
    Moses D. Phillips & others vs. Barton Flanders & Trustees
    Under St. 1852, c. 312, § 56, a trustee in foreign attachment, who files his answer, without leave of court, after the expiration of the first four days of the return term, is entitled U no costs, although the plaintiff has not moved that he be defaulted.
    Trustee process, returnable at June term 1858 of the court of common pleas in Essex. On the ninth day the trustees filed answers without leave of court, or consent of the plaintiffs. The plaintiffs did not move that the trustees be defaulted, and at a subsequent term the principal defendant was defaulted and the trustees discharged. They thereupon moved for full costs, which the court refused to allow, and they appealed to this court.
    
      D. Saunders, Jr. for the trustees.
    
      H. N. Merrill, for the plaintiffs.
   Dewey, J.

The simple question before us is upon the right of the trustees to recover costs in the present case. Under the Rev. Sts. c. 109, §§ 49, 51, the trustees, having appeared at the first term, would be entitled to their costs. But the St. of 1852, c. 312, § 56, requires “ that any person summoned as trustee shall appear and file his answer within the first four days of the return term; otherwise, he shall, on motion of the plaintiff, be defaulted and adjudged a trustee; provided however that the court, upon good cause shown, may enlarge the time of filing such answer.” . These trustees failed to file their answers within the first four days of the term. By so doing they lost their right to file their answers, unless the court, upon good cause shown, enlarged the time. No such order was passed by the court, nor any motion to that effect made by the trustees. The filing of the answers without such leave was irregular, and cannot avail the trustees as an effective appearance, entitling them to costs. The omission of the plaintiffs to avail themselves of the right to have a default entered against the trustees, in consequence of their neglect to file their answers in the first four days of the term, does not affect the question of the plaintiffs’ liability to pay costs. They might well be content to leave the matter upon the failure of the trustees to appear in due time, and their omission to ask of the court an extension of the time. The plaintiffs were not bound to take notice of the trustees’ appearing and filing an answer after the time limited by law. Trustees entitled, to no costs. •  