#### * James Foster *versus*Joseph Jones.

A sues B, his debtor, and, pending that suit, B is summoned as the trustee of A: judgment is rendered against the effects of A in the hands of B, who pays over the same to the judgment creditor. This is a good bar to A’s recovery, and neither he nor B is entitled to costs.

Assumpsit for money had and received. The action was submitted to the opinion of the Court on the following facts agreed bt the parties • —

*173In September, 1812, the plaintiff, with *Robert Foster*and *William Godfrey,*were justly indebted to the defendant and one *Howe*in a large sum of money, which was secured by the promissory note of the plaintiff and the said *Robert*and *William;*and, on the 15th of that month, the defendant received from the plaintiff 120 dollars, to be credited on said note, and gave his receipt for the same; but neglected to see it endorsed on said note, and said *Howe*afterwards collected the whole amount of said note, with interest.

The present action was commenced in the year 1815, to recover the said sum of 120 dollars and interest; and, while it was pending in court, *viz.,*on the 20th of March, 1817, the said *Howe*brought an action against the plaintiff, on which he summoned the defendant as his trustee. The defendant appeared at the term for which the said process was commenced, and there disclosed the sum of 200 dollars, received by him of the plaintiff, and also the pendency of this action. The said sum of 200 dollars included the 120 dollars above mentioned. The defendant was adjudged the trustee of the plaintiff upon that process, and on the 13th of February last paid to *Howe,*the judgment creditor, the sum of 265 dollars, which was endorsed on the execution issued upon that process ; and the said execution has been duly returned. Upon these facts, such judgment was to be entered as the Court should judge right and fit.

*Leland,*for the plaintiff,

contended that the present action, being prior to the trustee process, ought not to be defeated by it. The judgment on that process ought not to be binding; because *Jones,*in his disclosure, omitted to disclose the amount of costs which had arisen in the present action — which was as much due as the debt itself. * The money was not a deposit, within the meaning of the statute, since the plaintiff was then using his diligence to recover it. (1) The payment of the money, against the will of the plaintiff, can place the defendant on no better ground than bringing money into court would do; and this, to be effectual, must always be accompanied with the payment of costs, if the money be received; and, hence, sufficient damages to carry costs, at least, ought to be recovered by the plaintiff in the present suit.

*Deane,*for the defendant,

insisted that there was no ground for disturbing the judgment rendered on the foreign attachment; and that it could not be done, in this indirect way, without subverting established principles. (2) If the facts appearing in the case were pleaded in bar, or given in evidence under the general issue, a ver*174diet must, by the provisions of the Trustee Act, be returned for the defendant; and he is entitled, as the party prevailing, to judgment for his costs.

(1)

3 *Mass. Rep.*121, *Howell*vs *Freeman and Tr.*— 4 *Mass. Rep.*238, *Field*vs *Shepherd.*

(2)

3 *Mass. Rep.*121. — 7 *Mass. Rep.*149, *Locke*vs. *Tippets and Tr.*

Wilde, J.,

delivered the opinion of the Court. The defendant, having been adjudged trustee under process of foreign attachment, and having paid the plaintiff’s demand on execution, is discharged therefrom by the express words of the statute. The validity and propriety of the judgment in the trustee process, supposing it to have been erroneous, cannot be questioned in the present action.

Then, the only question is as to costs; in respect to which it has been urged that the plaintiff ought to recover, since it is admitted that he had good cause of action at the commencement of the pres-: ent suit. But, by suffering the trustee process to proceed to judgment and execution, he has defeated his own action, and has no cause of complaint, although he may suffer some loss. He has now no remaining claim to the recovery of damages; and cannot, therefore, as the prevailing party, be entitled to costs.

Neither can the defendant recover costs. He has admitted the plaintiff’s demand, and has paid it. Until recently, he has had no legal ground of defence; and all he * can ask for, with any appearance of plausibility, is the trifling costs of the present term. For, while the action stood continued, to abide the event of the trustee process, no costs were allowable to either party. (3)

Payment, in this casé, is similar to direct payment to the plaintiff; and the rule in such case is, that each party must bear his own costs, unless there be some agreement to the contrary. This seems to be a reasonable rule, and must be adopted in the present case. (4) (a)

(3)

8 *Mass. Rep.*457, *Winthrop*vs. *Carleton.*

(4) (a)

Vide 1 *Caines’s Rep.*66. — 5 *Johns.*271. — 7 *Mass. Rep.*152. (a) Vide *Kidd*vs. *Shepherd,*4 *Mass. Rep.*238— *Gridley*vs. *Harraden,*14 *Mass. Rep. 496.—Locke vs. Tippetts,*7 *Mass. Rep.*149. — *Thorndike*vs. *De Wolf & Al.*6 *Pick.*120. — *Howell*vs. *Freeman,*3 *Mass. Rep.*121.