State v. Scheper

12 S.E. 564, 33 S.C. 562, 1891 S.C. LEXIS 1
CourtSupreme Court of South Carolina
DecidedJanuary 6, 1891
StatusPublished
Cited by2 cases

This text of 12 S.E. 564 (State v. Scheper) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Scheper, 12 S.E. 564, 33 S.C. 562, 1891 S.C. LEXIS 1 (S.C. 1891).

Opinion

The opinion of the court was delivered by

Mr. Justice McGowan.

In May, 1887, the department of agriculture of the State granted to W. T. Seward & Co., a body corporate, a license to dig and mine phosphate rocks and phosphatie ■deposits in certain navigable waters of the State; subject to the requirements, terms, and conditions provided by and expressed in the laws of the State and the rules of the department of agriculture. (See the license and the rules in the case.) The defendants, with Seward & Co., the licensees, executed a joint and several bond to the State in the penalty of $5,000, conditioned “that the said W. T. Seward & Co. shall make true and faithful returns to the comptroller general of the number of tons of phosphate rocks and phosphatie deposits by the said W. T. Seward & Co. dug, mined, and removed and shipped or otherwise sent to market, at the end of every month, and shall punctually pay to the State treasurer at the end of every quarter or three months [571]*571the royalty provided by law to be paid thereon, to wit, one dollar upon each and every ton, to be estimated only on the crude rock, and not upon rock after it has been steamed or dried ; the first quarter to commence to run on the first day of January in each year; then the above obligation to be void and of none effect, otherwise to remain in full force and virtue,” &c.

It seems that the said Seward & Co. went immediately to mining and made “returns” of the number of tons mined and removed, by what conveyance, and the amount due the State in money therefor, for the months of September, October,'November, ar^d December of 1887, and of January, February, and March of 1888. But as it appeared from the records of the treasurer’s office, that Seward & Co. were largely in arrears of dues to the State, viz., $7,764.86, the department of agriculture revoked their license to mine about the middle of April, 1888, and soon thereafter brought this action on the bond in the name and for the benefit of the State. The bond itself was not before the court, but the third paragraph of the complaint set out the condition in the terms above set forth, and then proceeded, in a number of paragraphs, to assign breaches of the bond, as follows:

“Paragraph 4. That the said W. T. Seward & Co., under and by virtue of said license, dug, mined, and removed large quantities of phosphate rocks and phosphatic deposits from the navigable streams and waters of the State.
“Paragraph 5. That the condition of said bond has been broken ; that the said W. T. Seward & Co. did not make true and lawful returns to the comptroller general of the number of tons of phosphate rocks and phosphatic deposits by them dug, mined, removed or shipped, or otherwise sent to market at the end of each month, and that they did not pay to the State treasurer at the end of every quarter or three months the royalty provided by law to be paid thereon.”

Paragraphs 6, 7, 8, 9, 10, 11, and 12 assign breaches for the different months named, in the words following: “That. W. T. Seward & Co. did not pay the royalty provided by law to be paid by them on phosphate rocks and phosphatic deposits, dug, mined, and removed by them, as required by said bond,” &c.

Paragraph 13 assigned as a breach “that the said W. T. Sew-[572]*572arc! & Co. failed and neglected to make returns to the comptroller general of the number of tons of phosphate rocks and phosphatic deposits dug, mined, or removed by them during the months of April and May, 1888; and that the said W. T. Seward & Co. did not pay to the State treasurer at the end of the current quarter the royalty provided by law to be paid, &c.; and that the said W. T. Seward & Co. are now indebted unto the said plaintiff in the sum of $2,936.53 on account of royalty due by them for said months on phosphate rocks, &c., dug, mined, and removed by them, and for which they have made no returns as aforesaid,” &c.

“Paragraph 14. That the defendants are indebted to the plaintiff upon the said bond, by reason of the breaches of the condition thereof as hereinbefore assigned, in the sum of $5,000 ; that payment has been demanded of the defendants, but they have refused to pay the same,” &c.

At the September term of the court (1888), the complaint having been read, the defendants, without making any particular objections to the pleadings or alleged discrepancies, moved to dismiss the complaint on the ground that it “did not state facts sufficient to constitute a cause of action.” Judge Norton overruled the motion, but gave the defendants twenty days to answer. They availed themselves of this privilege, and answered as follows : “I. That they admit as true the allegations made in the first three paragraphs of the complaint. II. That they have no knowledge or information sufficient to form a belief as to the truth of the allegations made in the fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth paragraphs of said complaint, &c. III. That they have no knowledge or information sufficient to form a belief as to the truth of the allegation made in the fourteenth paragraph of the complaint, that these defendants are indebted to the plaintiff upon their bond, by reason of the breaches of the conditions thereof assigned in the said complaint, and therefore they deny said allegations, but admit the other allegations of said paragraph of demand and refusal of payment,” &c.

Upon these pleadings the case came on again for trial before Judge Hudson and a jury. After the trial commenced, Mr. Verdier, [573]*573for the defendants, called the attention of the court to the fact that there were some discrepancies between the complaint filed and the copy served upon the defendants, the alleged copy not being in all respects a perfect copy. The court said“The bond must speak for itself. If there should be any little error in the recital of the bond, I don’t think it would be fatal.” Mr. Verdier called attention to the fifth paragraph, 4th and 5th line from the bottom, where the attorney general read “and” where the alleged copy has the word “or,” and therefore he objected to the reading of the complaint. (Overruled and exception taken.) The attorney general then offered the evidence for the State, consisting first of the sworn returns of Seward & Co. for seven months. (For specimen return, September, 1887, see following page.)

Mr. Verdier, for the defendants, objected to the competency of this testimony, but the judge ruled that the written acknowledgments of the principal were binding upon the sureties.

Mr. E. L. Roche, an officer of the department of agriculture, was sworn, who testified that Seward & Co. made no returns for the months of April and May (1888), and that at that time they had on hand of phosphate rocks mined under the license and after-wards disposed of at least 2,000 tons, worth $2,000, or more— “estimated,” as was the universal practice according to law', “only on the crude rockthe difference being 5 per cent, between that and dried rock. (Mr. Verdier objects to this testimony as irrelevant.)

The defendants offered no testimony, except formal proof of the license, but mo^ed for a non-suit, “on the ground that the State had not made out its case. There is no allegation that we have ‘shipped’ one ton of rock. They must prove that we have ‘mined,’ dug, and shipped or sent to market the rock.

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Related

Priester v. Southern Railway Co.
149 S.E. 226 (Supreme Court of South Carolina, 1929)
Scott v. Atlantic Coast Line R. Co.
89 S.E. 1038 (Supreme Court of South Carolina, 1916)

Cite This Page — Counsel Stack

Bluebook (online)
12 S.E. 564, 33 S.C. 562, 1891 S.C. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-scheper-sc-1891.