
    Rivers versus Smith.
    Where one summoned as trustee within his county does not appear upon the orig inal process, but on scire facias is adjudged trustee, he is liable for the costs on the scire facias.
    The defendant had been summoned in this county as the trustee of Fisher, but not appearing upon the original process, the plaintiff sued out his writ of scire facias. The defendant then came in, and upon his answer the court below adjudged him not to be trustee, and awarded him costs, although he resided in the county. The plaintiff appealed, and upon further answers in this Court the defendant was adjudged trustee. In relation to the question of costs, the Court said, they had been induced to suppose, that there was a mistake in the report of the case of Cleaveland v. Clap et al. 5 Mass. Rep. 200. They had, therefore, caused an examination of the records to be made, by which it appeared, that the trustees were held liable for the costs of the scire facias. The report, therefore, in saying that no costs can be taxed against the trustees, must be understood as referring to the costs in the original action.
   The costs on the scire facias Only are to be taxed against ~ the present defendant.  