State v. Minton.

tice." This act evidently embraces every case of receiving stolen goods, whether the value be under or over twelve pence, and it does so without any aid from the 26th section of the same chapter of the Revised Code, which abolishes all distinction between grand and petty larceny. An indictment upon it must of course conclude against the statute, or it cannot be supported.

It is proper for us to avail ourselves of this opportunity to correct a mistake committed inadvertently in the case of the State v. Beatty, ante p. 52. In that case the counsel for the defendant contended that the second count of the indictment was bad because it did not contain an averment of the person from whom the stolen goods were received, and for this he cited and relied on the case of State v. Ives, 13 Ire., 338. The court assented to the proposition without adverting to the fact that the State v. Ives was decided upon the act contained in the Revised Statutes, c. 34, s. 54, and that the State v. Beatty was upon the act in the Revised Code to which we have referred. In the Revised Statutes the language is: "if any person shall receive or buy any property that shall be feloniously stolen or taken from any other person, knowing the same to be stolen," &c.. while in the Revised Code the words "from any other person" is omitted. This omission has prevailed upon the courts in England to adopt the construction upon their statute of 8 and 9 Geo. 4, ch. 29, that it is unnecessary to state in an indictment upon it the name of the person from whom the goods were stolen. Jervis' case, 6 Car. & Paine, 156, (25 Eng. C. L. Rep., 330,) Ros. Cr. Ev., 868. Our act is manifestly taken from the British statute, and we presume ought to receive the same construction.

The motion to arrest the judgment in the case before us ought to have been sustained, and this must be certified to the court below.


Judgment arrested.

The Atlantic Bank of New York v. Frankford.


An affidavit amended by order of the court must be re-sworn to after amendment, or it will be considered as no affidavit.

ORIGINAL ATTACHMENT, before Buxton, J., at Fall Term, 1866, of ROWAN Superior Court, upon a motion to quash.

The view taken by the court renders it necessary to state only that the plaintiff was a corporation, chartered in New York, and had sued out an attachment agaidst the effects of the defendant, making affidavit that the latter "is a nonresident of the State, or so absconds or conceals himself," &c. This attachment was returned to Spring Term, 1866, of Rowan Superior Court, and at Fall Term, 1866, upon motion by the plaintiff, the words, "is a non-resident of this State," above, were stricken out.

Before the amendment was allowed, the defendant had moved to quash the attachment, and after such allowance, this motion was overruled. Thereupon the defendant appealed.

Boyden and Bailey, for the plaintiff.

Blackmer and McCorkle, for the defendant.

READE, J. The plaintiff's counsel moved to amend the affidavit by striking from it certain words, and the court allowed the motion.

It does not appear that it was sworn to again after it was thus amended. It was then no affidavit at all, and the plaintiff could not be convicted of perjury, if, as amended, it be false. The case stands then as if there were no affi

The Atlantic Bank of New York v. Frankford.

davit. An original attachment, without an affidavit to support it, is irregular, and may be quashed on motion. There is error in the refusal to quash.


Judgment reversed.

N W. WOODFIN and T. W. PATTON, Ex'rs, &c., v. ERWIN


The provisions of the ordinance of October, 1865, in regard to the value of certain executory contracts "solvable in money," do not conflict with the Constitution of the United States.

Where a bond for money does not profess to set forth the other terms of the contract in the course of which it was given, parol evidence is competent to establish those others: therefore,

Where proclamation was made at a hiring by executors in January, 1865, that such money would be received as would pay the debts of the estate, reference being made specially to a bank debt, held that, although no allusion to this was contained in the bonds given for such hires, it was competent for the obligors to show the proclamation, and also the market value of the notes of the bank.

A bond given in January, 1865, for the hire of slaves during that year, is subject to no deduction on account of Emancipation.

(Daughtry v. Boothe, 4 Jon., 87; Twidy v. Sanderson, 9 Ire., 5; Manning v. Jones, Bus., 368, cited and approved.)

