Sears v. Tindall , 15 N.J.L. 399 ( 1836 )

Hornblower, C. J.

This application must be denied. Our statute, Rev. Laws, 393, is in principle, the same, as that of 11 Hen. 7 c. 12, and the practice of the courts at Westminster Hall, under that, must regulate ours, until a new course shall be prescribed by the legislature, or until this court shall feel itself authorized to lay down new rules upon the subject. But if, as insisted by the counsel in support of the application, we ought to adopt a more liberal practice, and extend the relief contemplated by the statute, to poor persons, though not so indigent, as to swear they.are not worth five pounds sterling, excepting their wearing apparel, and the matter in question, yet this is not a ease to justify the court in establishing a new rule. The applicant says “ She is poor, and not of ability to sue according to law.” But “ poor ” is a relative term. She may be rich, compared to others; and though she says, that she is not of “ ability to sue,” yet that is only her opinion. It is plain that the court must require something specific, as to the degree of poverty, to enable it to exercise its “discretion” intelligently upon such applications. For, if wea admit every person to sue in forma pauperis, who will make oath that he is “ poor ”. and not of “ sufficient ability,” we shall encourage litigation, and the bar will have more poor clients, than ever. Five pounds sterling, may be too small a sum, but there should be some limit, and I am not sure that sound discretion would prescribe a much larger sum, than the old rule requires.

An application to sue in this form, may, and under our statute perhaps ought always, to be on motion in court; but then we ought to be informed, as is done, when the proceedings are by-petition, in England, 2 Arch. Pr. eh. IB, p. 154, of the cause of action, &e. so that the court can judge whether it is a case of sufficient importance to justify the exercise of its powers under the statute. But in the case before us, we are ignorant of the cause of action, and the extent of the claim. All we know is, that the applicant sued Tindall in a court for the trial of small causes, and recovered a judgment for something, which upon an appeal, the Court of Common Pleas reversed. She now seeks to be permitted to sue out a certiorari to remove the proceedings into this court, in forma pauperis. It was said by Nokth, Justice, in Mod. 268, that “paupers ought not to be permitted to remove causes out of Inferior Courts; but ought to satisfy themselves with the jurisdiction within which their actions properly lie.” But I do not go upon that ground, such a rule if it exists in England, is not applicable here. Our courts for the trial of small causes, have jurisdiction to a large amount in comparison to the sums cognizable before Inferior Courts in England; and a poor person, who has a just claim for fifty or an hundred dollars, is as much entitled to gratuitous relief, as if his demand was for a larger sum. My difficulty is, that the applicant has not given us sufficient information, as to her poverty, and. the nature and extent of her claim, to enable us, to exercise a sound discretion in the matter.

Rule refused.

Ford and R ver son, J ustices, concurred.