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Different kinds

of (a).

Under sec

tion 21 (7).

candidates. The Acts do, undoubtedly, contain so many stringent provisions as to the conduct of an election, that it is difficult for a candidate to avoid transgressing in some particular. But, as was pointed out by Vaughan Williams, J., in Rochester and Stepney (Day's El. Cas. 104, 124; 4 O'M. & H. 160, 183), the Acts themselves provide the means of relieving honest candidates from the consequences of such transgressions.

The sections of 47 & 48 Vict. c. 70 under which relief can be obtained are sections 19, 20, and 21 (7); they are fully set out post, pp. 467, 469.

The main distinctions between the sections are as follow:

Section 21 (7) affords to a candidate relief by way of authorized excuse for the failure to make the return and declaration of election expenses, or for any error or false statement therein.

Section 20 affords to any person relief, by excepting any act or omission which would otherwise be an illegal practice, payment, employment, or hiring from being so.

Section 19 affords to a candidate, who has been reported by an Election Court guilty by his agents of treating, undue influence, or illegal practice, relief by preventing his election being avoided and himself incurring incapacities.

Under section 21 (7), the Court may, upon the application of the candidate, allow an authorized excuse for the failure to make the return and declaration, or for any error or false statement therein, if it has arisen by reason of his illness or absence, or of the absence, death, illness, or misconduct of any agent, clerk, or officer, or by reason of inadvertence or any reasonable cause of a like nature, and not by reason of any want of good faith upon the part of the applicant (b).

(a) It is usual to make the applicant bear the costs of the application; he is sometimes ordered to pay the costs of an opposing candidate or elector.

(b) Relief under this sub-section can only be obtained with regard to municipal and county council elections; at the other elections no return or declaration can be made, see ante, p. 197.

The application must be made after notice and be supported by evidence of the grounds stated in the application, and of the good faith of the applicant, and otherwise as the Court thinks fit. See further, as to the necessary notice and evidence, and as to what is "inadvertence," post, p. 261.

The cases of Norwich and Buckrose, 4 O'M. & H. 89, 117, were decided upon the corresponding section of 46 & 47 Vict. c. 51. In the former, a notice given in court, where the persons interested were present, was held sufficient; in the latter, notice was ordered to be served upon the returning officer.

The application can be made to the High Court, where there is no petition: see post, p. 262.

The order allowing an authorized excuse may be made conditional upon compliance with terms. Thus, in Ex parte Robson, 18 Q. B. D. 336, the Court, upon proof that the omission to make a return and declaration (no expenses having in fact been incurred) arose from inadvertence, granted the application on condition that the return and declaration should be made within three days: see Ex parte Matthews, 2 Times L. R. 548; Ipswich, 3 Times L. R. 397; and Re Hobbs, 5 Times L. R. 372. Where an order for relief was drawn up, and on the same day, but subsequently, a voter appeared to oppose the relief, the Court dismissed his application in the absence of any sufficient explanation of his delay: Wigan, 2 Times L. R. 159.

The order relieves the candidate from any liability or consequences under the Act in respect of the matters excused: 47 & 48 Vict. c. 70, s. 21 (8).

The allowance of the excuse dates from the order or, if terms are imposed, from the compliance with them: Ibid. s. 21 (9).

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Under section 20 the Court has power to except from Under being an illegal practice (c) payment, employment, or section 20. hiring, any act or omission of the candidate or of any

(c) A similar power exists under certain circumstances in the case of a joint candidature of excepting an expenditure in excess

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agent or other person which would, but for being excepted, be an illegal practice, payment, employment, or hiring. But the Court can only except such act or omission when satisfied by evidence that it arose from inadvertence, accidental miscalculation, or some other reasonable cause of a like nature, and not from any want of good faith, and that sufficient notice of the application has been given, and where it seems just that such person should not be subject to any of the consequences under the Act. This section does not authorize the granting of relief in respect of any corrupt practice.

Relief has been granted under this section when too many messengers have been employed: Ex parte Darlington, 53 J. P. 71; 5 Times L. R. 183; where candidate's address was printed without the name of the printer: Ex parte Ives, 5 Times L. R. 136 (d); where a meeting was held at a public-house: Ex parte Hutchinson, ibid., 136; and in many similar cases, on the ground of the ignorance of the applicant of the provisions, or of the application of the Act to the election of county councillors. Relief was refused in Ex parte Montefiore, 5 Times L. R. 78; Ex parte De Wette, ibid., 173; Re Richmond, ibid., 206, &c. Relief was refused by a Divisional Court in one case on the ground that ignorance was no excuse for a breach of the Act, but was granted by the Court of Appeal: Ex parte Walker, 22 Q. B. D. 384; 58 L. J., Q. B. 190. Where relief had been refused, the Court of Appeal granted it on the ground of change of circumstances: Ex parte Thomas, 60 L. T., N. S. 728.

