Majority
p. 679Steele vs. Mott. read an affidavit showing that the cause was not tried in consequence of the absence of a witness who had been duly subpoenaed, and that a stipulation to try at the next circuit had been delivered to the defendant’s attorney since notice was given of this motion.
Headnote
A plaintiff suing in forma pauperis, is not liable to costs for not proceeding to trial pursuant to notice; nor is he, it seems, liable to costs under any circumstances, until he is dispaupered. The order allowing him to sue asa poor person will be annulled on motion, upon cause shown, and then he will be liable to costs in the same manner as though the order had never been made.P. Cagger, for the defendant,
moved for judgment as in case of nonsuit, for the neglect of the plaintiff in not trying the cause pursuant to notice. The plaintiff sued in forma pauperis; but it was insisted that he was liable to costs for his defaults, although not liable for the final costs of the cause.
I. Williams, contra,
The defendant has, already, a stipulation that this cause shall be tried at the next circuit, and the default at the last is fully excused. The plaintiff is not liable for costs until he is dispaupered. 1 Bos. & Pull. 39. 2 Stra. 1121. 3 Wils. 24. Our statute has not given a different rule. 2 R. S. 445, § 5. Should the plaintiff be guilty of improper conduct in the prosecution of the suit, or of any wilful or unnecessary delay, the order allowing him to sue as a poor person will be annulled on motion, and he will then be liable to costs in the same manner as though the order had never been made.
Motion denied.