idges for districts in other circuits. In the opinions of the referees and of the judges of the courts of bankruptcy, just referred to, there is a marked unanimity to the extent that rent to accrue in the future, if it can be called a debt, is a contingent one, both as to its amount and as to its very existence, and that there is no provision in the act of 1898 which allows proof of such debts. In the very nature of the case, there is great diversity of view as to the ground on which this ruling is placed. The opinions and judgments necessarily have relation to the terms of the contract of lease out of which the claim for future rent grew, and are largely controlled by the particular provisions of the respective instruments. Some of the opinions, however, take ground broad enough to cover the subject, without reference to the terms of leases in general use. The judge for the district of Kentucky in his opinion uses this language:

"The court sees no way to avoid the conclusion that the relation of landlord and tenant in all such cases ceases, and must of necessity cease, when the adjudication is made. If the relation does cease, the landlord afterwards has no tenant, and the tenant has no landlord. At the time of the adjudication the bankrupt is clearly absolved from all contractual relations with, and from all personal obligations to, the landlord growing out of the lease. subject to the remote possibility that his discharge may be refused,—a chance not worth considering. After the adjudication there is no obligation on the part of the tenant growing out of the lease. He not only owes no subsequent duty, but any attempt on his part to exercise any of the rights of a tenant would make him a trespasser. His relations to the premises and to the contract are thenceforth the same as those of any other stranger. He cannot use nor occupy the premises. No obligation on his part to pay rent can arise when he can neither use nor occupy the property. The one follows the other, and it seems clear that no provable debt, and, indeed, no debt of any sort, against the bankrupt, can arise for future rent. No rent can accrue after the adjudication in such a way as to make it the debt of the bankrupt, and future rent has not, in any just sense, accrued before the adjudication." In re Jefferson (D. C.) 93 Fed. 951.

The judge of the court for the Eastern district of North Carolina seems to concur in the views just stated. In his opinion we find this language:

"As to the rent of the bank: The contractual relations being terminated, a landlord is not entitled to prove a claim for rent against a bankrupt after such bankrupt ceases to use the building. The relations of landlord and tenant are severed by operation of the bankruptcy law. The trustee of his estate may, after adjudication, occupy and use the rented or leased premises for the estate; but under such circumstances it would be chargeable to the estate, not as rent under bankrupt's contract, but as cost and expenses of administering the same." Bray v. Cobb, 2 Nat. Bankr. N. 588, 100 Fed. 270.

Touching the language above quoted from the opinion of Judge Evans (In re Jefferson, supra), Judge Lowell, of the Massachusetts district, says:

"With all respect for the learned judge, I must think the above remarks made somewhat hastily, unless they are to be taken as limited to the particular lease in question, or made to depend upon some peculiar provision of the Statutes of Kentucky. Let us consider an actual example. A lease recently examined was made for a term of several hundred years, upon a payment of sixteen thousand dollars at the beginning of the term, and subject to a future rent of one dollar a year if demanded by the lessor. Clearly this would be an asset of a bankrupt's estate which the trustee would almost certainly elect to assume, and I can find nothing in the bankruptcy act which would terminate the lease and entitle the landlord to possession. Many ex

isting ground leases, also, would certainly be assumed by a trustee in bankruptcy of the lessee, and it would be unjust to hold them terminated by the adjudication. It follows, then, that the lease here in question was not determined by the bankruptcy of the lessee, but only by the re-entry of the lessor."

