
    HECKMAN v. MACKEY.
    ’ U. S. Circuit Court, Southern District of New Y~or7c /
    
      October, 1887.
    1. Goats; leone to sue informo, pauperis.] A non-rcsiclent may have leave to sue as a poor person in the Federal courts in New York, under N.Y. Code Civ. Pro. § 458, notwithstanding §3208 of the Code provides that a defendant “"'may require ” a non-resident plaintiff to give security for costs.
    
    
      2. The same ; amendment of petition.] Upon motion to vacate the order giving- leave to sue as a poor person, the court may allow an affidavit to be filed nunc pro tunc as of the date of the presentation of the petition for leave, setting forth plaintiff's citizenship of another State, where the fact was properly averred in the complaint but was omitted from the petition.
    3. Practice in Federal courts.] The Federal courts will nqt follow . decisions of the inferior State courts construing the Code regulations of practice, where they are clearly unsound, and their adoption would tend to defeat the ends of justice.
    Motion to vacate order granting plaintiff leave to sue i/n forma pauperis.
    
    The order in question was granted upon petition, under N. Y. Code Civ. Pro. § 458, providing: “A poor person, not being of ability to sue, who alleges that he has a cause of action against another person, may apply, by petition, to the court in which the action is pending, or in which it is intended to be brought, for leave to prosecute as a poor person, and to have an attorney and counsel assigned to conduct his action.”
    The plaintiff being a resident of New Jersey, this motion, was made to vacate the order upon the ground that such leave could not be granted to a non-resident, because § 3268 of the N. Y. Code provides that the defendant “ may require security for costs to be given, as prescribed in this tille, where the plaintiff was, when the action was commenced, either 1. A poor person residing without the State,” etc.
    The material facts appear in the opinion.
    
      James Stikeman, for the defendant, and the motion.
    
      Wheeler & Cortis, for the plaintiff, opposed.
    
      
       When the claim of a poor person to sue in forma pauperis, and the claim of a defendant to require him to give security for costs conflict, it is in the discretion of the court which shall prevail; for even if the statute as to security for costs be deemed to give defendant a right to demand it, in cases of insolvency generally, the very object of the statute as to suing informa pauperis, is to create an exemption from all liability for costs in a certain class of pecuniary irresponsibility. 1 Abbott’s New Pr. 847. See Thomas v. Thorwegan, 27 Fed. Rep. 400.
      An infant who has been allowed to sue informa pauperis cannot be required to give security for costs. Erickson v. Poey, 5 Civ. Pro. R. 379; Irving v. Garrity, 13 Abb. New Cas. 182 ; Hotaling v. Mc Kenzie, 8 Civ. Pro. R. 321. And upon the reasoning of the two latter eases, a non-resident or an insolvent who had been so allowed, could not.
      The policy of the New York courts has been to construe the statute strictly against the applicant, and not extend it to any case not clearly within its terms. Thus “ cause of- action ” is not to be extended to writ of error or proceeding by appeal. Moore v. Cooley, 2 Hill, 412; Bolton v. Cardner, 3 Paige, 273 ; Lyons v. Murat, 4 Abb. N. C. 130. Under the old chancery practice, in a special proceeding for examination pro interesse suo of a claimant of title to lands taken under sequestration, the claimant may have leave to prosecute his right in forma pauperis. See Note on Receivers and Instructing them, ante, p. 382, citing James v. Doxe, 2 Dick. 788.
      The decisions referred to in the case in the text, holding that nonresidents of the State, not being expressly included, will not be granted this privilege, are opposed in North Carolina, where the provisions of the statute are similar to those in New York. Porter v. Jones, 68 N. C. 320.
      Even after a party is admitted to proceed as a poor person, he is liable for the costs of any irregular or improper proceedings on his part, anil for costs incurred before the order was made. Brown v. Story, 1 Paige, 588. See, on this subject, 1 Abbott's New Pr. pp. 569, 847.
    
   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; Christian v. Gonge, Id. 82 ; Alexander v. Meyers, 8 Daly, 112), holding that a non-resident may not sue in the State courts as a poor person.

The practice of allowing paupers to have original writs and subpoenas gratis, 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 Blackst. Com. 24). The provisions of the Devised 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 181.2 and the revision of 1830 from twenty dollars, the equivalent of the five pounds of the English Statute, to one hundred dollars.

The decisions above cited proceed in part upon the theory that the latter statute, which requires non-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 plaintiff's were-residents. 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 the law to encourage the bringing of actions in this State for torts committed in another State where plaintiff and defendants are residents of such other State and were so when the wrong complained of was committed. If ... . such person choose to prosecute in a foreign tribunal it should be under the usual liability for costs ” (Alexander v. Meyers, 8 Daly, 112).

The question has never been passed upon by an appellate State court. The State statute does not, cither in its original or present form, contain any words importing a 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 above cited, seems not to have been called to a distinction between the statutes before them. The pauper act is concerned with liability ; the non-resident act with security. Plaintiffs generally are liable for costs, and it is expected that they will respond for them out of their property situated within the jurisdiction of the State. Non-resident plaintiffs, however, vvho are not supposed to have such property within the jurisdiction, 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. If the mle contended for were adopted lie could not sue in the courts of the State wheie 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 lights. Such a failure of justice should, if possible, be avoided.

The practice in this court in civil causes, other then equity and admiralty causes, is, by section 914 of the Revised Statutes (U. S.), conformed,- as near as may be, to that in the State courts.' This phrase—“ as near as may be”—was before the supreme court in the case of Indianapolis, &c. R. R. Co. v. Horst (93 U. S. 291, 300), and the opinion expressed that the Federal courts “ had the power to reject, as Congress doubtless expected they would do, any subordinate provisions in such State statutes which in their judgment would unwise-' ly encumber the administration of the law or tend to defeat the ends of jtistice 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, arid 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 Hew Jersey, but does riot state that he is a citizen of that State.

Plaintiff • is in fact both citizen and resident of Hew Jersey, and the proper averment as- to citizenship appears in his complaint.

Under these circumstances the order should not be- set aside for lack of jurisdiction, but the plaintiff maybe allowed to file mine pro tune 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.  