I think this Indictmt vague & uncertain, so that it could not be supported, on a Writ of Error—There are not any of ye Indorsementse same names, for the like quantity of Land in ye same County—And for other reasons, unnecessary to Enumerate.
With respect to the last question, on Mr Fanning's Case, I conceive a full answer is given in my former opinion. [See page 33 ante.—Editor.] I do not see the least foundation, for criminating the Defendant, and I am therefore clearly of opinion, he ought, in every respect, to be Exculpated.
In my opinion on the Second Question, I observed that a Prosecutor had his Election, either to proceed for the Penalty, by action; or for Criminal punishment, by Indictment.
This, perhaps, hath induced a Supposition, that I doubted, with respect to the Case in question. But, if my answer is reconsidered, I apprehend 'twill clearly appear, I was only attempting to Elucidate (if it required any Elucidation) the Second section of the Act of Assembly, & to shew that it doth not restrain the operation of the Common Law—Yet I had not, nor could I have it in contemplation to apply any Criminality to Mr Fanning.