Although the plaintiff’s name was omitted from the schedule of the defendant’s creditors in insolvency, and although a discharge had been granted to the debtor and the time had expired within which claims could be proved against the estate of the defendant in insolvency except those held by creditors whose names appeared on the defendant’s schedule, the plaintiff offered to prove his original claim in the name of Harry B. McKeown, and was permitted to receive the dividend which stood to the credit of H. McKewan on. the defendant’s schedule.

The plaintiff had brought suit in the Municipal Court of the city of Boston on his claim, and the attachment of property made therein was dissolved by the insolvency of the defendant. At the time of offering to prove his debt in insolvency, he offered to prove the claim for costs and expenses which had accrued in his action in the Municipal Court, but the Court of Insolvency declined to pass thereon. Upon this claim he now brings suit.

The Pub. Sts. c. 157, § 189, provide that, when an attachment on mesne process has been made, and is not dissolved before the commencement of proceedings in insolvency, “ 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.” This is a debt created by the statute, and its existence depends upon the predicament stated in the statute, namely, that it shall have been proved as the statute prescribes. The statute creates no personal contract on the part of the insolvent to pay these costs, etc., nor does it place him under any personal liability, and the liability of his estate depends on this proof solely. If the Court of Insolvency erroneously refused to pass upon or to permit the plaintiff to prove his claim for costs, etc., his remedy was by appeal. Pub. Sts. c. 157, §§ 36-38.

*195The proceedings of the debtor were under the St. of 1884, c. 236, which provide for a discharge by means of a composition in insolvency. Section 9 of this statute, after authorizing the Court of Insolvency under certain circumstances to confirm the composition, and to grant a discharge, provides that the composition “ shall not bar the debt of any creditor whose name was fraudulently and wilfully omitted from the debtor’s schedule of creditors. But the debt of any creditor omitted therefrom only through mistake or want of knowledge shall be barred, and he shall be entitled to and may recover against the debtor the amount of the dividend to which he would have been entitled in the composition proceedings.”

The contention of the plaintiff is, that whether the debt due him was omitted fraudulently or by mistake from the schedule, which latter is the more favorable view, this omission enables him to recover the full amount of his claim for costs, etc., as a privileged debt. The original debt due to the plaintiff, however, which was for labor and services, has ceased to exist. It was offered in the name of Harry B. McKeown, and has been paid in full. The claim for costs, etc., was only supplementary thereto. Whether, if the plaintiff were now able to bring suit on his original debt, either because the same was fraudulently or by mistake omitted by the defendant from his schedule, it would be possible, in view of the language of the statute, to hold that he might maintain his claim for legal costs, etc., as supplementary thereto, upon the ground that the negligence or fraud of the debtor had deprived him of his right to prove the costs, etc., as well as the original debt, or whether a more literal construction of the statute should be followed, need not now be discussed.

The debt referred to in the St. of 1884, c. 236, § 9, is the original debt; ai\d when this cannot be enforced by suit, that which is purely incidental thereto, or which may be made incidental by a decree of the court, cannot be enforced.

Exceptions overrule