FORMA PAUPERIS. I. Definition, 544. II. At Law and in Equity, 544. III. Who may Sue or Defend in Forma Pauperis, 545. 1. General Rule, 545. 2. Infants, 545. 3. Married Women, 546. 5. Non-residents, 546. IV. Liability for Interlocutory Costs, 546. 547. VI. Can Recover Costs Against an. VII. Sufficient Affidavit, 547 VIII. When Application Can be Made, 547. When I. Definition. In the character or form of a poor man. a person is so poor that he cannot bear the charges of suing at law or in equity, upon making an oath that he is not worth $5, and bringing a certificate from a counsellor at law that he believes him to have a just cause, he is permitted to sue in forma pauperis; that is, he is allowed to have original writs and subpoenas gratis and counsel assigned him without fee.1 II. At Law and in Equity.-The right to sue or defend in the form of a pauper does not exist at common law, and exists in actions at law only by virtue of statutory enactment. And it gery in the third degree. Held, that, as the subsequent crime was such that upon a first conviction the offender might have been, in the discretion of the court, punishable by imprisonment for life, it being the second conviction, the life penalty was no longer discretionary, but imperative. People v. Raymond, 32 Hun (N. Y.), 123. To bring a case within the provisions of § 688, Code Crim. Proc., it is not necessary that the second offence shall be of the same character or grade as the first. People v. Raymond, 19 N. Y. Week. Dig. 137. 1. Bouv Dic., "In Forma Pauperis." And paupers that is, such as will swear themselves not worth £5-are, by Statute II Hen. VII. c. 12, to have original writs and subpoenas gratis and counsel and attorney assigned them without fee, and are excused from paying costs when plaintiffs by Statute of Hen. VII. c. 15; but shall suffer other punishment at the discretion of the judges. And it was formerly usual to give such paupers, if nonsuited, their election either to be whipped or pay the costs, though that practice is now disused. It seems, however, agreed that a pauper may recover costs, though he pays none. 3 Bl. Com. 400. This subject has lost a good deal of its former interest, in the United States, from the fact that many States, like that of Ohio, permit any one who resides within the jurisdiction of the court to bring a suit originally, on cross-petition or by 2 interpleading, without question as to costs. But it never was the practice, so far as the decisions show, to assign counsel for the plaintiff or defendant. 2. In Campbell v. Chic. & N. W. R. R., 23 Wis. 490, where the statute of Wisconsin provided that a justice of the peace, in all civil actions where the plaintiff is a nonresident of the county, either before or after the process shall issue, shall require the plaintiff to give security for the costs, and may, at his discretion, require a like security of all other plaintiffs; and if the plaintiff refuse or neglect to give such security, the action shall be dismissed. In this case, on the return day of the summons, after the parties had appeared and put in their pleadings, the defendant demanded that the plaintiff give security for costs. The cause was adjourned a week from the 19th day of of February, 1868, to the 26th. On the 26th it was again adjourned, to the 27th, when, on the hour of adjourment, the plaintiff, failing to give security for costs, the action was dismissed. The court says: "The statute above quoted would seem to give the justice discretion in the matter. If in any case we could review the exercise of that discretion, and reverse his action, it is clear that this could only be done when there was some abuse in its exercise. Nothing of this kind appears upon this record. The plaintiff had ample time to give the security; but he could not give it. He, however, made an affidavit, in which he stated that, although has been doubted whether the original English statute permitted the right to any one except a plaintiff.1 But in equity, when the matter of costs rests with the judge, it may exist without a legislature enactment; for it has been said that it is a general rule that there is no sort or condition of persons who may not sue in the court of chancery: and this rule extends to the most distressed pauper, and that without his being required to give security for costs. 3 III. Who May Sue or Defend in Forma Pauperis.-1. General Rule. -It was in consequence of the provision of Stat. 11 Hen. VII. c. 12, the practice of the courts at law, adopted by the equity courts, to admit all persons to sue in forma pauperis who could swear that they were not worth £5, except their wearing apparel; and this practice has been adopted in equity.4 All persons may sue as paupers in admiralty." 