CERTIFICATE FROM THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT
Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day
MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.
1. After the passage of the act of July 20, 1892, many applications were made to this court for leave to prosecute writs of error or appeals in forma pauperis, and were uniformly denied, as we were of opinion that the act had no relation to proceedings in this court. And we so stated in Gallaway v. Fort Worth Bank, 186 U.S. 177, where leave was asked to prosecute a writ of error to a state court without giving security as required by section 1000 of the Revised Statutes. The ruling would have been the same if the review of the judgment or decree of a court of the United States had been sought, because in our view the statute refers only to the court of original jurisdiction. And the same ruling must necessarily obtain in the Circuit Courts of Appeals.
The act consists of five sections. Of these, sections 3 and 4 obviously relate to the trial or hearing. By section 5 "judgment may be rendered for costs at the conclusion of the suit as in other cases," which we take to mean judgment at the close of the trial or hearing, and not judgment then and also judgment in appellate proceedings, or in case of such proceedings no judgment for costs below until judgment rendered above.
The first section relates to the commencement and carrying forward of a suit or action without plaintiff being required to prepay fees or costs or to give security therefor, whether the fees or costs accrue at the beginning or during the progress of the suit or action. The application is to be made at the outset, and the order, if granted, covers the fees or costs, accruing when or after the suit or action is commenced. And this result is secured by the words "and its prosecution to conclusion." That conclusion is the termination of the suit or action in the court where it is commenced. The second section provides for a similar application after the suit or action has been brought.
The words "suit or action" are used in both sections, and the applicant is required to set forth "his alleged cause of action," and by section 4 the case may be dismissed "if it be made to appear that the allegation of poverty is untrue, or if said court be satisfied that the alleged cause of action is frivolous or malicious."
Lord Coke defined "action" to be "a legal demand of one's right," and cause of action comprises every fact a plaintiff is obliged to prove in order to obtain judgment, or, conversely, every fact the defendant would have the right to traverse, Railway Company v. Dixon, 179 U.S. 131, 139. The words "action" and "cause of action" are not ordinarily applicable to writs of error, and, in our opinion, were obviously not so applicable here, but used diverso intuitu. And this is so whether a writ of error be considered a new proceeding or a continuation of the original proceeding as it is usually regarded in the Federal courts. Cohens v. Virginia, 6 Wheat. 264, 410; Nations v. Johnson, 24 How. 195, 205; In re Chetwood, 165 U.S. 443, 461.
A leading case on the subject is Moore v. Cooley, 2 Hill, 412. The statute of New York under consideration in that case was as follows (2 Rev. Stat. N.Y. 2d ed. 1836, p. 362):
"Every poor person, not being of ability to sue, who shall have a cause of action against any other, may petition the
court in which such action is depending, or in which it is intended to be brought, for leave to prosecute as a poor person, and to have counsel ...