
    Warren versus Gibbs and trustee.
    
    A trustee, who does not disclose at the first term, is not entitled to costs arising at any subsequent stage of the case.
    This action was entered at the March Term of the District Court, 1847. The trustee lived in the county. At the first term, Poor & Adams entered their names under the action, as attorneys-for the trustee, but he did not then appear and submit himself to examination- At the next term he disclosed, and was charged. To that judgment he excepted, and in the Court above the exceptions were sustained, and he was discharged.
    The trustee claimed costs after the exceptions were filed.
    
      Poor &/■ Adams, for trustee.
    The trustee is entitled to costs on the exceptions, as the prevailing party. R. S. chap. 115, § 56.
    Chap. 119, § 16, of R. S., making a trustee’s costs depend on his appearing at the return term, applies only to such costs as arise prior to judgment on the disclosure.
    
      Barnes, for plaintiff.
    1. The statute strictly defines the conditions under which a trustee may have costs. To come in at the first term, and submit himself to an examination on oath, is an indispensable previous condition, unless waived by an agreement, or in cases expressly excepted by statute. R. S. chap. 119, sections 16, 22, 25, 26, 42, 90.
    The duty of the trustee is a personal duty, and his costs are of a personal nature, belonging to himself, and not to attorney; unlike the case of a defendant, who is not obliged to appear personally in Court.
    To enter an appearance by attorney for trustee, in the ordinary cases, serves only in practice to prevent a default of the trustee. This practice where the trustee does not come in personally at the first term, is irregular, and not to be countenanced and affords no foundation for costs.
   The opinion of the Court was given orally by

Howard, J.

The trustee appeared at the second term, and made his disclosure without any agreement at the return term of the process, that he might come in at the second as of the first term. The trustee proceeding, is wholly regulated by the statute, and the provision is plain and positive, that the trustee shall not have costs, unless he comes in at the first term.

Costs not allowed.  