Volume 71 — South Carolina Reports

Before Kuugh, J., Abbeville, Action by Julia I. Tittle against Archibald C. and Charles R. Kennedy. From judgment for plaintiff, defendants appeal. Mr. Gary cites: Can punitive damages be allowed in an action for claim and delivery of personal property? Code of Proc., 299; 170 U. S., 468; 20 S. C., 509. cites: Is the purchaser of lands at foreclosure sale entitled to growing crops against tenant of mortgagor? 46 Am. R., 284; 4 E. R. A., 452; 17 R. R. A., 782; 27 Fed.

Before Aldrich, J., Charleston, Three cases by Rudolph D. Wieters against J. A. May and J. M. Polatty; same against M. B. Gideon, L. H. Wilson and M. C. Pool; same against J. F. Bateman, J. F. Schmidt, W. H. Griffin and A. F. Funderbunk.

Before Watts, J., Richland, Action by London Harrington against M. B. Gideon, L. H. Wilson and M. C. Poole. From Circuit order granting motion to strike out certain allegations in the complaint, plaintiff appeals.

Before DanTzlER, J-, Hampton, Motion by defendant to set aside judgment in Sallie C. Middleton against Annie C. Stokes. A. Leffler & Son, Seaboard Air Line Ry. and M. L. Peeples were served with motion papers. From Circuit order refusing' motion, movant appeals. cite: Code of Proc., 159, 136; 20' Wis,, 320'; 53 Wis., 72; 37 Wis., 333; 49 Wis., 553; 64 Ind., 194; 35 Ky., 128; 6 Ala., 451; 23 S. C., 188; Fitnan’s Trial Proc., sec. 232; >62 Ala., 322; 57 Fed.

Before Frank B. Gary, special Judge, Laurens, Indictments by town of Clinton, one case against Ross Leake, and the other against Tom Leake and Wright Simpson. From orders on Circuit reversing judgments of town council, the town appeals. Mr. Richey cites: Town council as a body had power ta try the defendants: 20 Stat., 912;Code, 1902, 1964, 1982.-

Before Dantzeer, J., Beaufort, Action by W. E. Capers against Western Union Telegraph Co'. From Circuit order refusing motion to strike out certain parts of complaint, defendant appeals. cite: Complaint should set forth meaning of telegram and its relation to the loss: 37 N. E., 601; 41 At. R., 710; 84 N. W.,462; 53 S. W., 900; 46 N. E-, 38; 27 Ency., 1062.

Before Townsend, J., Laurens, Action by M. S. Bailey & Sons against Lula M. Wood and others. Held: to quote syllabus 4, ‘A creditor having acquiesced in a homestead set apart under his execution to- his debtor, is estopped from afterwards assailing the exemption as unconstitutional, but he is not estopped -from levying and selling this homestead when by death and removal of the debtor and his family, the conceded right to…

Before George E. Prince, special Judge, Barnwell, Action by B. J. Brabham', Jr., against American Telephone and Telegraph Co. and Leonard Handberry. From order sustaining demurrer, plaintiff appeals. cite: A general averment of negligence in the act complained of is sufficient: 14 Ency., 334, 333; 35 S. C., 384.

<p>Before Ardrich, J., Aiken.</p> <p>Action by John E. Sanders against Aiken Manufacturing Co. From judgment for plaintiff, defendant appeals.</p> <p>cite: The rule does not require defendant to furnish a "safe and suitable” machine: 22 S. E., 872; 32 S. E., 884; 37 S. E., 287; 100 U. S., 218; 20 Ency., 2 ed., 71, et seq.; 18 S'. C., 270; 35 S. C., 405; 34 S. C., 211; 32 S. C., 300; 60S. C., 21; 41 S. C., 391; 60 S. C., 168; 69 S. C., 101; 65 S. C., 192; 52 S. C., 438; 68 S. C., 55. It is not required that plea of contributory negligence be proved by clear and convincing evidence: 62 S. C., 322; 65 S. C., 37. Contributory negligence of a, negative character is governed by same rule as other kinds: 56 S. C., 95; 61 S. C., 363, 556; 59 S. C., 324; 41 S. C., 1; 47 S. C., 415; 51 S. C., 225; 58 S. C., 227; 57 S. C., 210; 63 S. C., 271; 20 Ency., 2 ed., 134, 144. Servant cannot recover for injury from risks assimed by him: 66 S. C., 208; 61 S. C., 478; 52 S. C., 443.</p> <p>contra, cite: The terms “safe and suitable” machinery need no qualifying zuords: 18 S. C., 273; 35 S. C., 406; 52 S. C., 444; 69 S. C., 108. Safe place master is required to furnish extends to unnecessary \and unreasonable risks knozm■ to and which should have been knozxm to master: 141 Mo.; 1; 20' Ency., 2 ed., 55, 120, 95; 48 S. C., 180; 32 S. C., 302; 18 S. C., 268; 25 S. C., 133. Master must disclose to servant latent defects knozxm and which he should knozv: Hale on Torts, 511; 66 Vt„ 331; 17 A. S. R., 440- 38 A. S. R., 294; 20 Ency., 2 ed., 95; 55 S. C., 488; 66 S. C., 486; 170 U. S., 671; Bailey’s. M. & S., Ill; Wood’s M. & S., sec. 339; Eabatt’s M. & S., sec. 125; 7 Ency., 2 ed., 417, 422. The charge that contributory negligence must be proved by clear, &c., evidence, did not refer to burden of proof, but only referred to the proof to the satisfaction of the jury: 30 S. C., 166; 25 S. C., 53; 19 S'. C., 128. Judge did not say, “mere lack of vigilance” cannot constitute contributory negligence, but correctly stated the lam governing such negligence: Hale on Torts, 495; 25 E. R. A., 298; 25 S. C., 60.</p>

<p>•Before Aldrich, J., Florence,</p> <p>Action by D. W. Alderman & Sons Co. against Thomas Wilson. From judgment for plaintiff, defendant appeals.</p> <p>cite: The instrument is a revocable license: 23 S. C'., 16; 1 Wash. Real Prop., 148; Clark on Con., 46, 50, 51; 4 Kent., 85; Bain. L. of M. & Min., 301; McAdam on Landlord and Tenant, 51; 54 S. C., 430; 56 Am. Dec., 204; 25 Am, Dec., 470; 17 Wal., 384; 4 Am, Dec., 257.</p> <p>cite: Right of plaintiff is an easement for a term of years: 1 L. R. A., 248; 19 L. R. A., 127; 3 S. C., 168. Consideration is sufficient: 40 S. C., 450; 33 S. C., 175; 29 A. & E. R. R. Cas,, 545. License cannot be revoked after consideration paid: 11 Rich., 624; 109 Ind, 586; 23 S. C, 16; 1 L. R. A, 487; 4 L. R. A, 276; 6 L. R. A, 159; 10 L. R. A, 484; 11 L. R. A, 134; 7 L. R. A, 152; 110 Ind, 490 ; 116 Ind, 257; 113 Ind, 233, 460; 23 L. R. A, 231; 52 L. R. A, 140.</p>

<p>1. Resulting Trust — Real Property. — Evidence of a deceased witness taken in a case in which the plaintiffs are practically the same as in this against a remote grantor of defendant, is competent on question of. resulting trust in land now in possession of defendant.</p> <p>3. Bar — Two Actions — Real Property. — An action by trustee to have a judicial declaration that land then in possession of the defendant to that action was held subject to the limitations of a trust deed, is not a bar to an action by the remainderman against defendant’s grantor for possession of the land commenced more than two years after dismissal of the former.</p> <p>3. Purchaser eor Value Without Notice — Quit Claim Deed. — The fact that land has been once conveyed by several quit claim deeds, and that two last grantors held under full warranty deeds, is not sufficient to prevent a purchaser who believed he was buying a good title from setting up the defense of purchaser for value without notice, under our statute (Code, 1902, 2367), which provides that a quit claim deed is a proper mode of conveying a fee simple title, especially where, as in this case, the facts appearing of record, if pursued, would not have disclosed the facts relied on to defeat such purchaser’s title.</p>

Before Gage, J., Lancaster, Action by Charlie W. Roach against Haile Gold Mining Co. From judgment for plaintiff, defendant appeals. cite: Plaintiff assumed the risk of riding on the car, and defendant is not liable: 20 Ency., 2 ed., 125; 55 S. C., 101; 170 U. S., 671; 66 S. C., 485. cites: Master must furnish safe and suitable appliances: 34 S. C., 211; 18 S. C., 262, 275; 52 S. C., 446; 32 S. C., 302; 63 S. C., 576; 61 S. C., 468.

<p>Damages — Loss and Profit — Common Carrier. — In action for damages for failure of common carrier to' deliver a rice huller, in absence of notice to the carrier of the use for which the machine was immediately intended, plaintiff cannot recover damages for loss in milling rice carried by the public to other mills, because of the delay in delivery, and the fact that the machine was shipped to a dealer in machinery at a station other than his place of business, does not tend to show notice to the carrier of the use for which machine was intended.</p>

Before Gary, J., Charleston, Rule to show cause by Molly Qualls against John Capers, in re James Hopkinson et al. against Amory Coffin et al. From order dismissing rule, petitioner appeals. cite: Petitioner and respondent are both pai'ties to the suit: Rorer on Jud. Sales, par. 148; 18 S. C., 501; 37 S. E. R., 889; 1 Bart. Chan. Pr., 170; 13 S-. C., 174. Court having jurisdiction of parties and subject matter could try the issues: Rorer on Jud.

<p>1. Survival op Action — Demurrer.—The objection that an action does not survive cannot be raised by oral demurrer.</p> <p>3. Ibid. — Heir at Law. — Under Code, 1903, 3859, an action for damages to land in erecting a telegraph line survives to the heir at law.</p> <p>3. Condemnation. — A Foreign Corporation not domesticated has no right to make entry on lands in this State under its condemnation statutes for purposes of erecting telegraph line.</p> <p>4. Res Judicata. — A Judgment sustaining a demurrer is a bar to a second action on the same facts, but when the complaint in the second action supplies the allegations that rendered the first demurrable, it is not res judicata.</p> <p>5. Charge intended as an illustration based on the allegations of the complaint is not a charge on the facts.</p> <p>6. Real Property — Cotenants.—A Permit to enter upon lands to which signer then had no title, but the title to which was after-wards 'by descent cast upon her and others, is not binding on the rights of her cotenants.</p> <p>7. Damages — Actual—Vindictive.—Under allegations and proof of a wilful tort, compensatory as well as punitive damages may be proved and recovered.</p> <p>8. Supreme Court — New Trial. — This Court has no power to grant a new trial because the verdict was unreasonable or excessive.</p> <p>9. Exceptions too general.</p> <p>10. This case distinguished from Leech v. R. R., 33 S. C., 178.</p> <p>11. Damages — Actual—Vindictive.—Where both actual and vindictive damages are alleged, actual damages may be proved and recovered, and the fact that there is no testimony showing punitive damages does not affect the right to recover actual damages.</p>

<p>Negotiable. — A Note containing a provision that if “it is collected through an attorney or by legal process of any kind, I promise to pay all costs and expenses, including ten per cent, of amount collected for attorneys’ fees,” is non-negotiable.</p> <p> Divided Court. </p>

Before Dantzéer, J., Charleston, Action by Augustus M. Flood against News and Courier Co. From order sustaining demurrer, plaintiff appeals. cite: It is libelous per se to publish a white man as a negroy 18 Fncy., 2 ed., 861, 866, 867, 906, 913; Cheves D, 194; Dudley, 303; 1 N. & McC., 184, 347; 4 McC., 317; 4 So. R., 71; 38 S. C, 533; Crim. Code, 293, 479, 480; Code, 1900, 2664, 0158, 1231; 1. Woods, 537; 3 Woods, 367; 119 Fed.