2. Infants. In a proper case, an infant will be permitted to sue by a next friend in forma pauperis, in an ex parte motion, supported by affidavit that the infant cannot obtain a substantial person to act as next friend. a resident of the city of Oshkosh, he was a stranger there, and utterly unable, on account of his poverty, to give security. We have no statute which authorizes a person to sue in forma pauperis. It seems like a hardship that a poor person should not be able to litigate; but this is a matter for the legislature to regulate. .. We are unable to say that the justice acted unwisely." As will be seen upon noticing the quotation from Blackstone in the preceding section, the application for the right was first recognized by statute. And wherever it does exist at law in the United States, it is upon a statute of the State in which the action is being tried. The decisions upon the subject in the higher courts are very meagre. 1. It is at least doubtful whether a party is to be permitted to defend as a pauper in any case. In England, the right to sue and defend in chancery, in forma pauperis, depends upon the rules of the court. The Statute of 11 Hen. VII. c. 12, only extends to suits prosecuted in the common-law courts. And it has there been held that a party is not entitled to defend as a pauper, except in the particular cases provided for in a subsequent act of Parliament (Barnes' Notes, 328; 5 Brac. Abr. tit. Pauperis," B., p. 299). The statute of this State (New York) (1 Rev. Laws. 524) provides for the prosecutions of suits by poor persons in chan cery as well as at common law, but makes no defence of a suit in forma pauperis. In order to obtain that privilege, the defend8 C. of L.-35 ant would be compelled to swear he was not worth, and had not within his possession or within his power or control, property or other means to the amount of $5. and he would not, as the case of a complainant, be permitted to except to the subject-matter of the litigation. In Spencer v. Bryant (11 Ves. 49), Lord Eldon decided that an affidavit of the defendent that he was not worth $5 except the matter in question, was not sufficient to authorize him to defend in forma pauperis. Chan. Walworth, in Brown v. Story, I Paige (N. Y.), 588, 589. The right is equally extended to defendants. 1 Dan. Ch. Pl. 37-154. 2. I Dan. Ch. Pl. 5. 3. Feneley v. Mahoney, 21 Pick. (Mass.) 212; 1 Dan. Ch. Pl. 37. Indeed, under peculiar circumstances, courts of equity, which are said to delight in justice and mercy, will permit poor persons to sue in forma pauperis, where they are unable to carry on such suits from want of pecuniary means; and then counsel will be assigned them by the court, and they are exempted from the payment of ordinary fees. Story Eq. Pl. 57; I Harris Ch. Pr. 389; Cooper Eq. Pl. 24. 545 4. Story Eq. Pl. § 50; 1 Harr. Ch. Pr. 389, 390; Isnard v. Cazeaux, I Paige (N. Y.), 39. 5. Wheatley v. Hotchkiss, I Sprague (U. S.), 225. 6. 1 Dan. Ch. Pl. (4th Ed.) 39; Lindsey v. Tyrell, 2 De G. & J. 7; 24 Beav. 124; 3 Jur. (N. S.) 1014. 1 3. Married Women.-It is held that a feme covert, by her next friend, cannot sue in forma pauperis. But a husband and wife may obtain an order, of course, to sue in forma pauperis in respect to the wife's reversionary interest. And where a woman was ordered to be examined pro interesse suo, respecting a claim set up by her to some lands taken under sequestration, but was unable from poverty to make out or support her right, liberty was given her to do so in forma pauperis.3 And if she is unable to procure any substantial person to act as her next friend, she can be permitted to sue as a pauper.4 4. Executors, etc.-An executor or administrator cannot sue or be sued in forma pauperis, unless the person sustains the mixed character of executor and beneficiary. An exception has been made by allowing an executor to proceed in forma pauperis for the single purpose of clearing a contempt incurred in the cause. 5. Non-residents.-It has been decided in several cases that nonresidents cannot sue or defend in forma pauperis. IV. Liability for Interlocutory Costs.