Thornton v. Jett

Decided October 15, 1792

Court of Appeals of Virginia · decided 1792-10-15

This was an action brought by the appellant in the District Court of Vorthumberland, laving an assumpsit to himself. At the trial, the Court, thinking the action not sustainable upon the evidence given, directed a non-suit, to which the plaintiff submitted, but filed a bill of exceptions to the opinion, and obtained a su - persedeas to bring up the record before this Court

Decided 1792-10-15

The President.

¶1Whether 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.

¶2As 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.

¶3The 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)

¶4Carr's Ex. v. Anderson, 8 Hen. & Mnnf. 369.