Volume 51 — South Carolina Reports

Before Buchanan, J., Barnwell, February, 1896. Action by R. M. Hughes and other judgment creditors against Edisto Cypress Shingle Company, Bailey-Eebby Company, Perkins Manufacturing Company, and the directors of the company; also an action by the directors of said company against the company and its officers and D. M. Webb.

Before Buchanan, J., Edgefield, February, 1897. Action by Wiley H. Turner and Kate M. Grice against Interstate Building and Foan Association, of Columbus, Ga.

<p>Before Witherspoon, J., York, April, 1896.</p> <p>Action by Tillman R. Gaines against J. S. Drakeford. The opinion states the facts. Judgment for plaintiff. Defendant appeals.</p> <p>cites: 19 S. C., 126; 32 S. C., 595; 46 S. C., 196. ■</p> <p>cite: 19 S. C., 134; 17 Wal., 59; 32 S. C., 595.</p>

<p>Before Buchanan, J., Fairfield, March, 1897.</p> <p>Action by William T. Martin against Henry Jenkins and Rufus Robinson. The opinion states the facts. Judgment for plaintiff. Defendants appeal.</p> <p>cites: As to rights of Jenkins: 20 S. C., 20, 520; 26 S. C., 112, 336; 32 S. C., 368; 114 Mass., Ill; 97 Mass., 37; 49 Me., 34. As to rights of Robinson: 116 Mass., 388; 17 N. H., 312; 18 N. H., 300; 36 N. W. R., 513; 15 S. C., 88; 49 Me., 34; 39 Me., 448; 104 Mass., 249; 98 Id., 305; 48 S. C., 405; 26 S. C., 112, 331; 32 S. C., 365; 24 S. C., 18.</p> <p>cite: 27 B. R. A., 558; 2 S. R., 292; Rev. Stat., 2464; 13 Wis., 172; 49 Me., 34; 107 Mass., 123.</p>

Before WATTS, J., York, November, 1896. Petition by Detitia A. Bratton, in probate court, to have dower assigned to her out of lands now in possession of R. Walker Burris. Judgment for petitioner. • Defendant appeals. Judgment for petitioner by Circuit Court. Defendant appeals. cite: 1 Strob., 404; 28 S. C., 200; 9 Rich. Eq., 36; 38 S. C., 420; 24 S. C., 401, 594; 19 S. C., 508; 43 S. C., 178. cites: Rev. Stat., 1901; 9 Rich.

Petition by Peter Higgins, in the original jurisdiction of this Court, for writ of habeas corpus. Writ granted, and petitioner discharged by order of this Court, April 29,1897.

Before Watts, J., Marion, April, 1896. Action by Caroline Weatherly against T. C. Covington and Robert Webster, constable, for possession of certain personal property held by the. constable. Defendants demurred upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and submitted three specifications, all of which were overruled by Circuit Judge in a short order. Defendants appeal.

Before Watts, J., York, November, 1896. Action by City Council of Greenville against G. C. Or-mand, surviving partner of Ormand & Goforth, Thos. F. Dunlap, administrator of R. J. Dunlap, D. R. Williams, and D. K. Armstrong, on two negotiable notes.

Before Townsend, J., Charleston, November, 1896. Action by Willis Wilson against The Charleston and Savannah Railway, on the following complaint: I. That the defendant was at the times hereinafter mentioned and is a corporation duly created and existing under the laws of the State afaresaid. II.

Before WATTS, J., Baurens, February, 1897. Proceeding on part of W. B. Putnam, defendant, to have homestead set aside to him as against judgment of Gray, Sullivan & Gray, to whose execution the sheriff had applied the proceeds of a judgment in favor of Putnam against one Lanford. From return of appraisers defendant appealed to Circuit Court. The Judge set aside the return and ordered a reappraisement.

<p>Before Buchanan, J., Richland, November, 1896.</p> <p>Action by T. M. Crosswell against The Connecticut Indemnity Association. Judgment for plaintiff. Defendant appeals.</p> <p>cite: On Deimirrer: 26 N. Y., 422. On Nonsuit: 23 N. Y., 527; 104 U. S., 775. What is insurable interest? 104 U. S., 778; 12 Mass., 112; 6 Gray, 399; 15 Id., 249; 101 Mass., 564. Relation of parent and child does not of itself give instirable interest: 45 Me., 104; 47 Mo., 424; 50 Id., 48; 43 N. Y., 823; 46 Id., 674; 41 Ga., 338; 52 Mo., 213; 39 Conn., 104; 23 Id., 244; 94 U. S., 40; 80 Ill., 35; 81 Pa. St., 154. Plaintiff must have pecuniary interest in life insured: 82 U. Si, 643; 41 IncL, 116; 53 Id., 380; 76 Ala., 183; 101 Mass., 564; 81 Ala., 329; 81 Ky., 368; 36 Kan., 146; 68 Texas, 361; 112 Pa. St., 257.</p> <p>cites: Policy not a wager: 25 K. A. R., 627; 108 Pa., 656; 94 U. S., 457; 6 Gray, 399; 94 U. S., 567; 104 U. S., 775.</p>

Before Gary, J., York, July, 1896. Action by the City Council of Greenville against G. C. Ormand, surviving partner of Ormand & Goforth, Thos. F. Dunlap, administrator of R. J. Dunlap, J. R. Williams, D. K. Armstrong, and John Nichols, to recover an amount advanced to Ormand, survivor, under contract for completion of sewerage system in city of Greenville. Judgment for plaintiff.

Before Gary,J., Spartanburg, November, 1896. Action by the State ex relatione the City Council of Spar-tanburg against The Spartanburg, Clifton and Glendale Railroad Company and The .¿Etna Eight and Power Company, for the purpose of annulling the charter of the former.

Before BENET, J., Spartanburg, July, 1895. Action by W. A. and B. F. Hill, as administrators of J. B. Hill, v. W. C. Hill, on promissory note. Judgment for plaintiffs. Defendant appeals. cite: Two causes of action, the note and the new promise, are inconsistent: 33 S. C., 509; 35 S. C., 613. Additionalgroitnds for sustaining a ruling will not be considered in a law case: 23 S. C., 105; 33 S. C., 509. Note barred according to allegations of complaint: 42 S. C., 114.

<p>1. Damages.- — -The measure of damages for refusal to permit performance of an executory contract is the difference between the contract price and what it would have cost to perform the contract.</p> <p>2. Charge. — A request to charge specific words may be properly charged by the use of more general terms.</p> <p>3. Evidence — Damages.—Where the issue is how much a certain piece of work should have reasonably cost, testimony as to its actual cost is irrelevant. Divided Court.</p>

<p>Before Buchanan, J., Fairfield, February, 1897.</p> <p>Action by Samuel Martin against Southern Railway Company. Judgment for plaintiff. Defendant appeals.</p> <p>cites: As to exception Ir 161 Mass., 298; 31 Ill. App., 460; 139 Mass., 238; 7 Pa. St, 119; 77 Tex., 228; 56 Fed. R., 1014. Exception 8.-23 S. C., 531. Exception 4: 19 S. C., 205; 21 S. C., 495; 23 S. C., 531; 32 S. C., 299; 15 Wall., 407.</p> <p>cite: As to exception 1: 39 S. C., 163; 40 Ind., 37; 14 R. R. A., 798; 14 How., 468; 5 Rich., 44; 9 Ill. App., 250; 98 Ala., 293; 1 Sneed, 38, 220; 35 W. Va., 588; 14 L. R. A., 798; 15 0reg., 220; 19 Ohio St., 110; 120 Ind., 159; 58 Am. & Eng. R. R. Cases, 245; 154 Pa. St., 364; 68 N. Y., 124. Exception 8: 24 R. R. A., 521; 58 N. Y., 126; 16 How., 469; 3 Brod. & Bing., 54. Exception 4- 42 S. C., 473.</p>

<p>Motion in this Court by the appellant, in the case of F. and R. M. Martin, as administrators of Othello Martin, respondents, against James Fowler, appellant.</p>

Petition for writ of habeas corpus in State, respondent, against W. D. Farris, appellant, and motion by appellant to suspend appeal for purpose of permitting him to make a motion for new trial on after-discovered evidence.

Before Watts, J., Florence, September, 1895. Action by S. C. Schroeder against The Springfield Fire and Marine Insurance Company. Motion of nonsuit granted.

<p>Motion in this Court to reinstate appeal dismissed by clerk, in case of Elizabeth P. Easterby, appellant, against W. J. McIntosh, respondent.</p>

Before Watts, J., Fairfield, September, 1896. Action by Robert Jennings, as clerk of court for Fairfield County, against Henry R. Parr. The following is the Circuit decree, omitting the statement of facts, which are fully stated in opinion of Mr. Justice Gary: The defendant pleads estoppel by the judgment in the case of Samuel B. Clowney, as clerk, v. Henry R. Parr and Wm. B. Elkin, administrator.

Before Townsend, J., Charleston, November, 1896. Action by John F. Bender against Mary Jane Ross and Thomas P. DeGafferelly, for damages for excessive distress for rent. Judgment of nonsuit. Plaintiff appeals. cite: 52 Hen.

<p>Motion to dismiss appeal in case of John and Arthur Crosswell, respondents, against the Connecticut Indemnity Association, appellant.</p>

Before Benet, J., Charleston, April, 1896. Action by Chas. H. Farley against the Charleston Basket and Veneer Company, on the following pleadings: The plaintiff above named, complaining of the defendant above named, alleges: 1. That the defendant was, at the times hereinafter mentioned, and is now, a corporation created by and under the laws of the State of South Carolina. 2.

<p>Application by Blair McKenzie to the Supreme Court for naturalization.</p>

<p>Before Townsend, J., Colleton, January, 1897.</p> <p>Indictment against George Crosby for larceny of a hog of the value of $8. Defendant convicted, and appeals..</p> <p>cite: Acts of 1893, pp. 411, 506; Acts of 1894, 824; 1 Black, 459; 16 Pet., 342; 10 Baw., 448; 8 Cranch, 109; 1 Paine, 400; 3 McC., 306; 14 Rich., 247; 2 Bail., 554, 551; 8 S. C., 233; 14 Rich., 163.</p>

Hunter, he has never been brought within the jurisdiction of the Courts of this State, and that he, the said Cyrus William blunter, has never waived his right to object to the jurisdiction, nor has he made any general appearance in said proceedings of DesPortes v. Hunter, but has always objected to the same, and does now make a special appearance only for the purpose of this motion and objections only, and reserves to himself all his rights.

