Taylor v. How

By the Court,

Whether, an executor or administrator shall pay costs on a motion of this kind, depends upon the diligence used in the prosecution of the suit. (4 Cowen, 552.) The plaintiff offers as an excuse for not trying the cause at the last circuit, the absence of a material witness, but shews no diligence in procuring his attendance. The motion is granted, unless the plaintiff stipulates and pays costs.