Effect of the order.

c. Effect of the order. Any person who has thus obtained leave to sue in forma pauperis may prosecute his suit without paying any fees to any officers or ministers of justice, and cannot be prevented from so prosecuting by reason of his being liable for the costs of any former suit brought by him against the same defendant; and, if he is nonsuited, or a verdict or judgment is given against him, or his complaint is dismissed, or a decree rendered against him, he will not be liable for any costs in such suit. 2 R. S. 445, § 4 (464).

In ordinary cases a defendant against whom suit is brought, and to whom the plaintiff therein is indebted for the costs of a former suit, may obtain a stay of proceedings in the second suit until the costs of the first are paid, in all cases where both actions are in the same form, as where both are legal, or both are equitable. The provisions of this statute, however, expressly exempt paupers from the operation of this rule. Kerr v. Davis, 7 Paige, 54; Roberti v. Carlton, 18 How. 466..

Under the English practice, in cases of great vexation (but in such cases only), if a second suit be instituted for the same purpose for which the plaintiff formerly litigated in forma pauperis, proceedings in such second suit will be stayed until the costs of the former suit have been paid, even though the plaintiff may not have been dispaupered in such former suit. Corbett v. Corbett, 16 Ves. 407; Wild v. Hobson, 2 V. & B. 112; Bowyer v. McEvoy, 1 Ball. & Bea. 56, 562.

The exemption of the plaintiff from all costs that may accrue while prosecuting as a poor person is absolute from the time of the granting of the order until its revocation for misconduct or mismanagement in the suit. Thus, the plaintiff will not be liable to costs for not proceeding to trial pursuant to notice, if the order granting him leave to prosecute as a poor person has not been revoked. Steele v. Mott, 20 Wend. 679; Rice v. Brown, 1 Bos. & Pul. 39; Doe v. Trussell, 6 East, 505; Brittain v. Greenville, 2 Stra. 1121; Taylor v. Lowe, id. 983; Blood v. Lee, 3 Wils. 24. While the plaintiff will not be required to pay costs on his own. default he may, however, receive costs for the default of the defendant. Rice v. Brown, 1 Bos. & Pul. 39. But the amount of costs that shall be awarded to a poor person suing as such is subject to the discretion of the court, and depends upon the circumstances of each case. Rattray v. George, 16 Ves. 232. Thus, a plaintiff suing in forma pauperis, and recovering a legacy

Effect of the order - Actions by the Attorney-General.

against executors, is entitled only to the actual costs or expenses of the suit, to be paid out of the assets. Williams v. Wilkins, 3 Johns. Ch. 65. So, a plaintiff suing as a poor person will not be allowed interlocutory costs where he has no reasonable hope of succeeding on the merits. Bolton v. Gardner, 3 Paige, 273. But full costs will be allowed on an appeal, as an appeal cannot be prosecuted in forma pauperis, and the parties to the appeal stand on an equal footing so far as relates to the right to costs. Ib.

The exemption of the plaintiff from liability to costs was held before the statute to date only from the granting of his petition to prosecute as a poor person. If the application was made during the pendency of the action, he was held liable for such costs as had previously accrued. Brown v. Story, 1 Paige, 588; Filewood v. Cousens, 1 Addams, 288. But, since the Revised Statutes, it is declared that the pauper shall not be liable for any costs in such suit. 2 R. S. 445, § 4 (464). Whether this general language has changed the practice as to costs already accrued has not been decided by the courts.

The proceedings in an action brought by a poor person, as such, are the same as in actions brought by any other person. Code, § 471.

d. Revocation of order. The statute further provides that, if the person prosecuting in forma pauperis be guilty of any improper conduct in the prosecution of his suit, or of any willful or unnecessary delay, the court may, in its discretion, annul the order admitting him to prosecute as a poor person; and he shall thereafter be deprived of all the privileges conferred by such order. 2 R. S. 445, § 5 (464). Thus, on the revocation of the order, the plaintiff will be liable for costs in the same manner and to the same degree as though the order had never been made. Steele v. Mott, 20 Wend. 679.

ARTICLE VIII.

ACTIONS BY THE ATTORNEY-GENERAL.

