finally adjudged to be his property, and not | Gay, Administrator, v. Morgan, Executor, subject to the claims of creditors of Morgan, et al., but the careful reading and consideraand prayed to set off the one half of the rent tion which we have given the opinions and wrongfully collected between 1884 and 1891 decrees of the supreme court, and particuagainst the one half due for the years 1891 larly the supplemental decree in all the cases and 1892, and for a judgment over against consolidated, give us the firm impression the receiver for any surplus. The trial court that the court intended to hold and declare sustained his defense so far as to decree a full that the portions recovered by said heirs set-off to the claims of the receiver. The were theirs of right, and that they were to supreme court of the state affirmed the trial have them, not only free of the claims of court in this respect, but amended the judg. creditors of the estate of Oliver J. Morgan, ment SO “as to reserve the defendant's but free from all costs and claims except as right to demand of and recover from the in the several decrees adjudged, and as thereplaintiff the residue of the amount of the after might be necessary in effecting partirents he has collected in excess of the sum ac- tion.” And in the decree it was among tually due by the defendant, after a suffi- *other things adjudged that "so much of said[237 ciency thereof has been used to extinguish by decree of June 2, 1893, as the same is of reccompensation the demands of said receiver in ord herein, as charges or attempts to charge this suit.” 49 La. Ann. 668. Whereupon the said John A. Buckner and Etheline Buck. the receiver sued out this writ of error. ner as the owners of one half of Melbourne

Two questions are presented: First, Was plantation, or that attempts to charge their the defendant entitled to set off against the said one half of said Melbourne plantarent unquestionably due for the undivided tion with lien privilege to contribute or to half of the plantation for 1891 and 1892, one recuse the contribution of the sum of seven half of the amount paid by him for rent be thousand three hundred and forty-seven tween 1884 and 1891, on the ground that it .30 dollars to the payment of costs, disburse. had been finally adjudged that he was the ments, and solicitors' fees allowed by the owner of one undivided half of the planta court in and for the prosecution of the bill tion, and therefore that the receiver had im- and action in case No. 6612 of the cases properly collected the rent therefor and, sec. herein consolidated, be, and the same are, ond, if he was entitled to such set-off, was he canceled, abrogated, annulled, and taken precluded from obtaining the benefit of it from said decree, and that the said John in the state courts by the fact that the re- A. Buckner and Etheline Buckner, be, ceiver was an officer of the Federal court, or and are now decreed to take and hold

by any proceedings had in that court? said one half of the said Melbourne plan[236] *The contention of the receiver is that the tation allotted to them free from said

defendant's right to one half of the planta- charge and liability for said costs, disburse-
tion dates from the decree in 1891, while the ments, and solicitors' fees charged against
defendant insists that it dates from the con- them in said decree of June 2, 1893, as con-
veyance in 1858, and that the decree only tribution to the expenses of the prosecution
determined a pre-existing right. We concur of said cause No. 6612 and of the causes
in the latter view. As a rule courts do not herein consolidated.” Obviously, the effect
create, but simply determine rights. The of this last decree was to materially modify
adjudication that the defendant was enti- the terms of prior orders and decrees, and to
tled to an undivided one half of the planta change the relations of the defendant as the
tion was neither a donation nor an equitable owner of one half of the Melbourne planta-
transfer of property in lieu of other claims. tion to the receivership.
It was a determination of a pre-existing The provision in the decree of this court
right, and that right dates and could only in reference to the division between the cred-
date from the conveyance in 1858.