The actual example proposed for consideration by Judge Lowell is a leasehold in form, certainly, but it appears to be substantially, in fact, a purchase of the freehold for a present consideration paid in cash at the beginning of the term, and to have value as an asset equal to the current market price of the freehold in the premises let. It is an estate with such an inconsiderable burden as may well be disre garded, and, as the learned judge says, clearly this would be an asset of a bankrupt's estate which the trustee not only would almost certainly elect to assume, but which the creditors, or the court on their motion or on its own motion, would compel him to assume. The doctrine of election to which he refers sprung out of the state of the law in bankruptcy as it was at an early time in England construed by the common-law courts. The rule as then announced has been greatly modified in England by statutes passed from time to time, and the decision of the English courts on these various statutes, and the decisions of the state courts in this country on the various insolvency acts, are more interesting than helpful in our effort to construe the provision of our bankruptcy law now in force. Moreover, the question as to the effect that the adjudication in bankruptcy has on the relations subsisting between the landlord and tenant, while it is kindred to the question with which we are dealing, its connection therewith is by no means vital. The language of our statute affecting the claim here involved requires that the debt shall be a fixed liability absolutely owing at the time of filing the petition. Under the insolvent law of the state of Massachusetts prior to the statute of 1879, only such debts (with certain exceptions) were provable as were “absolutely due" at the time of the first publication of the notice of issuing the warrant of insolvency. The case of Bowditch v. Raymond, 146 Mass. 109, 15 N. E. 285, shows that the language “absolutely due" was treated as exactly equivalent to the language "absolutely owing," as it must be, for the statute provided for proving debts payable at a future date. After referring to numerous cases in which it had been held that under that statute future rent to accrue under a lease in which the insolvent debtor is lessee cannot be proved, it is said:

"The principle of these cases is that such rent is not a debt absolutely due at the time of the first publication. The lease may be terminated by the eviction of the lessee or otherwise, and no rent may ever accrue or become due. The lessor's claim is a contingent one. It is not contingent merely as to amount, but the very existence of the claim depends upon a contingency,"— referring to Bordman v. Osborn, 23 Pick. 295.

Further on in the opinion it is said:

"The existence of any debt in the future depends upon contingencies, and therefore the appellants' claim cannot be proved under our insolvent law prior to the statute of 1879."

In the lease before us the lessee binds himself

"To make no sublease, nor transfer said lease in whole or in part, nor use the premises for any other purpose than that herein contemplated, without the written consent of the lessor."

And again it declares:

“And. should the lessee in any manner violate any of the conditions of this lease, the lessor hereby expressly reserves to himself the right of canceling said lease without putting the lessee in default; the lessee hereby assenting thereto, and expressly waiving the legal notice to vacate the premises."

It is not so clear that this leasehold is an asset of the bankrupt's estate which the trustee would almost certainly elect to assume, or that the court should on its own motion, or on the motion of creditors, require him to assume. Nor is it quite clear what he could do with it if he did assume it. It is not necessary for us to hold that the adjudication in bankruptcy terminated this lease and absolved the relations between the landlord and the tenant thereby created, nor is it necessary or prudent to announce in advance what the holding should be in any given case which may possibly arise. We therefore content ourselves with announcing that, in our opinion, there was no error in the judgment of the district court rejecting the appellant's claim. That judgment is therefore affirmed.

(105 Fed. 601.)

WOODRUFF v. CHEEVES et al.

(Circuit Court of Appeals, Fifth Circuit. January 8, 1901.)

No. 874.

1. BANKRUPTCY-JURISDICTION OF COURTS OF BANKRUPTCY-EQUITABLE POW

ERS.

After the trustee of a bankrupt had set apart to him without objection the property exempted by the laws of the state, and the court had fixed the time for hearing the bankrupt's application for discharge, properly made, certain creditors filed a petition setting up that they held notes of the bankrupt in which he had waived his right of exemption, as permitted by the state statute, but that under the laws of the state they could only subject the exempt property to the payment of their claims by obtaining judgment thereon, and levying on such property. They prayed the court to withhold the bankrupt's discharge, and to take possession of the property through the trustee, and administer the same for the benefit of the petitioners. Held, that the court, as a court of bankruptcy, had no power under Bankr. Act 1898 to grant the prayer of such petition, either by refusing or withholding the bankrupt's discharge, no statutory ground therefor being alleged; or by taking possession of and administering the exempt property, which, under sections 6 and 70a, constituted no part of the estate in bankruptcy.

