
    Murray v. Hendrickson.
    An assignee, under a general assignment, by a debtor, of his property in trust for his creditors, although a trustee of an express trust, must prosecute as such, in order to be exempted from payment of the costs of the action, if he fail to recover.
    When he sues in his own right, and is defeated, he must pay costs, if the action be one in which, a plaintiff, failing to recover,- pays costs as a matter of course.
    (At Special Term,
    December 3, 1857,
    Boswoeth, J.)'
    The plaintiff now moves to set aside the judgment entered, against him, for the costs of this action, and an execution issued on such judgment, as irregular: The complaint states the plaintiff to be endorsee and owner of a note for $400, made by defendant, and prays judgment for the $400 and interest. In November, 1854, judgment was entered for defendant for costs. Plaintiff, on an affidavit to the effect, that the note was transferred to him by an assignment made by Currie for the benefit of his creditors, moves to set aside the judgment and execution, on the ground that, being trustee of an express trust, he could not be charged personally with the costs of the action, except for mismanagement or bad faith in the action, to be determined by special order of the Court, and that no such order has been made.
   Bosworth, J.

As the plaintiff sued in his own right, without alluding, in his complaint, to his representative character, § 317 of the Code, does not apply. •

To become entitled to the immunities, provided by that section, he must present a case falling within it, and come before the Court in a character which it protects, and seek to recover in ■that character. (9 Wend. 486.) Motion denied, with $7 costs.  