It is right to say that the statement of the facts as made by the learned judge, and by the clerk of the court, differs in some important particulars from the allegations of the defendant. But as I am of opinion that the defendants show no ground for the writ of mandamus, I shall, for the present purpose, assume the statement of the defendants is correct.

It cannot, I think, be held that the announcement of the opinion amounted to a determination of the cause. It was merely the announcement of the conclusion which the judge had reached in his own mind, with such statement of his reasons as he thought it convenient to make. The opinion need not be in writing, and it may form no part of the record of the case. It may be said that it is no part of the official duty of the clerk to receive it, or to make a copy of it. It is for the convenience of parties that this service is usually performed by the clerk. Nor do I think it can be said that the paper here presented as a decree ever took on that character. It was evidently a draft made by the judge for convenience, that counsel might see, in a general way, what decree he was prepared to enter. The letter of the clerk should have made it plain to counsel that the decree had not been entered. If it had been entered as the decree, it would not, of course, be subject to alterations except on rehearing or on motion. Indeed, it is called by the clerk a "rough draft." The word "decree" on the clerk's docket cannot amount to an entry of the paper as a decree. The word stands alone, and may mean "decree to be entered," or "stands for decree," as well as "decree entered." The motion for a mandamus to the clerk requiring him to make entries relating to the opinion and the supposed decree must therefore be dismissed.

When, however, we come to consider the motion to dismiss the appeal, another question arises. The clerk, as is not disputed, entered on his minutes the words, "Bill dismissed as to Currier and Chandler. Decree." From this entry I think it is to be inferred that the judge announced his decision, although the opinion containing the full statement of his reasons was not then filed. In this state of the case it was proper for the respondents to take their appeal at once. Silsby v. Foote, 20 How. 290, 295. As the record on the appeal now stands, however, it does not appear that the entry was made. The motion to dismiss the appeal will therefore stand over, to allow the appellants time to move for a writ of certiorari to bring up the copy of minute-book of the clerk, so far as to show the entries contained in the certificate of the clerk which has been. used on the hearing. When these copies are brought on the record, the motion to dismiss will be denied, unless on further hearing there should appear grounds to support the motion which have not been already argued.

HECKMAN v. MACKEY.

(Circuit Court, S. D. New York. October 11, 1887)

1. COSTS-LEAVE TO SUE AS POOR PERSON-IN FEDERAL COURTS.

A non-resident, claiming to have a cause of action for damages for personal injuries resulting from an accident happening in New York state, and caused by the negligence of defendant, a resident and citizen of that state, may be admitted to prosecute his action as a pauper in the federal courts sitting in that state; the pauper act of New York neither in its original nor present form containing any words importing a restriction of its privileges to the resident poor

2. SAME-LEAVE TO SUE AS POOR PERSON-AMENDMENT OF APPLICATION. A petition for admission to sue as a pauper set out that the plaintiff was a resident of New Jersey, but did not allege that he was a citizen of that state. The complaint, however, contained a proper averment upon that point. Held. on motion to vacate an order granting the petition, that the plaintiff should be allowed to file nunc pro tunc, as of the date of the presentation of the petition, an affidavit setting forth his citizenship.

On Motion to Vacate an Order Admitting Plaintiff to Sue as a Pauper. Wheeler & Cortis, for plaintiff.

Jas. Stikeman, for defendant.

LACOMBE, J. Defendant moves to vacate an order heretofore granted on petition, allowing plaintiff to prosecute this action as a pauper. Plaintiff is a citizen and resident of New Jersey. It appears from the papers that he has sustained personal injuries, as the result of an accident caused, he contends, by defendant's negligence. Defendant is a citizen and resident of New York, in which state the accident happened. Plaintiff is not worth more than $100, besides the wearing apparel and furniture necessary for himself and his family and the subject-matter of this action, and is unable to prosecute this action unless permitted to do so as a poor person. In support of this motion defendant refers to three special term decisions of the supreme, superior, and common pleas courts, respectively, (Anon., 10 Abb. N. C. 80; Christian v. Gouge, Id. 82; Alexander v. Meyers, 8 Daly, 112,) holding that a non-resident may not sue in the state courts as a poor person.

