53 S.C. 387 | S.C. | 1898
The opinion of the Court was delivered by
This is the third appeal in this case, the two former appeals being reported in 46 S. C.,' 133, and 49 S. C., 423, 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, amongst 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 an}'- 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
3 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
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.