Halifax,

April Term, 1801.

#### Muir's Representatives vs. Mallet and others.

TT ARRIS moved that the plaintiff should give security for the payment of costs, in the event of having a decree against him. And the plaintiff’s counsel opposed the motion, upon the ground that executors ought not to be compelled to take the risk of costs upon themselves and their own private property. Before the act of 1777', executors plaintiffs were not liable to costs, for the acts of Parliament giving costs, although they made no express exception of executors, were construed not to extend to them, because of the hardship of subjecting an executor who acted not for himself, nor upon his own knowledge, but solely for the benefit of others, to the payment of costs. And the act of 1777, only directs that the costa shall go with the cause, except where otherwise directed by statute. The meaning of which I take to be,' that where costs upon the construction of the statutes are not payable by an unsuccessful party, so neither shall they bq under that act. The act of 1787, requiring security for costs, does not mention executors; and if we construe that act by the same rules which are applied in the construction of the British statutes on the subject of costs, executors if not named and expressly subjected, will be exempted from the general words of that statute. They are not to give bail by 1777, when sued as defendants, because it would be unreasonable to subject them to pay out of their own estate, which they might be compelled to do if surrendered and imprisoned» *138it is equally unjust they should be subjected to costs out ci their own estate when suing in the right of the deceased. If there is a probable cause of action, the law requires them to sue under the penally of a devastavit s and if they do sue and are unsuccessful, it is now said they shall pay costs out of their own estate,

Hall, Judge

-The act of 1T87, requiring security for costs, is in general terms, and security must be given according to the motion.

Qucrc de hoc.