St. John v. Denison , 9 How. Pr. 343 ( 1854 )

Bacon, Justice.

A receiver under such circumstances is the officer of the court and comes within the same protection, and is in my judgment entitled to the same indulgence, as an executor or administrator prosecuting on behalf of an estate. Such parties prosecuting in good faith are exempt from costs for not proceeding to trial where a good reason is shown for not trying pursuant to notice or stipulation. (Purdy agt. Purdy, 5 Cow. 14.) And in Reeder agt. Seely (4 Cow. 548) it is decided that * one who sues, era autre droit, in good faith, though without proper ground, may discontinue without costs. That was the case of an assignee of an insolvent debtor. See also Phenix agt. Hill, (3 Johns. 249.) The doctrine of these cases is decisive against the application of the defendant in this suit, for costs against the plaintiff for not proceeding to trial; but as the point has not been expressly adjudicated in the case of a receiver, and as there was a prima fade ground for the application, the motion is denied without costs.