COURT FOR THE RELIEF OF INSOLVENT DEBTORS.

VEXATIOUS DEFENCE EXAMINED.

The following very novel case (being, it is thought, the first of the kind) involves principles materially affecting the interests of persons applying to the Court for relief of Insolvent Debtors. It has asserted their title to certain privileges heretofore suffered to lie dormant, if known to exist, or at least never laid claim to before.

It will be seen, that the learned gentleman with whom the experiment originated, has claimed, for the first time, a right to challenge the decision of the Commissioner, and bring it under review; as also to impugn the adjudication of the Court itself, on the ground of error of the Commissioner, and false evidence in the obtaining what is called a remand.

The case itself will best narrate its own history, and disclose its importance.

Mr. Price, the Barrister, having been at large on bail, had come up to be heard, on his petition, before Mr. Commissioner Pollock, on the 1st of August, who, by his adjudication, declared him, in the usual terms, to be entitled to the benefit of the Act, ordering his discharge; but, on the ground of vexatious defence, not till the expiration of four months from the date of the vesting order.

Mr. Price afterwards obtained a rule (12th of August), on the motion of Mr. Cooke, before Mr. Commissioner Pollock, calling on the detaining creditor to show cause why he should not be reheard on his original petition, on the objections that the adjudication had been obtained on false evidence, or otherwise improperly made; upon strong affidavits, bringing into question the right of the plaintiff in the action (the detaining creditor) to sue him; and showing that the verdict itself had been obtained against him by false testimony.

Opposed to those affidavits again, there were now produced several by the plaintiff and two other persons,

Mr. Woodroffe now showed cause against the rule. Having read through the affidavits on which the motion had been made, he first objected to an irregularity in that of a woman who swore she had been engaged by the insolvent as laundress during the term mentioned, as being signed by a mark, without the due notice in the attestation; but he did not insist on that, as it might be re-sworn perhaps; when Mr. Commissioner Pollock said "There is another defect in the drawing up of the rule, which plainly spells this person's name as Farmer, whereas it is as plainly Parmee."

Mr. Price. Sir, that defect is attributable to the inaccuracy of your officer, and is not to be visited on me. The rule for amending the original rule spells it properly; and that rule as amended was, of course, never seen by me.

Mr. Pollock. But it is the duty of persons who obtain rules here to see that they are correctly drawn up.

Mr. Price. Those which came to my hands are duly drawn up; and here, in your officer's hand, is the name properly spelt. This is the only rule served, and is the only one over which I have any control. That should be the mere perfection of the rule which it amends, and as such does not leave your office, and is not served or even seen.

Mr. Pollock. I see another defect in the affidavit of Walter Thomas Homan, as he is called in the affidavit; but he signs his name Walter Homan only. There is really a fatality attending some motions!

Mr. Woodroffe then demanded why each and every of the deponents now coming forward (naming them singly and individually) had not been produced at the hearing, when it must have been known they would be wanted, and when they might have been cross-examined or contradicted? He then proceeded to collate the statements in the affidavits on both sides; and submitted, that the depositions on which the rule had been obtained having been contradicted by those now filed, the rule must be discharged.

Upon that proposition, Mr. Commissioner Pollock, before whom the rule now came on to be argued, and who had stated, when he granted it, that he did so with reluctance, and that he had great doubts whether he ought to do so, called on Mr. Price, who appeared in person, to support his rule.

Mr. Price thereupon rose to address 'the Commissioner on his own behalf, and spoke in substance as follows:

My learned friend, Mr. Woodroffe, in showing cause against this very novel application, which is, as far as I can learn, one of first impression, appears to have entirely mistaken the nature, ob, jects, and scope of the application. He has treated this mere motion for a re-hearing, as if it were, in fact, the actual re-bearing of the petition, which it is now prayed may be re-heard. And they who have instructed him have obviously so mistaken the matter; and even the learned Commissioner himself has not escaped falling into the same error. In truth, however, this is not in the nature of a re-hearing-it is simply an application to the Court to re-hear the case. And it is founded on two distinct grounds;-first, that the Court have wrongly adjudicated in the matter in point of law, and come to an erroneous and unsustainable conclusion, and therefore the adjudication has been improperly made: and, secondly, (I might rather say secondarily) that the judgment of the Court having been induced by testimony which is untrue, it has been, in the words of the Statute, "obtained on false evidence."

