The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-10-26
NO PAUPER SU|TS2
Question Before Supreme
Court of Much Note to
Litigants for Damages

Inc case OF Christian V. the A. 81
y. Z. Railroad, growing out of the
killing of two soldiers of the State
Guard, on thei return from last sum-
mer's encampment at Morehead City,
will be argued in the Supreme Court
on Thursday next
Apart from the public interest at
tach1ng to the case as an out-growth
OF tragedy which shocked the entire
State, the appeal will bring up d ques-
ton which will be of the greatest
interest TO the legal profession and to
hundreds of litigants whose cases are
now in the court dockets of the sew
eral counties.
The question presented by the
pleadings and which will be ably ana
seriously argued is this:
Can an executor or an administers
tor prosecute a suit "as a pauper.''
While Code. sections 209 and 20
provide method by which "any per-
son" may, by affidavit of insolvency
and Inability to Give prosecution
bond, obtain leave from the court 10
bring a suit as pauper. the defend
ant in the case above mentioned viii
contend that the statute applies oniy
to living persons or their representa-
tives and not to an administrator or
executor of dead person, who accord
ing to the theory OF the defendant is
merely a nominal party and not
such a person as is contemplated
by the statute.
In support of their contention the
defendants cite the cases of McKeil
V. Cutler, As, n. c., 1879, and Osborne
y Henry. 66 N. - 354, in which sim
liar appeals from a refusal Of the
court to require plaintiffs to give bone
yyara successfully prosecuted.
The defendant also relies on a case
in the sc ~ c., page 354. and a die
tum in Smith V. Railroad, Y N. c.,
page 60.
In reply to the contention of the
defendants, the appellants in the case.
the plaintiff says that the cases Of
McKeil V. Cutler and Osborne V. Henry
we're decided when the Revised Statu-
tes were in force which provided that
any person or persons might sue"
whereas the present statute omits the
words cor persons" this indicating
that "any person" the present wording
of the statute applies relates to 4
party to a suit and not to classes OF
persons. The ~laintiffs lay stress IN
their brief i'm Mason V. Osgood, Il n.
e.. PIP, in which the court discusses
the meaning OF the words amy per
SON" and to the case of Allicon V.
Railroad. in the 129 N. c., 344, in
which Chief Justice Furches SAYS.
''Under the law, as contained in the
Revised Statutes and Revised Code, an
administrator was not allowed to bring
and prosecute suit in forma pauper-
is; Nickel Cutler, Is n. c., 1873.
This question so far as l am advised,
has not been presented to the court
since the Act of 1869 (COde, sec
tons 20 ana 21) but no such mo-
ton was made this case. ana nc
such question is before the court now:
and ! know the practice has been
otherwise since the adoption of the
Code"
Replying to the contention of the
defendant that the bond should be
given by the benefciaries and credi-
tors of the estate, the plaintiff cites
Code Sec. 1900 preventing creditors
from participating in a recovery by
an executor or administrator of dam
ages for the wrongful or negligent
killing of his testator.
The suit was started originally in
Durham county by J. 3. Christian, ad-
minjstrator of a. b. Warren one Of the
soldiers who was killed while riding
on TOP of a coach at Stoney Creek
bridge near Goldsboro. At the return
twice the defendant moved that the
plaintiff be required to give bond and.
on refusal of the motion. appealed
The general practice has been for
administrators to sue for decedent's
in solvent estates in forma pauperies
and a decision preventing the practice
would create CONSERVATION in many
quarters. 1t is doubtless true that
there are now pending in the different
courts of the State some hundreds of
cases brought by administrators in
that manner.
Attorneys for the plaintiff are
Messrs Winston and Bryant. and for
the defendant Messrs. FULLER Fuller
and W. Q. Monroe.