M'Clenahan v. Thomas, 6 N.C. 247, 2 Mur. 247 (1813)

Jan. 1813 · Supreme Court of North Carolina

6 N.C. 247, 2 Mur. 247

Reuben M'Clenahan v. John Thomas.

^From ltedell.

¡Sueing in forma-.pauperis — The true- meaning of the act of 1787 is, that all such persons shall give security for costs, as would he liable for coste, if they fail in their suit. It does not render anyperson 3iable-fbr costs, who was not so before. The Statute of 23d Henry-VITcih. 15, excuses paupers from the payment of costs. This Statute and the act of 1787, are compatible & in pari materia, and should be construed together. Persons may therefore sue in this State in forma pauperis, upon satisfying the Court that they have a reasonable ground of action, and from extreme poverty are unable to procure security.

This was an application to the court for leave to sue in forma pauperis, founded upon an affidavit of the plaintiff, that he was not worth five pounds sterling, and had no property except such as the law allows insolvent detr tors to retain; and that he verily believes, he had good title to the lands for which he wished to institute suit.

The only question in the case was, whether in this state, a person can sue in forma pauperis. The question was submitted without argument, and,

TayxoR, Chief Justice,

delivered the opinion of the Court:

The act of 1787, does not demand a construction -which would necessarily deprive a portion of the community of ail means of having their claims investigated in a court of justice; And unless necessity required it, we are not disposed to put such a construction upon it. The true meaning of the 1 w seems to be, to require all such persons;to give security previously, to taking out a writ, as would have been liable for the payment of costs in the event of failing in the suit. But it does not ren* der any person liable to the payment of costs, who was-not so, before. Now the statute of 23 Henry VIL ch. 15, excuses paupers from payment of costs. And a law founded «pon principles of such obvious justice,, ought to bo repealed by express words or necessary implication, before the court hastens to-that conclusion. For, indeed, the two statutes are perfectly compatible, and being in pari materia, should both have operation, and may be construed together. On this ground, we think that persons may sue in this state, in form a pauperis, upon satisfying the court that they have a reasonable ground of action, and from their extreme poverty are unable to procure security.