¶1The opinion of the court was delivered by
¶2The trustees, in this case severally acknowledged their indebtedness to the principal debtor, but state in their disclosures, that they had, previous to the service of the writ in this case, been summoned as trustees of the defendant, at the suit of William T. Burnham.
¶3*535The claim of the plaintiff against the defendant, was settled and paid, soon after the judgment against him, and the suit was discontinued.
¶4The trustees, by order of the court, were'discharged without costs, for which exceptions were taken; and the question is, are they entitled to recover their costs of the plaintiff, when in the settlement of this suit, he did not receive it of the defendant F The Comp. Stat. 264 § 64, provides, “that if any person be discharged as trustee for any cause, he shall recover judgment against the plaintiff for his costs, and have execution therefor.” Under this provision, their claim for costs is a matter of absolute right, of which they cannot be deprived, but by their consent. If they have effects in their hands, and final judgment is rendered against them, they may deduct the amount of their costs, and judgment is to be rendered only for the balance. Section 60. But if, for any cause, no final judgment is rendered against them, and they' are discharged from the suit, they can make no such deduction of their costs, from the money, in their hands. The statute gives them their remedy, by judgment therefor, against the plaintiff.
¶5It is equally evident, that they cannot retain that amount from the monies in their hands, and have it allowed in the suit of William T. Burnham, who first commenced his trustee process, by having a judgment rendered against them simply for the balance. For Burnham is entitled, on perfecting his judgment against the principal debtor, to all the funds in their hands, for the payment of his judgment, if required for that purpose, deducting therefrom only their costs of disclosure in that suit. If such construction of the act were allowed, the service of subsequent trustee process might be indefinitely pursued, until the funds in the hands of the trustee would be entirely swallowed up in costs, and the creditor, whose process was first commenced, be deprived of his security. The only remedy, therefore, the trustees have, is upon the'plaintiff, at whose suit they have been summoned, and in which their disclosure was made and the costs accrued.
¶6It was competent for the plaintiff to have refused the settlement of his case, without the payment, not only of his debt and costs, but also of the costs legally taxable to the several trustees ; and to risk the chance of being able to recover the same, after- the termination of the suit commenced by Burnham. But the settle*536ment of Ms case, and the discontinuance of the suit, operated as a discharge of the trustees, so that in no event could final judgment be rendered against them, and they thereby be entitled to retain the amount from the funds in their hands. As a consequence, they are entitled to look to the plaintiff for their costs, for they cannot be obtained in any other mode ; and of this right they cannot be deprived. It is a matter over which no court has the exercise of discretionary power.
¶7The judgment of the County Court must be reversed, and judgment rendered for the trustees for their costs.