Mr. Justice White,
after making the foregoing statement, delivered the opinion of the court.
The following are the questions asked by the Court of Appeals :
“First. Can a creditor of a bankrupt, who has received a merely voidable preference/ and who has in good faith retained such preference until deprived thereof by the judgment of a court upon a suit of the trustee, thereafter prove the debt so voidably preferred?
“Second. Upon the issue as to the allowance of the bank’s claims was it competent, in explanation of the judgment of the Ohio Circuit Court in favor of the trustee and against the bank in respect to its $2,000 mortgage, to show the disclaimer made in open court by the attorney, representing the bank, of any claim of preference, and the grounds upon which the bank declined to consent to a judgment in favor of the trustee?
“Third. If the failure to ‘voluntarily’ surrender the rndrt- , gage-given to secure the $2,000 note operates-to prevent the allowance of that note, does the penalty extend to and require the disallowance-of both the other claims?”
Before we develop the legal principles essential to the solu[360]*360tion of the first question it is to be observed that the facts stated in the certificate and implied by the question show that the bank acted in good faith when it accepted the mortgage and when it subsequently insisted that the trustee should prove the existence of the facts which, it was charged, vitiated the security. It results that the voidable nature of the transaction alone arose from section 67c of the act of 1898, invalidating “conveyances, transfers, or encumbrances of his property made by a debtor at any time within four months prior to the filing of the petition against him, and while insolvent, which are held null and void as against the creditors of such debtor by the laws of the State, Territory or District in which such property is situate,” and giving the assignee a right to reclaim and recover the property for the creditors of the bankrupt estate.
On the one hand it is insisted that a. creditor who has not surrendered a preference until compelled to do so by the decree of a court cannot be allowed to prove any claim against the estate. On the other hand, it is urged that no such penalty is imposed by the bankrupt act, and hence the creditor, on an extinguishment of a preference, by whatever means, may prove his claims. These contentions must be determined by the text, originally considered, of section 57g of the bankrupt act, providing that “the claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences.” We say by the text in question, • because there is nowhere any prohibition against the proof,of a claim by a creditor who has had a preference, where the preference has disappeared as the result of a decree adjudging the preferences to be void, unless that result arises from the provision in question. We say also from the text as originally considered, because, although there are some decisions under the act of 1898 of lower Federal courts, which are referred to in the margin,1 denying the right of a creditor [361]*361to prove his claim, after the surrender of a preference by the compulsion of a decree or judgment, such decision rests not upon an analysis of the text of the act of 1898 alone considered, but upon what were deemed to have been analogous provisions of the act of 1867 and decisions thereunder. We omit, therefore, further reference to these decisions as we shall hereafter come to consider the text of the present act by the light thrown upon it by the act of 1867 and the judicial interpretation which was given to that act.
The text is, that preferred creditors shall not prove their claims unless they surrender their preferences. Let us first consider the meaning of this provision, guided by the cardinal rule which requires that it should, if possible, be given a meaning in accord with the general purpose which the statute was intended to accomplish.
We think it clear that the fundamental purpose of the provision in question was to secure an equality of distribution .of the assets of a bankrupt estate. This must be the case, since, if a creditor, having a preference, retained the preference, and at the same time proved his debt and participated in the distribution of the estate, an advantage would be secured not contemplated by the law. Equality of distribution being the purpose intended to be effected by the provision, to interpret it as forbidding a creditor from proving his claim after a surrender of- his preference, because such surrender was not voluntary, would frustrate the object of the provision, since it would give the bankrupt estate the benefit of the surrender or cancellation of the preference, and yet deprive the creditor of any right to participate, thus creating an inequality. But it is said, although this be true, as the statute is plain, its terms cannot be disregarded by allowing that to be done which it expressly- forbids. This rests upon the assumption that the word “ surrender ” necessarily implies only voluntary actions, and hence excludes the right to prove where the surrender is the result of a recovery compelled by judgment or decree.
