« PreviousContinue »
Forma Pauperis, 545.
IV. Liability for Interlocutory Costs, 546.
Admitted to Plead as a Pauper,
IX. When Can be Dispaupered, 548.
I. Definition.—In the character or form of a poor man. When 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 subpænas 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.2 And it
gery in the third degree. Hild. that, as interpleading, without question as the subsequent crime was such that upon
But it never was the practice, so a first conviction the offender might have far as the decisions show, to assign been, in the discretion of the court, pun- counsel for the plaintiff or defendant. ishable by imprisonment for life, it being 2. In Campbell v. Chic. & N. W.R. R., the second conviction, the life penalty was 23 Wis. 490, where the statute of Wisno longer discretionary, but imperative. consin provided that a justice of the peace, People v. Raymond, 32 Hun (N. Y.), 123. in all civil actions where the plaintiff is a
To bring a case within the provisions nonresident of the county, either before of $ 688, Code Crim. Proc., it is not neces- or after the process shall issue, shall resary that the second offence shall be of quire the plaintiff to give security for the the same character or grade as the first. costs, and may, at his discretion, require People v. Raymond, 19 N. Y. Week. Dig. a like security of all other plaintiffs; and 137.
if the plaintiff refuse or neglect to give 1. Bouv Dic., “In Forma Pauperis.” such security, the action shall bedismissed.
And paupers—that is, such as will In this case, on the return day of the swear themselves not worth 65-are, by summons, after the parties had apStatute ii Hen. VII. C. 12, to have orig- peared and put in their pleadings, the inal writs and subpænas gratis and defendant demanded that the plaintiff counsel and attorney assigned them with- give security for costs. The cause was out fee, and are excused from paying adjourned a week from the 19th day of costs when plaintiffs by Statute of Hen. of February, 1868, to the 26th. On the 26th VII. c. 15; but shall suffer other punish- it was again adjourned, to the 27th, when, ment at the discretion of the judges. And on the hour of adjourment, the plaintiff, it was formerly usual to give such paupers, failing to give security for costs, the acif nonsuited, their election either to be tion was dismissed. The court says: whipped or pay the costs, though that “ The statute above quoted would seem practice is now disused. It seems, how- to give the justice discretion in the malever, agreed that a pauper may recover If in any case we could review the costs, though he pays none. 3 Bl. Com. exercise of that discretion, and reverse 400.
his action, it is clear that this could only This subject has lost a good deal of its be done when there was some abuse in its former interest, in the United States, from exercise. Nothing of this kind appears the fact that many States, like that of upon this record. The plaintiff had ample Ohio, permit any one who resides within time to give the security ; but he could the jurisdiction of the court to bring a not give it. He, however, made an af. suit originally, on cross-petition or by fidavit, in which he stated that, although
has been doubted whether the original English statute permitted the right to any one except a plaintiff. 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
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 ant would be compelled to swear he was a stranger there, and utterly unable, on not worth, and had not within his possesaccount of his poverty, to give security. sion or within his power or control, propWe have no statute which authorizes a erty or other means to the amount of $5, person to sue in forma pauperis. It seems and he would not, as the case of a comlike a hardship that a poor person should plainant, be permitted to except to the not be able to litigate ; but this is a subject-matter of the litigation. In Spenmatter for the legislature to regulate. . . cer v. Bryant (1 Ves. 49), Lord Eldon We are unable to say that the justice decided that an affidavit of the defendent acted unwisely."
that he was not worth $5 except the matAs will be seen upon noticing the ter in question, was not sufficient to auquotation from Blackstone in the pre- thorize him to defend in forma pauperis. ceding section, the application for the Chan. Walworth, in Brown v. Story, I right was first recognized by statute. Paige (N. Y.), 588, 589.
And wherever it does exist at law in The right is equally extended to dethe United States, it is upon a statute of fendants. i Dan. Ch. Pl. 37-154. the State in which the action is being 2. i Dan. Ch. Pl. 5. tried. The decisions upon the subject in 3. Feneley v. Mahoney, 21 Pick. the higher courts are very meagre. (Mass.) 212; i Dan. Ch. Pl. 37.