I will first contend, giving the legal objection to it the priority,that the adjudication has been improperly made,—because it will take the shortest time, as it is independent of the affidavits, and therefore lies in a very narrow compass.

Mr. Commissioner Pollock.-The rule was not obtained on that ground that I am aware of. When this was moved before me, it was put on the footing that the adjudication had been obtained on false evidence, and no objection was made to the adjudication as being wrong.

Mr. Price. You will find that the rule expressly recognizes that first ground of objection to the adjudication, as one of the reasons on which I found the application for a re-hearing.

Mr. Commissioner Pollock.—I think not.

Mr. Price. If you refer to the rule itself, you will find it to be so. I am too well used to the wording and reading of rules, to make any mistake of such kind, or to dream that a rule contains what is not to be found in it.

Mr. Commissioner Pollock.-Oh, yes; I see it is so:-"That the adjudication was made on false evidence, or otherwise improperly made, or fraudulently obtained." Those words are in that part of the form which is in print, I see.

Mr. Price. And therefore are the more conspicuous-nay, are deemed to be as words of course -in fact, they are adopted verbatim from the clause of the Statute. I now then contend, that as the case originally stood when it first came before the Court, or rather the Commissioner whom I have now the honour to address, there was no case of vexatious defence to the action made out by the evidence; and consequently, nothing to impede or delay my immediate discharge. The pleas were the general issue, and coverture of the plaintiff; and it was proved, that both those pleas were supported at the trial by the testimony of no less than five persons examined against the single testimony of the plaintiff's solitary witness. It now appears, from the affidavits of two other persons, now before the Court, that they might and ought to have been examined at the trial, and their evidence would, in all probability, have varied the verdict. Why, it may be asked, were they not then examined? Simply because one was confined to his bed by illness, and the other was not thought of at the time of pleading to the action. But there is another and a much stronger reason in this-that it was never for a moment dreamt of by the defendant that the plaintiff could support her own case upon the merits on the general issue; for it was impossible the defendant could expect or be prepared to rebut the evidence of the porter, who falsely swore to the continued, constant, unremitting employment of the plaintiff by the defendant for six entire months. And, in fact, it was one main ground of my application to the Judge of the Palace Court for a new trial, that I was taken by surprise at such' testimony, as I might, had I been gifted with the second sight of such possible testimony being adduced, have called the several other witnesses, whose affidavits I then produced to the Court in support of that ground of my motion (being only one of four), to rebut it, on the authority which I cited of the case of Lister v. Mundell, 1 Bos. & Pul. 427. The other points were, that new evidence had been discovered since the trial;-that the damages were excessive, and not warranted by the evidence;-and that the Judge had misdirected the jury on the second plea, in ruling that some proof of actual marriage was necessary; and that the finding on that issue was, therefore, against the evidence, there being none to rebut that given on the part of the defendant.