Before- DantzeER, J., Charleston, Action by Augustus M. Flood against Evening Post Publishing Co. From Circuit order sustaining demurrer, plaintiff ap-peals. (Same citations as in case of Wood against News and Courier Co.) cites: It is not libellous per se io apply to a white mam, the term “colored” or negro:” 1 McC., 52; 18 Ency., 2 ed., 916, 917, note; 1 McM., 16; 28 Am. R., 580; 29 Fed. R., 828; 1 N. & McC., 349; 28 N. E. R., 692; 17 N. Y., 493; 4 So. R., 71; 28 So-.

Before Watts, J., Sumter, Action by Susan M. Bramlett against Jane Mathis et al. From Circuit decree, all parties appeal. Mr. Jennings cites: As to discharging rents and proñts pro tanto by improvements: 26 S. C., 40, 297; 53 S. C., 350; 38 S. C., 554; 14 S, C., 292; 17 S. C., 45; 50 S. C., 337. As to guardian using money of zvard for improvement of ward’s property: 2 Strob. Eq., 40; 31 S'. C., 604; 7 Rich. Eq., 105; and for board, clothing, education, &c.: 2 McC.

Before Townsend, J., Action by Henry S. Rose against Florence Harness Co. From judgment for plaintiff, defendant appeals. cites: Landlord’s rent for advances must be recorded to give priority over other liens for advances: 21 S'. C., 51; 35 S. C., 187.

Petition in original jurisdiction by the Railroad Commissioners against Atlantic Coast Line Railroad Co. for mandamus to require the company toi obey their order.

<p>1. Evidence.- — In Homicide case, defense being self-defense, State may prove all the facts preceding and leading up to the fatal encounter.</p> <p>2. Ibid. — Exclamation.—Admission of exclamation of a bystander, “Run, A. is coming with his gun, and will shoot you,” accompanied by direct evidence that defendant actually raised his gun as if to shoot, if erroneous is harmless.</p> <p>3. Ibid. — General Reputation of deceased for violence may be shown, but not particular acts of violence.</p> <p>4. Ibid. — In homicide case, where defense is self-defense, it is competent to show that a third person before fatal encounter had informed deceased through his wife that defendant had killed his brother.</p> <p>5. Charge. — -A Judge does not violate the constitutional inhibition against charging on the facts by giving his reasons for rejecting or admitting evidence to which objection has been made.</p> <p>6. Evidence — Threats.—That deceased said a few days before he was killed that he had taken a pistol from one of defendant’s servants, that defendant had repeatedly sent for it, but that he did not intend he should have it, properly excluded as not a threat and not necessarily showing ill-will.</p> <p>7. Charge. — Remark by Judge during progress of case, “It seems to me we are losing'sight of the issue. We are trying the question whether the defendant maliciously killed the deceased. We are now shifted around, trying the dead man,” is not an expression of opinion on the facts or the merits of the case, not having been made in charging the jury.</p> <p>8. Murder. — Charge as to malice and murder in cases of deliberate killing sustained.</p> <p>9. Repey. — Evidence of son’s buying cartridges is competent in reply in trial of father for murder, where pistol fired immediately after fatal shot, and the son denied buying cartridges, and where he was with his father acting in sympathy with him during the fatal encounter.</p> <p>10. Charge.- — It is not error to refuse a request singling out the defendant and emphasizing the right of the jury to accept his statement in preference to that of other witnesses.</p> <p>11. Seef-Defense — Burden of Proof. — The absence of any other probable means of escape must be shown by defendant by preponderance of evidence as any other essential in the plea of self-defense.</p> <p>12. Charge — Streets.—In homicide case, where there is no question of right of participants to the use of the streets, it is not error for Judge to say that a request as to the right of the public to use the streets has no application to the case.</p>

Before Townsend, J., Spartanburg, Action by T. J. Burnett against Postal Telegraph Cable Co. From judgment for plaintiff, defendant appeals. cites: Defendant having entered by permission, action for trespass does not lie: 32 S. C., 429; 1 Add. on Torts, 18 Ency., 1182, 34; 33 S. C., 175; 58 S. C., 532. Jury must take law from Court: 16 S. C., 2; 68 S. C., 523.

<p>Before Townsend, J., Spartanburg,</p> <p>Action by Margaret Mason against Postal Telegraph Cable Co. Prom judgment for plaintiff, defendant appeals.</p> <p>cites: Parol evidence incompetent to contradict permit: Star. Pv., 648; 46 S. C., 372; 69 S. C., 93; 52 S. C., 133; 56 S. C., 558. One entering under permission is not trespasser: 32 S. C., 429; 1 Add. on Torts, sec. 447; 18 Pncy., 1132-34; 33 S. C., 175; 58 S. C., 145, 532; 62 S. C., 52; 21 S. C., 420. ' A person who can read is bound 'by paper signed: 9 S. C., 20; 69 S. C., 87; 53 S. C., 55; 46 S. C., 229; 2 Strob. Pq., 153; Bail Pep, 485.</p> <p>same citations as in Burnett case.</p> <p>cites: Paper procured by fraud may be contradicted: 38 S. C., 210; 66 S. C., 82. Defendant denied plaintiif’s right to compensation, entered without permission and was trespasser: 38 S. C., 308; 62 S. C., 56; 37 S. C., 387.</p>

Before Townsend, J., Spartanburg, Action by Lucinda Mason and Lizzie Mason against Postal Telegraph Cable Co. From judgment for plaintiff, defendant appeals. cites: New trial should be granted when jury disregard instructions of Court: 16 S. C., 14; 68 S. C., 523. If party is induced to make contract by fraud, he may repudiate it and return consideration: 56 S. C., 508.

Before Townsend, J., Darlington, spring term, 1903. A cl ion by John C. Lampley against Atlantic Coast Dine Railroad Co. From judgment for plaintiff, defendant appeals. cite: Error to allozo witness to say that embankment on the other side of the river throws zvater back upon this side: 59 S. C., 314; 36 S. C., 439. To recover under sec. 204.T, Code 1902, plaintiff must shozv negligence: 34 S. C., 62; Eng. on Inter, of Stat., secs. 271, 341.

<p>Eleven petitions in the original jurisdiction of this Court for writs of mandamus: (1) Annie E. Rice v. Frank W. Shealy, as Treasurer, G. A. Derrick, as Auditor, G. A. Shealy, as County Supervisor, and Geo. W. Reeder and John W. Fry, Commissioners of Lexington County; (2) Susan L. DesPortes v. Same; (3) Edwin W. Robertson v. Same; (4) J. Caldwell Robertson v. Same; (5) Edward Ehrlich v. Same; (6) Edward S. Joynes v. Same; (7) Edmund K. Palmer v. Same; (8) John R. Mimnaugh v. Same; (9) William K. Duffie v. Same; (10) J. Thornwell Muller v. Same; (11) Elizabeth A. Carroll v. Same.</p> <p>cite: These townships were validly incorporated and the bonds are valid: 30 S. C., 1; 21 S. C., 419; 20 Stat., 12; 49 S. C., 539 ; 50 S. C., 321; 30 S. C., 579, 587; 50 S.' C., 321; 33 S. C., 411. Judicial determination of result of vote in townships is conclusive: 24 How., 287; 99 U. S., 86, 684; 2 Black., 722; 105 U. S., 343. Interest having been paid for eleven years, the assent of majority of votes cannot now be disputed: 39 S. C., 45; 113 U. S., 227; 92 U. S., 484; 148 U. S., 591. These securities having been held valid by this Court, there can be no reversal as to bonds subsequently purchased: 1 Wall., 175; 101 U. S., 677; 109 U. S., 104. Law presumes a holder of bonds a purchaser for value before maturity: 105 U. S., 343; 27 S. C., 132; 28 S. C., 143; 32 S. C., 538; 2 Black., 722; 94 U. S., 278. These bonds are negotiable instruments: 13 Rose’s Notes, 683; 8 Rich., 470; 11 Rich., 157; 3 S. C., 410; 12 S. C., 394. Contract between railroad company and construction company do not affect these bonds: 44 S. C., 320; 113 U. S. 227. Mandamus is remedy: 30 S. C., 519; 35 S. C'., 213.</p> <p>cite: As to the validity of the bonds: 30 S. C., 1, 579, 587; 33 S. C., 410; 40 S. C., 26; 49 S. C., 535; 50 S. C., 521. As to the duty required of the defendants: 20 Stat., 12; Con. 1868, art. IX., secs. 4, 8; Con. 1895, art. X., secs. 3, 5; 62 S. C., 28; 49 S. C., 535; 4 S. C., 430; 35 S. C., 213, 245; 19 Ency., 2d, 725, 740; 18 S. C., 598. These bonds are negotiable: 1 Wall, 95; 21 How., 555; 96 U. S., 57; 2 S. C., 248; 12 S. C., 271; 8 S. C., 163. Holder is presumed to have acquired for value before due: 96 U. S., 314; 12 S. C., 272 ; 28 S. C., 143; 1 Bail., 355; 1 Strob., 299. Respondents must show notice of defense or mala ñdes: 28 S. C., 143; 8 S. C., 402; 96 U. S., 57; 12 S. C., 273. Contracts betzveen corporations having same directors are only voidable: 2 Cook, on Corp., 1267, 1319, 1575, 1577; 57 Fed. R., 375; 39 S. C., 45; 33 L. R. A., 788.</p> <p>cite: Attached coupons do not bear interest after maturity in hands of holder of bonds: 8 Fncy.,. 2 ed., 6; Dan. on Neg. Inst., 3d ed., sec. 1513; 26 L. R. A., 743. The legislature and not these defend ants should levy the tax to pay bonds: 19 Stat., 362; 50 S. C., 321; 20 Stat., 12; Con. 1868, art. IX., sec. 8; Gen. Stat., 1882, 616; Rev. Stat., 1893; 681; Code, 1902, 799. Bonds received by construction company of railroad company under the contract are without consideration, because contract is illegal: 25 Wis., 551; 30 Barb., 553; 11 Mich., 222; 3 Vis., 740; 38 S. C., 440; 60 S. C., 272, 532; Rev. Stat., 1893, 1496.</p>

<p>Damages. — A County is liable for damages resulting to a traveler from colliding with a heavily laden wagon used in repairing a highway, left standing in the public highway for several weeks unlighted.</p>

<p>Before Townsend, J., Greenville,</p> <p>Action by W. R. Handy against Greenville County. Prom judgment overruling demurrer, defendant appeals.</p>

Before Watts, J., Richland, Action by Louisa D. Logan, Edward Ehrlich and T. H. Meighan, executors of Charles Logan, against Peter Cassidy et al. From Circuit decree, defendants, Charles Logan and Jennie Logan, appeal. cite: Estate in remainder after life estate of zvidozv is a bequest to before-mentioned legatees: 1 Hill Ch., 357; 1 DeS. Eq., 237. Bequests are excluded from residuary clause: Hill Ch., 357; 4 Rich. Eq., 25; 189 Ill., 211; 7 H. L, Cas., 697.

