389 JURISPRUDENCE. DIGEST OF ENGLISH CASES. COMMON LAW. [Selections from 2 Queen's Bench Reports, Parts 2 and 3; 5 Scott's New Reports, Parts 2 and 3; 11 Meeson & Welsby, Parts 1 and 2; 2 Dowling's Practice Cases (New Series), Part 4;-all cases included in former digests being omitted. The 4th and 5th parts of 3 Manning & Grainger contain no case not before digested.] ACTION ON THE CASE. (For fraudulent use of mark on manufactured articles-Evidence.) The declaration stated that the plaintiff, a manufacturer and exporter of iron, had for many years been accustomed to mark iron manufactured by him for the Turkish market, with the letters W. C., inclosed within an oval figure, and had gained great reputation for the excellent quality of the iron so manufactured and marked by him; and that the defendant, wrongfully and fraudulently manufactured iron of similar form, and marked the same with a stamp or mark in imitation of the plaintiff's mark, consisting of the letters W. O. inclosed within an oval figure, which last mentioned mark the defendants well knew to be in imitation of and similar in appearance to the plaintiff's mark, and so used by them to denote that the iron so made was of the genuine manufacture of the plaintiff, and wrongfully and fraudulently sold the same as and for iron manufactured by the plaintiff. At the trial, the witnesses for the plaintiff stated that the W. O. was very likely to be mistaken for W. C. when the impression of the die was imperfect, or the iron had been exposed to the air, and that more especially the people in Asia Minor, who were the principal consumers of the iron, were likely from their ignorance of the English character to be deceived by it. For the defendants, several witnesses stated that it was usual for iron manufacturers to mark iron according to orders received from purchasers, and it was proved that all the iron marked by the defendants with the mark so complained of, had been so marked in obedience to directions received from the merchants. Two points were left to the jury,-first, whether the mark so used by the defendants so closely resembled the mark of the plaintiff as to be calculated to deceive persons of ordinary skill and care, and to induce them to believe the iron so marked and sold to them was iron manufactured by the plaintiff,-secondly, whether such mark was so used by the defendants with a fraudulent intention to procure their iron to be received in the market as iron of the plaintiff's manufacture, or bonâ fide in the execution of foreign orders. The jury having found for the defendants, and the learned judge reporting that he was not dissatisfied with the verdict, the court held that the direction was correct, and refused to grant a new trial. Crawshay v. Thompson, 5 Scott, N. R. 562. 2. (Damages in-When costs of litigation by plaintiff recoverable against wrongdoer.) In an action for running down a ship, it appeared that the plaintiff had been obliged in consequence of the injury to employ a steam-tug, the owhers of which demanded 1501. for salvage, and commenced a suit in the court of admiralty against the plaintiff, who paid 201. into court; the court ultimately decreed 457. to the salvors: held, upon these facts, that the plaintiff was not entitled to recover the amount of the costs incurred by him in that suit. Semble, that the proper question for the jury in such a case is, whether, in respect to the suit for salvage, the plaintiff pursued the course which a prudent and reasonable man would do in his own case: and that if the jury think he did, the costs of the suit may be recovered. (7 M. & W. 601; 10 M. & W. 249.) Tindal v. Bell, 11 M. & W. 228. ARBITRATION. (Power of arbitrator to arrest judgment— Award, when sufficiently final.) An arbitrator to whom a cause is referred, with power to direct how the verdict shall be entered, has no authority to arrest the judgment. Where, in an action on the case by a reversioner, which was referred by order of nisi prius to an arbitrator, he awarded (inter alia) that the action was brought to try a right, besides the mere right to recover damages: Held, that he was not bound to state what was the right which the action was brought to try. Where by an order of reference, the arbitrator is "to determine what he shall think fit to be done by either of the parties," he is not bound to direct affirmatively that something shall be done, unless he shall so think fit. Per ford Abinger, C. B. Alderson, B., and Gurney, B.; Parke B., dissentiente. Argus v. Redford, 11 M. & W. 69; 2 D. P. C. (N. S.), 735. 2. (Proceeding with reference, after death of party.) A cause and all matters in difference were referred by an order of reference to the decision of an arbitrator, the arbitrator to make and publish his award, ready to be delivered to the parties, or either of them, "or if they or either of them should be dead before the making said award, to their respective personal representatives who should require the same," on or before a certain day. Several meetings were from time to time held, but one of the parties died before the reference was concluded. After his death the arbitrator was requested to proceed with the reference, but he declined doing so, the executrix of the deceased party having refused to attend, and protested against its proceedings: Held, that the court had no power to direct the arbitrator to proceed, or to compel the executrix to attend before him. Lewin v. Holbrook, 11 M. & W. 110. 