[362]*362The word “ surrender/’ however, does not exclude compelled action, but to tfye. contrary generally implies'such action. That this is the primary and jommonly accepted meaning of .-the word is shown by the dictionaries. Thus, the Standard Dictionary defines its meaning as follows: 1. To yield possession' of to another upon compulsion or demand, or under pressure of a superior force; give up, especially to an enemy in warfare; as to surrender an army or a fort. And in Webster’s International Dictionary the word is primarily defined in the Same way. The word, of course, also sometimes denotes voluntary action. • In the statute, however, it is unqualified, and generic, and hence embraces both meanings. The construction, .which would exclude the primary meaning so as to cause the word only to embrace voluntary action would read into the statute a qualification, and this in order to cause the provision to be in conflict with the purpose which it was intended. to accomplish, equality among creditors. But the construction would do more. It would exclude the natural meaning of the word úsed in the statute in order, to create a-penalty, although nowhere expressly or even by clear implication found in the statute. This would disregard the elementary rule that a penalty is not to be readily implied, and on the contrary that a person or corporation is not to be subjected to a penalty unless the words of the statute plainly impose it. Tiffarly v. National Bank of Missouri, 18 Wall. 409, 410. If it had been contemplated that the word “ surrender” should entail üpói every creditor the loss of power to prove his claims if he submitted his right to retain an asserted preference to the courts for decision, such purpose could have found ready expression by qualifying the word “ surrender ” so as to plainly convey such meaning. .Indeed, the construction which would read in- the qualification would not only create a penalty alone by'judicial action, but would necessitate judicial legislation in' order to define what character and degree of compulsion was essential to prevent the surrender in fact from being a surrender' within the meaning of the section. .
[363]*363It is argued, however, that courts of bankruptcy are guided by equitable considerations, and should not permit a creditor who has retained a fraudulent preference until compelled by a court to surrender it, to prove his debt and thus suffer no other, loss than the. costs of litigation. The fallacy lies in assuming that courts have power to inflict penalties, although the law has not imposed them. ' Moreover, if the statute be interpreted, as it is insisted it should be, there would be no distinction between honest-and fraudulent creditors, and therefore every creditor who in good faith had acquired an advantage which the law did not permit him to retain would be subjected to the forfeiture simply because he had presumed to submit his legal rights to a court for determination. And this accentuates the error in the construction, since the elementary principle is that courts are created to pass upon the rights of parties, and that it is the privilege of the citizen to submit his claims to the judicial tribunals, especially in the absence of malice and when acting with probable cause, without subjecting himself to penalties of an extraordinary character. The violation of this rule, which would arise from the construction, is well illustrated by this case. Here, as we have seen, it is found that the bank acted in good faith without knowledge of the insolvency of its. debtor and of wrongful intent on his part, and yet it is asserted that the right to prove its lawful claims against the bankrupt estate was forfeited simply because of the. election to put the trustee to proof in a court of the existence of the facts made essential by the law to an invalidation of the preference.
We'are of opinion that, originally considered, the surrender clause of the statute was intended simply to prevent a creditor from creating inequality in the distribution of the assets of the estate by retaining a preference and at the same time collecting dividends from the estate by the proof of his claim against it, and consequently that whenever the preference has been abandoned or yielded up, and thereby the danger of inequality has been prevented, such creditor is entitled to stand [364]*364on an equal footing with other creditors and prove his claims.. . .
, Is thé contention well founded that this meaning, which w.e-deduce from the. text of the surrender clause of the presept act, is so in conflict with the rule generally applied in bankruptcy.acts, and is especially so contrary to the act of 1867 and the construction given tp it, that such meaning cannot be considered to hav-é been contemplated by Congress in adopting the- present aet, and hence a contrary interpretation should be applied?
