burrow haw executrix versus sander executor must pay the cost of a nonpross  see burr a instance implicit put to the contrary the question be whether a  executor shall pay cost upon a judgement of nonpros it come before the court  in such a form as may occasion some puzzle if not particular attend to in  respect of the place of plaintiff and defendant be reverse for as I take it  the executrix be plaintiff in the first action and defendant in the second the  state of the fact be as far as I can collect they as follow the executrix  bring the original action and be nonprossed for waist of declare within time  the attorney for the original defendant come to the master to sign the  judgement for nonpros as in a common ordinary case although the plaintiff have  bring the action with a ac etian as executrix and the clerk f the judgement as  a matter of course without be apprise of the plaintiff be a executrix or sue  as such tax cost against her upon this judgement of nonpros with cost the  original defendant bring a action against the original plaintiff and so become  himself plaintiff in this second action whereupon Mr stow on behalf of the  executrix move for a rule to be make upon the plaintiff in this second action  for he to show cause why further proceed in this second action shall not be  stay with cost and in the mean time further proceed therein be stay on  Wednesday the that of July last Mr don on behalf of sander the a queen p win  burrow er p defendant in the first action but now become plaintiff in the  second show cause and insist that a executor be nonprossed be liable to pay  cost this be entire the executor own fault and a executor be only entitle to  this privilege in case where the fault be not his own for this reason he shall  pay cost for not go on to trial accord to his notice give he cite Mr cook book  of practice in c b and burrow barn note in c b part p Ogle executor v Moffat  that a plaintiff make wilful default shall pay cost for not go on to trial  though he sue as executor so in the case king of leaves v Mocato salk it be  hold that a executor shall pay cost for not go on to trial accord to his  notice though he shall not pay cost of a nonsuit his proper method will have  be to have discontinue his action in which case he will not have be liable to  pay cost Mr stow contra will have have it understand that not go on to trial  accord to his notice be the single instance in which a executor shall pay cost  a and he cite Baynham v matthews strange where a administrator have leave to  discontinue without cost Mr justice Yates observe that the case of a nonpros  and that of a discontinuance differ the former arise from the executor own  delay and therefore he think and so also do Lord Mansfield that it be similar  to the case of his not go on to trial accord to his notice however the rule be  enlarge on Saturday that November Mr stow on behalf of the executrix now say  there be no necessity to sign a judgement of nonpros because there be no  declaration the defendant may have get himself discharge for want of  prosecution within two term Lord MansfieldThe privilege of executor be too  great already they ought to be proper inform before they bring action the  distinction make between a discontinuance and a nonpros be a very good one it  be very reasonable that the executrix shall pay cost in the present case rule  discharge burrow so that the determination of the court be that a executor  shall pay cost of a nonpros but a executor do not pay cost upon a nonsuit v  cro James Haywarth v David note the two late prothonotaries of c b sir George  cook and Mr Borret hold and act different upon the present question I e upon a  nonpros this court now put it upon the foot of the laches in the executor this  be a nonpros for want of declare in due time so a executor shall pay cost if  he do not go to trial after have give notice of trial