Under such circumstances, to term the defence in the Palace Court vexatious, was a proposition which no lawyer, nor any person who had ever attended Westminster Hall, could maintain, without betraying the profoundest ignorance of what constituted vexation within the words of the Insolvent Act. In common parlance, and in the ordinary meaning of the phrase, every defence is rexatious to every plaintiff; but in estimation of law, defence can only be vexatious when put on the record for the mere purpose of delay, and is without foundation. There is very high authority against such a construction of the word as you have put on it. There was a case in Chancery of showing cause against dissolving an injunction restraining a plaintiff below from suing out execution upon a judgment recovered at law, where counsel had urged as a grievance that the defendant had greatly harassed the plaintiff, by first vexatiously defending the suit, and then resorting to a court of equity to enjoin his suing out execution. Lord Eldon asked whether the cause bad not been tried. "Yes," said the counsel, (Mr. Roupell).-" And witnesses examined?"—"Yes."—" On both sides?"—"Yes.”—“Then how, Mr. Roupell, (said Lord Eldon) can you require me to hold the defence to be vexatious, when the case went to a jury upon conflicting testimony?" There, Lord Eldon plainly indicated that a vexatious defence means one merely vexatious-a defence of sham pleading, or false pleas, abandoned as soon as recorded, and never tried in Court, nor ever meant to be tried. If, indeed, perjury and subordination of perjury be to be imputed, that would be far note than vexatious or frivolous-that would be wicked, and indictable. Defence in law, as a legal phrase, means simply the placing pleas upon the record; and when the parties are at issue upon paper, the defence is complete. Going actually to the trial of that defence upon evidence, is another and different stage of the cause. There can, then, be no question about the vexation or frivolity of the defence.

The question is, then, the merits of the case. The trial is the submission of the merits to the jury to find the truth, and oftener the amount of the cause of action, and the validity, and often the extent of the efficiency, of the answer set up. What is the obvious meaning of the term in the Statute? the words of which are not "who shall have vexatiously defended any action," but "shall have put any of his creditors to any unnecessary expense, by any vexatious or frivolous defence or delay to any suit, &c. for recovering any debt," &c.; so that it must be an “unnecessary" expense. Unnecessary to whom? To the defendant, assuredly. There, both the adjectives and both the substantives, vexatious and frivolous defence and delay, are used as being nearly synonymous, and evidently intend gross instances of mere oppression, to harass and injure by expense-not by expense alone, but by expense without NECESSITY—that is, without any ground for fair resistance. But, Sir, did you never hear of a perverse verdict by an obstinate jury, or a gross misdirection by a mistaken or too hasty a Judge? I have again and again heard Lord Eldon, and Chief Baron after Chiet Baron declare, on issues sent down by them, in tithe causes more particularly, that they would send an issue down 100 times, if the jury would persist in finding for the farmer iu favour of an unsupported modus, against the parson's claim to take his tithe in kind. And we of those times all know that there was a Judge of great legal knowledge, and the last of the great pleaders of special pleading days, who was supposed to he as wilful on that particular point as the juries of farmers, whose directions, in such cases as I have published in my printed Reports, were again and again deter

mined to be misdirections. Indeed, a very venerable and most learned Judge and legal writer, who has been termed the great master of the Crown Law-no bawler in the streets to popular meetings-no agitator of the people, or declaimer against authority invested with power. I mean the great Sir Michael Foster.-has declared and recorded his conviction that even Judges may be, and have been, guilty of great injustice, and that not from mere mistake of law. That renowned writer, in his "masterly discourses," as Lord Tenterden once termed them, says " It was the misfortune of Mrs. Lisle to be tried by-no, to fall into the hands of perhaps the worst Judge that ever disgraced Westminster Hall." I do not so speak (let me be understood to say) of any Judge of any Court, however inferior; but I have not certainly had justice done either in the Palace Court or here, not having obtained a new trial there, and should I not obtain a re-hearing here. In the Palace Court, too, let me observe, there can be no unnecessary expense, being a Court of limited costs and speedy judgment, nor any unnecessary delay, sitting as they do from week to week. The term "unnecessary" is no surplusage-no redundancy here. It is not to be rejected-it has its expressive meaning. In this particular case, too, if, indeed, there have been expense incurred, it is the fault of the plaintiff, in not suing in formá pauperis. It may be very doubtful too if the Statute applies to suits not in the Queen's Courts-for petty sums in Courts of summary jurisdiction at all, any more than to a Court of Requests or County Court, in both of which defences both vexatious and frivolous, in the true sense of those terms, and for mere delay, may by possibility be, and indeed very frequently are, set up at the plaintiff's expense, and to his delay.

