2. Where in an action by sureties to obtain indemnity against the debt or liability for which they are bound, before it is due, an attachment is issued and levied on crops as the property of defendant and a part thereof interpleaded for by his mortgagee under a mortgage executed prior to said attachment, and the cause is tried on the theory involving tacit concession of the law to be that should his interplea prevail his mortgage would constitute a first lien on the attached property therein described, payable out of the proceeds thereof, he will not be permitted in this court to obtain a reversal of the judgment upon a theory involving a denial of that concession.

GIDNEY vs. CHAPPLE, et al.

Error from District Court of Muskogee County.

No. 559

Affirmed

1. In a suit in equity by the sole heir of a deceased person to set aside a conveyance, acquittance and receipt preliminary to the contest of a will bequeathing the property conveyed to a stranger upon the grounds of want of testamentary capacity on the part of the testatrix and that said will was procured by fraud and undue influence when it is alleged in the bill that the fraud and undue influence practiced in procuring the will is a link in the the chain of fraud whereby the defendant obtained the conveyance, etc., the facts in relation to the execution of the will are material as a matter of evidence.

2. If a party originally possessing a remedial right has obtained full knowledge of all the material facts involved in the transaction, and has become fully aware of its imperfections and his own rights to impeach it, or ought, and might, with reasonable diligence, have become so aware, and all undue influence is wholly removed so that he can give a perfectly free consent, and he acts deliberately, and with the intention of ratifying the voidable transaction, then his confirmation is binding, and his remedial right, defensive or affirmative, is destroyed. If on the other hand, the original undue influence still remains, or if the act is simply a continuation of the former transaction, or if the party wrongly supposes that the original contract or transaction is binding or if he has not full knowledge of all the material facts

and of his own rights, no act of confirmation, however formal, is effectual; the voidable nature of the transaction is unaltered.

3. Although a party may keep absolute silence and violate no rule of law and equity, yet if he volunteers to speak and to convey information which may influence the conduct of the other party, he is bound to discover the whole truth. A partial statement, then, becomes a fraudulent concealment, and even amounts to a false and fraudulent misrepresentation.

4. In a suit in equity, commenced in the courts of the Indian Territory, prior to statehood, and by consent referred to a master in Chancery to take the evidence and make findings of fact and conclusions of law, it was not error for the district court, as successor of the court wherein said suit was commenced, to set aside the findings and conclusions of the master and make findings of fact and conclusions of law of its own, when the finding of the master are clearly in conflict with the evidence upon which they were made.

5. An allegation in a bill in equity to set aside a conveyance for fraud, preliminary to the contest of a will, that states in substance that if it should be found upon the hearing that the consideration received by the said plaintiff for the execution of said conveyance was not money of the testatrix of the will, whose sole heir at law said plaintiff is, it was money of said defendant, said plaintiffs are willing to do equity and will upon the establishment of said fact repay such money with interest to said defendant and are willing to have the relief award ed made subject to such repayment within a time to be fixed by the court, constitutes a sufficient offer to do equity.

(Syllabus by the Court.)

Wm. T. Hutchings, Murphy & German, Attorneys for the plaintiffs in error.

Lewis & Phillips, Maxey & Schelemeyer, and Charles F. Runyan, Attorneys for defendant in error.

OPINION OF THE COURT, By. KANE, J.

SUPREME COURT OF THE UNITED STATES.

GRENADA LUMBER COMPANY

VS.

STATE OF MISSISSIPPI.

Decided May 10th 1910.

1. This court accepts the construction of the state court; and where that court has held that an agreement between retailers not to purchase from wholesale dealers who sell direct to consumers within prescribed localities amounts to a restraint of trade within the meaning of the anti-trust statute of the State, the only question for this court is whether such statute so unreasonably abridges freedom of contract as to amount deprivation of property without due process of law within the meaning of the Fourteenth Amendment.

2. An act harmless when done by one may become a public wrong when done by many acting in concert and when it becomes the object of a conspiracy and operates in restraint of trade the police power of the State may prohibit it without impairing the liberty of contract protected by the Fourteenth Amendment; and so held that while an individual may not be interfered with in regard to a fixed trade rule not to purchase from competitors, a State may prohibit more than one from entering into an agreement not to purchase from certain described persons even though such persons be competitors and the agree. ment be made to enable the parties thereto to continue their business as independents.

3. Whether a combination is or is not illegal at common law is immaterial if it is illegal under a state statute which does not infringe the Fourteenth Amendment.

4. A combination that is actually in restraint of trade under a statute which is constitutional, is illegal whatever may be the motive or necessity inducing it.

5. In determining the validity of a state statute, this court is concerned only with its constitutionality; it does not consider any question of its expediency.

6. In determining the constitutionality of a state statute this court considers only so much thereof as is assailed, construed and applied in the particular case.

7. One not within a class affected by a statute cannot attack its constitutionality.

8. Where the penalty provisions of a statute are clearly separable, as in this case, and are not invoked, this court is not called upon to determine whether the penalties are so excessive as to amount to deprivation of property without due process of law and thus render the statute unconstitutional in that respect.

9. In this case, in an action by the State in equity and not to enforce penalties, held that the anti-trust statute of Mississippi, $ 5002, Code, is not unconstitutional as abridging the liberty of contract as against retail lumber dealers uniting in an agreement, which the state court decided was within the prohibition of the statute, not o purchase any materials from wholesale dealers selling direct to consumers in certain localities.

Adv. Sheets U. S. R., 217, p. 433

KIDD, DATER AND PRICE COMPANY

VS.

MUSSELMAN GROCER COMPANY.

1.

Decided May 16th 1910

Where this court has held a state statute constitutional it will follow that decision in a case involving the constitutionality of a statute of another state which fundamentally is similar and which is attacked on the same ground by persons similarly situated; and so held that the Michigan Sales-in-Bulk Act of 1905 which is fundamentally similar to the Sales-in Bulk Act of Connecticut, sustained in Lemieux vs. Young, 211 U. S. 489, is not unconstitutional under the due process or equal protection clauses of the Fourteenth Amendment.

2. It is within the police power of the State to require tradesmen making sales in bulk of their stock in trade to give notice to their creditors and also to prescribe how

such notice shall be given, and unless the provisions as to notice are unreasonable and arbitrary a statute to that effect does not amount to deprivation of property, abridge liberty of contract or deny equal protection of the law within the meaning of the Fourteenth Amendment; mor is the requirement in the Michigan Sales-in-Bulk Act of 1905 that such notice be either personal or by registered mail unreasonable or arbitrary.

In the opinion Justice White, said:

"As the subject to which the statute relates was clearly within the police powers of the State, the statute cannot be held to be repugnant to the due process clause of the Fourteenth Amendment, because of the nature or character of the regulations which the statute embodies, unless it clearly appears that those regulations are so beyond all reasonable relation to the subject to which they are applied as to amount to mere arbitrary usurpation of power. Booth vs. Illinois, 184 U. S. 425. This, we think, is clearly not the case. So, also, as the statute makes a classification based upon a reasonable distinction, and one which, as we have seen, has been generally applied in the exertion of the police power over the subject, there is no foundation for the proposition that the result of the enforcement of the statute will be to deny the equal protection of the laws."

Adv. Sheets, U. S. R. Vol. 217, pages 461 and 472