Without attempting to review the English bankruptcy acts or the provisions contained therein concerning what constituted provable debts, and the decisions relating thereto,- it is clear that under those acts, where a debt was otherwise provable and the.creditor had acquired-a lien to which he was not entitled/ the English courts in bankruptcy did not imply a forfeiture by refusing to allow proof of the déb.t because there had not been a voluntary surrender of the preference. On the 'contrary, where claims wére filed against the estate by one -who was asserted .to have retained a preference, a' well-settled practice grew up, enforced from equitable considerations. The practice in question was followed -in the case of Ex parte Dobson, 4 Deacon & Chitty English Bankruptcy Reports, 69, decided in 1834, and was thus stated in thé opinion of Sir G. Rose (p. 78):
“I apprehend the.practice to be'settled, w'here a creditor to prove a debt, and claims a right to property to .which the Commissioners think he has no lien, that the Comniissionefs admit the proof, and leave the question to be controlled merely by retention of the dividend. This was settled by the case of Ex parte Ackroyd [1 Rose, 391], where the Commissioners had'rejected the proof of a creditor, because he had received a portion of' his debt, which- the assignees contended was bound to refund; but when the question came before Sir John .Leach, as Vice Chancellor, he decided that the proof of the debt was not to be rejected, because there was-a question [365]*365to be tried between the bankrupt’s assignees and the creditor, although it was proper that no dividend should be paid on that proof, until the question was determined.”
And Erskine, C. J., p. 78, after assuming that the transaction complained of might have been fraudulent and amounted to an act of bankruptcy, said — italics mine — (p. 75):
“The next part of the prayer is, that the claim should be disallowed. But though the assignment of the property may be invalid, that will not-invalidate the debt of the respondents. We. could not therefore disallow the claim, or expunge the proof, if the claim had been converted into a proof; all that we can do is, to restrain the respondents from receiving any dividends, until they give up the property.”
Thus the English rule substantially conformed to the construction we have given to the bankruptcy act before us.
Neither our bankrupt act of 1800, 2. Stat. 19, nor that of 1841, 5 Stat. 440, contained a surrender clause or any provision generally denying the right of a creditor of a bankrupt to prove his debt in the event that he had received a preference, But, under those acts, bankruptcy courts must necessarily have exercised the power of protecting the estate by preventing a creditor haying an otherwise provable debt who retained that which belonged to the estate from at the same time taking dividends from it.
The purpose of Congress when a forfeiture or penalty was intended not to leave it to arise from mere construction, but to expressly impose such penalty or forfeiture, is well illustrated by the bankrupt act of 1800, wherein numerous penalties and forfeitures were explicitly declared. Two instances are illustrative. By section 16' it was provided: “That if any person or persons shall fraudulently,- or collusively claim any debts, or claim or detain any real or personal estate of the bankrupt, every such person shall forfeit double the value thereof, to and for the use of the creditors.” And by section 28 it was provided that a creditor suing out a commission, who subsequently accepted a preference, “shall forfeit and.lose, as well [366]*366his or her whole debts, as the whole he or she shall have taken and received, and shall pay back, , or deliver up the same, or the full value thereof, to the assignee or. assignees, who shall be appointed or chosen under such -commission, in manner aforesaid, in trust for, and to be divided among the other creditors of the said bankrupt, in proportion to their respective debts.”
■ The bankrupt act of 1867, c. 176, 14 Stat. 517, 528, contained the following surrender clause:
“Sec. 23. . . . Any person who, after the approval of this act shall have' accepted any preference, having reasonable cause to believe that the same was made or given by the debtor, contrary to any provision of this act, shall not prove the debt or claim on account of which the preference was made or given, nor shall he receive any dividend therefrom until he shall first have.surrendered to the assignee all property, money, benefit, or advantage received by him under such preference.”
And section 35 of the act* conferred power upon the assignee to sue to set aside and recover illegal preferences, transfers, etc., but there was not contained in the section any provision prohibiting the proof of daims after recovery by the' assignee. In section 39 of. the act, however, which was" found under the head of involuntary bankruptcy, there was contained an enumeration of the various acts which would constitute acts of bankruptcy, and following a grant of authority to thé assignees to sue for and recover property transferred, etc., by the bankrupt contrary to the act, the section concluded with the declaration that when the recipient had reasonable cause believe that a fraud on the act wás intended, and that the debtor was insolvent, “such creditor shall not be allowed to prove his debt in bankruptcy.”