And now pray reflect, Sir, on the consequence the injurious consequence of your holding, ex cathedra filling the seat to which you have been so recently promoted, of the dictum which consigns me to a term of imprisonment for a righteous defence (if true) against a villainous conspiFacy (if false), and I will so put it, hypothetically merely, for the present. You will assert, that no man who shall fail in an action as defendant, shall be entitled to the benefit of the Act, to which you owe your post and your position, until he shall have been branded, and stigmatized, and punished, and imprisoned, for a considerable period. You will thereby encourage attempts at extortion, and hold out a bribe and stimulus to the low attorney and of his ready tools to pilfer the public-you will cheer them on to the chace, and crying havoc will let loose the dogs of petty litigation on the lieges of Her Majesty with a vengeance, more especially in this hot-bed of petty. foggery, the Court of the Palace of the Queen. Attorneys' actions, as they are sometimes most truly and fitly termed, will be at a premium, and defences will be dangerous; whereas such defences are in fact most meritorious, when they tend to defeat that curse of a Court, the prowlings of the legal wolf, with his factitious client, his jackall, for prey on the people. While men are bound by recognizances to prosecute the ordinary pickpocket, for the public good, at great expense and trouble, and often irremediable inconvenience, coming from a distance, and neglecting pressing affairs, the more praiseworthy resistance of these more larcenous marauders is to be suppressed and repressed by judgment of imprisonment for vexatious defence, if perjury suc ceed and truth should fail! And remember, Sir, the kind of imprisonment to which he is now to be subjected. Not the usual imprisonment within the walls merely, but to the arctiori custodia of a closer confinement within the place of confinement, and a custody quasi criminal!

Such would be some of the results of holding that a failing defence to an action for debt is a putting the plaintiff to unnecessary expense, by vexatiously defending a suit. No man, with an understanding head, can so hold, nor will any man, having any pretension to the title of a lawyer, presume to say, that such is his opinion. No lawyer in Westminster Hall, whether at the bar or on the Bench, will be found to affirm such doctrine. It would be betraying the grossest ignorance of the meaning of the term "vexatious," which has a known legal signification; and it is used in the Insolvent Act plainly and palpably to express a mere wanton defence, set up solely for the purpose of procuring time to the delay, and at the expense, the sole expense, of the plaintiff.

I say, therefore, that without reference to the affidavits made on either side, the adjudication of the Commissioner who heard this case was a mistaken erroneous adjudication; and one which, in point of law, will not bear investigation or examination. And on that ground it has been, in the words of the Statute, improperly made; or, in the language of the Courts, quia improvide emanavit.

By what right, I demand, does a Commissioner of this Court, sitting here, assume to himself the power and prerogative of doing what no learned Judge of the land, as a Judge, does or dare do-of pronouncing on which side it is that perjury lies? Even on trials before them, where they have seen the demeanour of witnesses on both sides, and have heard them give their testimony, the judicial delicacy abstains from such arrogant presumption and danger of dreadfully responsible error and mistake. How, then, can any man venture to act upon the decision of a jury in another Court in a manner which must arrogate, as the basis of his conduct, the prescience of Divine Providence, or subject him to the charge of flippaucy, and inconsiderate wantonness in coming to a hasty con. clusion? Would it have been unreasonable to require or expect, before a sentence of imprisonment were pronounced, that a Commissioner of this Court should condescend to inform himself, by communicating with the Judge who tried the cause, respecting his notion of the character of the defence? Regard for the liberty of the subject should surely have suggested such a course.

Upon this first point, then, of your own misapprehension of the case, I can only appeal (there being no appellate jurisdiction from this Court) to your own candour as a man, aud your integrity as a judicial functionary. It may be most irksome to acknowledge error, especially when there can be no adequate reparation. Still it is an imperative duty, and on the performance of that duty alone can I rely.

I now proceed to the other ground of this application, that the adjudication was obtained on false testimony.

(To be continued.)

