The point presented has already been three times passed upon by this Court: in Martin v. Chasteen, 75 N.C. 96; Andrews v. Whisnant, 83 N.C. 446, and in Bailey v. Brown, 105 N.C. 127, all decided since the Act of 1873-74, ch. 60, which was relied on by the petitioners. It is pointed out in the case last named that The Code, sections 210 and 212, permitting an action to be brought in forma pauperis, not only exempts such pauper plaintiff from giving bond to indemnify the defendant for his costs, but excuses him from paying fees to any officer and deprives him of the right to recover costs, while section 237, allowing a defendant in an action of ejectment to defend without giving bond, and section 553, allowing an appeal to this Court without bond, go no further than dispensing with the bond, and neither exempts the party from paying his own costs nor forbids his recovering costs. The reason is very plain. As to section 237, a defendant who is
allowed to remain in possession without security for mesne profits or for plaintiff's costs should be able to pay his own or secure them out of themesne profits; and an appellant who has had a gratuitous trial in the Superior Court, without paying anything to officers for their services, when he seeks to reverse the presumption of the correctness of the result should not receive further gratuitous services of the court officers. It is enough that he is excused from giving any security to indemnify the appellee for his costs on the appeal. Such was the ruling also under the former system of procedure. Office v. Lockman, 12 (358) N.C. 146.
The above applies only in civil cases. In criminal actions the appellant, whether the State or defendant, and whether, the latter appealsin forma pauperis or not, is not required to pay costs of transcript in advance. S. v. Nash, 109 N.C. 822; S. v. Deyton, post, 880.
Instead of extending the cases in which officers shall perform duties to litigants without charge, the tendency of legislation is the other way; as chapter 149, Laws 1895, provides that where a plaintiff, admitted to sue informa pauperis, recovers in his action, he shall recover costs, and of course must pay them; for if he does not pay costs there is none he could recover. The leave to sue as a pauper, Code, secs. 210 and 212, does not go beyond the Superior Court. The appeal as a pauper is governed by section 553.
The petitioner, having refused to pay the costs of the transcript, is not entitled to a certiorari, but, if diligent, he can, by paying the costs therefor, still docket his appeal in time, provided he does so at this term before the appellee has docketed and had the appeal dismissed. Triplett v.Foster, 113 N.C. 389, citing Bailey v. Brown, supra.
CERTIORARI DENIED.
Cited: Brown v. House, post, 623; S. v. Deyton, post, 883; Smith v.Montague, 121 N.C. 94; Benedict v. Jones, 131 N.C. 474.
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