Before Buchanan, J., Laurens, July, 1897. Indictment against T. B. Franks and Willie Franks for murder. Latter convicted and appeals. cite: Circumstances attending execution of affidavit may be explained: 55 Cal., 185; 2 Rich. R., 177; 16 How. (U. S.),p. 42; 7 Car. & Payne, 789. Contents of writing first shown by paper itself: Howell v. Reynolds, 12 Ala. cite: Error may be cured by afterwards permitting facts to come out: 43 S. C., 91.

<p>1. Constable — A Magistrate cannot verbally authorize an individual not' a constable by legal appointment to convey a prisoner to jail.</p> <p>2. Assauet and Battery — Jury—Charge—Officer.—Á request to charge that an officer cannot be convicted of assault and battery of a high and aggravated natm-e for unnecessary rudeness and violence to a prisoner, invades the province of the jury in taking from them the motive and intent of the officer.</p>

Before Buchanan, J., Anderson, October, 1897. Indictment against W. Henry Johnson for disposing of cotton under lien. Defendant convicted and appeals. cite: Under an indictment charging a lien '■'■made and executed”proof of a staüitory lien is improper: 92 U. S., 542; 125 Mass., 202; 78 S. C., 139; 19 S. C., 142; 20 S. C., 354, 408.

Before Witherspoon, J., Charleston, April, 1897. Action in partition by Wm. E. Holmes, trustee, against M. P. Pickett, the heir at law and administrator of Eri H. Jackson, and the heirs at law of Agnes Chapeau.

Before Townsend, J., Sumter, June, 1897. Action by T. L. Ingram against Southern Music House, M. B. Randle, manager, on'note for $27. Verdict for plaintiff for $5. Plaintiff appeals. ' Circuit Court dismisses appeal, and he again appeals. cite: Receipt may be contract: McM. Ch., 311. And magistrate should construe it: 19 S. E. R., 950. Contract in writing — no other evidence admissible: 17 S. E. R., 979; 1 McC.

Before Watts, J., Greenville, July, 1897. Charles F. Burbage was indicted on the following indictment, omitting the formal part: 1.

<p>Before Aldrich, J„ Richland, April, 1897.</p> <p>Action by Florence J. Wade against the Columbia Electric Street Railway, Light and Power Company on the following complaint:</p> <p>1. That the said defendant, “The Columbia Electric Street Railway, Light and Power Company,” is a corporation, duly incorporated under the laws of the State of South Carolina, and was such corporation at all the times hereinafter mentioned, and engaged, pursuant to their charter, as common carriers in transporting passengers over the line of its railroad in the streets and suburbs of the city of Columbia, in the State aforesaid, in cars owned and operated by defendant, by means of electric power.</p> <p>2. That on the 23d day of September, 1895, at or about 7 o’clock in the evening, the said plaintiff was received by said defendant as a passenger on one of its cars, at the Ger-vais street crossing in Waverly, a suburb of Columbia, going from its Shandon terminus towards and into the said city, the said plaintiff paying the full fare charged for her carriage, and intending to go into said city, the said defendant, in consideration of said payment, agreeing to so carry her.</p> <p>8. That when the said car thereafter reached what is known- as the “Heidt Siding,” in the said Waverly, the said car stopped on the main line of the railway track of said defendant in such position that another of defendant’s cars going in an opposite direction could pass over said siding, around the car in which plaintiff was seated as a passenger; and it was the duty of said defendant to so move its cars arid arrange its switches that the passage of these two cars would be accomplished without injury or peril to any of its said passengers.</p> <p>4. But the said defendant, not regarding its duties in this regard, caused the said other car to approach this plaintiff’s said car with great and dangerous speed, and negligently omitted to have its switch so fixed that said other car would safely pass around this plaintiff’s car; but, on the contrary, this switch was not open and the said other car kept upon the main line past the switch, and continued to approach said standing car with great and dangerous speed, to the imminent danger of a collision with the standing car and imminent peril to all the passengers therein.</p> <p>5. That by reason of this apparent imminent danger to the passengers in said standing car, the plaintiff, in common with other passengers, believed that it was unsafe for her to remain in said car, and it was apparently so unsafe; and in order to free herself from such danger, she was obliged to jump from said car, and did so jump, at the only point of said car where egress to her was possible, and in so doing plaintiff was much frightened and greatly injured, her right ankle being badly sprained, so much so that she had to be carried back to her home and put to bed.</p> <p>6. That by reason thereof the plaintiff was confined to her bed for three weeks, suffered pain for several months, and was prevented from attending to her labors and duties, was put to great expense for doctor’s attendance, medicines and nursing in the attempt to effect a cure, and was otherwise injured, to her damage $2,000.</p> <p>Wherefore, the plaintiff demands judgment against the .defendant for the sum of $2,000 and costs.</p> <p>The defendants filed the following answer:</p> <p>The defendant above named, answering the complaint in the above entitled action, alleges:</p> <p>For a first defense: 1. Admits the allegations contained in the first paragraph of the complaint. 2. Denies each and every other allegation of said complaint.</p> <p>For a second defense: This defendant alleges upon information and belief that the plaintiff is afflicted with rheumatism, and without notifying the conductor of the car upon which she was riding of that fact, or of any desire to alight from the car at the point mentioned in the complaint, of both of which facts he was ignorant, the plaintiff carelessly alighted and jumped from the car without assistance, and thereby herself caused the injury; after being warned and told by the conductor that there was no danger of a collision with the car standing in front of the one upon which she was riding; and that if any injury and damage happened to said plaintiff, it was not caused by any negligence on the part of the defendant or their servants, but was owing to her own negligence and fault as aforesaid.</p> <p>Wherefore, the defendant demands that the complaint be dismissed with costs.</p> <p>Judgment for plaintiff for $400, from which defendant appeals.</p> <p>cite: Rule as to contributory negligence: 80 N. J. Fq., 604; 42 N. J. L., 180; 63 N. C., 346; 101 Mass., 455; 31 Gratt., 200, 812; 62 Ind., 301; 6 Whar.,-311; 43 la., 109; 55 la., 109; 19 Conn., 507; 76 Ind., 291; 57 la., 444; 61 Cal., 326; 62 Cal., 320; 5 Hous., 599; 94 Ind., 598; 95 Ind., 286; 51 la., 419; 61 Ind., 340; 136 Mass., 366; 61 Miss., 468; 45 N. J. E-, 368; 45 N. J. E-, 520; 20 S. C., 219; 59 Texas, 373; 79 Ky., 442; 14 Bush., 578; 22 Minn., 165; 4 Rich., 228; 15 S. C., 450; 19 S. C., 24; 77 Wis., 160; 39 Wis., 129; 47 Wis., 406, 422; 5 Brad., 77; 17 Ill., 444; 74 Wis., 433; 76 Mich., 31; 9 Rich. E., 88. R^íle as to exemplary damages: 29 S. C., 381; 3 S. C., 599; 21 S. C., 599; 22 S. C., 477; 28 S. C., 261; 10 Pet., 81.</p> <p>cite: Rule as to contributory negligence: 30 S. C., 166; 15 S. C., 450; 114 N. C., 728; 25 E. R. A., -296; 3 Man. & R., 105; 4 Am. Neg. Cases, 664. Judge need not charge exact words of request: 587. Passenger may jump to avoid danger: 45 S. C., 160; 25 Am. Rep., 162; 37 Am. Rep., 386; 7 L. R. A., 843.</p>

Before Kdugh, J., Edgefield, November, 1897. Appeal from order of Circuit Court, reversing action of clerk in taxing costs for defendant’s attorneys. cite: 22 Stat., 429; Rev. Stat. 2552; 21 Stat., 30; 1 Gray, 165; 21 Rich., 502; 22 Met., 118; Rev. Stat. 37. cite: Rev. Stat. 37.

<p>Before Aldrich, J., Laurens, October, 1897.</p> <p>Action by Alex. Tucker against Charleston and Western Carolina Railway. Judgment for plaintiff for $1,500. Defendant appeals.</p> <p>cite: As to appliances: 18 S. C., 262; Crouch v. R. R., 22 S. C.</p> <p>^ 8 i | O có >4^ w o ' 3 § rH r O K> CO Oi p co £ § o . TO co CO o CM Ox £ F p</p>

Before Witherspoon, J., Charleston, March, 1897. Action by Henry Baker against M. Hornick & Co. From an order sustaining demurrer and allowing plaintiff to amend, defendant appeals. cite: On main question: Code, 194; 21 S. C., 226; 29 S. C., 520; 18 S. C., 153; 66 Ga., 240; 25 Hun., 475; 89 N. ¥., 22; 24 Conn., 9; 5 S. C., 288; Code, 196; 16 Abb., 249; 58 Vt, 588; 77 Mich., 325; 40 S. C., 45; 18 N. Y. Supp., 215; 39 N. Y., 361; 13 S. R., 297; Fed.

<p>APPEAR — Waiver.—A plaintiff waives his right to appeal from an order sustaining a demurrer to his complaint, with leave to amend upon payment of costs, when he does not decline the permission to amend, or to accept it burdened with payment of costs.</p>

Before Watts, J., Greenville, July, 1897. Indictment against John H. Násh in magistrate court for malicious trespasss. Defendant convicted. Appeals to Circuit Court. Appeal dismissed. He appeals again. cite: Magistrate no jurisdiction when title involved: Con. 1895, sec. 20, art. 5; Code, 36. Defendant only entitled to demand jury: Crim. Stat., 20; Rev. Stat., 885;-Con. 1895, art. 5, sec. 22. Affidavit should not have been amended: Con. 1895, art. 1, sec. 16; Crim.

Before Buchanan, J., Anderson, October, 1897. Indictment against J. H. Morton for forger)'-. Motion to , quash refused, and defendant appeals. cite: Paper to be subject of forgery must if genuine be of legal efficacy: 1 Bay, 207, 285. Instrument invalid on face because no seal: Act 1896, 160. All trustees should sign: 1 Brev., 482; 3 Brev., 279; 1 Bay, 356; 37 Am. Dec., 209; Acts 1896, 167.

Before Benet, J., Fairfield, October, 1897. Action in foreclosure by Robert H. Jennings, as clerk of the court, against Nicholas A. Peay. The Circuit decree is as follows: This action was brought by the plaintiff, as clerk, to recover two deferred payments on a bond and mortgage given to his predecessor in office by the defendant. The defenses of payment, laches, and the statute of limitations are interposed by the defendant.

