§ 7. 7. Where a bill is not payable to bearer, the Certainty payee must be named or otherwise indicated thereto payee. in with reasonable certainty: Imp. Act, s. 7 (1). required as In the definition of a bill the payee is spoken of as “a specified person": section 3. He should be clearly specified so that the drawer, when he accepts, may know to whom or to whose order he can safely pay. The payee need not be mentioned by name; it is sufficient that he be indicated so that he can be clearly identified. As to indication by office see notes to the following sub-section. Where the name of the payee is mis-spelt, or where he is described by his office or otherwise, parol evidence is admissible to identify him; but not to show who is meant where he is neither named nor described. Where the payee is wrongly designated or his name is mis-spelt, see section 32, s-s. 2. If the name of the payee be left in blank, the legal holder of the bill may fill up the blank : Civil Code, Art. 2282; Cruchley v. Clarence, 2 M. & S. 90 (1813). ILLUSTRATIONS. 1. An order to pay to the order of the trustees of an insolvent firm, without naming them, is sufficiently certain: Auldjo v. McDougall, 3 U. C. O. S. 190 (1831). 2. A note payable to the order of J. B. G. for the use of W. M. is a promissory note: Munro v. Cox, 30 U. C. Q. B. 363 (1870). 3. A note payable" to the estate of D." is valid Dominion Bank v. Beacock, 9 C. L. T. 252 (1889). 4. A note payable to- or order cannot be recovered by the person to whom it was given either as payee or bearer, without inserting his name in the blank as payee: Mutual Safety Ins. Co. v. Porter, 7 N. B. (2 Allen) 230 (1851). 5. If no one be named or definitely referred to as payee, the instrument is not a valid bill: Gibson v. Minet, 1 H. Bl. 569 (1791); Enthoven v. Hoyle, 13 C. B. O. S. 373 (1853). 6. Where a bill was made payable to -or order, evidence to show that C. was intended to be the payee was held to be inadmissible: Rex v. Randall, R. & R. 195 (1811). 7. Where a bill was made payable to the order of J. Smythe, evidence was admitted to show that T. Smith was the person intended Willis v. Barrett, 2 Stark. 29 (1816). See Soares v. Glyn, 8 Q. B. 24 (1845); Jacobs v. Benson, 30 Me. 132 (1855). 8. A note payable "to the order of the indorser" was held to be valid, and payable to any holder who might endorse it: United States v. White, 2 Hill, 59 (1841). 9. An instrument payable "to the estate of L. deceased" held not to be a note: Lyon v. Marshall, 11 Barb. 241 (1851), § 7. to two or payees, or to holder 2. A bill may be made payable to two or more If payable payees jointly, or it may be made payable in the more alternative to one of two, or one or some of several of office. payees. A bill may also be made payable to the holder of an office for the time being: Imp. Act, s. 7 (2). Chalmers says "this sub-section materially alters the law." From the illustrations given below it will be seen that the decisions on the subject have been conflicting both in the United States and Canada, and also that they were not absolutely uniform in England. The second sentence would more naturally belong to the first sub-section, but in this the Imperial Act is followed. ILLUSTRATIONS. 1. A promise to pay "to E. S. R. or J. F. his guardian" is not a promissory note: Reed v. Reed, 11 U. C. Q. B. 26 (1853). 2. A promise to pay "A. B. treasurer, etc., or his successor or successors in office" is a valid note: McGregor v. Daly, 5 U. C. C. P. 126 (1855). § 7. 3. A note payable to A. "or to his wife and to no other person is a good note and the same as if payable to A. alone: Moodie v. Rowatt, 14 U. C. Q. B. 278 (1856). 4. A promise to pay J. P. "treasurer of the building committee of St. John's Church, or his successor duly appointed" is a promissory note: Patton v. Melville, 21 U. C. Q. B. 263 (1861). 5. A note payable to A. "or his heirs" is not a promissory note: Doak v. Robinson, 12 N. B. (1 Han.) 279 (1868). 6. A promise to pay to "W. & D. stewardesses for the time being of the P. D. Society, or their successors in office," held to be a promissory note: Rex v. Box, 6 Taunt. 325 (1815). 7. A promise to pay "to A. or to B. or to C." is not a note: Blanckenhagen v. Blundell, 2 B. & A. 417 (1819). 8. A promise to pay "to the trustees acting under the will of the late W." held to be a promissory note: Megginson v. Harper, 2 C. & M. 322 (1834). 