3. (Demand of performance of act directed by award.) Although, where a demand of money payable under an award is made by a stranger, not a party to the arbitration, it must be made under the authority of a power of attorney given by the party to whom the money is to be paid, the same rule does not apply where the demand is to be of the execution of deeds under an award; and a demand thereof by an agent of the plaintiff's attorney was held sufficient to found an application for an attachment against the party for non-performance of the award. Nor was it held to be any objection, that it was the duty of the arbitrator to have prepared the deeds. Tebbut v. Ambler, 2 D. P. Ć. (N. S.) 677. 4. (Award, when sufficiently certain.) In ejectment, on three demises, a general verdict was taken at nisi prius, subject to a reference of the cause and all matters in difference, the costs of the cause to abide the event. An award directing that the verdict should stand was held bad, on the ground that the arbitrator ought to have stated on which of the demises the plaintiff was entitled to succeed. (8 A. & E. 235.) Doe d. Starling v. Hillen, 2 D. P. C. (N. S.) 694. BAILMENT. (Liability of gratuitous bailee for negligence.) A person who rides a horse gratuitously, at the owner's request, for the purpose of showing him for sale, is bound in doing so to use such skill as he actually possesses; and if proved to be a person conversant with and skilled in horses, he is equally liable with a borrower for injury done to the horse while ridden by him. Wilson v. Brett, 11 M. & W. 113. BILLS AND NOTES. (Notice of dishonour.) Notice in these terms, "I hereby give notice that a bill for 507. at three months after date, drawn by A. on and accepted by B., and indorsed by you, lies at, &c., dishonoured"-held sufficient, without further intimation that the plaintiff looked to the defendant for payment. King v. Bickley, 2 Q. B. 419. 2. (Same.) Notice as follows held sufficient, "Your draft on C. for 501. due 3d March, is returned to us unpaid; and if not taken up this day, proceedings will be taken against you for the recovery thereof." (8 Bing. N. C. 688; 2 M. & W. 799; 2 Q. B. 388; 1 Man. & G. 76.) Robson v. Curleurs, 2 Q. B. 421. 3. (Drawer of bill, when discharged by time given to acceptor.) It is no defence to an action against the drawer of a bill of exchange, that the proceedings in an action against the acceptor had (without his consent) been stayed at an earlier stage by a judge's order, to pay debt and costs in three weeks, otherwise judgment. Kennard v. Knott, 5 Scott, N. R. 247. 4. (Evidence to vary contract in note, when admissible, and effect of.) It is not competent to the maker of a promissory note, in an action by the payee, to give in evidence an oral agreement to vary or contradict the express contract upon the face of the note; but a contemporaneous agreement in writing may be adduced for that purpose. In an action against one of the three makers of a joint and several promissory note payable at two months' date, the defendant pleaded that the note was made by him and delivered to the plaintiffs as trustees of a loan society, to secure to them the repayment of money lent to one T.; that, at the time of lending the money and of making the note, it was agreed in writing between the plaintiffs, the defendants, T. and the society, that the loan and interest should be repaid by T. by weekly instalments, and that if T. should make default, notice should be given to the defendant; and that if the money was not paid according to such notice, legal proceedings should be taken upon the note, but not before, &c.: Held, that this plea was not sustained by the production of the book of regulations of the society, there being nothing (without the aid of oral testimony) to connect the book with the note declared Brown v. Langley, 5 Scott, N. R. 249. on. 5. (Notice of dishonour.) In an action against the drawer of a bill of exchange, the issue being whether or not the defendant had received notice of dishonour, an admission by the defendant of his liability is primâ facie evidence (only) whence the jury may infer that he had due notice. Bell v. Frankis, 5 Scott, N. R. 460. 6. (Indorsement, how far a new drawing-Account stated.) A declaration alleged that the defendant made his bill of exchange, and directed the same to J. B., and required him to pay to the defendant's order 1871. 15s., and then indorsed the bill to the plaintiffs. It appeared that the bill had been drawn by one F., and indorsed by the defendant in blank, and having been delivered by the defendant to F., was by him taken to a bank of which the plaintiffs were the managers, where it was received by them in renewal of another bill discounted by them, and drawn and indorsed by the same parties: Held, 1st, that proof of the defendant's being the indorser of the bill did not support the averment that he made the bill; 2dly, assuming that an indorser might be treated as a drawer, still the present indorsement, being in blank, was equivalent to the drawing of a new bill payable to bearer, and therefore the bill was misdescribed in the declaration; 3dly, that the plaintiffs were not entitled to recover on the account stated. Burmester v. Hogarth, 11 M. & W. 97. 7. (Estoppel on acceptor to deny forged indorsement.) A bill of exchange, purporting to be drawn by B. & W. (a really existing firm) payable to their order, and to be indorsed by them, was negotiated by the acceptor with that indorsement upon it. The |