■ Passing the present consideration of the judicial construction given to the act of 1867, and treating, as we believe should be done, the restriction as to the proof of debts expressed in section 39 as applicable to_voluntary as well as involuntary bankruptcy, we think, as a matter of original interpretation, the surrender clause of the act of 1867 not only fortifies but ab[367]*367solutely sustains, the construction which we have given to the surrender clause of the act of 1898. Whilst the surrender clause of the act of 1867 changed the method of procedure prevailing under the English rule, and presumptively also obtaining under the acts of 1800 and 1841, by which a creditor holding a preference might prove his claim but was allowed to obtain no advantage from so doing until he had surrendered his preference, it cannot we think in reason be considered that this mere alteration in the practice to be followed was intended in and of itself to impose a penalty upon a creditor who did not voluntarily surrender his preference. And this we think is demonstrated when it is seen that after making the change as to the procedure in the proof of debts by preferred creditors there was' subsequently embodied in section 39 an express prohibition, in the nature of a penalty, forbidding the proof of debt by a creditor who came within the purview of the section. Either that provision solely related to proof of debts embraced in the previous surrender clause or it did not. If it did, then the expression of the penalty in section 39 indicates that it was not deemed that the surrender clause contained provision for the penalty, otherwise section 39 would in that regard be wholly superfluous. If, on the other hand, it be considered that section 39 embraced other debts or claims against the estate than those to. which the surrender clause related, then the expression of the penalty in section 39, under the rule of expressio unius, could not by implication be read into the previous surrender clause. That is to say, if section 23 and section 39 of the act of 1867 be considered as not in pari materia, then it follows that the former, the surrender clause, standing alone, did not impose the penalty or forfeiture provided for in the latter. If they were in pari materia, then the penalty, whilst applicable and controlling as to both, because of its expression in the later section, cannot be said to have existed alone in and by virtue of an earlier section, wherein no penalty was expressed.
The decisions of the lower Federal courts interpreting-the [368]*368sections in question, as they stood prior to the amendment of section 39 of the act of. 1874, hereafter to be referred to, were numerous, and we shall not attempt to review them in detail. They will be found collected in a note contained in the eleventh edition of Bump on Bankruptcy, pp. 550 et seq. Disregarding the discord of opinion shown by those decisions concerning what constituted an involuntary surrender — that is, whether it was involuntary if made at any time after suit brought by the assignee, or was only so after recovery by the force of a judgment or decree — and putting out of view also the differences of opinion which were engendered by the fact that the forfeiture imposed by section 39 was found in that portion of the act of 1867 which related to involuntary bankruptcy, we think the decisions under the act of 1867, prior to the amendment of 1874, may be classified under four headings.
First. The cases which held that the prohibition of section 39 against the proof of debt operated as a bar to such proof, even although there was a voluntary surrender, where the preference had the characteristics pointed out in section 39. These cases were, however, contrary to the great weight of authority under the act, and the construction which they, enforced may be put out of view.
Second. Those cases which, whilst treating the surrender clause as giving a creditor an alternative which he might exercise without risk of penalty or forfeiture, yet held that by the operation of section 39 upon the surrender clause the creditor lost the option to prove his claim, when the surrender was compelled by a judgment or decree at the suit of the assignee. The cases enforcing this interpretation constituted the weight of authority, and such construction may, therefore, be said to have been that generally accepted, and, in bur judgment, was the correct one.
These cases, which thus held that the loss of the right to prove, after compulsory surrender, arose not from the. surrender clause independently considered, but solely from the operation upon that clause of section 39, are exemplified by [369]*369the case of In re Leland, 7 Ben. 156, opinion of Blatchford, J. In that case, after holding (p. 162) that the prohibition of section 39 applied as well to cases of voluntary as to cases of involuntary bankruptcy, the court came to consider the surrender clause of section 23 as affected by the penalty provided for in section 39, and said:
"This provision is to be construed in connection, and in harmony, with the provision of the twenty-third section, before cited. If, under the twenty-third section, the preferred creditor were allowed to surrender to the assignee the property received in preference, even after it had been recovered back by the assignee, as mentioned in the thirty-ninth section, so as to be able to prove his debt, no creditor taking a preference would ever be debarred from proving his debt. If, under the' thirty-ninth section, it were held that the mere taking of a preference by a creditor would debar him from proving his debt, without the precedent necessity for a recovery back by the assignee of the property conveyed in preference, there never could be any scope for the operation of the twenty-third section in respect to a surrender.”
