48 S.E. 743 | N.C. | 1904
This is an action by an administrator for the wrongful death of his intestate, under The Code, sec. 1498. The plaintiff having been allowed to bring the action in forma pauperis under The Code, sec. 210, the defendant moved to require the plaintiff to file a prosecution bond, which the Court refused. The only point intended to be presented is whether an executor or administrator can bring an action in forma pauperis. It has been the unquestioned practice since the adoption of The Code, thirty-six years ago, that a personal representative could sue as a pauper upon proper affidavit and certificate. Allison v. R. R., 129 N.C. at p. 344. The language of section 210 is "any person." These words are broad enough to include any litigant whatever, and hence residents of *235
another State can sue here in forma pauperis. Porter v. (322)Jones,
Under the English law it was held, Sykes v. Sykes, 4 L. R., at p. 648, that it "would be contrary to justice and creating a new precedent to hold the insolvency of an executor to be ground for compelling him to give security for costs." Under 23 Henry VIII, in an action by the personal representative on a cause of action accrued during the lifetime of the testator or intestate, the executor or administrator was not personally liable for costs (unless he knowingly brought a wrong action or was guilty of negligence or improper conduct), but he was liable when the action was upon a contract made with himself or for a wrong where the right of action accrued to him; because he then sued in his own right and not en autre droit. 8 Enc. Pl. Pr., 728; Arrington v. Coleman,
When the action is by the personal representative to recover on a contract or other claim due his testator or intestate, or the action is to recover property belonging to the estate, the Court may well refuse leave to sue as a pauper, under its discretion (Dale v. Presnell,
If the Court had granted the motion and dismissed the action an appeal would lie, because that "determines the action." The Code, sec. 548. But the refusal of a motion to dismiss an action on any ground whatever is never appealable. Cooper v.Wyman,
When this case goes back the affidavit should be amended to aver the inability of the administrator himself to give bond, and on failure to aver this he should give bond. Though we must dismiss the appeal for the reasons given, we pass upon these points, as the Court in its discretion has often done. S. v. Wylde,
Appeal dismissed.