The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-03-06

his gun, with the exclamation Damn it,
I'm going to shoot" and, without provo
lcation, discharged his gun through the
loren door OF the house, killing an in
mate, it was held that the Judge was
lwerranted in charging the jury that if
Ethey were not satisfied beyond a reason
able doubt that the killing was the result
LOT generalization and deliberatlon, the
verdict should be murder in the second
degree; if it resulted from wlful premedi-
tatlon and elaboration, the verdict should
be murder III the first degree, But THAT
IN NO VIEW OF THE EVIDENCE IF
BELIEVED, COULD THE VERDICT BE
MERELY MANSLAUGHTER.
| STATE, appellant V. PATTERSON.
From Durham. Reversed.
Under section 2 chapter 249 Laws 1903
the place OF actual delivery to the buyer
of liquors is the place of sale thereof.
| A statute may be both general and
local or public and private in its ma
ture. HUMPHREYS v. Baxter, 2S N. C. 439;
State V. Wallace, "a N. G.. 227.
/ The rule that when the language of
a statute is ambiguous the courts may
Icscrt TO the title to aid them IN giving
the statute its true meaning, does not
Apply Nnen the Ia1SuaSc Oh the dCJ Is
clear and unambiguous Therefore chap
ter $40, Laws 1903, entitled IAN act to
prohibit the manufacture, sale and I'M
pCrtation of liquor in Cleveland, Cabal
rus, Mitchell and CASTOR countess and
providing in section one that it shall
be operative in the counties named and
in section two that the place where
delivery of any liquor is made in the
| Stota nf North Carolina shall no pnn-
strued and held to be the place of sale
thereof" is construed to be general as
| we'll as local IN it's application.
J The ruleSthat the place of sale OF goods
| is where they are delivered to the car
rier is one merely of judicial construc-
| ton, made in the absence of legisla-
| tion,' and is not protected by constitution
al provision. 1t is subject to change by
tn, legislature in the exercise of its police
power TO regulate the sale of liquor.
| The first ten amendments to the Con-
stitution of the United States are re-
stlictons upon the Federal government
| and not upon the States. Cook V. U. S.
i13s IT, S.. 157; Barron V. Baltimore, 30
U. s. 234; Spies V. Illinois, 12S U. S. 131.
AVERY " STEWART. appellant From
| Craven. New trial.
| There must be at least some evidence
| of a bona fde search for paper alleged
| to have been lost, and that all available
means of discovering it have been OK
hausted, before parol evidence of its con-
tents can become competent; and there
mist be some evidnce that the paper
cnce existed, though slight evidence is
sufficient for that purpose.
Ii is not necessary to prove exhaus-
lively that the paper exists nowhere.
It is sufficient if the party offering parcl
| proof shows such diligence as is usual
with good business men.
The degree of diligence necessary liz
| the search is not easy to define, 5ut IS
de- pe ndent upon the value and import
ance of the lost instrument.
Whether the loss of the paper is sui
| fiC:ently proved to admit secondary evil
deuce OF its contents is for the court to
determine.
1t is for the court to decide Nhen
prro! evidence is admissible to prove tn.
contents of lost instrument, but the
que ston is one of law and not Of dis
erection. ellis V. Railroad, los N. c.
AL overruled.
EARLY " EARLY, appellant From
Bertie. Affirmed.
A motion for judgment upon the plead
inSs for that the answer does not con-
tam a sufficient denial of the material
allegations of the complaint will not be
ent ertained when made for the first time
in the Supreme Court, and after the
plaintiff has agreed in the trial below
that the facts should be found by the
judge and the law arising thereon de-
cd nv HnuRh
in. c.. 3S6; Greensboro v. Scott, 81 n. c.
1S4; Robbins v. Killebrew, 50 n. C. 10;
Hines V. Railroad Ibid 434.
The essential principle Of the ancient
law of inheritance was that the stock
of descent could not be established eX-
ccpt by actual seizin, but under the law
in tho Revised Code, as brought forward
| in the present Code. all that is required
to constitute a sufficient seizin for the
creation of a new stock of inheritance
or STRIPS of descent, is that the person
fron whom the descent is claimed shall
have had, at the time of the descent
cast, some right, title or interest in the
inheritance, whether vested in possession
or not Sears V. Mcbride. 20 N. c. 1872.
King V. Scoggin, % n. C. 80 and Law
renee V. Pitt, as N. c. 344. distinguished.
Where a devisee in remainder after a
life estate-thc devisee being son OF the
devisor--dies during the continuance OF
the life estate leaving wife and al
infant child, and also brothers and sis
te1s of the whole blood, and the infant
child of the devisee in remainder alter
wards died before the termination OF the
life estate and without issue, or brother
or sister, but leaving his mother survlv-
ing. it was held that the infant OF the
rcmainderman, although dying during tie
continuance of the life estate, was sui-
ficiently seized of the remainder to
Great. a stock of inheritance in him,
and the inheritance by virtue OF Rule
Chapter % of The Code vested in his
mother upon the termination OF the lie
estate, and not in the brothers and Sis
ters of the remalnderman.
HOOKER, appellant, V. WORTHINGTON.
From Pitt. No error.
When thu statute OF limitations has
been pleaded the burden is on the plain
| tiff to show that the cause OF action