itors and the heirs of the moneys in the hands The conclusions of the circuit court of the of the receiver after paying his expenses and United States, as expressed in an opinion compensation is one evidently applicable in and passed into a decree,-a decree not ap- case of the sale of the entire property, and pealed from, and therefore final between the cannot be construed as charging against the parties,--are to the same effect. Such opin. defendants, the heirs of Mrs. Morgan, any ion and decree appear in the record. In the share of the costs incurred by the creditors opinion, which was announced after the de- of Mr. Morgan, in their efforts to subject his cision of this court in 139 U. S. 388 [35: property to the payment of their debts. 199), it was said: “From this last opinion Rents follow title, and the owner of the and decree of the supreme court in the mat- realty is the owner of the rent. So that from ter, we are forced to conclude that the por- 1884 to 1891, and while the question of title tions of lands set off and adjudged to the was in dispute, the defendant was paying to heirs of Julia Morgan and heirs of 0. H. the receiver rent for an undivided half of the Kellam, Jr., were so set off and adjudged to plantation, property which was absolutely them as the owners thereof in their own his own, and which the receiver ought not to right as the heirs of Julia Morgan and 0. H. have had possession of. The rent thus col. Kellam, Jr., who were the heirs of Narcisse lected belonged to defendant, and could not Deeson, the wife of Oliver J. Morgan, and not be taken *by creditors of Morgan or appro[238] to them in any way as the heirs of Oliver J. priated to pay the cost of their lawsuits. So Morgan or as creditors or claimants of his it is that the receiver, having in his possesestate.

The heirs of Julia Morgan sion money belonging to the defendant, to and Oliver H. Kellam, Jr., participated in wit, the rent of one half the property from the fund recovered in the original case of 1884 to 1891, now asks a judgment which


shall compel defendant to pay him a further | 1. A state statute giving to residents of that sum. This cannot be. This is not a case state a priority over nonresidents in the dis in which a defendant indebted to an

tribution of the assets of a foreign corporatate which is insolvent and can therefore

tion which, by filing its charter or articles pay its creditors only a pro rata amount

of association in the state is deemed a cor

poration of that state, is, so far as it disseeks to set off a claim against the estate in

criminates against citizens of other states, in absolute payment of a debt due from him to

violation of U. S. Const. art. 4, giving equal the estate, thus obtaining a full payment privileges and immunities to the citizens of which no other creditors can obtain. For the several states. here one undivided half of the plantation was 2. The constitutional guaranty of equal privl. never the property of the estate vested in the leges and immunities to citizens forbids only receiver. It was wrongfully taken posses- such legislation affecting citizens of the resion of by him. The rent therefor all the

spective states as will substantially or pracwhile belonged to the defendant, and the re

tically put a citizen of one state in a condi. ceiver holds it, not as money belonging to the

tion of alienage when he is within or when estate, but to the defendant. To allow him

he removes to another state, or when assert

ing in another state the rights that common. to keep that money, and still recover an ad

ly appertain to the people, by and for whom ditional sum from the defendant, would be

the government of the Union was established. manifestly unjust.

3. A corporation is not a citizen within the It is said in the brief that the court first

meaning of the constitutional provision that acquiring jurisdiction has a right to continue "the citizens of each state shall be entitled its jurisdiction to the end. We fail to see to all privileges and immunities of citizens the application of this. The receiver volun- of the several states." tarily went into the state court, and, having 4. A corporation of another state cannot involuntarily gone there, cannot question the

voke the constitutional guaranty of equal right of that court to determine the contro

privileges and immunities of citizens in case versy between himself and the defendant.

of a discrimination against it in favor of the

residents of a state, in respect to participa. A similar proposition was often affirmed in

tion in the assets of an insolvent corporation. cases of bankruptcy, although by $ 711, Revised Statutes, the courts of the United States 5. A corporation of another state is not de

prived of property without due process of are given exclusive jurisdiction "of all mat

law by denying it equality with residents of ters and proceedings in bankruptcy.” Mays the state in the distribution of the assets of v. Fritton, 20 Wall. 414 [22: 389); Win. an insolvent corporation. chester v. [leiskell, 119 U. S. 450[30: 462], 6. A corporation not created by the laws of a and cases cited in the opinion. The same state, nor doing business in that state unrule applies here. The question presented is, der conditions that subject it to process from not how the estate belonging to the receiver the courts of that state, is not within the shall be administered, but what is the estate

jurisdiction of that state, within the meanbelonging to him. The two questions are en

ing of the constitutional provision that no

state shall "deny to any person within its tirely distinct. Further, the right to sue a

jurisdiction the equal protection of the laws." receiver appointed by a Federal court with

