to a firm when no such firm exists may assume such tirm name and indorse the note in that name, and it will be a good indorsement in the hands of an innocent holder, who may collect the same of the maker under a count for money had and received. Blodgett v. Jackson, 40 N. H. 21. And a promissory note payable to a fictitious copartnership, which is indorsed by a person in the fictitious firm's name, is valid in the hands of innocent third parties purchasing for value and before maturity, both as against the maker and the person thus indorsing it. Bull's Head Bank v. McFeeters, 9 Jones & S. 215.

And N. Y. Laws 1833, chap. 281, prohibiting the transaction of business by any person in the name of a firm that does not represent any real partnership, does not affect the liability of a person who indorses a note in the name of a fictitious copartnership to which it purported to have been given. Bull's Head Bank v. McFeeters, 9 Jones & S. 215. Where a note is made payable to a person by

interest in the note, the name of the payee is to be regarded as fictitious. Foster v. Shattuck, 2 N. H 446.

And a note made payable to a corporation which never had even a de facto existence is in effect payable to a ficititious payee, and any bona fide holder may sue upon it, and need not aver that he is a bona fide holder. Farnsworth v. Drake, 11 Ind. 101.

b. In bills of exchange, checks, and drafts.

A bill of exchange running to a fictitious payee is the same as if drawn payable to the bearer. Kohn v. Watkins, 26 Kan. 691, 40 Am. Rep. 336; Rogers v. Ware, 2 Neb. 29; Willets v. Phoenix Bank, 2 Duer, 130.

And indorsement thereof is not necessary to its validity or negotiability. Rogers v. Ware, 2 Neb. 29.

And the same rule applies to the case of a bank check. Willets v. Phoenix Bank, 2 Duer, 130, dictum. And a draft issued to a person who directs an assumed name to be inserted and thereafter indorses that name upon it becomes, when so indorsed, negotiable, and will pass by mere delivery to an innocent holder for value. Anderson v. Dundee State Bank, 66 Hun, 613.

In Rogers v. Ware, 2 Neb. 29, supra, Gibson v. Minet, 1 H. Bl. 569, 3 T. R. 481, 2 Bro. P. C. 48, infra, was distinguished upon the ground that the drawer there indorsed the name of the fictitious payee on the bill himself.

So, a bona fide holder for a valuable consideration, of a bill of exchange which was signed in blank and delivered to another for the purpose of filling up, which he did by inserting the name of a fictitious payee or order, and indorsed it in that name, and transferred it to such holder, may maintain an action against the signer as a drawer of a bill payable to bearer on a count to that effect, or on a count stating the special circumstances of the case. Collis v. Emett, 1 H. Bl. 313.

And a plea that the drawer of a bill of exchange did not know the payee to be fictitious is no defense against a bona fide holder thereof where the drawer was induced to so make it by the false representations of a correspondent to whom he transferred it with instructions for its disposition. Kohn v. Watkins, 20 Kan. 691, 40 Am. Rep. 336.

And one who purchases goods of another, which prove to be stolen property, and gives a check therefor, payable in a name given him by the selle

certificate. It proved, however, in the end, curity, Robertson obtained advances of money that Robertson had affixed the name of C. from various parties. From the complainants Phillips, the assumed grantor, to the trust deed, Wiehl, Probasco, & Co. he obtained a loan of and the notary had appended his name and $1,000, and gave one of these bonds with seal of office to a certificate which recited that coupon attached as security; four he gave to "personally appeared C. Phillips, the within- the complainant the Cleveland National Bank named bargainor, with whom I am personally to secure a debt of $2,400; and one to C. L. acquainted, and who acknowledged that he Hardwick & Co., of Dalton, Georgia, as seexecuted the within instrument for the pur-curity for $1,000. Robertson defaulted on the poses therein contained." Thus certified, and without anything to induce suspicion of the gross fraud perpetrated on him, this officer redelivered the instrument to Robertson, who on the next day caused it to be noted for registration in Hamilton county, where his deed to Phillips had already been registered. There was no such man as C. Phillips, this name being selected by the parties to this scheme because this was the baptismal or Christian name of Robertson. Within a very short time thereafter, using these bonds as collateral sewhich proves to be fictitious, which check is indorsed by such seller in such fictitious name to another in payment of a board bill, who takes it without knowledge of the facts, is liable thereon for the amount thereof to such innocent holder. Robertson v. Coleman, 141 Mass. 231, 55 Am. Rep. 471.

