
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1802.
    Executors of Vanderhorst v. Whitner.
    An executor is not liable for costs, on nonsuit in an action of trespass to try title, brought by him for the recovery of lands claimed by him in right of his testator, [vide 2 Bay, 399, S. C.]
    Trespass to try titles to land in Pendleton district, brought after a former action, by the same plaintiffs, against the same defendant, for the same land, in which the plaintiffs had been nonsuited. Defendant ruled the plaintiffs to shew cause why further proceedings in the action should not be stayed, until the costs of the former action and nonsuit were paid. Plaintiffs shewed cause, and it was ordered by She district court, Johnson, J. pre. siding, that the rule should be discharged, upon the ground, that an executor is not liable to pay costs iu case of nonsuit. Upoij exception taken to this decision, and submitted to this court, it was argued by Nott, in support of the motion, that the general rula which exempts executors from payment of costs, is liable to se. veral exceptions; as where the costs have been incurred by the fault of an executor, in not producing letters testamentary ; or where the action might be maintained in the proper right of such executor. 6 T. R. 654. Cro. Car. 219. 2 Ld. Raym. 1308, 5 T. R. 234 ; or for neglecting to state what the rules of pleading require. See 9 Vin. Abr. 283 — 4. It is a settled rule, where a second action of ejectment is brought after a nonsuit, of course, to order the costs of nonsuit to be paid before the plaintiff shall be allowed to go on to trial in the second action. 2 T. R. 511.
   Sed per totam curiam,.

It is a matter in general within the dip. cretion of the district court, to order or refuse motions of this sort; and unless this discretion is abused, qr exercised contrary to the rules and principles of law, or the well settled practice of the courts, this court will not regulate or control this discretion. But independently of this reason, this court is fully satisfied that the de. cisión was legally correct, and that to have granted the motion would have been contrary to the authority of adjudged cases. 4 Bur. 1928. Cro. Jac. 229. Cro. Eliz. 69. 11 Vin. Abr. 280. 3 Salk. 105.  