Lowndes v. The Phœnix

36 F. 272

• Court: District Court, D. South Carolina
• Decided: March 15, 1888
• Status: Published

Opinion

Simonton, J.

The libel is for personal injuries to one of a gang oí stevedores engaged in loading the steam-ship. When libelant filed his libel, he gave the stipulation for costs, with one Gardner as surety. The claimant has filed a certificate from the state court showing that there are entered against Gardner several judgments yet unsatisfied.’ Upon this he moves an order that libelant give additional security on pain of dismissal of his libel. The proctors for libelant state that probably he cannot give additional security, and in this event they ask that the privilege of a juratory caution be reserved to him. Suits in forma pauperis, or, using the technical words in admiralty, upon “a juratory caution,” are recognized in the district courts of the United States. Bradford v. Bradford, 2 Flip, 281; Polydore v. Prince, Ware, 410; Thomas v. Thorwegan, 27 Fed. Rep. 400. And this in courts in which there is an imperative rule requiring security for costs. We have such a rule, (25)V There' is much to commend this indulgence to poor suitors. It would be abhorent to a sénse of justice to refuse the remedy for a clear right on the only ground that the suitor cannot give a bond for costs. But it may be abused. In a port filled with shipping the temptation may be very strong to libel a ship just about to sail and force the payment of a groundless or extravagant claim. If there be no cheek in the shape of a stipulation for costs, this may lead to irreparable loss, or intolerable wrong. No final rule on this subject will be made. Let an order be taken, requiring additional security, to be put in within five days. If at the expiration of this time no security be put in, and if it be established in a proper way that none can be put in, the merits of the ease prima fade will be examined.