7. The Tennessee statute of March 19, 1877, out leave of the court appointing him is

80 far as it subordinates the claims of private granted by the act of August 13, 1888, chap. business corporations of other states, who are 866, § 3, 25 Stat. at L. 436. A counterclaim creditors of a corporation doing business in or set-off comes within the spirit of that act. that state under that statute, to the claims And certainly no objection can be made to agalnst the latter corporation of creditors

the allowance of a set-off, when, as here, it residing in Tennessee, is not a denial of the [239]is *simply in harmony with the decrees of the "equal protection of the laws," secured by Federal court, and in no manner questions

the 14th Amendment to the Federal Constitu. their force or efficacy.

tion to persons within the jurisdiction of the

The jurisdiction of the state court is there-
fore clear, and the judgment of the Supreme

(No. 6.)
Court of Louisiana is affirmed.

Submitted November 8, 1897. Decided Do

cember 12, 1898.
and Hull Coal & Coke Co., Piffs. in Err.,

state of Tennessee to review a judgment CALVIN M. MCCLUNG, William P. Smith, of that court adjudging that the Tennessee William B. Keener, Franklin H. McClung,

law of March 19, 1877, was constitutional, Jr., and Charles J. McClung, Jr., Partners and that creditors of an insolvent company, as C. M. McClung & Co., et al.

residents of the state of Tennessee, are en

titled to priority of payment out of the as. (See S. C. Reporter's ed. 239-269.)

sets of said company over all other creditors

of said company, who do not reside in said State statute, when unconstitutional-equal state, etc. Affirmed as to the Coal & Coke

privileges and immunities to citizens-cor. Company, and reversed as to other plaintiffs,
poration, when not a citizen--participa. citizens of Ohio, and cause remanded for fur.
tion in assets-due process of law-corpo- ther proceedings.
ration, when not within jurisdiction of

The facts are stated in the opinion.
state-l'ennessee statute of March 19, Messrs. Heber J. May and Tully R.


Messrs. Henry H. Ingersoll, John W. payment of debts over all simple * contract(248) Green, and Charles Seymour for defend- creditors, being residents of any other coun. ants in error.

try or countries, and also over mortgage or

judgment creditors, for all debts, engage 240] *Mr. Justice Harlan delivered the opin- ments, and contracts which were made or ion of the court:

owing by the said corporations previous to This writ of error brings up for review a the filing and registration of such valid final judgment of the supreme court of Ten- mortgages, or the rendition of such valid nessee sustaining the validity of certain pro- judgments. But all such mortgages and visions of a statute of that state passed judgments shall be valid, and shall consti. March 19th, 1877.

tute a prior lien on the property on which The chief object of the statute was declared they are or may be charged as against all to be to secure the development of the min- debts which may be incurred subsequent to eral resources of the state, and to facilitate the date of their registration or rendition. the introduction of foreign capital. $ 7. The said corporations shall be liable to tax

It provides, among other things, that ation in all respects the same as natural per"corporations chartered or organized under sons resident in this state, and the property the laws of other states or countries, for the of its citizens is or may be liable to taxa

purpose of mining ores or coals, or of quar- tion, but to no higher taxation, nor to any 241 ]rying stones *or minerals, of transporting the other mode of valuation, for the purpose of

same, or erecting, purchasing, or carrying taxation; and the said corporations shall be
on works for the manufacture of metals, or entitled to all such exemptions from taxa.
of any articles made of or from metal, tim- tion which are now or may be hereafter
ber, cctton, or wool, or of building dwelling granted to citizens or corporations for the
houses for their workmen and others, or gas purpose of encouraging manufacturers in
works, or waterworks, or other appliances this state, or otherwise.” Acts of Tenn.
designed for the promotion of health, good 1877, p. 44, chap. 31.
order, or general utility, in connection with The case made by the record is substan.
such mines, manufactories, and dwelling tially as follows:
houses, may become incorporated in this