1. It is at least doubtful whether a Indeed, under peculiar circumstances, party is to be permitted to defend as a courts of equity, which are said to depauper in any case. In England, the light in justice and mercy, will permit right to sue and defend in chancery, in poor persons to sue in forma pauperis, forma pauperis, depends upon the rules where they are unable to carry on such of the court. The Statute of 11 Hen. suits from want of pecuniary means; and VII. C. 12, only extends to suits prose- then counsel will be assigned them by cuted in the common-law courts. And the court, and they are exempted from the it has there been held that a party is not payment of ordinary fees. Story Eq. entitled to defend as a pauper, except in Pl. 57; 1 Harris Ch. Pr. 389; Cooper the particular cases provided for in a sub- Eq. Pl. 24. sequent act of Parliament (Barnes' Notes, 4. Story Eq. Pl. S 50; i Harr. Ch. Pr. 328; 5 Brac. Abr. tit. Pauperis,” B., p. 389, 390; Isnard v. Cazeaux, 1 Paige (N. 299). The statute of this State (New York) Y.), 39. (1 Rev. Laws. 524) provides for the prose- 5. Wheatley v. Hotchkiss, I Sprague cutions of suits by poor persons in chan (U. S.), 225. cery as well as at common law. but makes 6. i Dan. Ch. Pl. (4th Ed.) 39; Lindsey no defence of a suit in forma pauperis. In v. Tyrell, 2 De G. & J. 7; 24 Beav. 124; order to obtain that privilege, the defend- 3 Jur. (N. S.) 1014. 8 C. of L.-35
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. 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 v. Ward, 2 Dev. Ch. (N. Cas.) 553; 1 Dan. to a denial of justice to the children of Ch. Pr. 38. poor persons, who might become entitled 5. Paradici v. Shepherd, i Dick. 136; to property, and yet be precluded from Beames on Costs, 79; Appendix. No. 21; asserting their right because their father, Oldfield 2. Cobbeti, i Phil, 613: Fowler who is the proper person to be their next v. Davies, 16 Sim. 182; St. Victor 3, friend, by reason of his circumstances Hevereax, 6 Beav. 584. could not be so without giving security 6. Thompson v. Thompson, H. T. 1624; for costs, which he might not be able to Rogers v. Hooper. i W. R. 474; Everson procure. St. John v. Earl of Besborough, V. Matthews, 3 W. R. 159: Parkinson i Hogan, 41; Crandall v. Slaid, 11 Metc. 7. Chambers, 3 W. R. 34. (Mass.) 288. Contrary, Fulton v. Roose- 7. Oldfield 2. Cobbett, 1 Coll. 139. velt, i Paige (N. Y.), 178.
8. Christian 7. Gouge. 10 Abb. N. C. 1. Pennington v. Alvin, i S. & S. 264; (N. Y.) 82: anon., 10 Abb. N. C. (N. Y) Jones v. Faucett, 2 Phil. 218; Stevens v. 80. See Porter v. Jones, 68 N. Car. 320; Williams, i Sim. (N. S.) 545; Wilton v. ! Dan. Ch. Pl. 37. Hill, 2 De G. M. & G. 807; i Dan. Ch. 9. The counsel for the complainant, upon
the argument asked that his client might 2. Pitt v. Pitt, i Sim. & G. App. 14; 17 not only be excused from the payment of Jur. 571.
the costs of the application, but also from Upon a proper application, a wife may the payment of the costs of the further be permitted to file a bill against her hus- answer, which she is bound to pay by the band for a separation, in forma pauperis. terms of the order allowing the amendBut this will not be done until the court ment. Although a party duly admitted to has ascertained, by the report of a master, prosecute his suit as a poor person cannot that she has probable cause for filing such be charged with the general costs of the bill. Robertson v. Robertson, 3 Paige cause in favor of the adverse party, he (N. Y.), 387.
may be charged with the interlocutory 3. James v. Dore, 2 Dick. 788.
costs for any irregularity in the proceedUnder the enabling statutes, a feme covert ings on his part, or for the expense of exwould be placed in the same position as a punging scandalous or impertinent matter
from any of his proceedings, or for the 4. Robertson 2. Robertson, 3 Paige (N. costs of his contempts.
I Newl. Chan. Y.), 387; Page v. Page, 16 Beav. 588; P :: 603; Murphy v. Oldis, 2 Moll. R. 475. Coulsting v. Coulsting, 8 Beav. 463: Ward 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.2
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.7
such costs, the adverse party would have fence, solicitors and counsel are always no protection against his irregularities in ready to assist him on receiving the tripractice. And it is sufficiently burden- fling disbursements which must be paid some to the defendants to be compelled to other officers of the court. A claim to to litigate their rights with those who are be excused from paying costs already not chargeable with the ordinary costs of accrued has never been allowed. Mosel. the suit, although such suit turns out to Rep. 68; Wilkinson v. Belcher. 2 Brown be wholly unfounded. Neither can I re- Ch. Cas. 272.
