
    Henry Lee versus Gideon Babcock, and Caleb Hayward, Trustee.
    Where one summoned as trustee appears at the first term, submits to an examination, and is by the Court of Common Pleas rightly adjudged trustee upon the facts there disclosed, but upon the appeal discloses new facts upon which he is discharged, he is not entitled to costs.
    Hayward appeared at the Common Pleas at the term when the writ was returned, and submitted to an examination, and on his answers to the interrogatories proposed by the plaintiff, he was adjudged trustee. From this judgment he appealed, and on his disclosing new facts here in this Court, he was discharged. He now * moves for costs, because he submitted to an ex- [*213] amination at the first term, and has been discharged.
   Curia.

When a supposed trustee has appeared the first term, and has submitted himself to an examination, and is entitled to a discharge on the facts disclosed on that examination, he shall have his costs, although the Common Pleas erroneously adjudged him to be trustee. But it is otherwise if the judgment of the Common Pleas was right, and he has been discharged on a subsequent disclosure of new facts. Although he is now discharged on a further examination had in this Court, yet we must look into his examination at the Common Pleas before we can decide on the merits of his motion for costs.

From his answers below it appeared that he owed Babcock a balance of an unsettled account; that he had a note put into his hands of Babcock’s to collect the money for him; that before he had collected the money, he had accepted an order drawn on him by Babcock to pay over the balance of account in his hands; that after-wards he collected the money due on the note, and was, after the collection, summoned as trustee in this action.

The Common Pleas were of opinion that Hayward was trustee of the moneys collected on the note. And we are satisfied that their opinion was correct. The order could not cover any money, unless it could be a regular item of the account when the order was drawn. A could not extend to the balance of a future account, to be formed from new items, which might arise from subsequent transactions between the parties. Consequently the money afterwards collected on the note could not be a part of an account existing when the order was drawn.

In this Court he has stated his account as it stood when he was summoned, in which the money received on the note is credited, and the balance is in his favor; and he declares that [*214] there were errors in his account as * stated to the Common Pleas, arising from his having drawn it from his leger, when, on a subsequent examination, it was found that several articles of debit against Babcock had not been posted.

Bourne, for the plaintiff.

Whitman, for the trustee.

As it appears that Hayward was rightly adjudged to be a trustee on his first examination, he cannot have costs against the plaintiff, although upon a subsequent disclosure of new facts, he is now discharged.  