The Embreeville Freehold Land, Iron, & state, and may carry on in this state the Railway Company, Limited,—to be hereafter business authorized by their respective char- called the Embreeville Company,—was a cor. ters, or the articles under which they are or poration organized under the laws of Great may be organized, and may enjoy the rights Britain and Ireland for mining and manuand do the things therein specified, upon the facturing purposes. In 1890 it registered terms and conditions, and in the manner and its charter under the provisions of the above under the limitation herein declared.” § 1. statute, and established a manager's office in

The second section provides for the filing Tennessee. It purchased property and did
in the office of the secretary of state by a mining and manufacturing business there,
"each and every corporation created or or transacting its affairs in this country at and
ganized under or by virtue of any govern- from its Tennessee office.
ment other than that of the state, of the

On the 20th day of June, 1893, C. W. Mccharacter named in the first section of this Clung & Co. and others filed an original genact, desiring to carry on its business” in the eral creditors' bill in the chancery court of state, of a copy of its charter or articles of Washington county, Tennessee, against this association, and the recording of an abstract company and others, alleging its insolvency of the same in the office of the register of and default in meeting and discharging its each county in which the corporation pro- current obligations; charging that it had poseş to carry on its business or to acquire made a conveyance in trust of certain pero any lands. 8 2.

sonal property in fraud of the rights of its The third section declares that, “such cor- other creditors, and asking the appointment porations shall be deemed and taken to be of a receiver and the administration of its corporations of this state, and shall be sub-affairs as an insolvent corporation. The ject to the jurisdictions of the courts of this court took jurisdiction of the corporation, state, and may sue and be sued therein in sustained the bill as a general creditors' bill, the mode and manner that is, or may be, by appointed a *receiver of its property in Ten-1243} law directed in the case of corporations nessee, administered its affairs in that state, created or organized under the laws of this and passed a decree adjudicating the rights state." $ 3.

and priorities of certain creditors. The fifth section provides:

No question is made in respect of the "3 5: That the corporations, and the prop- amount due to any one of the creditora erty of all corporations coming under the whose claims were presented. provisions of this act, shall be liable for all The company maintained its home office in the debts, liabilities, and engagements of the London, its managing director resided there said corporations, to be enforced in the man and after this suit was instituted liquidation ner provided by law, for the application of under the companies' acts of Great Britain the property of natural persons to the pay. was there ordered and begun. ment of their debts, engagements, and con

There were holders of debentures executed tracts. Nevertheless, creditors who may by the British company whose claims were be residents of this state shall have a prior not specifically adjudicated in the decree beity in the distribution of assets, or subjec- low. The original debenture issue amounted tion of the same, or any part thereof, to the to $500,000, and another issue, subsequent 172 U. S. U. S., BOOK 43. 28


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in time, and in respect of which priority in state of Tennessee, are entitled to share ratright was claimed, amounted to $125,000. ably in the assets of the defendant EmbreeAll the holders of those issues are nonresi. ville Company being administered in this dents of Tennessee and of the United States. cause after the payment of the Pittsburgh There was also a general trade indebtedness Iron & Steel Engineering Company and tho aggregating about $90,000 due by the com- Tennessee creditors (except the coke stopped pany to residents of Great Britain. Those in transitu)." And the decree in the chanclaims were specifically adjudicated by the cery court of appeals contained, among other decree.

provisions, the following: “That all of the Among the creditors of the company at holders and owners of the debenture bonds the time this suit was instituted were the of the company are simple-contract creditors plaintiffs in error, namely: C. G. Blake, of said company, and stand upon the same whose residence and place of business was in footing in reference to the distribution of Ohio; Rogers, Brown, & Company, the mem- the assets of the company as all other of its bers of which also resided in Ohio and car- creditors residing out of the state of Tennesried on business in that state; and the Hull see;" and that the “portion of the chancel. Coal & Coke Company, a corporation of Vir- lor's decree giving priority of payment to ginia. In the intervening petitions filed by such of the creditors of *said company who[245) those creditors it was averred that the plain- reside in the United States of America, but tiffs in the general creditors' bill, residents not in the state of Tennessee, and to such of Tennessee, claimed priority of right in the creditors now residents of Tennessee who distribution of the assets of the insolvent dealt with the company in relation to its corporation over other creditors of the cor. Tennessee office, over all alien creditors of poration "citizens of the United States, but said company, be, and the same is hereby, not of the state of Tennessee;" and that the reversed, it being here adjudged that all the said statute was unconstitutional so far as it creditors of said company residing out of gave preferences and benefits to the plain the state of Tennessee must share equally tiffs or other citizens of Tennessee over the and ratably in the distribution of the funds petitioners or other citizens of the United of said company after the Tennessee creditStates.

