472
Thei Green Bag.
dictments are cured, except the omission of an averment of matter essential to con stitute the crime charged. This certainly was the clear intent of the law-making power. He says : " This law was certainly designed to uphold the execution of public justice, by freeing the courts from those fet ters of form, technicality, and refinement which do not concern the substance of the charge and the proof to support it. Many sages of the law had before called nice objections of this sort a disease of the law and a reproach to the bench, and lamented that they were bound down to strict and precise precedents, neither more brief, plain, nor perspicuous than that which they were constrained to accept. In all indictments, especially those for felonies, exceptions ex tremely refined, and often going to form only, have been, though reluctantly, enter tained. We think the legislature meant to disallow the whole of them, and only require the substance; that is, a direct averment of those facts and circumstances which consti tute the crime to be set forth." In 1796 the North Carolina legislature amended the common-law rule by prohibiting judges from expressing an opinion on the facts. The example has been followed in only a very few States, and the common-law rule still prevails in the United States and most of the State courts, as well as in all other English-speaking countries. In this same case (State v. Moses) Judge Ruffin takes his stand against an extension of the pur port of this statute by judicial construction, and intimates that " the administration of the law would be more certain, its tribunals more revered, and the suitors better satis fied, if the judge were required (as formerly) to submit his views on the whole case, and after the able and ingenious but interested and partial arguments of counsei, to follow with his own calm, discreet, sensible, and impartial summary of the case, including both law and fact. Such an elucidation from an upright, learned, and discreet magistrate, habituated to the investigation
of complicated masses of testimony, often contradictory, and often apparently so, but really reconcilable, would be of infinite utility to a conscientious jury in arriving at a just conclusion, not by force of the Judge's opinion, but of the reasons on which it was founded, and on which the jury would still have to pass. If this duty were imposed on the Judge, it is not to be questioned that success would, oftener than it does, depend on the justice of the cause, rather than the ability or the adroitness of the advocate." During his service on the bench two no table departures were made from the Eng lish precedents in equity, simplifying our system and freeing it from embarrassments : (1) Adhering to the Statute of Frauds, and refusing to decree specific performance of a verbal contract of sale of land upon part performance; (2) Discarding the doctrine of vendor's lien upon land sold on credit. Womble v. Battle, 38 N. C. 193. There were also other salutary reforms, since rec ognized and acted on by many able courts, in support of which Chief-Justice Ruffin delivered strong and convincing arguments. His familiar knowledge of affairs, especially with banking and accounts, and his practical knowledge of our many-sided, every-day life was of great advantage to him on the bench. He was, as Tennyson says of Wellington, "rich in saving common-sense." In State v. Morrison, 14 N. C. 299, he laid down the doctrine, since followed in every State but one (Black Int. Liquors, § 507) that on an indictment for retailing liquors without license, the burden is on the defend ant to show the existence of a license. His opinion in " Hoke v. Henderson," 15 N. C. (4 Dev.) 1, holding that an officer has an estate in his office, and though the legisla ture may destroy the office (when not pro hibited by the Constitution), yet it cannot continue the office, and transfer the estate in it to another, is a most able argument, which received the notice and high enco mium of Kent and other constitutional writ ers. It was the main authority relied on by
