Of suing in he should have costs, ordered him his costs like other suitors; forma pauperis. for though he is at no costs, or but small costs, yet the counsel and clerks do not give their labour to the defendant, but to the pauper. The same principle appears to have been acted upon by Lord Somers, in Haulton v. Hagre, (x), and was adopted by Lord Loughborough, C., and Lord Alvanley, M. R., in Wallop v. Warburton (y). In that case a decree had been made, whereby it was ordered, generally, that all parties should be paid their costs out of the estate; but one of the defendants having been admitted to defend in forma pauperis, the Master refused to tax her costs in the usual manner, without the particular directions of the Court, which the Lord Chancellor upon motion gave. A motion was subsequently made before the Lord Chancellor and the Master of the Rolls, to discharge the order of the Lord Chancellor, upon which his Lordship said, that he had considered the question very much, and had inquired what the practice was in Courts of Law, and that he had found, that if a plaintiff recovered 5l., he was ipso facto dispaupered; that the enabling a party to sue or defend in forma pauperis was only to enable him to bring forward his claim in a regular manner; but when that right was ascertained, it was never intended that the party who contended against it should be excused from the costs which, according to the course of the Court, he was liable to pay for resisting a just demand; that this practice might certainly be open to some abuses, but upon principle and practice his Lordship thought the order right, especially as the costs in that case were to come out of the estate, and in this opinion the Master of the Rolls concurred (z). In a subsequent case, before Lord Eldon (a), where a plaintiff sued in forma pauperis, and the answer was reported impertinent, the question arose, whether the plaintiff's costs in respect of the impertinence were to be taxed as dives costs, when after reviewing the cases before cited, his lordship said, that the result of all the authorities is, that the Court has a discretion in each case, and that in that case the proper order was that the Master should tax The costs of a successful pauper in the discretion of the Court. (x) Cited in Angell v. Smith, Prec. Cha. 220. (y) 2 Cox, 409. () Vide Frost v. Preston, 16 Ves. 160; and Hansard v. Kemeys, 1 Jac. & W. 189. (a) Rattray v. George, 16 Ves. 233. dives costs; to be paid into Court, and await the event of the cause in its further progress. The order accordingly was made for taxation of dives costs, but not for payment. Of suing in forma pauperis. It was determined as long ago as the time of Tothill, that Of Scandal. a pauper must pay the costs of scandal in his answer (b). As a party may be admitted in forma pauperis at any time of dispauperduring the suit, so if at any time it is made to appear to the ing. Court that he is of such ability that he ought not to continue in forma pauperis, the Court will dispauper him (c); therefore, where it was shown to the Court that a pauper was in possession of the land in question, the Court ordered him to be dispaupered, though the defendant had a verdict at law, and might take a writ of possession at any time (d). At common law, if a pauper give notice of trial, and do not proceed, or be otherwise guilty of improper conduct, the Court will order him to be dispaupered (e); and it seems probable that in Courts of Equity, if a party who is admitted to sue in forma pauperis were to be guilty of vexatious delays, or to make improper motions, such as not appearing when the cause is called on, or moving to suppress depositions upon groundless objections, he would be dispaupered though the Court always proceeds very tenderly in such points (f). Where an issue is directed out of Chancery in a pauper's Where Issue is suit, he must be admitted as a pauper in the Court in which directed. the issue is to be tried, or otherwise he cannot proceed in it in forma pauperis (g). In a case, however, where the plaintiff, a pauper, claimed as heir at law, and the defendant claimed under a will and deed, which were disputed, the bill was retained, with liberty to the plaintiff to bring an action, and the tenants. were ordered to pay the plaintiff 1507. to enable him to go to trial (h). (b) Rattray v. George, 16 Ves. 232. (e) Prac. Reg. 320. (d) lb. 321, vide Spencer v. Bry. ant, 11 Ves. 49. (e) 1 Tidd. 89. (g) Gibson v. M'Carty, Ca. Temp. Lord Hardwicke, 311. (h) Perishal v. Squire, 1 Dick. 31. As to the admission of parties to (f) Whitelocke v. Baker, 13 Ves. defend in forma pauperis, vide post. 511. CHAP. III. PART I. OF PERSONS WHO ARE ABSOLUTELY DISQUALIFIED FROM Exceptions to the general rule. Disqualifica tions from suing are either absolute, or qualified. Absolute disabilities. Excommuni- Popish Recusancy; abolished by 31 Geo. 3, c. 32. SECT. I. Of the different sorts of Disqualifications. THE general rule that all persons of whatever rank or condition, and whether they have a natural or only political character, are capable of instituting suits in equity, is liable, as has been stated, to a few exceptions. What these exceptions are will be the subject of the present chapter. The disabilities by which a person may be prevented from suing may be divided into two sorts; namely, such as are absolute, and, during the time they last, effectually deprive the party of the right to assert his claim; and such as are qualified, and merely deprive him of the power of suing without the assistance of some other party to maintain the suit on his