habeas corpus, yet the litigating the scienter would involve the witness in the very litigation which was intended to have been avoided by the writ of protection.

The Court are fully in opinion, that the prisoner must be discharged.

Let judgment be entered, that the prisoner is discharged, and the constable be in mercy for his contempt of the Court.

Thaddeus Rice, for the officer.

William C. Harrington and Bates Turner, for the prisoner.

Ex parte

Hall.

JOSIAH COLONY, Appellee.

against

ALFRED HATHAWAY, Appellant.

trial, because

alone in the

Jury, and ano

VERDICT for the defendant at the last term; Motion for new when House and A. Marsh, counsel for the plaintiff, one Judge sat moved for a rule upon Harrington and Rice, attornies hearing to the to the defendant, to shew cause why the verdict in ther mem er of said cause should not be set aside and a new trial the Court was granted; because the plaintiff says, that one Judge or had been alone presided, and held the Court for the trial of ther party. said cause, when in fact the two other Judges of the Court were not interested in the trial of said cause,

or had been of counsel for either party.

Rule granted by Jacob, Judge, December term,

1801.

not interested,

counsel for ei

Colony The facts are: This cause came on for trial the Hathaway. last stated term; the Chief Judge and Jacob, As

V.

Vermont Stat. vol. 1. p. 56. s. 7.

sistant Judge, present; the first Assistant Judge absent, but not interested in the trial of the cause, nor had he been of counsel to either party. The Chief Judge declined giving any opinion in the cause, as he was in affinity with the appellant. Some conversation was held at the bar upon the propriety of Judge Jacob's sitting alone; but the Judge observed, that as the parties seemed equally desirous of a trial, the cause might proceed, reserving to the losing party the privilege of having the legality of the proceedings of the Court decided upon a motion for a new trial, to be entered at the present, but argued at the adjourned term, when the absent Judge would be in Court. This was agreed to by the parties, and the trial proceeded.

The statute provision on which the motion is predicated is, "that if two of the Judges in the trial of any cause shall be interested, or shall have been of counsel for either party in said cause, in every such case one Judge shall hold the Court for the trial of such cause."

And now at this term the motion was argued, Tyler and Jacob, Judges, present; but the Court being divided, the former Judge for setting aside and the latter for supporting the verdict, the motion did not prevail, and a new trial was not granted.

Rule discharged.

Levi House and Amos Marsh, for plaintiff.

W. C. Harrington and Thaddeus Rice, for defendant.

STATE against J. P.

State

V.

J. P.

perjury quash

THIS was an indictment for perjury contra Indictment for formam statuti, presented to the Court January ed on motion. 3d, 1801.

William C. Harrington moved that the indictment might be quashed because the crime is alleged to have been committed the 24th day of April, 1797, more than three years from the time the indictment. was exhibited in Court.

He relied upon the act for the limitation of suits on

penal statutes, criminal prosecutions, and actions at
law, passed November 6th, 1797. The 3d section
enacts, “ that all actions, suits, bills, complaints, in-
formations or indictments, which at any time hereaf-
ter shall be brought, had, commenced or prosecuted
for
any crime or misdemeanor, (theft, robbery, bur-
glary, forgery, arson, and murder, excepted,) shall be
brought, had, commenced or prosecuted within three
years next after the offence was committed; and not
after the expiration of the said three years."

The Attorney for the State read the 13th section of the same act: "Provided always, and it is hereby further enacted and expressly declared, that this act shall not be construed to extend to or affect any right or rights, action or actions, remedies, fines, forfeitures, privileges or advantages, accruing under any former act or acts, clause or clauses of acts, fall

Vermont Stat. vol. 2. p. 405.

ing within the construction of this act, in any manner

whatever :"

And the act passed November the 10th, 1797, entitled, "an act repealing certain acts therein mentioned;" which act repeals the act for the prevention and punishment of frauds and perjuries, passed March the 8th, 1787, and by section 3d provides, "that the aforesaid repealed acts or laws shall be in full force as to all matters and things done or transacted during their existence, to which they relate, to all intents and purposes as though this act had not been made; and all such matters may be prosecuted, commenced, done and completed, at any time hereafter, pursuant to the same laws."

Mr. Attorney contended, that though the indictment had been presented to the Court since the passing of the statute of November 6th, 1797, cited by the respondent's counsel, and since the passing of the present statute against perjury, yet the crime alleged in the indictment is set forth to have been perpetrated before the existence of those acts. The indictment being contra formam statuti must be considered to lie on the statute of the 8th of March, 1787, and is therefore sustained by the saving clause of the repealing act, passed November the 10th, 1797, to which reference is virtually had in the limitation act passed November the 6th, 1797.

Sed per Curiam. It is immaterial under which of the acts against perjury the indictment may be supposed to have been found. The act of limitation,

passed November 6th, 1797,

takes effect in all cases

from the exhibition of the indictment in Court. The

clerk is directed by the 5th section of the same act to make a minute in writing on the indictment, under his official signature, of the true day, month and year when the same was exhibited; and if the crime of perjury is alleged in the indictment to have been committed more than three years before the date of such exhibition of the indictment, the prosecution is Kimited.

Indictment quashed.

Levi House, Attorney for the State.
W. C. Harrington, for defendant.

State

V.

J P.

ELLICK POWELL against BARZILLA BROWN.

EJECTMENT for one hundred acres of land in The deed of a Fairfield, described as Lot No. 10. in the second

division of lots laid out and severed to the right of Joseph Newmarch, an original grantee under the

charter.

General issue pleaded and put to the Jury.

Plaintiff shewed a good apparent title by deed.

collector of a proprietor's

tax, however it

may be word

ed, is not even

prima facie evidence of a legal sale of the land. The proceedin; s of the proprietors in the assessment of the tax, and the collector's own acts in the levy of it must be

Defendant relied upon a title derived from the sale first shewn.

of the land under a proprietary tax, and offered the collector's deed in evidence.