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expenses is transmitted, leave is given by the High Court irregular for any claims to be sent in or paid (as to which, see Section claims paid. 29, Sub-section 8) the candidate or his election agent shall within seven days after the payment thereof, transmit to the returning officer, a return of the sums paid in pursuance of such leave, accompanied by a copy of the order of the court giving the leave, and in default, he shall be deemed to have failed to comply with the requirements of the section without authorised excuse, i.e., he will thereby become guilty of an illegal practice, avoiding the election. We think that if the returning officer has ceased to be such since the election, and before a return or declaration is sent in, the proper person to whom to send the return or declaration will be the late returning officer, and not his successor. The latter would seem to be a stranger to the election. The safest course would be to transmit the return and declaration to both, and if the late returning officer has died, then to transmit them to his successor.
The penalties for any omission or failure to comply with Penalties. the requirements of the law regarding the making and transmission of a proper return and declarations are very severe. In the first place, the omission or failure is an illegal practice, which, on a petition, avoids the seat (or, if the candidate has been unsuccessful at the election, he incurs the ordinary penalties imposed for an illegal practice). In the second place, even though no petition be presented, if the return and declarations are not transmitted within the
proper time, the candidate shall not (Section 33, Sub-section 5), after the expiration of that time, sit or vote in the House of Commons for the constituency until (a) the returns and declaration have been transmitted, or (b) until the allowance by the court of an 66 authorised excuse
for the failure to transmit them. If the candidate do so sit or vote, he is to forfeit the sum of £100 for every day he so sits or votes, to any person who cares to sue for it. The action might be maintained by a common informer. (Bradlaugh v. Clarke, 8 App. Cas., 354.) If the candidate or the election agent should knowingly Wilful false make the declaration falsely, he would commit a corrupt practice. (Section 33, Sub-section 7). For such an offence the candidate could have no relief under Section 23, or otherwise, because, for a corrupt practice, other than treating or undue influence, there can be no relief under any section. In addition, the persons, whether candidate or election agent, who actually made the false declarations would be liable, on conviction, to the punishment of wilful and corrupt perjury, which may be seven years' penal servitude,
. Relief on The Court has power to relieve a candidate or an election innocent mistake. agent from the consequences of an innocent mistake, either
when the returns and declarations have not been transmitted as required by the Act, or when, being transmitted, they contain some error or misstatement. (Section 34 of the Act of 1883). The way to obtain the relief, in the Act called an "authorised excuse," and the conditions on which it is granted, are treated of hereafter under the title of “Procedure," Section I. The same section (34) indicates the course to
be adopted when the candidate and election agent cannot Or default of make the requisite return and declarations, owing to the sub-agent.
default of some sub-agent. (See also infra.)
No sub-agent is required to send any return or declaration to the returning officer.
PRACTICE AND PROCEDURE.
SECTION I.-ON APPLICATIONS FOR RELIEF.
Many candidates will probably discover, during or after Applications the election, that more or less by inadvertence, illegal to relieve practices, payments, employments, or hirings, have been against
illegal acts. done, made or entered into by themselves or their agents.
as the discovery is made, application should be made to the High Court (or, if the election court is sitting, to that court), under the proper section of the Act of 1883, to be relieved against the consequences and penalties incurred, as well in regard to the election as to the individuals. The procedure will usually be, until new rules of court have been made, to apply ex parte at chambers for How made. directions as to the notice of the intended application to be given in the constituency. After these directions have been followed, the substantive application for relief will be made upon the appointed day by summons at chambers, or by motion in court, before a judge on the rota for the trial of election petitions, or in cases in which a master has jurisdiction before a master at chambers. (Section 56 of the Act of 1883). The application, if under Section 23, must be supported by evidence that the act or omission in question arose from Upon what inadvertence, or from accidental miscalculation, or from some other reasonable cause of a like nature, and not from any want of good faith. (Section 23, Sub-section (6)). The provision in the section as to notice would seem to imply that, upon the application, any candidate or elector may be heard. Cer. tainly, if a petition has been presented or is threatened, it would seem highly convenient to adjourn the application Parties to be generally, or to refer it to the election court, which will hear heard. all the witnesses. Any intending petitioner should oppose the application for relief. We think he is entitled to be heard before an order largely affecting his rights is made.
