Majority
p. 257Thomas vs. Wilson. read an affidavit that the action was for an assault and battery; that the defendants were held to bail in the sum of $500, and that no special bail had been put in. He cited De la Preuve v. The Duc de Biron, (4 T. R. 697;) Carr v. Shaw & Price, (6 id. 496;) Grah. Pr. 507.
Headnote
A defendant who is held to bail must perfect his appearance by putting in special bail, before he can move that the plaintiff file security for costs.Where one who has commenced a suit moves for leave to prosecute informa pau* peris, he must give notice.
Whether a non-resident of the state will be allowed to sue in forma pauperis, QUEUE.
On an affidavit that the plaintiff was not a resident of this state, but a subject of the queen of England, the defendants obtained a judge’s order that the plaintiff file security for costs, or show cause at the present term.
/S'. J. Cowen, for the defendants, now moved for an order absolute.
R. Mott, contra,
The defendants should have perfected their appearance before making the motion. But they may move again after putting in bail.
Mott then moved that the plaintiff be allowed to sue informa pauperis.
Cowen objected that no notice had been given of the motion, and cited Isnard v. Cazeaux, (1 Paige, 39;) and Grah. Pr. 915.
Notice should have been given. And besides, I doubt whether a non-resident of the state should
p. 258
be allowed to sue as a poor person.[1] But it is not necessary to decide that question. It is enough that there has been no notice.
Both motions denied.
(a) (a) Statutes authorizing persons to prosecute in forma pauperis are to be construed strictly as against the applicant. (Moore v. Coonly, 2 Hill, 412 .)