sheriff's officer, that he had levied the amount, is not enough, without an affidavit of the plaintiff's attorney to the same effect. (1) And where the plaintiff was dead, and no administration had been taken out, an affidavit of the defendant's attorney, that the plaintiff had been paid in full satisfaction, was held not enough.(2) So where four out of five plaintiffs consented, but the fifth was abroad and could not be found, the application was refused.(3)

Form of Entry of Satisfaction on Roll.

Afterwards, on

, in the year of our Lord

comes here the said A. B. by P. A. his attorney, in this behalf, and acknowledgeth himself to be satisfied by the said C. D. of the damages and costs aforesaid. Therefore let the said C. D. be thereof acquitted.

(1) De Bastos v. Willmott, 1 Hodg. 15.

(2) Speach v. Slade, 8 Moore, 461.

(3) Davis v. Jones, 5 Dowl. 503.

BOOK II

VARIATIONS IN AN ACTION ARISING FROM THE CHARACTER AND SITUATION OF THE PARTIES AND THE NATURE OF THE ACTION.

CHAPTER I.

PAUPERS.

In what cases.]-Where a party is too poor to pay the fees of court, or of his attorney and counsel, he may be admitted to sue in formâ pauperis. The courts exercise this discretionary power at common law as well as under statute; (1) but seldom in favour of defendants, (2) except in revenue and criminal cases. (3) An infant may be allowed to sue by a prochein amy and in formâ pauperis, and one motion may be made for both objects. () It seems the court will not allow the plaintiff to sue as a pauper in actions for penalties; (5) and perhaps not in actions for slander; (®) nor if he sues as executor or administrator.() The test of

(1) Brunt v. Wardle, 3 M. & Gr. 534; 4 Sc. N. R. 188; 1 Dowl. N. S. 229; 11 Hen. 7, c. 12, which enacts, "that every poor person having cause of action against any person shall have, by the discretion of the Chancellor of the Realm, writs original, &c., therefore nothing paying for the seals of the same; and that the said Chancellor shall assign such of the clerks, &c., to write the same ready to be sealed, and also learned counsel and attorneys for the same without any reward taking therefore." The 23 Hen. 8, c. 15, which first gave costs to defendants, exempts pauper plaintiffs from being liable to pay these. (2) Anon. Barnes, 328; but see Vin. Abr. "Pauper," B. 7.

(3) Attorney General v. Dummie, 2 Cr. & M. 393; R. v. Page, 1 Dowl. 507; Ibid. 536.

(4) Bryant v. Wayner. 7 Dowl. 676.

(5) Hawes v. Johnson, 1 Y. & J. 10.;

(6) Vin. Abr. "Pauper," B. 2.

(7) Paradice v. Sheppard, 1 Dick. 136; Oldfield v Cobbett, 1 Phil.

poverty is, that the plaintiff be not worth 51. beyond his wearing apparel and the subject-matter of the suit.(1) "No person shall be admitted to sue in formâ pauperis, unless the case laid before counsel for his opinion, and his opinion thereon, with an affidavit of the party or his attorney, that the same case contains a full and true statement of all the material facts to the best of his knowledge and belief, shall be produced before the court or judge to whom application may be made; and no fees shall be payable by a pauper to his counsel and attorney, nor at the offices of the Master, or Associates, or at the judge's chambers, or elsewhere, by reason of a verdict being found for such pauper, exceeding five pounds."(*) The following is a

Form of Affidavit to sue in Formâ Pauperis.

In the Q. B. ["C. P." or "Exch. of Pleas."]

Between A. B., plaintiff,
and
C. D., defendant.

I, A. B., of labourer, (3) the above-named plaintiff [or, if action not commenced, omit the title of the cause and alter accordingly], make oath and say, that I am not worth five pounds in the world, save and except my wearing apparel, and the matter in question in this cause [or "relating to the matter in dispute between me and C. D., in respect of which I am desirous of bringing an action in formâ pauperis against the said C. D.,"] and I further say that the paper writing annexed, marked A., contains a full and true statement of all the material facts relating to the said cause, to the best of my knowledge and belief, and the opinion of P. Q. Esq., barrister-at-law, thereupon, signed by him, on the Sworn, &c.

day of

A. D.

A. B.

When.]-The application may be made either before the action is commenced, or during the pendency thereof; (*) but, if during the action, the order or rule will not have a retrospective operation,() and the defendant may apply for security to be given for the costs already incurred, though he

(1) Tidd, 98; R. H. 3 & 4 Jac. 2 r. 1 a.

(2) Rule Pr. 121, H. T. 1853.

It is an irregularity to omit the addition of the plaintiff. Seymour T. Maddox, 1 L. M. & P. 543.

