Iredell County NcArchives Court.....McClenahan, Vs. Thomas 1811-18 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:28 pm Source: North Carolina Reports Written: 1811-18 JANUARY TERM. 1813. REUBEN McCLENAHAN v. JOHN THOMAS. From Iredell. Suing in forma pauperis. The true meaning of the act of 1787 is that all such persons shall give security for costs as would be liable for costs if they fall in their suit. It does not render any person liable for costs who was not so before. Statute 23 Henry VII., ch. 15, excuses paupers from the payment of costs. This statute and the act of 1787 are compatible and 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 £5 sterling, and had no property except such as the law allows insolvent debtors 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. Taylor, C. J. The act of 1787 does not demand a construction which would necessarily deprive a portion of the community of all 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 law 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 render any person liable to the payment of costs who was not so before. Now, the statute of 23 Henry VII., ch. 15, excuses paupers from payment of costs. And a law founded upon principles of such obvious justice ought to be repealed by express words or necessary implication before the court hastens to that conclusion.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 forma pauperis upon satisfying the court that they have a reasonable ground of action, and from their extreme poverty are unable to procure security. Additional Comments: North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. Uzzell and Company, State printers and binders, 1910. File at: http://files.usgwarchives.net/nc/iredell/court/mcclenah556gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 3.3 Kb