ors shall have been paid in full.By the final decree of the chancery court

The cause was carried to the supreme of Washington county, it was, among other court of Tennessee, and so far as the plainthings, adjudged that the act of 1877 was tiffs in error are concerned was heard in that constitutional; that all of the creditors of court upon appeal from the court of chancery

the Enıbreeville Company residing in Tennes appeals, as well as upon writs of error to the [144]see were entitled to priority of satisfaction chancery court. out of its assets (after the payment out of

It was adjudged by the supreme court of the proceeds of the real estate of the claim the state that the act of March 19th, 1877, of the Pittsburgh Iron & Steel Engineering was in all respects a valid enactment, and Company) as against its other creditors who not in contravention of paragraph 2 of arwere "residents and citizens of other states ticle IV. or of the Fourteenth Amendment of the United States or other countries;” of the Constitution of the United States, nor that the creditors who were "citizens of other in contravention of any other provision of states of the United States, and who con. the National Constitution; that all of the tracted with the company as located and do- holders and owners of the debenture bonds ing business in Tennessee, are entitled to of the Embreeville Company were simpleshare ratably in its assets, being adminis. contract creditors of the company, and stood tered in this cause next after the payment upon the same footing with reference to the of the Pittsburgh Iron & Steel Engineering distribution of its assets as all of its other Company and the Tennessee creditors.

creditors who "reside out of the state of TenUpon appeal to the chancery court of ap- nessee, whether they be residents of other peals the decree of the chancery court was re- states or of the Kingdom of Great Britain; versed in certain particulars. In the find that all of the creditors of the Embreeville inge of the chancery court of appeals it was Company” who resided in the state of Tenstated that the chancery court of Washing. nessee are entitled to priority of payment ton county adjudged, among other things, out of all the assets of said company, both that “under the act of 1877 (which was ad- real and personal, over all of the otler credjudged constitutional) all the creditors of itors of said company who do not reside in said Embreeville Company residing in Ten the state of Tennessee, whether they be resi. nessee are entitled to priority of satisfac- dents of other states of the Uniter States tion out of the assets of the Embreeville or of the Kingdom of Great Britain; that Company (after the payment out of the pro- all of the creditors of the Embreeville Freeceeds of the real estate of the claim of the hold Land, Iron, & Railway Company who Pittsburgh Iron & Steel Engineering Co.) reside out of the state of Tennessee, whether as against the other creditors of said com- they reside in other states of the United pany who are nonresidents and citizens of States or in the Kingdom of Great Britain, other states of the United States or other have the right and must share equally and countries; that the other creditors of the ratably in the distribution of sad funds of Embreeville Company who are citizens of the said company after the residents of the other states of the United States, and who state of Tennessee shall have been first paid contracted with the said Embreeville Com- in full. pany as located and doing business in the * The plaintiffs in error contend that the[240

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judgment of the state court, based upon the | Tennessee, but who were citizens, not simply statute, denies to them rights secured by the residents, of some other state or country. second section of the fourth article of the It is impossible to believe that the statuto Constitution of the United States providing was intended to apply to creditors of whom that "the citizens of each state shall be en- it could be said that they were only residents titled to all privileges and immunities of cit. of other states, but not to creditors who were izens in the several states," as well as by the citizens of such states. The state did not in. first section of the Fourteenth Amendment, tend to place creditors, citizens of other declaring that no state shall “deprive any states, upon an equality with creditors, citi. person of life, liberty, or property without zens of Tennessee, and to give priority only due process of law,” nor "deny to any per- to Tennessee creditors over creditors who reson within its jurisdiction the equal protec- sided in, but were not citizens of, other tion of the laws."