If the illegal practice, payment, employment, or hiring amount to bribery, no relief can be given to the candidate
or other applicant. Applications
By Section 33, Sub-section 6, of the Act of 1883, if a candifor default concerning
date, or his election agent, fails to comply with the requirements the return of of Section 33, as to the making and transmitting of the return expenses and
and declarations concerning the election expenses, he shall be declarations.
guilty of an illegal practice, and the candidate's election will be avoided; and if the return and declarations are not made and transmitted within the time provided by the statute, the candidate returned may not sit or vote in the House until they have been transmitted. (Section 33, Sub-section 5).
As soon as any such failure or delay is discovered, the candidate affected should apply to the High Court to be allowed an " authorised excuse for the failure to transmit the return and declaration, or for any error or false statements. (Section 34 of the Act of 1883.) The order allowing an“ authorised excuse" will prevent the omission or error being an illegal practice, and save the election in that respect, and protect the candidate (whether returned or not) and his
agent against penalties. An election court has jurisdiction Applications to make the order ; but if a candidate applies to an election should be made without court for this relief, he will probably have to pay the costs delay. of the petition in any event. On the other hand, by an
immediate application to the High Court, he may stall off a petition ; at all events, he will take a powerful weapon out of the hand of any petitioner, and save a great deal in the
costs of litigation. Notice of the Such notice of the application must be given in the conapplication.
stituency as the court may prescribe, and the application must be supported before the court or a judge at chambers by evidence (1) that due notice has been given ; (2) of the
applicant's good faith; and, if the applicant was a candidate, Evidence in (3) that the failure to transmit the return and declarations, support.
or any of them, or any error or false statement in them, has arisen by reason of his illness, or of the absence, death, illness, or misconduct of some agent or agent's clerks, or by reason of inadvertence, or of some reasonable cause of a like nature-e.g., by a slip--and not by reason of any want of good faith on the part of the candidate.
If the applicant be an election agent anxious to be relieved from the consequences of an illegal practice, he must give evidence in support of his application to the effect that his failure or error was caused by his own illness, or the death, or illness of any prior election agent of the candidate, or the absence, death, illness, or misconduct of some sub-agent clerk or officer of an election agent, or by inadvertence or other reasonable cause, and not by want of good faith on the part of the applicant. (Section 34 of the Act of 1883.)
If the evidence satisfy the Court or the judge, the order will then be made allowing an authorised excuse for the failure to transmit the return and declaration, or for the error or false statement in question.
If the return and declaration cannot be made and trans- Procedure mitted, owing to the refusal or failure of the election agent where subor a sub-agent, the Court, before making an order allowing default. an authorised excuse, will order the defaulter to attend before the Court, and unless he successfully show cause to the contrary, will, on his attendance, order him to do his duty by making the return and declaration, or by giving the necessary particulars, or may order him to be examined on oath. In default of compliance, the defaulter might be fined £500, and probably imprisoned for contempt of court. (Section 34, Sub-section 2, of the Act of 1883.) In
any case, if the candidate proves that the act or omis- When Court sion of the election agent regarding the return or declara- must relieve. tion was without the candidate's connivance, and that he took all reasonable means to prevent it, the Court must relieve the candidate from the consequences of the election agent’s act or omission. (Section 34, Sub-section 3, of the Act of 1883.) In such cases the candidate may obtain relief without satisfying the stringent conditions which are precedent to the granting of relief against treating and undue influence, and other illegal practices by agents, under Section 22 of the Act of 1883; but the Court, before exercising its