31 S.E. 219 | N.C. | 1898
The act of 1885, ch. 106, makes it a misdemeanor for any person to permit his or her livestock 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 20 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The contention of the State is that the amendment repealed the act of 1885 and put The Code, sec. 2799, in operation, on the principle that the repeal of the statute, repealing a former statute, leaves the latter in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 (709) 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 31 December to March the first. In England the common law did not permit stock to *488
run at large. In this county 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.R. R.,
Our conclusion therefore is that the judgment of the Superior Court upon the special verdict was not erroneous.
Affirmed.
(710)