Before Buchanan, J., Laurens, February, 1897. Application of George Henderson et al., witnesses for defense in State v. Evans et al., convicted of assault and battery of a high and aggravated nature, for certificates against count}' for their fees. Refused. Applicants appeal.

<p>1. A Judgment cannot be set aside in a collateral proceeding upon grounds not appearing on face of the record.</p> <p>2. Trusts — Ceaims disallowed because not charges on trust estate.</p> <p>3. Eimitation oe Estates — Trusts—Res Judicata. — The order attempted to be set aside is judicial in its nature, res judicata as to appellant, and under it the cestui que trust having died intestate, the appellant is excluded from any interest.</p> <p>4. Trusts — Trustee—Commissions.—When a trustee invests all trust funds for benefit of cestui que trust, he is entitled to commissions, without interest, upon settlement of trust estate at its termination.</p>

Before Watts, J., Abbeville, June, 1897. Action by Jessie R. Bell against M. E. Pruit in magistrate’s court. Judgment for plaintiff. Defendant appeals. Appeal dismissed at end of second term. Defendant appeals. cite: Magistrate not properly appointed: Act 1888, p. 85. Siimmons defective because directed to defendant: 2 Strob., 31; 13 S. C., 202; 27 S. C., 99; Rev. Stat., 904; 6 Barb., 654; 7 Ark., 447; 9 Ark., 20; 19 La. Am., 360.

Before Witherspoon, J., Orangeburg, April, 1897. Action by Watson A. O’Cain against Julia O’Cain and her children. Judgment for defendant. Plaintiff appeals on following exceptions: 1.

<p>Before Watts, J., Abbeville, June, 1897.</p> <p>Action in foreclosure by Sylvester Bleckley Co. against C. T. Goódwin and C. I. Cummings. Judgment for plaintiff. Defendant appeals.</p> <p>cite: 18 S. C., 577; 1 Bail., 588; 2 Hill, 625; 2 McM., 356; 2 Strob., 117.</p> <p>cite: 7 S. B. R., 49; 2 McM., 356.</p>

Before Earle, J., Hampton, November, 1896. Action by Alice N. Allen against W. G. Ruddell, J. H. Ruddell et al. The property in question passed under the following will: State of South Carolina, County of Beaufort.

Before Watts, J., Chesterfield, September, 1897. Action for alimony by Caroline Smith against George W. Smith. The order appealed from is as follows: This action was commenced by the service of the summons and complaint on the 9th day of December, 1896.

Petition of O. P. Williams to this Court, in its original jurisdiction, asking for writ of mandamus against A. C. Hiers, as superintendent of education for Colleton County, requiring him to approve a claim for desks sold to trustees.

Before Witherspoon, J., Charleston, April, 1897. Action for specific performance by Elizabeth Easterby against Wm. J. McIntosh. Judgment for defendant. Plaintiff appeals. filed no printed argument. cites: On main question: Code, 136, 137; 17 S. C., 437; 23 S. C., 187; 25 S. C., 275; 36 S. C., 352; 31 S. C., 576; 14 S. E. R., 830. This Court no jurisdiction of questions of fact: 27 S. E. R., 290, 617, 801.

<p>Before Townsend, J., Barnwell, March, 1897.</p> <p>Proceedings in magistrate court in ejectment by Aaron Williams against Frank Garvin. Judgment for plaintiff. Defendant appeals. Appeal sustained. Plaintiff appeals.</p> <p>cites: 28 S. C., 119; 13 S. C., 198; 3 Hill, 239; 24 S. C., 190; 21S.C.,598; 46 S. C.,9.</p> <p>filed no argument.</p>

Before Witherspoon, J., Charleston, April, 1897. Action by J. W. Peeples against John T. Werner & Co. for value of cotton sold by them over which plaintiff claimed an agricultural lien. Judgment for plaintiff. Defendants appeal. cite: Cir-cidt Judge may grant new trial on after-discovered testimony: 14 S. C., 428; 16 S. C., 116; 33 S. C., 401. cites: Complaint states cause of action: 35 S. C., 190. Exception too general: 24 S. C., 280, 597.

Before Townsend, J., Barnwell, March, 1897. Petition by E. A. Roundtree, by guardian ad litem, to have judgment vacated in Michalson v. Roundtree. Judgment vacated. Plaintiff appeals. cites: Code, 195; 47 S. C., 393; 16 S. C., 617. cite: No jtirisdiction of lunatic by guardian ad litem: 1 Bail. Eq., 115; 6 How. Pr., 194. On main question: Code, 195; 15 S. C., 614; 64 N. W., 73; 14 S. C., 331; 47 S. C., 393.

Before Townsend, J., Aiken, April, 1897. Action by Billy Booth against the Bangley Manufacturing Co. Judgment of nonsuit occasioned by refusal of Judge to permit complaint to be amended during trial.

Before Klugh, J., September, 1897. Action by W. P. Pollock and N. S. Pegues, assignees, against the Carolina Interstate Building and Loan Association and the Bank of Cheraw. Judgment for plaintiff. Defendants appeal. cite: Contract should be construed as stood: 48 S. C.', 77. When stockholder becomes borrower, his obligation as stockholder is not altered: 49 S. C., 402; 34 L. R. A., 204; 29 L. R. A., 133; 27 S. E. R., 119; 25 S. E. R., 283; 48 S. C., 303; 51 S. C., 37.

Before Benet, J., Charleston, July, 1896. Action by E. Seabrook against Morris Mostowitz and Hugh Ferguson. From order rescinding temporary injunction the plaintiff appeals. cite: On-main question: 42 S. C., 101; 17 S. E. R., 364; Gen. Stat., 2464; Code, 227, 232; 44 Am. Dec., 444; Rev. Stat. 1896; Code, 240. cite: Order not appealable: 26 S. C., 613; 34 S. C., 345; 36 S. C., 559.

<p>Before Benet, J., Chester, October, 1897.</p> <p>Action by W. O. Guy, as county treasurer, against James M. McDaniel and the American Bond and Trust Company of Baltimore City. Demurrer sustained. Plaintiff appeals.</p> <p>cites: Act of 1896, p. 125; 27 S. C., 318.</p> <p>cites: 22 Stat., 123; 1 Bail., 464.</p>

Before Gary, J., Charleston, July, 1897. Action in foreclosure by Mrs. Mamie E. Grube against J. Ered. Eilienthal, Thos. Pinckney, jr., et al. The follow-i ng is so much of the report of Master Sass as is necessary to understand the opinion fully: In regard to the first question, I am of opinion that it involves the legal position of an assignee for the benefit of his creditors under a deed of assignment. Is, or is not, such assignee a purchaser for valuable consideration?

Before Klugh, J., Sumter, March, 1897. Action by Alfred J. China against city of Sumter.

<p>Before Klugh, J., Florence, February, 1897.</p> <p>Action by Ella F. Willoughby against the city council of the city of Florence. Judgment of nonsuit. Plaintiff appeals.</p> <p>cites: Municipalities act by agent: 78 Ga., 480; 35 N. H., 477; 19 S. C., 420. Matter of law should be raised by request .to charge, and not nonsuit: 26 S. C., 397. Variance between allegation and proof not ground for nonsuit: Code, 190, 191, 197; 17 S. C., 589; 33 S. C., 562.</p> <p>cites: City did not authorize mayor to act: Act 1890, 861, 862; 14 S. C., 403. Failure of proof ground of nonsuit: Code, 192; 3 S. C., 401; 21 S. C., 221, 226; 24 S. C., 165; 48 S. C., 298; 16 S. C., 192.</p>

