burn, C.J., put it, was whether the operation of this secret profit was to exercise on the agent's mind an influence adverse to his employer's interest. If so, there was fraud, which vitiated the contract.

Trade Mark-In Smith v. Mason, another of the endless and ever-varying trade mark cases was recently decided by ViceChancellor Hall. A person of the name of Smith patented a medicine which he called "Smith's Pectorine." Perhaps to make it more distinctive, he changed the name to "Pectorine." Shortly afterwards he found that another person was selling a medicine under the name of "Pectorine." An injunction being applied for, the defence was that the second "Pectorine" was composed of totally different ingredients from the first of the species. The ViceChancellor granted the injunction. The name " Pectorine" was purely a fanciful one. The name differed entirely from such a name as "Nourishing Stout." The case came under the same category as the "Eureka Shirt" case-a name which was found to be protected. Ford v. Foster (L. R. 7, Ch. 611). There is no monopoly in common words of the English language; there is in purely fanciful appellations.

Tenant of Shootings.-A somewhat curious question occurred in the case of Gearns v. Baker, March 24th. The plaintiff took a lease of a mansion-house and the exclusive right of shooting, coursing, and fishing over the estate. Soon after the lease was entered into a portion of the wood on the estate was put up to sale; and it was alleged by the plaintiff that if this sale were carried out, some five or six of the plantations on the estate would be destroyed, and consequently great injury would be done to the shootings because of the destruction of the covers for the pheasants. Vice-Chancellor Hall granted an injunction. The Lord Justices reversed. They held that there was nothing in the agreement depriving the owner of the estate of his proprietary right to manage his estate as he pleased. If the shooting tenant desired or required the proprietor's right to be restricted, there should have been a clause inserted in the agreement. It appears to us that the question depends on this other question, whether the cutting down of the timber was made in the ordinary agricultural occupation of the subjects. A tenant who takes the lease of shootings is certainly entitled to assume that the proprietor will not immediately set to work and cut down all the plantations which give cover to the game.

Note. In our remarks in last number on the case of Banks v. Crossland, we were in error in stating that there was no Scotch case on the subject. There is a case, Kershaw v. Mitchell, March 16, 1872, 2 Cooper 206, where an entirely opposite decision from that of the English Judge's is arrived at. The case is not reported in the Session Cases, which occasionally reported Justiciary VOL. XIX. NO. CCXX.-APRIL 1875.

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cases, nor in the Scottish Jurist, which reported them regularly. We were in some degree misled by the judgment of the SheriffSubstitute of Aberdeen, in the case of Moir v. Shaw, reported ante, vol. xviii. p. 614. Cases of that class frequently come before the learned Sheriff, and from the elaborate judgment he pronounced in Moir's case, it is evident that he had given special and continued attention to the subject. But there is no reference to the case of Kershaw v. Mitchell. Indeed, it is intimated that the only authority bearing on the subject is the English case of Crane v. Powell.

The Month.

Sir Charles Dilke and the Ballot Act.-Last year we mentioned that Sir Charles Dilke had applied for a Commission or Select Committee to inquire into the working of the Ballot Act, and to report on what he regarded as its defects. The Government staved him off with the plea that it was better to wait for the result of the Election Petitions, when it would be known from the decisions of the Judges what interpretation was to be put on some ambiguous and disputable phrases in the Ballot Act. As it turned out, not very much information was obtained from this source. The only case of great importance was the Wigtown Burghs case, in which it was held by two Judges out of three who had to decide the case, that what the Act makes directory is imperative. Very recently Sir Charles Dilke renewed his application, and the application was refused on the ground that there were already a great many Committees sitting, inquiring into subjects of great public importance. There is to be no official inquiry, and there is to be no legislative action for the present; but it may be well for any one who has had experience in the working of the Act to offer such suggestions as his experience enables him to make, which may guide returning officers in the conduct of elections. During the debate on Sir Charles Dilke's motion, a speech was made by Mr. Mark J. Stewart, the member for the Wigtown Burghs, who complained very bitterly of the operation in his case of the Ballot Act. He had really a majority of votes at his first election. He was unseated, and had to stand another election. A second petition was brought against him. He succeeded on the second occasion. But on both occasions he ran the risk of losing his seat, simply because some papers were found to be unstamped. That was due, said the member for the Wigtown Burghs, to "the carelessness and indifference of the polling sheriffs." We have, and everybody has, the utmost sympathy with a gentleman who has had to bear the brunt of two elections and two election petitions. Such things are expensive luxuries. We understand all this and we make allowance for it. But when Mr. Stewart attributes his mishaps to the carelessness and indifference of the polling sheriffs, we have only to say that the state

ment is unfair, is unjust, and is untrue. The presiding officers were not careless. They were not indifferent, except in the sense in which that term was used two centuries ago. There is, however, very little use in crying over spilt milk, however much you may sympathise with the individual whose property has been destroyed. And there is just as little use in a candidate and presiding officer firing long shots at each other, especially when the candidate has the advantage of being able to place his gun in position,-in such a vantage-ground as the House of Commons. The practical thing is to discover how the mishap arose, and how it may be avoided in time to come. These are the questions which sensible persons will put, and to which they will desire an answer. We believe the mishap as to the stamping of the papers was due to the inefficiency of the stamping instrument. At the first election some papers were found to be unstamped, and as to another it was a matter of doubt whether it had been stamped or not. At the second election, of course, every presiding officer was particularly careful to see that the same error did not occur again.

