ceives that one suing or defending in forma pauperis, is not entitled to do so, he applies to the Court, by a notice of motion, to dispauper him. A party may under circumstances be re-admitted to sue or defend in forma pauperis. If a pauper sells or contracts for the benefit of the suit, the Court will immediately dismiss the same.(1) A pauper is liable to be committed for filing an improper bill.(2) A [ *553 ] *pauper plaintiff, who had been guilty of vexatious conduct in the suit, was ordered to be dispaupered.(3)[a] All notices of motion given by a party suing in forma pauperis, are required to be signed by the clerk in court.(4) And no contempts are to issue on his behalf, unless signed by the Six Clerk, who is responsible for their propriety.(5) The Court has power, upon the report of one of the Masters to assign a solicitor and counsel to a prisoner confined for contempt, to put in his answer and defend him in forma pauperis.(6) A guardian appointed under 1 Will. 4, cap. 36, Rule 9, to a prisoner confined for contempt, being an idiot, lunatic, or person of unsound mind may, under that act, if the Court shall see fit, defend in forma pauperis. A defendant in custody for contempt, for not answering, making oath of his inability to pay for an office copy of a bill, may file his answer without being compelled to take such copy.(7) If a defendant, upon being brought before the Court upon a habeas corpus, shall make oath (which shall be administered to him by the Registrar, and he shall be examined in court,) that he is unable, by reason of poverty, to employ a solicitor to put in his answer, the Court shall thereupon refer it to a Master in rotation to inquire into the truth of that allegation, and to report thereon to the Court forthwith, and thereupon the Court may make such order as upon other reports of the like nature under the provisions thereinafter contained.(8) If a pauper succeeds with costs, the general rule is only (1) Beam. Ord. 216. (3) Wagner v. Mears, 3 Sim. 127. (2) Pearson v. Belchier, 4 Ves. 627. (5) Beam. Ord. 217.-The practice of procuring the notice of motion to be signed by the clerk in court, or process of contempt by the Six Clerk, seems to have become obsolete. (6) 1 Will. 4, cap. 36, Rule 7. (7) 1 Will. 4, cap. 36, Rule 14. (8) 1 Will. 4, cap. 36, Rule 6. [a] A plaintiff, guilty of improper conduct in the prosecution of the suit, or of any wilful or unnecessary delay, will be dispaupered. Steele v. Mott, 20 Wend. 679. Eng. Chan. Reps. v. 45. to allow him pauper costs; viz. costs out of pocket, the amount of which are to be proved upon oath before the *Master.(1). But, as in all other questions of [*554 ] costs, the Court has a discretion, and may give dives costs; thus, where the defendants put in an impertinent answer to the bill of a pauper plaintiff, the costs of impertinence were ordered to be taxed as dives costs, and to be paid into court.(2) And, in an early case, where a defendant put in a plea and demurrer to a pauper plaintiff's bill, which were both overruled, the defendant was ordered to pay dives costs; the Court saying that the counsel and the clerks do not give their labour to the defendant but to the pauper.(3)[a] The liberty to sue or defend in forma pauperis, is not confined to any particular proceedings in a suit, nor to the parties on record; thus a party is at liberty to prosecute or defend an appeal in forma pauperis. So a person coming in to be examined pro interesse suo, may be examined in forma pauperis.(4) A plaintiff suing in forma pauperis, cannot amend by leaving out defendants, without paying their costs.(5)[6] In most cases, it would be more merciful to the defendant to allow the pauper so to amend. The defendant, by indulgence, having allowed a pauper plaintiff to dismiss his bill without costs, cannot, upon his filing a second bill, move to dispauper him.(6) The Court refused costs to a pauper plaintiff who had obtained a decree on the merits, leaving the question open whether, (1) 2 Eq. Ca. Ab. 633. (2) Rattray v. George, 16 Ves. 232. (3) 1 Eq. Ca. Ab. 125. (5) Wilkinson v. Belsher, 2 Bro. C. C. 272. [a] This discretion will be exercised, according to the circumstances of each case. And it was held, that a plaintiff, suing in forma pauperis, and recovering a legacy against executors, when there was no unreasonable delay, on their parts, ought not to recover dives costs, but only the actual expenses of the suit, to be paid by the executors out of the assets. Williams v. Wilkins, 3 Johns. Ch. Rep. 65. [b] So, if a party, suing in forma pauperis, amends his bill, after answer, under the common order, as of course, it must be upon payment of costs, as in ordinary cases; and if he has a meritorious claim to amend without costs, he must apply to the Court, by special motion, upon affidavit and notice to the adverse party. Richardson v. Richardson, 5 Paige, 58. And a party, suing as a pauper, is chargeable with the costs of setting aside his proceedings for irregularity, or of a contempt, Murphy v. Oldis, 2 Moll. 475, (12 Eng. Ch. Rep. 569,) or of expunging impertinent or scandalous matter, in the same manner as other suitors. Richardson v. Richardson, 5 Paige, 58. VOL. I. 45 if costs had been decreed, they would have been dives costs or only money out of pocket.(1) If a plaintiff suing in forma pauperis suffers a bill to be dismissed for want of prosecution, it is dismissed with [ *555 ] *costs, and if he files a second bill against the same defendant, touching the same matter, the Court on notice of motion will order that all proceedings on the second suit be stayed until the sum at which the Master shall tax the costs of the first suit are paid.