Patents for Inventions. as well as heir to A as to all other collateral and lineal ancestors, provided it shall not restore B to any of the lands of A forfeited by the attainder; B dies without issue; it was ruled, that the lands of B shall descend to the sisters of A, as aunts and collateral heirs of B. 1st, Because the corruption of blood by the attainder is removed by the restitution. 2dly, Although the words of the act of restitution be to restore B only as heir to A, &c., yet this doth not only remove the corruption, and restore him and his lineal heirs in blood, but also his collateral heirs, and removes that impediment which would have hindered the descent to them. 3 Inst. 233; Hal. Hist. P. C. 358, 359. The 8 Geo. 3, c. 15, (one of the statutes providing for the transportation of offenders,) provides that "such transportation" shall have the effect of a pardon under the great seal. To an action on a bill of exchange the defendant pleaded in bar that the plaintiff before the date of the bill had been convicted of felony and sentenced to death, that his majesty had extended his mercy to the plaintiff on condition of his being transported for life, whereupon the court gave judgment of transportation according to the form of the statute. Replication, that before the cause of action accrued the plaintiff was in due manner transported. Rejoinder, that after the plaintiff was so transported he was unlawfully at large in England. Sur-rejoinder, that before the cause of action accrued the Governor of New South Wales (being duly authorized) had remitted the remainder of the plaintiff's term of transportation, whereby the plaintiff was lawfully at large, and traversing that he was unlawfully at large. The defendant demurred to the sur-re-. joinder, and on argument the case turned principally on the meaning of the word "transportation" in the clause of the statute which gives it the effect of a pardon. And the court held that the word meant, not merely the conveying the party to the place of transportation, but also the remaining there during the period mentioned in the sentence; and therefore that the plaintiff, not having fulfilled this condition, was still in the situation of an attainted felon, and had not regained his civil rights, either by merely being transported, or by a remission of the governor, which had not the effect of a general pardon; and judgment was given for the defendant. 8 G. 3, c. 15; Bullock v. Dodds, 2 Barn. & A. 258.|| PATENTS FOR INVENTIONS. See MONOPOLY; PREROGATIVE, (F 4.); and General Index, h. t.g PAUPER. (A) Of the Right to sue in formâ Pauperis, and the Manner of Admittance. (B) Whether a Defendant may be allowed to defend, as well as a Plaintiff to sue in formâ Pauperis. (C) In what Cases to be so admitted. (D) In what Cases to be dispaupered, and to pay Costs. (A) Of the Right to sue in formâ Pauperis, and the Manner, of Admittance. By the 11 Hen. 7, c. 12, it is enacted in the words following, "Prayen the Commons in this present parliament assembled, that where the king our sovereign lord, of his most gracious disposition, willeth and intendeth indifferent justice to be had and ministered according to his common laws to all his true subjects, as well to the poor as rich, which poor subjects be not of ability ne power to sue according to the laws of this land, for the redress of injuries and wrongs to them daily done, as well concerning their persons and their inheritance as other causes; for remedy whereof, in the behalf of the poor persons of this land not able to sue for their remedy after the course of the common law, be it ordained and enacted, that every poor person or persons, which have or hereafter shall have cause of action or actions against any person or persons within this realm, shall have, by the discretion of the chancellor of this realm for the time being, writ or writs original and writs of subpoena, according to the nature of their causes, therefore nothing paying to your highness for the seals of the same, nor to any person for the writing of the same writs to be hereafter sued; and that the said chancellor for the time being shall assign such of the clerks, which shall do and use the making and writing of the same writs, to write the same ready to be sealed; and also learned counsel and attorneys for the same, without any reward taking therefore; and after the said writ or writs be returned, if it be before the king in his bench, the justices there shall assign to the same poor person or persons' counsel learned, by their discretions, which shall give their counsel, nothing taking for the same; and likewise the justices shall appoint attorney and attorneys for the same poor person or persons, and all other officers requisite and necessary to be had for the speed of the said suits to be had and made, which shall do their duties without any reward for their counsels, help, and business in the same; and the same law and order shall be observed and kept of all such suits to be made afore the king's Justice of his Common Place and Barons of his Exchequer, and all other justices in the court of record where any such suit shall be." Before a person is admitted to sue in forma pauperis, he must have a counsel's hand to his petition, certifying the judge to whom the petition is directed, that he conceives the petitioner hath good cause of action: (a) he must also annex an affidavit (b) to his petition, that he is not worth 51. all his debts paid, except wearing apparel and his right to the matter in question. Lil. Reg. 633. [(a) The same is necessary to entitle prosecutors to prosecute in (B) Whether a Defendant may be allowed to defend, as well as Plaintiff, &c: forma pauperis. 