Page:Federal Reporter, 1st Series, Volume 5.djvu/269

 LOW P. DUKFEB. B57 �LowELL, G. J. 1. Nearly ail the costs which are taxable in this case were those of the attachments on mesne proeess; and, if the plaintiff elects to prove his debt in the insolvency proceedings, the taxable costs wiU be paid in full. This be- ing 80, 1 see no propriety in charging the assignees personally with this burden, incurred before they were appointed. And I have no power to say that it shaU be paid eut of the assets. Their appearance in the case was proper enough, if they wished to Bee that an excessive judgment ■was net rendered against the debtor for the purpose of being proved ; for they couid not know whether or not the plaintiff would elect to prove. That right of election is not yet ended, for the estate is not fuUy settled. How far costs, which the assignees could not haye had anything to do with in their inception, should be paid by the assets, if the plaintiff does not choose to prove his debt, should be left to the assignees under the direction of the court of insolvency. In the course which the case has taksn, no additional costs bave been incurred in consequence of the appearance of the assignees. �2. The insolvent law of Massachusetts (Stat. 1838, c. 163, § 7, now embodied in Gen. St. c. 118, § 78) provides that a debtor who has received his certificate of discharge shall be forever thereafter discharged and exempt from arrest and imprisonment in any suit or upon any proceeding for, or on account of, any debt or demand which might bave been proved against his estate. The plaintiff admits that his debt is of that kind. �In 1854 Mr. Justice Curtis refused to grant a petition like that of the defendant here. Catherwood v. Gapete, 2 Curt. C. C. 94. At that time, the act of congress adopting state laws concerning imprisonment for debt was that of 1839, (6 Stat. 321,) which enacted that no person should be imprisoned for debt in any state upon proeess issuing out of a court of the United States, where, by the laws of suoh state, imprison, ment for debt had been abolished; and that where, by the laws of a state, imprisonment for debt should be allowed under certain conditions and restrictions, the same conditions aud restrictions should be applicable to the proeess issuing �v.5,no.3— 17 ����