The practice of allowing paupers to have original writs and subpoenas gratis, and to have counsel and attorney assigned them without fee, and to be excused from paying costs when plaintiffs, dates back to the reign of Henry VII. 3 Bl. Comm. c. 24. The provisions of the Revised Statutes and of the Code of Procedure are, in substance, a re-enactment of those contained in the original act; the limit of statutory poverty being raised between the Revision of 1812 and the Revision of 1830 from $20, the equivalent of the £5 of the English statute, to $100. The decisions above cited proceed in part upon the theory that the later statute, which requires non-residents to furnish security for costs, is inconsistent with a policy which would allow an irresponsible non-resident to sue without even a liability for costs. In the supreme and superior court cases the causes of action arose in Pennsylvania, of which state plaintiffs were res

idents. In the common pleas case both plaintiff and defendants were citizens of Georgia, where the cause of action arose, and the decision is based entirely on the proposition that "it is contrary to the policy of the law to encourage the bringing of actions in this state for torts committed in another state, where plaintiff and defendants are residents of such other state, and were so when the wrong complained of was committed.

If * * * such person choose to prosecute in a foreign tribunal, it should be under the usual liability for costs." 8 Daly, 112. The question has never been passed upon by an appellate state court. The state statute does not, either in its original or present form, contain any words importing a restriction of its privileges to the resident poor. The words used are "a poor person," without qualification.

The attention of the learned judges who delivered the opinions above cited seems not to have been called to a distinction between the statutes before them. The pauper act is concerned with liability; the non-resident act with security. Plaintiffs generally are liable for costs, and it is expected that they will respond for them out of their property situated within the jurisdiction of the state. Non-resident plaintiffs, however, who are not supposed to have such property within the jurisdiction, are required to give security that they will so respond. This act, however, in no way enlarges their liability, nor is it necessarily inconsistent with an act which relieves any particular class from the obligation to respond for costs at all. In the particular case at bar the plaintiff cannot, so far as appears, sue and make service of process in New Jersey, his native state. If the rule contended for were adopted, he could not sue in the courts of the state where the wrong was done him; and if it were followed here he would be left, solely because of his poverty, without any forum in which to vindicate his rights. Such a failure of justice should, if possible, be avoided.

The practice in this court in civil causes, other than equity and admiralty causes, is, by section 914 of the Revised Statutes, conformed as near as may be to that in the state courts. This phrase, "as near as may be," was before the supreme court in the case of Railroad Co. v. Horst, 93 U. S. 300, and the opinions expressed that the federal courts "had the power to reject, as congress doubtless expected they would do, any subordinate provisions in such state statutes which in their judgment would unwisely incumber the administration of the law, or tend to defeat the ends of justice in their tribunals." In the case at bar it is not even a question of disregarding a subordinate provision of a statute. The state act contains no language sustaining defendant's position, and the construction contended for has not been approved by any appellate tribunal of the state. Under these circumstances such construction may be rejected as tending in this case to defeat the ends of justice.

Defendant further contends that the order should be vacated because the petition states that the plaintiff is a resident of the state of New Jersey, but does not state that he is a citizen of that state. Plaintiff is in fact both a citizen and resident of New Jersey, and the proper averment as to citizenship appears in his complaint. Under these circumstances,

the order should not be set aside for lack of jurisdiction, but the plaintiff may be allowed to file nunc pro tunc, as of the date of the presentation of his petition, an affidavit setting forth his citizenship. Upon the filing of such affidavit, the motion to vacate the order allowing plaintiff to prosecute the action as a poor person is denied.

SCHOLFIELD v. UNITED STATES.

(District Court, D. Maryland. October 6, 1887)

ELECTIONS-SUPERVISORS-COMPENSATION.

