It is obvious from the facts stated in the master’s report, that the parties supposed that the attachment of Nash and Company might be avoided under proceedings in insolvency. It does not appear whether they feared a statutory dissolution of the attachment by an assignment under proceedings commenced within four months after the attachment, or that it might be avoided by an assignee, as in fraud of creditor’s or of the insolvent law. The contract was made to protect the attachment from proceedings in insolvency. It was in view of the liability of the attachment to be dissolved by an assignment before the execution was levied, or avoided by a subsequent suit by an assignee, that the parties agreed that if, after the sale of the property upon the executions and after the money realized upon such sales should pass into the hands or possession of Nash and Company, they should refuse to pay to the plaintiff one half of the amount “ which they, said Nash and Company, shall have *202realized upon said executions, after all the costs and fees arising from and by reason of said suits and said executions shall have been deducted, then said Mackintosh may indorse said note to said Steele and Emery, and not otherwise.”

The parties were creditors seeking payment of their debts, and the fair construction of the agreement is, that whatever Nash and Company should realize to apply on their debt they would share with the plaintiffs.

After the sale of the property on execution, and while the proceeds were in the hands of the officer, a bill in equity was brought against Nash and Company and the officer, by the assignee in insolvency, to avoid the judgments of Nash and Company, and' to recover the proceeds of the sales; and the officer was enjoined against paying them over to Nash and Company. That suit was compromised by the payment of a part of the proceeds to the assignee, and the balance was paid over by the officer to the attorneys of Nash and Company in payment of costs and fees in the equity suit, and in other cases growing out of the suits and executions upon which the property was sold, so that Nash and Company never received anything which they could apply on their debts against the insolvent.. We think that the costs and fees in actions brought to avoid the judgments and to recover the proceeds of the sales on execution in the hands of the officer were “ costs and fees arising from and by reason of said suits and said executions,” within the meaning of the contract, and that neither the money received by the officer on the sales while it remained in his hands as officer, nor the money paid by the officer in compromise of the suit of the assignee, nor the money paid by the officer to the attorney of Nash and Company for costs and fees incurred in the suit by the assignee, and in similar suits brought to recover the proceeds of the sales from the officer, was money realized upon such sales in the hands and possession of Nash and Company, within the meaning of the contract.

This decision renders it unnecessary to consider the question whether there was any legal consideration for the note, and we express no opinion upon it.

In the opinion of a majority of the court, the entry must be,

Bill dismissed.