<p>Before Benet, J., Sumter, November, 1896.</p> <p>Action by John Crosswell and Arthur Crosswell against the Connecticut Indemnity Association, on the following complaint:</p> <p>1. That the defendant above named is a corporation duly chartered under the laws of the State of Connecticut, under the name of the Connecticut Indemnity Association, and at the times hereinafter mentioned was conducting its corporate business in this State by and through its officers duly authorized thereto. 2. That at the times hereinafter mentioned, the plaintiffs were, and now are, residents of the said county of Sumter, and State of South Carolina, and that the cause of action hereinafter mentioned arose within the said State of South Carolina. 3. That on the 31st day of August, 1893, at Eastover, in said State, in consideration of the payment to it of the premium of $43.20 by Mrs. Susan U. Crosswell, the said defendant, by its officers a'nd agents duly authorized thereto, made and delivered to said Susan U. Crosswell its policy of insurance, numbered 12360, in the sum of $1,000, bearing said date, and did thereby insure the life of the said Susan U. Crosswell against death during the period of twelve months from said 31st August, 1893, and did thereby promise to pay the said sum of $1,000, with the cumulative additions, as provided in and by the terms of said policy, less any indebtedness due said association on account of said policy, within ninety days after receipt of satisfactory proofs, made out on its own blanks, of the death of said Susan U. Crosswell, the insured, during the continuance of said policy in force, all of the conditions having been complied with, to John and Arthur Crosswell, her sons, equally, if living; otherwise, to the executors, administrators or assigns of the said insured. 4. That the plaintiffs herein are the said John and Arthur Crosswell, the sons of the said Susan U. Crosswell, the insured, under said policy. 5. That the said policy was continued in force from year to year by the payment of the premiums therein required, and was in full force and effect at the time of the death of the said Susan U. Crosswell, hereinafter mentioned. 6. That on or about the 7th day of January, 1896, the said Susan U. Crosswell departed this life, leaving surviving her her said sons, the plaintiffs herein. 7. That said Susan U. Crosswell, prior to her death, duly fulfilled all the conditions of said insurance on her part. 8. That in compliance with the provisions of said policy, and within ninety days after the death of the said Susan U. Crosswell, these plaintiffs notified the defendant herein of said death-loss, and demanded from said defendant blank proofs of the loss whereon to make out proofs of said loss, as required by said policy; but that this demand was refused by said association, and these plaintiffs have duly fulfilled all the conditions of said insurance on their part. 9. That these plaintiffs have made demand upon said association, defendant, for the payment to them of the said sum of $1,000, and the cumulative additions, as provided in said policy, more than ninety days having elapsed since the death of said Susan U. Crosswell; which payment has been refused by the defendant, and no part of the same has been paid; on the contrary, the defendant claims that said insurance is void, and denies all liability under said policy, and has refused to pay the same or any part thereof. Wherefore, the plaintiffs above named demand judgment against the defendant above named for the said sum of $1,000, and the cumulative additions as provided in said policy, and the interest thereon from the said 7th day of January, 1896.</p> <p>The third defense was identical with the second down to the following point, where it proceeded as follows: That the said policy was issued upon the condition that the provisions and requirements printed or written by the said association upon the back of the said policy were accepted by the said Susan U. Crosswell as part of the contract as fully as if they were recited at length over the signatures of the president and secretary of the said association affixed to the said policy; that among the provisions and requirements so as aforesaid printed by the said association on the back of the said policy, and so as aforesaid accepted by the said Susan U. Crosswell as part of the contract of insurance evidenced by the said policy, were provisions in the words following, that is to say: “1. The application on the faith of which this policy issues is hereby referred to and made part of this contract.” * * * “2. The insured further agrees and accepts this policy upon the express condition, that if any payment (after the first) is not made to the association within ten days after the same is due, then this policy shall be null and void, and of no effect, and all payments which shall have been made to the association on account of this policy shall be forfeited, and no person shall be entitled to damages, or the recovery of any money paid for protection while this policy was in force.” * * * “3. All payments are due at the home office of the association, in the city of Waterbury, on the date named in this policy, but will be accepted elsewhere when duly made in exchange for a receipt signed by the president or secretary, and payment made to any person, except in exchange for such receipt, will not be recognized by the association, or be deemed by either party as a valid payment. If for any reason a payment be received later than ten days after it becomes due, it is upon the express condition that the insured is at the time of the receipt of such payment in good health, and of correct, sober, and temperate habits; and if the fact is otherwise, the policy shall not be put in force by such, receipt, and such receipt must, in every.case, be understood by the parties as an act of courtesy on the part of the association, and in no case as constituting .any obligation to waive the payment of a future premium, when due.” * * * “4. *** If the conditions of this policy shall not be in all respects observed and performed by the insured, then in all such cases this policy shall be null and void, and of no effect, and no person shall be entitled to damages, or the recovery of any moneys paid thereon.”</p> <p>That in and by the said application so as aforesaid made a part of the said policy or contract of insurance, it was declared, stipulated, agreed, and warranted by the said Susan U. Crosswell, among other things, in words following, that is to say: “If I or any of my representatives shall omit or neglect to make any payment as required, in respect of amount, place and time of payment by the conditions of such policy, then the policy to be issued thereon shall be null and void, and all money paid thereon shall be forfeited to said association. And it is further agreed that the membership hereby applied for shall be subject only to the conditions and agreements contained in the policy of insurance to be issued hereon.” 4. The defendant, denying the allegations contained in paragraphs 5, 7 and 8 of the said complaint, avers that on the 31st day of August, 1895, during the continuance of the said polic}^ by virtue of the terms, provisions, conditions and agreements contained in the said policy or contract of insurance, and of the application so as aforesaid made a part thereof, as hereinabove set forth, a payment (after the first) amounting to the sum of $43.20, by way of premium on the said policy, became due and payable to the defendant association at its home office at Waterbury, in the said State of Connecticut, but that the said payment was not made, .tendered or offered to be made at the said time, or within ten days thereafter, and has not since been made to or received by the defendant association or otherwise; and the defendant avers that the said policy thereupon became lapsed, null and void, and that the payments theretofore made thereon were then, and thereby became, forfeited to the said defendant, of all of which the said defendant duly notified the said Susan U. Crosswell and the said John Crosswell and Arthur Crosswell, the plaintiffs herein.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>cite: Error to admit evidence as to custom of bank to pay checks when account is overdrawn: 144 U. S., 476; 7 Cush., 417. Policy becomes void after non-payment, when it provides payment at certain time: 93 N. Y., 70; 64 la., 134; 56 Miss., 512; 52 Md., 16; 58 Md., 463; 81 Ind., 300; 104 U. S., 88; 105 N. Y., 437; 52 Tex., 504; 4 S. C., 321; 28 S. W. R., 117. Check only means of obtaining payment: 1 Hall, 56; 4 Johns., 296; 5 Wend., 490; 1 Rich., 36; 9 How., 403; 23 Kan., 408.</p> <p>cite: fitdge final arbiter in settling case: 27 S. C., 63; 20 S. C., 190. Verdict not disturbed for irrelevant testimony not injurious: 50 S. C., 129. Company waived objections to validity of check by returning it: 36 N. J., 29; 37 S. C., 70; 29 S. C., 560; 37 S. C., 419; 98 Pa., 627; 7 Ohio St., 257. Tender of check payment, if not objected to at time: 7 Ohio St., 257; 122 N. Y., 247; 25 N. E. R., 299; 124 Mass., 366; 13 Kan., 426. Payment by mail is made when letter is deposited in office: 28 N. Y. Supp., 794; 122 N. Y., 247; 25 N. E. R., 299; 28 N. Y. Supp., 231; 13 Allen, 410; 99 Mass., 596; 66 Hem., 543; 21 N. Y. Supp., 734; Cheves, 197; 45 S. C., 606. Waiver and estoppel: 36 N. W. R., 225. Is a qu-estion of fact: 29 S. C., 583; 15 S. C., 11; 46 S. C., 491. Exceptions too general: 48 S. C., 321, 430; 51 S. C., 37, 55. Ex. not applicable to corrected charge: 48 S. C., 350. Charge considered as a whole: 42 S. C., 170; 23 S. C., 191. Stating hypothetical case permissible: 47 S. C., 488.</p>

<p>Before Watts, J., Spartanburg, March, 1897.</p> <p>Action by J. M. Pearson et al. against the county of Spar-tanburg on the following complaint:</p> <p>1. That at the times hereinafter mentioned, the plaintiffs were, and are now, partners in the business of operating a saw mill, under the firm name of J. M. & G. W. Pearson. 2. That at the time hereinafter mentioned, the defendant was, and is now, a body politic and corporate, under and by virtue of the laws of this State, and as such was, and is, entitled to sue and be sued. 3. That, among other things, at and during the said times, it was the duty of the said county to construct, out of suitable, strong, and sound material, and to keep in good repair, its highways and causeways, bridges and abutments thereto, so that the citizens of said county and the public generally could at all times travel over and along and across said highways, causeways, and bridges without danger to their persons and property. 4. That the said defendant, disregarding its duty in the premises, failed to properly construct and keep in proper repair a certain bridge and the abutments thereto, within the boundaries of said county, to wit: the bridge known as Tanner Bridge, across Middle Tyger River, near the residence of W. J. Means; but, on the contrary, the said bridge and approaches were not properly constructed, in that the timbers thereof were entirely too light — the said timbers being mortised or cut out in such a way as to diminish their strength and make them utterly unfit, both by reason of said cutting and size and the lightness thereof, to be used in said bridge. Ayd by reason of said defective material and the defective construction of said bridge, and by reason, further, of the utter want and failure of the defendant to replace said defective timbers with better, stronger, and newer timbers, and to keep the said bridge in good repair, the said bridge was, on the 5th day of September, 1895, in a very unsafe and defective condition. 5. That on the said 5th day of September, 1895, while the plaintiffs were driving a traction or road engine belonging to them over the said bridge, the said bridge gave way and fell in, throwing the property of the plaintiffs a considerable distance, and greatly injuring and damaging it to such an extent as almost to destroy its value. And by reason of the said negligent conduct of the said defendant, the said property of plaintiffs was greatly injured and damaged, making extensive repairs necessary, and preventing the use of - said engine, teams, and employees of the plaintiffs, and utterly destroying their said business and the revenue they would have received in the use of their said engine, teams, and employees for a considerable time — all of which was to their damage in the sum of $1,000. 6. That the said damage done to-plaintiffs was through and on account of defects in and on account of the negligent want of repair of the bridge hereinbefore referred to, and such damage was not in any way brought about by their own acts, by overloading or otherwise, and they in no way negligently contributed thereto. That such defects were occasioned by the neglect and mismanagement of the defendant. 7. That there is now due and owing from the defendant to the plaintiffs the said sum of $1,000 damages, done to them through and by-reason of the negligent acts of the defendant, hereinbefore set out. Wherefore, plaintiffs demand judgment against the defendant for the said sum of $1,000, together with the costs and disbursements of this action.</p> <p>Judgment for plaintiffs. Defendant appeals.</p> <p>(No citations.)</p> <p>(No printed argument.)</p>

<p>Before Benet, J., Darlington, March, 1897.</p> <p>Action for possession of real property by Wagener & Co. against Alonzo W. Parrott. Judgment for plaintiff. Defendant appeals on following exceptions. It is respectfully submitted that his Honor, the Circuit Judge erred:</p> <p>1. In declining to charge, as requested by appellant, that “If, when the levy and sale was attempted to be made, the defendant, Parrott, interposed his claim of homestead, and if the sheriff proceeded to sell without regard to said claim, the sale was a nullity, as being in violation of law, and the jury should have found for the defendant.”</p> <p>2. In declining to charge, as requested by appellant, that “If, at the time of the levy and sale, Parrott, his adopted daughter and her husband, were living together on the land and forming one household, of which defendant, Parrott, was the recognized head, then he was entitled to a homestead exemption in the said land, and the verdict should have been for the defendant.”</p> <p>3. In declining to charge that “If, under the will of Julia Parrott, the defendant, Alonzo Parrott, is entitled to the possession of the land only after certain mortgage debts are paid, and if his possession of the land when this action was commenced, and now was and is, only as tenant of the executors of his wife’s will, then this action cannot be sustained and the verdict must be for the defendant.”</p> <p>4. That his Honor erred in law in charging the jury: “If you come to the conclusion that the plaintiff is entitled to the land, or to the interest which Parrott may have in the land, you will'say, we find for the plaintiff possession of the land in dispute,” it being submitted that as it appeared from the evidence that Parrott was neither in the possession of the land in his own right nor entitled to the possession, plaintiffs were not entitled in this action to the verdict suggested.</p> <p>5. That his Honor erred in saying to the jury, in effect, that the facts testified to as to the adoption of Louise Mims by Parrott and his wife, constituted no adoption in law, and did not affect the question of homestead; and that whether Louise Mims was a member of Parrott’s family, depended wholly on whether she was dependent in some measure upon Parrott for support, and Parrott under obligation to support her; it being respectfully submitted that, by reason of the adoption as testified to, she was legally the child of Parrott, and entitled to be regarded as a member of his ■family, in the sense of the homestead law, without proof of support or dependence for support.-</p> <p>6. That his Honor should have held that the fact that his adopted daughter, Louise Mims, was living with him, constituted Parrott the head of a family, in the sense of the homestead law, and entitled him to a homestead exemption, and it was error in him not so to have held and charged.</p> <p>7. That on the uncontradicted and unquestioned testimony in the case, Parrott was . entitled to the homestead exemption as a necessary conclusion of law therefrom, and his Honor erred in not so holding, and on this ground not granting a new trial.</p> <p>cite: Sheriff should not sell land in disregard of claim of homestead: Rev. Stat., 2126; 23 S. C., 322; 18 S. C., 242; 21 S. C., 19; 39 S. C., 234. Action in ejectment cannot be sustained against one not in possession in his own right: 15 S. C., 69, 276; 27 S. C., 50; 36 S. C., 396; 37 S. C., 578. Adopted child living with parent makes up family entitled to homestead: 50 Am. Rep., 294; Rev. Stat., 2204; 5 S. C., 499; 13 S. C., 489; 23 S. C., 326; 32 S. C., 167; 36 S. C., 577. No conflict in testimony as to homestead, and Judge should have granted new trial: 21 S. C., 66; 29 S. C., 13.</p> <p>cite: Sheriff may sell land in which homestead is claimed: Rev. Stat., 2135; 37 S. C., 181; 49 S. C., 41, 389. Who is head of family under homestead law? 32 S. C., 165; 36 S. C., 576. Power in executors to lease, naked power — title in defendant: 36 S. C., 384; 1 Rich. Eq., 328; 2 N. & McC., 588; Rice, 54. Sheriff's deed carried right, &c., of defendant: 5 Rich., 7; 37 S. C., 309. Plaintiff only required to prove legal title, and right of possession in him: 36 S. C.,' 384; 37 S. C., 578.</p>

