Daniels v. Moses

Citations

• 12 S.C. 130
• 1879 S.C. LEXIS 46

Syllabus

<p>1. Whether the costs of a former action should be paid before a second action is allowed to proceed, must to a large extent depend upon the discretion of the Circuit judge, and would not ordinarily be the subject of appeal.</p> <p>2. A second action (especially if it is for the recovery of a debt) should not be stayed until the costs of the first action are paid, where the first action was not tried upon its merits, unless the court is satisfied that the second action is vexatious.</p> <p>3. A motion to stay until the costs of a former action have been paid comes too late after the second action has been called for trial.</p> <p>4. The objection that plaintiff has not legal capacity to sue, or that there is a defect of parties, when appearing upon the face of the complaint, is waived, unless taken by demurrer.</p> <p>5. The clerk of the Circuit Court is the proper party to bring an action on a bond payable to a former commissioner in equity of the same county, and without joining with him the parties for whose benefit the action is prosecuted.</p> <p>6. Where, in an action for foreclosure, a surety on the bond, secured by the mortgage, is made a party defendant, and dies pendente lite, the action may. proceed without making his representative a party.</p> <p>7. A proceeding for the enforcement of a lien upon land in the possession of A, which demands no personal judgment against him, is not affected by a subsequent adjudication of bankruptcy against him.</p> <p>8. The acknowledgment of the receipt of the purchase money contained in a deed of conveyance is not conclusive proof that it has been paid.</p> <p>9. Lands lying in several districts were partitioned under one proceeding instituted in 1854 in one of those districts, separate writs of partition being issued for each district. Held,, to be the proper practice.</p> <p>10. The lien of the act of 1791 attached to intestate lands sold for partition, even if by the same proceedings other lands held under a deed o