defense to be stricken out, upon the ground that inasmuch as the cause of action set out in the complaint did not accrue to the plaintiff until the 13th day of January, A. D. 1897, there could be no possession adverse to the plaintiff's title previous to said date, and consequently the statute of limitations could not run against the plaintiff. (2) That his honor, the circuit judge, erred in overruling the demurrer to the fourth alleged defense set up in the answer, and should have ordered said alleged defense to be stricken out, upon the ground that inasmuch as the cause of action set out in the complaint did not accrue to the plaintiff until the 13th day of January, A. D. 1897, there could be no possession adverse to the plaintiff's title previous to said date, and consequently no presumption of a deed or grant could arise against the plaintiff. (3) That his honor, the circuit judge, erred in overruling the fifth alleged defense set up in the answer, and should have ordered said alleged defense to be stricken out, upon the ground that, inasmuch as the cause of action set out in the complaint did not accrue to the plaintiff until the 13th day of January, A. D. 1897, there could be no possession adverse to the plaintiff's title previous to that date, and consequently that the terms of section 109 of the Code of Civil Procedure of this state cannot apply to the plaintiff's case. (4) That it is submitted that said section 109 of the Code of Civil Procedure can apply to such rights only as could be enforced within 40 years limited therein, and that, in so far as it assumes to cut off the rights of a litigant without affording to such litigant an opportunity to assert his or her right in court (if said section be so construed), it is submitted that said section is unconstitutional."

The object of a demurrer is to test the sufficiency in law of a pleading by admitting the truth of all allegations of fact in said pleading so far as said facts are well pleaded, whether it be a complaint, an answer, or a reply. When an answer is demurred to, reference must necessarily be had to the cause of action as set up in the complaint. In passing upon the first ground of appeal, it will be necessary to bear in mind that the cause of action as set out in the complaint is that under the will of Pinckney Hawkins, in July, 1849, there passed unto Melinda Hawkins, under the fourth clause of his will, an estate, being a one-half interest in 100 acres of land whereon the dwelling house of said Pinckney Hawkins was located, as a part of his Dozier tract of land, and, in the event she died without issue, then to go to the testator's children who should survive the said Melinda Hawkins; and that Melinda Hawkins died on the 13th of January, 1897, without issue; and that the plaintiff is and was the only child of Pinckney Hawkins alive when Melinda Hawkins died; and that defendant is in possession of said land. It will be noticed that the plaintiff nowhere in her

complaint ever asserts as a fact that Melinda Hawkins ever was in possession of said land from the year 1849 to the date of her death, in 1897. There is also an entire absence of allegation in the complaint as to the manner of defendant's possession. We have no right to assume the existence of any facts which are not pleaded, and which may be necessary to the construction of the pleading demurred to, or, on the other hand, to assume the existence of any such necessary facts in the complaint itself. In other words, when a demurrer is interposed, the gates are shut as against all other facts save those set out in the complaint and in the answer and in the reply demurred to. The appellant may reply to this view that the defendant has not demurred to the complaint because there is a failure in its allegations of fact in stating a cause of action. We answer that the view suggested is quite true, and that, when the defendant interposed her answer, she thereby admitted all the facts alleged in the complaint which she did not deny. The plaintiff and defendant were at issue by their pleadings, the complaint and answer. But the plaintiff was not content with this. She must needs interpose a demurrer to the defenses set out in defendant's answer. By so doing, she must, of necessity, have her complaint tested, as much so as if the defendant had demurred thereto. The rule in the construction of a demurrer to any pleading subsequent to the complaint is that thereby the demurrer will reach back to defects in "that part of the previous pleading which the pleading demurred to purports to answer, or with which it is connected." 6 Enc. Pl. & Prac. 330. The demurrer to that defense in the answer which sets up that the plaintiff cannot recover this land of the defendant because the defendant has been for 10 years prior to this action in the adverse, continuous, and peaceable possession of the lands in question must, therefore, be taken in connection with the facts on this point alleged in the complaint. It will be noticed that the plaintiff nowhere alleges in her complaint, nor does the defendant in her answer admit, that the possession adverse to the plaintiff for 10 years by the defendant did not exist. If such possession was adverse to the plaintiff, it would of necessity require the existence, on the part of the plaintiff, of the right to such possession during the 10 years; for we cannot see how the defense of adverse possession could be made to apply to a person who, during the whole time of 10 years, did not have the right of possession. We may not be able to anticipate what facts will be proved by the defendant to support this defense of 10 years' adverse possession. Still, nevertheless, she has seen proper, in plain, laconic words, to set up as a fact 10 years' adverse possession; and, having thus pleaded the fact of adverse possession for the statutory period, it is not demurrable. Very ingeniously the plaintiff suggests that adverse possession is not a conclusion of fact,