Before Witherspoon, J., Colleton, June, 1897. Action by C. A. Savage against J. H. Sanders. From an order requiring defendant to make his answer more definite, he appeals. cite: Motion must point oiit specific defects: 48 S. C., 179. Party will not be required to amend to enable adversary to demtir: 25 Fed. Rep., 373. cite: Motion points out defects: 48 S. C., 179.

Before Witherspoon, J., Spartanburg, September, 1896. Action by P. and R. M. Martin, as administrators of Othello Martin, against James Fowler, in foreclosure. Both parties appeal from judgment. (Oral argument.) cite: Testimony of defendant as to having money in presence of deceased competent: 41 S. C., 125.

<p>Before Buchanan, J., Spartanburg, August, 1897.</p> <p>Action for partition Angellita McCants, by guardian ad litem, against Melnotte, Robert, Samuel F., and T. R. Mc-Cants. From judgment for partition and refusing accounting by Samuel F. McCants, plaintiff appeals.</p> <p>cites: Rents, &c., due grantees: 1 McM. Eq.,17; 1 McC.,233. Payments by father,• gifts, unauthorized, and barred: Code, 112; 11 S. C., 340; 24 S. C., 592; 21 S. C., 320; 30 S. C., 441.</p> <p>(Oral argument.)</p>

