648 MARYLAND COURT OF APPEALS

M^r Carrolls Opinion about Attaints etc

In Obedience to your Ex^ncies Ord^r to me for giving my Opinion in three
severall Quaeries put by your Ex^ncy I humbly offer that as to the first where
your Ex^ncy puts the Quaere Whether Attaints may be brought against Juries
in this Countrey, and if to be done, by what Rule they may be brought.

I am of Opinion that in as much as We have no particular Law of our
own Countrey relating to such a matter and having a generall Law whereby
it is Enacted that in whatsoever Case our own Law is silent, that in such Case
the Law of England must be pursued, that therefore Attaints may be brought
against Juries here, and that the Rule they must be brought by, is the same
Rule whereby they are brought in England, which Rule is plainly set down
in our Books, and would be too tedious to insert here, there having severall
Alterations been made therein by severall Statutes. As to the second where
the Quaere is, when any Error in Fact is Assigned vpon an Appeal or Writ
of Error brought to a Superiour Court, before whom such Fact is not cog-
noscible, what course shall be taken to trye that matter of fact. I am of
Opinion in the first place that an Error in Fact may very well be Assigned
as appears clearly in our Books, and that such Error is not to be tryed by the
Judges before whom it is Assigned, quia ad questionem facti non respondent
Judices, but per pais that is a Jury of the Neighbourhood where such fact
did Arise, for the impannelling whereof there must issue a Venire facias to
the Sherriff of the County, and if the Fact assigned be found by the Jury, the
Judges before whom the Writ of Error was brought are to give their Judgm^t
vpon the Law that arises out of the s^d Fact Quia ex facto Jus Oritur et ad
questionem Juris non respondent Juratores sed Judices, and if the Fact so
found be an Erronious Fact, the Judges ought to Reverse the Judgm^t; And
I am further of Opinion (though it be some what beside the Quasre) that in
this Countrey there ought to be a greater latitude allowed in assigning of Er-
rors, and the merits of the Cause to be more inquired into by the Judges be-
fore whom an Appeal or Writ of Error is brought, than in England; Because
some of our Judges and some of our Juryes (which for want of knowing, and
more consciencious Men must of necessity be made vse of) do oftentimes
Judge according to the Affection or disaffection they have for the person
plaintiffe or Defendant, and not according to the Merit of the Cause or the
Law that Arises vpon the pleadings thereof; This I should not have the con-
fidence to Averr, had I not been an Eye Witness and a hearer of Matters
which make it evident; for which digression from the Quasre, I humbly beg
your Ex^ncles pardon.

As to the third Quaere, which concerns the particular case of Esq^r Ran-
dolph and Blackmore vpon an information exhibited by the s^d Randolph
against the Ship Anne whereof the s^d Blackmore was Masf for taking sev-
erall hogsheads of Tobacco on Board before such Bond given, as the Act of