103 Tenn. 399 | Tenn. | 1899
This case, as presented now, involves alone a controversy between adversary counsel with regard to the nature of the decree which should be entered under the mandate of the Supreme Court of the United States.
The Embreeville Ereehold, Land, Iron and Railway Company (limited), a corporation organized under the laws of Great Britain and Ireland for
The respective counsel of Blake and Rogers, Brown & Co. and of the Tennessee creditors and alien creditors of this corporation differ radically in their construction of the opinion and mandate. The contention for the first named creditors is that the judgment of the Supreme Court of the United States places them in the same class with the Tennessee creditors, and that with the latter
Under this contention, the claims of all- creditors, without regard to this statutory preference, are to be tabulated for the purpose of ascertaining the pro rata to be paid to each, and when so ascertained and the shares of these Ohio creditors are paid to them, the whole of the balance of the assets ofthe corporation must be applied, if need be. to the extinguishment of the Tennessee • claims, and thereafter as already indicated. The insistence of the Ohio creditors is rested upon, the opinion of that Court, the gist of which is found in the following paragraph:
*404 “We adjudge that when the general property and assets of a private corporation, lawfully doing business in a State, are in course of administration by the courts of such State, creditors who are citizens of other States are entitled, under •the Constitution of the States, to stand upon the same plane with creditors of like- class who are citizens of such State, and cannot be denied equality of right simply because they do not reside in that State but are citizens residing in other States of the Union. The individual plaintiffs in error were entitled to contract with this British corporation, lawfully doing . business in Tennessee, and deemed and taken to be a corporation of that State; and no rule in the distribution of its assets among creditors could be applied to them as resident citizens of Ohio, a.nd because they were not citizens of Tennessee, that was not applied by the Courts of Tennessee to creditors of like character who were- citizens of Tennessee.” 172 U. S. Rep., 259.
It is contended by these creditors that in this paragraph the Court, in express terms, announced the rule of equality between themselves and the Tennessee creditors, and that this equality can only be secured by giving them the same preference in distribution which the latter creditors have secured to them under the statute.
On the other hand, the creditors citizens of Tennessee and the creditors who are citizens of for
It is further insisted by them that the Supreme Court o'ff the United States did not, by its mandate, intend to direct this Court 'to interpolate the Act of 1877, tvith a provision giving preference to creditors who had repudiated it, but that its mandate is fully complied with when • this Court, in favor of the Ohio creditors, directs an administration of the assets of this insolvent corporation so as to give them full and proportionate shares, as if this Act was not iu existence, and that having thus done equity in their favor, the fifth section of this Act immediately becomes operative, under the terms of which complainants, as preferred creditors, work out a satisfaction of their claims.
While it is possible the Supreme Oourt of the United States did not have in mind this phase of the question, yet I think in its opinion there is laid down in general, but clear and unmistakable terms, a rule under which the' Ohio creditors are entitled to what they now claim. .That Court has said that, so far as they were concerned, the fifth section of the Act was void, because violative of that clause of the Federal Constitution which provides, “the citizens of each State shall be entitled to all privileges and immunities of citizens in' the several States,” and the case has been remanded to this Court, with direction that we see. no advantage accrues to home creditors over the Ohio creditors. It is evident that administering the assets as it is now adjudged shall be done, a valuable “privilege” is secured to the Tennessee creditors, of. which the Ohio creditors are deprived. I think this is in the face of the opinion and mandate.