#### Simmons vs. Radcliff.

^PHE plaintiff had sued the defendant in an action of trespass, Square clausum fregit, and died during the pendency of the action.' Aa abatement was entered, and execution issued against his representatives for costs.

Harris now moved to set aside the execution for costs : and a day being appointed to hear him in support of the motion, he argued that no costs were paid upon an abatement by the law as it stands in England j nor is there any provision for payment of posts in such case by our law, which only directs costs to be paid by the plaintiff on a non-suit, dismission or discontinuance, or judgment against him. And without the express directions of an act for that purpose, a judgment cannot be entered against the estate of a dead man, as a judgment to pay costs must be if en-. tered upon an abatement by his death.

Counselfor the defendant

The constant practice ever since the passing of our act of f 777, ch. 2, sec. 99, hath been to issue executions as this has issued ; and the practice in such cases is a good expositor of the act. An abatement by death, though not mentioned in the act, is within its equity. A discontinuance or non-suit may not be by the voluntary act of the plaintiff. A want pf preparation for the trial by non-attendance of witnesses or other accidents or irregularity in conducting the pleadings, may occasion them : and yet the plaintiff pays costs, because he has been active in causing expense whilst the defendant was passive; and the plaintiff has not demonstrated the justice of his procedure by the event, and not till then can he shew the justice of compelling the defendant to pay them. So in all other cases where he has caused the accrual of costs, and has not proved the defendant ought to pay them, he must himself be responsible, as much as in cases specified in the act.

Taylor, Judge.

A nonsuit is within the equity of the sixth section of the act of limitations, and I think the case of an abatement by death is within that of the 99.th section of the court íaw. But I differ from both the gentlemen with respect to the mode of obtaining costs from the estate of the plaintiff. A process in the nature of a see. fa. ought to issue to bring in the representatives, and the judgment should be entered against them before the execution issues.

Referred to the Court of Conference.

Note. Executors pay costs in this country, because the party in whose favor judgment shall be given, shall be entitled to costs. That must be from his adversary, whoever he be.