-A party suing as a poor person is chargeable with the costs of setting aside his proceedings for irregularity, or for contempt or of expunging impertinent or scandalous matter, in the same manner as other suitors, unless Indeed, any other rule would amount to a denial of justice to the children of poor persons, who might become entitled to property, and yet be precluded from asserting their right because their father, who is the proper person to be their next friend, by reason of his circumstances could not be so without giving security for costs, which he might not be able to procure. St. John v. Earl of Besborough, 1 Hogan, 41; Crandall v. Slaid, 11 Metc. (Mass.) 288. Contrary, Fulton v. Roosevelt, 1 Paige (N. Y.), 178. 1. Pennington v. Alvin, 1 S. & S. 264; Jones v. Faucett, 2 Phil. 218; Stevens v. Williams, 1 Sim. (N. S.) 545; Wilton v. Hill, 2 De G. M. & G. 807; I Dan. Ch. Pl. 37. 2. Pitt v. Pitt, 1 Sim. & G. App. 14; 17 Jur. 571. Upon a proper application, a wife may be permitted to file a bill against her husband for a separation, in forma pauperis. But this will not be done until the court has ascertained, by the report of a master, that she has probable cause for filing such bill. Robertson v. Robertson, 3 Paige (N. Y.), 387. 3. James v. Dore, 2 Dick. 788. Under the enabling statutes, a feme covert would be placed in the same position as a man. 4. Robertson v. Robertson, 3 Paige (N. Y.), 387; Page v. Page, 16 Beav. 588; Coulsting v. Coulsting, 8 Beav. 463: Ward 9 v. Ward, 2 Dev. Ch. (N. Cas.) 553; 1 Dan. Ch. Pr. 38. 5. Paradici 7. Shepherd, I Dick. 136; Beames on Costs, 79; Appendix. No. 21; Oldfield v. Cobbett, 1 Phil. 613: Fowler v. Davies, 16 Sim. 182; St. Victor v. Hevereax, 6 Beav. 584. 6. Thompson v. Thompson, H. T. 1824; Rogers v. Hooper. 1 W. R. 474; Everson v. Matthews, 3 W. R. 159; Parkinson 7. Chambers, 3 W. R. 34. 7. Oldfield 7. Cobbett, 1 Coll. 139. 8. Christian v. Gouge, 10 Abb. N. C. (N. Y.) 82; anon., 10 Abb. N. C. (N. Y ) 80. See Porter v. Jones, 68 N. Car. 320; Dan. Ch. Pl. 37. 9. The counsel for the complainant, upon the argument asked that his client might not only be excused from the payment of the costs of the application, but also from the payment of the costs of the further answer, which she is bound to pay by the terms of the order allowing the amendment. Although a party duly admitted to prosecute his suit as a poor person cannot be charged with the general costs of the cause in favor of the adverse party, he may be charged with the interlocutory costs for any irregularity in the proceedings on his part, or for the expense of expunging scandalous or impertinent matter from any of his proceedings, or for the costs of his contempts. I Newl. Chan. P. 603; Murphy 7. Oldis, 2 Moll. R. 475. "If he were exempt from the payment of he makes a new application to the court.1 It has long ago been held that a pauper must pay the costs of scandal in his answer. V. Liability for Costs Accrued Before He is Permitted to Defend as a Pauper. When a party, pending the suit, is admitted to prosecute a defence in forma pauperis, he is not excused from the payment of the costs which accrued before he was admitted to defend in that manner.3 VI. Can Recover Actual Costs in Suit Against an Executor.-A plaintiff suing in forma pauperis, and recovering a legacy against executors, is entitled to his actual costs out of the assets.4 VII. Sufficient Affidavit.-An affidavit of plaintiff, stating that he is unable to give security for, or to make a deposit sufficient to cover, all the costs, but that he cannot swear that he is unable to pay the costs as they accrue, that he has paid all the accrued costs except a small balance to cover which he has made a deposit with the clerk, has been held sufficient. And where the oath has been administered beyond the jurisdiction of the court, it was held sufficient. The affidavit must be sworn to by the pauper himself." such costs, the adverse party would have no protection against his irregularities in practice. And it is sufficiently burdensome to the defendants to be compelled to litigate their rights with those who are not chargeable with the ordinary costs of the suit, although such suit turns out to be wholly unfounded. Neither can I relieve the complainant from the payment of the costs of answering these amendments, of which she has assumed the payment, by the order, of entered by her solicitor as a condition of the amendment. Before the complainant can be admitted to prosecute as a poor person, he must. upon oath, present a prima facie case of right against the defendant. And it would be unreasonable to permit him, after the defendant has put in a proper answer to the original bill, to amend as a matter of course, and to insert any new matter which he might, think fit, without paying the extra costs of a further answer. In such a case, if he thinks proper to amend under a common order, it must be upon the payment of the costs of the further answer. "Chan. Walworth, in Richardson v. Richardson, 5 Paige (N.Y.), 58. See Bolton v. Gardner, 3 Paige (N. Y.), 279. 