<p>Before Klugh, J., Orangeburg,</p> <p>Action by Lawrence K. Sturkie against Southern Railway. From judgment for plaintiff, defendant appeals.</p>

Before Klugh, J., Orangeburg, Action by Wesner and White Mfg. Co. against Atlantic Coast Tine Railroad. From order refusing motion to' strike out of complaint certain allegations, defendant appeals. cite; 50> S'. C., 54; 66 S. C., 131; 45 S. C., 27.

Before Townsend, J., Anderson, Action by Jane W. Adger against Blue Ridge Railway Company. From- judgment for plaintiff, defendant appeals on the following exceptions: “I. Error of the presiding Judge in refusing the defendant’s second request to- charge, which was as follows: ‘The relation of passenger and carrier must exist before the plaintiff can hold the defendant to the strict liability of a carrier.

Before Gary, J., Cherokee, Action by Bob Erwin in magistrate court against Southern Railway. From Circuit judgment reversing magistrate judgment, defendant appeals. Mr. Welch cites: 14 Ency., 2 ed., 805; 1 S. C., 158; 50 Minn., 405; 61 Vt., 295; 2 Shinn on Attachment and Garnishment, sec. 626; 68 Fed. R., 685; 36 Am. St. R., 167; 48 Id., 626; 30 Id., 889; 32 Id., 316; 72 Eed. R., 32; 40 Am. R., 581; 34 Am. St. R., 74; 47 Am.

Before Mr. Justice Gary, Action by Western Union Telegraph Co. against Town of Winnsboro.

<p>Trespasser — Dandeord and Tenant — Magistrate. — Mandamus should not issue to compel a magistrate to issue his warrant of ejectment against an alleged trespasser at expiration of five days after service of notice to quit, under Code of 1902, 2972, when the party in possession appears within the five days, and informs magistrate that he claims the title to the premises, and asks for a hearing of the issues, but offers no bond, there having been no prima facie showing by plaintiff that he was the owner of the premises, and that defendant was a trespasser.</p>

Before J. E. McDonald, special Judge, Barnwell, Action by C. T. Johnson against Southern Railway Co. From order of nonsuit, plaintiff appeals. Messrs. Davis & Best cite: As to liability for concentrating surface water: 62 S. C., 22. cites: Plaintiff’s remedy was under condemnation statutes: 38 S. C., 308; 59 S. C., 376; 62 S. C., 52.

<p>Before Gage, J., Lancaster,</p> <p>Action by Joseph F. Gregory, Clerk of Court, as administrator of estate of Wylie R. Duren, against Mary E. Perry, H. J. Beckham and Jane Gooch, heirs of Jas. R. Massey and H. J. Beckham, administrator. From Circuit decree, defendants appeal.</p> <p>cites: Judgment was barred in twenty years: Code of Proc., 94, 309, 3.10, 311, 111; 40 S. C., 259; 52 S. C., 197; 69 S. C., 39. Order of revival does not give a new starting point to statute: Code of Proc., 94, 111, 309, 310, 311, 131; 43 S. C., 246; 32 S. C., 228. As to effect of written acknowledgment of amount due: 51 S. C., 327; 38 S. C., 306; 2 Bail., 278; 47 S. C., 430; 47 W. Va., 838; 25 S. C., 228. Who must make payment to stop statute: 33 S. C., 505; 28 S. C., 285. The interest should not be compounded: 1 Strob., 115, 426; 11 Ency., 1 ed., 407. Decree should have been for costs and expenses: Code, 323; 27 S. C., 15; 11 Cyc., 104.</p> <p>make no additional citations, but confine their argument mostly to an analysis of the cases cited by respondent.</p> <p>cite: As to effect of revival: 32 S. C., 139, 378; 45 S. .C., 339; 69 S. C., 38; 43 S. C., 348, 246; 40 S. C., 270; 21 S. C., 600; 51 S. C., 141; 38 S. C., 306; 43 S. C., 436; 36 S. C., 578; 2 Rich., 560; 21 S. C., 70.</p>

Before Watts, J., Georgetown, Action by George Easton against Sarah E. Woodbury and William R. Woodbury. From Circuit decree, defendants appeal. cites: Legal tender discharges mortgage: 26 S. C., 337. Mrs. Wood-bury was only surety: 1 Jones on Mtg., sec. 114; 1 Brandt. Sur. and Ag., sec. 34; 16 S. C., 432. Surety is not required to keep tender good: 2 Jones on Mtg., sec. 893. cite: Tender must be continuous: 2 Green. Ev., sec. 600; 17 S. C., 334; 21 Ency. P. & P., 563.

Before F. B. Gary, special Judge, Lexington, Action by H. B. and W. H. Senterfeit et al. against R. B. and Amanda Shealy et al. From Circuit judgment, defendants appeal. The deed referred to in exceptions 1 and 2, from which the description was read, was in evidence.

<p>Statutory Penalty — Common Carrier — Freight.-—Filing a claim for failure to deliver, or for damages, to freight with another officer of the carrier and by him, in discharge of his official duties, forwarded to the agent at destination of freight, ninety days before action brought, is not such filing with- the agent at point of destination as is requisite under 24 Stat., 81, to entitle consignee to $50 penalty for failure to adjust or pay the claim in ninety days after filing claim with agent at freight destination.</p>

Before Watts, J., Action by Mary M.' Reeves, Tyrena J. Scott, Ellen J. Ramsey, Lucinda M. Pace, Jno. H. Gardner, and Dora A. Torrence against Geo. R. Cook. Erom Circuit decree, plaintiffs appeal.

Before Aldrich, J., April, 190é, and DantzlEr, J.. July, 19 0L Action by Annie Lee Lancaster and Minnie Lee Faust against Richard F. Lee, Sr., Brice Lee and Richard F. Lee, Jr. From judgment on verdict on issue of title and from Circuit orders refusing to hear equitable issues, plaintiffs appeal. cite: When secondary evidence of contracts of a lost deed is admissible: 1 Bay, 255; 11 S. C., 429; 35 L. R. A., 321; 37 S. C., 102; 43 S. C., 199; 49 S. C., 242 ; 33 S. C., 281;…

Before DanTzeEr, J., Bamberg, Action by Theodore Ruberg against Simon Brown and Pena Brown. Prom- Circuit decree defendants appeal.

Before George E. Prince, special Judge, Barnwell, Action by E. E. Bonner against Western Union Telegraph Co. Erom judgment in favor of plaintiff, defendant appeals. The sixth exception is as follows: “Sixth.

<p>Before Purdy, J., Dee,</p> <p>Petition for mandamus by Wm. H. Seale, James T. McNeill and Frank E. Thomas, as County Board of Commissioners for Sumter County, against J. Oliver Durant, Euther A. Moore and Wm. A. Gardner, as County Board of Commissioners for Lee County, and John M. Smith, clerk. From order of Circuit Court requiring issuance of writ, respondents appeal.</p> <p>cite: Mandamus cannot issue to control judgment -or discretion of public officer: 13 S. C., 266. Management of county funds is not subject to control of courts: 7 S. C., 86; 14 S. C., 408; 24 S. C., 546. Officer must have ability to comply and it-must be his clear duty: 1 S. C., 23. Preamble is no part of the act: 23 Ency., 1 ed., 329; 2 Bail., 430. Claim must first be presented to commissioners of Lee Co.: 24 S. C., 549.</p> <p>cites : That there is no t money enough to pay claims of all old counties, will not avail appellants: 26 S. C., 192; 13 S. C., 262; 7 S. C., 375. Principles governing in mandamus: 30 S. C., 581; High, sec. 10. This claim need not be presented to the commissioners of Lee: 24 S. C., 543; 13 S. C., 264; 19 Ency., 782. As to ministerial duty: 19 Ency., 2 ed., 740; 15 S. C., 322; 34 S. C., 194.</p>

<p>1. Ouster — Adverse Possession — Tenant in Common. — Statute oe Limitations does not run in support of a title set up by a tenant in common against his cotenants until actual ouster and ten years adverse possession after ouster gives claimant good title.</p> <p>2. Tender — Payment—Judgment.-—Sake of land under a judgment by probate court for sale of land in aid of assets, can not be impeached by proof of payment or tender of part of the indebtedness of the estate, and where no notice of tender was given at the sale, purchaser takes title unaffected by the tender.</p>

<p>1. Real Property — Verdict.—If an action is brought for trespass on land and the verdict is for plaintiff, “for the possession of the land and for $1 damages,” the portion of the verdict as to the 'possession of the land may be treated as surplusage, as the verdict for damages is decisive of the title.</p> <p>2. Ibid. — PeEadings.—Allegations in a complaint of facts which make out a continued subjection of the land to the will or dominion of the defendant, make out a cause of action for possession of the land.</p> <p>3. Ibid. — Grant.—In an action for possession of land plaintiff must show title against the world or from a common source, and if he claim from a grant by the State, defendant may show an older grant, without connecting himself with it, which renders the junior grant null and void.</p> <p>4. Charging that if State granted land for which it had issued an older grant, it would be presumed to have reacquired title, is not cured by charging that if it had no title when it made the junior grant, plaintiff must establish title by adverse possession.</p> <p>5. New Triae will not be granted for inadvertence of judge in seeming to charge that ten years’ possession presumed a grant, when he had just charged it required twenty years, as it was duty of appellant to call attention to the inadvertence.</p> <p>6. Reae Property — Adverse Possession — If plaintiff shows legal title to land, he is presumed to have been in possession for ten years and to recover against such title, it is necessary to rebut this presumption by proof of adverse possession. '</p> <p>7. Ibid. — Ibid.—Party holding land by adverse possession for ten years thereby acquires a good title, which he may convey and his purchaser may set up same against the legal title without himself having held for ten years. • «</p> <p>8. Ibid. — Ibid.—Actual notice to holder of legal title of adverse possession is shown by proof of notorious adverse possession.</p> <p>9. Ibid. — Ibid.—A wiee of a foreign State executed in presence of two witnesses will not pass title to land in this State, but may be available as color of title.</p> <p>10. Ibid. — Ibid.—Estoppee.—When a defendant requests Judge to charge what was necessary to give plaintiff title by adverse possession, he is estopped from insisting that plaintiff, having set out in his complaint his claim of title, can not rely on adverse possession.</p>

Before Gary, J., Fairfield, Motion to set aside judgment by certain heirs of defendant, Bryant, in Tinnie R. Team against Dick Bryant et al. The Circuit decree on the motion is as follows: “The plaintiff above named obtained judgment by default for foreclosure against the defendant, Dick Bryant, in June, 1902. The mortgaged premises were sold under said judgment in December, 1902, and were purchased by the plaintiff herein. Subsequently Dick Bryant died.

