Kent v. Hutchins

50 N.H. 92 | N.H. | 1870

Sargent, J.

The General Statutes, chap. 230, sec. 43, provide that “ when it appears that the trustee has received the property of the defendant, or a conveyance or bill of sale thereof, in trust for the defendant, or by absolute conveyance with a secret trust, or has done any other act in relation thereto with intent to aid him in defeating or delaying a creditor, costs shall be taxed against such trustee.”

If the trustee has not been guilty of fraud in any of these ways, or of unnecessary delay, he is entitled to costs against the plaintiff, when he is held not chargeable as trustee. Hills v. Smith, 28 N. H. 369. But if the trustee has been guilty of fraud in any of the ways specified in the statute, he will be ordered to pay costs, even though not chargeable as trustee. Sise v. Drew, 18 N. H. 409, 414; Smith v. Brown, 43 N. H. 44. In the last two cases cited, the question as to whether the trustees were chargeable did not depend upon the question as to whether they had by their acts made themselves liable for costs. But here the case finds that, in order to discharge the trustee, as the jury did, they must have found, under the instructions of the court, that she was not guilty of any of the acts mentioned in said section 43.

The jury then in this case have passed upon all the facts which were necessary to be settled in. order to determine the question of costs, as well as the question of the liability of the trustee. And the question is, Shall the court accept that finding as the basis of their order in relation to costs, as well as the basis of their judgment discharging the trustee ?

The case finds that the court would not have set aside the verdict as being against evidence, although the court upon a review of the evidence would have come to a different result from that arrived at by the jury. The finding of the jury is conclusive upon the question of the trustee.’s liability as trustee, but not necessarily so upon her liability to pay costs. We hold that the court may in its discretion adopt the finding of the jury as the basis of its action in regard to costs, or it may adopt its own views of the evidence as the basis, and act accordingly. A case might arise where the court would feel called upon to ignore the finding of the jury, so far as it might bear upon the question of costs, and act entirely upon its own views of the evidence. But probably the more usual and the more satisfactory course is the one adopted in this case.

We do not mean to be understood that it is a matter of discretion with the court whether the trustee shall be charged with costs, if a case is made out against him under sec. 43 of chap. 230, Gen. Statutes, for we understand the statute to be peremptory in that case ; but, in determining whether a case is thus made out under that section, the court may in its discretion act upon the finding of the jury or its own view of the evidence.

In matters of discretion, no exception lies to the ruling as matter of right. But in this case the court reserved the question as to the proper exercise of the discretion, and our opinion is that the discretion was properly and wisely exercised.

Exception overruled.