but rather a conclusion of law. We cannot so regard it. It is a fact, and in many of our cases it will be found as an allegation of fact in just such cases as the present. The same views will hold as to the presumptions arising from 20 and 40 years' possession by the plaintiff, as far as plaintiff's demurrer applies thereto; for it must be remembered we are discussing these alleged facts in the light of demurrers thereto. We have no opinion and express no opinion as to any matters of fact. We must overrule each of the demurrers. It is the judgment of this court that the order of the circuit court appealed from be affirmed, and that the action be remanded to the circuit court for trial.

(53 S C. 387)

DEVEREUX v. McCRADY et al. (Supreme Court of South Carolina. Oct. 20, 1898.)

LAW OF THE CASE-ACCOUNTING-PRocedure. 1. Till the order of a circuit judge directing the manner in which an account shall be taken shall be reversed by proper authority, it cannot be directly or indirectly changed by another circuit judge.

2. On an accounting between an ordinary creditor and debtor, sustaining no fiduciary relation to each other, the proper procedure is for the creditor to prove his claims, and for the debtor to then prove any payments, discounts, or counterclaims.

Appeal from common pleas circuit court of Charleston county; R. C. Watts, Judge.

Action by John H. Devereux against Edward McCrady and another, executors of William McBurney, deceased. From an order sustaining exceptions to the report of the master, defendants appeal. Reversed.

The order of the court below and defendants' exceptions are as follows:

Order: "This cause having come on to be heard upon the master's report herein, filed October 27, 1897, and the exceptions thereto, and counsel on both sides having been heard, and it appearing to the court that under the decision of the supreme court in this cause, made the judgment in this court, the plaintiff has been adjudged entitled to an accounting, and it further appearing that the supreme court has adjudged that such accounting should be had in the form and manner provided by law, and it further appearing that the form and manner of accounting in this case is as established in the case of Duncan v. Tobin, Cheves, Eq. 143, it is, upon consideration of all the same, ordered that the exceptions to the said report of the master be sustained, and that the case be referred back to the master, to proceed with the accounting in the form and manner prescribed by law as aforesaid, and moved for by the plaintiff's attorneys before him. January 22, 1898."

Exceptions: "(1) Because his honor, Judge Watts, erred in construing the last decision of the supreme court in this case, affirming the order of Judge Townsend (49 S. C. 423, 27 S. E. 467), in that he construed the said

decision to be 'that the form and manner of accounting in this case' as provided by law 'is as established in the case of Duncan v. Tobin, Cheves, Eq. 143.' (2) Because his honor, Judge Watts, erred in deciding that the form and manner of accounting in this case is as established in the case of Duncan v. Tobin, Cheves, Eq. 143,' and that the said case of Duncan v. Tobin establishes the form and manner of accounting in cases such as this. (3) Because his honor, Judge Watts, erred in not holding that the form and manner of accounting in this case was res judicata, the same having been previously passed upon and decided by Judge Townsend in his said order, which was affirmed by the supreme court, and also because his honor, Judge Watts, was without authority or jurisdiction to review or modify the said order of his fellow circuit judge, the Honorable D. A. Townsend. (4) Because his honor, Judge Watts, erred in ordering 'that the exceptions to the said report of the master be sustained, and that the case be referred back to the master. to proceed with the accounting in the form and manner prescribed by law as aforesaid. and moved for by the plaintiff's attorneys before him.'"

T: W. Bacot and Louis De B. McCrady, for appellants. Mitchell & Smith, for respond.

ent.

McIVER, C. J. This is the third appeal in this case; the two former appeals being reported in 46 S. C. 133, 24 S. E. 77, and 49 S. C. 423, 27 S. E. 467, to which reference must be had for a full statement of the case, and the proceedings therein up to the matters out of which the present appeal arose. It is sufficient to say now that after the judgment of this court had been rendered, adjudging that this was a proper case for accounting, Master Sass, to whom the case was originally referred "to take the testimony and report upon all matters of law and fact involved in the pleadings, with leave to report any special matter," made a report, bearing date the 4th of September, 1896, in which, among other things, he stated that at a reference held on the 3d of September, 1896, defendants' counsel announced that they would offer no evidence upon the preliminary question, whether the plaintiff was entitled to an accounting in equity, but would "reserve any and all evidence they may have, as well as any and all questions, until an accounting is duly ordered and entered upon." Thereupon counsel for plaintiff moved "that the master declare the testimony under the order of reference to him closed, and make his report to the court that the plaintiff is entitled to an accounting." The report then proceeds as follows: "I accordingly respectfully report that, under the testimony offered by the plaintiff in this case, he has established his right to the account ing prayed for, and the case is therefore respectfully reported to the court for its fur