And one who makes a draft to a real person in actual existence but designated by a false or assumed name, of which fact he is ignorant, in payment of property received from him, cannot defend as against bona fide holders for value and set up fraud practised by the payee upon the maker, whether he was induced to adopt the name used in the draft through fraud or by mistake. Forbes v. Espy, 21 Ohio St. 474.

So, an indorser of a bill of exchange is bound by his indorsement though the bill is made to a fictitious payee. Ex parte Clarke, 3 Bro. Ch. 238.

But the indorsement of a bill of exchange by a person into whose hands it comes by mistake, though his name is the same as that of the payee, with knowledge that he is not the person to whom the bill was made payabie, is a forgery, and will not pass title to the bill. Mead v. Young, 4 T. R. 28.

And the acceptance of a bill without knowledge on the part of the acceptor that the payee therein named was fictitious is completely void, and imposes no liability upon the acceptor. McCall v. Corning, 3 La. Ann. 409, 48 Am. Dec. 454.

And a person discounting a bill payable to a fictitious payee for the benefit of the drawers and with knowledge of the transaction cannot recover of the acceptor. Hunter v. Jeffery, Peake, Add. Cas. 146.

But an acceptor of a bill who knew that the payee was a fictitious person is liable to a bona fide holder thereof who did not know of such fiction. McCall v. Corning, 3 La. Ann. 409, 48 Am. Dec. 454.

And an innocent indorsee for a valuable consideration, of a bill of exchange drawn in favor of a fictitious payee, which was known to the acceptor as well as to the drawer and the name of such payee was indorsed on the bill, may recover against the acceptor as on a bill payable to bearer. Hunter v. Blodget, 2 Yeates, 480; Minet v. Gibson, 3 T. R. 482; and see Gibson v. Minet, 1 H. Bl. 569.

interest coupons, and the beneficiaries, seeing that it was best to foreclose the trust deed, thereupon directed that this be done. Accordingly Mr. Grayson (entirely ignorant of the method adopted in the execution of these papers), as trustee, advertised the property for sale in accordance with the terms of the trust deed, and at the sale made by him a third party, acting under the agreement already reached by the beneficiaries, bought the property in the name of Wiehl, Probasco, & Co, who were to hold it in trust for the various v. Im Thurn, 18 C. B. N. S. 694, 11 Jur. N. S. 489, 12 L. T. N. S. 457, 13 Week. Rep. 750.

The acceptor of a bill of exchange made to enable the drawer to raise money, which is made pay. able by such drawer to a fictitious payee and indorsed by him in such fictitious name, which bill is put in circulation, is estopped to object that the payee therein named was fictitious, and to claim that he had nothing to do with it, as by lending his acceptance he had enabled the drawer to make the bill in that form. Stone v. Freeland, 1 H. Bl. 316, note.

One of the parties to a mercantile transaction in which by express agreement a bill was drawn and indorsed by procuration in the name of a fictitious or dead person, and the position of one of the parties has been altered by giving up certain goods to the other, is not at liberty afterwards to say that the fact which was assumed as the basis of the contract or arrangement, and upon which the other party acted and thereby altered his position, was really untrue, and that the bill was void. Ashpitel v. Bryan, 3 Best & S. 474, 3 Fost. & F. 183, 33 L. J. Q. B. N. S. 328, 9 Jur. N. S. 791, 11 L. T. N. S. 221, 12 Week. Rep. 1082.

