Scottish Court of Session Decisions

The Act 46 and 47 Vict. cap. 51, sec. 29, sub-sec. 2, provides—“Every claim against a candidate at an election, or his election agent, in respect of any expenses incurred on account of or in respect of the conduct or management of such election, which is not sent in to the election agent within the time limited by this Act, shall be barred, and shall not be paid, and, subject to such exception as may be allowed in pursuance of this Act, an election agent who pays a claim in contravention of this enactment shall be guilty of an illegal practice. ‘’ And sub-section 3 provides—“Except as by this Act permitted, the time limited by this Act for sending in claims shall be fourteen days after the day on which the candidates returned are declared elected.”

Sec. 29, sub-sec. 9, provides—“On cause shown to the satisfaction of the High Court [in Scotland the Court of Session is one of its divisions], such Court, on application by the claimant, or by the candidate or his election agent, may by order give leave for the payment by a candidate or his election agent of a disputed claim, or of a claim for any such expenses as aforesaid, although sent in after the time in this section mentioned for sending in claims, or although the same was sent in to the candidate and not to the election agent.”

This petition was presented by John Proctor Kyd, solicitor, Dundee, and others, being the election agents for the several candidates at the parliamentary elections for the burgh of Dundee, Montrose district of burghs, and the county of Forfar, which took place respectively on the 26th and 28th November and 2d December 1885. All the candidates lodged sums of money with the returning officer in security of the election expenses in terms of the Act 41 and 42 Vict. cap. 41, sec. 3. The returning officers' expenses were made up by the Sheriff-Clerk, but were not sent in until after fourteen days from the respective dates of the declaration of the poll. It was considered that they would be timeously sent in if lodged with the agents within twenty-one days of the said respective dates.

In these circumstances the election agents presented this petition to the Second Division of the Court of Session. The petitioners stated that they were satisfied with the accuracy of the accounts, a statement of which was given in the petition, and that they were justly due and ought to be paid, but stated that as the conditions of the Act had not been fulfilled, they did not consider it safe to pay the accounts without the sanction of the Court. They therefore prayed the Court to dispense with the reading in the minute-book and publication on the walls, and pronounce an order giving leave for the payment by petitioners as election agents of the sums found due by each to the returning officer.

The Court issued the following order—“Grant leave for payment by the petitioners in terms of the prayer of the petition of the several sums therein specified; dispense with the reading of the petition in the minute-book and with the intimation thereof on the walls, and decern.”