<p>Baggage — Damages—Common Carrie». — In case of loss of or delay to baggage by common carrier, the measure of damages is any reasonable loss and expense which has been occasioned by the delay, together with the value of the goods at the time and place they should have been delivered, less their value according to condition at time and place of delivery or tender.</p>

<p>Before Gage, J., York,</p> <p>Action by Isaiah Gadsden, minor, by guardian, against Catawba Water Power Co. From- Circuit order, plaintiff appeals, on following exceptions, alleging error:</p> <p>“I. In holding that the said matters sought to be stricken out as irrelevant and so ordered, are irrelevant and material; whereas, they are plainly issuable, material, and affect the amount demandable as damages.</p> <p>“II. In not holding that there was an absence of proof that the defendant was aggrieved or injured by the allegation claimed to be irrelevant, when such injury could not be inferred from the complaint, and in the absence of any affidavit or evidence whatever of such injury otherwise shown.</p> <p>“III. In not holding that inasmuch as allegations for recovery of damages arising from wilfulness and wantonness were in said complaint, that'such so-called irrelevant matter was clearly admissible as bearing on the quantity of damages to be recovered and the ability of the defendant to pay damages, and, therefore, relevant and material to be stated in the complaint.</p> <p>“IV. In not holding that inasmuch as the notice of the motion did not allege that the defendant was aggrieved by such matter, and inasmuch as there was no- other paper served making any such claim, the Judge had no- authority, under section 181 of the Code, to grant such order; and the Judge was without authority to- proceed further in the hearing of such motion.</p> <p>“V. In holding that the allegations of the complaint show injury to the defendant, when such allegations do- not charge the defendant was aggrieved at all, but show a good issuable cause of action against the defendant.</p> <p>“VI. In not holding that he was bound by the act of the General Assembly prohibiting the splitting and dividing of causes of action in case of a corporation, i. e., act of 1898, embodied in Code of Procedure as section 186a; and in not holding that the Court was without power to tell a suitor what he shall or shall not insert in his complaint, where such stated complaint contains issuable, material and relevant allegations in a cause of action and has violated no rule of practice; and in not holding that such suitor had a right to go to a jury on his whole complaint and the issues made by the pleading-s without the elimination of an element showing liability to exemplary damages.</p> <p>“VII. In giving the defendant time to- answer the complaint after five days from- the time mentioned in his order, when there was no motion to extend the time for answering, and when the time to answer had not expired at the time of motion noticed, order signed or filed.</p> <p>“VIII. In practically saying by his order that the defendant need not serve his answer within the time required by section 164 of the Code, when an extension was not asked.</p> <p>“IX. That such order directly nullified the practice prohibiting the Courts from compelling a suitor to strike out a part of his complaint demanding exemplary damages.</p> <p>“X. That his Honor erred in requiring the plaintiff to serve an amended complaint within five days after the filing of his order, when the complaint already served contained valid and issuable allegations demanding relief.”</p> <p>The defendant appeals on the following grounds:</p> <p>“I. Because his Honor erred in holding that the allegation in the fourth paragraph of the complaint herein, to the effect ‘that injuries were frequently attending employees in its service,’ was not irrelevant.</p> <p>“II. Because his Honor erred in holding that that complaint charged wilful action by defendant, and plaintiff had the right to alleg'e and prove that defendant had notice of frequent injuries to other employees and was bound to be on the lookout for accidents.</p> <p>“HI. Because his Honor erred in not holding that the following allegation in paragraph four of the complaint herein was irrelevant, to wit: ‘although injuries were frequently attending employees in its service,’ and in failing to order that the'same be stricken from the complaint.”</p> <p>ikfr. Buchanan cites: Defendant should not be penmtted to say an allegation is both relevant and irrelevant: 8 Rich. E., 117; 2 Black on Judg., sec. 632; 4 How. Pr., 313, 432. Minor entering on a new and dangerous calling should be instructed: 33 Am. St. R., 908; 25 Id., 436, note; 16 Id., 775. This order nullifies the joinder act of i8p8: 68 S. C., 201; 66 S. C., 12; 64 S. C., 491; 65 S. C., 222, 122; 55 S. C., 90. It is proper to plead facts in aggravation of damages: 2 Waits Pr., 479; Voorhees Code, 320; Moak’s Van Sant. Code Plds., 244; 9 How. Pr., 37; 4 How. Pr., 79; Steven Plds., 371; 1 Chitty’s Plds., 411; 3 Rob. Pr., 622; Sedg. El. of Dam., 50, 53. Adverse party must be aggrieved: 2 Waits P., 483, 484; Waits Code, 293; 50 S. C., 54; 66 S. C., 12; 68 S'. C., 201; 18 S. C., 479. Plaintiff cannot be required to say what acts are reckless, what wanton, &c.: 66 S. C., 12; 68 S. C., 201; 65 S. C., 122, 222.</p> <p>Mr. Brice cites: What is an irrelevant allegation•? Pom. Rem., 2 ed., sec. 557; 2 Waits Pr., 480; 18 S. C., 473; 60 S. C., 381; 50 S. C., 54. This is not of that class of cases where movant must show he zvould be aggrieved: 2 Waits Pr., 482, 483; 21 Ency. P. & P., 259, et seq.</p>

<p>1. Mortgages — Purchaser eor Value Without Notice. — A guardian has authority to execute a discharge and satisfaction of a mortgage to him as such, and the release in this case, “the within mortgage is hereby released and discharged and clerk of court is authorized to satisfy same of record,” and indorsed bn the record of the mortgage, is sufficient to release the lien of the mortgage in favor of subsequent mortgagee as against w„ards, although the mortgage debt had not in fact been paid, without evidence of fraud or collusion, or notice that mortgage debt had not been paid, and there is nothing in the form of the.release that would put such mortgagee on inquiry as to whether the mortgage debt had been actually paid.</p> <p>2. Ibid. — Ibid.—Ibid.—Where a guardian takes a conveyance to himself as an individual of land over which he holds a mortgage as guardian, leaving open the guardian mortgage to protect against subsequent encumbrances, and sells a portion of the land, satisfies the guardian mortgage as to such part, applies most of the purchase money to the guardian mortgage debt and a small part to the compromise of a junior mortgage, the purchaser.takes the land ' free from the lien of the guardian mortgage as against the wards.</p>

<p>Bastard — Parent and Child — Children—Lord Campbell's Act— Negligence. — A mother cannot recover as sole beneficiary under Lord Campbell’s Act for the wrongful death of her illegitimate son.</p>

<p>Before Watts, J., Florence,</p> <p>Action by Ella C. Dargan against Equitable Life Assurance Society of the United States. From judgment for plaintiff, defendant appeals.'</p> <p>cites: 54 S. C., 371; 58 S. C., 201; 52 S. C., 224; 51 S. C., 186; 63 S. C., 197.</p> <p>cite: Aug. on Life Ins., sec. 420; 1 Beach on Ins., sec. 500, 504; 16 Wall., 203; 102 U. S., 108; 96 U. 'S., 234; 95 U. S., 843; 58 S. C., 201; 63 S. C., 192.</p>

Before Aldrich, J., Aiken, Petition to' enforce mechanic's lien by Builder’s Supply Co-, against North Augusta Electric and Improvement Co. and Mrs. M. M. R. Boatwright. From Circuit decree, the Electric and Improvement Company appeals. cites: Contractor was not agent of defendcunt: 19 S. C., 1.

<p>1. Pleadings — Telegraph Co. — In action for failure to deliver a telegram announcing a death and burial, it is not necessary to allege that plaintiff would have attended the funeral, if message had been delivered in time.</p> <p>2. Nonsuit — Ibid.—Contract.—That a telegram was delivered to the company and by it transmitted to the office of destination is some evidence of a contract to transmit and deliver.</p> <p>3. Ibid. — Ibid.—Mental Suffering.- — An action for damages for mental suffering for failure to deliver a telegram in South Carolina sent from Virginia is ex delicto, and may be maintained in this State, although the common law doctrine as to damages for mental suffering obtains in Virginia.</p> <p>4. Telegraph Company — Office Hours. — A telegraph company is under no duty to deliver a telegram outside of reasonable office hours received after office hours by one not the operator and not connected in any way with the company, who chanced to be in the office after office hours, received the message, committed it to writing and left same on operator’s table; but a delivery of such telegram immediately after office hours on next day is due diligence. <</p>

<p>Before Gary, J., Fairfield,</p> <p>cite; 24 Stat., 87; 10 S. C., 224; 18 S. C., 474; 26 S. C., 337; 31 S. C., 1; 34 S. C., 468.</p> <p>cites: Code 1902, 2449; 2 Jones on Mtgs., sec. 1207; 1 Hill, on Mtgs., sec. 3; 18 S. C., 473; 64 S. C., 437; Code of Proc., Ill; 51 S- C., 327; 31 S. C., 1; 32 S. C., 139, 382; 33 S. C., 359.</p>

Before Townsend, J., Anderson, Action by James T. Roberts against J. T. C. Jones in magistrate court. From judgment on circuit for plaintiff on appeal from magistrate, defendant appeals.

Before Ptjkdy, J., Georgetown, Proceeding to eject trespassers in magistrate court by Emma Cotton, Nellie Williams and Mary Franklin against Irwin Johnson, Liza Johnson, Charlie Crawford and Mary Crawford. From Circuit order sustaining magistrate judgment, defendants appeal. cites : Order of Judge Watts required magistrate to- dismiss the proceeding: Code Proc., 78, 273; 2 Bow. Law Die., 611; 3 Black Com., 330; 10 S. C., 301; 24 S. C., 507.

<p>. 1. Practice — Rule—Parties.—Where the Court has determined that one is a necessary party to an action of foreclosure, there is no occasion to issue a rule to show cause with supporting affidavit to bring him in, but the service of the amended summons and complaint is sufficient.</p> <p>2. Jurisdiction — Mortgages—Non-resident—Attachment—Lis Pen-dens. — The Court acquires jurisdiction of the subject matter in foreclosure of mortgage on land within its jurisdiction by filing of lis pendens and service of non-resident mortgagor by publication of summons without attachment of the land, judgment in such action may be vacated on ex parte motion, summons and complaint may be amended by adding a new party in possession of the land, and action continued against such party alone, provided no personal judgment is sought against mortgagor.</p> <p>3. Supplemental Pleadings — Waiver — Jurisdiction. — If supplemental complaint be necessary in foreclosure where mortgagor conveyed premises before suit, mortgagee having no notice of conveyance until suit commenced, service of amended summons and complaint by leave of the Court making purchaser a party may be treated as a supplemental complaint by leave of the Court. And where defendant so served makes a general appearance, he waives the right to insist that Court has no jurisdiction of his person.</p> <p>4. Attorney's Fee. — The Court may decide the amount of fee for an attorney foreclosing a mortgage from the record in the case.</p> <p>5. Mortgages. — The Rule oe Caveat Emptor does, not apply to foreclosure sales, and the bid of a purchaser at a foreclosure sale, afterward vacated, should not be credited on the mortgage debt.</p>

Before Watts, J., Florence, Action by Eliza Uzzell et al. against J no. R. and Maggie Horn. From- judgment for plaintiffs, defendants appeal. cite: Error to order case to trial pending appeal from order overruling demurrer: 15 S. C., 10; Code of Proc., 356; Elliott v. Pollitser, 24 S. C.; Jordan v. Wilson, 70' S. C. Error to •admit record of deed: 22 S. C., 365. No evidence of title in plaintiff: 56 S- C., 263.

Before Watts, J., Richland, Petition by Ella Bugg Jones et al. in proceeding byM. R. Cooper, secretary of State, to escheat property of Permelia Bugg, to set aside judgment and permit them to file exceptions to master’s report. From order refusing petition, petitioners appeal. cites: Motion in case is proper remedy: 34 S. C., 459 ; 17 Ency., 2 ed., 825; 6 Rich. Li, 487; 22 S. C., 257; 50 S. C., 491; 1 Black on Judg., 265.

