'The executor of a testator, who has been allowed to carry on a suit in Jornia pauperis, may continue such suit without giving bond, if, at the ■time he applies to be made a party, he files a petition showing a propeí' ■case.
'{Mason w. ¡Osgood, 71 N. C. Rep. 312.; Osborne v. Hemry, 66 N. C. Rep. 354,-cited and approved.)
Civil Action, -originally commenced by Crawley, tried oh ■a motion in the cause, before Judge Kerr at Fall Term, 3875, of Randolph Superior Court.
The Court permitted, on a proper cause shown, Crawley, he testator of the plaintiff, to sue in forma pauperis. After the action had been pending in Court for several terms, it was submitted to referees. The defendant excepted to the report -of the referees, which exceptions were overruled at Fall Term, 1874, whereupon the defendant gave notice of an appeal to this Court. Pending this appeal, (which has not yet been brought up and docketed in this Court,) and since the Spring Term, 1875, of Randolph Superior Court, the then plaintiff, Crawley, died, leaving a last will, and appointing the plaintiff, I. J. Hamlin, his executor, who proved -said will and qualified as executor thereto.
*67At Fall Term, 1876, of said Superior Court, Hamlin, the ■executor, upon the suggestion of the death of the former plaintiff, his testator, moved to be made plain tiff in his stead. This motion was opposed by the defendant on the ground, that the case was not within the jurisdiction of the Superior Court of Randolph, an appeal then pending in the Supreme Court; and further, that the privilege of suing in forma paupms was strictly personal, and that an executor had no right to be made a party and allowed to prosecute the suit without filing a prosecution- bond.
The executor alleged that there was no assets, the defend' ant contending to the contrary. No proof in regard to assets was offered by either party.
The motion of the executor was allowed, and the plaintiff allowed to continue the suit without giving bond.
From this ruling, the defendant appealed.
Mendenhall &■ Staples, W. Clark, lourgee and Gray«& Stamps, for appellants.
L. M. Scott, contm. '
If the’ exeeutor, Hamlin, when he applied to be made party plaintiff, had filed a petition' and shown a proper case, he might have been permitted under the authority of Mason v. Osgood, 71 N. C. Rep., 212, to continue the suit in forma pauperis. But, as he did not do that, then under the authority of Osbo'i'ne v. Henry, 66 N. C. Rep., 354, he ought to have been required to give a prosecution bond.
There is error. Let -this be certified.
Pee,- Cubiam. Judgment reversed.