Section 1. In general.

a. To annul a corporation. An action may be brought by the attorney-general, in the name of the people, on leave granted by the supreme court, or a judge thereof, for the purpose of vacat

Actions by Attorney-General-Remedy if leave not obtained.

ing the charter of a corporation (other than municipal), whenever such corporation shall (1) offend against any of the provisions of the acts creating, altering or renewing such corporation; or, (2) violate the provisions of any law by which such corporation shall have forfeited its charter by abuse of its powers; or, (3) whenever it shall forfeit its privileges or franchises by failure to exercise its powers; or, (4) whenever it shall do any act which amounts to a surrender of its corporate rights; or, (5) whenever it shall exercise a franchise or privilege not conferred on it by law. Code, § 430. See People v. Lowber, 28 Barb. 65; S. C., 7 Abb. 158; People v. Erie Railway Co., 36 How. 129; Smith v. Metropolitan Gaslight Co., 12 id. 187.

b. Leave, how obtained. Leave to bring an action will be granted on an application of the attorney-general. Notice of such application may or may not be given to the corporation, according as the court or judge shall direct. Code, § 431. Such application should be made in a manner analogous to that of other officers of the court seeking its direction.

c. For intrusion into office. The foregoing provisions do not apply to suits by the same officer under the 432d and following sections of the Code. In those cases it is for the attorney-general, and not for the supreme court, to determine whether, in any particular case, an action should be brought to try the right to an office. People v. Attorney-General, 22 Barb. 114; 13 How. 179; 3 Abb. 131.

ARTICLE IX.

REMEDY WHEN ACTION COMMENCED WITHOUT LEAVE OBTAINED.

Section 1. Receiver. If an action is commenced against a receiver without leave of court, he may have a perpetual injunction against the suit. De Groot v. Jay, 9 Abb. 364; 30 Barb. 483.

Section 2. Judgments. See ante, 193, art. II, § 3.

Section 3. Lunatics. See ante, 202, art. V, § 2 (b).

Notice and demand, or request before action.

ARTICLE X.

NOTICE AND DEMAND, OR REQUEST BEFORE ACTION.

Section 1. Notice.

a. In general. In many cases it is advisable, if not necessary, to give notice, make demands, and require explanations before commencing an action; such a course will often prevent litigation, but if that has to be resorted to, the party may so place himself in the right, that on this account alone he will obtain the favor of the court and jury, and, in some cases, throw the costs upon the opposite party. On the other hand, if such a course is not pursued, that fact will often render the party liable to an action, which otherwise could not have been sustained.

b. Receiver. A receiver cannot maintain an action for rent against a tenant of the estate in his possession, until he has notified such tenant of his appointment, or has demanded the rent. Hunt v. Wolfe, 2 Daly, 298.

c. Undertaking on appeal. So an action cannot be commenced on an undertaking given on appeal from a judgment to the general term, until ten days after the service of notice on the adverse party, of the entry of the order or judgment of affirmance. Code, $348.

d. Nuisance. So it has been held that an action against the continuator of a private nuisance, originally erected by another, cannot be maintained, unless the plaintiff has notified the defendant of its existence and requested him to remove it. Hubbard v. Russell, 24 Barb. 404; but on this point see Cohocton Stone Co. v. Buffalo, New York & Erie Railroad Co., 52 Barb. 390; Brown v. Cayuga & Susquehanna Railroad Co., 12 N. Y. (2 Kern.) 486 (492).

e. Sheriff. So also, notice not to sell is necessary to render a sheriff liable for the levy and sale of goods belonging to another than the defendant. Dean v. Whittaker, 1 Carr. & P. 347.

Section 2. Demand or request.

a. When necessary. A demand or request is only necessary when the object of it is to oblige another person to do some act. Amory v. Broderick, 2 Chit. 329. So, where the defendant is liable, without such request, none need be made. Smith v. Emery, 7 Halst. 53, 61. And so, where the payment of a mere

Corporation of New York-Note-Guarantor.

duty is promised, no request is necessary. Birks v. Trippet, 1 Saund. 28 (d).

b. Corporation of New York. No proceedings can be taken against the corporation of New York until the plaintiff has presented his demand to the comptroller for adjustment, and has made a second demand in writing, upon that officer, after the expiration of twenty days from the first presentation of the claim. Laws of 1860, ch. 379, § 2.

c. Note. So, a demand of payment is a prerequisite to an action on a note, payable after demand. Thorpe v. Booth, 1 R. & M. 388; or, at a particular place. Ferner v. Williams, 14 Abb. 215; 37 Barb. 9. But where the place of demand is at a bank, see Hill v. Place, 5 Abb. N. S. 18; 36 How. 26; 7 Rob. 389.

If a note is payable on demand generally, an action may be commenced on it without a previous demand. Hirst v. Brooks, 50 Barb. 334; Haxton v. Bishop, 2 Wend. 13; Pierce v. Forthergill, 2 Bing. (N. C.) 567; 1 Hodges, 251; 2 Scott, 334. See Second Avenue R. R. Co. v. Coleman, 24 Barb. 300. So, in the case of a joint note executed by the principal debtor and another, as his surety. Ex parte Whitworth v. Mayor, 2 Mon. D. & D. 8, 158 (164).

d. Guarantor. A demand of the principal debtor is necessary to render one liable who merely guarantees a debt, which it is the duty of the creditor to collect. Milliken v. Byerly, 6 How. 214.