1. Richardson v. Richardson, 5 Paige (N. Y.), 59. fence, solicitors and counsel are always ready to assist him on receiving the trifling disbursements which must be paid to other officers of the court. A claim to be excused from paying costs already accrued has never been allowed. Mosel. Rep. 68; Wilkinson v. Belcher. 2 Brown Ch. Cas. 272. Even if the party is admitted to prosecute as a pauper, he is liable for the costs of any irregular proceedings on his part. Howe v. Ailoff, Tothill, 139." Walworth, Chan., in Brown 2. Story, Paige (N. Y.), 588. 4. The chancellor said the cases had been reviewed in Rattray v. George. 16 Ves, 232; and there was found to be a great variety of contradictory decisions upon the subjects of pauper costs, and the result was that the court had a discretion in each case. Williams v. Wilkins, 3 Johns. Ch. (N. Y.) 65. 5. Long v. McCauley (Tex. 1887), 3 S. W. Rep. 690. 6. It is assigned for error that the court erred in refusing to dismiss the suit in Knox county, the oath in forma pauperis having been administered in Greene county. The form of the oath prescribed is: "I, A B, do solemnly swear that, owing to my poverty, I am not able to bear the expenses of the action I am about to commence. 2. Ld. Eldon, in Rattray v. George, 16 T. & S. Code, § 3192. But there was Ves. 234. 3. I have already had occasion to say that applications of this kind ought not to be encouraged in this country, where, if a party has a just claim or a valid de no error in the court refusing to dismiss. Knoxville Iron Co. v. Smith (Tenn. 1887), 5 S. W. Rep. 438. 7. Wilkinson v. Belshire, 2 Bro, C, C, 272. VIII. When Application Can be Made.-An application can be made at any time. A stay of proceedings granted when an order was first made will not deprive the court of making a second order.1 It may be filed at any time after the bill has been filed or summons issued; but the person applying will be liable for all costs. incurred before application.3 And it is doubtful if, after a dismissal of a former suit, a plaintiff will be permitted to sue again in the same matter, in forma pauperis, without paying the costs of the first suit.4 IX. When May be Dispaupered.-As a party may be admitted to sue in forma pauperis at any time during the suit, so if at any time. it is made to appear to the court that he is of such ability that he ought not to be allowed to sue or continue to sue in forma pauperis, the court will dispauper him." Likewise, if he is guilty of vexatious conduct in the suit, or delay vexatiously made; although the court always proceeds very tenderly in such points. But the fact that the pauper has been supplied with money by a charitable subscription, for the purpose of assisting him in the conduct of the suit, is not sufficient. The application to dispauper is made by special motion on notice,10 and should be made without delay.11 9 FORMER ACQUITTAL.-See JEOPARDY. FORMER ADJUDICATION.-See RES ADJUDICATA. FORMER CONVICTION.—See JEOPARDY. FORMER JEOPARDY.-See JEOPARDY. FORMER RECOVERY.-See RES ADJUDICATA. 1. The trial court granted an order requiring plaintiff to give security for costs and staying proceedings until it was given. It was held that the court did not lose jurisdiction by such stay to make an order permitting plaintiff to sue as a poor person, and that such order was a disposition of a motion pending to dismiss for failure to give the required security. Sherman v. Pope (N. Y. 1887), 12 N. E. Rep. 715. 2. Parkinson v. Chambers, 3 W. R. 34: Wellesley v. Mornington, 18 Jur. 552. 3. Smith v. Payson, 2 Dels. & S. 490; Church v. Marsh, 2 Hare, 652; Ballard v. Catling, 2 Keen, 606. 4. Corbert v. Corbert, 16 Ves. 407; Brook v. Alcock, 20 (March, 1884) V. C. E.; Smith Ch. Pr. 555; Chitty Arch. 1292. 5. Romilly v. Grint, 2 Beav. 186; Mather v. Shelmerdine, 7 Beav. 267; Butler v. Gardiner, 12 Beav. 525; Perry v. Walker, I Coll. 229; Goldsmith v. Goldsmith, 5 Hare, 125. 6. 2 Chitty Arch. Pr. 1280. 7. Wagner v. Mears, 3 Sim. 127; Perry 7. Walker, 1 Coll. 229. 8. Whitlocke v. Baker. 13 Ves. 511; Daintree v. Haynes, 12 Jur. 564; Steele v. Mott, 20 Wend. (N. Y.) 679. 9. Corbett v. Corbett, 16 Ves. 407. 10. 3 Den. Ch. (N. Y.) 225. 11. St. Victor v. Devereux, 9 Jur. 519; Parkinson v. Hanbury, 4 De G. M. & G. 508. Authorities for Forma pauperis: Dan. Ch. Pl. (4th Ed.); Story Eq. Pl. 548 |
