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petition before the filing of a bill. The objection, that a party who has proceeded by a petition should have filed a cross-bill, a supplemental bill, or a supplemental answer, is too late when not taken till after an answer to the petition and a decree thereupon. A paper improperly styled a petition may, if it contains the necessary allegations, be sustained as a dependent original bill.10

§ 200. Petitions for leave to sue in forma pauperis at common law and in equity.-"The right to sue in forma pauperis originated in the statute of Hen. VII. This and the subsequent statute of Hen. VIII. are confined to actions in the courts of common law, and do not extend to defendants. The courts of equity have adopted the principle of these statutes, and, proceeding further, have extended the relief to the case of defendants."1

The act of July 20, 1892, provides "that any citizen of the United States, entitled to commence any suit or action in any court of the United States, may commence and prosecute to conclusion any such suit or action without being required to prepay fees or costs, or give security therefor before or after bringing suit or action, upon filing in said court a statement under oath, in writing, that, because of his poverty, he is unable to pay the costs of said suit or action which he is about to commence, or to give security for the same, and that he believes he is entitled to the redress he seeks by such suit or action, and setting forth briefly the nature of his alleged cause of action." "That the officers of the court shall issue, serve all process, and perform all duties in such cases, and the witnesses shall attend as in other cases, and the plaintiff shall have the same remedies as are provided by law in other cases." 3 "That the court may request any attorney of the

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8 Mayor of London v. Bolt, 5 Ves. 129; Daniell's Ch. Pr. (2d Am. ed.) 1801. 9 Kelsey v. Hobby, 16 Pet. 269, 277; Coburn v. Cedar V. C. & L. Co., 138 U. S. 196, 222.

10 Central Tr. Co. of N. Y. v. Marietta & N. G. R. Co., 63 Fed. R. 492.

§ 200. 1 Lord Lyndhurst in Oldfield v. Cobbett, 1 Phil. 613, 615. See Ferguson v. Dent, 15 Fed. R. 771.

227 St. at L., p. 252. Before this act, the Federal courts followed the English practice in equity, Ferguson v. Dent, 15 Fed. R. 771; not at common law, Roy v. Louisville, N. O. & T. R. Co., 34 Fed. R. 276; but in the absence of a State statute, which it followed, Heckman v. Mackey, 32 Fed. R. 57.

3 Ibid.

court to represent such poor person if it deems the cause worthy of trial, and may dismiss any such cause so brought under this act if it be made to appear that the allegation of poverty is untrue, or if said court be satisfied that the alleged cause of action is frivolous or malicious." "That judgment may be rendered for costs at the conclusion of the suit as in other cases: Provided that the United States shall not be liable for any of the costs incurred."5

The English practice required that such an application be made by a petition containing a short statement of his case or defense, and when filed by a complainant that it should be accompanied by a certificate signed by counsel, "that he conceives the plaintiff has just cause to be relieved touching the matter of the petition for which he has exhibited his bill;" and also in all cases by the affidavit of the party himself "that he is not worth in all the world the sum of 57. after payment of his just debts, his wearing apparel and the matters in question in the cause only excepted." It seems, that, under the statute of the United States, the application may be made upon a motion and affidavit without a petition or a certificate of counsel, although a prudent practitioner should not omit them. The affidavit, when filed by the plaintiff, should show that he is a citizen, and that there is no person interested who is able to pay or secure the costs. An attorney who had contracted to bring a suit upon a contingent fee was held to be such an interested person. Where the plaintiff sued in a representative capacity, it was held that he must show that those whom he represented were unable to pay the costs. According to the English practice, a person suing or being sued in a representative capacity could not obtain an order of this character. 10 A person may take an appeal to the Supreme Court" or to a Cir

4 Ibid.

5 Ibid.

6 Daniell's Ch. Pr. (2d Am. ed.) 46; Wilkinson v. Belsher, 2 Brown, Ch. C. 272.

10 Oldfield v. Cobbett, 1 Phil. 613; Daniell's Ch. Pr. (2d Am. ed.) 44; Anon., 1 Ves. Jr. 409. But see Thompson v. Thompson, cited in 1 T. & V. Ch. Pr. 513; Ferguson v. Dent, 15

7 Boyle v. Great N. Ry. Co., 63 Fed. Fed. R. 771; Clay v. Southern Ry.

R. 539.

8 Ibid.

Co. (C. C. A.), 90 Fed. R. 472.

