(Circuit Court. .
Neither the pauper's oath, of an infant plaintiff nor that of his ne-tt friend can entitle them to sue without security for costs.
IN FORMA PAUPERIS.
At.Law. ' Ex parte 'application by an infant to sue in forma pauperis. O. P.,Lylea, for the motion.
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This is an ex parte a.pplication.by an infant sue in forrna pauperis. He :isa citizen of Arkansas, and his declaration, presented with his application, alleges' that. he was personally. injurW by the negligence of the defendant company', while:travelingas a passenger on its train.' He accompanies hill application with an oath of his own poverty,and also the 'oath ,of his next friend' as ro ¥s 'poverty;likewise; he presents a certificate of a good; cause of action ,hy a reputable at. torney,ll$ required by our1ruling in Bradford v; Bradford,'2 Flip. 280· .It is thoroughly well·settled in 'rennessee,even under the Jiberalstat. utes of 0111' state.· that ari infant)Jlaintiff :cannotsoe,in forma. ptW;PW; Mill. & V.Code,§§ 3912, 3913j,Thomp.& S.Code,§3192j Green v. Harrison,3Sneed.131j Broolcsv. Workman, 10 Heisk. 430; Rail;, road 00., 7 Lea, 717; Sharerv. Gill, 6 Lea; 495;' . We held Bradford,supm, for sufficient reasons, that the Tennessee statute was not binding on the federal court. Not because the state practice is not bindat ing on us, but becaufle, ae: we thought, it is not a question of all, but a statutory privilege or right conferred upon a party,which was limited in legislative authority to the state courts-the right, namely, of the party to determine for himself the fact of his poverty, and that he had a reasonable cause of a6tion. Outside, the' statute, those were mat. ters of judicial determination by the court, and we thought the. legisla. tureof'thestateco1l1d not deprive the federal cohrts' of the right. to determine for themselves the facts of the case, or prollcribe for theililia statutory tule of judgment. . It is now insisted' that :under that decision the above·citedcases are notbinding on us, ,and that'tHe plaintif!hasthjJ right to sue in this court in forma pauperis. At common law no plaintiff had any such right, it being a purely statutory privilege. But here. costs and fees must not be confounded, for at common law no such thing as costs was known, the right to them being likewise a statutory priv· ilege; that is to say, the right of a party to the suit, either plaintiff or defendant, to recover, if prevailing in the suit, the expenses of his own side of the litigation, was unknown to the common law. So, too, the right to demand security for those costs after the statute of Gloucester (6 Edw. 1. c. 1) was unknown to the English law, except in two cases -First, where a prochein ami was suing in behalf of an infant he was required to give security for costs; and, secondly, if the plaintiff resided, or waS about to go out of the jurisdiction. At common law, indeed,
ROY V. LOUISVILLE N. O. &; T. R. CO.
an infant could not sue El]tcept by his guardian, and it was by a stat-, ute that the privilege of suing bya prochein ami became established; and one of the conditions tlf the privilege was that the prochein ami should give security for costs. As to fees,-that is, as to one's own expenses of litigation, whether plaintiff or defendant,-they were always to be paid as the cause progressed to the officers or others entitled to them for the services rendered, and the litigant could no more expect to get these services for nothing, or on a credit, than he couB expect to so obtain other work or labor performed for him. But by the statute 11 Hen. VII. c. 12, for the first time paupers were allowed to sue as plaintiffs without paying these [tlEilS, wl1ich privilege they obtained by petition upon their affidavit of poverty and certificate of counsel that there was a good cause of action. Hence these applican1;swere not to be relieved of giving liecurity for COSul, but to be allowed "to carryon the cause" without paying the fees one's own expenses of litigation.. But not; only were .infants this privilege, but t,heir IJrochein ami was requhed to to the other side his costs, as we have seen; and this was one of only two or three instances where any plaintiff was required to give such security. , Moreover, if an irresponsible person were admitted as next friend of an infant, the 'court would substitute one that :should be responsible, and be able to give the security to the other side. 2 Sell. Pro 64, 82,428-:-449; 1 Tidd, Pro 98-100; 3Chit.Pr. -633; 7 