The maker of a note engages that he will pay according Chap. XII. to its tenour; and he is precluded from denying to a holder in due course the existence of the payee and his then capacity to indorse.1 Liability of maker. Subject as above, the provisions of the Act relating to bills of Application of provisions exchange apply, with the necessary modifications, to promissory as to bills of notes, except the provisions relating to (1) presentment for accept- exchange. ance, (2) acceptance, (3) acceptance supra protest, and (4) bills in a set.3 Where a foreign note is dishonoured, protest is unnecessary.3 In applying the provisions applicable, the maker of the note corresponds with the acceptor of a bill, and the first indorser with the drawer of an accepted bill payable to drawer's order.* An "I O U" is an acknowledgment of debt merely, and does "IOU.” not amount to a promissory note. The following is a form : LONDON, 1st April, 1887. Mr. JOHN JONES, I O U £100. BENJAMIN BROWN. It is evidence only of a debt due, and therefore does not require a stamp; but if it contains words converting it into a promissory note, for instance, amounting to an agreement to pay on a given day, it must be stamped as such.5 Securities for Bills of Exchange. If goods are sold to be paid for by bills drawn by the seller on and accepted by the buyer, and the buyer fails, or dishonours the bill, the lien of the seller as unpaid vendor revives in the absence of special contract, if he has retained the goods or can stop them in transitu.8 Where the drawer of a bill remits goods or securities to the drawee as cover and the latter fails, so that the former has to take up the bill, he is entitled to the return of any of the goods or Chap. XII. securities remaining in specie in the hands of the drawee.1 If the drawee accepts, he acquires, but if he does not accept, he does not acquire, a lien on the cover; and if he fails during the currency of the bill, or does not pay it at maturity, he loses any lien on the cover.4 If a bill be drawn on or accepted by a person who has in his hands funds of the drawer, or who is indebted to the drawer in a sum sufficient to meet it, the bill does not operate as an assignment of the funds or debt to the drawee; but such assignment can be effected by a collateral agreement." 5 Where a bill is on the face of it expressed to be drawn against specified cover, the holder acquires no charge on the cover if the bill be dishonoured; 7 but such charge can be created by express agreement. This rule is subject to the exception that where the estates of two insolvent parties, both liable in respect of a bill to the holder, are being administered by the Court, and one of these parties holds cover belonging to the other of them, the holder is entitled to have the cover applied in payment of the bill if that cover remains unrealized at the time of the failure of the party holding it.8 Where a bill accepted for value is dishonoured and the drawer or an indorser has to pay it, he is entitled to the benefit of any securities which were deposited by the acceptor with the holder to secure the payment of the bill, and which the holder had in his possession at the time of the dishonour of the bill. The right is not dependent on express contract, but arises from the right of indemnity which the indorser paying the debt (who is a mere surety for the acceptor) has to be indemnified by the latter." Where an accommodation party is compelled to pay a bill, he is entitled to the benefit of any securities deposited by the person accommodated with the holder as security for the payment of the bill.10 1 Ex p. Broad, 13 Q. B. D. 740. 3 Re Pavy's Co., 1 Ch. D. 631. Ex p. Gomez, 10 Ch. 639. 5 Bills of Exchange Act, 1882, s. 53; 6 Thomson v. Simpson, 5 Ch. 659. 157. 8 Ex p. Waring, 19 Ves. 345; 13 R. R. 217; Powles v. Hargreaves, 3 De 9 Duncan v. N. & S. Wales Bank, 6 App. Cas. 1. 10 Bechervaise v. Lewis, L. R. 7 C. P. 372. Chap. XII. Bank notes. warrants. Bank Notes-Dividend Warrants-Exchequer Bills. Bank notes are promissory notes and therefore negotiable;1 but their issue is subject to certain restrictions, having for their object the protection of the monopoly of the Bank of England. "Dividend warrants," i.e., warrants issued by the Bank of Dividend England for the payment of dividends on government stock, are to be "deemed to be cheques within the meaning of the Bills of Exchange Act, 1882"; and the provisions of the Bills of Exchange Act, 1882, as to crossed cheques apply to dividend warrants; but that Act is not to affect the validity of any usage relating to dividend warrants or the indorsement thereof.5 Exchequer bills are negotiable instruments." 