Bullard v. Hicks

The opinion of the court was delivered by Williams, Ch. J. The principal questions in this case have been decided in the case in favor of Hurlburt against the same defendants and their trustees. But with respect to the Messrs. Beardsley there is this difference, that the amount disclosed by them is not sufficient to pay the amount for which Hurlburt recovered judgment 199 against them in that suit, the writ in which was served prior to the service of the writ in this case. They cannot, therefore, be called upon by this plaintiff, only on the contingency that Hurlburt should be able to collect the whole amount of his judgment against the principal debtor without recourse to them. They must, therefore, be entitled to their costs, to be adjudged to them against this plaintiff. . The cost which accrued to them in this suit should' not be deducted from the amount found due to Hicks and Goodsell, as this , wquld lessen the sum for which the first creditor, Hurlburt, has a just claim against them. They were rightly adjudged trustees in this suit, subject to their liability as trustees of the. same debtors in the suit in favor of Hurlburt; and the judgment of the court below is affirmed in this particular; — but judgment must be rendered for these trustees to recover their cost.