“The amount of the claim may be later established, but, when established, it must be the amount due and owing at the time of the declaration of insolvency, as of which time it is entitled, with the claims of the other creditors, to a ratable distribution of the assets of the bank.”
How later courts described this case
- “The amount of the claim may be later established, but, when established, it must be the amount due and owing at the time of the declaration of insolvency, as of which time it is entitled, with the claims of the other creditors, to a ratable distribution of the assets of the bank.”
- “[i]f nothing is due at the time of insolvency, the claim should not be allowed”
Written by the judges who cited it.
The opinion
MORTON, Circuit Judge
(dissenting in part).
The allowance of the claim for damages on the lease depends on whether the equity rule, or the bankruptcy rule as to provability should be followed. If *599 the former, the claim is provable under Filene’s Sons Co. v. Weed, 245 U.S. 597 , 38 S.Ct. 211 , 62 L.Ed. 497 , a Massachusetts case on indistinguishable facts; if the latter, Manhattan Properties v. Irving Trust Co., 291 U.S. 320 , 54 S.Ct. 385 , 78 L.Ed. 824 , and Irving Trust Co. v. Perry, 293 U.S. 307 , 55 S.Ct. 150 , 79 L.Ed. 379 , show that it is not.
I think the decisions of the Supreme Court compel us to follow the equity rule, The upshot of those decisions is that the Banking Act provides a complete statutory system for the liquidation of insolvent national banks; and' that the act will be construed and administered on equitable principles. Cook County National Bank v. United States, 107 U.S. 445 , at page 448, 2 S.Ct. 561 , 27 L.Ed. 537 ; Scott v. Armstrong, 146 U.S. 499 , 13 S.Ct. 148 , 36 L.Ed. 1059 ; Davis v. Elmira Savings Bank, 161 U.S. 275 , 16 S.Ct. 502 , 40 L.Ed. 700 ; Merrill v. National Bank of Jacksonville, 173 U.S. 131 , 19 S.Ct. 360 , 43 L.Ed. 640 . In the case last cited it is said in the opinion, "Does the legislation in respect to the administration of .national hanks require the application of the bankruptcy rule! If not, we are of opinion that the equity rule was property applied in this case: Fuller C T ttc m ^ 1/10 in \7,3, YÍt 11’ fnpan i n 1, ¡ 365, 43 L.Ed. 640 . On full discussion of ... , ,, ... , . , -.the authorities and the statutes which ap- , , , , /.■ 11 ..i • pear to be substantially the same m this ... ,, J. , , -particular as those now m force, the ques- *. , . , ’ H , tion was answered m the negative, and , ,. . . ,. 1. 1 , 1 . it was held that the bankruptcy rule as to ... ., . t ,, , . secured claims would not be followed in liquidations of national banks. In Chemical National Bank v. Hartford Deposit Co., 161 U.S. 1 , 16 S.Ct. 439 , 40 L.Ed. 595 , on facts which appear to be no stronger for the lessor, to say the least, -.than those in the present case, a claim - on lease against a failed national bank was held allowable. That the case came up from the state courts cannot in view of the Filene Case, I think, have affected the result. I do not find m the generalized .statements m some of the later decisions with reference to the time when rights of ■parties became fixed with reference to set-off (see Dakin v. Bayly, 290 U.S. 143, 148 , 54 S.Ct. 113 , 78 L.Ed. 229 , 90 A.L.R. 999 ), an intention, to modify or overrule the line of cases just referred to or the principle on which they rest. If the bank-ruptcy rule .is not to be applied in Banking Act cases with respect to security held on claims proved, I am unable to see on what principle it can be applied to questions of provability in such cases; as I have said, if provability is to be determined by the equity rule, the Filene Case controls the one before us. Of course the rule as to provability ought to be the same whether the liquidation is in equity, in bankruptcy, or under the Banking Act; but it is not, and it is beyond our province to make it so. The claim seems to me t° be allowable.
In other respects I concur in the majority opinion,