State v. . Anderson

Supreme Court of North Carolina

State v. . Anderson

31 S.E. 219, 123 N.C. 705, 1898 N.C. LEXIS 127

DecidedOctober 10, 1898

StatusPublished

This text of 31 S.E. 219 (State v. . Anderson) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. . Anderson, 31 S.E. 219, 123 N.C. 705, 1898 N.C. LEXIS 127 (N.C. 1898).

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Opinion

Fairoloth, O. J.:

The Act of 1885, Ch. 106, makes it a misdemeanor for any person to permit his or her live stock to run at large in the County of Edgecombe, and the Act of 1897, Ch. 301, amends the said Act of 1885 by adding after the word “Edgecombe” the words “between March the first and December the 31st.” The first Act, called the “Stock” law act,- relieved every planter from keeping a lawful fence around his farm, as required by The Code, Sec. 2799. The defendant is indicted for failing to have such fence around his farm on the 20th of January, 1898. The case hinges upon the effect of the amending Act of 1897, Ch. 301.

The contention of the State is that the amendment re *709 pealed the Act of 1885 and put The Code, Sec. 2799, in operation, on the principle that the repeal of the Statute, repealing a former statute, leaves the latter in force. We cannot adopt that view in this case. The amending act does not profess, or in effect repeal the first statute. We think the amendment must be taken as if it had been inserted in the original act, uncovering or excepting the period from December 31 to March the first. In England the Common Law did not permit stock to run, at large. In this country the conditions were so different, owing to the vast forests and the small number of acres under cultivation, that the rule was practically’ changed and by common consent the custom obtained of allowing stock to run at large. It was rather the necessity of the situation than a rule of law, and this custom still continues, when not changed by statute. Our Court has frequently recognized this custom in the various instances in which the question arose in different forms. Laws v. Railroad, 52 N. C., 478; Morrison v. Cornelius, 63 N. C., 351 ; Burgwyn v. Whitfield, 81 N. C., 263.

Our conclusion therefore is that the judgment of the Superior Court upon the special verdict was not erroneous.

Affirmed.

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Fairoloth, O. J.:

The Act of 1885, Ch. 106, makes it a misdemeanor for any person to permit his or her live stock to run at large in the County of Edgecombe, and the Act of 1897, Ch. 301, amends the said Act of 1885 by adding after the word “Edgecombe” the words “between March the first and December the 31st.” The first Act, called the “Stock” law act,- relieved every planter from keeping a lawful fence around his farm, as required by The Code, Sec. 2799. The defendant is indicted for failing to have such fence around his farm on the 20th of January, 1898. The case hinges upon the effect of the amending Act of 1897, Ch. 301.

The contention of the State is that the amendment re *709 pealed the Act of 1885 and put The Code, Sec. 2799, in operation, on the principle that the repeal of the Statute, repealing a former statute, leaves the latter in force. We cannot adopt that view in this case. The amending act does not profess, or in effect repeal the first statute. We think the amendment must be taken as if it had been inserted in the original act, uncovering or excepting the period from December 31 to March the first. In England the Common Law did not permit stock to run, at large. In this country the conditions were so different, owing to the vast forests and the small number of acres under cultivation, that the rule was practically’ changed and by common consent the custom obtained of allowing stock to run at large. It was rather the necessity of the situation than a rule of law, and this custom still continues, when not changed by statute. Our Court has frequently recognized this custom in the various instances in which the question arose in different forms. Laws v. Railroad, 52 N. C., 478; Morrison v. Cornelius, 63 N. C., 351 ; Burgwyn v. Whitfield, 81 N. C., 263.

Our conclusion therefore is that the judgment of the Superior Court upon the special verdict was not erroneous.

Affirmed.

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31 S.E. 219, 123 N.C. 705, 1898 N.C. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-anderson-nc-1898.

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