The stamp used was an embossed stamp. It is possible that in the course of two or three months the creases may have come out of the paper. But it is more likely that the stamp did not come properly down. When you poll some hundreds of people in the course of eight hours it is impossible to inspect each ballot paper before it is given to the voter. When an ink stamp is used, or a perforating stamp, which takes a piece out of the paper, the polling sheriff can see at once-cannot help seeing-whether the paper is or is not stamped. But with an embossed stamp, that cannot be seen without a careful inspection. No doubt, voters are to blame if they do not take care to see whether the stamp is impressed; but as a rule they do not. And it is, according to the terms of the Act, necessary that the voter should show the official mark on the back before putting his paper in the ballot box; but sometimes voters will place their paper in the ballot box before the presiding officer is able to stop them.

The lesson to be drawn is this, that the use of embossed stamping instruments should be discontinued.

Sir Henry James's Returning Officers Bill.-We are enabled to furnish our readers with the "Report of Committee of Sheriffs of Scotland on the Parliamentary Elections (Returning Officers) Bill 1875."

"Before making observations on the details of the Bill, we may state our general conclusion that the case of Scotland is not met by the present Bill, and that Scotland should be excluded from its operation, and if dealt with at all, should be so in a separate

measure.

"We think, however, that legislation on this subject at present as regards Scotland is premature. From our experience of the working of the Ballot Act, we feel very sure that at any future General Election, and without any legislation, much expense,

which the peculiar circumstances and the novelty of procedure rendered inevitable at the Election of 1874, will not in Scotland

recur.

"If, however, legislation is to take place now as regards Scotland, we are of opinion that it should be in the direction of providing that all contracts for services, or furnishings at an Election, should be made by the Sheriff-Clerk, subject always to the control and revision of the Sheriff, whose decision upon the amount to be charged and paid in respect of any such services or furnishings should be binding on all parties, and beyond appeal. It is not the wish of the Sheriffs to make any claim against Candidates for personal services at Elections: but there can be no difficulty in embodying our proposals in an Act applicable to Scotland,-a course which, we believe, would meet with general approval in Scotland.

"The present Bill (which in some particulars virtually repeals the Ballot Act) differs in some of its details from that of last year, but is still made applicable to Scotland.

"In Clause 2 the Candidates are still declared to be liable each for an equal share of the expenses; but the provision, which was in last year's Bill, for allowing by agreement higher charges than the Bill itself permitted, is left out.

"Clause 3 has been remodelled, and by the present Bill the Returning-Officer may, if he think fit, 'require security to be given for the charges which may become payable under the provisions of this Act in respect of any Election.'

"The maximum total amount of security which the ReturningOfficer may require in respect of all the Candidates is given in Schedule 3; and it is provided in the relative clause that where security is required, it shall be apportioned and given as follows:

"(1.) At the end of the two hours appointed for the Election, the Returning-Officer shall forthwith declare the number of the Candidates,' and if there are more nominated than vacancies to be filled up, shall apportion equally among them the total amount of the required security.'

"(2.) Within one hour after the end of the two hours aforesaid, security shall be given by, or in respect of, each Canndidate then standing nominated for the amount so apportioned to him.'

"(3.) If in the case of any Candidate security is not given or tendered, as herein mentioned, he shall be deemed to be withdrawn, within the provisions of the Ballot Act 1872.'

"(4.) 'A tender of security in respect of a Candidate may be made by any person.'

"(5.) Security may be given by deposit of any legal tender, or of notes of any Bank being commonly current in the County or Borough for which the Election is held, or with the consent of the Returning Officer in any other manner.'

"(6.) The balance (if any) of a deposit beyond the amount to

which the Returning Officer is entitled in respect of any Candidate shall be repaid to the Person or Persons by whom the deposit was made.'"

"The third Schedule prescribes the maximum sums which may in each case be required to be deposited. These are regulated, according to the number of voters, from £150 in Counties and £100 in Boroughs of not more than 1000 Voters, up to £1200 in Counties, District Boroughs, and Boroughs where the Voters exceed 30,000.

"In uncontested Elections, the Deposit is not to exceed one-fifth of the amount for a contested election. The Bill leaves the requirement of Security, it will be seen, still optional, and it may also be doubted whether a mere tender of any Security made by any Person under head (4.) of the Clause, would not render the penal part of head (3.) nugatory.

"There is also a possibility of two or three or more of a number of Candidates nominated at the close of the first two hours not finding Security, and thus being retired, leaving the remaining Candidates to carry on a contested Election, for the expenses of which the Returning-Officer would have very meagre Security. We think that giving sufficient Security by deposit of money should be an absolute condition of Nomination; and that there should be no change of the law as to the joint and several liability of Candidates.

"Section 4 regulates the Taxation of the Returning Officer's Accounts in England and Ireland.

"Section 5 is a new clause directed entirely to the Taxation of Returning Officers' Accounts in Scotland.

"The framers of this clause have avoided the anomaly in the provision of last year's Bill of the Sheriff being made auditor of his own accounts; but the provisions in the present clause are open to objections still more grave and important.

"In this Bill the Sheriff-Court, having jurisdiction at the place of nomination, is still made the Taxing Court, but the clause provides that the taxation and examination shall be performed by a person to be appointed from time to time by a Judge of the Court of Session, and such person shall, for the purposes of this section, have all the same powers as if he were Judge of the SheriffCourt, and his determination shall have effect, and be enforced accordingly.'"

"The section goes on to provide that 'a majority of the Judges of the Court of Session' may, from time to time, make, vary, and revoke regulations for the appointment of the persons' aforesaid, for prescribing their duties, and fixing their remuneration.

"It is conceivable that in some very urgent circumstances, and for some very special reasons and purposes, a proposal to supersede temporarily in his own jurisdiction and Court a Judge supreme in that jurisdiction and Court, and whose right to act as ReturningOfficer was recognised by Statute so long ago as 35 Geo. III., cap.