<p>Before Gary, J., Anderson, May, 1897.</p> <p>Action by Mary L. Neal, Sarah V. Neal, and Elizabeth A. Neal, Cynthia O. Neal, and John B. Neal, the junior, by their guardian ad litem, Sarah C. Neal, against Sylvester Bleckley, J. J. Fretwell, and Elijah W. Brown, jr., Ralph W. Brown, and Samuel D. Brownlee, as executors of the last will and testament of Elijah W. Brown, deceased,, and John B. Neal, defendants, on following complaint:</p> <p>1. That on the 17th -day of January, 1882, one A. M. Neal executed and delivered to the defendant, John B. Neal, his executors, administrators and assigns, as trustee for the plaintiffs above named, a deed of conveyance for all that tract of land, situated in the county of Anderson and State aforesaid, containing about 600 acres, more or less, and for full description of said tract of land reference is hereby made to said deed, which is recorded in the office of the register of mesne conveyance for the county of Anderson, in book WW, pp. 627 to 629. 2. That the said tract of land was conveyed to the said John B. Neal in trust to and for the sole and separate use, benefit and behoof of his children, the plaintiffs, Mary D- Neal, Sarah V. Neal, Elizabeth A. Neal, Cynthia O. Neal and J. B. Neal, junior, and Alfred McDonald Neal, since deceased, until the youngest of them shall have become of age, in that event the estate herein conveyed to vest in fee simple in said children, their heirs and assigns forever. 3. That said deed of conveyance provided that if, before the youngest of said children shall become of age, any of the said children of the said John B. Neal shall die without bodily heirs, then the share of such child or children so dying shall be equally divided between the survivors, and the said Alfred McDonald Neal did die before said event without bodily heirs. 4. That during the years 1882, 1883, 1884,1885 and 1886, the defendant, John B. Neal, the trustee of the plaintiffs, made and delivered to Bleckley, Brown & Fretwell, a mercantile firm, consisting of the defendants, Sylvester Bleckley, J. J. Fretwell and B. W. Brown, the senior, doing business in the city of Anderson under that partnership name and style, agricultural liens and mortgages over all the crops made during those years on the trust land hereinbefore described, under and by virtue of which the said Bleckley, Brown & Fretwell seized, sold and appropriated to their own use all the crops made on said lands during those years. 5. That the value of the crops of corn, cotton and other produce taken, applied and appropriated during the year 1882, was the sum of $1,000; during the year 1883, the sum of $1,100; during the year 1884, the sum of $1,500; during the year 1885, the sum of $2,500; and during the year 1886, the sum of $2,000, and also four mules which belonged to the plaintiffs, worth the sum of $500, the said property so illegally taken being worth in all $8,600. 6. That most of said property was taken by virtue of the liens and mortgages hereinbefore mentioned, but some portion thereof was applied on the individual accounts" and indebtedness of J. B. Neal. 7. That.the said John B. Neal has no power or authority to give a mortgage or lien on said crops under the trust deed hereinbefore referred to, or to apply to his debts the proceeds of said lands, and at the time the said Bleckley, Brown & Fretwell dealt with him concerning the same, they well knew he was dealing with trust property. 8. That at the time the said property was seized or appropriated, the firm of Bleckley, Brown & Fretwell, copartners trading under that name and style, was composed of the defendants, Sylvester Bleckley, J. J. Fretwell and F. W. Brown, the senior. 9. That on or about the 1st day of March, 1891, the said E. W. Brown departed this life, leaving of force a last will and testament, wherein he appointed the defendants, Elijah W. Brown, the junior, Ralph W. Brown and Samuel D. Brownlee as executors thereof, who have been duly qualified as such executors, and entered upon the discharge of their duties as such. 10. That the defendant, John B. Neal, is insolvent, and a judgment against him would be worthless. Wherefore, the plaintiffs ask judgment against the defendants in the sum of $8,600, the value of the property which the}' have wrongfully taken and appropriated to their use belonging to these plaintiffs, and for such other relief as may be just and proper.</p> <p>All of the defendants except John B. Neal, answer as follows:</p> <p>' I. That the complaint does not state facts sufficient to constitute a cause of action in favor of these plaintiffs against these defendants, and they pray the benefit thereof as fully as if the complaint had been demurred to for this cause.</p> <p>II. And for a first defense to the said supposed cause of action: 1st. They admit the allegations of paragraph one of said complaint; so much of paragraph four as alleges that Sylvester Bleckley, E. W. Brown and J. J. Fretwell were partners at the time, and under the firm name therein set out; so much of paragraph nine as alleges the subsequent death of E. W. Brown and the appointment and qualification of the defendants named as his executors, and also paragraph ten; and they aver that said insolvency existed prior to and ever since January, 1882. 2d. They deny each and every allegation of the complaint not hereinbefore specifically admitted.</p> <p>For a second defense: 3d. That they are informed and believe, and so allege, that the deed of trust referred to in the complaint, and to which the plaintiffs ask reference, will show on its face that John B. Neal, sued as defendant herein, is the legal trustee thereunder, and by virtue of the powers of said deed he alone has the right to the possession of all produce grown on the trust property, and he alone can maintain an action to recover the same or the value thereof, as he alone was empowered to use the rents, issues and profits of the said land for the purpose of educating and supporting said children; and that it does not appear by said complaint that Sarah C. Neal has ever been legally appointed guardian ad litem of said children, or that they or any of them are minors. 4th. That whatever farm produce came into the hands of Bleckley, Brown & Fretwell during the years 1882,1883, 1884, 1885 and 1886 from John B. Neal, was bought by them from him in open market, without any knowledge on their part as to the land upon which the same was grown; and they deny especially, and with emphasis, the allegations of paragraph seven of said complaint. 5th. That the plaintiffs herein, who are the cestuis quetrustent under the said deed, were, during the years 1882, 1883, 1884, 1885 and 1886, along with their father and mother, the said John B. Neal and Sarah C. Neal, maintained and supported by advances of supplies, monies, provisions, clothing, shoes and other merchandise made to them by the said Bleckley, Brown & Fretwell, and there is now due to the said Bleckley, Brown & Fretwell a considerable sum of money for the supplies so furnished to the said John B. and Sarah C. Neal; and they further say, that by means' of advances so made to the said John B. and Sarah C. Neal, they were enabled to build a comfortable dwelling house on said trust property, worth at least $1,500, for which said Bleckley, Brown & Fretwell have never received any pay whatever. 6th. That the supposed causes of action, alleged to have accrued in 1882, 1883 and 1884, did not accrue within ten years, nor did any of them accrue within six years next before the beginning of-this action, and the said supposed causes of action are barred by the lapse of time, and the plea of the statute of limitations. 7th. That the supposed causes of action, alleged to have accrued in 1885 and 1886, did not accrue within six years next preceding the beginning of this action, and the same are barred by the lapse of time, and the action of the statute of limitations. 8th. That the defendants, E. W, Brown, Jr., Ralph W. Brown, and Samuel D. Browulee, as executors of E. W. Brown, deceased, say further: That they have fully administered all the goods and chattels which were of the said E. W. Brown, deceased, at the time of his death, and which have ever come to their hands as said executors, to be administered, and that they have not now nor had at the beginning of this action, or at any time since, any goods or chattels which were of the said E. W. Brown, deceased, at the time of his death, to be administered. Wherefore, defendants pray that the complaint be dismissed with costs.</p> <p>The following is the decree of the Circuit Judge:</p> <p>When the testimony in this case was taken, the defendants’ attorneys gave notice that upon the call of the case for a hearing they would demur to the complaint, and in accordance with said notice and upon the call of the case, a demurrer was interposed upon the following grounds: 1st. Because the complaint does not allege that Mrs. Sarah C. Neal was ever appointed guardian ad litem of the minor plaintiffs. 2d. Because the complaint does not allege the minority of the plaintiffs or any of them. 3d. Because no cause of action is stated in the complaint in favor of these plaintiffs against these defendants, because it appears from the deed of trust to which reference is asked, on the face of the complaint, and from other allegations of the complaint, that John B. Neal, trustee, alone has the right or power to sue for and recover rents, issues, and profits of the trust estate, for the reason that, as appears on the face of the complaint, his trust continues of force until the youngest of these children, the cestiris que trustent, come of age, and the legal estate is, therefore, in him until that time. 4th. Because, under the terms of the deed of trust, the children had no interest beyond a maintenance and education and support. They could not hold the trustee liable for more than that — ergo, they cannot hold these strangers liable for more than he would have been responsible for, since the complaint alleges they are trustees in their own wrong through his acts or breach of trust. 5th. Because, if the allegations of the complaint are true, the trustee should have brought action for claim and delivery of personal property, at the time of the conversion for the recovery of the specific property taken.</p> <p>It appears that two of the plaintiffs in the case are adults, and under the authorities of Btiist v. Salvo, 44 S. C., 143, and Btirr v. Brantly, 40 S. C., 538, the Supreme Court says that if the complaint states a cause of action against any of the defendants and in favor of any of the plaintiffs, it would be improper to dismiss the complaint on an oral demurrer on the ground that the complaint did not state facts suffi- • cient to constitute a cause of action. Besides, the defects complained of do not appear on the face of the complaint, and the defects should be taken advantage of by answer and not by demurrer. This ground of demurrer must, therefore, be overruled.</p> <p>The other grounds of demurrer must also be overruled, as I am satisfied that the complaint alleges such an interest in the plaintiffs as would enable them to maintain this cause of action. A motion for nonsuit was also made in the cause, which is refused, as nonsuits do not apply to causes in equity. Strong v. Weir, 47 S. C., 307.</p> <p>The cause will now be considered on its merits. On the: 17th day of January, 1882, Alfred M. Neal made and delivered to his son, John'B. Neal, a deed of trust whereby he conveyed a certain tract of land, therein specifically de-. scribed, situate in Anderson County, State of South Carolina, containing about 600 acres, in trust to and for the sole and separate use, benefit, and behoof of his children, Mary Tee Neal, Alfred McDonald Neal, Sarah. V. Neal, Cynthia O. Neal, and J. B. Neal, jr., until the youngest of them shall have become of age; in that event, the estate conveyed to vest in fee simple in said children, their heirs and assigns forever. If before the youngest of said children shall have become of age any of said children of the said John. B. Neal should die without bodily heirs, then the share or shares of such child or children so dying shall be equally divided between the survivors. But if the child or children so dying should leave bodily heirs, then the share or shares of the child or children so dying shall be equally divided between them. Under the terms of said deed, the said John B. Neal (his executors, administrators or assigns), trustee as aforesaid, is hereby authorized and empowered to. use the rents* issues and profits of said land in educating and supporting said children. The said John B. Neal is further authorized and empowered, whenever he deems it necessary and proper for the protection of the interest of said children, to sell said land and execute titles therefor, and reinvest the proceeds thereof in real estate of equal value for the use of said- • children. The said trust deed was duly recorded in the proper office in Anderson County, on the 18th day of January, 1882. The plaintiffs herein are the survivors of the said children. The defendant, J. J. Fretwell, admits that he knew the said plantation was deeded to said John B. Neal in trust, and the defendant, J. B. Neal, the trustee of the plaintiffs, made and delivered to the firm of Bleckley, Brown & Fretwell, of which the defendants, Sylvester Bleckley, J. J. Fretwell, and E. W. Brown, the senior, were partners, certain agricultural liens and mortgages which specifically embraced all the crops grown on the trust lands for the respective years-after said trust deed was executed, to and including the year 1886, by virtue of which said firm of Bleckley, Brown & F'retwell received and obtained the benefit of the proceeds of most if not of the entire cotton, rice, wheat, oats, &c., made upon said trust land during said years. As early as the year 1883, the mortgage executed by said John B. Neal to said Bleckley, Brown & Fretwell, dated 28th April, 1883, was upon its face to secure advances to the amount of $750, made and to be made, and any excess over that amount for articles of merchandise not comprised in the legal term of “supplies,” and for fourteen tons of fertilizers, and cash advances, and bagging and ties; S. C. Neal also joined in making said mortgage, which was given to secure such debts as are above enumerated, and also “all other goods and merchandise referred to or that may be purchased by us jointly or severally.” Said mortgage expressly refers to said trust estate, and said John B. Neal therein does “bargain, sell, and deliver” to said Bleck-ley, Brown & Fretwell the following described personal property, to wit: * * * all the rents, issues, and profits of all that tract of land, containing 600 acres of land * * * being the same tract conveyed to me, as trustee for my children, by A. M. Neal, 17th January, 1882, and recorded in book UU, pages, &c. And in each year thereafter similar reference is especially made to said trust estate in the several written instruments which were made by said John B. Neal to said Bleckley, Brown & Fretwell to secure advances and other forms of indebtedness. Although the amount of indebtedness which Bleckley, Brown & Fretwell claimed to be due them for the preceding years by said John B. Neal was unpaid, a balance being left each year after applying all credits, including the crops raised upon said trust estate which were received, yet, on February 16, 1886, said John B. Neal, as trustee, executed an instrument of writing, under seal, to Bleckley, Brown & Fretwell, which was duly recorded, in which said John B. Neal acknowledges himself indebted to said firm by note and accounts in various sums of mouey, of which $1,800 was for money and supplies used and expended in making improvements, such as a new two-story frame dwelling house, several outbuildings, and other improvements on the lands belonging to his children, fully describing said trust lands; and the purpose of said writing was therein stated to be to secure payment of said $1,800, “together wfith the interest thereon, from November 1st, 1885, at ten per cent, per annum,” &c. And all the rents from said trust lands for the years 1886,1887,1888, and all subsequent years, were so assigned to Bleckley, Brown & Fretwell. The trust deed was duly recorded in the proper office, and said Bleckley, Brown & Fretwell had not only constructive, but actual notice of the trust. The rents, issues, and profits of said trust lands were received by Bleck-ley, Brown & Fretwell under said written agreement, not only without authority, under said trust deed, for the trustee to so apply them, but for an use which should not be sanc-tioded by a court of equity. The said rents, issues, and profits were applied by said John B. Neal, trustee, in a manner not authorized hy said deed of trust and without authority of law, and the said Bleckley, Brown & Fretwell received the same with knowledge of the facts. A breach of trust was thereby created and committed, and the said Bleckley, Brown & Fretwell thereby became trustees, and due and liable to the extent of such rents, issues, and profits of said trust estate which were so received by them, and must account to the plaintiffs for so much of said trust funds as were so received by them. There was sufficient notice of trust to hold said Bleckley, Brown & Fretwell liable. McDiiffie v. McIntyre, 11 S. C., 563; Salinas v. Pearson, 24 S. C., 179; Webb v. Graniieville Mfg. Co., 11 S. C., 396; Simmons v. Bank, 5 Rich. Eq., 270; Balloti v. Young, 42 S. C., 170; 27 A. & E. Ency., pp. 267-352. Rents from trust lands are trust funds in the hands of one having knowledge. Rabb v. Patterson, 42 S. C., 528; Boggs v. Reid, Rich., 450. That rents from other tracts of land were embraced in the same paper will not justify the defendants in accepting trust rents. 27 A. &. E. Ency., p. 163; Harrison v. Smith, 52 A. R., 571; Nall Bank v. /«¿. Cb., 10 U. S., 54. The defendants, Bleckley, Brown & Fretwell, became a party to the breach of trust when they accepted trust funds knowingly and applied them to the payment of debts which the trust did not authorize, and without an order from a court of equity. 27 A. & E., p. 265; Natl Bank v. Hyde, 40 A. R., 218; Simons v. Bank, 5 Rich. Eq., 270; Bomar v. Gtó, 25 S. C., 340.</p> <p>Inasmuch as the testimony taken in this case has not been specifically directed to ascertain accurately and definitely the amount of rents of said trust estate which were paid each year to said Bleckley, Brown & Fretwell by said John B. Neal, as trustee, and in order that the facts in reference thereto may be ascertained, I have considered, for a proper adjudication of the amount due by said Bleckley, Brown & Fretwell, that further testimony be taken in the cause, and an accounting had to ascertain the same. It is, therefore, ordered, that it be referred to the master of Anderson County, to take further testimony and state an account as hereinbefore indicated. It is further ordered, that he report the same to this Court with all convenient speed.</p> <p>The defendants, except John B. Neal, appeal from the said judgment upon the following grounds:</p> <p>I. Because his Honor, the Circuit Judge, erred in overruling the demurrer interposed therein in behalf of said defendants; whereas the Court should have sustained the same for the reasons and upon the grounds: 1. Because the complaint on its face does not state facts sufficient to constitute a cause of action against the said defendants, appellants herein, in that said complaint does not state or allege all the issuable facts on its face necessary to have made the judgment binding against the plaintiffs in favor of the said defendants, had the judgment been rendered in their favor; and because the Court erred in holding that the defects complained of do not appear upon the face of said complaint. 2. Because the complaint on its face shows that the breach of trust alleged, if committed as alleged, was by the firm of Bleckley, Brown & Fretwell as a firm, and said complaint on its face shows that E. W. Brown, one of the said firm, died in the first of the year 1891, which itself was a dissolution of said firm; and there is no breach of trust alleged against either of the individual members of said firm, nor is the said action against Sylvester Bleckley and J. J. Fretwell as survivors; and these defendants submit that said complaint does not state any facts whatever showing that the defendants in this action committed a breach of trust. 