3 Burr. 1308. (b) This affidavit must be made by the party himself, not by a third person. Wilkinson v. Belsher, 2 Bro. Ch. R. 272.] {See 11 Ves. J., 49, Spencer v. Bryant.} On a motion to dispauper a person who was plaintiff in an action because he had a living of 40l. per annum; Turton and Gould, Js., were against it, because he swore he was in debt more than it was worth; but Holt, C. J., differed from them; for his being indebted, or his estate being mortgaged, is no reason; it is enough that he has a considerable estate in possession. 2 Salk. 507, pl. 2. A person admitted to sue in forma pauperis can only sue in that cause for which he is admitted; so that if any other cause arises, he must sue de novo to be admitted, et sic toties quoties. Lil. Reg. 633. [The admission in one court is not binding on the officers of another court; and therefore if an issue out of Chancery where the plaintiff had been admitted in formâ pauperis, comes to be tried in K. B., he must be admitted there also. Gibson v. M.Carty, Ca. temp. Hardw. 311 The admission to sue in forma pauperis may be either at the commencement of the suit, or afterwards pendente lite. Say, Costs, 90; 3 Wils. 24; Andr. 306; ||M'Clell. & Y. 282.|| A person suing in forma pauperis is not entitled to the issue-money. (B) Whether a Defendant may be allowed to defend, as well as a Plaintiff to sue in formâ Pauperis. Ir seems that after the statutes which introduced costs, neither plaintiffs nor defendants could sue or defend in forma pauperis: for that would be a means of depriving the other party of the costs given him by statute; and as the above-mentioned statute 11 H. 7, c. 12, enables persons only to sue as paupers; and as the statute 23 H. 8, c. 15, hereafter set forth, excepts only plaintiffs who are paupers from paying costs, it seems, that a defendant cannot be admitted in a civil action to defend as a pauper. But it hath been (a) adjudged, that a person may be admitted to defend an indictment in forma pauperis for a misdemeanor, such as a conspiracy, keeping a disorderly house, &c.; for in such proceedings there being no costs, the judges have a discretionary power of admitting or refusing them by the common law. (a) Pasch. 9 G. 2, King v. Wright, 2 Stra. 1041. Also by the 2 Geo. 2, c. 28, § 8, it is enacted, "That in case any person, arrested and imprisoned by virtue of any writ of capias or information relating to the customs, shall make affidavit before the judge or judges of such court where such action or information shall be brought, or before any other person commissioned by such court to take affidavits, that he is not worth, over and above his wearing apparel, the sum of 5l., (which affidavit the said judge or judges of such court, and such person so commissioned, is and are hereby authorized and required to take,) and such person shall thereupon petition such court to be admitted to defend himself against such action or information in forma pauperis, that then the judges of such court shall, according to their discretions, admit such person to defend himself against such action or information in the same manner, and with the same privileges (D) In what Cases to be dispaupered, and to pay Costs. as the judges of such court are by law directed and authorized to admit poor subjects to commence actions for the recovery of their right; and for that end and purpose it shall be lawful for the judges of such courts to assign counsel learned in the law, and to appoint an attorney and clerk of such court to advise and carry on any legal defence that such person can make against such action or information; which said counsel, attorney and clerk so assigned and appointed, is and are hereby required to give his and their advice and assistance to such person, and to do their duties without fee or reward." [A defendant upon an attachment for a contempt will not be admitted to defend in forma pauperis. Rex v. Pearson, 2 Burr. 1039. A person convicted of perjury, and outlawed for forgery, was admitted, no cause being shown to the contrary, to plead the king's pardon in formå pauperis. Rex v. Morgan, Stra. 1214.] If a pauper be admitted to defend a suit in chancery in forma pauperis, his solicitor can only recover of him money actually paid out of pocket for defence of the suit. 1 Car. & Pa. 533.|| (C) In what Cases to be so admitted. It is said that none ought to be admitted to sue in forma pauperis in an action on the case for words. Lil. Reg. 633, per Wild. Also it is said that a person who sues in forma pauperis ought not to have a new trial granted him; because having had once the benefit of the king's justice, he ought to acquiesce in it.