Thus clearly pointing out that by the surrender clause alone the creditor would not be debarred from proving his claim if in fact there had been a surrender, whether voluntary or not, but that as a result solely of the prohibition of section 39 the creditor would be barred after recovery by the assignee.
Third. Cases which treated the surrender clause as in and of itself forbidding a surrender after recovery, because the recovery authorized by section 35 was the antithesis of the surrender and precluded a surrender after recovery. This class of cases in effect treated the prohibition expressed in section 39 as unnecessary, quoad the subject matters to which sections 23 and 35 were addressed. The cases, however, were few in number, and are illustrated by the case of In re Tonkin, 4 N. B. R. 52.
Fourth. Cases which without seemingly considering the incongruity of the reasoning adopted both theories; treated [370]*370sections 23, 35 and 39 as in pari materiat and hence applied the prohibition of section 39 to the other two sections, and yet reasoned to show that the surrender clause alone prohibited a surrender after recovery by the assignee. This class of cases is illustrated by In re Richter, 1 Dill. 544; 4 N. B. R. 221. In that case a creditor, who, in consequence of a recovery by the assignee, had surrendered a preference, sought to prove his claim against the estate, and his right to do so was resisted. Analyzing the act and stating the different constructions of which it was susceptible, the court expressly declared that the correct view was to construe sections 23, 35 and 39 together, and that the result of so doing would be to annex to both sections 35 and 23 the penalty provided in section 39. The surrender clause was then noticed, it being said:
"It is urged by the claimants that this refusal was erroneous because they had, before the time when they made their motion, surrendered to the assignee all property received by them under the preference. This devolves upon us the duty of interpreting the meaning of the word surrender, as it is here used. And it is our opinion, that a creditor who receives goods by way of fraudulent preference, and who refuses the demand therefor which the assignee is authorized to make (section 15), denies his liability, allows suit to be commenced by the assignee, defends it, goes to trial, is defeated and judgment passes against him, which he satisfies on execution, cannot be said within the meaning of the statute, to have surrendered to the assignee the property received by him under such preference. He has surrendered nothing.”
As an alternative, however, to this view, and treating the sections referred to as in pari materia, it was reiterated that section 23 was limited and controlled by the penalty provided in section 39.
We need not further notice the cases under the act of 1867, because of the action of Congress on the subject. In 1874, 18 Stat. 178, section 39 of the act of 1867 was amended and reenacted. That amendment consisted of omitting the for[371]*371feiture clause as originally contained in the section and-substituting in its stead the following proviso:
“Provided, . . . and such person, if a creditor, shall not, in cases of actual fraud on his part, be allowed to prove for more than a moiety of his debt; and this limitation on the proof of debts shall apply to cases of voluntary as well as involuntary bankruptcy.”
Plainly, this amendment not only abolished the penalty provided in section 39 as originally enacted, since it allowed a creditor to prove his claim for the whole amount thereof after recovery against him if he had not been guilty of actual fraud, and even in case of actual fraud after recovery permitted him to prove for a moiety. The amendment clearly also was repugnant to that construction of the act of 1867 given in some of the cases to which we have referred under the third classification, wherein in the reasoning employed it was assumed that a forfeiture or penalty might be implied alone from the terms of the surrender clause, irrespective of the operation of section 39.-' This results from the very words of the. amendment, which says, and this limitation on the proof of debts shall apply, etc., showing that the restriction on the right to prove after a compulsory yielding up of a. preference was deemed by Congress to result, not from the surrender clause, but from the limitation expressly declared by section 39 as amended, which operated a qualification of the broad terms of the surrender clause. It manifestly also arises from the fact that whilst Congress plainly intended by the amendment to make a change in the rigor of the rule previously obtaining, the phraseology of the surrender clause as originally found in the act was not altered.