DEBT, tried before Shipp, J., at Fall Term, 1866, of the Superior Court of BUNCOMBE.

The bond upon which the suit was brought was for $2,000, dated 2d January, 1865, with condition reciting the hire of two slaves until the 25th of December, 1865, for the sum of "two hundred dollars," &c, and concluding as usual. Upon the trial below it was agreed that the slaves remained in the service of the defendant until the Federal troops reached Asheville, about the 25th day of April, 1865, when they

Woodfin v. Sluder.

went off with, or under the influence of those troops; also, that it was proclaimed by the plaintiffs at the hiring that such money would be required as would pay the debts. against the estate, and that none other would be required; and in this connexion a large debt to the Bank of Cape Fear at Asheville was referred to, and perhaps other debts; it was also agreed that the notes of that bank could, at the time of the trial, be purchased at 25 cents in the dollar.

The parties submitted to his Honor the question as to the amount that the plaintiffs were entitled to recover, espe cially, whether they were entitled to recover for the entire year, or only for the time that the slaves served; also, whether defendant could pay in such funds as would pay the bank debt as above.

His Honor gave judgment, to be discharged by the payment of fifty dollars in specie, &c. From this judgment both parties appealed.

Boyden & Bailey, for the plaintiffs.

1. "Dollar" means the representative of 100 cents; Bouvier, and Webster, title Dollar. Such must be taken to be the meaning of that word in this bond, a meaning not to be varied by parol.

2. The ordinance of the 18th of October, 1865, so far as it affects this fundamental law of written contracts, is in di rect conflict with the Federal Constitution. See Federalist, No. 44, Elliott's Debates passim; Sturges v. Crowninshield, 4 Wheat., 122; Green v. Biddle, 8 Wheat., 1; Baltimore &c., v. Nesbit, 10 How., 395; Curran v. Arkansas, 15 How., 304; Hicks v. Hotchkiss, 7 Johns. Ch., 297; Commercial Bank v. Chambers, 8 Sm. & M., 9; Smith v. Morse, 2 Cal., 524; Quackenbush v. Darks, 1 Denio, 128, S. C., 1 Comst., 129; Planter's Bank v. Sharp, 6 How., 301; Golden v. Prince, 3 Wash., C. C., 314; Bruce v. Schuyler, 4 Gilm., 221; McMillan

Woodfin v. Sluder.

v. McNeil, 4 Wheat., 209; 1 Kent Lect., 19; 2 Pars. Con., 509; Barnes v. Barnes, 8 Jon., 366.

No counsel for the defendant.

READE, J. If A hire a slave to B for a year, B during the year is the owner of the slave. And if the slave die during the year, A loses his general property and B loses his special property, i. e., A loses the slave and B loses the hire. The emancipation of slaves during the year was their artificial death as slaves, and operated as would their nat ural death; therefore the defendant is liable for the hire during the whole of the year.

The bond upon its face is for $200. But it is stated in the casc agreed that it was proclaimed at the hiring, as the terms thereof, that such money would be taken as would pay the debts of the estate; and special reference was made to a debt due the bank, which could be paid in its own notes, and that they were worth twenty-five cents in the dollar. If, therefore, we can look behind the bond to see what the contract was, it would seem that justice would be arrived at by a judgment for one-fourth of the amount of the bond.

The question then is, can we look for the agreement of the parties outside of the bond? If an agreement is reduced to writing, then the writing is the best evidence; and upon general principles it cannot be varied by parol evidence. But it does not appear that the agreement in this case was reduced to writing. Indeed, it appears affirmatively that it was not. It is stated in the case agreed that it was proclaimed at the hiring that such money would be taken as would pay the debts of the estate, yet that is not stated in the bond. And the bond does not profess to set forth the agreement, but recites the fact that the hiring had taken place before the bond was given; so that it ap

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