10.

Travel of justice. For travel by a justice on any official duty, he is allowed at the rate of fifty cents for every ten miles, in going and returning.'

11. Recognizance to prosecute an appeal. For taking a recognizance, twenty cents is allowed."

The magistrate should certify on the bill of costs that it has been examined and allowed by him. In case of appeal this is important, as the appellate court is to be governed by his certificate. And the party appealing, as well as the party in whose favor judgment is given, should cause his costs to be taxed and certified; though, if this is not done, it is not within the province of the magistrate to suggest it.

CHAPTER XII.

OF PROCEEDINGS IN SPECIAL CASES.

I. TRUSTEE PROCESS.

When it may be used. THIS is a writ of summons and attachment, given by statute for the purpose of reaching goods, effects and credits of the principal defendant, in the hands of the trustee, which could not be reached by the ordinary process. All personal actions which could by law be commenced before a justice of the peace, except actions of detinue, replevin, actions on the case for malicious prosecution, slander by writing or speaking, and actions for assault and battery, may be commenced by this process.1

The judgment in it is twofold; first, charging or discharging the trustee ; and secondly, for the plaintiff or defendant. The effect of it is, if the plaintiff prevails, and the trustee is charged, that the goods, effects and credits of the principal defendant, in the hands of the trustee, are sold to satisfy the plaintiff's execution.

Against what principal defendant. The writ may run against either individuals or corporations, as principal defendants, and may run into any county for the purpose of being served on the defendant."

Against what trustee. All corporations, except counties, towns, school districts, and parishes, may be summoned as trustees, and the writ served upon them as other writs on such corporations; and they may answer by attorney or agent, and make disclosures, which shall be signed and sworn to by such agent or attorney.3

Individuals, never inhabitants of the State, providing the process is served upon them in a mode prescribed by law, are liable to be adjudged trustees; and the writ may be made returnable in the county, in which either the plaintiff or the principal defendant lives.*

Foreign corporations, though doing business in the State, and having agents here, are probably not liable to trustees process, though there

1R. S. ch. 119, sec. 1. 2R. S. ch. 116, sec. 17.

3R. S. ch. 119, sec. 8.
4Ib. sec. 12.

is some reason for supposing them to be so liable, especially (under a recent law of the State) insurance companies.1

Executors and administrators are subject to the trustee process.2

The plaintiff, as before stated, may, before or after service on the principal, insert the names of any trustees, but if names are inserted after, a new service must be made on the principal at the expense of the plaintiff.3

Of charging the trustee. Service on the trustee binds all goods, effects, or credits of the principal defendant entrusted and deposited in his hands or possession, to respond the final judgment in the action, in like manner as goods or estate when attached by the ordinary process*.

If any supposed trustee shall come into court on the return day of the writ, and submit himself to examination on oath, after having in writing declared that, at the time of the service of the trustee process upon him, he had not any goods effects or credits of the principal in his hands or possession, he shall be entitled to his costs in the same manner as in civil actions, where issue is joined for trial.3

If the plaintiff desires to examine the supposed trustee, he proposes interrogatories in writing, which are answered in writing by the supposed trustee. The disclosure, when completed and subscribed by the trustee, must be sworn to in open court, or before some justice of the peace.

If a person, summoned as trustee, does not come into court, and declare that he had no property or credits of the principal in his hands, when the writ was served upon him, and submit himself to examination on oath, the court shall not award costs in his favor, though the suit be discontinued. Where, however, the plaintiff does not support his action against the principal, costs are to be awarded to all trustees, who have appeared and submitted to examination on oath."

If a person, summoned as trustee, shall admit that he has in his hands. goods, effects or credits of the principal, or shall wish to refer that question to the court upon the facts, he may make a statement of such facts as he deems material, and submit himself thereupon to a further examination on oath; and such statement and further examination, if any, shall be sworn to, as above stated.

8

Ib. sec. 16.

Ib sec. 90.

7Ib. secs. 25, 26.
Ib. sec. 32.

If the supposed trustee, having been duly summoned, neglect to appear and answer to the suit, he shall be defaulted, and be thereupon adjudged trustee.

The answers and statements, sworn to by any person summoned as a trustee, shall be considered as true, in deciding how far he is chargeable, until the contrary is proved; but either party may allege, and prove other facts, not stated nor denied by the supposed trustee, which may be material in deciding that question.'

And the trustee may make the affidavit of a third person, though that person be interested, a part of his answer, provided he swear that he believes it."

Doubts often arise, as to whether proposed questions are proper, and require an answer.

It is a matter entirely within the discretion of the magistrate to determine whether the proposed question is pertinent, and relates to new subjects of inquiry, not already answered.

The rule is positive that the trustee shall not be required to submit himself to a cross examination; and when he has once answered a question, he shall not be obliged to repeat his answer. The plaintiff is bound to take his answers under oath as truth, and can neither impeach his character nor contradict his testimony. What the trustee may have told other persons, or said on former occasions, is immaterial, and not a proper subject of inquiry."

Neither is the trustee bound to disclose statements of other persons; but he may do so if satisfied of their truth.1

Neither is he bound, against his choice, to set up the statute of frauds, to avoid his contract with the principal defendant.3

A trustee is not bound to disclose matter having a tendency to charge himself criminally ; and it has been said that he is not bound to disparage his own title to real estate. The better rule, however, seems to be that no interposition should be made by the court, unless the interrogatory is plainly immaterial, or has a tendency to charge him criminally.

A disclosure by a trustee that the writ in the action was not served on him, or that the service was defective, cannot be received to contra

dict the return of the officer; and if the trustee suffer thereby, he must look to the officer for his remedy.'

A trustee may file additional answers after the examination has closed, the plaintiff thereby acquiring the right to put further interrogatories.

2

Where a person shall be adjudged trustee for specific articles in his hands, he shall have a lien upon the same for his costs; and the officer who shall dispose of the same on execution, shall pay the trustee the amount due him for costs, and deduct such amount from the proceeds of the sale, and account to the creditor for the balance. The amount of the trustee's costs should be indorsed on the execution, in such case by the justice, as evidence of the lien."

In

Whenever, by the terms of the contract between the trustees and the principal, any mode of ascertaining the value of the property to be delivered to the officer, shall have been pointed out, it is the duty of the officer, on the application of the trustee, to notify the principal debtor, previously to the delivery, that the value may be thus ascertained, as far as it may affect the performance of the contract. other cases, the value of the property, as between the principal and trustee, is to be estimated and ascertained by the appraisal of three disinterested men, one to be chosen by the trustee, one by the officer, and one by the principal, if he see fit; if he neglect or refuse, the officer is to appoint two of such appraisers; and they shall be duly sworn to appraise the same; and the officer, justice, and appraisers shall certify their respective doings on the execution.*

When a part of such goods and articles shall be taken on execution, the trustee may deliver the residue to the principal, or tender the same to him, within thirty days after satisfaction of the execution, as he might have delivered the whole."

A creditor may have the benefit of the trustee process, though he has committed his debtor on the execution, provided that he, within seven days after the service of the process, discharge the body of the debtor from prison, by a written direction to the jailor, stating the occasion and reason of the discharge.