9. A promise to pay the secretary or treasurer for the time being of a society is not a note: Cowie v. Stirling, 6 E. & B. 333 (1856). 10. A promise to pay "to the W. M. P. or order, or the major part of them" is a good note: Watson v. Evans, 1 H. & C. 662 (1863). 11. A promise to pay "to the trustees of the Wesleyan Chapel, Harrogate, or their treasurer for the time being" is a good note: Holmes v. Jacques, L. R. 1 Q. B. 376 (1866). Auldjo v. McDougall, ante. See 12. A note in the alternative is payable to, and may be sued on by, either one of the payees: Spaulding v. Evans, 2 McLean, 139 (1840). 13. A note payable to A. B. " or heirs," held to be a promissory note: Knight v. Jones, 21 Mich. 161 (1870). 14. A promise to pay a sum "to A. or B." is not a note: Carpenter v. Farnsworth, 106 Mass. 561 (1871). 15. A note payable to the order of "A. B. trustee for C. D." § 7. is a good promissory note: Downer v, Read, 17 Minn. 493(1871). non-exist ing. 3. Where the payee is a fictitious or non-exist- If payee is ing person, the bill may be treated as payable to bearer. Imp. Act, s. 7 (3). Formerly in England it was only as against a party to the bill who knew that the payee was a fictitious person, that a bona fide holder could treat the bill as one payable to bearer Chitty, p. 113; Minet v. Gibson, 3 T. R. 481 (1789). Chalmers says, p. 21:-"This sub-section was inserted in committee in place of a clause working out in detail the effect of the cases. The words "or non-existing" seem superfluous; but they were probably intended to cover the case of Aspitel v. Bryan, illustration 6 below." "Before the Act it appears that even a holder in due course could not enforce a bill which he held under the indorsement of a fictitious person, except as against parties. who were privy to the fiction; the exception that bills drawn to the order of a fictitious or non-existing payee might be treated as payable to bearer was based uniformly upon the law of estoppel, and applied only against the parties who at the time they became liable on the bill were cognizant of the fictitious character or non existence of the supposed payee: Vagliano v. Bank of England (1889) 23 Q. B. D. 243, at p. 260, per Bowen, L.J., reviewing the cases: Story on Bills $56, 200." "But the Act has swept away the former qualifications, and now any holder who could recover if the bill had been drawn payable to bearer can recover if the payee be fictitious. Where a bill is payable to the order of a fictitious person, it is obvious that a genuine indorsement can never § 7. be obtained, and in accordance with the language of the old cases and text-books the Act puts it on the footing of a bill payable to bearer. But inasmuch as a bill payable to one person, but in the hands of another, is patently irregular, it is clear that the bill should be indorsed, and perhaps a bona fide holder would be justified in indorsing it in the payee's name. It might have been better if the Act had provided that a bill payable to the order of a fictitious person might be treated as payable to the order of any one who should indorse it, or, in other words, as indorsable by the bearer. Though the bill may be payable to bearer, it is clear that a holder who is party or privy to any fraud acquires no title. What the Act has done is to declare that the mere fact that a bill is payable to a fictitious person is not of itself a bar to proceeding against parties who were ignorant of the fact." Vagliano's case.-The case of Vagliano and the Bank of England above mentioned is the most striking one that has arisen under the Imperial Act, and is of special interest not only on account of the number and magnitude of the forgeries in question, but also on account of the skilful manner in which they were perpetrated, and the great diversity of judicial opinion upon the questions of law involved. The following are the leading facts of the case. Vagliano, the plaintiff, was a London merchant, who kept his account with the Bank of England and made his bills payable there. These each year numbered about 4,000 and amounted to three or four million pounds. Among his foreign correspondents was Vucina, an Odessa merchant, who for several years had drawn a large number of bills upon him, several of them being to the order of C. Petridi & Co., of Constantinople. During 1887, up to the 12th of October, Vucina's drafts upon him numbered over 700, aggregating about £340,000. Vagliano had a |