Where an action is brought against several, and the plaintiff obtains a verdict, the costs are, in all cases, taxed jointly against whom the verdict is rendered.'

Double costs. By Stat. 1784. ch. 28. s. 13. it is provided that when the plaintiff and defendant both live within the Commonwealth, all personal and transitory actions, shall be brought in the county where one of the parties lives; and when an action shall be commenced in any other county, than as above directed, the writ shall be abated, and the defendant allowed double costs.

By Stat. 1820. ch. 79. s. 5. when a party alleging exceptions to the opinion, direction, or judgment of the Court of Common Pleas, in any matter of law, shall fail to enter the action in which such exceptions are made, at the first succeeding term of the Supreme Judicial Court, for the same county, and complaint thereof shall be made by the adverse party; or whenever the Supreme Court shall allege such exceptions to be frivolous, and intended only for delay, the Supreme Court shall award double the costs of that court, against the party making the same.

By Stat. 1822 ch. 105. double costs are allowed to plaintiffs, where a defendant appeals from the judgment of the Court of Common Pleas, where the debt or damage recovered, was less than one hundred dollars, if the same be not reduced on the appeal.

1 Vide Prop. Kennebec Pur. v. Boulton et al. 4 Mass. Rep. 419.

SECT. II. IN SPECIAL PROCEEDINGS.

1. Upon trustee process. As between the plaintiff and defendant. The same rules prevail, in the taxation of costs, as at common law.' If the defendant make default, however, or if the suit be determined by verdict, or otherwise, as against him, the plaintiff will recover further costs of travel, attendance, &c. until the termination of the suit against the trustee, although he may ultimately be discharged.2

When the trustee shall be allowed costs. By Stat. 1794. ch. 65. s. 3. if any person summoned as a supposed trustee, shall come into court, at the first term, and declare that he has not in his hands, or possession at the time of the service of the writ, any goods, effects, or credits of the principal, and thereupon submit himself to an examination upon oath, if upon such examination, the declaration appear to be true, the court shall award to him his legal costs.

By Stat. 1829. ch. 128. s. 2. any person summoned as trustee, may retain from the amount adjudged to be in his hands, a sufficient sum to pay his reasonable counsel fees, and other necessary expenses, occasioned by his being summoned as trustee; the amount to be retained, and the necessity of employing counsel to be determined by the court.

If a supposed trustee appear at the first term, and submit himself to an examination, and the plaintiff fail in the action against the defendant, the trustee

1 Denham v. Lyon et Tr. 1 Mass. Rep. 15.

2 Wells et al. v. Banister et al. 4 Mass. Rep. 515.

will be entitled to his costs, whether he admit or deny his liability as trustee.'

If one, summoned as trustee, be absent at the time of the service of the writ, and also at the first term of the court, so that he cannot then come in and submit himself, and he comes in at the first term after his return, he will be entitled to costs under the equity of the statute.2

It is not necessary, in order to entitle the trustee to costs, that he should make oath to his general answer, containing a mere denial of effects; if an examination under oath be intended, the oath is generally administered at the close of the examination.

The object of the statute is to prevent any delay on the part of the trustee in making his answer, by making his title to costs depend upon his presenting himself for examination at the first term.s

If, however, no further interrogatories be put during the term, or if the plaintiff be satisfied with the general answer, it would seem that to entitle the trustee to be discharged, and to have his costs, he must make oath to it, during the term, in which his answer is filed.1

Where the trustee's liability is determined by a trial at law, upon the validity or effect of an assignment, disclosed by him in his answer, it is provided by Stat. 1817. ch. 148. s. 1. that the court may award legal

1 Brown v. Seymour & Tr. 1 Pick. Rep. 32. Wilcox v. Mills, 4 Mass. Rep. 218. Cleveland v. Clap et al. 5 Mass. Rep. 208. Stat. 1794. ch. 65. s. 4.

2 Turo v. Coates & Trs. 10 Mass. Rep. 25.

3

Chapman v. Phillips, 8 Pick. Rep. 24.

Ibid. Vide Cleveland v. Clap et al. 5 Mass. Rep. 207.

costs, for and against any of the parties, at its discretion.

By Stat. 1794. ch. 65. s. 3. if a supposed trustee, resident without the county, to which the writ is returnable, discharge himself upon examination, the court shall award to such trustee, such further costs, as with his legal costs, shall, under all the circumstances of the case, be a reasonable compensation to him for his time and expenses, in appearing and defending himself against the suit.

If in such case, the trustee do not submit himself to an examination at the first term, but is discharged on examination at a subsequent term, before judgment be rendered against the debtor, he shall have his costs.1

A person, summoned as trustee, resident in another county, than where the writ is returnable, shall not be liable to pay costs upon the original process.2

When the trustee shall pay costs. By Stat. 1794. ch. 65. s. 3. where a person summoned as trustee, resident within the county in which the writ is returnable, shall neglect to appear at the first term, and submit to an examination, having in the opinion of the court, no reasonable cause to the contrary, he shall be liable for all costs, afterwards arising in such suit, to be recovered and paid out of his own goods and estate, in case judgment shall be finally rendered for the plaintiff, unless such costs shall be satisfied from the estate of the principal. If there be more than one trustee who shall so neglect to appear, they will be jointly liable to such costs.

1 Cleveland v. Clap et al. 5 Mass. Rep. 208. but quære. Vide Stat. 1794. ch. 65. s. 3, 4.

2 Stat. 1794. ch. 65. s. 3.

The intention of this provision of the statute, is "to mulct a supposed trustee, when by his negligence in submitting to an examination, the creditor has been at expense in prosecuting a fruitless suit against his debtor. But if the creditor be indemnified as to the costs out of the debtor's effects, whether in his own hands, or in the hands of any trustee, the intent of the statute is satisfied.""

How judgment for costs is rendered. Each trustee, summoned in the writ, who duly appears, and is discharged, with an allowance of costs to him, is entitled to a separate judgment and execution for them.2

If there be several trustees in the same writ, who are mulcted in costs for not appearing and answering, under the provisions of the statute, judgment and execution will be awarded against them jointly, for such

costs.3

2. Scire facias against trustees. If the plaintiff fail in his action of scire facias against the trustee, because he has, in fact, discharged himself by delivering over all the effects of the debtor in his hands, upon the original execution, the trustee will be entitled to his costs.1

If a trustee, residing out of the county, upon scire facias brought against him, be examined and discharged, he will recover costs.5

If a supposed trustee, summoned out of his county, be defaulted on the original process, and on the scire facias, plead in abatement of the writ, a plea which

1 Per Parsons C. J. Cleveland v. Clap et al. 5 Mass. Rep. 208.

2 Stat. 1794. ch. 65. s. 4.

3 Ibid. s. 3.

4 Cleveland v. Clap et al. 5 Mass. Rep. 208.

5 Stat. 1794. ch. 65. s. 6.