3 1 Miller v. Race, 1 Burr. 452; 1 Sm. L. C. 463. 27 & 8 Vict. c. 32; 17 & 18 Vict. C. 83. 3 National Debt Conversion Act, 1888 (51 Vict. c. 2), s. 30 (5). 4 S. 95. ⚫ S. 97 (3) (d). 6 Wookey v. Pole, 4 B. & Ald. 1; 22 R. R. 594; Brandao v. Barnett, 12 Cl. & F. 787. The issue of exchequer bills is regulated by 29 & 30 Vict. c. 25, 40 & 41 Vict. c. 2, and 52 & 53 Vict. c. 6. Excheque bills. CHAPTER XIII. Chap. XIII. TRADE MARKS AND TRADE NAMES. THE right to the exclusive use of a particular mark or name for purposes of trade rests on the fundamental rule "that one man has no right to put off his goods for sale as the goods of a rival trader, and he cannot, therefore, be allowed to use names, marks, letters, or other indicia by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person. A man may mark his own manufacture (or goods sold by him) either by his name, or by using for the purpose any symbol or emblem, however unmeaning in itself; and, if such symbol or emblem comes, by use, to be recognized in trade as the mark of the goods of a particular person, no other trader has a right to stamp it upon his goods of a similar description." That is to say, no man is entitled to represent his goods as being the goods of another man.2 If A. uses on his goods a mark already used by B. on goods of the same description, A. substantially represents the goods to be the manufacture of B., and so he deprives, or may deprive, B. of the profit which B. might have made by the sale of the goods which, ex hypothesi, the purchaser intended to buy from B.3 A man has no right thus to appropriate the benefit of another's reputation. The principle is that, if by any mark, or words, or form of doing up things, goods are recognized in the trade as the goods of a particular person, the Court will protect him, that is to say, will restrain anyone from using the same mark or words, 4 1 Per Lord Kingsdown, Leather Cloth Co. v. American Leather Cloth Co., 11 H. L. C. 538; Reddaway v. Banham, [1896] A. C. 199, 209. 2 Per James, L. J., Singer Co. v. Loog, 18 Ch. D. 412. 3 Seixo v. Provezende, 1 Ch. 192; Montgomery v. Thompson, [1891] A. C. 217. The "get up" of the goods, as in Siegert v. Findlater, 7 Ch. D. 801; Lever v. Goodwin, 36 Ch. D. 1; Birmingham Co. v. Powell, [1897] A. C. 710; see Kerly, T. M., 458, 488. or form of doing up, so as to pass off the goods of the latter as Chap. XIII. the goods of the former.2 A trade mark has been defined as follows:-3 4 What is a "Trade "A trade mark means the mark under which a particular individual Mark?" trades, and which indicates the goods to be his goods-either goods manufactured by him, or goods selected by him, or goods which, in some way or other, pass through his hands in the course of trade. It is a mode of designating goods as being goods which have been, in some way or other, dealt with by A. B., the person who owns the trade mark." And again : Trade marks are "marks placed on goods to indicate their origin, or their selection, or their importation, or some other trade qualification, and thereby to give information with regard to those goods to all persons trading in them. They are marks under which the trader trades."5 producer. Using the word "producer" to mean the person who has made, Trade mark or selected, or otherwise dealt with the goods, it may be observed denotes. that a trade mark denotes the producer and not the thing produced; that is to say, it distinguishes the goods from other goods of the same description produced by other persons: for the article to which it is applied may be one which all the world can and may lawfully make and sell. And herein a trade mark differs from a mere descriptive trade name; for a name may denote either the maker of the particular article in question or the nature of the article, by whomsoever made, that is, it may be merely an advertisement of the character and quality of the article." words. Therefore words in common use, merely descriptive of articles Descriptive of a given kind, cannot be made trade marks; nor can words which simply define the nature, kind, or quality of the article.7 1 Waterman v. Ayres, 39 Ch. D. 36. Re Van Duzer, 34 Ch. D. 636. 3 Re Australian Wine Importers, 41 Ch. D. 278, 280, per Kay, J. As to selectors, see Hirsch v. Jonas, 3 Ch. D. 584, 586; Robinson v. Finlay, 9 Ch. D. 487; Re Wood's T. M., 32 Ch. D. 262, per Fry, L. J. As to importers, see Re Apollinaris Co., [1891] 2 Ch. 226, per Fry, L. J. The trade mark of the producer cannot be registered as the trade mark of an importer, unless he has a monopoly of the whole of the producer's goods; Re Apollinaris 5 Per Fry, L. J., Re Apollinaris Co., 6 See Leather Cloth Co. v. American |