#### State v. Woodman.

T t From Edgecombe» J

The act of 1794, ch. 406. relative to slaves hiring their own time, has two objects in view; 1st, to fine the owner; and, 2d, to abate the nuisance if it be yet continuing, or if it be at an end, to pursue the slave and have him hired out.

The necessity of proceeding by presentment under the act of 1794, is repealed by the act of 1797, ch. 474. sec. 3.

It is improper to lay an offence to have been committed after the finding the indictment; but if a day certain be laid before, the other may be rejected as surplusage»

This was an indictment in the following words:

The jurors for the state upon their oath present, that a certain negro man slave named Tom, the property of George W. Woodman, late of the county of Edgecombe, merchant, on the first day of November in the year aforesaid, at and in the county aforesaid, and on divers other times in the county aforesaid, both before and since the taking of this inquisition, has been permitted by his master the said George W. Woodman, to go at large, hiring himself to divers persons, lie the said Tom having hired his own time from his said master, the said George W. Woodman, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.

This indictment having been returned on the 4th Monday of November, to the County Court of Edgecombe, endorsed “ a true bill,” a capias issued against Tom, his master became bound by recognizance for his appearance, and the plea of not guilty was entered. On the trial in the County Court, the jury returned a verdict of guilty, and the defendant appealed from the judgment pronounced. In the Superior Court, the jury found a verdict of guilty, and the Court pronounced judgment that the negro Tom should be hired out by the sheriff of the eonnty, *385at public vendue, for the space of one year, taking bond and security for the hire, payable to the wardens of the poor and for the use of the poor of said county, and that the defendant pay the costs of the prosecution. The defendant appealed to this Court.

Gaston, for the defendant,

said, that the proceeding was intended to be in pursuance of the act of 1794, clu 406. JV*. hut that it was erroneous throughout. It had treated the hiring of the slave by himself as an indictable oifence, whereas the act prescribed an inquiry into an existing nuisance presented by the grand jury. *386Two objects were in the contemplation of the legislature; 1st, to subject the owner to a temporary loss of his slave’s services; and, 2nd, to remove an existing nuisance; and †]1(} correctness of this construction is apparent from the last proviso. If more be contemplated than the removal, of an existing nuisance, it will follow that at any period, however remote, after a slave has hired his own time, his, then master, though guilty of no violation of law, shall lose his services for one year; will punishment then fall upon the guilty?

But if this mode of proceeding be correct, then a presentment should precede the indictment; the record shows none. The indictment itself is defective, for it is not alleged that at the time of the inquisition, the nuisance existed, and this is one of those cases where time is material. (1 Chitty C. L. 224. et seq.) Again, the indictment charges the oifencc to have been committed on an impossible day, “ since the taking of this inquisition;” this cannot be aided by verdict, (1 Chitty C. L. 225, 6.) nor can these words be rejected as surplusage, for they are, in themselves sensible and not repugnant to others which precede them. (1 Chitty C. L. 224, 5.)

. The judgment of the Superior Court does not conform to the act, for it makes the payment of costs a personal judgment against Woodman; they should be paid out of the hire of the negro by the words of the act.

There is no evidence on the record that Woodman, iff the County Court, had the ten days notice prescribed by •the statute.

The Attorney General, contra.

The proceeding by indictment was correct, for the master’s right for one year could not be taken away by a trial on a presentment; if the statute intended by proof of the fact that his slave liad hired his own time to divert for a period his right of property, he had a constitutional right to have the charge presented tb his View in an indictment, specific as to. *387lláme, place, and circumstance. The declaration in the act, that «the Court shall empannel a jury to try the truth of such presentment,” so far from precluding the idea of an indictment, strengthens it, for the investigation of the truth of every presentment commences, in our law, by sending witnesses to a grand jury to substantiate a particular fact comprehended in the general terms of the presentment, and always contained in an indictment. It has heretofore been deemed advantageous to criminals to have the charge against them set forth particularly, and it surely is a novel objection that a culprit has been. told too plainly the precise offence with which he is charged.

The indictment does allege, with sufficient certainty, a precise time at which the offence was committed, viz. the first of November; nor is it necessary that it should do more than name a day prior to the finding of the bilk .(1 Chitty C. L. 558, 9.)

As to the objection that notice was not given to Woodman in the County Court, it is immaterial, because the proceedings in the Superior Court were de novo, and he there had notice; but if it were important, it does not appear from the record that Woodman ever took any exception for the want of notice.

*

Act of 1794.

* 1. Be it enacted, &c.That it shall not be lawful under any pretence Whatever, for any person or persons to allow his, her or their slave, or any slave under his, her or their command or direction, to hire his, her or their time, under the penalty of forfeiting the sum of twenty pounds for each and every offence, to be recovered before any justice of the peace, to the sole benefit of the party prosecuting: and it shall be part ©f the duty and charge of the grand jury, both in the County and Supe* rior Courts, to make presentment of any slave who shall be piftanitted by his or her master or mistress to go at large, having hired his orhei; time; and on such presentment being made, the Court shall issue an order to the sheriff of the county where such negro may be, to take up such negro, and him or her safely secure, so that he can have such negro before the next County Court; and it shall be the duty of the ■sheriff to give the owner notice thereof (if residing within the district,) at least ten days before the sitting of the Court; and the said Court shall impannel a jury to inquire and try the truth of such presentment, on which trial or inquiry, the owner may produce evidence -as in other cases: and if the jury shall find that the said presentment is true, such negro shall then be hired out by the sheriff of the county at publie vendue, for the space of one year, taking bond with security for the same, payable to the wardens of the poor, for the use of the poor of said county, subject to the payment of any charges respecting said negro, jProvided always, that when tfie owner resides out of the district, the sheriff shall give notice by advertisement in the nearest Gazette, for at least two weeks, &c. Provided always, that when any person who shall hire the negroes of an orphan, shall hire to such slave his or her time, the slave shall only be hired out under this act, for such time, or the remainder of the time, as said slave may have bee» hired to such person.

Taylor, Chief Justice.

In construing the act of 1794, on which this indictment is framed, it does not seem that the nuisance must necessarily be continuing when the bill is found. The design of the act is twofold; 1st, to fine the owner directly for allowing his slave to hire his own time; and, 2dly, to abate the nuisance if it be continuing, or if it be at an end to pursue the slave in whose person it was committed, in order to have him hired out. Upon the latter branch this prosecution is founded; and although this mode will pnovc inconvenient to future owners ox* hix-ers, by taking the slave out of their possession, yet they take the property mm mere, which they must submit *388to like any other defect in the title. This construction is unavoidable, otherwise the act might be easily evaded by calling home the slave the day before a grand jury is im-pannelled, and letting him at large again to hire his own time immediately on the adjournment of the Court.

As to the necessity of proceeding by presentment, that is repealed by the subsequent act of 1797, ch. 474. sec. 3.

It was certainly improper to lay the offence to have been committed after the finding the indictment; but as a day certain is laid before, this may be rejected as sur-plusage. The judgment must be affirmed.