ARTHUR J. LEMIEUX v. ARBA N. LINCOLN & another.

Morton, J. The defendants brought an action against one Roy and caused his real estate to be attached on a writ dated September 1, 1905, and returnable to the Superior Court on Monday, October 2. The writ was not entered on the return day but was entered by leave of court two days later, October 4. On November 4, 1907, the defendants obtained judgment against Roy, and on December 10 all the right, title and interest which Roy had in the premises at the date of the attachment was sold on execution to the defendants and a deed of the same, which they afterwards caused to be duly recorded, was executed and delivered to them by the sheriff. On September 2, 1905, the day after the attachment by the defendants, Roy executed and delivered a mortgage of the premises. This mortgage was recorded on October 4, 1905, and afterwards was foreclosed. If material, it fairly may be inferred, we think, from the facts agreed to, that the mortgage was recorded before the action was entered. The plaintiff claims under the purchaser at the foreclosure sale, and the question is whether as against an intervening incumbrance the failure to enter the action on the return day and its entry two days later operated as a dissolution of the attachment or a discontinuance of the action so that the plaintiff's title is paramount to that of the defendants.

The entry of writs is regulated by statute and by the rules and practice of the courts. Dudley v. Keith, 153 Mass. 104. The statute in regard to the matter is as follows: "If the plaintiff fails to enter his writ, or if he fails either to insert a declaration in the writ or to file it in the clerk's office on or before the return day of the writ, or if he fails to furnish to the defendant a copy thereof pursuant to the provisions of the preceding section, the action may at any time, upon motion of the defendant, be dismissed with costs; but courts, excluding trial justices, may upon terms allow the plaintiff, at any time before the next regular return day, to enter his writ and to file his declaration." R. L. c. 173, § 11.

The almost necessary implication of these provisions would seem to be that a late entry is to be as effectual to all intents and purposes as an entry on the return day; and this seems

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to be the fair inference from what is said in Dudley v. Keith, ubi supra, and from the history of legislation and practice in regard to the matter as there traced, though the question in that case was whether the time of entry could be extended beyond the next regular return day, and there was no occasion to consider the effect of a late entry upon any attachment or other security which the plaintiff might have. There is no provision for further or additional service or notice, though the court no doubt may order it, and it would seem to have been intended that the action when entered should carry with it all the rights and incidents which would have belonged to it if it had been entered when it should have been. The entry is regarded as an act in the continuance of an action already begun, and not as the revival of an action which has been discontinued by reason of the failure to enter it at the proper time. The power which is given to the court to dismiss the action upon motion by the defendant, when taken in connection with the further provision that the court may allow the writ to be entered at any time before the next return day, shows that during that time the action is to be treated as in a sense still pending, and that the court has jurisdiction over it which it would not have if the failure to enter it on the return day operated as a discontinuance of it.

So far as the defendant is concerned no injustice is done him by holding that the attachment continues in the case of a late entry. The late entry gives the plaintiff no more than he would have had and puts him in no better position than he would have occupied if the action had been entered on the return day. Moreover, the court has power to impose such terms as it may deem reasonable as a condition of allowing the entry. So far as third parties claiming under the defendant are concerned, if they have taken title without any knowledge of the bringing of the action, they can have no just ground of complaint if the plaintiff is allowed to enter the action late and to have the benefit of his attachment, since they cannot have done or omitted to do anything in reliance upon the fact that the action was not entered on the return day. If they did know that the action had not been entered and acted upon such knowledge, then they must be presumed to have known that the action, with

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all the rights and incidents belonging to it, could be entered by leave of court at any time before the next return day, and that whatever they did would be subject to that contingency. The plaintiff and those claiming through or under him can have no just ground of complaint therefore, if it is held that all the rights and incidents which would have attached to the action if it had been entered on the return day attach to it when entered late. On the other hand justice to the plaintiff would seem to require (as was intimated in Dudley v. Keith, supra) that the court should be able, upon such terms as it may deem proper, to relieve him from the consequences of any accident or mistake which may have caused the failure to enter the action on the return day. It was no doubt considerations like these which led to the enactment of the statute in its present form. The views expressed above are supported by similar considerations arising out of the provisions in regard to the filing of a declaration and bill of particulars when they have not been inserted in the writ, or filed on the return day, or furnished to the defendant or his attorney on demand. See also Horton v. Munroe, 98 Mich. 195. In cases arising out of the failure to enter an appeal or bill of exceptions the statute expressly provides that the entry, if subsequently allowed, shall not revive or continue in force any security whether by bond, attachment or otherwise which may have been discharged. R. L. c. 156, § 14; c. 157, § 23.

In the cases of Wilder v. Holden, 24 Pick. 8, 12, and Thomas v. Blake, 126 Mass. 320, relied on by the plaintiff, there was no entry whatever of the action. The failure to enter the action plainly operated as a discontinuance of it (Cardival v. Smith, 109 Mass. 158) and what was said by the court was addressed to that state of facts. In Varian v. New England Mutual Accident Association, 156 Mass. 1, the statement that "A failure to enter a writ on the return day is a discontinuance of the action" was not intended to lay down an absolute rule of law, but to show, when taken in connection with the facts of that case and with what follows, that by reason of the failure to enter the writ on the return day and the certificate of the clerk to that effect and the absence of a motion for leave to enter, the payment by the trustee in good faith to the defendant was analogous to the

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cases provided for in Pub. Sts. c. 183, § 28, now R. L. c. 189, §26.

The result is that a decree should be entered for the defendants.

So ordered.