Coffin v. North-Western Construction Co.

the manner stated in the opinion here reported; but subsequently, at the request of the plaintiff's attorney, he released fifty of them. Thereafter the action was settled between the parties for the sum of $5,000, and an order discontinuing the action and vacating the attachment was duly entered. Other facts appear in the opinion.

Charles Henry Jackson, for plaintiff.

Cochran & Clark, for the sheriff.

LAWRENCE, J.-In this case, I think that there was such an actual taking of the bonds into the possession of the sheriff as to satisfy the statute. The allegation in the sheriff's affidavit is that, after a long consultation between himself and his counsel, and the counsel representing the defendants, and the counsel for the Central Trust Company, it was decided that the bonds in question should be placed in "my view, and that I should thereupon take them into my possession and levy upon them; that I should then return them to the Central Trust Company, to be held by said company as my depository; that the said decision, however, was not arrived at until after I had threatened that, in case the trust company still refused to deliver to me the bonds in question, that I would break open the safes of the company and forcibly take possession of the bonds." This allegation is not denied in the affidavit of the plaintiff's counsel.

If the sheriff saw fit to take the risk, it seems to me that after having made that levy he could place the bonds in the custody of the trust company as his depository. It also appears by the affidavit, that at the time this arrangement was arrived at, the persons who claimed to be the owners of the bonds, through their counsel, gave notice to the sheriff that he would be held responsible for any damages that might ensue to the owners of the bonds from the depreciation in their value during the time

Heckman v. Mackey.

they were held by him, in virtue of the aforesaid levy; that the next day he was served with a formal notice of claim; that he thereupon demanded a bond of indemnity from the plaintiffs; and that several sureties were offered to him; and that, from the 28th of June, 1887, to the day of settlement, the said bond had not been given to him, although there had been many conversations between the attorneys relative to the giving of said bond.

In the case of Warner v. Fourth Nat. Bank (12 N. Y. Civ. Pro. 186), the sheriff did not take the securities into his actual custody at the time that he served the warrant of attachment. In Anthony v. Wood (6 N. Y. Civ. Pro. 164), no levy was made under the warrant, and the note was only delivered to the sheriff upon the order of the court. Herein I think consists the distinction between this cases and the case above referred to. The sum of $200 would, I think, be a fair "additional " compensation for the sheriff under section 3306 of the Code of Civil Procedure.

HECKMAN v. MACKEY.

UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF NEW YORK, OCTOBER, 1887.

S$ 458 et seq.; 3268 et seq.

Poor person-When non-resident may sue as-Practice in Federal courts.

The practice in the United States circuit court located within this State in other than equity and admiralty causes, is by United States Revised Statutes, § 914, made to conform as near as may be to that of the State court. By the phrase "as near as may be," is conferred upon the court the power to reject any subordinate provision in such statute which in its judgment would unwisely incumber the administration of the law or tend to defeat the ends of justice.

The Federal courts, in construing a State act relating to practice, which

Heckman v. Mackey,

by the statute conforming the practice of the Federal courts to that of the State courts in which they are located is rendered applicable to it, will reject a construction placed upon it by the State courts, but not passed upon by its appellate tribunals, which tends to defeat the ends of justice.

A non-resident of the State may sue as a poor person in a Federal court located therein, notwithstanding the provisions of the Code of Civil Procedure requiring a non-resident plaintiff to give security for costs; and, it seems, that a proper construction of the provisions of the Code of Civil Procedure providing for suits in forma pauperis, and for the giving of security for costs does not make the granting of leave to sue as a poor person in a court of that State conditional upon the residence of the plaintiff within the State.

Anonymous (10 Abb. N. C. 80), Christian v. Gourge (10 Id. 82), Alexander v. Meyers (8 Daly, 112), not followed.

An order allowing the plaintiff in an action in the United States circuit court to sue as a poor person will not be vacated on the ground that the petition does not state that the plaintiff is a citizen of the United States, where that fact is necessary to give the court jurisdiction, if it appears from the complaint that the plaintiff is in fact such citizen; but the defect will be cured by permitting an affidavit as to that fact to be filed nunc pro tunc.

(Decided October 11, 1887.)

Motion by defendant to vacate an order allowing the plaintiff to sue in forma pauperis.

The opinion states the facts.

James Stikeman, for defendants and motion.

Wheeler & Cortis, for plaintiff, opposed.

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.

Heckman v. Mackey.

Plaintiff is not worth more than $100, beside 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 cominor pleas courts respectively (Anonymous, 10 Abb. Pr. N. S. 80; Christian v. Gourge, 10 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. (Blacks. Comm. book 3, chap. 24). The provisions of 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 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 plaintiffs 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

Heckman v. Mackey.

person choose to prosecute in a foreign tribunal it should be under the usual liability for costs" (Alexander v. Meyer, 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 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, who 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 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 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. 300), and the opinion expressed that the Federal courts "had the power to reject, as Congress doubtless expected they would do, any