Sugg v. . Bernard

29 S.E. 221, 122 N.C. 155, 1898 N.C. LEXIS 213

• Court: Supreme Court of North Carolina
• Decided: March 8, 1898
• Status: Published

Opinion

Haircloth, O. J.:

Plaintiff recovered a judgment in 1881 against defendant, trustee of Perkins & Robbins, for one dollar, with the costs of the action. The referee reported that there was one dollar in the hands of said trustee, which he paid into the Clerk’s office, as he might. Code, Section 438. In 1896, notice issued to defendant to show why execution should not issue against .him for the costs. It was admitted that the defendant had paid on said judgment all the funds in his hands or which ought to come into his hands, as trustee.

In actions against trustees, etc., costs shall be recovered a s in an action defended in his own right, ‘‘but such, costs shall be chargeable only upon or collected out of the estate, fund or party represented, unless the Court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in such action or defence.” Code, Section 535.

When the defendant paid on the judgment the amount found in his hands, leaving the costs unpaid, he was protected from personal liability by said section, and as no mismanagement or bad faith has been shown, he is not individually liable for said costs.

Affirmed.