Even if the party is adlieve the complainant from the payment mitted to prosecute as a pauper, he is of the costs of answering these amend- liable for the costs of any irregular proments, of which she has assumed the pay- ceedings on his part.' Howe v. Ailoff, ment, by the order, of entered by her Tothill, 139.” Walworth. Chan., in Brown solicitor as a condition of the amend- ?'. Story, 1 Paige (N. Y.), 588. ment. Before the complainant can be ad- 4. The chancellor said the cases had mitted to prosecute as a poor person, he been reviewed in Rattray v. George, 16 must, upon oath, present a prima facie Ves. 232; and there was found to be a case of right against the defendant. And great variety of contradictory decisions it would be unreasonable to permit him, upon the subjects of pauper costs, and after the defendant has put in a proper the result was that the court had a disanswer to the original bill, to amend as a cretion in each case. Williams v. Wile matter of course, and to insert any new kins, 3 Johns. Ch. (N. Y.) 65. matter which he might, think fit, without 5. Long v. McCauley (Tex. 1887), 3 S. paying the extra costs of a further answer. W. Rep. 690. In such a case, if he thinks proper to 6. It is assigned for error that the amend under a common order, it must be court erred in refusing to dismiss the upon the payment of the costs of the fur- suit in Knox county, the oath in forma ther answer. Chan. Walworth, in pauperis having been administered in Richardson v. Richardson, 5 Paige (N.Y.), Greene county. The form of the oath 58. See Bolton v. Gardner, 3 Paige (N. prescribed is : “I, A B, do solemnly
swear that, owing to my poverty, I am 1. Richardson v. Richardson, 5 Paige not able to bear the expenses of the ac(N. Y.), 59.
tion I am about to commence. 2. Ld. Eldon, in Rattray v. George, 16 T. & S. Code, $ 3192.
But there was
no error in the court refusing to dis3. "I have already had occasion to say miss. Knoxville Iron Co. Smith that applications of this kind ought not (Tenn. 1887), 5 S. W. Rep. 438. to be encouraged in this country, where, 7. Wilkinson v. Belshire, 2 Bro, C, C, if a party has a just claim or a valid de- 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; 2 but the person applying will be liable for all costs incurred before application. 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 inade ; ; 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
FORMER ACQUITTAL.-See JEOPARDY.
1. The trial court granted an order re- E.; I Smith Ch. Pr. 555; Chitty Arch. quiring plaintiff to give security for 1292. costs and staying proceedings until it 5. Romilly V. Grint, 2 Beav. 186; was given. It was held that the court did Mather v. Shelmerdine, 7 Beav. 267; not lose jurisdiction by such stay to Butler v. Gardiner, 12 Beav. 525; Perry make an order permitting plaintiff to sue V. Walker, I Coll. 229; Goldsmith v. as a poor person, and that such order was Goldsmith, 5 Hare, 125. a disposition of a motion pending to dis- 6. 2 Chitty Arch. Pr. 1250. miss for failure to give the required 7. Wagner v. Mears, 3 Sım. 127; Perry security. Sherman v. Pope (N. Y. 1887), 2'. Walker, i Coll, 229. 12 N. E. Rep. 715.
8. Whitlocke v. Baker. 13 Ves. 511; 2. Parkinson v. Chambers, 3 W. R. Daintree v. Haynes, 12 Jur. 564; Steele 34; Wellesley v. Mornington, 18 Jur. v. Mott, 20 Wend. (N. Y.) 679. 552.
9. Corbelt v. Corbett, 16 Ves. 407. 3. Smith v. Payson, 2 Dels. & S. 490; 10. 3 Den. Ch. (N. Y.) 225. Church v. Marsh, 2 Hare, 652; Ballard 11. St. Victor v. Devereux, 9 Jur. 519; v. Catling, 2 Keen, 606.
Parkinson v. Hanbury, 4 De G. M. & 4. Corbert v. Corbert, 16 Ves. 407; G. 508. Authorities for Forma pauperis: Brook v. Alcock, 20 (March, 1884) V. C. Dan. Ch. Pl. (4th Ed.); Story Eq. Pl.