have very much qualified, if not altogether overturned this decision; and the first mortgagee must be guilty of a negligence almost amounting to fraud, to be postponed to a second mortgagee in the possession of the title-deeds; but it may be contended, without militating against the decisions last referred to, that if a first mortgagee suffers the title-deeds to remain in the mortgagor's possession, where the security is small, it may amount to such gross negligence that the Court would postpone him; nor do the circumstances disclosed in the cases reported oppose this conclusion. Where a mortgagor borrows a sum relatively small to the amount of the value of the whole estate; where a party mortgages only a share of a property, as of a cargo, or where trustees have the legal custody of the deeds, or in any other case in which common prudence would not require the delivery up of the deeds, it appears unreasonable that the deeds should be required to be delivered up; but, if the amount of the first mortgage is nearly equal in value to the estate, and *the mortgagor is entitled absolutely, there seems [ *549 ] no principle why he should be suffered, by the mortgagee allowing the deeds to remain in his possession, to draw in another individual to advance further sums on the same security.

A mortgagee may refuse to part with the deeds, till the money is paid, but ought not to deny an inspection in his hands, after he has had notice to be paid off.(1)

RIGHTS OF MORTGAGEES WHERE MORTGAGED PREMISES ARE IN THE HANDS OF THIRD PARTIES.

If a sequestration is issued against, or a receiver appointed, of estates and premises, upon which persons not before the Court have claims, as in the case of a mortgagee, the usual course of the Court is to compel such mortgagee to apply to be examined pro interesse suo. In Walker v. Bell, 2 Madd. 21, where sequestrators had taken possession of certain mortgaged estates, the mortgagees on petition obtained an order to have the rents and profits of the mortgaged estates in the hands of the sequestrators applied towards payment of their mortgage

(1) Thornhill v. Evans, 2 Atk. 331.

money, and possession of the mortgaged premises given up to them; and in Thomas v. Brigstocke, 4 Russ. 64, the Court in a case where a receiver was appointed in a suit for establishing the will of the mortgagor, on the application of the mortgagee, for the rents of the mortgaged premises paid into court by the receiver, said that the mortgagee should not only have given notice to the tenants, not to pay their rents to the receiver, but ought to have followed up that notice by moving to discharge the receiver.

Eng. Chan. Reps. iii. 570.

CHAPTER XIII.

SUING AND DEFENDING IN FORMA PAUPERIS.

In what cases part of a fund in Court is advanced to enable indigent persons to sue, 550. Liberty to sue or defend in forma pauperis, 551. By next friend of infants or married women, 552. Privileges and liabilities of a pauper, 552. Costs in a pauper suit, 553. Effect of dismission of suit by a pauper, 554.

IN Peck v. Beechy, 2 Sim. 40, the Court decided that it had no authority to advance part of the fund in the cause, to enable indigent parties to prosecute their claims to it. But in Freeman v. Fairlie, Lord Eldon ordered upwards of £200 to be advanced to a party to try an issue, and Lord Lyndhurst followed his example in the same cause, for the assistance of another claimant. As a general rule, it is usual for persons in extreme poverty, to obtain an order for liberty either to sue or defend in forma pauperis, that is, without payment of any fee or reward. This order does not exempt them from paying money out of pocket for copying, paper, &c., to the officers of the Court.

The liberty to sue in forma pauperis is of much antiquity, and was permitted in proceedings in the Star Chamber.(1) In the ancient orders of the Court, a great distinction is made between suing and defending in forma pauperis. By the 98th of Lord Bacon's Ordinances, any person was admitted to defend in forma pauperis, upon oath, but plaintiffs were ordinarily referred to the Court of Requests, (*which appears to have been a [ *551 ] Court of Equity of the same nature with the Court of Chancery, but inferior to it,) or to the provincial counsel.(1) And, by an Order of 1623, a plaintiff was not allowed to sue, unless he first brought a certificate from one of the Masters of this court, both of the likely good of the merits of the cause, and also of his mean and weak state.(2)

All distinction between suing and defending in forma pauperis, appears, by the modern practice, to be disregarded

(2) Beam. Ord. 50.

(1) Beam. Ord. 44.

Eng. Chan. Reps. ii. 302.

excepting that a plaintiff is required to procure a certificate from counsel of the propriety of the suit. A plaintiff, after he has filed his bill, and procured such certificate, which is written on the petition, is allowed to obtain an order upon a petition as of course,[a] supported by affidavit, for liberty to sue in forma pauperis, and the order appoints the party a counsel, and a Six Clerk. A defendant may petition for an order to defend in forma pauperis, immediately the bill is filed, and without waiting until he has entered his appearance.[b]

The affidavit is made by the party, and not by a third person,(1) and is to the effect that such party is not worth 57., his wearing apparel and the subject-matter of the suit excepted.[c] Where the defendant was the vendor, to a

(1) Wilkinson v. Belsher, 2 Bro. C. C. 272.

