
    Reuben Lisenbee vs. Jesse Holt.
    Action. In forma pauperis. Rights of Hon-residents. The right to institute and prosecute suits in forma pauperis, in the courts of this State, is not limited by .its laws to the citizens of this State, but belongs alike to the citizens of the other States.
    State Comity. Same. It is due to that comity which should be fostered among the several States of this Union, that the citizens of all, should be free and unmolested in vindicating their rights in the courts of this State. Such has always been the policy of our legislation, and the spirit of judicial decision ; and our courts will construe no statute, so as to place it in conflict with this principle, unless constrained to do so, by its-express provisions, or by some rule of obvious and necessary policy, or fixed principle of international law.
    FROM OREESE.
    Tbis case originated before a justice of tbe peace, in tbe county of Greene, upon a warrant founded on a note executed by tbe plaintiff in error, a citizen of North Carolina, to tbe defendant in error. On tbe 14tb of December, 1842, judgment was rendered by tbe justice on tbe note against tbe plaintiff in error, for tbe sum of $147 90, and on tbe same day, on tbe affidavit of defendant in error, that tbe plaintiff in error was about to remove or conceal himself or his property, execution was issued and levied upon certain chattels of the plaintiff in error. On the 20th December, the plaintiff in error brought up the case by oerUorwri, im, forma pauperis, to the circuit court of Greene, where at February Term, 1852, on motion, the court (Hon. S. J. Lucicey, presiding) dismissed the cerbiora/ri, and affirmed the judgment of the justice, holding that the_ plaintiff in error being a resident citizen of another State, was not entitled to prosecute a suit m forma pmtperis, in the courts of this State. Erom which, plaintiff in error appealed.
    D. T. PatteesoN, for plaintiff in error.
    The act of 1821, makes it the duty of the clerks of the different courts of record in this State, on the application of envy poor person, who shall take the paupers oath, to issue any writ or writs according to the nature of his case, without demanding security from said poor person. N. & 0., p. 533.
    The phraseology of the act of 1821, is broad and comprehensive enough to embrace every person, without regard to residence, who may seek redress in our courts for any injury they may have sustained at the hands of our citizens, and' it is argued earnestly by the counsel for the defendant, that by the phrase “ any poor person,” the legislature intended to extend to the citizens of other States, the same right to avail themselves of the benefit of the provision contained in said act, that our own citizens have, to institute 'Suits under its provisions, any other construction of the language used by the legislature, it seems to me, would be doing violence to the intention of tbe framers of tbe act of 1821. Why sbonld onr courts give a local and restricted operation and construction to the language of tbe act of 1821 ? 'Would it not be wanting in proper comity toward tbe citizens of other States to do so ? Would it not amount practically, to a denial of justice to the poor of other States, who might receive from our citizens, either in their person or property, an injury. To show the great injustice that would be inflicted on the non-resident pauper, by the construction contended for by the counsel for the plaintiff, let us suppose that a poor man from the State of North Carolina, is |>assing through the State of Tennessee, on his way to the West, for the purpose of hunting a new home for himself and family — and while within our borders, he is violently assaulted and injured in his person by a wealthy and influential man. Or that while within our State, his only horse is taken from him without the warrant of law, will our courts say to this unfortunate stranger, that you should not institute a suit in the courts of the State for the redress of the injury you have received within our own borders, and from the hands of one of our citizens, unless you give security; requiring a thing that in nine cases out of ten, it would be impossible for the non-resident poor man to comply with. He would not know to whom to apply for aid, and if he did apply to our citizens to become his security for the prosecution of his suit, he would be told that he was a stranger, and that the defendant was his neighbor and friend, and that he would not have anything to do with the suit. Every man who has ordinary observation, knows this would be the case, and thus to all useful purposes, the doors of our courts of justice would be closed to -the non-resident poor man, and tbe most wanton violation of tlie rights of property, and the most flagrant outrage on the person of the poor man, would go unredressed and unpunished; simply because he happened to live beyond the limits of the State of Tennessee. Would it not be monstrous to discriminate between one of our own and the citizen of a different State, to an extent that would result in such great injustice to the non-resident. To do so would bo to violate the spirit, if not the letter, of the Constitution of the United States. By art. 4, § 2, of the Constitution of the United States, it is declared, that, “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Now to require security of the one, and not of the other, would be to deprive them of the privileges and immunities there guarantied. I am aware that our own court, in the case of Kincaid vs. Francis, Cooke’s Reports, p. 49, decided that this provision in' the Constitution of the United States, would not prohibit the State from enacting that a resident plaintiff might commence. suit, without giving security for costs, and that a non-resident plaintiff should not. But this question was not presented in the record, in the case of Kincaid, vs. Francis, and the opinion must therefore be regarded as the mere obi-ter dicta, of the Judge who delivered it.
    The statute of 11 Henry, 7 th, chap. 12, uses almost the identical language of our statute of 1821, and I have looked into all the English books that I have access to, in order to see whether the courts of England have at any time given a construction to their own statute, but I have been unable to find any decision. Nor can I find any decision of our own Supreme Courts, giving a construction to our act of 1821.
    It is insisted by tbe plaintiff’s counsel, that our own Supreme Court, in tbe case of JPawTcms vs. Pernoe, reported in 11 Hump. Pep., p. 44, 56, by analogy bave decided tbis case. Let us examine that case for a moment. Pearce was a resident of tbe State of Georgia, and while transiently in this State, Hawkins, a constable, levied on tbe horse of Pearce, and sold it for debt. Tbis court in that case, held that tbe act of 1820, and tbe subsequent acts exempting certain property from execution, do not extend to non-residents, and give conclusive reasons why they should not. It will be observed that tbe legislature, by tbe act of 1820, confines its operation to “ each individual in this State,” and tbe act of 1827, is confined to “any person in tbis State,” thus clearly indicating that tbe legislature intended to embrace none but our own citizens. In my view of tbe act of 1821, and tbe various acts exempting property from execution, nothing can be drawn by analogy, from tbe opinion of tbis court in tbe case of Ha/wlams vs. Pearce. Tbe object of tbe act of 1821, is wholly and totally different from tbe act of 1820, and tbe subsequent acts on tbe same subject. Tbe act of 1821 is designed to give to “any poor person,” the right to sue in our courts without security. The act of 1820, and the subsequent acts on that subject, when taken and construed together, it will be seen that the legislature intended to confine their operation and effect to tbe “^individuals ” or “ persons ” of tbis State.
    It is argued that nothing can be deduced from tbe adjudications of this court, under tbe 19th section of the act of 1794, in relation to attachments. The case of Emcaid vs. Francis, Cooke’s Reports, p. 49, and the case of Webb & Go. vs. Lea, 6 Yerger, 473-4, are both unreasoned decisions. But they settle nothing which can, it is conceived, by any fair deduction or analogy of reason or argument, deprive the defendant of suing as a pauper. These cases simply adjudge, that if the creditor and debtor both be non-residents, the act does not operate.
    Millig-AN, for defendant in error.
    In the Record, it appears that the plaintiff in error is a citizen of the State of North Carolina, and that he obtained the writ of certiorari and supersedeas, by means of the oath prescribed for the benefit of poor persons.
    The court below held that a non-resident was not entitled to prosecute suits in • this State, in forma pau-peris, under the act of 1821, ch. 22, C. & N. p. 533, and this is the only question presented in this record.
    1. The act of 1821, ch. 22, is strictly municipal in its character, and made for the exclusive benefit of a certain class, a particular description of our own citizens. It is a part of that humane and benevolent system of legislation in Tennessee, which looks to the support, and maintenance of the poor within the limits of the State. For it is no less important to the poor man, that he should have the means of enforcing his rights in the courts of justice, without costs or charges, than that he should be allowed to hold certain articles of property exempt from execution.
    2. This question, it is insisted, if not directly decided in Tennessee, is by analogy no longer open for discussion. See 11 Hump., p. 44, JSawJdns vs. Pewrce. 1 Burrow’s Hep., 847, Bex vs. Loelcdale, et als.
    