11 In re Mills, 135 U. S. 263; Fuller

9 Clay v. Southern Ry. Co. (C. C. A.), v. Montague, 53 Fed. R. 206. 90 Fed. R. 472.

13 in

cuit Court of Appeals," or sue out a writ of habeas corpus the Supreme Court, in forma pauperis. After such an appeal from a decree sustaining a demurrer, it was held to be too late to move to dismiss the case for a defect in the affidavit upon the original application for leave to sue.1 An appeal in forma pauperis was not allowed when it was plainly without merit.15

In England the counsel and solicitor assigned could not take any fee, profit, or reward of the pauper for the despatch of business, while the cause was pending and the party continued in forma pauperis, except paupers' fees, which were twopence a sheet for the labor of copying.16 Nor could any agreement be made for the payment of any recompense afterwards." For an offense in either of these respects, both the lawyer and the client were guilty of contempt of court; and the client was dispaupered, and forever disqualified from suing as a pauper in the same suit.18 When it was made to appear to the court that a pauper had sold or contracted for the benefit of his suit, or any part thereof, while the same was depending, his suit was dismissed absolutely.19 No fees except paupers' fees could be collected from the pauper, nor could costs be decreed against him,20 except for scandal. In case of success, however, the court might allow him full costs. "For though he is at no costs, or but small expense, yet the counsel and clerks do not give their labor to the defendant, but to the pauper."" The order permitting a party to sue or defend in forma pauperis had to be served upon the opposite party as soon as possible. For the pauper was liable for all costs decreed against him be

12 Fuller v. Montague (C. C. A., 1st Ct.), 53 Fed. R. 206; Columb v. Webster Mfg. Co., 76 Fed. R. 198. Contra, The Presto (C. C. A., 5th Ct.), 93 Fed. R. 522. See Wickelman v. A. B. Dick Co. (C. C. A.), 85 Fed. R. 851; Brinkley v. L. & N. R. Co., 95 Fed. R. 345, 354.

13 In re Mills, 135 U. S. 263.

14 Fuller v. Montague, 53 Fed. R. 206. 15 Brinkley v. Louisville & N. R. Co., 95 Fed. R. 345, where there is a learned and instructive opinion by Judge Hammond upon the whole subject of this section.

16 Daniell's Ch. Pr. (2d Am. ed.) 47. 17 Ibid.

18 Ibid.

19 Ibid.

20 Ibid.; Scatchmer v. Foulkard, 1 Eq. Cas. Abr. 125.

21 Rattray v. George, 16 Ves. 232. See also Murphy v. Oldis, 2 Molloy, 475; Richardson v. Richardson, 5 Paige (N. Y.), 58.

22 Scatchmer v. Foulkard, 1 Eq. Cas. Abr. 125; Rattray v. George, 16 Ves. 232; Daniell's Ch. Pr. (2d Am. ed.) 49, 50.

fore the service of the order. A party could be dispaupered for improper or vexatious conduct in the suit.24

§201. Petitions of intervention.- A petition of intervention is filed in a pending cause by a person who is not a party to it; and prays permission to intervene and become a party, either plaintiff or defendant. The general rule is that the court has no power to allow a stranger to a cause "to be heard therein either by petition or motion, except in certain cases arising from necessity, as where the pleadings contain scandal against a stranger, or where a stranger purchases the subject of litigation pending the suit, and the like." But persons be

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longing to a class represented in the suit are regarded as quasiparties; and for that reason they are often allowed to intervene. In a suit brought by a member of a class on behalf of himself and others similarly interested, another member of the class who desires the success of the complainant can always intervene, even after a decree for a sale, provided there has been no distribution of the assets," upon payment of his share of the costs, expenses, and reasonable counsel fees which have been previously paid or incurred. It has been held that, where a creditor delays his intervention until after a decision in favor of the plaintiff, the payment of his claim will be postponed until after those who have conducted the litigation have received full satisfaction. Ordinarily an intervenor in a suit

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23 Ballard v. Catling, 2 Keen, 606. 24 Wagner v. Mears, 3 Sim. 127.

201. 1 Bradley, J., in Anderson v. Jacksonville, P. & M. R. Co., 2 Woods, 628, 629. See also Searles v. Jacksonville, P. & M. R. Co., 2 Woods, 621, 625; Shields v. Barrow, 17 How. 130, 145; Bronson v. Railroad Co., 2 Black, 524; Coleman v. Martin, 6 Blatchf. 119; Drake v. Goodridge, 6 Blatchf 151; Page v. Holmes B. A. Tel. Co., 18 Blatchf. 118.

