State v. Schepee

• Decision Date: 28 January 1891
• Citation: 12 S.E. 816,33 S.C. 562
• Parties: State v. Schepee et al.
• Court: South Carolina Supreme Court

12 S.E. 816

33 S.C. 562

State

v.Schepee et al.

Supreme Court of South Carolina.

Jan. 28, 1891.

Rehearing on Appeal.

A rehearing will be denied where it does not appear that the court has overlooked any material fact or important principle of law.

Application for rehearing. For former report, see ante, 564.

Appellants filed the following petition: "To the Honorable Supreme Court: The appellants respectfully ask for a rehearing of the above-entitled cause, on the following grounds. First. That the court overlooked the fact testified to by the witness Roach, at folios 88, 89, pages 29 & 30 of ' case, 'to-wit, that royalty was not due on rock until, in addition to being dug and removed, it was shipped. Second. That the court overlooked the fact stated in the return of W. T. Sew^Tard & Co., referred to in the opinion of the court, that the word 'removed' had reference to the taking of rock from the stream where dug, and not to the marketing of it, which is covered by the terms 'shipped or otherwise sent to market;' said returns showing the'shipment' to be the disposition of the rqck after it is mined or removed from the bed of the stream, as clearly expressed in the heading of the return. Third. That the court overlooked the fact that the word 'removed' in the statutes and in the bond was not used as synonymous with the word 'shipped, ' nor used to convey the idea of marketing or sending to market, but referred to the removal of the rock from the bed of the stream; while the word 'shipped' referred to the disposition of therockafter it was removed. Fourth. That the court having overlooked the fact that the word 'removed' referred to the removal of the rock from the bed of the stream, and not to the removal to market, the court overlooked the question of law raised by theappellants.that thecom-plaint contained no allegation of the shipment or sending to market by any means. Fifth. The court overlooked the questions of law raised by the sixth and seventh exceptions of appellants. While the circuit judge, in his charge, regarded the treasurer's certificate as material, using this language: 'There would be by the treasurer's certificate seven thousand seven hundred and seventy odd dollars due, —the returns to the comptroller general only show the monthly operations of the licensee, and, containing no credits, could show no balance or account stated, and are not evidence of the non-payment alleged in the complaint; so that, in the absence of the transcript...