    1. By this authority, HawJmis vs. Pearce, it is declared, our acts of Assembly from 1820, eh. 2 to 1846, ch. 169, constitute a system of poor laws for a given class or description of persons in the State, and that non-residents, who may be casually or transiently in the State, are not entitled to their benefit. It is insisted, that the act of 1821, ch. 22, is a part of that system; because it is not only comprehended by the scope of the opinion of this court in the case above referred to, but because it is supported by the very same reasons which sustain the act of 1820, ch. 2, and those subsequently passed, exempting' property from execution in the hands of the poorer classes. Both are founded in benevolence to the poor within the State, and seek their protection, comfort and support.
    2. But it is insisted by the counsel for the plaintiff in error, that the words, “ any poor person,” employed in the act of 1821, ch. 22, are much broader and more comprehensive than the words, “each individual in this State,” used in the act of 1820, ch. 2, and retained in most of the other acts exempting property from execution. It is true, the words “in this State,” which occur in the act of 1820, are not employed in the act of 1821; but the words, “ any poor person,” in the act of 1821, are no more comprehensive than the language of the 3d § of the act of 1846, ch. 169, which is: “That the provisions of this act, and the other acts which exempt property from execution, be extended to all persons who are heads of families,” and this court in the case of Mawhins v. Pewrce, expressly declare this act, (1846,) one of tbe acts comprehended in the system of poor laws, the privileges of which cannot be claimed by non-residents. As to act of 1846, see Nicholson’s Supplement, p. 231.
    3. The act of 1794, ch. i, § 19, C. and N., p. 101, in relation to attachments, contains the verjt same words of the act of 1821, ch. 22, that is: “Any person, &c., making complaint, &c.,” and yet this act has been held not to apply to non-residents. See Cooke’s Rep., Kin-caid vs. Freunds, p. 49, 53. Also, 6 Ter., Wdib vs. Lea, 473-4.
    4. The 4th art., 2d §, and 1st clause of the Constitution of the United States, is relied on by the counsel for the plaintiff in error', to sustain the view entertained by him of the act of 1821; but, as I insist, that clause of the Constitution brings no support to the position assumed by the counsel. It simply declares each citizen of a State, a citizen of the United States, and as such, confers on him rights and privileges throughout the whole Union. If this were not so, then a citizen of our State, would not be a citizen of the United States when in another, and the States would be completely foreign, and the citizens of one, aliens when in another.
    So I conclude there is no argument to be drawn from the Constitution of the United States, which conflicts with the ruling of the court below in this cause.
    For these reasons, I insist the judgment of the circuit court ought to be affirmed.
   OaRUtheRS; J.,

