
    Thornton, Executor of Champ v. Jett.
    October Term, 1792.
    Pleading and Practice — Effect When Plaintiff Submits to a Nonsuit. — if the Court direct the plaintiff to he nonsuited, and he submit to it, (which he is not bound to do.) he deserts his cause, and cannot by an exception, avail himself of any legal obj ection to the opinion of the Court.
    Same-Assumpsit to Executor — Costs.-If the declaration lay the assumpsit to the executor, instead of the testator, and the iudgment be against him, he must pay costs.
    This was an action brought by the appellants in the District Court of Northum-berland, laying an assumpsit to themselves. At the trial, the court, thinking the action not sustainable upon the evidence given, directed a nonsuit, to which the plaintiff submitted, but filed a bill of exceptions to the opinion, and obtained a supersedeas to bring up the record before this court.
    
      
      The principal case is cited in Carr v. Anderson, 2 Hen. & M. 369. See also, monographic «.oís on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   The PRESIDENT.

Whether the action was sustainable or not, it is unnecessary for the court now to decide — the plaintiff having submitted to the nonsuit, which he was not bound to do, he 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 su-persedeas must be quashed.

*As to the costs, the court (except the President) were of opinion, that the assumpsit being laid to the plaintiffs themselves, they ought to pay the costs.

The PRESIDENT said, that ihe reason why executors pay no costs, is, that the3r 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. _  