
    Russell Paper Company vs. Avery J. Smith.
    Hampden.
    Sept. 25.
    Oct. 1, 1883.
    Field & W. Allen, JJ., absent.
    If an attachment is dissolved under the Pub. Sts. c. 157, § 46, by the debtor going into insolvency, and the attaching officer refuses to deliver up the 'goods on demand by the assignee in insolvency, the creditor is not entitled to prove, under § 139, as a claim against the estate, the expenses subsequently incurred by the officer in keeping the goods.
    Appeal from a decree of the Court of Insolvency, disallowing a claim of the plaintiff against the estate of Philo Cline. The Superior Court affirmed the decree; and the plaintiff appealed to this court. The facts appear in the opinion.
    G. Wells, for the plaintiff.
    
      E. B. Maynard, for the defendant.
   Morton, C. J.

The statute provides that, “ when an attachment on mesne process has been made and is not dissolved before commencement of proceedings in insolvency, and when such attachment has been dissolved by bond given by the defendant, if the claim upon which the suit was commenced is proved against the estate of the debtor, the plaintiff may also prove the legal fees, costs, and expenses of the suit and of the custody of the property, and the amount thereof shall be a privileged debt.” Pub. Sts. c. 157, § 139.

In the case before us, the plaintiff made an attachment of the goods of one Cline; while such attachment was in force, Cline went into insolvency, and an assignee was appointed, who demanded the goods of the attaching officer. The officer refused to deliver them to the assignee, and retained possession of them until they were taken from him upon a writ of replevin in favor of the assignee. The officer, in retaining the goods, acted under the directions of the plaintiff, who, with other creditors, had instituted a suit in equity to set aside the insolvency proceedings, on the ground that Cline was not a resident of this Commonwealth when he filed his petition. Upon a hearing, the bill in equity was dismissed.

The plaintiff now claims the right to prove, as a privileged debt, the expenses incurred by the officer in keeping the goods between the time of the demand by the assignee and the replevying of the goods as above stated. It is clear that this claim cannot be maintained. The expenses which the plaintiff seeks to cast upon the estate are not a part, of “ the legal fees, costs, and expenses of the suit and of the custody of the property,” within the meaning of the statute. The expenses of custody provided for are the expenses of the legal custody during the continuance of the attachment. By the assignment, the plaintiff’s attachment, having been made within four months of the time of the first publication of notice of the filing of the petition, was dissolved. Pub. Sts. c. 157, § 46. After the demand made upon him by the assignee, the’ attaching officer held the goods, not by virtue of the attachment, for that was ended, but as a trespasser and wrongdoer. His expenses thus incurred are not legal expenses of the custody of the property, and cannot be recovered or proved against the estate. It follows that the judgment of the Superior Court must be Affirmed.  