Brown v. Davis
19 Vt. 603
Vt.
1846
Check Treatment
By the Court.

We think that the trustee, under the circumstances of this case cannot recover costs. If we were to follow out strictly the equity of the case, in its analogies to appeals, by the trustee, from decisions of justices of the peace, and where formal writs of error are brought by trustees, we should require the trustee in this case to pay costs, as, in both the instances referred to, he is required to do, if he finally fail to recover, or to obtain any relief from the former judgment, either in whole, or in part; Acts of 1842, p. 17, §§ 6, 7; — And see, also, the general rules of this court in regard to taxing costs upon writs of error. But, presuming the exceptions to have been taken and prosecuted in perfect good faith, and not for purposes of delay merely, we do not require the trustee, in this case, to pay costs. There is, perhaps, a difference between the situation of a trustee, — who is a mere go-between, or middleman, in regard to the real parties in interest, — and that of the actual parties to a suit. It is matter of indifference to the trustee, to'which of two claimants he surrenders th.e property; but in a case of serious doubt he may have some reason to desire the opinion of the court of last resort; and where he prevails in part, only, he should doubtless retain his costs; — but, so far as his own costs are concerned, he must, we think, judge, at his peril, whether the judgment of the county court is reliable,