The opinion of the Court was drawn up by
Shepuev J.It appears that the defendant was indebted to the plaintiff before the month of June, 1835, for goods sold and delivered. And that he was also indebted to Thomas J. Norris for goods sold and delivered ; and that this claim with others had been assigned by deed to the plaintiff. The defendant in June, 1835, promised to pay both these debts to the plaintiff. Having neglected to do so, the plaintiff commenced this suit, on the 20th July, 1836, to recover them. The defendant objected to his right to recover the debt originally due to T. J. Norris, because he had not exhibited proof, that the assignment of it was made for a val*335uable consideration. The creditors of T. J. Norris might have interposed to prevent a recove-y by the plaintiff without proof that the assignment was made for a valuable consideration, but it was of no importance to the defendant. It was sufficient for him that the plaintiff was authorized to receive it. The defendant, if he could have availed himself of such an objection, had waived it by his express promise to the plaintiff. And if such proof had been necessary, the deed itself was sufficient.
During the pendency of this suit the defendant had been summoned as the trustee of the plaintiff in three other suits. In two of them he disclosed and was adjudged trustee, and in the other he was discharged by a discontinuance of the suit as to the trustee. Executions issued and a demand was made upon him as trustee for payment and he neglected to pay. The first judgment against him as trustee was satisfied by a joint promisor with the plaintiff. The second remained unsatisfied to the time of this trial, when forty dollars were paid upon it, and it being thus reduced, there would remain a balance due to the plaintiff after the defendant should pay the amount still due upon it.
It was decided in Matthews v. Houghton, 2 Fairf. 377, that a judgment against a trustee was a protection against a suit by his principal although not satisfied. But such protection cannot extend beyond the amount due upon the judgment. And the Judge in this case was obliged to act upon the evidence introduced, and that proved the judgment to be partly satisfied. Whether the holder of that judgment was obliged to receive a partial payment, it is unnecessary here to determino. The judgment was admitted by the court to be a protection for the amount remaining due upon it. There is a difficulty however in allowing the principal to pay a part of his debt, relieve the trustee from his liability as to that part, and then bring a suit for it, and thus continue to divide one debt into several parts and bring several suits. The defendant might in this case have avoided such a result by an immediate payment of the amount due from him, and this it was his duty to have done after he was adjudged trustee. The plaintiff has offered to release any further claim against the defendant, and if that be done the objection to a multiplication of suits will be avoided, and there will be no just cause for setting aside this verdict on that account.
*336Another objection interposed relates to the amount of interest with which the defendant was charged. When he was summoned as trustee he was legally chargeable with an accruing interest. The conclusion must be, that if he had the money then unemployed he would before that time have satisfied these undisputed demands. And the fact that he did not pay it over, when it was demanded after he had been adjudged trustee, shews, that he could not have procured it and held it unemployed during the pendency of the trustee suits. The party in such cases is not chargeable with interest, when there is nothing to rebut the legal presumption that he is ready to pay and is holding the money unemployed to await the decision of the law. The facts in this case sufficiently rebut such a presumption, and prove the defendant to have been in fault whenever a call for payment was made upon him; and he was properly charged with interest on the amount due.
Another objection is, that he was not allowed to retain his legal costs. The residence of the trustee was in the county where the suit was brought. He might by the provisions of the statute c. 61, <§> 6, appear in court and there submit himself to examination and after having done so he might make oath to the truth of his answers before a judge or justice of the peace out of court. One summoned as a trustee, who is about to leave the state may, by the provisions of the statute, c. 469, upon notice given, make his disclosure before a magistrate out of court. And any trustee may do so by the written consent of the plaintiff in the action. There is a reference in the bill of exceptions to the records and dockets, and from them it does not appear, that the trustee ever appeared in court. In his disclosure there is a statement, that he came into court, but it is contained in the formal statement of his coming and submitting himself to examination, and may as well be made in a disclosure before a magistrate as in one taken in court.
There is another difficulty deserving consideration. There were no costs taxed for the trustee. By the provisions of the statute 1828, <?. 382, one who appears at the first term and discloses, if adjudged trustee, is entitled to costs in the same manner as parties in civil actions, who have an issue joined for trial; and he may deduct the amount of such costs from the effects in his hands. e‘ Costs” to which parties are entitled in civil actions, is a legal *337term implying an amount derived from items to be regularly taxed and allowed to be due to the party by the judgment of the court. And it appears from that provision of the statute creating a lien on specific articles in the hands of the trustee for his costs, that the legislature had reference to costs thus legally taxed and adjudged to be due ; for it provides that the officer selling the property shall pay his costs according to the certificate of the clerk on the margin of the execution. This case therefore affords no satisfactory evidence that the trustee was legally entitled to costs; for it does not appear that he came into court and there submitted himself to examination at the first term, or if he did, that any costs were allowed and taxed for him by the judgment of the court.
Exceptions overruled upon the plaintiff’s filing a release of further claim for the sums sued for.