And a bona fide purchaser for a valuable consideration of a bill of exchange drawn by a person and others upon himself in favor of a fictitious person, which fact was known to all the parties concerned in drawing it, and who received the value from a second indorser, may recover the amount in an action against the acceptor for money paid or money had and received. Tatlock v. Harris, 3 T. R. 174; Vere v. Lewis, 3 T. R. 182.

And where a bill of exchange is drawn in favor of a fictitious payee with the knowledge of both the acceptor and drawer, and the name of such payee is indorsed on it by the drawer with the knowledge of the acceptor, which fictitious indorsement purports to be to the drawer himself or his order and then the drawer indorses the bill to an innocent indorsee for value and it is afterwards accepted, and no intent to defraud anyone appears, the innocent indorsee may recover against the acceptor, as on a bill payable to bearer. Gibson v. Minet, 1 H. Bl. 569.

So, the acceptor of a bill of exchange drawn in the name of a fictitious person, payable to the And the acceptor supra protest of a bill of ex- order of the drawer, is considered as undertaking change for the honor of the drawer is, like the to pay to the order of the person who signed as drawer himself, estopped to deny that the bill was drawer, and an indorsee may bring evidence to valid, and not competent to set up as a defense to show that the signature of the supposed drawer to an action against him by the indorsee that the the bill and to the first indorsement are in the same payee is a fictitious person, and that he was ignor-handwriting. Cooper v. Meyer, 10 Barn. & C. 468. ant of that fact when he accepted the bill. Phillips And evidence is admissible in an action by an in

bondholders. This sale, however, was not | bill in the other of said causes, setting up its consummated. Soon afterwards Wiehl, Pro- ownership of the $2,400 note of Robertson and basco, & Co., being informed that the deed of its possession of four of these coupon bonds, trust and bonds were executed as has been be- and charging bad faith upon the part of fore detailed, filed their bill in one of these Wiehl, Probasco, & Co. in repudiating the consolidated causes, in which they charge that sale made in the interest of all the beneficiaries the deed from Robertson to Phillips was inef- of the trust deed, and insisting that the legal fectual to convey title, as there was no such effect of the execution of this deed of trust to grantee, and that the deed of trust was equally Grayson was that the title to this property ineffectual in conveying title to Grayson, trus- passed out of Robertson to said trustee, altee, because the name of C. Phillips was though the maker used in its execution the forged to that instrument by Robertson. They false name of C. Phillips, and that this trustee allege that, as the owner of Robertson's note, held it for the security of all the holders of and by reason of his nonresidence, they have said bonds and coupons, save alone the bond a right to treat these conveyances as of no of Wiehl, Probasco, & Co., which it was inforce and value, and attach the lots in ques-sisted could not participate because of the retion and appropriate them, as far as might be nunciation of all interest in the trust deed by necessary to the payment of their debt. They its owner. Among other things, this bill especially repudiate the trust deed, and de- prayed that the attachment issued at the incline to take any benefit from it, or the sale stance of Wiehl, Probasco, & Co. be vacated, made under it, by Grayson as trustee. Subse- and that said deed of trust be set up and estabquently the Cleveland National Bank filed its lished, and that the lots covered by it be sold nocent indorsee for value against the acceptor of a In that case Lane v. Krekle, 22 Iowa, 399, supra, bill drawn by the maker to a fictitious payee or was distinguished upon the ground that the note order and indorsed by him in that name, of irregu- there in question was made payable to a fictitious lar and suspicious transactions and circumstances person or bearer, and passed by delivery without relating to other bills drawn by the one upon the indorsement, and Phillips v. Im Thurn, 18 C. B. N. S. other payable to fictitious payees and accepted by 694, 11 Jur. N. S. 489, 12 L. T. N. S. 457, 13 Week. Rep. such acceptor, in order to raise an inference that 750, supra, was distinguished upon the ground that the acceptor knew the name of the payee to be in that case the signature of the drawer, as well as fictitious, or that he had given authority to draw the indorsement, was a forgery, but the acceptor the bill in question payable to a fictitious person, was held liable because the paper, was discounted though none of such transactions or circumstances relying in good faith upon the acceptance; and had any apparent relation to the bill in question, Ort v. Fowler, 31 Kan. 478, 47 Am. Rep. 501, supra, and though none of them proved that he accepted IV. a, was criticised as not supported by authority any of such other bills with a knowledge that the so far as it holds that a note made payable to a fictipayees mentioned in them were fictitious. Gibson tious person or order is in effect payable to bearer v. Hunter, 2 H. Bl. 288, 6 Bro. P. C. 255. irrespective of the knowledge of the maker.

