Whether the action was sustainable or not, it is unnecessary for the Court now to decide.—-The plaintiff having submitted to the non-suit, which he was not bound to do, has deserted his cause, and therefore, he cannot now avail himself of an objection to the opinion of the Court, in awarding it. The writ of supersedeas must be quashed.

As to the costs, the Court (except the President) were of opinion, that the assumpsit being laid to the plaintiff himself, he ought to pay the costs.

The President said, that the reason why executors pay no costs, is, that they are in pursuit of their duty; and therefore he could see no reason, why this case should be distinguished from others, where the •action is brought upon an assumpsit to the testator. (1)