18 Me. 332 | Me. | 1841
The opinion of the Court was drawn up by
It appears that the defendant was indebted to the plaintiff before the month of June, 1835, for goods sold and delivered. And that he was also indebted to Thomas J. Norris for goods sold and delivered ; and that this claim with others had been assigned by deed to the plaintiff. The defendant in June, 1835, promised to pay both these debts to the plaintiff. Having neglected to do so, the plaintiff commenced this suit, on the 20th July, 1836, to recover them. The defendant objected to his right to recover the debt originally due to T. J. Norris, because he had not exhibited proof, that the assignment of it was made for a val
During the pendency of this suit the defendant had been summoned as the trustee of the plaintiff in three other suits. In two of them he disclosed and was adjudged trustee, and in the other he was discharged by a discontinuance of the suit as to the trustee. Executions issued and a demand was made upon him as trustee for payment and he neglected to pay. The first judgment against him as trustee was satisfied by a joint promisor with the plaintiff. The second remained unsatisfied to the time of this trial, when forty dollars were paid upon it, and it being thus reduced, there would remain a balance due to the plaintiff after the defendant should pay the amount still due upon it.
It was decided in Matthews v. Houghton, 2 Fairf. 377, that a judgment against a trustee was a protection against a suit by his principal although not satisfied. But such protection cannot extend beyond the amount due upon the judgment. And the Judge in this case was obliged to act upon the evidence introduced, and that proved the judgment to be partly satisfied. Whether the holder of that judgment was obliged to receive a partial payment, it is unnecessary here to determino. The judgment was admitted by the court to be a protection for the amount remaining due upon it. There is a difficulty however in allowing the principal to pay a part of his debt, relieve the trustee from his liability as to that part, and then bring a suit for it, and thus continue to divide one debt into several parts and bring several suits. The defendant might in this case have avoided such a result by an immediate payment of the amount due from him, and this it was his duty to have done after he was adjudged trustee. The plaintiff has offered to release any further claim against the defendant, and if that be done the objection to a multiplication of suits will be avoided, and there will be no just cause for setting aside this verdict on that account.
Another objection is, that he was not allowed to retain his legal costs. The residence of the trustee was in the county where the suit was brought. He might by the provisions of the statute c. 61, <§> 6, appear in court and there submit himself to examination and after having done so he might make oath to the truth of his answers before a judge or justice of the peace out of court. One summoned as a trustee, who is about to leave the state may, by the provisions of the statute, c. 469, upon notice given, make his disclosure before a magistrate out of court. And any trustee may do so by the written consent of the plaintiff in the action. There is a reference in the bill of exceptions to the records and dockets, and from them it does not appear, that the trustee ever appeared in court. In his disclosure there is a statement, that he came into court, but it is contained in the formal statement of his coming and submitting himself to examination, and may as well be made in a disclosure before a magistrate as in one taken in court.
There is another difficulty deserving consideration. There were no costs taxed for the trustee. By the provisions of the statute 1828, <?. 382, one who appears at the first term and discloses, if adjudged trustee, is entitled to costs in the same manner as parties in civil actions, who have an issue joined for trial; and he may deduct the amount of such costs from the effects in his hands. e‘ Costs” to which parties are entitled in civil actions, is a legal
Exceptions overruled upon the plaintiff’s filing a release of further claim for the sums sued for.