Page:Federal Reporter, 1st Series, Volume 10.djvu/674

663 FBDBEAL REPORTER. �tions had expired. I think it is the resuit of the affidavits now made, that, while the plaintiff had not entirely abandoned his pur- pose to go to the supreme court, he yet, mainly from want of means to pay his lawyers, failed to have his case properly looked after, so as to have the necessary measures taken to make his appeal effectuai, so far as concerned a review of the rulings upon the trial, in case he should finally be able to make arrangements to prosecute a writ of error. �Like many other cases where poverty leads to the neglect or aban- donment of the appointed means of redress for possible wrongs sus- tained, this case bas elements which appeal to the sympathies of the court, but the plaintiff cannot be released in the mode proposed con- sistently with the rules adopted by the federal courts, not without creating a precedent which will be of the most embarrassing charac- ter. The real and only excuse, as it seems to me, that is offered for the neglect of the appointed mode of redress, is, after all, the poverty and finanoial embarrassment of the plaintiff. If this is allowed to be an "extraordinary circumstance," within the rule declared by the supreme court in Muller v. Ehlers, the inquiry will be open in every such case as to the extent of the plaintiff 's financial embarrassment. Want of means is, also, easily sworn to, and, in most cases, difficult or impossible to disprove. Thus, the rule of diligence, which, for wise reasons is intended to be rigid, will be wholly broken down. Poverty or pecuniary embarrassment is not recognized as asufficient excuse for not asserting a legal right where the rules of law require the assertion of that right with diligence. Hayward v. Nat. Bank, 96 U. S.' 618. �It is urged that section 783 of the New York Code of Civil Procedure, which authorizes the court to relieve a party in an action who has failed to take a proeeeding within the time within which by law it must be taken, appliesto this case; and it is further urged that, with all the differences of form, an appeal under the Code, which includes and pro- vides for the review of rulings excepted to on the trial, is substan- tially the same proeeeding aa a review on writ of error in the federal courts, and that, by section 914 of the Revised Statutes of the United States, the practice of the state courts in such a proeeeding, includ- ing section 783 of the Code of New York, as applied thereto, is appli- cable to proceedings under writs of errors. Section 914 of the Revised Statutes only assimilates the practice in the federal courts to that of the state courts "as near as may be. " I am still of the opinion ex- pressed upon the former hearing, that the System of review on writ ��� �