#### *Sam v. Blakemore.

October, 1826.

Appeal — Refusal to Allow Person to Sue In Forma Pauperis. † — An appeal will lie from the order of an Interior Court refusing to grant leave to a person held in slavery, to sne in forma pauperis.

Appeal from the Superior Court of Lee county.

Sam, a man of colour, held in slavery by Blakemore, petitioned the Superior Court for leave to sue for his freedom. This petition was accompanied by several affidavits, and a statement of the case by the counsel, who had been appointed by the Court to conduct the cause on behalf of the petitioner. The Court refused to grant the prayer of the petition, because the fact-stated by the counsel were not sustained by the evidence.

The petitioner appealed.

Nicholas, for the appellant, assigned by the Court.

No Counsel, for the appellee.

*

 Judge Coalter absent.

†

See generally, monographic *note*on “Appeals and Error” appended to Hill v. Salem, etc.. Turnpike Co., 1 Rob. 263.

October 21.

The PRESIDENT

delivered the opinion of the Court. ‡

The affidavits in this case, and the circumstances stated in the opinion of the counsel appointed by the Court, on the application of the pauper, present a case which certainly would have justified the Superior Court in making the order authorising the pauper to sue for his freedom, in pursuance of the act of Assembly. The Court, therefore, erred in refusing to make such order, and in dismissing the complaint of the pauper.

If this were an ordinary case, the difficulties which have been suggested as to the right of the plaintiff to appeal from such an order, might be insurmountable; as to which we *give no opinion. But, in these pauper cases for freedom, this Court have not adhered strictly to rules applicable to other cases, nor to the letter of the act giving it jurisdiction. In a plain action of assault and battery, in which a penny damages were given on a plea of not guilty, it has often decided on the right of the pauper to freedom, though that question was not involved in the pleadings. In the present case, though the plaintiff might perhaps renew his application to sue for his freedom, on further proof, (as to which it is not necessary to give an opinion) yet, for all that appears, the judgment of the Superior Court may be final as regards his right to freedom; which, if not a franchise, is analogous to it, and ought to bring the case within the spirit of that clause of the act, which gives to the Court jurisdiction in cases in which a franchise is brought in question.

The judgment is therefore reversed, and the case remanded for further proceedings, in which the Superior Court is to make the order permitting the plaintiff to sue in forma pauperis, according to the provisions of the act.

‡

. Judge Coaltes absent.

§UnlawfuI Detainer. — See on this subject, mono-graphic *note*on “Unlawful Detainer” appended to Dobson v. Culpepper, 23 Gratt. 352.

A party who is entitled to the possession of land' as against the defendant, no matter how, or In what manner or mode he may have acquired such right, or whether he has ever been in possession or not, may bring an action of unlawful detainer for the recovery of the possession. Hawkins v. Wilson, 1 W. Va. 124, citing the principal case as authority for *196the statement. The principal case is cited to the same effect in Pannill v. Coles, 81 Va. 385.

See the principal case also cited in Board of Education v. Crawford, *14*W. Va. 800; Railroad v. Harness, *24 W.*Va. 516; Childs v. Hurd, 33 W. Va. 87, 9 S. E. Rep. 370.