In re Lewis, No. 48

No. 48 | D. Mass. | Mar 2, 1900

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, § 104, cl. 5, and Id; § 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, els. 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" court="N.D. Ill." date_filed="1899-01-03" href="https://app.midpage.ai/document/in-re-rouse-8863986?utm_source=webapp" opinion_id="8863986">91 Fed. 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 both a state law and . the bánkrupt act give priority to the same class of debts, the bank•/rupt act not only controls the state law in the case of absolute convict between the two, but, by its express regulation of these priorities; excludes the state law altogether. The referee appears to have ‘ thought that section 64b, els. 1-3, so deals with and regulates the .priorities given to all costs that the creditor’s costs here in issue, (which -were present to the consideration of the legislature, as is shown by:section 63a, cl. 3. are excluded from the priority allowed them by the state law. With considerable doubt, I have reached the opposite conclusion, and am of opinion that the provisions giving priority to certain costs in section 64b, els. 1-3, do not so'cover the whole matter of costs as to exclude the costs mentioned in section 63a, cl. 3, from the priority given them by the law of Massachusetts. The costs dealt with in section 64b, els. 1- 3, are costs directly connected with the proceedings in bankruptcy. The costs dealt with in the Massachusetts statute have no direct connection with proceedings in bankruptcy or insolvency. They are dealt with in a part of the Massachusetts insolvency act quite different from that which provides for the payment of costs and expenses in insolvency proceedings. See Pub. St. c. 157, §§ 56, 102, 140. That they should have priority does not seem intrinsically more unrea-, sonable in bankruptcy than in insolvency. The decision of the. referee is reversed, and the claim is declared entitled to priority.