(a) Mod. 268, per North. (a) Sed qu. If this is not discretionary in the court, and more especially if the plaintiff will consent to pay the costs? And it is said that paupers ought not to be admitted to remove causes out of inferior courts, but ought to satisfy themselves with the jurisdiction within which their actions properly lie. 12. Mod. 268, per North. It seems that an action for penalties is not within the statute 11 H. 7, c. And if it appear that the plaintiff has no meritorious cause of action, the court will discharge an order authorizing him to sue in formâ pauperis ; though a judge's order for that purpose must be made a rule of court before the court will entertain a motion to discharge it. Hawes v. Johnson, 1 Younge & J. 10.|| (D) In what Cases to be dispaupered, and to pay Costs. By the orders of the courts, if the party admitted to sue in formâ pauperis give any fee or reward to his counsel or attorney, or make any contract or agreement with him, he shall from thenceforth be dispaupered, and not be afterwards admitted again in that suit to prosecute in formâ pauperis. Ord. Cur. 94. {See farther title Costs, E. 4.} Also if it shall be made appear to the court that any person prosecuting in forma pauperis hath sold or contracted for the benefit of the suit, or any (D) In what Cases to be dispaupered, and to pay Costs. part thereof, while the same depends, such cause shall be from thenceforth totally dismissed the court. Ord. Cur. 95. It is said that if a pauper gives notice of trial and does not proceed, he shall be dispaupered. 2 Salk. 506, pl. 1; ||6 East, 505.|| In the statute 23 H. 8, c. 15, there is a provision, "That whoever sues in forma pauperis shall (a) not pay costs, but shall suffer such other punishment as the judge of the court shall think fit." (a) Though lands descend to him after cause tried, yet he shall not pay costs. Mod. Rep. in Law and Eq. 344. But, notwithstanding this statute, if he be dispaupered or nonsuited, the (b) usual practice is to tax the costs, and for non-payment to order him to be whipped. 2 Salk. 506, pl. 1; Style, 386. (b) But though the usual course in such cases is to tax the costs, and if not paid to whip the plaintiff, yet upon consideration of the circumstances of the case, it is in the discretion of the court to spare both. Sid. 261. And per Holt, C. J., on motion to whip a pauper who had been nonsuited. There is no officer for that purpose, nor did he ever know it done. 2 Salk. 506, pl. 1. [In Solomon v. Agnel, Fortesc. 320, it was holden, that a pauper, though dispaupered, should not pay costs; and if taken in execution for costs he should be discharged on motion.] A brought in a bill formâ pauperis, to which the defendant put in a plea and demurrer, which were both overruled; and it was insisted upon that he should have no costs, being at none: but my Lord Somers, after long debate and inquiry of all the ancient counsel and clerks, who agreed that he should have costs, ordered him his costs (c) like other suitors: for though he is at no costs, or but small costs, yet the counsel and clerks do not give their labour to the defendant but to the pauper. Abr. Eq. 125. (c) But vide Preced. in Chan. 219, where a pauper having a decree to recover with costs, it was held on motion per curiam to be unreasonable that any one should have more costs than he was out of pocket; and thereupon ordered the plaintiff and his solicitor to make oath before the Master, and what they swore they had paid, or were to pay, was to be allowed, but no farther.Costs cannot be given against a pauper lessor of the plaintiff for not going on to trial; if vexatious, he may be dispaupered. Nokes v. Watts, Fort. 319; 3 Wils. 24, S. C.; 1 Stra. 420, S. C. contr. [Unless the pauper's conduct appears to have been vexatious, the court will not stay the proceedings in a second action, until the costs are paid of a nonsuit in a prior one for the same cause. Winter v. Slow, 2 Stra. 878; Brittain v. Grenville, Ibid. 1121; 3 Wils. 24, but where the costs of a former nonsuit in trespass were not paid, the court, though no circumstances of vexation were stated, stayed the proceedings, notwithstanding the plaintiff was a prisoner at the time of bringing the second action, and sued in forma pauperis. Weston v. Withers, 2 Term R. 511.]-If a pauper is nonsuited, brings a second action, and recovers, the costs of the first shall not be deducted out of the recovery in the second. Butler v. Inneys, 2 Stra. 891. If pauper gives several notices, and does not go on to trial, the court will not restrain him from going on to trial till he has paid costs of former notices, but they will make an order to dispauper him nisi. Taylor v. Lowe, 2 Stra. 983. Doe dem. Leppingwell v. Trussell, 6 East, 505. [A person suing in equity in formâ pauperis shall not amend his bill by leaving out some of the defendants, Wilkinson v. Belsher, 2 Br. Ch. Rep. 272; or dismiss it as against some of them without payment of costs, Pearson v. Belcher, 3 Br. Ch. Rep. 87. Nor it seems will a party be protected by an order to sue in formâ pauperis from the costs of proceedings previous to the order. Mosel. 103.] So where a cause at suit of a pauper was made a remanet at the defendant's instance by order of nisi prius, and on the defendant's undertaking to pay the costs of the day, an attachment was granted against the defendant for the non-payment of costs. Rice v. Brown, 1 Bos. & Pul. 39.|| |