states. The manifest purpose was to give to We have seen that by the third section of all Tennessee creditors priority over all credthe Tennessee statute corporations organized itors residing out of that state, whether the under the laws of other states or countries, latter were citizens or only residents of some and which complied with the provisions of other state or country. Any other interthe statute, were to be deemed and taken to pretation of the statute would defeat the obbe corporations of that state; and by the ject for which it was enacted. We must fifth section it is declared, in respect of the therefore consider whether the statute inproperty of corporations doing business in fringes rights secured to the plaintiffs in erTennessee under the provisions of the stat- ror, citizens of Ohio, by the provision of the ute, that creditors who are residents of that second section of article IV. of the Consti. state shall have a priority in the distribu- tution of the United States declaring that tion of assets, or the subjection of the same, the citizens of each state shall be entitled to or any part thereof, to the payment of debts, all privileges and immunities of citizens in over all simple-contract creditors, being resi- the several states. dents of any other country or countries. Beyond question, a state may through ju.

The suggestion is made that as the statute dicial proceedings take possession of the asrefers only to “residents,” there is no occa- sets of an insolvent foreign corporation with sion to consider whether it is repugnant to in its limits, and distribute such assets or the provision of the National Constitution their proceeds among creditors according to relating to citizens. We cannot accede to their respective rights. But may it exclude this view. The record shows that the liti. citizens of other states from such distribugation proceeded throughout upon the the- tion *until the claims of its own citizens shall(248) ory that the plaintiffs in error, Blake and have been first satisfied! In the administrathe persons composing the firm of Rogers, tion of the property of an insolvent foreign Brown, & Co., were citizens of Ohio, in which corporation by the courts of the state in state they resided, transacted business and which it is doing business, will the Consti. had their offices, and that the plaintiff in tution of the United States permit discrim. error, the Hull Coal & Coke Company, was ination against individual creditors of such a corporation of Virginia. The intervening corporations because oi their being citizens petition of the individual plaintiffs in error, of other states, and not citizens of the stato as we have seen, states that they were resi. in which such administration occurs? dents of Ohio, engaged in business in that

These questions are presented for our destate, their residence, offices and places of termination. Let us see how far they havo business being at the city of Cincinnati, and been answered by the former decisions of this that they were citizens of the United States, court. and not citizens of Tennessee. Although

This court has never undertaken to give these allegations might not be sufficient to any exact or comprehensive definition of the

show that those parties were citizens of Ohio words "privileges and immunities” in article [247] within the meaning of the statute "regulating IV. of the Constitution of the United States.

the jurisdiction of the circuit courts of the Referring to this clause, Mr. Justice Cur. United States (Robertson v. Cease, 97 U. S. tis, speaking for the court in Conner v. El. 646 [24: 1057]), they may be accepted as liott, 18 How. 591, 593 [15: 497, 498], said: sufficient for that purpose in the present

"We do not deem it needful to attempt to case, no question having been made in the define the meaning of the word 'privileges' in state court that the individual plaintiffs in this clause of the Constitution. It is safer, error were not citizens, but only residents of and more in accordance with the duty of a Ohio. Looking at the purpose and scope of be determined, in each case, upon a view of

judicial tribunal, to leave its meaning to the Tennessee statute, it is plain that the the particular rights asserted and denied words “residents of this state” refer to those therein. And especially is this true when we whose residence in Tennessee was such as in are dealing with so broad a provision, involv. dicated that their permanent home or habi- ing matters, not only of great delicacy and tation was there, without any present inten. importance, but which are of such a charac, tion of removing therefrom, and having the ter that any merely abstract definition could intention, when absent from that state, to scarcely be correct; and a failure to make it return therelo; such residence as apper. so would certainly produce mischief.". Nev; tained to or inhered in citizenship. And the ertheless, what has been said by this and words, in the same statute, “residents of any other courts upon the general subject will other country or countries” refer to those assist us in determining the particular queswhose respective habitations were not in 'tions now pressed upon our attention.

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