from December 9, 1912, to February 28,, proof for the whole sum subject to the 1921, less a discount at the rate of 5 per discount agreed. Certainly the fact that centum per annum on the payments an- the termination of the lease happened ticipated, and for whatever sum may after the filing of the bill has no such represent its damages, estimated in the effect, although the sum was not presentmanner that we have just stated as stip-ly payable until then. When a statutory ulated in the lease. The courts below were of opinion that the $20,000 were simply an addition to the rent, that the provisions for payment upon termination of the lease were an attempt to secure a preference by accelerating the instalments, and also were in the nature of a penalty, that the analogy of bankruptcy applied, and that the claim for the abovementioned items could not be allowed. The circuit court of appeals seems to have considered also [601] that the filing of the bill had the same effect as a petition in bankruptcy in stopping claims that, like this, were not provable at that date. 144 C. C. A. 329, 230 Fed.

31.

system is administered the only [602] question for the courts is what the statutes prescribe. But when the courts without statute take possession of all the assets of a corporation under a bill like the present and so make it impossible to collect debts except from the court's hands, they have no warrant for excluding creditors, or for introducing supposed equities other than those determined by the contracts that the debtor was content to make and the creditors to accept. In order to make a distribution possible they must of necessity limit the time for the proof of claims. But they have no authority to give to the filing of the bill the effect of the filing of a petition in bankruptcy so as to exclude any previ

tures within a reasonable time before distribution can be made. Pennsylvania Steel Co. v. New York City R. Co. 117 C. C. A. 503, 198 Fed. 721, 740, 741. Of course it does not matter that the claim was perfected by the petitioner's act, after a default in the rent. The receivers would not, and Butler & Company could not, pay it, so that all agree that the petitioner's course was the prudent and only possible course to take, as it was the course that was contemplated by the covenant in the lease. Wilder v. McDonald, 63 Ohio St. 383, 397, 59 N. E. 106.

We are driven to different conclusions. In the first place, whether a letter show-ously made and lawful claim that maing that the payment of $20,000 a year was a substitute for a bonus of $340,000 was admissible or not (United States v. Bethlehem Steel Co. 205 U. S. 105, 120, 51 L. ed. 731, 737, 27 Sup. Ct. Rep. 450), we are of opinion that on the face of the lease and the figures it was dealt with as a separate item and as the inducing consideration for the sublease, the right to the whole of which was earned when the sublease was made. The summary of the clauses referring to it that we have given shows that the whole amount was to be paid in any event, whether the overleases were canceled, or a part of the rent was abated, or the leases were terminated, as well as if they ran their full course. It is true that in the reddendum the words "as rental" might be construed to embrace the later clause "together with a further sum of $20,000;" but the sentence does not compel that construction and the dominant intent and obvious fact seem to us to override any argument upon that ground. See Cox v. Harper [1910] 1 Ch. 480, 79 L. J. Ch. N. S. 307, 102 L. T. N. S. 438, 26 Times L. R. 264, 54 Sol. Jo. 305. Rent issues from the land, is not due until the rent day, and is due in respect of the enjoyment of the premises let. The $20,000 a year was to be paid whether the premises were enjoyed or not, upon a personal covenant that created a present debt, with no contingency except those possibly and lawfully accelerating the time in which it was to be paid.

We perceive no ground that would justify the rejection of the petitioner's

We agree with the petitioner that the discount on payments so anticipated should be a simple discount on the payments as they would fall due, that is. monthly, making the total, according to the master's report, $137,348.88.

The rest of the claim is for damages ultra the $20,000 a year, the difference between the rental value at the date of entry and the rent reserved, less the amount received under the twenty-thousand-dollar clause. This also was contracted for and we see no reason why it should not be paid. The contract was not that all the rent for the term should become presently due, it was not for rent at all, but was a personal covenant that liquidated the damages upon a footing that was familiar and fair. Rev. Laws, chap. 163, § 33. Woodbury v. Sparrell [603] Print, 187 Mass. 426, 428, 73 N. E. 547; International Trust Co. v. Weeks, 203 U. S. 364, 51 L. ed. 224, 27 Sup. Ct. Rep. 69; People v. St.

Mass.

Nicholas Bank, 151 N. Y. 592, 45 N. E.ON WRIT of Certiorari to the United

WILLIAM S. BUTLER & COMPANY, Inc., 73 Fed. 537; Ex parte Lynvi Coal & I.

Argued December 18, 1917. Decided Feb- v. Caldwell, 127 Mass. 242; Cotting v.

Since the lease contained no provision for damages or indemnity upon its termination, the lessor's only remedy, even as against the lessee, upon entry for default, was to take back the premises and sue for rent then accrued.

Sutton v. Goodman, 194 Mass. 389, 80 N. E. 608; Weeks v. International Trust Co. 60 C. C. A. 236, 125 Fed. 370.

