Section 321 of the Code makes an assignee pendente lite liable for costs as if he were a party, excepting only that payment can be enforced against him by attachment, which could not be done were he a party to the record. It seems to me, however, that this remedy was intended to apply only to assignees taking and holding in their own right, and that, if holding in a representative capacity, section 317 protects them from personal liability in the absence of misconduct or bad faith. Section 321 imposes no greater liability upon an assignee of the description mentioned in section 317, when *Page 589 he becomes such, pending the action, and continues it in the name of the original party, than if the action had been originally brought by him in his representative or official capacity. The assignee in bankruptcy clearly comes within the description of trustee of an express trust, and of a person expressly authorized by statute to sue, contained in the 317th section, and the provision is express that the costs shall in such case be chargeable only upon the fund, etc., unless personally charged on the trustee for mismanagement or bad faith. It protects the defendant by authorizing security for costs to be required. The fact that the trust fund is under the jurisdiction of another tribunal does not seem to me sufficient to overcome the express provisions of section 317. I am unable to find anything in the language of the section which can justify us in confining its operation to cases in which the trust fund is under the control of the court in which the trustee prosecutes his action. Furthermore, although section 321 is silent upon the subject, it does not seem reasonable that the assignee should be personally charged with costs accrued before the assignment. The original order was not made upon the ground of mismanagement or bad faith, and, unless the liability is absolute without that, it cannot be sustained.
The order should be reversed.
All concur, except GROVER and FOLGER, JJ., not voting.
Order of General Term and of Special Term reversed and motion denied, with costs. *Page 590
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