(4) Doe d. Evans v. Owens, 9 M. & W. 455; 1 Dowl. N. S. 404; Casey v. Tomlin, 7 M. & W. 189; 8 Dowl. 892.

(5) Doe d. Ellis v. Owens, 10 M. & W. 514; 2 Dowl. N. S. 426; Pitcher v. Roberts, 2 Dowl. N. S. 394.

must apply early.(1) If a new trial has been ordered, it is not too late then to apply.(3)

How.]-The application may be either by motion in open court, or by way of petition to the chief of the court. Part of the application is to have counsel and attorney (naming them) assigned to the plaintiff. If the motion is made in court, the affidavit, together with the case submitted to counsel, and his opinion thereon, must be produced. The petition to the chief of the court may be as follows:

Form of Petition to the Chief Justice, &c., to be admitted to Sue.

In the Q. B. ["C. P." or "Exch. of Pleas."]

Between A. B., plaintiff,

and C. D. defendant.

To the Right Hon. [name of the chief] Lord Chief Justice of Her Majesty's Court of Queen's Bench, [or “of Her Majesty's Court of the Bench," or "Lord Chief Baron of Her Majesty's Court of Exchequer, at Westminster, and the rest of the barons of the said court."]

The humble petition of A. B., of Showeth,

, labourer,

,1

That [here state cause of action against C. D., of fc.] and your petitioner is desirous of commencing an action against the said C, D. for the same, but is unable to commence [or "has commenced an action, &c., but is unable to carry on"] such action on account of his poverty, as appears by the affidavit annexed hereunto.

Your petitioner, therefore, most humbly prays your lordship, [or in Exchequer, "your honours,"] that he may be admitted to prosecute his said action in formâ pauperis, and that P. C. Esq. may be assigned to him as his counsel, and P. A., gentleman, as his attorney to prosecute the said action.

And your petitioner will ever pray, &c.

A. B.

The petition should be taken with the affidavit, and case for opinion of counsel with the opinion thereon, to the chambers of the chief justice, or baron, and his clerk will make out the order. If the motion is made in court, the rule is absolute in the first instance, (3) and need not be drawn up on reading counsel's opinion.() A copy of

(1, Jones v. Peers, McCl. & Y. 282.
(2) Hall v. Ives, 2 D. & L. 610.
(3) Hall v. Ive, 8 Scott N. R. 715.
(1) Bryant v. Wayner, 7 Dowl. 676.

the rule should be annexed to the declaration or next document delivered in the cause, and the original must be shown to the officer in the various stages where fees of court are payable.

Costs.] "A person admitted to sue in formá pauperis shall not in any case be entitled to costs from the opposite party, unless by order of the court or a judge,"(1) that is to say, when the plaintiff obtains a verdict, whether above or under 5l., he requires the order of the court or a judge to enable him to recover anything, and even then he can only recover from the defendant such costs as he has paid, or become liable to pay; but these do not in any case include a remuneration to his counsel or attorney.(2) And he cannot have the costs of his witnesses allowed, where he has not actually paid these.(3) And where he succeeds on some issues, and fails on others, he is entitled, if at all, only to the costs of such parts of the briefs, and such witnesses as were necessary for the issues on which he succeeded.(4) The costs would include the attorney's payments to the law stationer for parchment and paper, though, it seems, not for copying.(*)

On the other hand the plaintiff is not obliged to pay costs, whether interlocutory or final,() to the defendant, incurred during the time the order was in force; (7) though it is different as to the costs incurred prior to the order. Thus where, money having been paid into court before the order was obtained, defendant had obtained a verdict, the court ordered the money in court to be paid out to defendant, in satisfaction of the antecedent costs. ($) And the defendant cannot have his costs of issues set off against the plaintiff's costs of issues,(") though the costs of a former action, in which the pauper was a defendant and unsuccessful, may be set off against those of an action in which he sues as a pauper and succeeds, provided the pauper plaintiff's attorney has no lien on the costs for moneys advanced. (1)

(1) Rule Pl. 28, T. T. 1853.

(*) Dooley v. Great Northern Railway Company, 4 E. & B. 341; Rule Pr. 121, H. T. 1853, ante, p. 631.

(3) Freeman v. Rosher, 6 D. & L. 517.

Gougenheim v. Lane, 1 M. & W. 136; 4 Dowl. 482

(3) Holmes v. Penny, 9 Ex. 584.

() Pratt v. Delarue, 10 M. & W. 509; 2 Dowl. N. S. 322.

(7) 23 Hen. 8, c. 15, s. 2; Blood v. Lee, 3 Wils. 24.

(*) Casey v. Tomlin, 7 M. & W. 189; 8 Dowl. 892. (9) Foss v. Racine, 4 M. & W. 610; 7 Dowl. 203.