
    Taylor ads. How, administratrix.
    An executoror administrator ts liable to costs on amotion for judgment as in case of non-suit, unless diligence is shewn in the Stion of
    Motion for judgment as in case of nonsuit. The plaintiff as]jed to be excused from the payment of costs, on account of . her representative character,
    
      Sibley, for defendant, v
    
      J- Foote, for plaintiff.
   By the Court,

Savage, C. J.

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.  