delivered the opinion of the court.

The only question presented in this case, is, whether non-residents are embraced in the provisions of the act of 1821, cb. 22, authorizing suits to be brought by poor persons, without giving security for costs.

¥e cam see no reason for the exclusion of non-residents from the benefit of this act. They are not excluded in terms or by any fair construction. It would be against tliat comity and good neighborhood, which should exist aud be fostered by the several States, toward the citizens of each other, to make a distinction between them as to the mode of asserting their rights. Courts should not be open to one and closed against the other. ~We would not give such a construction to any act of our legislature, unless constrained to do so by its express provisions, or some rule of clear and necessary policy or fixed principle of international law. There is nothing in the act indicating an intention to confine its benefits to citizens of our own State. The language, used is general, “any person who shall take the oath hereinafter prescribed.”

The case of Hawkins vs. Pearce, 11 Hump., 44, in which the benefits of the acts of 1820, ch. 11, and sundry others on the same subject down to 1846, ch. 169, exempting certain property from execution for debt, was certainly correctly decided. But the reason and principle of that case do not apply to this. In most of those acts, perhaps all but the last, the provision is expressly for citizens of this State. But independent of this fact, a sound policy would so limit them. Their object is to secure benefit or the means of living, to the families of those of our own people, who by misfortune or improvidence become involved beyond their ability to pay. It was thought better, and more in accordance with humanity, and the interests of the State, that creditors should lose their just claims to that extent, than that the wives and children of unfortunate debtors should be reduced to entire destitution, and possibly become a charge to the community. These -reasons and objects could not be made properly to apply in the case of citizens of other States, who might be indebted to ours. We are under no obligation to make provision for them. They must look to their own governments for protection.

■ But here the question, we think, is certainly different. It is whether our courts shall be open to non-residents for the- assertion of their rights on the same terms as our own citizens. Shall a stranger, because he is poor and friendless, be denied the aid of our laws in the recovery or defence of his rights? We think not. Such could not have been the intention of the legislature.

Let the judgment of the court below be reversed, and the cause remanded.  