A&ninistva801' tors, plaintiffs,. on ajuagment, as in case of proceeding to trial, must pay costs.
JUDGMENT as in case of nonsuit, having been obtained agajnst the plaintiff, for not proceeding to the trial of this ° * ' x ° cause, at the West Chester circuit, pursuant to notice, the defendant had the costs taxed.
Silliman, for the plaintiff, now moved to set aside the taxation, on the ground, that the plaintiff, being an executor, was not liable for the costs. He cited 23 Hen. VIII. ch. 15. s. 1. 4 Jac. I. c. 3. 14 Geo. II. c. 22. Toilers L. of Exec. 439. 441. TiddPs Pr. 628. Barnes, 119. 1 Johns. Cases, 102. 2 Johns. Cases, 209. 8 Johns. Rep. 379. 3 Johns. Rep. 249. 1 JV. R. L. 344. 521.
J. Smith, contra.
An executor or administrator, on a judgment of nonpros, must pay costs; (4 Johns. Rep. 190.;) and we have put a judgment as in case of nonsuit against executors, for not proceeding to trial, on the same footing. Executors or administrators must pay costs in the one case, ' as well as in the other. The affidavits offered, to show the excuse of the plaintiff, for not proceeding to trial, cannot be received on this motion.
Motion denied, with costs.
16 Johns. 148
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