3. That inasmuch as in the title of said complaint Sarah C. Neal is styled as guardian ad litem of the three last named plaintiffs, and since the complaint does not allege the minority of any of these plaintiffs, and does not allege the appointment of Sarah C. Neal as guardian ad, litem of any of the plaintiffs, and these being issuable facts, should have been pleaded, and not having been pleaded, the complaint is demurrable for said reason, and the Circuit Judge erred in holding that this ground of demurrer was a demurrer to the legal capacity to sue. 4. Because the Court erred in holding that this was a demurrer for want of legal capacity to sue, and should have been taken by writing or by answer; whereas he should have held that it was a demurrer upon the grounds that the complaint did not state facts sufficient to constitute a cause of action in favor of the plaintiffs against these defendants. 5. Because where property is sought to be affected by a trust in the hand of third parties by reason of an alleged breach, it is necessary that all parties be before the Court — that the complaint set out all the facts with certainty, requisite to identify the specific property sought to be affected in the hands of said third parties by the trust; and it is submitted that the complaint herein fails to comply with said rule in equity, and it is, therefore, demurrable. 6. Because the complaint on its face shows that the legal title to the property sought to be affected, is in, or was in, J-ohn B. Neal; for, by the terms of said deed of trust, the fee in said land was vested in said John B. Neal until the youngest of the said children attained his or her majority; and while the fee was thus vested in said trustee, the donor, A. M. Neal, declares: “The said John B. Neal (his executors, administrators or assigns), trustee as aforesaid, is hereby authorized and empowered to use the rents, issues, and profits of said land in educating and supporting said children,” whereby the use of the said rents of said land now sought to be recovered became his own property; and inasmuch as there is no allegation in said complaint that said John B. Neal had failed to “educate and support” his said children, the plaintiffs, during the years mentioned, the Court was bound to presume that said John B. Neal, trustee, had discharged the said duty, and the Court erred in not so holding. 7. Because that, if the allegation of said complaint be true, to wit: that Bleckley, Brown & Fretwell, a mercantile firm, unlawfully seized the crops for said years by virtue of invalid liens and mortgages, and at the same time shows that said John B. Neal was clothed with the complete legal title thereto, then the said firm of Bleckley, Brown & Fretwell were naked trespassers, and the said trustee had a plain, adequate remedy at, law to recover the said rents; and inasmuch as said complaint nowhere alleges that said trustee had refused to bring an action to recover said property, the Court erred in not sustaining the demurrer.</p> <p>II. Because the testimony offered by the plaintiffs wholly fails to establish any breach of trust by these defendants, or any liability against the firm of Bleckley, Brown & Fret-well in favor of said plaintiffs, and the Court erred in holding the firm of Bleckley, Brown & Fretwell, trustees, liable to account to the plaintiffs under said deed of trust.</p> <p>III. Because plaintiffs’ testimony wholly fails to show that these defendants obtained or received any part of the said rents, or that the firm of Bleckley, Brown & Fretwell seized any part of said crops by virtue of liens or mortgages; but, on the other hand, the undisputed testimony shows that John B. Neal and his wife, Sarah C. Neal, made arrangements to get the firm of Bleckley, Brown & Fretwell to furnish them and their tenants fertilizers and supplies during the years mentioned, without any notice whatever which tenants were working on the trust land, and the crops were gathered and brought to market and sold by John B. Neal and the tenants, and the proceeds applied to the payment of the fertilizers and supplies as far as the same would go; and there is still due the firm of Bleckley, Brown & Fretwell over $2,600 on account of goods sold during said years; and there was not a scintilla of testimony to show that said firm of Bleckley, Brown & Fret-well purchased trust crops with notice that said John B. Neal was committing a breach of trust; and that the Court erred in finding that “Bleckley, Brown & Fretwell received and obtained the benefit of the proceeds of most if not the entire cotton, rice, oats, &c., made upon said trust land during said years,” and thereby became liable to accoirnt to the plaintiffs; whereas the Court should have held that, under the terms, authority, powers, and uses set forth in said deed, the plaintiffs could not maintain the said action to recover the rents sold by the trustee, who was clothed with the legal title thereto.</p> <p>IV. Because the Court erred in assuming that the defendants’ motion to dismiss the complaint was one for a technical nonsuit; whereas the motion was to dismiss the complaint, and for judgment in favor of these defendants on the pleadings and testimony offered by the plaintiffs, and upon a proper construction of said deed of trust, the Court erred in not giving judgment for these defendants.</p> <p>V. Because, when the Court reached the conclusion “that the testimony taken has not been specifically directed to ascertain accurately and definitely the amount of rents of said trust lands which were paid over each year to the said Bleckley, Brown & Fretwell by said J. B. Neal,” that necessitated a recommittal of said case for further testimony to ascertain the same, it was an acknowledgment that the whole testimony failed to identify any of said rents supposed to be charged with a trust, and the Court erred in not dismissing the complaint.</p> <p>VI. Because the testimony offered by the plaintiffs was specifically directed to the very object to which the Court ■says it was not directed, and it was error not to dismiss the complaint when said testimony failed in its object.</p> <p>VII. Because the construction placed upon said trust deed by the Court below was erroneous; whereas the Court should have held that the authority and power therein conferred upon said trustee were commensurate with the use given to him until the youngest of said children becomes of age— that when A. M. Neal expressly authorized and empowered said John B. Neal, his executors, administrators or assigns, to use the rents, issues, and profits of said land in educating and supporting his children, it was a gift to said John B. Neal, their father; and when the proof shows beyond a doubt that said John B. Neal was and is insolvent, and has no means whereby to educate his said children, the Court erred in holding that the trustee could not sell the rents raised on said laud in advance for supplies and fertilizers with which to make the crops, and also for goods and money for the trustee to enable him to educate and support his said children.</p> <p>VIII. Because the testimony shows, and it was not disputed, that the agreement executed February 16th, 1886, to which his Honor makes special reference, was an admission by said trustee that said Bleckley, Brown & Fretwell had furnished $1,800, which went into permanent improvements on said land; and the Court erred in finding “the rents, issues, and profits of said land were received by Bleckley, Brown & Fretwell under said written agreement,” when there is not a scintilla of proof to show that said firm received one particle of said rents on said agreement; but the testimony shows that not one dollar on said written agreement had ever been received, and the amount and interest is still due.</p> <p>IX. Because the testimony shows that John B. Neal, trustee, sold and delivered said cotton, in open market, without giving any notice whatever of any trust rents, received full value in cash, supplies, and advances, used in making said crops, from said Bleckley, Brown & Fretwell, and there is not a scintilla of proof to show that his children did not get the full benefit thereof during said years; and these defendants submit that it would be manifestly unjust, inequitable, and unconscionable, after being thus advanced in good faith, after the said advances have been entirely consumed, except the permanent improvements put on said land at the expense of said firm, and after said firm had been long since dissolved, to require these defendants to account for rents sold to said firm of Bleckley, Brown & Fretwell, as agents for other parties, and now to require the defendants to account for said rents, when they have no way whatever to know what crops grown on said trust land were thus bought by said firm; and the Court erred in not holding that said trustee had the full legal title and power to sell and dispose of said rents as he might deem proper, under the use given in said deed.</p> <p>X. Because under the well established rule in equity a trustee may make advances and disbursements when neces-sarjr to carry out the trusts, and have a lien upon the trust property, and what he can do himself he can do by another; that the complaint avers the insolvency of the trustee, and the testimony not only shows that he is insolvent, but that he is without character also, and unworthy of belief; and not having any means, any credit or any' character, in his dire extremity he procured said firm of Bleckley, Brown & Fretwell to make the necessary advances for him whereby he was enabled to make crops on said land and educate and support the plaintiffs. The testimony shows that over $2,600 is still due said firm for advances thus made, and in addition the sum of $1,800 for permanent improvements on said land, not one dollar of which has been paid; and the Court erred in holding that the rents of said land were applied by said John B. Neal in a manner not authorized by law, and that Bleckley, Brown & Fretwell received the same with knowledge of the facts, and thereby committed a breach of trust and are liable to account to the plaintiffs, when there is no allegation nor any testimony whatever to show that the trustee did not use the advances to their best interests.</p> <p>XI. Because the Court erred in the application to this case of the authorities cited, because in the case at bar the rents, issues and profits of said land are given to the father of said children until the youngest of them shall have attained his or her majority.</p> <p>XII. Because the Court erred in holding that said Bleck-ley, Brown & Fretwell obtained the rents of said land under liens and mortgages with a knowledge of a breach of trust by said John B. Neal, and thereby became liable as trustees to account to the plaintiffs, when there is no proof whatever that said trustee had not fully carried out the trust so far as educating and supporting his said children out of advances made for said rents greatly in excess of their value, and when there was a complete failure to identify any of said crops.</p> <p>XIII. Because all the papers referred to by his Honor show that all the advances, fertilizers, agricultural supplies, goods and merchandise, were secured first by mortgages on the 200 acres of land belonging to Sarah C. Neal, then by the personal property of John B. Neal,, and lastly by the rents of the trust land derived from the tenants for supplies furnished to make crops on said land; and during said years the cash, supplies, advances, &c., exceeded the rents and profits of said farms by $2,600, and in addition $1,800 in the way of a comfortable two-story dwelling house, outbuildings and tenant houses on the trust lands; and the Court erred in finding that the rents of said lands were used to pay the individual debts of John B. Neal to Bleckley, Brown & Fretwell.</p> <p>XIV. Because the said deed of trust nowhere requires that said John B. Neal shall turn over the rents, issues and profits of said land, or any part thereof, to said plaintiffs or either one of them, but he is authorized to use the same in their education and support until the youngest comes of age; and the Court erred in requiring the said Bleckley, Brown & Fretwell to account to the plaintiffs for any part of the rents so given to John B. Neal and sold by him, and for which he received full value.</p> <p>XV. Because the testimony shows that two of said plaintiffs had attained their majority more than six years before the commencement of this action, and if they had any legal or equitable interest in said rents, their right of action accrued when they became of age; and the Court erred in not holding that they were barred by the statute of limitations.</p> <p>XVI. Because these defendants are not sued as the survivors of the firm of Bleckley, Brown and Fretwell, and individually never received any part of the alleged rents, but if said firm received any rents affected by the alleged trust with a knowledge thereof (which is not admitted), it was an implied or constructive trust only, and as the said breach occurred more than six years before the commencement of the action herein, the Court erred in not sustaining the plea of the statute of limitations.</p> <p>XVII. Because the undisputed testimony shows that said John B. Neal was, and is still, the trustee of said plaintiffs, with the legal estate both as to the land and the rents, issues, and profits vested in him until the youngest of said children becomes of age, and not having brought his action within six years-to recover the same, alleged to have been unlawfully taken and appropriated by said firm, the statute of limitations is a bar both as to him and. said plaintiffs, and the Court erred in not so holding.</p> <p>XVIII. Because the testimony shows that when said land was conveyed to John B. Neal, trustee, it was destitute of all improvements, having nothing in the way of buildings except an old log house, built with port-holes, during the time the Indians occupied the country; and the testimony shows that during the years mentioned in the complaint, that said trustee, without the knowledge of the said Bleck-ley, Brown & Fretwell, used as much as $1,800 of their money in putting a valuable two-story dwelling house on said land, outbuildings and tenant houses; and besides all these permanent improvements, which greatly enhanced the value of said farm, said firm advanced money to pay the taxes thereon, as shown by the receipts taken up by them at the request of said trustee, and also money and clothing-, of which plaititiffs got the benefit, while being educated and supported during those years, besides all their farming implements used on said land, and also mules to make the crops; and the Court erred in holding- that there were no expenditures made in those years which a court of equity could or would sanction.</p> <p>XIX. Because if said expenditures were unlawful by said John B. Neal, trustee, then he perpetrated a fraud upon said firm, of which the plaintiffs are availing themselves, and these defendants submit that it would be inequitable to allow the plaintiffs to retain the benefit of said improvements while making said firm account for all the supposed rents.</p> <p>XX. Because the complaint shows that one of said children died, and these defendants submit that the said trust deed nowhere gives his share in said rents to the others as survivors, but the survivorship is as to the fee in said land; and, in any event, his father, John B. Neal, who was one of his heirs, was entitled under the statute of distribution to an interest in the share of the one so dying in said rents, and could make such disposition thereof as he pleased.</p> <p>XXI. Because the undisputed testimony shows that all the cotton was bought in open market by said firm of Bleck-ley, Brown & Fretwell from John B. Neal and tenants, and was bought by them as agents fpr others; and the Court erred in holding that the cotton, rice, wheat, oats, &c., grown on said trust land were received by Bleckley, Brown & Fretwell under and b3' virtue of liens and mortgages whereby they became responsible to the plaintiffs as trustees, and bound to account and pay over to them.</p> <p>XXII. Because if said rents are a trust fund for the benefit of said plaintiffs until the youngest of said children becomes of age, and tire defendants are required to account to the plaintiffs before said use has been fully executed, it would itself be a breach of the trust according to the judgment herein; and the Court erred by directing such accounting to the plaintiffs, while said John B. Neal is, by the very terms of said trust deed, the legal custodian of said rents.</p> <p>XXIII. Because said deed of trust provides that if any of said children should die before the youngest of them comes of age, and such child or children so dying should leave bodily heirs, the share or shares of such child or children so dying shall be divided equally between them; and as said event has not happened whereby said land is to vest in said children, the decree to account and pay over to the plaintiffs is itself a perversion of the trust imposed by the said deed of trust upon said John B. Neal, and the Court erred in rendering the judgment herein for said-accounting to the said plaintiffs.</p> <p>cite: Complaint mitst state representative character of plaintiff: 20 S. C., 468; 6 S. E. R., 905. Cestui qtie trzist cannot sue: 51 N. Y., 37; Rice Eq., 367; 3 Rich. Eq., 463; Code, 227, 228.</p> <p>cite: Complaint should allege copartnership: 29 S. C., 520; 45 S. C., 638; 39 S. C., 504. If surviving partner solvent, representative of deceased cannot be joined: 1 McC. Ch., 169; Dud. Eq., 85; II. Batch., 513; 17 S. C., 106; 10 S. C., 164; 42 S. C., 365. Complaint must allege appointment of guardian ad litem: Code, 163; 25 S. C., 315; 20 S. C., 460; 44 S. C., 1; 47 S. C., 64; 16 S. C., 371. Complaint does not sufficiently describe trust property: 4 Johns. Ch., 281; 7 D. R. A., 570; Rich. Eq. Cases,' 172. Title in trustee — he alone can sue: 50 S. C., 120; Rice Eq., 343; 25 S. C., 340; 3 Rich. R., 450. Trustee reimburse himself for necessary expenses: 1 McC. Ch., 267; 2 McC. Ch., 214; 24 S. C., 179; 42 S. C., 170, 528. Statute is bar to plaintiffs action: Bail. Eq., 535; 2 McC. Ch., 384; 1 McC. Ch., 476; 2 Rich. Eq., 120; Code, 112, stib. 4; 5 Vis., 144; 4 Rich. Eq., 163; 15 S. C., 242, 164; 2 Rich. Eq., 259; 18 Wall, 493; 16 S. C., 494; 50 S. C., 120.</p> <p>cite: Demurrer as to guardian ad litem could not be sustained, because two adults: 44 S. C., 143; 40 S. C., 538. Proof oj appointment guardian sufficient: 47 S. C., 64; 44 S. C., 1; 41 S. C., 1, 394; 25 S. C., 315. Cestui que trust can maintain this action: 1 S. C., 172; 1 Rich. Eq., 26; 9 Rich. Eq., 184; 1 Hill Ch., 1. Defendants knew by description of lands in mortgages that it was trust property: 24 S. C., 179; 11 S. C., 396; 5 Rich. Eq., 270; 42 S. C., 170. Rents from trust lands are trust finds: 42 S. C., 528. Purchase in open market no defense: 24 S. C., 184; 5 Rich. Eq., 272; 11 S. C., 407; 1 S. C., 398. Must know trust find: 53 Am. Rep., 571; 104 U. S., 54; Hill Ch., 1. Trust funds cannot be applied to individual debts of trustee: 40 Am. Rep., 218; 5 Rich. Eq., 270; 3 Rich. Eq., 450; 11 S. C., 563; 25 S. C., 340; 1 Hill Ch., 228. Is plaintiff's action barred: 2 Am. St. Rep., 475; 99 Am. Dec., 384; 4 McC. Ch., 143; 35 S. C., 422. New trustee may be appointed: 7 Rich. Eq., 480; Gen. Stat., 2097. Trustee must separate trust property from his own: 53 Am. Dec., 571; 104 U. S., 54; 1 Strob. Eq., 363; 14 Am. St. Rep., 332; 26 S. C., 370. Nothing allowed for improvements unless power conferred: 7 Am. Dec., 475; 25 N. J. Eq., 51; 48 Am. Dec., 402. Trust deed does not authorize a mortgage of rents to secure miscellaneous individual accounts: 56 Ga., 309; 61 Ga., 246; 13 Phila., 201; 118 Ill., 275; 128 N.Y., 558; 111 N.Y., 228; 54 Mass., 471; 95 Mo., 337; 70 Ala., 596; 24 Hun., 277; 125 Mass., 138; 3 Rich., 440; 29 S. C., 278; 42 S. C., 170; 24 S. C., 179; 11 S. C., 551.</p>