behalf. Of the first sort are the disabilities which arise from Alienage, Outlawry, Attainder, Bankruptcy and Insolvency; of the second sort are those which arise from Infancy, Coverture, Idiotcy and Lunacy. To the first list of disabilities which disqualify a man from entertaining any suit in his own right, might formerly have been added excommunication and popish recusancy. But these disqualifications no longer exist, the first, except in certain cases, having been abolished by the statute 53 Geo. 3, c. 127, the third section of which Act directs, that in those cases in which excommunication is to continue, no person pronounced or declared excommunicate shall incur any civil penalty or incapacity whatever, save such imprisonment as the Court is thereby authorised to inflict. The disqualification arising from Popish recusancy has been virtually, if not entirely, abolished by the 31 Geo. 3, c. 32, by which Papists and persons professing the popish religion, taking the oath and subscribing the declarations therein mentioned, are relieved from most of the penalties and disabilities to which they were then subject. Absolute disabilities. SECT. II. In what cases they may sue; WITH respect to aliens in general it is to be observed, that although by the old law no alien, whether friend or enemy, could sue in the King's Courts, yet the necessity of trade has discouraged and gradually done away with the too rigorous restraints and discouragements which formerly existed; and it for personal is now clear, that for a mere personal demand, an alien born, demands. provided he be not an alien enemy, may sue in the Courts of this country. This rule is clearly recognised in Ramkissenseat v. Barker (a), where a bill was filed, against executors for an account, by a plaintiff who had been employed by the testator in India as his Banyan or broker, and a plea was put in on the ground that the plaintiff was an alien born and an infidel, not of the Christian faith, and upon a cross bill incapable of being examined upon oath, and therefore disqualified from suing here; the Court overruled the plea without argument, observing, that the plaintiff's was a mere personal demand, and that it was extremely clear that he might bring a bill in this Court. It has been stated, however, that the Court will not protect the copyright of a foreigner (b); this must, however, be considered as applying only to books published by a foreigner abroad, for there seems to be no reason why a foreigner publishing a book in this country should not be entitled to the same protection which the law affords to native authors. The right of an alien to sue in the Courts of this country is, however, confined to cases arising upon personal demands; for an alien may trade and traffic, and buy and sell, and therefore he must be of ability to have personal actions, but he cannot maintain either real whether they can sue for copyright; 9 cannot sue for real or mixed property; alien merchant Not Enemies. or mixed actions (c), because an alien, though in amity, is incapable of holding real property (d). An alien merchant may, however, take a lease, for years, of a house for habitation; it must therefore follow that he may maintain a suit respecting may, for a lease it as long as he resides in this country, though if he depart or relinquish the realm, his right to sue respecting it must terminate, as the lease in that case belongs to the King (e); and so if he die his executors or administrators shall not have it, but the King. An alien, though a merchant, cannot have a lease of lands, meadows or pastures (ƒ). hold house to reside in ; but not for meadows or pastures. In suits between tracts in a the decision is governed by the law of that country. Although an alien may maintain a suit in this country, yet aliens upon con- if one alien sues another upon a contract entered into in a foreign country; foreign country, it would be contrary to all the principles which guide the courts of one country in deciding upon contracts made in another, to give a greater effect to the contract than it would have by the laws of the country where it took place: therefore, where a French emigrant resident in this country obtained by duress securities from another French emigrant for the payment of a demand, alleged to be due from him, under an obligation entered into in France as security for another, and for which, according to the laws of France, his person could not be affected, Lord Loughborough refused to dissolve an injunction which had been obtained to restrain an action at law upon those securities, and intimated a very strong opinion, that when the case came on for hearing he should in Ne exeat Regno, all probability set the securities aside (g). Upon the same principle it was held by Lord Hardwicke, that the Court will not grant a writ of Ne exeat Regno, where it appears that the transactions between the parties were entered into upon the faith of having justice in the place where they respectively resided (h), though in the case before him he considered that the parties (c) Co. Litt. 129 b. (e) Ibid. (f) Jews appear formerly to have been considered as alien enemies, but in Wells v. Williams, (1 Lord Raym. 282, cited 1 Atk. 43,) the Court said that the necessity of trade has mollified the too rigorous rules of the old law, in their restraint and discourage ment of aliens. A Jew may sue at this day, though heretofore he could not, for they were then looked upon as enemies, but now commerce has taught the world more humanity. (g) Talleyrand v. Boulanger, 3 Ves. 447. (h) Robertson v. Wilkie, Amb. 177. |