Before Watts, J., Richland, July term, 1904. Action by E. L. Richardson against the Atlantic Coast Line Railroad. From judgment for plaintiff, defendant appeals. cite: Charge not on issue in case is not reversible error: 54 S. C., 90; 55 S, C., 568; 45 S. C., 146; 51 S. C„ 469; 44 S. C., 546. Pttnitive damages are allowed for invasion of private right: 69 S. C., 110, 160; 35 S. C., 493.

<p>Befor Gary, J., Richland,</p> <p>Action by H. E. Brookshire against Farmers Alliance Exchange of South Carolina, Limited, et al. From order of reference calling in creditors, &c., defendant corporation appeals.</p>

Before DanTzixr, J., Charleston, Action by Ann and Jno. F. Riley against Charleston Union Station Co. The following is the Circuit decree: “The defendant, Charleston Union Station Co., was incorporated by a special act of the General Assembly of this State, approved February 20th, 1902 (vol. 23, Statutes at Large, pp. 1168-1171). “By section 3 of that act, it is vested, among other powers, with the power ‘to acquire by purchase, lease or assignment of lease, such real estate…

<p>Before Dantzujr, J., Pickens,</p> <p>Action by R. E. Bowen against Elias Day et al. From Circuit decree, Elias Day appeals.</p> <p>cite. Married woman could not in i8p3 secure or guarantee the payment of her husband’s debts: 20 Enc., 897; 27 S. C., 525; 30 S. C., 159; 31 S. C., 420.</p> <p>cites: Deed of married woman to pay husband’s debts is valid: 29 S- C., 116; 52 S. C., 513. Husband is estopped from assailing the transaction: 33 S. C., 206; 35 S. C., 516. Evidence required to zvarant finding that deed zt»as intended as a mortgage: 31 S. C., 276; 20 Ency., 938; 52 S. C., 54; 54 S. C., 184.</p>

<p>Telegraph Company — Regulations—Limitation oe Actions — Public Policy — Negligence—Mental Anguish. — The stipulation of a telegraph company printed on its form for messages requiring claims for damages or statutory penalties to be presented to the company within sixty days from date of filing message, is'a reasonable regulation; is not contrary to law or public policy; does not operate to relieve the company from negligence; does not contravene the statute of limitations, and is binding on the addressee of a message sent on a form containing such stipulation, and delivered to addressee on a form containing a similar stipulation, in suit ex delicto for damages for mental anguish under mental anguish statute.</p>

<p>1. Reference — Master—Exceptions.—A second report filed by a referee in an accounting on^a suplemental matter, not in dispute, is not merged in the first so as to permit filing exceptions to the first within ten days after notice of filing of the second report.</p> <p>2. Ibie. — Ibid.'—Ibid.—Attorneys—RueE C. C. 14. — Marking case “heard” on calendar by Judge, is not an agreement in writing not to require exceptions to referee’s report to be filed within ten days. Nor a memorandum of such agreement noted by Judge with consent of attorneys in open court under Rule 14.</p> <p>3. Ibid. — Ibid.—Ibid.—Discretion.—A Circuit Judge has the power under Code of Proc., 195, in his discretion to permit filing exceptions to referee’s report after expiration of ten days from notice of filing.</p>

<p>Before Gage, J-, Fairfield,</p> <p>Action by Wm. H. Coleman et al. against Martin Coleman et al. From judgment for plaintiffs, they appeal.</p> <p>cite: Where parties claim from common source, the question is who has better title: 1 Strob., 1; 22 S. C., 133; 24 S. C., 385; McM. Eq., 157, 345; 26 S'. C., 608; 11 S. C., 346. There can be no adverse possession against minors: 61 S. C., 276; 1 Hill Ch., 376; 2 Hill Ch.', 512; 3 S. C., 254; 48 S. C., 28; 40 S. C., 179 ; 2 S. C., 20. Partition of Dawkins’ estate is presumed: Harp., 4; 2 Rich. Eq., 99; McM. Eq., 475; 13 Rich. Eq., 366.</p> <p>cites: Plaintiff must connect himself zmth common source: 54 S. C., 398. Defendants are not estopped from showing there is an outstanding title paramount to the common source: 10' Ency., 2 ed., 491; 11 Ency., 2 ed., 440; 47 Am. St. R., 74; 7 Wheat, 547; 39 Am. Dec., 669; 79 Am. Dec., 191; 43 Am. Dec., 553; 109 U. S., 616; 139 E. S., 682; 1 Strob., 2; 2 Hill, 439; 5 Rich, D, 541; 22 S. C., 81, 137, 451; 25 S. C., 458; 53 S. C., 221; 62 S. C., 563. Continuous adverse possession for tzmnty years presumes a grant: 2 Mill, 420'; 2 Rich., 22; 7 Rich., 355; 3 Strob., 500; 40 S. C., 168; 48 S. C.; 490; 63 S. C., 159. Presiumption is on same ground as the grant: 16' S. C., 141; 59 S. C., 448; 63 S. C., 189; 48 S. C., 491.</p>

Before Gage, J., Cherokee, Action by Merchants and Planters Bank against Blacks-burg Spinning and Knitting Mill, J. F. Whisonant, Alonzo Tripp, R. E. Porter, T. E. Black, G. M. Cline and Jno. F. Jones. From order overruling demurrer, defendants, Whisonant, Porter, Cline and Jones, appeal. No arguments furnished Reporter. The opinion in this case was filed April 8, 1905, but upon petition to correct error, remittitur was held up until

Before Townsend, J., Spartanburg. Action by E. J. Zimmerman against American Telephone and Telegraph Co. From, judgment for plaintiff, defendant appeals. cites: If grant is free from ambiguity, parol evidence as to contract is error: 69 S. C., 96; 24 S. C., 128; 117 Ga., 1001; Tompkins v. R. R. Co., 21 S. C. There was no allegation of parol agreement and evidence should not have been admitted: 19 S. C., 419 ; 70 S. C., 8. cite: Parol testimony is competent to show an…

Before Leroy F. Youmans, special Judg’e, Greenwood. Action by Rosa Latour and her husband against Southern Railway. From judgment for defendant, plaintiffs appeal. Mr. Grier cites: Conversation between agent and purchaser of ticket at time of purchase admissible as to contract of carriage: 66 Fed. R., 711; 143 U. S., 60.

