"Mr. Rutherford: 'He is, I am told, a gentleman of a respectable position. But that is not the question; it appears clearly from the authorities that in penal actions the courts have refused to order security, even in cases where the common informer was a person of great poverty. In one case Mr. Justice Bayley says, "Many qui tam actions have been brought by men who were worth nothing, but there is no instance of their being compelled to give security for costs. It might happen that the penalties had been incurred, but their recovery would be defeated by requiring such a security."'
"Mr. Baron Bramwell here observed: 'There is great force in that Men of property are not likely to trouble themselves about such things. I think I cannot make the order. Cannot some agreement be come to between the parties? Mr. Chitty, will you name any other member of the Union to be substituted as plaintiff instead of Mr. Reed? Some one must be plaintiff; and the same argument you have used against Mr. Reed would apply to any one else.'
"A long discussion here ensued.
"Mr. Rutherford said he could not, without the consent of his clients, agree to substitute another person as plaintiff. The Act would become a dead letter if the judges allowed obstacles to be thrown in the way of carrying it out. There was no ground at all for this application, and if his Lordship granted it, it was impossible to conceive under what circumstances a similar application would be refused.
"Mr. Chitty insisted that his clients would not be able to recover their costs if the action were decided in their favour. It was a very hard thing to be compelled to defend an action at the suit of invisible personages. His Lordship had said that 'purity principles were all very fine.'
"Mr. Baron Bramwell: 'No doubt they are. It is very easy to go about professing integrity. To commence actions against people for penalties when the plaintiff cannot pay the costs, is a cheap way of becoming a patriot—cheap and, I think, nasty. I find that the Act gives me a discretion. The affidavits made by the defendants have not been answered. I shall make the order.'
"The order was made accordingly.
"The petitioners were informed and believed that the report quoted was substantially and literally correct. It was reprinted and commented upon by various other journals, and no attempt to question its accuracy was made, either on the part of the learned judge or of any other person.
"The petitioners were persuaded that the language asserted to have been used by the learned judge on this occasion cannot be deemed by, nor appear to Parliament either befitting the station of him who used it, or just towards the suitors in this prosecution, who were taking legal steps, under a sense of public duty, to put a stop to practices which tend to corrupt the source of all law.
"The petitioners submitted that the order made on this occasion is contrary to all precedent, and inconsistent with the intention and enactments of the said Corrupt Practices Act, which by Section 13 expressly limits the obligation on the plaintiff to find security for costs to those cases only where he may seek to recover, by order of the judge, the costs of prosecution for offences against the Act.