ther order in the premises." To this report no exceptions were filed, and the report came before his honor, Judge Townsend, for his order in the premises. Thereupon the counsel for plaintiff proposed an order as follows: “(1) That an accounting be had between the plaintiff and defendants, and that it be referred to Master G. H. Sass to take the accounting, and to state the account between the parties, and to report the same to this court, together with the testimony and his conclusions on all issues on said accounting. (2) That for the purpose of said mutual accounting the plaintiff and defendants are hereby ordered and adjudged to severally bring in and file with said master their several respective reciprocal accounts, in the form of debit and credit accounts, to the date of the death of the said Wm. McBurney, deceased; and on the hearing before said master the affirmative of all entries propounded by either party, and not admitted by the other, shall rest upon the party propounding such entry." Judge Townsend declined to grant the order proposed by plaintiff's counsel, and instead thereof granted an order in which, after certain recitals not necessary to be repeated here, he ordered "that the said report of Master Sass be, and the same is hereby, confirmed; and, further, that it be referred to the same master, in order that an accounting may be had between the estate of the said William McBurney, deceased, and the plaintiff, of all amounts which can and shall be legally proved before said master, to be by each party respectively due and owing to the other, in accordance with the views announced by the said supreme court in its said decision, and that he, the said master, do take such account, and report the same to this court as speedily as possible; the effect of the statute of limitations pleaded by the defendants, and the interposing of the same by them, as they may be advised, to any such amounts, as well as the trial of all the issues that properly arise in the case, being hereby reserved for the court after the master shall have reported as above directed, and upon the coming in of his report." From this order plaintiff appealed upon the several grounds which are fully set out in the report of the case in 49 S. C., at pages 424, 425, 27 S. E. 467, 469, one of which was that judge erred in refusing the order proposed by plaintiff. The defendants also gave notice that they would move to sustain the order on the additional ground that it was not appealable. The court held that the order was not appealable, and rendered judgment in these words: "The appeal is therefore dismissed, and the said order affirmed." This cannot fairly be regarded as an adjudication of the questions raised by the exceptions, as it appears from the language immediately preceding that just quoted as the judgment of the court that the court was not to be regarded as having adjudicated any of the questions raised by the exceptions, but merely intend

ed to announce the legal conclusion that the order must stand affirmed, just as though there had been no attempt to appeal from it. The language referred to is as follows: "Having reached the conclusion that the order is not appealable, no other question raised by the exceptions can be considered by this court." While this is so, yet we must say that some of the observations made by Mr. Justice Gary in the course of his opinion are quite instructive on the point of the alleged inconsistency in the order, indicating very clearly that there was no such inconsistency as that alleged in the exceptions. After the dismissal of the appeal from Judge Townsend's order just spoken of, the case went back to the master, when, at the request of counsel, he made still another report, bearing date the 27th of October, 1897, in which, after reciting the terms of Judge Townsend's order, he says: "Upon the reference before the master under said order, the plaintiff moved that the account be taken by requiring each party to file their accounts, in the form of debit and credit, accompanied by an affidavit containing a verification of the accuracy of the schedules in which are contained the details of the account, according to the rule laid down in the case of Duncan v. Tobin, Cheves, Eq. 146. After argument heard, the master refused to make this ruling, and directed the parties to proceed in the following manner, namely: That the plaintiff be required first to legally prove before the master any and all claims and demands which he may have against the estate of Wm. McBurney, and any and all amounts which may be due and owing by the estate of Wm. McBurney to him, and then that the defendants be required to legally prove before the master any and all claims and demands which their testator's estate may have against the plaintiff, and any and all amounts which may be due and owing to the said estate by the plaintiff." The remainder of this report need not be set out, as the exceptions to it filed by plaintiff practically impute error to the master in ruling as above stated, and in not ruling that the account should be taken in the manner proposed by plaintiff. This report, with plaintiff's exceptions thereto, came on for hearing before his honor, Judge Watts. who rendered judgment sustaining the exceptions, and referring the case back to the master, with instructions to take the account in the manner therein directed. From this judgment defendants appeal, upon the several exceptions set out in the record, which excep tions, together with the judgment appealed from, will be incorporated by the reporter in his report of the case.

