Opinion
1812.
The original attachment and affidavit are, like other leading process, parts of the record, and in pleading to them, oyer need not be craved. [See Carter v. Vaulx, 2 Sw., 640, where this case is cited.]
To sustain an original attachment, one of the parties must be a resident of the State. [Acc. Webb v. Lea, G Y., 473; 3 Hum., 590; Meigs, 207, note. But changed by statute. Hills v. Lazelle, 5 Sn., 363. Code, 3455.]
This provision of our attachment laws is not in conflict with the Constitution of the United States, Art. IV, sec. 2, which provides that citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.
That clause of the Constitution was probably intended to compel the general government to extend the same privileges and immunities to the citizens of every State.
[Cited in: 3 Tenn. Chy., 47.]
The cause was argued at the last term by Dickinson, for the plaintiff, and Whiteside, for the defendant; and at this term by Beck, for the plaintiff, and Whiteside, for the defendant.
Kincaid sued out an original attachment against Thomas, who was not an inhabitant of Tennessee, in his lifetime; and upon a garnishee being summoned, filed his declaration in debt, in the usual form, for $117.60. After this, Thomas died, and letters of administration were granted to Thomas W. Francis. A scire facias was then sued out against Francis, to revive the suit; to which he appeared and pleaded in abatement that the plaintiff was not an inhabitant of Tennessee, but resided in Pennsylvania. The question in this Court was, whether a citizen of Pennsylvania could commence a suit, by original attachment, against another citizen of Pennsylvania, in the courts of this State.
For the defendant, it was argued that the act of Assembly of this State, authorizing original attachments to be issued, only applied to cases where one of the parties was not an inhabitant of Tennessee. The statute, Hay. Rev. 183, section 21, provides, "that when any person, who shall be an inhabitant of any other government, so that he can not be personally served with process, shall be indebted to any person, resident of this State, and hath any estate within the same, any of the judges, or justices may grant an attachment against the estate of such foreign person: And in case of the death of any debtor residing without the limits of this State, the creditor, resident within the State, shall in like manner be entitled to recover, by attachment, against the executor or administrator of such non-resident." From this it was argued that the right to sue out an original attachment under this clause could never exist, except where the plaintiff was a resident of Tennessee, and the defendant a citizen of some other State. The original attachment, it was also said, was a new remedy, depending solely upon the statute for its existence; and therefore the plaintiff should, in every case, show that he was within its provisions, or he would not be benefited by it
For the plaintiff, it was argued that the distinctions in the statute, drawn between citizens of this State and citizens of any other State, were against the Constitution of the United States; for by that it is provided, art. 4, section 2, "that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." And that, therefore, the legislature of Tennessee were not authorized to pass any statute showing a favor to her own citizens not extended to the citizens of any other State.
It was also argued that this Court could not judically know the defendant was not a citizen of Tennesseee; because, although it appeared so in the original attachment, yet that this was not necessarily a part of the record; and as oyer had not been craved of it, that the court could not now look into it; and it was very clear that if either of the parties was an inhabitant of this State, the remedy, by original attachment, was well settled, as would appear by another clause in the same statute.
To the plea in abatement, filed by the defendant, there is a demurrer which must be overruled. The act of Assembly is plain, express, and can not be misunderstood; it evidently limits the commencing of a suit, by original attachment, to citizens of this State, or against citizens of this State; and never can operate where both parties are non-residents. The Constitution of the United States is not incompatible with this act of Assembly. The object of the Constitution was to secure to the citizens of every State an equal administration of justice as it regarded their essential rights, either of property or person, by the courts of every State; and was not at all intended to interfere with the mode of prosecuting those rights. This seems to have been the understanding of several States, as some of them have passed such discriminating laws: for instance, in Kentucky, a non-resident is compelled to give security for costs before he can commence a suit of any description; whereas, the citizens of the State are under no such necessity. The constitutionality of such laws has not been questioned by any adjudicated case within my knowledge.
I admit that the Legislature of Tennessee has no right to pass a law violating the provisions of the Constitution of the United States, but the clause in the statute now under discussion is nohow violative of that instrument. It was alone the object of the framers of the Constitution, by inserting the section which had been relied upon by the counsel for the plaintiff to secure the administration of impartial justice when the cause got into court, alike to the non-resident and to the citizen. It requires only for instance, that it shall be necessary to produce the same evidence, in order to support an action by a citizen as if it had been brought by an inhabitant of another State, but it never meant to disturb the local policy of the several States as to the mode of commencing actions. We must then be governed by the statute before referred to, which, taking it altogether, requires that one of the parties shall be a citizen of this State before an original attachment can issue.
Nor was it necessary in this case to have craved oyer of the attachment. It was already a part of the record, and craving oyer would only be unnecessarily putting again that upon the record which was already there.
And now at this day the following written opinion of the Court was delivered by Judge White: —
This is a case of an original attachment against a nonresident defendant. The attachment and the affidavit on which it is founded, state the defendant to be a citizen of another State. The defendant, without craving oyer of the attachment or affidavit, has plead in abatement that the plaintiff is a citizen of Pennsylvania. To this plea the plaintiff has demurred, and in support of the demurrer it has been insisted, 1st, That the plea is bad, because it does not show that the defendant, as well as the plaintiff, is a citizen of another State; and that as oyer has not been craved, the Court can not look into the record further back than the declaration. 2d, That if the plea bad shown that both parties were non-residents, still it ought not to be supported, because the Constitution of the United States provides, "That the citizens of each State shall be entitled to all the privileges and immunities of the citizens of any other State;" which provision it is supposed extends the operation of our statute authorizing attachments.
Upon the first ground assumed by the plaintiff's counsel, we do, not believe the demurrer ought to be sustained. To support the plea in abatement, two facts are material to be disclosed, to-wit: That both plaintiff and defendant were citizens of some other. State: The plea upon its face shows of what State the plaintiff is a citizen, and the attachment and affidavit show where the defendant resides. We believe we are authorized to look into them upon this question. The defendant needed not to have craved oyer of them; they are records of the Court. And craving oyer and setting them out would only have lengthened the plea without any possible benefit. The act of Assembly itself makes the attachment the leading process, which as to this point places it on the same footing with a capias ad respondendum. It seems to us that the plea need only disclose to the Court such facts as are material and are not already known from the preceding part of the record.
As to the second point we believe the clause in the Constitution was not designed to affect cases of this kind. Suppose the State legislature to say that a citizen plaintiff when commencing a suit need not give security for costs, but that a plaintiff who was a citizen of another State should, or that a citizen defendant should be summoned, and that a defendant who was not a citizen should be compelled to give special bail to the action, would these provisions be inconsistent with the Constitution? it is conceived not. The States, it seems to us, are still left at liberty to prescribe the mode of commencing and conducting suits in their own courts, and that if they provide extraordinary remedies for their own citizens in extraordinary cases, it will not from thence follow that citizens of other States can claim them likewise; they are still left at liberty to pursue their debtors in the ordinary way where they can be found.
It seems to us most probable that this clause in the Constitution was intended to compel the general government to extend the same privileges and immunities to the citizens of every State, and not to permit that government to grant privileges or immunities to citizens of some of the States and withhold them from those of others; and that it was never designed to interfere with the local policy of the State governments as to their own citizens. The question must then be decided upon our attachment law. And to authorize an attachment, some one or both of the parties must be citizens of this State. If the defendant is a citizen, and absconds, the attachment can issue, whether the plaintiff is a citizen or not. If the defendant is not a citizen, the attachment can only be taken by a creditor who is a citizen.
The plea must be sustained, and the attachment abated.