CONCORDIUM PRESS, HAM COMMON, SURREY.

THE

FLEET PAPERS.

LONDON:

W. J. CLEAVER, 80, BAKER STREET,

PORTMAN SQUARE;

AND

JOHN PAVEY, 47, HOLYWELL STREET, STRAND.

THESE Papers are principally intended for the perusal of the friends of Christianity and the Constitution; particularly the Clergy and the Aristocracy, and of all persons who are possessed of Property. The object of the writer will be to explain the reason for the present alarming state of English society, and the consequent insecurity of life and property; also to offer some remarks upon the folly and wickedness of attempting to uphold our Institutions, particularly that of Private Property, by the unconstitutional means of Centralization, Commissioning, Espionage, and Force; finally, to state his own views on the best mode of restoring Peace, Contentment, Security, and Prosperity, to every rank of the people of England.

The author is perfectly aware of the fact, that every Parliamentary leader is now only attempting to legislate for the present moment-putting off the evil day -making laws "from hand to mouth," in the hope that some unforeseen, fortunate event may enable succeeding Statesmen to legislate for permanency. He is also convinced that there is a mode of successfully re-establishing our Institutions upon their original foundation-Christianity;-and that that is the only way to preserve them from the encroachments of political partisans, who are now paving the way to universal Ruin, Anarchy, and Despotism.

NOTICES TO CORRESPONDENTS.

ROBERT POUNDER, Leeds.-His letter is under consideration. Mr. Oasıler is not aware that he has given Mr. Smithson reason to make the assertion contained in Mr. Pounder's letter. CHARLES ENDERBY, London.—Thanks for his letter. It shall be inserted very shortly. "A FELLOW-LABOURER."-Thanks for the lellers of Iota.

Observing the following paragraph in the Halifax Guardian of October 21, 1843, I addressed the subjoined letter to the Editor of that respectable journal, who kindly inserted it October 28, 1843.-R.O.

"MR. OASTLER.

"We have just been favoured with the perusal of a private letter from a friend of the above persecuted and oppressed individual, addressed to a gentleman in Huddersfield, from which we have by a carte blanche permission made a few extracts. It is dated October 14th. I called ou the Old King" on Saturday Morning; he was very glad to hear of his old Huddersfield friends. I told him you were always glad to hear of him, and that you appeared to be very much concerned about his welfare. He however complained of his friends in Huddersfield for their supineness in regard to him, and that no active steps had been effectually taken to get him out of prison." I really believe if some great effort is not made to rescue him that we shall not have him long. He begius to break fast, and in the end it will break his heart. * If the working class does not do something for him, the rich never will. I am positive that there is scarcely working man in the manufacturing districts but would give a penny, and a great number would give more than that if called for; it requires great perseverance. * * Let us set the rich a good example, and be determined to do our duty, and open a subscription. I will put suy name down for a sovereign, and if required I will give a second the first week in the new year. Il only wants a beginning, and now is the time, up lads and at it” while the trade is good; and

"

*

if we cannot succeed in preventing so good a man (who has sacrificed his all for the working classes) from rotting in the Queen's Prison, for so paltry a sum of money, it is a disgrace to Englishmen. I should like you to read a letter from Mr. Willm. Rider, Leeds, in the Intelligencer of last Saturday. It contains full directions for opening a subscription. Let us begin and not lose a moment, and I prophecy, with the blessing of God, it will be crowned with success.

Yours truly, J. HABERGHAM.' We fully coincide with Mr. Habergham that Oastler has sacrificed his all for the working classes, and it is now their turn to show their gratitude to the 'Old King' by immediately commencing a subscription for his liberation, since the rich will not."

“To the Editor of the Halifax Guardian.

"The Queen's Prison, October 26, 1843.

"My dear Sir,-The letter that Joseph Habergham has written to his friend, from which you have published, last Saturday, a few extracts, requires a word or two in explanation.