[a] Where an order had been obtained, on an ex parte application, that the complainant be permitted to prosecute in forma pauperis, the same was vacated with costs. Isnard v. Cazeaux, 1 Paige, 39.

[b] Welford v. Daniell, 9 Sim. 652; S. C. 3 Lond. Jurist, 650.

It seems doubtful, in New York, whether in any case, a party can defend in forma pauperis. Though this doubt grows out of the peculiar phraseology of the statute in that state. Brown v. Story, I Paige, 588.

But in New Jersey, where it appears, by affidavit, that the defendant is not worth fifty dollars, or is a pauper, receiving support from a township, he may, upon application to the Court, have a solicitor and a counsel appointed for him, and be permitted to defend in forma pauperis, although the act of assembly extends, in terms, only to complainants. Pickle v. Pickle, Halst. N. J. Dig. 177.

Where a report has been made, that the defendant is too poor to employ a solicitor, and the defendant neglects to act upon that report, by procuring a counsel and solicitor to be assigned to him, the plaintiff may, if he choose, proceed to take the bill pro confesso. Crook v. Coop, 3 Lond. Jurist, 651. Or the plaintiff may, if he choose, apply for an order to assign counsel and solicitor to a defendant, who has been found, by the Master's report, too poor to employ a solicitor to put in his answer. Wheeler v. Cotterell, 3 Lond. Jurist, 650.

[c] In New York, it has been considered, that applications for this privilege are not to be encouraged; and that a party must be an object of charity, otherwise the privilege of suing in forma pauperis, will not be granted to him. Isnard v. Cazeaux, 1 Paige, 39. A party was dispaupered, with the costs of the application, on affidavits, which were not wholly contradicted, by the party, that he was not in bad circumstances. Romilly v. Grint, 2 Beav. 186.

The rule of permitting a party to sue or defend in forma pauperis, springs out of the benignity of the law, which provides that every man, however low and poor his station, shall be enabled to obtain the same measure of justice, as the highest and most opulent. It gives the pauper a right to come into court without expense; otherwise his poverty would preclude him from coming there; the same commiseration protects him, if unsuccessful, from payment, because such an order would serve only to imprison him interminably. M'Donough v. O'Flaherty, 1 Beat. 59.

Where a party, pending the suit, is permitted to prosecute the defence in forma pauperis, he is not excused from the payment of the costs, which accrued before he was admitted to defend in that manner. Brown v. Story, 1 Paige, 39; Jones v. Peers, 1 MCI. & You. 282.

Upon a proper application, a wife may be permitted to file a bill against her husband, for a separation, in forma pauperis. But this will not be done, until the Court has ascer tained, by the report of a Master, that she has probable cause for filing such bill. Robertson v. Robertson, 3 Paige, 387.

bill for the specific performance of an agreement to sell a small cottage, he was not allowed to defend in forma pauperis, upon an affidavit that he was not worth more than 57., except the matters in question.(1) The order for liberty to sue in forma pauperis, is that the plaintiff in respect of poverty, whereof affidavit is made, is this day admitted by the Right Honourable, &c., to prosecute this suit in forma pauperis, and who hath signed the plaintiff's petition *signifying his just ground of [*552 ] suit, is hereby assigned for his counsel, and

9

for his

Six Clerk.[a] The order to defend is drawn up in similar terms, except that the counsel is selected by the secretary from a list.

It is said that a next friend cannot sue in forma pauperis,(2) but petitions for liberty to sue in forma pauperis on behalf of the next friends, both of infants and married women are answered as of course.[b]

By Lord Clarendon's Orders it is ordained that, after an admittance in forma pauperis, no fee, profit, or reward shall be taken of such party admitted, by any counsellor or attorney, for the dispatch of the pauper's business during the time it shall depend in court, and he continued in forma pauperis, nor any contract or agreement be made for any recompence or reward afterwards.(3) But the pauper must pay for the labour of writing.(4)[c]

In pauper suits, the Court will not compel a solicitor to act for the pauper, but the course is to assign him a counsel and a Six Clerk, and it is the duty of the Six Clerk to appoint one of the sixty clerks of his office to act on the part of the pauper.(5) As a party is at liberty to apply to sue in forma pauperis, at any time during the suit, so, if he subsequently becomes of ability to sue, the Court will dispauper him. (4) If the opposite party con

[a] An order to sue in forma pauperis, is ineffectual, until served, and the party obtaining it, was held liable, on that account, to pay dives costs. Ballard v. Catling, 2 Keen, 607.

[b] Robertson v. Robertson, 3 Paige, 387. It would seem, also, that a personal repre sentative cannot sue in forma pauperis. But if a personal representative has, also, a claim, himself, as an incumbrancer, that takes the case out of the rule. Anonymous, 2 Moll. 338, (12 Eng. Ch. Rep. 487.)

[c] Philipe v. Baker, 1 Car. & P. 533, (11 Eng. Com. Law Rep. 460.)

Eng. Chan, Reps. iii. 485.