In pursuance of previous notice to that effect, the plaintiff moved, on the call of the case, to dismiss the appeal "on the ground that the order appealed from is not appealable"; and that motion must first be disposed of. The defendants contend that this motion cannot prevail, for two reasons: (1)

Because plaintiff has waived his right to make such motion upon the ground that the matter appealed from is not appealable, by consenting to the case as prepared for the hearing of the supreme court, in which there is no mention of, or allusion made to, the fact that plaintiff intended to make this motion on the ground stated; (2) because the matter appealed from is appealable. It appears that this was an "agreed case," and at the end of the case we find the following agreement, signed by the counsel on both sides: "We hereby agree upon the foregoing statement of the case, as prepared by us for the hearing of the supreme court, and that a copy thereof, as and for the return, may be filed with the clerk of the supreme court on or before the 18th day of April, 1898." The case thus agreed upon on the 28th of March, 1898, contains no hint that at the hearing before the supreme court any other matter would be insisted upon before the court, except what appears in the case. But on the 19th of May, 1898, months after the case was agreed upon, and just a month and one day after the case as prepared for argument here was to be filed, and doubtless was filed, notice of this motion was given. While it is at least questionable whether this motion could be sustained, after the parties had agreed upon a case in which the supreme court was called upon to pass upon the questions therein presented, and not upon the question presented by this motion, based, as it is, upon the single ground that the matter appealed from is not appealable, and we are inclined to think that the proper practice would be to incorporate in the case agreed upon a notice that this court would be asked to sustain the order appealed from upon the ground that the order was not appealable, as was done on a former appeal in this case, yet we are not disposed to rest our conclusion upon this ground, inasmuch as we think the matter appealed from is appealable for reasons which will be apparent from what we shall say in disposing of the questions presented by the appeal; and therefore we prefer to base our conclusion to refuse the motion to dismiss the appeal upon the second ground taken by appellants.

Coming then to the merits of the case, it seems to us that the order of Judge Townsend must be regarded as the law of this case,-not, however, because it was adjudged by this court to be correct, but because it must be regarded as an order from which there was no appeal, inasmuch as the attempt to appeal therefrom was abortive. If so, then the master was clearly right in foltowing the directions of that order as to the method of taking the account, and in refusing to adopt the method proposed by counsel for plaintiff, which was practically the same as that proposed in the order which Judge Townsend had refused to grant. When, therefore, Judge Watts sustained the exceptions to these rulings of the master,

and directed the account to be taken as sug gested in the case of Duncan v. Tobin, Cheves, Eq. 146, he practically reversed the order of his predecessor, who had refused the order to that effect when asked for by plaintiff's counsel. That this was error, see Warren v. Simon, 16 S. C. 364, where it is said, "Nothing is better settled than that one circuit judge has no power to review and reverse the action of another circuit judge.” It seems to us clear that the plaintiff, by the order appealed from, has obtained praetically the same result which he sought to obtain by the order which he asked from Judge Townsend, and which that judge refused to grant. His action, whether right or wrong, must stand as the law of this case, until reversed by proper authority; and it certainly cannot be pretended that this has ever been done. But we are not prepared to say that there was any error in the action of Judge Townsend. While the rule suggested in the case of Duncan v. Tobin, supra, may be a very proper one when applied to a case like that in which the rule was suggested, it does not by any means follow that such rule is applicable to every case in which an accounting may be ordered by a court of equity. That was a case involving an accounting by an executor,-one who sustains a fiduciary relation to the parties entitled to demand an accounting, and who is required by law not only to keep an accurate account of his receipts and disbursements, but to file the same at stated periods in a public office appointed for that purpose. The obligation of his office requires him to show, whenever called upon by proper authority, what he has done with the assets of the estate committed to his charge; and, if he fails to show that he has made a proper disposition of the whole or any part of such assets, he becomes personally liable to make good the same to the parties entitled thereto. But where an accounting is ordered between parties sustaining no such fiduciary relation to each other, but occupying the positions merely of creditor and debtor, it seems to us that the rul as to the mode of taking the account is, anl ought to be, very different from that suggested in the case above stated, where an executor is called upon to account for the administration of the estate committed to his charge. When a creditor seeks to enforce by suit his claims against his debtor, the ordinary rule is for the creditor to state and prove his claims, and then the debtor is called upon to prove any payments, discounts, or counterclaims upon which he may rely; and we see no reason why the same rule should not apply in a case like the one under consideration, where an accounting has been ordered between persons sustaining another relation to each other than that of creditor and debtor. In such a case the debtor is under no obligation to show what he owes to the creditor, for that is the duty of the creditor; nor, on the other hand, is the creditor

