422 HARVARD LAW REVIEW. under a mistake of fact. 4 Harvard Law Review, 307, and cases cited. And it is also well established that an acceptor is estopped to deny the genuineness of the drawer's signature {Bank v. Richer, 71 111. 439; Bige- low, Estop. (4th ed.), 498 ; 2 Harm. Estop., §§ 1006, looS), but not that of the indorsers (2 Dan. Neg. Inst., §§ 1364, 1365 ; Canal Bank v. Bank of Albany, 1 Hill, 287). There are, however, two points determined by the court in this case, which if decided differently might have resulted in judgment for the defendant. In the first place the court speak of the plaintiff's indorsement of this check as " an acceptance or certification " making no distinction between the two obligations and following Marine Nat. Bankv. Nat. City Bank (59 N. Y. 67), hold that the "acceptance or certification " of the check simply warranted the drawer's signature and that it had funds sufficient to meet it, but that the acceptance or cer- tification did not warrant the genuineness of the bodies of the checks either as to the payees or the amounts, or warrant the genuineness of the indorsements on the checks. It is submitted that the court were wrong in making no distinction between an acceptance and a certification, and that, though what was said above is true of the former, it is not sound as to the latter, and that Marine Bank v. City Bank (ribi sup?'d) is not in accord with the weight of authority. A certification is more than an acceptance ; it is not a warranty but an obligation. It is practically pay- ing the check with the certifying Bank's Certificate of Deposit, and the holder of a certified check has no recourse against the drawer or against any indorser prior to certification, if the certifying bank refuses to pay. Minot v. Russ., 156 Mass. 458 ; Louisiana Nat. Bank v. Citizens Bank, 3 Cent. Law Jour. 220 ; Merchants Bank v. State Bank, 10 Wall. 647 ; United States Bank v. Bank of Georgia, 10 Wheat. 333 ; i Morse on Banks and Banking, §§ 414, 415. If, therefore, the plaintiff's indorsement is a good certification it is submitted that he could not recover back this money. It was also urged by the defendant that the forgery of the indorsement was not sufficiently proven inasmuch as it does not appear that the check was really drawn in favor of C. H. W., and, further, that it was deduci- ble from the evidence that the check was delivered to some person un- known, and that it was in fact the intention of the drawer that such person should receive the money as payee, and that therefore it was not forgery for such a person to indorse the check with the name of C. H. W. The court decline to accede to this proposition, and in so doing quote at length from the recent English case of Vagliano v. The Bank, 23 Q. B. Div. 243 (1889), which holds in substance that the rule, that a bill drawn in favor of a fictitious payee is the same as a bill payable to bearer, cannot be applied where the name of the payee is the name of a real per- son, even although it was the intention of the drawer that such real person should never have anything to do with the bill. It would seem that this doctrine is unsound. In these cases of " fictitious " payees the important question is, Whom does the drawer intend to make the payee? When he draws the bill inserting the name of a real person as payee does he mean that such person shall receive the money, or does he intend that some other individual whom he has in mind shall be the payee under the name written in the instrument? The acceptor by his acceptance promises to pay the person indicated by the drawer, /. e. intended by the drawer to be the payee. If, therefore, the payee who indorses the bill is in fact the person intended by the drawer, it is submitted that the indorsement is no forgery, though the name indorsed be that of some other real person.
