34 F. 276 | U.S. Cir. Ct. | 1888
This is an ex parte application by an infant plaintiff to sue in forma pauperis. He is a citizen of Arkansas, and his declaration, presented with his application, alleges that he was personally injured by the negligence of the defendant company, while traveling as a passenger on its train. He accompanies his application with an oath of his own poverty, and also the oath of his next friend as to his poverty, likewise; and he presents a certificate of a good cause of action by a reputable attorney, as required by our ruling in Bradford v. Bradford, 2 Flip. 280.
It is thoroughly well-settled in Tennessee, even under the liberal statutes of our state, that an infant plaintiff cannot sue in forma pauperis. Mill. & V. Code, §§ 3912, 3913; Thomp. & S. Code, § 3192; Green v. Harrison, 3 Sneed. 131; Brooks v. Workman, 10 Heisk. 430; Cargle v. Railroad Co., 7 Lea, 717; Sharer v. Gill, 6 Lea, 495. We held in Bradford v. Bradford, supra, for sufficient reasons, that the Tennessee statute was not binding on the federal court. Not because the state practice is not binding on us, but because, as we thought, it is not a question of practice at 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 action. Outside the statute, those were matters of judicial determination by the court, and we thought the legislature of the state could not deprive the federal courts of the right to determine for themselves the facts of the case, or prescribe for them a statutory rule of judgment. It is now insisted that under that decision the above-cited cases are not binding on us, and that the plaintiff has the 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 privilege; 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. I. 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 ivas about to go out of the jurisdiction. At common law, indeed,