2. SAME-JURISDICTION OF PLENARY SUITS.

A district court is vested with no jurisdiction by Bankr. Act 1898 to entertain a plenary suit in equity by creditors of a bankrupt to reach and subject to their claims his exempt property on the ground that they hold notes in which he expressly waived his right of exemption.

Appeal from the District Court of the United States for the Southern District of Georgia.

Z. T. Woodruff, a citizen of Dooly county, Ga., was adjudged a bankrupt in the district court for the Southern district of Georgia, on his own petition, on January 6, 1899. On the 28th day of that month O. C. Cheeves was appointed trustee. On February 23d the trustee made his report to the court

of the articles set off to the bankrupt by him, as provided in section 47, el. 11, of the bankrupt act, and required by rule 17 of general orders in bankruptcy (32 C. C. A. xix., 89 Fed. viii.). No exception to this action on the part of the trustee was taken by any creditor within 20 days after the filing of the report. On March 23d the bankrupt filed his application for a discharge. This application was set to be heard before the judge of the court of bankruptcy on June 5th, and due notice thereof was given. On May 24 a petition was presented to the district court for that district, as follows: "In the Matter of Z. T. Woodruff, Bankrupt. In Bankruptcy.

"The petition of J. D. Lester, H. & D. Keen, the Farmers' Supply Company. Gabe Lippman, and Max Cohen respectfully shows:

"(1) That they are creditors of said bankrupt, and severally hold and own promissory notes given by the said bankrupt, containing a waiver by him of the right and benefit to the homestead and exemption allowed and prescribed by the laws of the state of Georgia.

"(2) The notes held by petitioners respectively against said bankrupt are for the principal sums following, namely: J. D. Lester, two notes, dated July 31, 1897, for $275, due October 1, 1898, with interest from October 1, 1897. at the rate of 8 per cent. and 4 per cent., respectively. On the first-mentioned note the said bankrupt has been credited with the sum of $61.70. Said bankrupt is still indebted to said Lester for the full amount of principal and interest due on said notes, after deducting said credit. Eli Woodruff is also a joint maker of said notes. Said bankrupt is indebted to H. & D. Keen on a note given by him jointly with Eli Woodruff for $100, besides interest from maturity at the rate of 8 per cent. per annum, dated January 20, 1897, and due November 1, 1897. Said bankrupt is indebted to the Farmers' Supply Company in the sum of $16.41, besides interest at 8 per cent. per annum from maturity, on a note dated January 16, 1898, and due October 1, 1898. Said bankrupt is indebted to Gabe Lippman in the sum of $21.60 principal, besides interest from maturity at 8 per cent. per annum, on a promissory note dated January 18, 1898, and due September 15, 1898. Said bankrupt is indebted to petitioner Max Cohen in the principal sum of $324, besides interest from maturity at 8 per cent. per annum, on a promissory note given by him, dated February 11, 1898, and due 12 months after date. In each and all of said notes said bankrupt has, in writing, expressly waived and renounced his right to the benefit of the exemption provided in and by the constitution and laws of the state of Georgia; said waiver being stated in said notes constituting the contract of indebtedness, and being made in accordance with the provisions of the constitution and laws of said state authorizing and empowering the debtor to waive or renounce in writing his right to the benefit of the exemption provided for by the constitution and laws of said state. "(3) O. C. Cheeves, the duly-appointed trustee of the estate of said bankrupt, has set apart the said bankrupt's exemption, and reported the items and the estimated value thereof to the court, to which report reference is hereby made.

"(4) The said bankrupt has applied to the court to have a full discharge from all the debts provable against his estate under said bankrupt act, except such debts as are excepted by law from such discharge.

"(5) Petitioner Max Cohen holds a deed to the land set apart to and constituting a portion of the exemption of said bankrupt, the said deed having been made and delivered by said Z. T. Woodruff on the 11th day of February, 1898, in accordance with section 2771 et seq. of the Revised Code of the state of Georgia (being sections 1969, 1970, and 1971 of the Code of 1882). in order to secure the debt hereinbefore mentioned. Said deed will be to the court shown.