Bac. Abr. (Bouv. Ed.) 420, tit. "Pauper;" 2 Jac. Fish. Dig. 2679, tit. "Costs;" Id. 2654; 5 Jac. Fish. Dig. 6467, tit. "Infant;" Id. ,6471; 6 Jac. Fish. Dig. 9843, tit. "Pauper;" Lees v. Smith, 5 Hurl. & N. ,631j W'aUlonv, Fraser, 8 Macs. & W. 660; Mannv. BertlLen, 4 Moore &P. 215; Selby v. Alston, 1 Term. R.. 491; Anonymous, 1 \Vils. 130; Noke v. Windham, 2 Strange, 694; Throgmorton v. Smith,.2 Strange, 932. Some .of the cases seem to intimate. that under, some circumstances this rule might be relaxed, but I find no case where it was done by admitting a pauper next friend to sue, though there may be cases where the court refused to remove one becoming insolvent after suit brought. Some .of the cases cited in the digest are not accessible to me for examination. 'The chancery court wasmo,re liberal, and it is difficult to answer the gtiment there made that, iqnfants were.to be deprivedof the benefit. of the statute allowing paupers to sue in forma pauperis, a great injustice be done to. them. But even in that court there was a, difference of opinion as to the cqrrect practice. 1 Daniell, Ch.Pr. (1 Ed.) 103, 40; . Id. (lAmer. Ed:) 41, 99, and notes; 1 Smith · .ab. ,Pro (2d Amer. Ed.) 550; 1 Hpff. Ch. Pro 67;, Story, Eq. Pl. § .5.ot So, too, courts of admiralty are far more liberaL Bradford V. Bradford,BUpra. note.. Still, the reasonipg of the common-law .courts fore:xcludiIlg infants. from the benefit. of thestatllte: is notwitho,ut mllch '. ot only frivolous aQd. unsubstantial, and. therefore. vex,. " :atious, suits might be brought by irresponsible next friends of infants" good causes of actionm\ty be prejudiced by the dlingof such irresponsible persons, while if left till they arrive at ;age, they .being meantime protected by the of
they; JIlQre effect; though it: P<i, that lO!\B ()f time wOllld, ):Ie, dlJ,11gerpWft oftentiJ:l.lM.; perhaps, fata,l,H' Neverthelesl!lt we cannot PJ,ake the,lawhel'e. ' The ,plAiIJ.,tiff not being entitled, to sue in jorma,paupeJriJJ, eitller under tl1eillWe".m,tute Qrunder the generaUaWj in suits at law, we cannot by confer the privilege. ' Application ,refused· SllYiin,g,
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':ROGERS ,L.' & M. WORKS
SOuTHERN RAILROAD ASS'N·
'(Oircuit Go'Url,! &:D. Nt:lJJYlI1'k.' March 12, 1888.).
'R4n.RO.AJ:> COIllP,ANIEll-BoND8,Qlr MORTGAGBB-POWERiTO GUARAl'lTY BONDll Ol", OTHER '. . ,', ,; ," " . ,,'
.,' A: raiiro"d' corporation; which has power by its chatter toisllue itllOWll ' n,aaP,'owe,I' to gua,ranty ,the1;londs of another rai"lroad corporation, which itrflceives"in Ol!ht due to it. a;q!l which itsellsJorvalue, or transfers,in paym,e}1t of Its own the guarp.nty heinp;given 'as the means of, augmentlligthe credit o'f the bonds, or to enable it to"obtainan adequate pri\lll' for thei:14 '" .' , '
HJ. . " SHIPMAN,: ,This is an action at law, inwhich,by writtenstipulation signed-liy the parties, a jury was waived, the <muse was tried by'the COlIl-tl·Upon such trial the following facts were 'found to have been proved,; and :to be true: The averments of the first, second, third, fourth; fifthiaiith, seventh, and ninth 'paragraphs of the complaint al'e' true,ex'Cept·thM the guaranty described in the seventh' pa.ragraph WltS' not· indorSed upon the bonds by resolution of the stockholders of the'defendant,: and with the Olllission of the words" for 'good and: valuable con':' sideratioh"'in ,said paragraph. The facts in regard to the consideration fof the said'guatanty areihereinafter specially stated. The Mississippi, Central Railroad'C01npaIiy. hereinafter called the " Mississippi Company," had to before January 26,,1874, in a large amount; fON.dvances which were made to'sa:id company for the purpose of oompletiilg its rhad. " In, settlement ,6t' -that debt ;the said! Mississippi the ,deiendantsI itS coUpon honds;"f'or the sum -of' $1;000 each\ known as "Incciine and 'E1qt\rprnent Bonds," to the·aIilOunt of These bdnds include the 447 bonds which are ,pa.rticular'ly described4n the complaint. At tl. meeting of 'the'directors of the defel'.ldant,'heldioD Janulity26, 1874, the following,l'e't'l01uti6ns were , ,, ,: ,,', ,J ' j . ' . Ii una.nimously'attoptoo: ·. ,', "ed',' 'tbat'.;.; hen 'the said ' bonds ...e' delivered to this eOlnpany by the said the' Mis$.issippi Ceritral Railroad Qompany, th\" corporate seal of this com.: ' pany;.attes.ted: b;y' tbesignatul'es of t1,la president,andstlcreLary ,be affixed to a.,
:" " Benj. 11') B'l"i.iww, Anthony ,lliggim,ahd ,David' Wilcox, for plaintiff. Bang8' & rStdlsO'h,' for defendant. "