In re Lewis

• Decision Date: 02 March 1900
• Docket Number: 48.
• Citation: 99 F. 935
• Parties: In re LEWIS.
• Court: U.S. District Court — District of Massachusetts

99 F. 935

In re LEWIS.

No. 48.

United States District Court, D. Massachusetts.

March 2, 1900

Carver & Blodgett, for creditor, National Wall Paper Co.

R. W. &amp C. F. Light, for bankrupt.

LOWELL District Judge.

The sheriff's fees in a case like this are entitled to priority in insolvency proceedings in Massachusetts, under Pub. St. c. 157, Sec. 104, cl. 5, and Id. Sec. 139 which read as follows:

'Sec 104. In the order for a dividend under the preceding section, the following claims shall be entitled to priority, and to be first paid in full in their order: * * * Fifth. Legal fees, costs, and expenses of suit, and for the custody of the property proved as preferred under section 139.'

'Sec. 139. 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.'

These fees, therefore, being provable debts, under section 63a, cl. 3, are entitled to priority by section 64b, cl. 5, of the bankrupt act, unless this construction is excluded by some other provision of the act.

Section 63a, cl. 3, neither gives nor denies them priority. Debts covered by the various clauses of section 63a may or may not be entitled to priority, according to their nature and circumstances, and there is nothing in clause 3 to indicate that the debts therein described are excluded from priority, if the act elsewhere entitles them to it.

The difficulty in the way of the creditor's contention arises from section 64b, cls. 1-3, taken in connection with section 63a, cl. 3. It has been held that state laws, giving priority to wages, though included in the terms of section 64b, cl. 5 are yet ineffectual, because the whole matter of wages is dealt with and regulated by section 64b, cl. 4. In re Rouse (D.C.) 91 F. 514. In other words, although the laws of a state giving priority to certain debts are by section 64b, cl. 5, introduced into the scheme of the present bankrupt act, yet such state laws are so introduced only so far as the debts to which they give priority are not expressly dealt with as to priority in the bankrupt act itself. Where...