Opinion
(June Term, 1830.)
1. Assumpsit cannot be maintained before a single magistrate upon an implied promise, where the plaintiff has an election to sue either in tort or in contract; the action must be brought in a Court which has jurisdiction of the tort.
2. One who sues in forma pauperis neither recovers nor pays costs.
3. An order that a plaintiff may sue in forma pauperis extends only to the Court in which it is made. Therefore, if such an order be made in the County Court, and the cause is afterwards brought to the Superior Court, and the order is not renewed there the defendant, if he succeeds, will recover the costs of that Court.
This was an action commenced by a warrant, which was sued out 5 June, 1826. By a rule of the County Court the plaintiff had been permitted to sue in forma pauperis.
Gaston, for the plaintiff.
No counsel for defendant.
FROM NORTHAMPTON.
On the trial before his Honor, Judge STRANGE, the proof was that the defendant had admitted that he had received three bales of cotton from the plaintiff to sell on his account in Petersburg; that he had not sold it, or received anything for it; but had stored it in Petersburg in his, the defendant's own name, and that the plaintiff owed him an account; the account was produced and identified, and amounted to $45.32, and was receipted by the defendant on 17 May, 1826.
The defendant then offered the following receipt in evidence, which was signed by the plaintiff: "Received 17 May, 1826, of Henry Dupree, forty-five dollars, thirty-two cents, in part pay for three bales of cotton, which said Dupree has to sell for me."
The plaintiff contended that he had a right to recover:
1. Because there was evidence to be left to the jury of an actual sale by the plaintiff to the defendant.
2. Because the receipt offered in evidence by the defendant was proof of the defendant's liability to the plaintiff for the value of the cotton.
3. Because the defendant having stored the cotton in Petersburg in his own name, the plaintiff had a right to treat it as a sale to him, and recover the amount. (412)
But his Honor being of opinion that the subject matter of the action was not within the jurisdiction of a justice of the peace without proof of a sale by the plaintiff to the defendant, or of sale by the defendant and a receipt of the price; and that no view of the case which involved an inquiry into the manner in which the defendant had performed his agency, could be taken in this form of action, nonsuited the plaintiff, who appealed to this Court.
There was no evidence of a sale of the cotton to the defendant, nor of a sale by him and receipt of the price. The declarations of the defendant which the plaintiff gave in evidence prove the contrary. His receipt given 17 May shows that it was not then sold. The warrant was sued out on 5 June. The intervening time was of itself too short to be left to the jury as evidence of a sale. It is unnecessary to consider the effect of storing the goods in the defendant's name. If it could amount under the circumstances to a conversion, no Court can entertain jurisdiction of the assumpsit to be implied therefrom, but one which could give a remedy directly on the tort itself; for the same questions of law arise in each case. This the justice of the peace could not do. S. v. Alexander, 11 N.C. 182; Fentress v. Worth, ante, 229. The nonsuit was therefore right.
Another objection is taken here that there ought not to have been judgment against the plaintiff for costs, as he had been allowed to sue in forma pauperis. A pauper neither recovers nor pays costs (413) in general. He may, in the discretion of the Court, be dispaupered when he has received an accession of property, or has misbehaved himself, and the effect of this may be retrospective, as well as prospective. This Court would not revise the exercise of such discretionary power; but we think that by an oversight the judgment for costs has been given against the plaintiff without his having been dispaupered. The order was made in the County Court, and we cannot consider that as relates to the costs in that Court the Superior Court intended to dispauper, unless it had been done by a distinct order to that effect. That is the regular method, and makes it appear to have been deliberately done. We cannot infer such an order from the mere fact of a judgment being given for costs. The judgment, however, was properly rendered for the costs of the Superior Court, because the plaintiff had never been a pauper in that Court. The order of the County Court can only extend to its own officers. They can have no control over the counsel and officers of another Court superior to themselves, so as to make an order that they shall work for nothing; nor over a suitor after he ceases to be a suitor before them. Gibson v. McCarty, Cas. temp. Hardw., 311. Suppose the plaintiff had been unable to give security for his appeal to this Court, his only remedy would have been by certiorari, granted by this Court upon our own terms. The Superior Court could not have sent him here as a pauper appellant; nor, as I think, as a pauper appellee. This view is supported by the statute of Henry VIII itself, which commands the chancellor to provide counsel to advise writ, and the clerk to write it for the seal without charge; and also commands the justices of the bench to which it is returnable in like manner to provide the party with an attorney and counsel in that Court. Thus each tribunal is left to act upon its own officers and suitors. The reason why the (414) Superior Court could modify and discharge the order of the County Court is that by our appeal a trial de novo is to be had, which brings every previous order made in the cause which has not completely spent its force on the parties under revision. But until it be reversed directly we must consider it as remaining in force. There ought not, therefore, to have been judgment for the costs in the County Court. The judgment of the Superior Court must, consequently, be reversed; and this Court, proceeding to give such judgment as the Superior Court ought to have given, doth consider that the defendant recover from the plaintiff his costs in the Superior Court expended, to be taxed by the clerk of that Court, and that the plaintiff recover his costs in this Court. This leaves the defendant to pay his own costs in the County Court, and the plaintiff, being a pauper in that Court, was not liable for his own costs, and could not recover them from the defendant.
PER CURIAM. Judgment reversed, and judgment for the costs of this Court entered up for the plaintiff, and of the Superior Court for the defendant.
Cited: Carter v. Woods, 33 N.C. 23; Revel v. Pearson, 34 N.C. 245; Mann v. Kendall, 47 N.C. 193; Collett v. Frazer, 56 N.C. 399.
See S. v. Alexander, 11 N.C. 187; Fentress v. Worth, 13 N.C. 229.
(415)