Held, that a supervisor of election, duly appointed under sections 2011 and 2012, who had attended the registration of voters for 18 days, as required by section 2016, was entitled to the maximum pay of $5 a day for not exceeding 10 days, fixed by section 2031, notwithstanding a notice afterwards issued by the attorney general that the supervisors would be expected to perform their work within 5 days, and would be paid for only 5 days' service. (Syllabus by the Court.)

John E. Bennett, Jr., for petitioner.

Thomas G. Hayes, Dist. Atty., for the United States.

MORRIS, J. The plaintiff has brought this case against the United States, in the United States district court for the Maryland district, by filing his petition in accordance with the act of congress of March 3, 1887, c. 359, by which jurisdiction in cases against the United States is given to the district court where the amount of the claim does not exceed $1,000, and the claim is founded upon the constitution and laws of the United States, (except pensions;) or upon any regulation of an executive department; or upon any contract, expressed or implied, with the government of the United States; or for damages, liquidated or unliquidated, in cases not sounding in tort,-in respect of which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable. The plaintiff's petition has been duly served upon the district attorney of this district, and upon the attorney general of the United States, as required by the act of congress.

The plaintiff alleges that there is due to him by the United States the sum of $25 for the balance of his compensation as a supervisor of registration and election prior to and during the congressional election of 1886 in the city of Baltimore; he having faithfully and diligently performed his duties, and being entitled to $5 per day for 10 days, and having been paid only $25, payment of the balance claimed by him having been refused. The answer of the United States admits that the plaintiff has performed the services claimed for in his petition; but denies that he is entitled to receive more than the $25 already paid to him, for the reason that by a circular letter addressed by the attorney general of the United

States to the marshal of the district, dated the fifteenth October, 1886, the marshal was directed to notify the supervisors that they would only receive $25. The plaintiff has demurred to the answer of the United States, and joinder in demurrer has been entered.

FINDINGS OF FACT.

1. I find that the petitioner was duly appointed and commissioned supervisor of election for the Ninth ward of Baltimore city, in the state of Maryland, by the circuit court of the United States, on the fourth September, 1886, in pursuance of sections 2011 and 2012, Rev. St., and the supplements and amendments thereto, and that he duly qualified, and entered upon his duties.

2. I find that the laws of Maryland governing registration for congressional and other elections in the city of Baltimore require the officers of registration, for the purpose of correcting the lists of qualified voters, shall sit with open doors in the several wards of the city, from 9 A. M. to 9 P. M., for 15 successive days, commencing on the first Monday of September; and afterwards, for the purpose of revising the said lists, for three successive days, commencing on the first Monday of October.

3. I find that the petitioner, in pursuance of his said appointment, and of the provisions of section 2016, Rev. St. U. S., which authorized and required him to attend at all times and places fixed for the registration of voters who, being registered, would be entitled to vote for a representative or delegate in congress, and to personally inspect and scrutinize such registration, did attend the said registration in the said ward for which he was appointed for 15 days in September, 1886, and for 3 days in October, 1886, being October 4th, 5th, and 6th, in said year.

4. I find that the United States marshal for this district, on the sixteenth October, 1886, received from the attorney general of the United States a circular letter, in which he notified the marshal that "it is not expected that supervisors and deputy marshals will receive compensation for more than five days' services, and they should be so informed. Within this time all can be done, it is thought, that ought to be."

5. I find that the plaintiff was on duty and had performed 18 days of proper and necessary service as supervisor before the circular letter of the attorney general, relied upon in the answer of the United States, had been issued.

CONCLUSION.

*

Section 2031, Rev. St. U. S., provides: "And there shall be allowed and paid to each supervisor of elections * * who is appointed, and performs his duty, under the preceding provisions, compensation at the rate of five dollars per day for each day he is actually on duty, not exceeding ten days." Under this law the plaintiff earned and is entitled to $50 compensation, and, having received but $25, I sustain the demurrer; and I do give judgment in favor of the plaintiff, against the United States, for the sum of $25, with costs to the plaintiff, being the fees paid by him to the clerk of the court.

v.32F.no.9-37