See, as to relief given under the corresponding section of 46 & 47 Vict. c. 51, Stepney, 4 O'M. & H. 178; Day's El. Cas. 116; Rochester, Day's El. Cas. 103; East Clare, ibid. 164; Walsall, 4 O'M. & H. 126; Day's El. Cas. 108.

of the maximum from being an illegal practice: see 47 & 48 Vict. c. 70, s. 5 (4) (c). This applies only to municipal and county council elections, because at the other elections there is no maximum: see ante, p. 197.

(d) In Ex parte De Wette, 5 Times L. R. 173, the Court held that there was no power to relieve a printer from the offence of omitting his name from a placard, it not being an illegal practice, payment, employment or hiring as regards him: see post, p. 351. Relief has, however, been frequently given in other cases without discussion.

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In Ex parte Lenanton, 53 J. P. 263; 5 Times L. R. 173, inadvertence was defined to be "negligence or carelessness, where circumstances show an absence of bad faith."

The question of what is inadvertence has been raised in the parliamentary election cases of Walsall and Stepney, 4 O'M. & H. 128, 182; Day's El. Cas. 115, 120.

In the former case a payment had been made by the election agent for hat cards, and in the latter for ban

ners.

The Court (Pollock, B., and Hawkins, J.) were of opinion that the payment for hat cards did not arise from accident or inadvertence, because it was made intentionally, although in ignorance of its illegality The Court declined to grant relief in respect of these cards, although willing to grant it in respect of three other trifling matters, and the election was avoided by reason of a payment of 27. 18s. for these cards. But in Stepney, the Court (Cave and Vaughan Williams, JJ.), being satisfied of the bona fides of the election agent, granted relief in respect of the payment for banners, and of over thirty other matters.

The question of inadvertence was dealt with by Cave, J., at length. His view was that there might be inadvertence, not only where a person did not know what it was that he did, but also where he did not know that what he did was wrong, at any rate in cases where the law was doubtful. The latter view is in accordance with Ex parte Walker, supra, where it was held in the Court of Appeal that, under special circumstances, ignorance of the illegality of the act might be inad

vertence.

It would seem upon the merits that relief might well have been granted in Walsall, and refused in Stepney; in the latter case the election agent had destroyed his books and memoranda, had made illegal payments, had omitted to return certain election expenses, had allowed disqualified persons to vote, &c.

The effect of an order made under this section is to

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wipe out the act or omission altogether, and to leave the election and the offender in the same position as if it had never occurred: see Hexham, 4 O'M. & H. 144; Day's El. Cas. 96.

In Walsall, Day's El. Cas. 77, the application was originally made for relief in respect of certain matters, "if found by the Court to be illegal." The Court, however, declined to entertain it in this form, and the illegality was subsequently admitted: as to form of notice, see post, p. 698.

Applications for relief under this section may be made either to the High Court or the Election Court. Such applications in parliamentary as well as in municipal elections have usually been made, where no petition is pending, to a Divisional Court. As regards applications in parliamentary elections such Court, unless it consists of election judges, has no power to entertain them, because, by 46 & 47 Vict. c. 51, s. 56, jurisdiction is vested in one of the election judges sitting either in Court or at chambers: see Shaw v. Reckitt, [1893] 1 Q. B. 779; 62 L. J., Q. B. 375; 68 L. T., N. S. 688; 41 W. R. 497.

Inasmuch as the above section is to apply as if reenacted in 47 & 48 Vict. c. 70 (see section 30), it may be that such applications in municipal elections must also be made to an election judge. Another construction of section 30 is that section 56 is only applied for the purposes mentioned in the earlier part of the section, viz., the prosecution of offences, the duties of the Public Prosecutor in relation to them, and the removal of incapacities procured by perjury. If this construction is correct, applications for relief may be made to any judge. Having regard to this uncertainty, it would be well to make this and any other application under 47 & 48 Vict. c. 70 to one of the election judges.

Unless the application is made to an Election Court it must be made upon affidavit. There must, wherever made, be sufficient evidence of the facts entitling the applicant to relief.