28 N.H. 369 | Superior Court of New Hampshire | 1854
Costs cannot be taxed against the trustee, on the ground of fraud. It is not shown- that the trustee
Neither can costs be taxed against the trustee, under section 29 of chapter 208 of the Revised Statutes. For, in the present case no judgment can be rendered against the trustee for any sum of damages or for any property whatever, and, consequently, he cannot be said to be chargeable for a greater amount, or for other property, than he would have been chargeable for upon his own disclosure. Upon the verdict found and upon the facts of the case, no judgment could properly be rendered against the trustee, since he as against the principal, is entitled to all the property found in his hands. So, also, as against the plaintiff, until his lien should be fully discharged. He is not chargeable on the face of the verdict, .nor, in fact, for any property applicable to the claim of the plaintiff. Upon his disclosure no judgment could be rendered against him, and so also upon the finding of the jury no such judgment could be rendered. It is only upon the rendition of judgment against the trustee for a greater amount, or for other property than is disclosed, that costs are to be allowed under the provision of section 29 now under consideration. The character of the trustee’s title to the property is shown by the verdict to be different from that disclosed, but still he was well entitled to all of it by the form of conveyance, by which he, in fact, heldlit. The result, upon the respective rights of the parties, is the same upon the disclosure and upon the verdict. We see not how he is chargeable with costs on this ground.
And we think, moreover, that under the provisions of section 35 of the chapter already referred to, the trustee is entitled to have his costs taxed against the plaintiff, and to a judgment therefor. He is not shown guilty of fraud or unnecessary delay, and there are no funds in his hands for which
And we see no sufficient reason for refusing the order for the payment of the balance of the proceeds of the sale by the receiver to the trustee, which was applied for by him. The money is in the hands of the receiver, is held in trust for the party entitled to it, and, in this case, is properly to be paid over and applied in discharge of whatever may be due to the trustee, by virtue of the pledge. The necessary expenses of the keeping and maintenance of the pledge were manifestly and justly due to the trustee. Nothing is to be paid, either to the creditor or to the principal debtor, until after the lien growing out of the pledge is fully discharged. Rev. Stat. ch. 208, § 16, before cited. Here were not funds enough even for that purpose.
We need not now determine whether the court of common pleas have power or not to send a case to the jury to determine a question like that proposed by the plaintiff, in the present case, namely, whetherthe value of thekeeping exceeds the value of the use of the property. It is sufficient to say that if the power be possessed, and the plaintiff have the right even to require it, that the plaintiff may also waive that right in any case ; and we think it is to be regarded as waived in a case where the question has been sent to an auditor or commissioner, without objection, and has been heard and determined. We think it would be going quite too far to allow the same matter to go to a jury for determination, especially in a case where there is so little probability of injustice being done by the finding of an auditor as in the present case.
We are not aware of any proper or useful result to be attained by sending the case to an auditor, or to any other tribunal, in accordance with the motion of the trustee, to determine the value of the property found by the verdict in the hands of the trustee. The verdict found that the chattels were holden by the trustee as a pledge. Upon that
The foregoing determinations show that the motions, on the part of the plaintiff, must be overruled.
