Miller v. Carrier

¶1The St. of 1845, c. 188, provides that “ whenever, in any action, the goods, effects and credits in the hands of any person who shall hereafter be adjudged a trustee shall not be of sufficient value to discharge the costs taxed in favor of such trustee, the trustee shall have judgment and execution against the plaintiff in such action, for the balance of such costs so taxed, deducting the sum disclosed, in the same manner as if such trustee had been discharged by the judgment of the court in such action.” We see no way of securing to the trustee his rights under this statute, otherwise than by granting this motion. It is true that ordinarily the court does not ascertain in the first instance for how much the trustee is to be charged. Rev. Sts. c. 109, § 42. But here it becomes necessary to ascertain it, in order to determine what judgment for costs shall be entered. Otherwise, it may not be possible to carry the St. of 1845 into effect; for scire facias may never be brought. The court must therefore ascertain from the trustee’s answers, whether the goods in his hands are insufficient to pay his costs as taxed, and if they are, then award execution against the plaintiff for the balance. Motion granted.