Foster v. Jones

15 Mass. 185

• Court: Massachusetts Supreme Judicial Court
• Decided: June 15, 1818
• Status: Published

Opinion

Wilde, J.,

delivered the opinion of the Court. The defendant, having been adjudged trustee under process of foreign attachment, and having paid the plaintiff’s demand on execution, is discharged therefrom by the express words of the statute. The validity and propriety of the judgment in the trustee process, supposing it to have been erroneous, cannot be questioned in the present action.

Then, the only question is as to costs; in respect to which it has been urged that the plaintiff ought to recover, since it is admitted that he had good cause of action at the commencement of the pres-: ent suit. But, by suffering the trustee process to proceed to judgment and execution, he has defeated his own action, and has no cause of complaint, although he may suffer some loss. He has now no remaining claim to the recovery of damages; and cannot, therefore, as the prevailing party, be entitled to costs.

Neither can the defendant recover costs. He has admitted the plaintiff’s demand, and has paid it. Until recently, he has had no legal ground of defence; and all he * can ask for, with any appearance of plausibility, is the trifling costs of the present term. For, while the action stood continued, to abide the event of the trustee process, no costs were allowable to either party.

(3)

Payment, in this casé, is similar to direct payment to the plaintiff; and the rule in such case is, that each party must bear his own costs, unless there be some agreement to the contrary. This seems to be a reasonable rule, and must be adopted in the present case. (4) (a)

8 Mass. Rep. 457, Winthrop vs. Carleton.

Vide 1 Caines’s Rep. 66. — 5 Johns. 271. — 7 Mass. Rep. 152. (a) Vide Kidd vs. Shepherd, 4 Mass. Rep. 238— Gridley vs. Harraden, 14 Mass. Rep. 496.—Locke vs. Tippetts, 7 Mass. Rep. 149. — Thorndike vs. De Wolf & Al. 6 Pick. 120. — Howell vs. Freeman, 3 Mass. Rep. 121.