A nonsuit is within the equity of the 6th section of the act of limitations, and I think the case of an abatement by death is within that of the 99th section of the court law. But I differ from both the gentlemen with respect to the mode of obtaining costs from the estate of the plaintiff. A process in the nature of sci. fa. ought to issue to bring in the representatives, and the judgment should be entered against them before the execution issues.
Referred to the Court of Conference
NOTE. — Executors pay costs in this country because the party in whose favor judgment shall be given shall be entitled to costs. That must be from his adversary, whoever he be.
NOTE. — See S. c., 5 N.C. 113, where the Court of Conference held that a sci. fa. should issue to the representatives of the plaintiff before any execution should be issued against them for his costs on an abatement by his death.
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