Though the trustee attachment, in this case, was commenced before the revised statutes .went into operation, yet by c. 146, § 5, future proceedings in suits pending were to he conformed to the provisions of those statutes. This has been held to apply to the case of scire facias against trustees. 21 Pick. 113, 114.
By the Rev. Sts. c. 109, §41, trustees may be permitted to give new answers on the scire facias, and may show any matter necessary for their discharge. But when a trustee comes in at a late period to answer new matter, and puts his title to a discharge on new grounds, after costs have accumulated, the error or mistake, in not making the true answer sooner, must be deemed to be attributable to him; and his answer must be received on terms.
In the present case, the answer may be received on the defendant’s paying the plaintiff the costs of the scire facias, and taking no costs of the same, to the present time, as the ultimately prevailing party.