under any obligation to show what he owes to the debtor, for that is the duty of the debtor. This was the view, as we understand it, taken by the master; and we sustain his ruling as stated by him in his report of the 27th of October, 1897. From this it follows that the circuit judge erred in sustaining the exceptions to the master's report of that date. The judgment of this court is that the judgment or order appealed from be reversed, and that the case be remanded to the circuit court, with instructions to send the case back to the master, in order that he may proceed to take the account in accordance with his ruling as stated in his report of the 27th of October, 1897.

(53 S. C. 382)

DASH v. INABNIET.

(Supreme Court of South Carolina. Oct. 20, 1898.)

PARENT AND CHILD-CONTRACT FOR SERVICESEVIDENCE.

There is evidence to go to the jury on the question of contract of deceased to pay for services of his daughter as housekeeper, witnesses having testified that he told them that he had promised to pay her for waiting on him, and that he had promised to have papers in his desk so she would be sure of it, and was going to attend to it when he got better, and her husband having testified that when he objected to the way she was working for him he said she should be paid, and that on buying a piece of land he said he was going to give it to her, and that afterwards, when obliged to sell it on account of a mortgage, he said she would be paid.

Appeal from common pleas circuit court of Orangeburg county; R. C. Watts, Judge.

Action by Laura V. Dash against John H. Inabniet, administrator of John Inabniet, deceased. From a judgment of nonsuit, plaintiff appeals. Reversed.

Glaze & Herbert, for appellant. Raysor & Summers, for respondent.

McIVER, C. J. This was an action brought by the plaintiff to recover the value of her services rendered the intestate during his lifetime. The testimony tended to show that the plaintiff was the daughter of the intestate, and upon her marriage, some 20-odd years ago, she, with her husband, at the urgent request of her father, continued to live with him up to the time of his death, which occurred on the 3d of December, 1894; that plaintiff cooked, ironed, scoured, sewed, and did all the housework and washing, and also cooked for the hands which her father sometimes hired to work on his farm; that her husband worked on the farm, furnishing one horse, and her father two or three horses; that her husband, at first, worked for wages, and afterwards for one-fifth of the crop; that she, her husband, and her four children and her father ate at a common table, the provisions being furnished partly by her father

and partly by her and her husband; that for five or six years before his death her father was afflicted, requiring to be waited on, and this was done by plaintiff and her children. When the plaintiff was asked as to whether there was any understanding or agreement with her father as to the compensation she was to receive for her services, her testimony as to this point was objected to as incompetent, under section 400 of the Code, and the objection was sustained. This was substantially the testimony of the plaintiff herself. The witness Whittaker testified that, in a conversation with intestate during his last illness, he told witness, among other things, speaking of the plaintiff and her husband, George: "If it had not been for them staying with him, and taking care of him, he did not know what would have become of him.

Said he had promised to pay Laura for waiting on him, and had also promised to leave papers in his desk so she would be sure to get it; but he didn't say how much. He also said that they expected that the papers were fixed up already, but they were not. He said when he got better he would attend to it. * * He said he couldn't do without George and Laura, and that George had threatened to leave him a time or two, but that he couldn't do without them." The witness George Dash, the husband of plaintiff, when asked what the intestate told him in regard to paying for the services of his wife, testified as follows: "He told me time and again, when he was making arrangements for the year, he would tell me what he would give me, and I would tell him that the way Laura was working for him did not suit me; and he said, 'You need not be afraid, she will be paid.' He said he wanted us to stay with him. He said he did not know what he would do without us." And, when this witness was asked whether intestate had made any offer to pay Mrs Dash, be said that "at one time he bought a piece of land that he said he was going to give her." He further testified that the intestate, being unable to refund the money which he had borrowed to pay for this land, being pushed for it by the lender, had to sell the land; and "he told me when he was about to sell it that he had to sell it, but he would fix things so she would be paid." There was other testimony on the part of the plaintiff, but, as it seems to be merely cumulative, we have not deemed it necessary to set it out. At the close of the testimony on the part of the plaintiff a motion for nonsuit was made, which was granted by his honor, Judge Watts, upon the ground that there was no testimony to show any contract between the parties, and judgment was entered accordingly. From this judgment plaintiff appeals upon the several grounds set out in the record, which need not be repeated in detail here, as the only question presented for our decision is whether there was any testimony tending to show that there was a contract