The Mechanics’ Bank, as subsequent attaching creditor of the same estate attached by the plaintiff, under the provisions of the Rev. Sts. c. 90, §§ 83—85, filed a.petition seeking to vacate the prior attachment of the plaintiff, upon the ground that the sum demanded in his writ was not justly due and payable when the action was instituted. This petition, upon the final hearing in this court, was not sustained, and resulted in a judgment maintaining the validity of the plaintiff’s attachment. The plaintiff, as the prevailing party on the trial had upon this petition, asks the court to award in his favor certain costs and damages against the petitioners.
The Rev. Sts. c. 90, § 90, enact that “ the court may, upon every such inquiry, award to either party such costs, as they shall think just and reasonable; and if the prior attachment is maintained, they may award to the attaching creditor such damages as they shall judge reasonable.” Under this provision, the plaintiff asks an allowance of the usual taxable bill of cost, as taxed in ordinary civil actions ; an allowance for his expenditure *232for counsel fees; and also for the interest accruing on his demand against the debtor, after the filing of the petition.
No objection is taken to so much of the costs as relates to the fees for the witnesses introduced by the plaintiff on the hearing of the petition ; but it is insisted that the plaintiff should not be allowed to tax his travel and attendance against the petitioners, during the pendency of the petition, inasmuch as he has received the proper allowance for those items, in his taxation of costs against the defendant in the principal action. And it seems to us, that the plaintiff should not tax his travel and attendance, both in the principal suit, and also in the petition for a dissolution of the attachment. If the suit, in which the attachment was made, had been ended by default of the defendant, and no further attendance had been requisite on the part of the plaintiff, in the prosecution of it, in reference to the original parties to it, it would seem reasonable, in such case, that no cost should be taxed against the defendant, after the default, but that all subsequent cost, that accrued in defending against the petition to vacate the attachment, should be taxed in favor of the plaintiff, if he is the prevailing party on that issue, against the petitioning creditor. But where the action is not defaulted, so long as the same is kept open by the defendant, the plaintiff is entitled to tax his travel and attendance, in the action against the defendant ; and in such case he is not authorized to tax the .same travel and attendance, a second time., against a subsequent attaching creditor who has failed to sustain his petition to vacate the attachment. This rule will, we think, do justice to all parties, and may be properly adopted in such cases.
It appearing that in the present case, although a default was at one period entered upon the docket, it was, on motion of the defendant, subsequently taken off, and. the case brought by the defendant, by appeal, to this court, and here continued open until after the final disposition of the question raised on the petition of the subsequent attaching creditor, the costs for travel and attendance were properly taxed against the principal defendant; and having been thus taxed and paid by him, they should not be again recovered against the subsequent attaching creditor.
*233The plaintiff further contends that he should be allowed to recover of the subsequent attaching creditors the amount of his expenditures for counsel fees, in defending the petition filed by them. This, we think, cannot be allowed. It cannot be allowed under the authority to award costs, as the term t; costs,” used in the statute, undoubtedly means taxable costs as ordinarily taxed ; which, under our system, excludes all charges for counsel fees, except in the cases where specially given by statute ; as in the case of one adjudged a trustee in the process oí attachment of goods and effects in the hands of another, where counsel fees may, in the discretion of the court, be allowed. Nor can counsel fees be properly awarded as “ damages,” under the provisions of the statute. The damages contemplated by the statute were of a different nature from the ordinary expenditures incident to a trial at law. The expenditure for counsel fees is an item, that is ordinarily to be borne by the suitor, except so far as it may be remunerated by the taxable costs for the travel and attendance of the party, and the allowance of an attorney’s fee. The claim of the plaintiff for reimbursement for expenditure for counsel fees is therefore inadmissible.
The further claim of the plaintiff is for an allowance for the amount of interest which accrued on the demand sued, from the time of filing the petition to the final disposition of the action. The amount of property attached in the suit was amply sufficient to have satisfied the debt and all interest accumulating during the pendency of the action ; and in such cases, it would ordinarily be most equitable that the accumulating interest should be a charge on the defendant, and make a part of the judgment entered up against him. But without deciding any general principle applicable to other circumstances, it seems to us very clear, that in the present case, the accumulating interest should be a charge solely on the debtor ; inasmuch as he appeared in the suit, and upon his appearance, and the pleadings filed by him, the case was brought by appeal to this court. But for his appearance and the plea filed by him, this case would not have been removed from the court of common pleas. The defendant having appeared, and caused the default, which was originally entered, to be taken *234off, and the case to. be brought by appeal to this court, it seems to us that the accumulating interest should not be allowed against the petitioners, but if recoverable at all, should be so as against the debtor.
But it is said by the plaintiff, that he was unable to take his judgment for the accumulating interest, because the ad damnum, in his writ was not large enough to include his debt and the additional interest that accrued after the filing of the petition. We do not think that this circumstance should charge the loss upon the petitioners, under the circumstances that have been already mentioned. The action was in fact, for the most part, delayed by the appearance and pleading of the defendant. Having been thus delayed, and the interest being properly chargeable to the debtor, if by reason of the smallness of the damages demanded in the writ of the plaintiff, he was unable to include m his judgment the interest accruing pending his action, it is a loss which ne must sustain.
The result will therefore be, that the plaintiff will be entitled to recover of the subsequent attaching creditors, who filed the petition to vacate the attachment, the costs of witnesses’ fees on the petition, and to this, we think, may properly be added the usual allowance for an attorney’s fee.