<p>Before Gary, J., Richland.</p> <p>Action by State of South Carolina against Virginia-Carolina Chemical Co., Imperial Fertilizer Co., Standard Fertilizer Mfg. Co., Chicora Fertilizer Co., Berkeley Chemical Co., Greenville Fertilizer Co., Columbia Phosphate Co., Carolina Sulphuric Acid Manufacturing Co., Blacksburg, on the following complaint:</p> <p>“The plaintiff, by G. Duncan Bellinger, Esq., its duly qualified attorney general, complaining of the defendants above named, alleges:</p> <p>“1st. That on the 13th day of February, A. D. 1900, the General Assembly of South Carolina adopted the following joint resolution: ‘Section 1. Be it enacted by the General Assembly of the State of. South Carolina, that the Attorney General of the State of South Carolina be, and he is hereby, instructed and required to forthwith institute an investigation to determine by what authority the Virginia-Carolina Chemical Company is doing business in this State, whether said company and all other foreign corporations have complied with the laws of this State, regulating foreign corporations, and whether said company, or any person or corporation who may be engaged in any business within this State, has violated or is violating the provisions of the laws of this State prohibiting trusts and combinations, and that he institute such proceedings, civil or criminal, as may be necessary to prevent and punish the violations of such laws 'against trusts and combinations.’</p> <p>“2d. That the Virginia-Carolina Chemical Company is a corporation created under and by virtue of the laws of the State of New Jersey, and by its certificate of incorporation, dated 12th day of September, 1895, the purpose and object of said corporation as set forth in said charter are as follows: ‘The objects for which the company is formed are to .carry on the business of buying, manufacturing and selling chemicals, paints, varnishes, drugs, fertilizers and all materials or articles used or capable of use in the manufacture, preservation, packing and transportation of each, any and all of said products, and of purchasing, leasing' or otherwise acquiring and using, operating, caring for and disposing of any such business or businesses, now established or hereafter established, and the property and good will connected therewith, and also- any mines, manufactories, plants, machinery, appliances, tools, supplies,- materials, patents, trade marks, copyrights, brands, formulas and any other real or personal property, rights and privileges of any nature whatsoever, suitable, convenient or necessary for any of the purposes aforesaid, or hereinafter stated, or which can lawfully be used in connection therewith, and of establishing agencies and warehouses for the storage, sale and distribution of the company’s products and similar products, of other manufacturers and dealers, and of transporting or causing the transportation of such products as articles of commerce, and the doing of any other similar or different business and things incidental to, or which may lawfully and conveniently be done in conjunction with any of the matters aforesaid.</p> <p>“ ‘The portion of the business of said company which is to be carried on out of this State, and in the States and countries above mentioned, is to carry on the business of buying, manufacturing and selling chemicals, paints, varnishes, drugs, fertilizers and all materials or articles used, or capable of use, in the manufacture, preservation, packing and transportation of each, any and all of said products, and of purchasing, leasing or otherwise acquiring and using, operating, caring for and disposing of, any such business or businesses, now established or hereafter established, and the property and good will connected therewith, and also' any mines, manufactories, plants, machinery, appliances, tools, supplies, materials, patents, trade marks, copyrights, brands, formulas and any other real or personal property, rights and privileges of any nature whatsoever, suitable, convenient' or necessary for any of the purposes aforesaid, or hereinafter stated, or which can lawfully be used in connection therewith, and of establishing agencies and warehouses for the storage, sale and distribution of the company’s products and similar products of other manufacturers and dealers, and of transporting, or causing the transoprtation of such products as articles of commerce, and the doing of any other similar or different business and things incidental to-, or which may lawfully and conveniently be done in connection with any of the matters aforesaid, to the extent that all the above mentioned matters must necessarily, or can conveniently or advantageously to the company, be transacted out of the State of New Jersey.’</p> <p>“That the capital stock of said corporation, as appears by said certificate, is $6,500,000, divided into 65,000 shares, of the,par value of $100 .each, of which said stock $4,000,000 was general or common stock, and $2,500,000 was preferred stock.</p> <p>“That it appears by a certificate of increase of capital stock, dated 21st day of July, A. D. 1898, and filed in the secretary of State’s office of New Jersey, that the common stock of said corporation was increased to- $6,000,000. and the preferred stock to $6,000,000, making the total amount of capital stock $12,000,000.</p> <p>“That it appears by a certificate of increase of capital stock, dated 20th day of July, A. D. 1899, and filed in the secretary-of State’s office of New Jersey, the common stock of,said corporation was increased to the amount of $12,000,000, and the amount of preferred stock to¡ $12,000,000, making the total capital stock of said corporation $24,000,000, and plaintiff is informed and believes the capital stock has since been increased to $50,000,000.</p> <p>“That on the 22d day of January, 1900’, the charter of said company and amendments thereof was filed in the office of the secretary of State of South Carolina, and it received authority to do’ business in this State under and in accordance with sections 1465-1471, inclusive, of the Revised Statutes of South Carolina, and has since been doing business and acquiring property in this State, and continues to do so, and owns property and does business in the county of Richland, as well as in nearly all of the counties of this State.</p> <p>“3d. That the Imperial Fertilizer Company is a corporation created under the laws of the State of South Carolina, and incorporated to manufacture and sell commercial fertilizers.</p> <p>“4th. That the Standard Fertilizer Manufacturing Company is a corporation created under the laws of the State of South Carolina, and incorporated to manufacture and sell commercial fertilizers.</p> <p>“5th. That the Chicora Fertilizer Company is a corporation created under the laws of the State of South Carolina, and incorporated to manufacture and sell commercial fertilizers.</p> <p>“6th. That the Berkeley Chemical Company is a corporation created under the laws of the State of South Carolina, and incorporated to manufacture and sell commercial fertilizers.</p> <p>“7th. That the Greenville Fertilizer Company is a corporation created under the laws of the State of South Carolina, and incorporated to manufacture and sell commercial fertilizers.</p> <p>“8th. That the Carolina Sulphuric Acid Manufacturing Company, Blacksburg, Cherokee County, is a corporation created under the laws of the State of South Carolina, and incorporated to manufacture sulphuric acid essentially used in the manufacture of commercial fertilizers.</p> <p>“9th. The Columbia Phosphate Company is a corporation created under the laws of South Carolina and incorporated to manufacture and sell commercial fertilizers.</p> <p>“10th. That on the 25th day of February, 1897, the General Assembly of South Carolina passed an act entitled, ‘An act to prohibit trusts and combinations and to provide penalties,’ which said act was by the General Assembly amended on the 19th day of February, 1898. The first section of the last named act is as follows: ‘Section 1. Be it enacted by the General Assembly of the State of South Carolina, That from and after the passage of this act all arrangements, contracts, agreements, trusts or combinations between two or more persons as individuals, firms or corporations made with a view to lessen, or which tends to lessen, full and free competition in the importation or sale of articles imported into this State, or in the manufacture or sale of articles of domestic growth, or of domestic raw material, and all arrangements, contracts, agreements, trusts or combinations between persons or corporations, designed or which tend to advance, reduce or control the price or cost to the producer or to the consumer of any such product or article, and all arrangements, contracts, trusts, syndicates, associations or combinations between two or more persons as individuals, firms, corporations, syndicates or associations, that may lessen or effect in any manner the full and free competition in any tariff, rates, tolls, premiums or prices, or seeks to control in any way or manner such tariffs, rates, tolls, premiums or prices in any branch of trade, business or commerce, are hereby declared to be against public policy, unlawful and void.’</p> <p>“11th. That all the defendants hereto except the Virginia-Carolina Chemical Company were at the times hereinafter specified independently engaged in the manufacture and sale of fertilizers in South Carolina, and which had become necessary to and was universally used by the farmers of said State in the cultivation and production of their crops.</p> <p>“12th. That the Virginia-Carolina Chemical Company was organized by a combination of capitalists and other persons under the guise of a comprehensive charter for the purpose of monopolizing the manufacture and sale of commercial fertilizers in the State of South Carolina and adjoining States, and its capital stock increased from time to- time to enable it to' accomplish this purpose and suppress full and free competition therein to' the great injury of the people of this State.</p> <p>“13th. That the said Virginia-Carolina Chemical Company in pursuance of the unlawful scheme and purpose for which its corporation was procured, and which it has pursued, in order that it might obtain, practically, complete control of the prices of fertilizers manufactured in the State of South Carolina, and practically to lessen or with a view to lessen full and free competition therein, entered into an unlawful and oppressive scheme to- purchase the plants-, property, good will and brands of the other defendants hereto, agreeing to pay therefor either in cash or in stock of the said Virginia-Carolina Chemical Company for the stock and property as aforesaid, or either or both of them of said other defendants; the method pursued by the said Virginia-Carolina Chemical Company being in some cases to- acquire a controlling interest in the stock of the o-ther defendants hereto-, then electing its o-wn officers or employees as officers of such corporations, and either conduct the .business under an agreement or arrangement by which the said Virginia-Carolina Chemical Company controlled and dictated the prices o-f the products of such other companies until such time as the Virginia-Carolina Chemical Company should choose to direct conveyances of the property, plants, trade marks, brands and good will of such o-ther companies, and in other cases direct at once such conveyances to it.</p> <p>“That in pursuance of said unlawful scheme and purpose to- acquire substantial control of the prices of fertilizers in this State and substantially lessen or with a view- to- lessen full and free competition against it in the manufacture and sale of fertilizers within the State, the said Virginia-Carolina Chemical Company caused to be conveyed to it the property of the several other defendants hereto-, as follows :</p> <p>“1st. On the 5th day of September, 1900, property and plant of the Imperial Fertilizer Company in consideration of $225,000.</p> <p>“2d. On the 5th day of September, 1900, the property and plant of the Standard Fertilizer Manufacturing Company in consideration of $300',000.</p> <p>“3d. On the 19th day of November, 1898, the property, plant and good will of the Chicora Fertilizer Company in consideration of $400,000,. and also the good will, brands, formulas, trade marks, signs, labels of said Chicora Fertilizer Company and used by it in connection with or acquired for the purposes of its business as aforesaid. .</p> <p>“4th. On the 20th day of August, 1898, the .property and plant and good will of the Berkeley Chemical Company, in consideration, as set forth in said conveyance, of $37,325; on the same day said Berkeley Chemical Company conveying by its president, W. B. Chisolm, to the Virginia-Carolina Chemical Company several tracts of land among which is enumerated the works and property of the Stono Phosphate Company, together with brands and good will of the business carried on by said company, and further, on the same day the said Berkeley Chemical Company, by its president, W. B. Chisolm, conveyed ho the Virginia-Carolina Chemical Company all the property of the Wappoo Mills and the franchises of the said Wappoo Mills, the aggregate consideration for the last two being $184,930.</p> <p>“5th. That on the 9th day of August, 1899, the Greenville Fertilizer Company conveyed, in consideration of the sum of $130,000, to W. G. Crenshaw, Jr., Baltimore, Md., all the property, including brands, trade marks and the-good will of the business of said company, and the said W. G. Crenshaw, Jr.,'on the 7th day of September, 1899, conveyed said property to the Virginia-Carolina Chemical Company, in consideration of the sum of $10' and other valuable consideration, together with all brands, trade marks and good will of the business of the Greenville Fertilizer Company.</p> <p>“6th. That on the 15th of April, 1897, Louis H. Corn-stock, trustee, conveyed to the Virginia-Carolina Chemical Company the property of the Carolina Sulphuric Acid Manufacturing Company, Blacksburg, Cherokee County, in consideration of $8,500', and the further consideration caused by an agreement signed March 26th, 1897, by Louis H. Comstock, trustee, and S’. T. Morgan, president of the Virginia-Carolina Chemical Company.</p> <p>“7th. That on the 21st day of September, 1899, the Columbia Phosphate Company conveyed to the Virginia-Carolina Chemical Company its entire plant, together with the good will, trade marks and brands, for the consideration of the sum of $85,000, to be paid by the said Virginia-Carolina Chemical Company to- the said Columbia Phosphate Company in cash or in a like amount of the capital stock of the said Virginia-Carolina Chemical Company.</p> <p>“14th. That in addition to> the control and purchase by the said Virginia-Carolina Chemical Company of the stock and property or either or both of its codefendants herein, the said Virginia-Carolina Chemical Company, with a view to lessen the full and free competition in the manufacture and sale of fertilizers in this State, and ü> lessen full and free competition in the manufacture and sale of domestic raw material, the product of this State, and to advance, reduce or control the price thereof to the consumer thereof in this State has, as appears from State returns for assessment and taxation, acquired the stock or property or both of all the corporations engaged in this State in the manufacture and sale of fertilizers except four, whose output constitute but a very small percentage of the fertilizers manufactured and sold in South Carolina.