
    Luke B. Miller vs. Lyman Carrier & trustee.
    When one adjudged a trustee in foreign attachment appears by his answers to be chargeable for a less amount than his caste as taxed, he is entitled, under the St. of 1845, c. 188, to judgment and execution for the balance, deducting that amount, without waiting for a scire facias against him.
    Trustee process. The trustee in his answers disclosed that he had in his hands the sum of two dollars of the goods, effects and credits of the principal defendant; and was adjudged a trustee. After final judgment for the plaintiff against the defendant, the trustee moved that he might have judgment against the plaintiff for the balance of Ms costs after deducting the said sum of two dollars, according to the provisions of the St. of 1845, c. 188. The court of common pleas overruled the motion, and the trustee appealed.
    
      J. Price, for the trustee.
    
      J. E. Field, for the plaintiff.
    The judgment against tt trastee is general, and does not fix the amount for which he is chargeable. That can only be ascertained on scire facias against him.
   By the Court.

The 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.  