Before Gary, J., Lexington, February, 1896. Action by English S. J. Hayes against T. Sims Sease. Judgment for plaintiff. Defendant appeals. cite: Charge on facts: Con., art V., sec. 26; 47 S. C., 488. The doctrine of opprobrious words in mitigation of damages correctly stated in 3 McC. D., 50; 2 McM., *147. cites: Exceptions too general: 50 S. C., ,95; 49 S. C., 285; 51 S. C., 55; 18 S. C., 103; 19 S. C., 61; 20 S. C., 583; 30 S. C., 167; 40 S. C., 99; 44 S. C., 485.

<p>Before Benet, J., Florence, September, 1896.</p> <p>Action by Thomas Wilson against The Commercial Union Assurance Company, Uimited, of London, England. Judgment for plaintiff. Defendant appeals.</p> <p>cite: Admissibility of declarations of alleged agent: 27 S. C., 132; 37 S. C., 56; 17 S. C., 514; 46 Ill., 242; 121 Mass., 439; 76 la., 609; 144 Mass., 46; 63 N. Y., 534; 74 Fed., 507. Transactions between insured and alleged agent after fire: 25 Ins. L. J., 361; 19 Or., 267; 37 S. C., 132; 25 Ins. L. J., 395; 24 lb., 479, 379; 141 N. Y., 219; 133 N. Y., 356. Charge as to change in contract: 23 Ins. L- J-, 378. Proofs of loss must be served when required by policy: 23 Ins. L- J-, 811; 112 Mass., 49; 50 Conn., 55; 2 Pet., 25; 10 Pet., 507.</p> <p>cite: Agency once established presumed to continue-. 96 U S., 84; 31 S. W. R., 265: Not incumbent on insured to prove affirmatively that agent had certain powers: 37 S. C., 56; 96 U. S., 234. Agent can waive forfeiture: 28 Am. St. R., 554; 17 lb., 233. Company camtot limit, by stipulations in policy, its capacity to make verbal changes in contract: 39 Minn., 129; 43 Cen. L. J., 135; 69 Fed. Rep., 71. Notice of loss to agent is sufficient: 27 Am. Rep., 761; 2 T. & C., 375; 73 Pa., 342; 65 Cal., 386; 33 Fed., 544; 43 Neb., 473; 33 S. C., 231; 37 S. C., 88. Agent may receive or waiveproofs of loss: 10 Hem., 397; 90 Ill., 550; 108 Ind., 518. Denial of liability is waiver of proofs of loss: 29 S. C., 560; 36 S. C., 265; 37 S. C., 444. Insured submitted proofs of loss, cannot invoke above waiver: 29 S. C., 560; 67 N. W. R., 327. Allegations of compliance with all conditions sufficient to support proof of waiver, and service of proofs of loss: 28 S. C., 431; 43 S. C., 26; 119 Ind., 155.</p>

<p>Before Earle, J., Colleton, December, 1896.</p> <p>Foreclosure by C. Ehrhardt against Louisa Varn, and C. Ehrhardt & Son. From judgment defendant, Louisa Varn, appeals.</p> <p>cite: Rev. Stat., 1390, 1391; 2? S. C., 114; 30 S. C., 68.</p> <p>cite: Rev. Stat., 1390, 1391; 2 S. C., 254; 2 Bail., 574, 345; 10 S. C., 133; 27 S. C., Ill; 30 S. C., 391, 61; 31 S. C., 282.</p>

Before Watts, J., Orangeburg, October, 1897. Rule to require Joseph B. Tray wick to complete his purchase of a tract of land bid off by him at partition sale in McMichael v. McMichael. From judgment of Circuit Court requiring him to complete his purchase, Traywick appeals. cite: Caveat emptor does not apply to partition sales: 9 S. C., 287.

Before Witherspoon, J., Hampton, August, 1897. Two actions by Peeples & Peeples against E. F. Warren, one in claim and delivery, and the other for damages for taking possession of same property. The Circuit .decree is as follows: By consent of counsel, a jury trial was waived, and the two above entitled cases were heard together upon testimony taken and reported by the clerk of court, and the argument of counsel.