2 Fidelity Tr. & S. D. V. Co. v. Mobile S. Ry. Co., 53 Fed. R. 850.

3 Forbes v. Memphis, El P. & P. R. Co., 2 Woods, 323. The right was denied where the petitioner acquired his claim pending the suit. Terry v. Bank of Cape Fear, 20 Fed. R. 777. Cf. Davis v. Sullivan, 33 N. J. Eq. 569.

4 Ogilvie v. Knox Ins. Co., 2 Black, 539; s. c., 22 How. 380; Myers v. Fenn, 5 Wall. 205; Ex parte Jordan, 94 U. S. 248; First Nat. Ins. Co. v. Salisbury, 130 Mass. 303; Hallett v. Hallett, 2 Paige (N. Y.), 432; Leigh v. Thomas, 2 Ves. Sen. 312; Story's Eq. Pl., § 99. 5 George v. St. Louis C. & W. Ry. Co., 44 Fed. R. 117.

6 Central R. Co. v. Pettus, 113 U. S. 116; Trustees v. Greenough, 105 U. S.

527.

7 Smith v. Kraft, 11 Biss. 340; Jones v. Davenport, 45 N. J. Eq. 77, 87. Cf. McDermott v. Strong, 4 J. Ch. (N. Y.) 687; Edmiston v. Lyde, 1 Paige (N. Y.), 639. But see Wilder v. Keeler, 3 Paige (N. Y.), 164; Strike's Case, 1 Bland (Md.), 57

brought on behalf of a class will be joined as plaintiff.

If he

is a citizen of the same State as one of the defendants, that will not in most, if in any, cases deprive the court of jurisdiction.3 If there should be any danger that it would, he may be joined as a defendant. If he intends to act in hostility to the original complainant, the court may, in its discretion, add him to the defendants.10

In suits brought by or against a trustee, or otherwise affecting trust property, the beneficiaries of the trust, such as holders of bonds secured by a railroad mortgage, may be allowed to intervene for the purpose of protecting their interests; " but ordinarily the right to intervene will be denied them in the absence of fraud, neglect, inability, collusion or bad faith by the trustee. Where a trustee represents bondholders under different mortgages with conflicting interests; or where, if a corporation, one of its officers or directors or controlling stockholders or counsel is a member of a reorganization committee which intends to buy the mortgaged property or is interested in a large claim against it, the trustee is under such disability to exercise unbiased judgment that an intervention should always be allowed. When there is a substantial dispute between the bondholders as to the policy to be pursued, it is also proper to allow the intervention of committees representing

8 Stewart v. Dunham, 115 U. S. 61. But see Mangels v. Donau Br. Co., 53 Fed. R. 513.

senting; Farmers' L. & Tr. Co. v. Kansas City, W. & N. W. R. Co., 53 Fed. R. 182; Clyde v. Richmond & D.

9 Brown v. Pac. M. S. S. Co., 5 R. Co., 55 Fed. R. 445. See supra, Blatchf. 525, 535.

10 Galveston R. Co. v. Cowdrey, 11 Wall. 459, 478; Forbes v. Memphis, El P. & P. R. Co., 2 Woods, 323.

11 Williams v. Morgan, 111 U. S. 684; Drew v. Harman, 5 Price, 319; Saylors v. Saylors, 3 Heisk. (Tenn.) 525; Birdsong v. Birdsong, 2 Head (Tenn.), 289; Carter v. New Orleans, 19 Fed. R. 659; Farmers' L. & Tr. Co. v. Mo. I. & N. Ry. Co., 21 Fed. R. 264; Farmers' L. & Tr. Co. v. No. Pac. R. Co., 66 Fed. R. 169.

12 Richards v. Chesapeake & O. R. Co., 1 Hughes, 28, 36; Skiddy v. Atlantic, M. & O. R. Co., 3 Hughes, 320, 350-352, per Bond, J., Hughes, J., dis

§ 171.

13 Farmers' L. & Tr. Co. v. Nor. Pac. R. Co., 66 Fed. R. 169; Farmers' L. & Tr. Co. v. Cape Fear & Y. V. Ry. Co., 71 Fed. R. 38; Grand Tr. Ry. Co. v. Central Vt. Ry. Co., 88 Fed. R. 622; Fowler v. Jarvis-Conklin M. Tr. Co., 64 Fed. R. 279; Hamlin v. Toledo, St. L. & K. C. R. Co., 78 Fed. R. 664, 672. But see Clyde v. Richmond & D. R. Co., 55 Fed. R. 445. A provision in the mortgage, that no holder can sue to foreclose until after a refusal by the trustee, does not preclude the intervention of a bondholder. Farmers' L. & Tr. Co. v. Nor. Pac. R. Co., 66 Fed. R. 169.

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