N. E. 931; Smith v. Goodman, 149 Ill., C. C. A. 649, 181 Fed. 667; Slocum v. 75, 36 N. E. 621; Woodland v. Wise, Soliday, 106 C. C. A. 56, 183 Fed. 410. 112 Md. 35, 76 Atl. 502; Kalkoff v. Nelson, 60 Minn. 284, 62 N. W. 332; Bolles v. Crescent Drug & Chemical Co. 53 N. J. Eq. 614, 32 Atl. 1061; Minneapolis Baseball Co. v. City Bank, 74 Minn. 98, 76 N. W. 1024; McGraw v. Union Trust Co. 135 Mich. 609, 98 N. W. 390; Wilder v. McDonald, 63 Ohio St. 383, 59 N. E. 106; Re Reading Iron Works, 150 Pa. 369, 24 Atl. 617; Hoyle v. Scudder, 32 Mo. App. 372; Chicago Fire Place Co. v. Tait, 58 Ill. App. 293; Reynolds v. Fuller, 64 Ill. App. 134; Re Panther Lead Co. [1896] 1 Ch. 978, 65 L. J. Ch. N. S. 499, 44 Week. Rep. 573, 3 Manson, 165; Re Midland Coal, Coke & I. Co. [1895] 1 Ch. 267, 64 L. J. Ch. N. S. 279, 12 Reports, 62, 71 L. T. N. S. 705, 43 Week. Rep. 244, 2 Manson, 75; Hardy v. Fothergill, L. R. 13 App. Cas. 351, 58 L. J. Q. B. N. S. 44, 59 L. T. N. S. 273, 37 Week. Rep. 177, 53 J. P. 36.

If it be held that the bankruptcy rule is applicable, the authorities allowing claims like those of the appellant are better reasoned and much more equitable and within the spirit of the act than those barring such claims.

Ludlow v. Pugh, 130 C. C. A. 96, 213 Fed. 450; Re Keith-Gara Co. 203 Fed. 585; Re Caloris Mfg. Co. 179 Fed. 722; Martin v. Orgain, 98 C. C. A. 246, 174 Fed. 772; Re Desnoyers Shoe Co. 142 C. C. A. 97, 227 Fed. 401; New York Secur. & T. Co. v. Lombard Invest. Co. 73 Fed. 537; Ex parte Llynvi Coal & I. Co. L. R. 7 Ch. 28, 41 L. J. Bankr. N. S. 5, 25 L. T. N. S. 609, 20 Week. Rep. 105; Williams v. United States Fidelity & G. Co. 236 U. S. 549, 59.L. ed. 713, 35 Sup. Ct. Rep. 289: Central Trust Co. v. Chicago Auditorium Asso. 240 U. S. 581, 60 L. ed. 811, L.R.A.1917B, 580, 36 Sup. Ct. Rep. 412.

Mr. Frederick H. Nash argued the cause, and, with Mr. Charles F. Choate, Jr., filed a brief for respondents:

The claim is frankly one for future rent, which, by the weight of authority, in the absence of statute permitting it, is not provable under any form of wind

Mr. Justice Holmes delivered the opinion of the court:

At that time the

This case comes here upon the report of a master asking the court to decide whether two claims are provable. The first is upon a lease made by the petitioner to William S. Butler & Company. Receivers were appointed for the William S. Butler & Company corporation on November 7, 1912. winding up of the company was not contemplated by the bill or decree, but the object was to preserve the good will and pay the debts. On October 1, 1913, the petitioner entered, and on December 1, 1913, presented his proof of claims. The lease contained a clause similar to that

in the lease of William Filene's Sons

Company, just considered, providing that in case of re-entry the lessee should pay to the lessor the difference between the rental value and the rent and other payments required for the residue of the term. The claim was for rent up to the time of re-entry and for damages for the later period. It was rejected by the courts below upon the same grounds as in the former case. 144 C. C. A. 663, 230 Fed. 1021. This decision, like the other.

must be reversed.

[605] The second claim is upon a lease by Russell to the same company of which Gardiner had purchased the reversion. In substance it is for damages similar to those held allowable under the former lease, but simply on the ground that the petitioner has lost the benefit of his bargain from the time of his re-entry, the lease not containing any clause stipulating for such an allowance. Of course there are plausible analogies for the contention. But the law as to leases is not Re Haytor Granite Co. L. R. 1 Ch. 77, a matter of logic in vacuo; it is a matter 35 L. J. Ch. N. S. 154, 12 Jur. N. S. of history that has not forgotten Lord 1, 13 L. T. N. S. 515, 14 Week. Rep. Coke. Massachusetts has followed the 186; Horsey's Claim, L. R. 5 Eq. 561, 37 English tradition, and we believe that it L. J. Ch. N. S. 393, 18 L. T. N. S. 103, is the general understanding in that state 16 Week. Rep. 577; Abbott v. Stearns, that, in the absence of statute or express 139 Mass. 168, 29 N. E. 379; Bowditch contract, a lessor who has terminated a v. Raymond, 146 Mass. 109, 15 N. E. lease and evicted the tenant has no 285; Re Roth, 31 L.R.A. (N.S.) 270, 104/ further claim against the lessee. Sutton

ing up.

Mr. Justice Brandeis took no part in Stat. §§ 6343, 6344, under which transfers the decision of this case.

A. C. STELLWAGEN, Trustee for Mar- cluding the property conveyed, and adminis

The inconsistencies and conflicts be-, must fall if any part of it be in contween the Ohio Insolvency Statute and travention of the Bankruptcy Act. the national Bankruptcy Law are SO marked that, as a result of such conflict, the Ohio law must be declared suspended, and only such preferential transfers as are inhibited by § 60 of the Bankruptcy Law are subject to attack by the trustee in bankruptcy.