| Superior Court of New Hampshire | Jul 15, 1845
It is provided by the Revised Statutes, chapter 208, section 84, that if the party summoned as trustee shall appear to have done any thing in .relation to the property of the principal, by receiving it, taking a bill ' of sale of it, or otherwise, with an intent to aid the principal in defrauding his creditors, he shall pay costs.
JBy the next section it is provided, that in all eases in which the trustee has -not been guilty of fraud or unnecessary delay, he shall be entitled to costs ; and the court may order the same to be deducted from the amount in his hands, or may render judgment and issue execution therefor, &e.
Under the first of the foregoing provisions of law the plaintiff moves for costs against David Page, offering to make out the ease supposed in the statute.
Under the second, the trustees move for costs, and insist that no case is made out in evidence that should deprive them of the ordinary benefit provided by law.
The proceeding in this cause is in the nature of a several proceeding against each of the parties brought into court. Its object is to establish a debt due from the defendant to the plaintiff, and a debt due from the trustees to the defendant. But the proceeding against the defendant is the principal matter; as against the trustees, the process is merely ancillary, and dependent upon the other branch, and no judgment can be rendered against the trustees until judgment is established against the principal defendant.
If the proceeding fails to establish a debt due from the trustees to the principal defendant, the trustees are in general entitled to their costs ; but it is otherwise in certain eases. Ingraham v. Olcock, 14 N.H. 243" court="None" date_filed="1843-12-15" href="https://app.midpage.ai/document/ingraham-v-olcock-8504680?utm_source=webapp" opinion_id="8504680">14 N. H. Rep. 243. Whether the parties to the several motions submitted to the court should recover costs, depends upon a state of facts that had not been ascertained at the time the motions were submitted.
No further proceedings could of course be had in the cause. Affairs stood as they would have stood if it had never been commenced, so far as respects the rights of the parties in court. No judgment can be rendered for or against either of them.
The question, whether the trustee should be indemnified in the matter of costs, by retaining the requisite amount in his hands, or by taking judgment against the plain-' tiff, is one which can be determined only by the event of the plaintiff’s proceedings against the principal defendant. If these eventuate in a judgment against the defendant, and the trustee have funds, he retains his costs ; if otherwise he takes judgment for them. The discontinuance of the action renders it impossible that such a question should be settled, and for the court to know what order to make in a case in which fraud or other misconduct is not surmised.
In the other case, it would be unreasonable if the technical impediment did not exist against the further prosecution of the cause, and contrary to rules adhered to in analogous proceedings, to permit the parties to litigate for the mere purpose of deciding a question of costs. Eastburn v. Kirk, 2 Chip. 317.
This action must, therefore, be dismissed with
Costs to neither parly„