(2) (1) Frost v. Preston, 16 Ves. 160. (2) Brook v. Alcock, 20th March, 1834. V. C. CHAPTER XIV. SECURITY FOR COSTS. In what cases security for costs is granted or refused, 556. feited, 558. Order for, how obtained, 558. Bond for, 559. How right to, may be for- If it appears upon the bill, that the plaintiff is residing[a] out of the jurisdiction of the Court, the defendant is entitled as of course, to an order for the plaintiff to give security for costs, and that the defendant may not be compelled to answer until a stated time after such security shall have been given ;[6] but to entitle the defendant to this order, all the plaintiff's must be resident out of the jurisdiction, since if only one of many plaintiffs, is within the jurisdiction the defendant cannot obtain such order.(1)[c] Neither is it sufficient, that the plaintiff appears by the bill to be out of the jurisdiction of the Court, he must appear to be resident abroad, or the fact must be distinctly sworn to; (1) Walker v. Easterby, 6 Ves. 612. [a] As respects the question, what constitutes a resident, it is well settled, that by this term is meant, not one who has a mere residence of a temporary nature, but one of a fixed and permanent character. Gra. Prac. 505. See Matter of Wrigley, 8 Wend. 140; S. C. 4 Wend. 602; Roosevelt v. Kellogg, 20 Johns. 210; Boardman v. House, 18 Wend. 512; Frost v. Brisbin, 19 Wend. 11; Oliva v. Johnson, 5 B. & Ald. 908, (7 Eng. Com. Law Rep. 299 ;) S. C. 1 D. & R. 560; Naylor v. Joseph, 10 Moore, 522, (17 Eng. Com. Law Rep. 155;) Anonymous, 2 Chit. Rep. 152, (18 Eng. Com. Law Rep. 282;) Lloyd v. Davies, 1 Tyrwh. 533; S. C. 1 Price, N. R. 11. But it has been held, that an absence of eighteen months, will not be considered as merely temporary; Foss v. Wagner, 2 Dowl. P. C. 499; Wells v. Barton, id. 160; Taylor v. Fraser, id. 622; Gurney v. Key, 3 Dowl. P. C. 559; even though it be sworn that the party is soon expected. Wright v. Black, 2 Wend. 258. See also, Gilbert v. Gilbert, 2 Paige, 603. [6] Long v. Majestre, 1 Johns. Ch. Rep. 202. But, if the non-residence of the plaintiff appears on the face of the bill, and the defendant demurs, pleads, or takes any other step in the cause, or even prays for time to answer, it is a waiver of his right to security for costs. Goodrich v. Pendleton, 3 Johns. Ch. Rep. 520; Prior v. White, 2 Moll. 361, (12 Eng. Ch. Rep. 501;) Dyott v. Dyott, 1 Mad. Rep. 186; Eardy v. Headford, 2 Moll. 464, (12 Eng. Ch. Rep. 561;) Hill v. Reardon, 6 Mad. 46. [The practice, in New York, under a recent statute allows the application to be made at any stage of the cause, if the plaintiff was a non-resident, at the commencement of the suit, and continues so. Burgess v. Gregory, Edw. 449.] If the plaintiff fail to comply, after a reasonable time allowed, his bill will be dismissed. Comac v. Grant, 1 Sim. 348; Breeding v. Finley, 1 Dana, 477. [c] Orr v. Bowles, 1 Hodges, 23; Anonymous, 7 Taunt. 307, (2 Eng. Com. Law Rep. 116;) Anonymous, 2 Crompt. & Jerv. 88; S. C. 1 Dowl. P. C. 300; Doe v. Roe, 1 Hodges, 315. But an Irish company was compelled, by the C. P. in England, to give security for costs, though many of the members resided in England. Limerick and Waterford Railway Co. v. Frazer, 4 Bing. 394, (15 Eng. Com. Law Rep. 14;) 2 Chit. Archb. 7th ed. 1012. thus, where the plaintiff stated himself in the bill, to be on a voyage to North America, and his counsel on the motion [ *556 ] *stated that he intended to return, the motion was refused, and the Court observed that, as against a sailor going backwards and forwards, or a fisherman, the motion would be refused.(1)[a] And in a case where the affidavit stated, that the defendant had been informed that the plaintiff intended to go abroad, and that his brother informed him that he was then on a voyage to the West Indies; the Court refused the motion for security for costs, as the plaintiff might return before the hearing of the cause.(2) So, where a motion was made in April, 1808, that the plaintiff might give security for costs, he having gone to the West Indies; the motion was refused on the affidavit of the plaintiff's solicitor, stating that the plaintiff had gone to the West Indies in the preceding July, for the purpose of arranging his affairs; informing the deponent that he intended soon to return to this country where he had left his family.(3) In a case where the plaintiff was confined by an order of the Secretary of State, and about to be removed out of the kingdom under the Alien Act; it was ordered upon motion after appearance, and before answer, that the plaintiff should give security for costs according to the practice, where the plaintiff is resident abroad.(4)[b] If an ambassador's servant brings a bill, he must give security to answer costs as being a person privileged.(5) Where liberty had been given by a decree to the plaintiff in this court to bring an action in the King's Bench, and the plaintiff resided at Paris, as appeared by his bill, the defendant applied to the judge at law, for the usual order [ *557 ] for security; the *judge referred the application to this court, and such security was ordered to be given accordingly.(6)[a] The order for security for costs was refused where a (1) Green v. Charnock, 1 Ves. 396. [a] Ford v. Boucher, 1 Hodges, 58. (2) Hoby v. Hitchcock, 5 Ves. 699. [6] So, where it appeared that the plaintiff had been sentenced to transportation, and was then on board the hulk. Dunn v. M'Evoy, 1 Hogan, 355. [a] But a plaintiff in a cross-bill will not be compelled to give security for costs; Thornton v. Wilson, 1 Hogan, 20; a cross-bill being regarded, as has been already seen, (ante, 459, note [b]) as a defence to the original suit. |