"(6) The other petitioners above named hold no security for their aforesaid debts, save and except so far as a waiver of homestead and exemption may be construed as a security. Said notes containing said waivers will be to the court shown.

"(7) Petitioners show that, if the discharge applied for by the said bankrupt is granted by the court at this time, and without making provision for the protection of petitioners, and the enforcement of their aforesaid waivers of homestead, your petitioners will be without remedy.

"(8) Under the laws of the state of Georgia a debtor's exemption cannot be subjected to the payment of a debt containing a waiver of homestead, except by first putting said debt in judgment, and afterwards causing the execution issued thereon to be levied on the exempt property in accordance with the provisions of sections 2850 et seq. of the Revised Code of this state. If a discharge be granted by this court without reserving to petitioning creditors the right to sue on said debts and put the same in judgment, and without giving them a judgment for their said debts, or providing means whereby they may obtain judgment thereon, your petitioners would be left without means of enforcing their rights created and arising out of the aforesaid waivers of exemption by said bankrupt debtor, and will be without remedy.

"(9) The entire property of said bankrupt, so far as turned over by him to the trustee, and not consumed in expenses, has been set apart to him as an exemption. The said Eli Woodruff, joint maker of some of the aforesaid notes, as hereinbefore stated, is likewise a bankrupt, and his property is in the hands of the same trustee, and has likewise been set apart by said trustee to him as an exemption, and the said Eli Woodruff has likewise waived in the aforesaid notes signed by him all right and benefit of exemption under the constitution and laws of the state of Georgia.

"(10) Wherefore your petitioners, being without remedy at common law, pray that this honorable court may grant petitioners such relief as can be afforded and administered in a court of equity, and, if need be, to frame such remedy and appropriate form of proceeding as may protect their rights and interests in the premises. And petitioners pray that said bankrupt's application for discharge be stayed, and that the discharge applied for be not granted until petitioners are given an opportunity to enforce their said waivers of homestead, either by proceedings in the state court or in this court, as this court may determine; that, in the event a discharge be granted, the same be so molded, conditioned, and qualified as to save and reserve to petitioners their rights to reach the exemption set apart to said bankrupt, as under and by virtue of the aforesaid waivers they are severally entitled to do; that the court grant such remedies and forms of relief and authorize and direct such proceedings as may enable petitioners to render their aforesaid waivers effective, and reach the property set apart to said bankrupt as his exemption: that the court protect and preserve said exempted property, and provide for its due administration and distribution, and to this end to appoint a receiver to hold the same, and sell and administer the proceeds, or otherwise provide for the protection and due distribution of said property, under such forms, procedure, and remedies as are usual and appropriate to a court of equity; that the court grant such other and further relief as may be meet and proper. Petitioners will undertake to prove the facts stated in this petition without answer under oath from the bankrupt, or any other person who may be deemed a proper defendant to the prayers of this petition; discovery and answer under oath being expressly waived."

On the presentation of this petition the judge of the district court made thereon the following order:

"The foregoing petition read and considered, and ordered filed. and the same will be heard and passed upon in the district court of the United States for the Western division of the Southern district of Georgia, at Macon, on Monday, 5th day of June, 1899. Let the defendant bankrupt, above named, show cause in said court at said time why the prayers of said petition should not be granted.

"In open court, May 2, 1899."

To this petition the bankrupt, by his counsel, submitted: "(1) A general demurrer. (2) And for special cause of demurrer the bankrupt says that there is no authority of law for instituting the proceedings in this case. (3) That the bankrupt court has no jurisdiction over exempted property, and has no jurisdiction to administer it. (4) That the waiver of homestead relied on is no legal reason for denying bankrupt his exemption under the constitution and laws of Georgia. (5) That the exception to bankrupt's discharge, and not injunction, is the proper remedy for the petitioners. (6) For further cause of demurrer bankrupt says that there is no authority of law in the bankrupt act