
    John H. Rogers vs. Lawson Sibley.
    Hampden.
    September 24, 1889.
    November 27, 1889.
    Present: Morton, C. J., Field, C. Allen, Holmes, & Knowlton, JJ.
    
      Insolvent Debtor — Deposit by Creditor to cover Fees — Repayment.
    
    A creditor, upon commencing insolvency proceedings against his debtor, made the deposit required by law for the payment of fees with the register of insolvency, but never obtained an order of court for its repayment. The assignee had no knowledge of the deposit until after final distribution of the funds in his hands had been ordered and nearly completed. Held, that the assignee was not liable to the creditor for the amount of the deposit.
    CONTRA.OT for money paid. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, upon agreed facts, in substance as follows. ■
    
      On August 4, 1887, the plaintiff, who was a creditor of the firm of W. H. Lewis and Company, commenced proceedings in the Court of Insolvency against that firm, and deposited with the register of insolvency the sum of forty dollars for the payment of fees therein, as required by law.
    The firm was adjudged an insolvent debtor, and on September 17, 1887, the defendant was duly chosen assignee of its estate and accepted the trust, and on that day the plaintiff proved his claim as creditor. Subsequently, successive meetings of the creditors were held, of all of which the plaintiff had due notice. At the last meeting the defendant filed his final account, which together with his first account was then allowed by the Court of Insolvency, and an order of distribution made of a balance then remaining in his hands, to which the plaintiff made no objection. The defendant thereupon proceeded to distribute the assets in his hands among the several creditors, in accordance with this order, and had nearly completed the same, when for the first time he learned of the deposit, and of the plaintiff’s claim for repayment, although he knew that the insolvency proceedings were begun by him.
    
      JE. S. Lathrop, for the plaintiff.
    
      JH. B. Maynard f O. Q. Spellman, for the defendant.
   C. Allen, J.

The assignee in insolvency not only never had in his own possession the money deposited by the plaintiff with the register of insolvency, but was ignorant of the fact of the deposit till after final distribution of the funds in his hands had been ordered, and nearly completed. The plaintiff should have obtained an order of court for the assignee to make the payment to him. If the order for a final distribution to the creditors was inadvertently made, without providing for the repayment of the money advanced by the plaintiff, the plaintiff himself was to blame, and not the assignee. It would not be a reasonable construction of the statute (Pub. Sts. c. 157, § 137) to hold the assignee liable, and bound to make such payment, under the circumstances mentioned in the agreed statement of facts.

Judgment for the defendant affirmed.  