(Ot'rcuit (Jourt, 8. D. Nf/lD York.
October 11, 1887)
CosTs-LEAVE TO SUE AS POOR PERSON-IN FEDERAL COURTS.
A non-resident, claiming to have a cause of action fordamages for personal injuries resulting from an accident happening in New York state, and caused by the negligence a resident and citizen of that state, may be admitted to prosecute his action as a pauper in the federal courts sitting in that state; the pauper act of Ne:wYork neither in its original nor present form containing any words importing a restriction of its privileges to the resident poor
SAME-LEAVE TO SUE As POOR PERSON-AMENDMENT OF ApPLICATION.
A petition for admission to sue as a pauper set out that the plaintiff was 8 resident of New Jersey, but did not allege that he was a citizen of that state. The complaint, however, contained a proper averment upon that point. Held. on motion to vacate an order granting the petition, that the plaintiff should be allowed to file nunc pro tunc, as of the date of the presentation of the petition, an affidavit setting forth his citizenship.
On Motion to Vacate an Order 'Admitting Plaintiff to Sue as a Pauper. Wheeler &: Corti8, for plaintiff. JaB. Stikeman, for defendant. LACOMBE, J. Defendant moves to vacate an order heretofore granted on petition, allowing plaintiff to prosecute this action as a pauper. Plaintiff is a citizen and resident of New Jersey. It appears from the papers that he has sustained personal injuries, as the result of an accident caused, he contends, by defendant's negligence. Defendant is a citizen and resident of New York, in which state the accident happened. Plaintiff is not worth more than $100, besides the wearing apparel and furniture necessary for himself and his family and the subject-matter of this action, and is unable to prosecute this action unless permitted to do so as a poor person. In support of this motion defendant refers to three special term decisions of the supreme, superior, and common pleas courts, respectively, (Anon., 10 Abb. N. C. 80; Christianv. Gouge. ld. 82; Alexander v. Meyers, 8 Daly, 112,) holding that a non-resident may Dot sue in the state courts as a poor person. The practice of allowing paupers to have original writs and subprenas grati8, and to have counsel and attorney assigned them without fee, and to be excused from paying costs when plaintiffs, dates back to the reign of Henry VII. 3 Bl. Comm. c. 24. The provisions of the Revised Statutes and of the Code of Procedure are, in substance, a re-enactment of those contained in the original act; the limit of statutory poverty being raised between the Revision of 1812 and the Revision of 1830 from $20, the equivalent of the £5 of the English statute, to $100. The decisions above cited proceed in part upon the theory that the later statute, which requirea- aon-residents to furnish security for costs, is inconsistent with a policy which would allow an irresponsible non-resident to sue without even a liability for costs. In the supreme and superior court cases the causes of action arose in Pennsylvania, of which state plaintiffs were reg.
RECIOIAN t7. MACKEY.
idents. In: the common pleas case both plaintiff and defendants were citizens of Georgia, where the cause of action arose, and the decision is. based entirely on the proposition that "it is contrary to the policy of thelaw toellcourage the bringing of actions in this state for torts commi.tted in another state, where plaintiff and defendants are residents of such other state, and were so when the wrong complained of was committed. li * * * such person .choose to prosecute in a foreign tribunal, it should be under the usual liability for costs." 8 Daly, 112. The question has never been passed upon by an appellate state court. The state statute does not, either in its original or present form, contain any words importing It restriction of its privileges to the resident poor. The words used are "a poor;.person," without qualification. The attention of the learned judges who delivered the opinions aboveseems not to have been called to a distinction between the statutes before them. The pauper act is concerned with liability; the non-resident jtct with security. Plaintiffs generally are liable for costs, and it is ex'Pected that they will respond for them out of their property situated within the jurisdiction of the state. Non-resident plaintiffs, however, who are not supposed to have such property within the jurisdiction j are required to give security that they will so respond. This act, however, in no way enlarges their liability, nor is it necessarily inconsistent with an act which relieves any particular class from the obligation to respond for costs at all. In the particular case at bar the plaintiff cannot, so far as appears, Sue and make service of process in New Jersey, his native state. lithe rUle contended for were adopted, he could not sue in the courts of the state where the wrong was done him; and if it were followed here he would be left, solely because of his poverty, without any forum in which to vindicate his rights. Such a failure of justice should, if possible, be avoided. The practice in this court in civil causes, other than equity and admiralty causes, is, by section 914 of the Revised Statutes, conformed as near 8S may be to that in the state courts. This phrase, "as near as may be," was before the supreme court in the case of Railroad Co. v. H(YT'st, 93 U. S. 300, and the opinions expressed that the federal courts "had the power to reject, as congress doubtless expected they would do, any supordinate provisions in snch state statutes which in their judgment would unwisely incumber the administration of the law, or tend to defeat the ends of justice in their tribunals." In the case at bar it is not even a question of disregarding a subordinate provision of a statute. The state act contains no language sustaining defendant's position, and the construction contended for has not been approved by any appellate tribunal of the state. Under these circumstances such construction may be rejected as tending in this case to defeat the ends of justice. Defendant further contends that the order should be vacated because the petition states that the plaintiff is a resident of the state of New Jersey, but does not state that he is a citizen of that state. Plaintiff is in fact both a citizen and resident of New Jersey, and the proper averment 8S to citizenship appears in his com-plaint. Under these circumstances t
the order should not be set aside for lack of jurisdiction, but the plaintiff may be allowed to file nunc pro tunc, as of the date of the presentation of his petition, an affidavit setting forth his citizenship. Upon the filing of such affidavit, the motion to vacate the order allowing plaintiff to prosecute the action as a poor person is denied.
(District Court, D. Maryland.
October 6, 1887)
Held. that a supervisor of election. duly appointed under sections 2011 and 2012, who had attended the registration of voters for 18 days, as required by section 2016, was entitled to the maximum pay of $5 a day for not exceeding 10 days, fixed by section 2031, notwithstanding a notice afterwards issued by' the attorney general that the supervisors would be expected to perform their work within 5 days, and would be paid for only (j days' service. (SyUab'll8 by the Court.)
John E. Bennett, Jr., for petitioner. Thomas G. Hayes, Dist. Atty., for the United States.
MORRIS, J. The plaintiff has brought this case against the United States, in the United States district court for the Maryland district, by filing his petition in accordance with the act of congress of March 3, 1887, c.359, by which jurisdiction in cases against the United States is given to the district court where the amount of the claim does not exceed $1,000, and the claim is founded upon the constitution and laws of the United States, (except pensionsj) or upon any regulation of an executive department; or upon any contract, expressed or implied, with the government of the United States; or for damages, liquidated or unliquidated, incases not sounding in tort,-in respect of which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable. The plaintiff's petition has been duly served upon the district attorney of this district, and upon the attorney of the United States, as required by the act 'of congress. The plaintiff alleges that there is due to him by the United States the sum of $25 for the balance of his compensation as a supervisor of registration and election prior to and during the congressional election of 1886 in the city of Baltimore; he having faithfully and diligently performed his duties, and being entitled to $5 per day for 10 days, and having been paid only $25, payment of the balance claimed by him having been refused. The answer of the United States admits that the plaintiff has performed the services claimed for in his petition; but denies that he is entitled to receive more than the $25 already paid to him, for the reason that by a circular letter addressed by the attorney general of the United