</p> <p>“15th.. That in furtherance of its oppressive and unlawful scheme and combination to: monopolize the business of manufacturing and selling fertilizers in South Carolina, the said Virginia-Carolina Chemical Company has acquired a very large proportion, as plaintiff is informed and believes, of the available supply of land phosphate territory in this State, either by purchase or lease, and controls the majority of the stock of the Southern Cotton Oil Company, a gigantic corporation created under the laws of the State of New Jersey, and engaged in the manufacture of cotton seed into meal and other products, which said cotton meal is extensively employed as a fertilizer.</p> <p>“16th. That in addition to the controlling interest of almost the entire fertilizer industry in this State, the said Virginia-Carolina Chemical Company, by reason of its enormous capital, as aforesaid, owns and controls, as plaintiff is informed and believes, a majority of the corporations engaged in the manufacture of fertilizers in the States of Georgia, North Carolina and Virginia, and has thus practically secured itself against competition from outside of the State of South Carolina in its control of fertilizers therein.</p> <p>“17th. That to secure itself against future competition by the erection of factories in the State of South Carolina, for the manufacture and sale of fertilizers, the said Virginia-Carolina Chemical Company, its officers and stockholders, procured, to be executed by the directors and stockholders of the other defendants hereto, or some of them, agreements not to engage thereafter in the manufacture and sale of fertilizers for a greater or less period within the State of South' Carolina, and the plaintiff is informed and believes and so charges, that such covenants and agreements were procured from and executed by the officers, directors and stockholders., or some of them, of the Imperial Fertilizer Company, the Standard Fertilizer Manufacturing Company, and the Chicora Fertilizer Company, defendants herein.</p> <p>“That the several conveyances, sales and transfers of the stock and property, or either or both of them as aforesaid, and the covenants and agreements in restraint of trade as aforesaid, were made and entered into by its several codefendants with the knowledge that the said Virginia-Carolina Chemical Company was and is engaged in the unlawful and oppressive scheme to acquire control of the fertilizer industry in South Carolina, and were made and entered into- with a view to lessen and tends to. lessen full and free competition in the manufacture and sale of fertilizers the product of domestic raw material of this State, and were designed to control the prices thereof to the consumers of such product in this State, and to- lessen or affect full and free competition in the prices of fertilizers in this State, and to control said prices in this State.</p> <p>“That said conveyances, sales and transfers as aforesaid, and said covenants and agreements in restraint of trade were made and entered into- with the intent to- evade the provision of the act of the General Assembly of South Carolina, approved the 25th day of February, A. D. 1897, and the amendment thereto-, approved the 19th day of February, A. D. 1898, and are in violation of the public policy o-f the State of South Carolina, as declared .in and by the said act, and the amendments thereto-, and the said conveyances, sales and transfers, as aforesaid, and the said covenants and agreements, and either or all of them, are contrary to- public policy, unlawful and void.</p> <p>“Wherefore, plaintiff prays judgment:</p> <p>“1st. That all and each of said unlawful conveyances, sales and transfers shall be delivered up and cancelled and declared to be void, and the said Virginia-Carolina Chemical Company be ordered to- reconvey to its several codefendants herein the property conveyed and transferred to- it as aforesaid, and that the said the other defendants hereto- be directed to- return to the Virginia-Carolina Chemical Company the consideration paid or agreed to- be paid to each of them respectively, for the said conveyances and transfers, or the •same be made a charge upon the property so- decreed to- be reconveyed.</p> <p>“2d. That a receiver be appointed 0-f the property of the defendants, the Imperial Fertilizer Company, Standard Fertilizer Manufacturing Company, Chicora Fertilizer Company, Berkeley Chemical Company, the Greenville Fertilizer Company, the Columbia Phosphate Company and the Carolina Sulphuric Acid Manufacturing Company, Blacksburg, Cherokee County.</p> <p>“3d. That all agreements entered into by and between the Virginia-Carolina Chemical Company and the other defendants herein, or any of them, or with the directors of the other defendants herein, or stockholders, in restraint of trade, and in violation of the act of the General Assembly of South Carolina, as aforesaid, be set aside and declared null and void.</p> <p>“4th. That the said Virginia-Carolina Chemical Company be adjudged and decreed to have violated the terms and conditions on which it was licensed to do business in this State, and that said license be adjudged and decreed to be forfeited, and the said Virginia-Carolina Chemical Company be enjoined from doing business in this State.</p> <p>“5th. That the said Virginia-Carolina Chemical Company be adjudged and decreed to have forfeited its right to recognition as a corporation in the Courts of this State.” Thereafter, on 5th January, 1904, the following stipulation was entered into by the attorneys:</p> <p>“It is hereby stipulated and agreed that the Virginia-Carolina Chemical Company will demur orally to the complaint herein, as not stating facts sufficient to constitute a cause of action, so that the argument upon such demurrer may test the constitutionality of the statute set up and relied on in said complaint and by said demurrer, and on the argument of the same, said demurrer shall not be construed to admit any intent as charged in the complaint further than as any such intent can be inferred by the Court from the substantive facts alleged and stated in said complaint.”</p> <p>In pursuance of this stipulation, a demurrer was filed on the grounds set out in the first three exceptions to the Circuit judgment.</p> <p>The Circuit judgment on the demurrer is as follows:</p> <p>“This is an action instituted by the Attorney General in the name of the State against the Virginia-Carolina Chemical Company, a corporation created under the -laws of New Jersey, and seven other defendant corporations created under the laws of South Carolina, charging a violation of the statutes comonly known as the ‘anti-trust laws,’ approved the 25th day of February, 1897, and amended on the 19th day of February, 1898, the first section of which reads as follows:</p> <p>“ ‘Section 1. Be it enacted by the General Assembly of the State of South Carolina, That from and after the passage of this act, all arrangements, contracts, agreements, trusts or combinations between two-or more persons as individuals, firms or corporations, made with a view toi lessen, or which tend to lessen, full and free competition in the importation or sale of articles imported into this State, or in the manufacture or sale of articles of domestic growth or of domestic raw material, and all arrangements, contracts, agreements, trusts or combinations between persons or corporations, designed or which tend to advance, reduce or control the price or the cost to the producer or to' the consumer of any such product or article, and all arrangements, contracts, trusts, syndicates, associations or combinations between two' or more persons as individuals, firms, corporations, syndicates or associations, that may lessen or affect in any manner the full and free competition in any tariff, rates, tolls, premiums or prices, or seek to control in any way or manner such tariffs, rates, tolls, premiums or prices in any branch of trade, business or commerce, are hereby declared to be against public policy, unlawful and void.’</p> <p>“The complaint alleges that all the defendants except the Virginia-Carolina Chemical Company were independently engaged in the manufacture and sale of fertilizers in thi? State, which product had become necessary to and was universally used by the farmers of the State in the production of their crops, and that the Virginia-Carolina Chemical Company, which filed its charter and amendments thereto in the office of the secretary of State, on the 22d of January, 1900, with a capital stock of twenty-four million dollars, ‘and plaintiff is informed and believes that the capital stock has since been increased to fifty million dollars;’ and (par. 13) ‘entered into an unlawful and oppressive scheme to purchase the plants, property, good will and brands of the other defendants hereto; agreeing to pay therefor in cash or in stock of ..the said Virginia-Carolina Chemical Company for the stock and property as aforesaid, or either or both of them of said other defendants; the method pursued by the said Virginia-Carolina Chemical Company being in some cases to acquire a controlling interest in the stock of the other defendants hereto; then electing its own officers or employees as officers of such corporations, and either conduct the business under an agreement or an arrangement by which the said Virginia-Carolina Chemical Company controlled and dictated the prices of the products of such other companies until such time as the Virginia-Carolina Chemical Company sho'uld choose to' direct conveyance of the property, plants, trade marks, brands and good will of such other companies, and in other cases direct at once such conveyances to> it.’</p> <p>“The complaint alleges further that the said Virginia-Carolina Chemical Company, on the dates mentioned, caused to' be conveyed to it the property of the several other defendants, and in the fourteenth paragraph, ‘as appears from State returns for assessment and taxation, acquired the stock or property, or both, of all the corporations engaged in this State in the manufacture and sale of fertilizers, except four whose output constitutes but a very small percentage of the fertilizers manufactured and sold in South Carolina.’</p> <p>“In paragraph 15, it is charged that ‘the Virginia-Can> l.ina Chemical Company has acquired a very large proportion, as plaintiff is informed and believes, of the available supply of land phosphate territory in this State, either by purchase or lease, and controls a majority of the stock of the Southern Cotton Oil Company, a gigantic corporation created under the laws of the State of New Jersey, and engaged in the manufacture of cotton seed into meal, which said cotton seed meal is entensively employed as a fertilizer.’</p> <p>“In paragraph 16, it is alleged ‘that in addition to' the controlling interest of almost the entire fertilizer industry in this State, the said Virginia-Carolina Chemical Company, by reason of its enormous capital as aforesaid, owns and controls, as plaintiff is informed and believes, a majority of the corporations engaged in the manufacture of .fertilizers in the States of Georgia, North Carolina and Virginia, and has thus practically secured itself against competition from .outside of the State of South Carolina in its control of fertilizers therein.’</p> <p>“Paragraph 17 sets forth that ‘the said Virginia-Carolina Chemical Company, its officers and stockholders, procured, to- be executed by the directors and stockholders of the other defendants hereto-, or some of them, agreements not to engage thereafter in the manufacture and sale of fertilizers for a greater or less period within the State of South Carolina, and the plaintiff is informed and believes, and so charges, that such covenants and agreements were procured from and executed by the officers, directors and stockholders, or some of them, of the Imperial Fertilizer Company, the Standard Fertilizer Manufacturing Company, and the Chi-co-ra Fertilizer Company, defendants- herein;’ and further alleges, ‘that said covenants, sales and transfers, as aforesaid, and said covenants and agreements in restraint of trade, were m-ade and entered into- with the intent to- evade the provision of the act of the General Assembly of South Carolina, approved the 25th day of February, A. D. 1897, and the amendments thereto, approved the 19th day of February, A. D.' 1898, and are in violation o-f the public policy o-f the State of South Carolina, as declared in and by the said act, and the amendments thereto, and the said conveyances, sales and transfers, as aforesaid, and the said covenants and agreements, and either or all o-f them, are contrary to- public policy, unlawful and void.’</p> <p>“Under a stipulation that a demurrer should not be construed to- admit any intent as charged in the complaint, further than as such intent can be inferred by the Court from the substantive facts alleged and stated in the complaint, the defendant interposed an oral demurrer to- the complaint upon several constitutional grounds, alleging that the acts of the General Assembly, above cited, under which this -action was brought, are unconstitutional, and upon other grounds to be hereafter considered.</p> <p>1 “One objection is that the above acts are in contravention of section 1, article XIV., in amendment of the Constitution of the United States, which enjoins any State from making or enforcing any -law which shall abridge the privileges or immunities of citizens of the United States, directs that no- State shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law. This constitutional-objection cannot avail the defendant. It is well settled that the fourteenth amendment does not interfere with the exercise of the police power of a State.</p> <p>“As was stated by our Supreme Court, in 42 S. C., 249, citing from 113 U. S., 27: ‘In short, it is not to- be doubted that the power to> make ordinary regulations of police remains with the individual States, and cannot be assumed by the national government, and that in this respect it is- not interfered with by the fourteenth amendment.’ And it is likewise well settled that the police power can be invoked in defining, limiting, governing or destroying trusts, monopolies, combinations in restraint of trade, etc. The exact terms of the South Carolina act were passed upon by the Supreme Court of Tennessee (104 Tenn., 715), and declared constitutional as a police measure. Statutes of like nature and same purpose have been declared constitutional in the carefully considered cases of Waters-Pierce Oil Co. v. State, 19 Civ. App., 1; State v. Buckeye Pipe Line Co., 61 Ohio St., 520; 152 Mo., 1, and see vol. 20, Am. & Eng. Encyc. Law, page 852. It is very obvious, therefore, that as the acts in question are police regulations, and that police regulations are not governed by the fourteenth amendment, and that no discrimination or class legislation is suggested, this ground of demurrer must be overruled.</p> <p>2 “Another objection is that these acts are in contravention of the State and Eederal Constitutions, enjoining that no State shall pass any law impairing the obligations of a contract. The contention is that this State having invited and permitted the Virginia-C'arolina Chemical Company, a New Jersey corporation, to do business in this State, and having accepted its New Jersey charter, that the terms of that charter must be respected as a contract assumed by this State.