After the adoption of the amendment of 1874 it is true that in one or two instances it was held that the amendment, instead of mitigating the severity of section 39 as it stood before the amendment, had increased it by adding an additional limitation, viz., prohibiting a preferred creditor who had been guilty of actual fraud from proving, for more than one-half of his claim, even where he had voluntarily surrendered his [372]*372preference. But these were isolated cases, since practically the otherwise universal construction was that the amendment was ■ remedial and intended by Congress to mitigate, even in cases of actual fraud, the severity of the prohibition of section 39 as originally enacted.
The import of the amendment was tersely stated by Mr! Justice Clifford in In re Reed, 3 Fed. Rep. 798, 800, as follows:
“Beyond doubt the question must depend upon the true construction of the act of Congress, and I am of opinion that Congress intended to moderate the rigor of the prior rules and to allow the creditors, after payment back of the preference, whether by suit or otherwise, to prove their whole debt, in case they had been guilty of no- actual fraud."
And such construction was also expounded in the following cases: In re Currier (1875), 2 Lowell, 436; Burr v. Hopkins, (1875) 6 Biss. 345, per Drummond, J.; In re Black (1878), 17 N. B. R. 399, per Lowell, J.; In re Newcomer (1878), 18 N. B. R. 85, per Blodgett, J.; In re Kaufman (1879), 19 N. B. R. 283, per Nixon, D. J.; In re Cadwell (1883), 17 Fed. Rep. 693, per Coxe, J.
The meaning of the amendment of 1874 was considered by the Court of Appeals of New York in the case of Jefferson County National Bank v. Streeter, 106 N. Y. 186. The New York court expressly adopted the construction given in the cases to which reference has just been made, and its action in so doing was affirmed by this court in Streeter v. Jefferson County Bank, 147 U. S. 36.
It follows that the construction which we at the outset gave to the -text of the act of 1898, instead of being weakened, is absolutely sustained by a consideration of the act of 1867, both before and after the amendment of 1874, and the decisions construing the same, since in the present act, as we have said, there is nowhere found any- provision imposing even the modified penalty which was expressed in the amendment of 1874. The contention that because the act of 1898 contains a surrender clause, therefore it must be assumed that [373]*373Congress intended to inflict the penalty originally imposed by section 39 of the act of 1867 must rest upon the erroneous assumption that that penalty'was the result of the surrender clause alone. But this, as we have seen, is a misconception, since from the great weight of judicial authority , under the act of 1867, as well as by the express enactment of Congress ip the amendment of 1874 and the decisions which construed that amendment, it necessarily results that the penalty enforced under the act of 1867 arose not, from the surrender clause standing alone, but solely from the operation upon that. clause of the express prohibition contained in Section 39 of that act. . When, therefore, Congress in adopting the present act omitted to reenact the provision of the act of 1867, from which alone the penalty or forfeiture arose, it' cannot in reason be said that the omission to impose the penalty gives rise to the implication that it was the Intention of Congress-to reenact it. In other words, it cannot be. declared that a penalty is to be. enforced'because the statute does not impose it.
And, irrespective of this irresistible implication, a general consideration of the present act persuasively points out the purpose contemplated by Congress in refraining from reenacting the penalty contained in . section 39' of the act of 1867. Undoubtedly the preference clauses of the present act, differing in that respect from the act of 1867, as is well illüstr'ated by the facts of this case, include preferences where the creditor receiving the same acted without knowledge of any wrongful intent on the part of the debtor and in the utmost good faith. Pirie v. Chicago Title & Trust Co., 182 U S. 438, 454. 'Having thus broadened the preference clauses- so as to make them include acts never before declared by Congress to be illegal, it may well be presumed that Congress, when it enacted the surrender clause in the present act, could -not have contemplated that that clause should be construed as' inflicting a penalty upon creditors coming within the scope of the enlarged preference clauses of the act of 1898, thereby entailing an unjust and unprecedented result.
[374]*374Our conclusion, therefore, is that the first question propounded must be answered in the affirmative, and that the two other questions require no response.
And it is ordered accordingly.