"Poor Joseph, who doats on his Old King,' is ever fearful that I shall be 'killed' by this imprisonment. He always fancies that I am sinking,' &c. &c. Now, the truth is, I was never in better health-never in better spirits-never in a more perfect state of happiness. No doubt I should be well pleased if the prison doors were opened, but their being closed cannot make me unhappy, because I know that I do not deserve the punishment from the hand which strives to inflict it. But Joseph is very sensitive, and because he weeps when he comes to see me, he will have it that I am not well-not comfortable-not happy.

"He was telling me that he had lately been at Huddersfield, and how the poor factory people there loved me, and talked about me, and expected me soon to be there-when I said, 'Don't talk such nonsense, Joseph-how can I get there-it is much more likely that I shall, some day, be starved to death in prison-and then they will say, "Poor old King! who could have thought it ?""* "Joseph would have it that I must be got out. But where are the pennies?' said I. I think all you factory children (Joseph was once a factory child) owe me a penny a piece, but you don't love me well enough to pay me.' Upon this poor Joseph wept, said many affectionate things (he always says I saved his life), and told me he would write to his friend, &c. Hence his scolding Jetter to his friends in Huddersfield. Thus much is necessary by way of explanation.

Allow me to take this opportunity of thanking you for your many kindnesses to, my dear Sir, "Yours gratefully,

"RICHARD OASTLER.

"P.S. It is a great mistake to say that I sacrificed my all for the working classes.' I have sacrificed most for the aristocracy. Some day the aristocracy will acknowledge this, at present they think I am their enemy-so, once, thought the working classes.-R.O."

There is something very refreshing to the mind of a prisoner, as he sits alone in his cell, to find himself noticed even in foreign Journals. I was glad that the kindness of my Yorkshire friends was not forgotten by the "German Traveller."-R.O.

The German General Gazelle, of July 6,11843, contains the following letter from a German traveller in England :

:

A friend of mine procured me an introduction to MR. R. OASTLER. MR. OASTLER is confined in the Queen's Prison; but in his cell he enjoys more liberty than the freest man in France or Germany, for there are neither September-laws nor censorship. He is not permitted to step beyond the narrow walls of the prison, but his spirit, with the liberty of an eagle, roves in the skies.

"RICHARD OASTLER is a Tory and a Democrat. This may appear to be a great contradiction, yet it is nevertheless true. The motto of the Tories is The Altar and the Throne': OASTLER, however, adds, and the Cottage'; and says, 'Property has its duties as well as its rights.' There exists a large party amongst the Tories professing the principle, everything for the people, but nothing by the people.' RICHARD OASTLER belongs to this party, yet leans to the democratie opinion, everything for the people and by the people'; and under this enlarged view he is agitating for Toryism against the Whigs, their principles and measures. His first appearance on the political stage was in the cause of the factory children. He and the late SADLER have been the principal promoters of a more humane treatment of them. Whilst SADLER worked in Parliament for the improvement of their condition, by proposing his Ten Hours' Bill, OASTLER was the agitator out of Parliament for obtaining that measure. Possessing the talents of a public speaker, he knew how to move the heart of the people in the meetings which flocked round him. In the manufacturing districts of the North he became the favourite of the people, who used to call him their Old King. The movement originated by SADLER and OASTLER forced the Whigs to enter upon those questions of reform, but they did it in a different spirit. The Whigs are the sons of those administrative views which gained a victory by the French Revolution. Their first principle is centralization. their second laisser faire and laisser aller. The Democratic Tory must be adverse to both: he sees the Old English Constitution and liberty impaired by centralization, and the Throne and the Church injured by the laisser faire and laisser aller. When the Whigs, following out their principles, came to enact the New Poor Law-by which this department of political adminis tration was put into the hands of a Government Commission, and workhouses were established which have ever since been the dread of the poor-OASTLER became the unrelenting opponent of that measure. The power of his opposition increasing from day to day, his enemies thought they might impair his political influence by injuring his private position. OASTLER was the land-steward of MR. THORNHILL, a great land-owner, who was induced