In Bennett v. Farnell, 1 Campb. 130, however, it was held that a bill of exchange made payable to a fictitious person or his order is neither in effect payable to the order of the drawer nor to bearer, but is completely void, but that if money paid by the holder of such a bill as the consideration for its indorsement to him gets into the hands of the acceptor it may be recovered back as money had and received.

So, a bank which certifies a check purporting to have been drawn upon it payable to order is liable to a bona fide holder in the ordinary course of business thereon, whether the indorsement of the check is that of the payee named or whether a fictitious person is named as payee and the check is indorsed in such fictitious name. Hagen v. Bowery Nat. Bank, 6 Lans. 490.

And a bank which issues and puts in circulation a draft payable to order inserting the name given by the person requiring it, relying simply upon the word of an entire stranger that it is his name, under circumstances somewhat calculated to excite suspicion, is liable thereon where such name was indorsed upon it when presented for discount to an innocent holder for value. Anderson v. Dundee State Bank, 66 Hun, 613.

An instrument, though not in reality a bill of exchange, is within the meaning of the bills of exchange act of 1882 (45 & 46 Vict. chap. 61), providing that a bill of exchange made payable to a fictitious person should be treated as payable to bearer, where it is in the form of a bill manufactured by a person who forges the signature of the named drawer and obtains by fraud the signature of the acceptor, and forges the signature of the named payee and presents the document for payment, although the drawer and named payee were ignorant of all the circumstances. Bank of England v. Vagliano Bros. [1891] A. C. 107.

And the person named as the payee in a bill of exchange is not prevented from being a fictitious or nonexisting person within the meaning of the bills of exchange act of 1882, § 7, subs. 3, so as to prevent the bill from being considered as payable to bearer, by the fact that at the time of drawing the instrument the drawee supposed him to be a real person, and checks are equally within the meaning of the act with bills of exchange. Clutton v. Attenborough [1895] 2 Q. B. 306; Clutton v. Attenborough [1897] A. C. 90, 66 L. J. Q. B. N. S. 221, 75 L. T. N. S. 556.

And a bill may be pleaded as payable to bearer within the meaning of the bills of exchange act

1882 (45 & 46 Vict. chap. 61) where the person named as payee, and to whose order the bill is made payable on the face of it, is a real person, but has not, and never was intended by the drawer to have, any right upon it or arising out of it. Bank of England v. Vagliano Bros. [1891] A. C. 107.

And where by the fraud of a third person a depositor of a bank is induced to draw his check pay-of able to a nonexisting person or order, the drawer being in ignorance of the fact and intending no fraud, the bank on which it is drawn is not authorized to pay it and charge the amount to the account of the depositor on the indorsement of the party presenting it, although it appears to have been previously indorsed by the party named as payee, See also generally, as to use of fictitious names and as such indorsement is in effect a forgery, pay-in negotiable paper, note to Armstrong v. Pomement thereof by the bank confers no right on it as roy Nat. Bank (Ohio) 6 L. R. A. 625. F. H. B. against the drawer of the check. Armstrong v.

National Bank, 46 Ohio St. 512, 6 L. R. A. 625.