</p> <p>“As already indicated, corporations are subject to’ the police power of the State. No' suggestion is made that the State has attempted to> surrender such power, for I presume it will not be seriously contended that the State could barter away such power, the same being an inherent right of sovereignty. Conceding that corporate charters are vested rights, it cannot be questioned that defendant corporation came into this State and could only come upon such terms as this State saw fit to^ impose. Now, one of the conditions imposed by chapter XLV. of the Revised Statutes of 1893, which permitted defendant to do business in this State, is contained in section 1471 of that chapter, providing every foreign corporation carrying on business or owning property in this State, shall be subj ect to laws as domestic corporations, and section 1499 (R. S., 1893), provides that all charters shall be subject to amendment. That is statutory reservation general throughout the country. It follows, then, that defendant being advised of these conditions, and accepting them, the statute laws of this State became a part of its charter, privileges and limitations, and cannot complain of the law it found in the statutes. This objection is overruled.</p> <p>3 “The demurrer objects further that the acts in question are in violation of the Federal Constitution, which invests Congress with authority to' regulate inter-state commerce, because section 1 of said act attempts to’ prevent ‘contracts, etc. * * * between two or more persons as individuals, etc. * * * made with a view to lessen, or which tends to* lessen, full and free competition in the importation or sale of articles imported into this State,’ etc. It strikes me that this clause is an attempt by the State to exercise a prerogative of Congress to regulate inter-state commerce. No act of Congress has invested the State with authority to interfere with this subject of commerce, and the police power cannot be invoked for that purpose. The State has no power over importations of articles of commerce. See recent case, Smith v. LaPar, 67 S. C., 491, 46 S. E., 332.</p> <p>“To the extent of this clause the demurrer must be sustained. But it is contended by the Attorney General that the section contains other provisions which constitute a cause of action under this complaint. It is a rule, that a statute is not rendered unconstitutional by the presence therein of provisions which are unconstitutional when they can be eliminated without affecting the rest of the statute. I am satisfied, as the complaint herein has no reference to the violation of the importation clause, that a cause of action exists under the statute eliminated of its defective features, as above intimated. State v. Potterñeld, 47 S. C., 75; Supervisors v. Stanly, 105 U. S., 305; Pornell v. State, 69 Ala., 10. So far as defendant is concerned, the question is merely speculative. Hill v. City Council, 59 S. C., 415. This objection to the demurrer is overruled.</p> <p>“Other constitutional objections' are urged, but they merely involve the same terms and principles.</p> <p>“Two other objections are offered, but as the section numbered ‘third’ is general in its terms, it cannot be considered, especially as all objections urged by counsel have been considered, or will be in the next and only remaining objection, which alleges that it nowhere appears upon the face of the complaint under the terms of. said acts that any act of defendants has had the effect of lessening full and free competition in the manufacture or sale of .articles of domestic growth, or domestic raw material, or has had the effect of having tended either to advance, reduce or control the price or cost to the producer or consumer of any such product or article, or has lessened or’ affected in any manner the rates, tariffs, tolls, premiums or prices in any branch of trade, business or commerce.</p> <p>“Under the rules of pleading a demurrer admits all facts well pleaded, and under the stipulation in this case, the substantive facts only can be considered. Now, the complaint alleges the following admitted substantive facts:</p> <p>“That the Virginia-Carolina Chemical Company has had transferred to- it all the other defendants corporations that were independently engaged in the manufacture and sale of fertilizers, and has acquired all other corporations engaged in the manufacture of fertilizers except four of small output; that the corporation has acquired a very large proportion, as plaintiff is informed and believes, of the land phosphate territory in this State, controls a majority of the stock of the Southern Cotton Oil Company, a manufacturer of a fertilizer ingredient; owns and controls a majority of the corporations engaged in the manufacture of fertilizers in the States of Georgia, North Carolina and Virginia, and has secured itself against competition from outside of this State of-its control of fertilizers therein; that covenants were entered into- by the Virginia-Carolina Chemical Company, its officers and stockholders, with the other defendants, or some of them, not to engage thereafter in the manufacture and sale of fertilizers for a greater or less period within the State of South Carolina.</p> <p>“From these admitted facts, the conclusion is irresistible, that the complaint states facts, which fall clearly within the purview of both the spirit and letter of the acts above cited, for, in the language of the act, the result of such a condition ‘may lessen or affect in any manner the full and free competition in any tariff, rates, tolls, premiums and prices/ ‘or which may tend to advance, reduce or control the price or the cost to the producer or consumer.’</p> <p>“The intent of the combination cannot be considered whether such intent was to increase, reduce or control prices. The possibility of either falls within the meaning- of the act.</p> <p>“The demurrer is overruled.”</p> <p>The defendant, Virginia-Carolina Chemical Company, excepts to* the judgment, upon the following grounds:</p> <p>“That the presiding Judge.should have sustained the demurrer herein, and held as conclusions of law:</p> <p>“First. That the acts* of the General Assembly of the State o*f South Carolina, referred to* in article 10th of the complaint herein, to* wit: The act passed by the General Assembly of South Carolina on the 29th day of February, 1897, and the act amendatory thereof, passed by the said Assembly of South Carolina on the 25th day of February, upon and to* enforce the provisions of which this action is brought, are invalid, null and void, and inoperative under the Constitution and the laws of the United States, in that:</p> <p>“(a) The said acts undertake, in contravention of section 8, of article I., of the Constitution of the United States, and the acts of Congress in pursuance thereof, to* prohibit and render null and void all arrangements, contracts or agreements whatsoever, betwen persons, firms or corporations, which intentionally or unintentionally tend to* lessen full and free competition in the importation or sale of articles imported into the State, or in the manufacture or sale of articles of domestic growth or of domestic raw material.</p> <p>“(b) The said acts undertake, in contravention of section 1, of article XIV., in amendment of the Constitution of the United States, to prohibit and render invalid, null and void, all arrangements, contracts or agreements whatsoever between persons, firms or corporations, which intentionally or unintentionally tend to* advance, reduce or control the price or cost to the producer or to the consumer of any articles imported into the State, or manufactured or grown therein.</p> <p>“(c) The said acts undertake in contravention of séction 8, of article I., of the Constitution of the United States, and the acts of Congress in pursuance thereof, and of section 1, article XIV., in amendment of said Constitution, to prohibit and render invalid, null and void all arrangements and contracts between persons, firms or corporations that may intentionally or unintentionally lessen or affect in any manner full and free competition in any tariff, rates, tolls, premiums or prices in any branch of business, trade or commerce, or may seek to control the same.</p> <p>“(d) The said acts undertake, in contravention of section 10, article I., of the Constitution of the United States, and of section 2, article IV., of said Constitution,- to impair and destroy the rights, privileges and immunities agreed to be given and granted to> foreign corporations by the public laws and statutes of the State of South Carolina in consideration of their locating, carrying on business or owning property therein.</p> <p>“(e) The said acts undertake, in contravention of section 1, article XIV., in amendment of the Constitution of the United States, to‘ deprive all corporations of their property without due process of law, and to' deny to- them the equal protection of the laws, and to- abridge the privileges and immunities given and granted to' foreign corporations- by the public laws and statutes of the State of South Carolina, in consideration of their locating and carrying on business therein.</p> <p>“(f) The said acts undertake, in contravention of sections 5 and 6, of article I., of the Constitution of the State of South Carolina, to abridge the rights, privileges and immunities of this defendant and deprive it of its property without due process of law, and impair the obligation of the contract entered into with this defendant, when it was invited to enter and locate and acquire property in the State of South Carolina by the public laws and statutes of said State, and deny to this defendant the equal protection of the laws.</p> <p>“Second. That it nowhere appears upon the face of the said complaint, under the terms of the said act of 25th February, 1897, and amendatory act of 19th February, 1898, that any act or thing charged in the complaint as done by the defendants in this action or any of them has had the effect of lessening full and free competition in the importation or sale of articles imported into the State, or in the manufacture or sale of articles imported into' the State, or in the manufacture or sale of articles of domestic growth or domestic raw material, or has had the effect of having tended either to' advance, reduce or control the price or cost to' the producer or consumer of any such product or article, or has lessened or affected in any manner the rates, tariff, tolls, premiums or prices in any branch of trade, business or commerce.</p> <p>“Third. That it nowhere appears upon the face of the said complaint that any act or thing charged in the complaint as done by the defendants in this action or any of them, is in violation of the act passed by the General Assembly of South Carolina, on the 25th day of February, 1897, and the act amendatory thereof, passed on the 19th day of February, 1898, which said acts are set forth in the complaint, or of any other provision of law.</p> <p>“Fourth. That his Honor, the presiding Judge, erred in overruling the demurrer and in holding:</p> <p>“(a) That the acts in question are police regulations, and as such were not governed by the fourteenth amendment; whereas, he should have held that the acts in question were not police regulations, and should further have held that no statute, whether by way of police regulation or otherwise, can be passed by any State in contravention of the direct terms of the fourteenth amendment.</p> <p>“(b) That inasmuch as by statute law in this State the power is reserved to the State to' alter and amend charters of corporations, therefore, the acts in question would be valid as having that effect only; whereas, he should have held that the acts in question were not amendments or modifications of any charter or privilege, but undertook in' contravention of the provisions of the United States and State Constitutions to impose a penalty or punishment upon individuals and corporations for performing acts expressly authorized by law.</p> <p>“(c) That the objection to the acts in question as in violation of the federal authority to’ regulate interstate commerce was untenable, because the complaint herein has no reference to the violation of the importation clause, and so far as defendant is concerned, the question is merely speculative; whereas, he should have held that the validity of the act is to be determined by its language in its application to> interstate commerce and not by the circumstances of the particular case at bar.</p> <p>“(d) That from the admitted facts well pleaded in the complaint, the conclusion was irresistible that the complaint states facts which fall clearly within the purview of both the spirit and letter of the acts in question; whereas^, he should have held that from the complaint taken in connection with the stipulation, the facts which appeared and which alone could be considered by the Court, were all acts which were authorized by law, and that no* unlawful intent can be inferred by the Court from the mere performance of a series of lawful acts which are not alleged to' have eventuated in any unlawful result, nor can a crime be committed by, or punishment be inflicted for, the performance of a lawful act, no matter what was the motive or result of its performance.”</p> <p>cite: Act made criminal is left uncertain: 2 Pollock & Maitland’s Hist, of Eng. D-, 473; 4 Black. Com., 473; 8 Ency., 2 ed., 285; 7 Humph., 150; 52 Ala., 309; 4 Dev., 410; 91 N. C., 550; 39 N. J. L., 38; End; on Inten. of Stat., sec. 24; 2 Or., 238; 41 Tex. Crim., 59; 11 Wash., 423; 54 S. C., 196. Statute violates fundamental rights of contract: 2 Eddy Daw of Con., 1012; 1 Bay, 93, 252; 2 Pet., 657; 111 U. S., 762; 165 U. S., 589; 74 N. Y., 509; 98 N. Y., 98; 99 N. Y., 377; 109 N. Y., 389; 136 N. Y., 577; 162 N. Y., 89; 113 Pa. St, 431; 45 N. E. R-, 313; 160 111., 459; 155 111., 98; 70 Mich., 534; 77 Mich., 199; 115 Mo., 307; 129 Mo., 163; 33 W. Va., 179; 85 Cal, 274; 155 Mass., 177. Not an exercise of police power: 22 Ency., 936; 109 N. Y., 389; 153 N. Y., 188; 184 U. S., 558; 94 U. S., 267; 104 U. S., 540; An unconstitutional condition is void: 178 U. S., 397; 180 U. S., 452; 183 U. S., 24; 191 U. S., 288; 96 U. &, 535; 121 U. S., 186; 172 U. S., 239; 121 U. S., 186; 146 U. S., 202; 170 U. S-, 111. Statute deprives corporations of their property without due process: 118 U. S., 39; 164 U. S., 578; 169 U. S., 410; 172 U. S., 239. If passed as a police measure, the statute must apply to- individuals as well as corporations: Tiedeman Tim. of Pol. Pow., sec. 1; 171 U. S., 567. No- illegal act was performed by appellant in contracting zvith others not to engage in same business: 24 Ency., 841; 30 S. C., 412.</p> <p>cites: Sec. i., art. XIV., in amendment to Con. of U. S., does not effect police pozver of State: 5 Strob., 3, 161; 38 S. C., 64; 42 S. C., 222, 249; 113 U. S., 27; 172 U. S., 565; 152 Mo., 1; 168 N. Y., 89; 61 Ohio St., 520; 104 T'enn., 715; 88 Tex., 184; 19 Tex. Civ. App., 1; 165 U. S., 23; 142 U. S., 387; 115 U. S., 519; 113 U. S., 31; 128 U. S., 582; 20 Ency., 852; 177 U. S., 42. The Con. provision as to- abridging priznleges of citizens does not prohibit legitimate use of police power: 16 Wall., 76; 127 U. S„ 209; 18 How., 591; 11 Blatchf., 200; 48 Cal., 203; 8 Wall., 168. The act does not contravene the Con. inhibition against passing a law impairing the obligations of contracts: 24 S. C., 60; 38 S. C., 103. Unconstitutional provision in statute may be eliminated if it does not affect remainder: 47 S. C., 75; 105 U. S., 305; 69 Ala., 10; 103 U. S., 118; 100 U. S., 82; 95 U. S., 377. The statute is directed at the possible effect of acts, not the probable or intended effect: 166 U. S., 290; 156 U. S., 1, 342; 152 Mo., 1.</p>

Before Gage, J., Cherokee. Action by J. V. Phillips against American Telephone and Telegraph Company of South Carolina. From judgment for plaintiff, defendant appeals. cites: Remedy of plaintiff is not action but condemnation: 62 S. C., 52; 58 S. C., 532; 37 S. C., 382; 1 Add. on Torts, 447; 33 S. C., 175; 32 S. C., 410; 58 S. C., 145. Injury to crops belonging to another cannot be included: 67 S. C., 192.