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. Gonge, 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 Blackst. Com. 24). The provisions of the Devised 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 181.2 and the revision of 1830 from twenty dollars, the equivalent of the five pounds of the English Statute, to one hundred dollars.
The decisions above cited proceed in part upon the theory that the latter 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 plaintiff's were-residents. In the common pleas case both plaintiff and de*397fendants 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 ” (Alexander v. Meyers, 8 Daly, 112).
The question has never been passed upon by an appellate State court. The State statute does not, cither 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, vvho 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 mle contended for were adopted lie could not sue in the courts of the State wheie 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 lights. Such a failure of justice should, if possible, be avoided.
The practice in this court in civil causes, other then equity and admiralty causes, is, by section 914 of the Revised *398Statutes (U. S.), 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 Indianapolis, &c. R. R. Co. v. Horst (93 U. S. 291, 300), and the opinion 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 unwise-' ly encumber the administration of the law or tend to defeat the ends of jtistice 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, arid 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 Hew Jersey, but does riot state that he is a citizen of that State.
Plaintiff • is in fact both citizen and resident of Hew 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 maybe allowed to file mine pro tune 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.