MARYLAND COURT OF APPEALS 651

I am of the same Opinion with the above Reporter.

Geo: Plater

I am of the same Philip Clarke
I subscribe to the same Opinion Rob^t Carvile

In obedience to your Ex^ncles Commands, to Certifye my Opinion, in
the Case of Edward Randolph Esq^r, who as well for our Soveraign Lord the
King as for himself prosecuted against John Blackmore and the ship Ann
etc" I have considered

i: That in the case of a Subject only and where the King is not con-
cern'd in the Suit; if a Writ of Error be brought in a Superiour Court vpon
a Judgm^t given in an inferiour Court, and the Judgm^t be therevpon Reversed
for Error in the Judgm^t given in the inferiour Court; then the Superiour
Court ought to give the same Judgm^t as the inferiour ought to have done in
case they had not Erred, Rolls i" part, tit Error Fol 774, Delamore and
Hoskins Case, Lim 10 Car Rot 900 adjudged Hoskins and Cheles Case,
Midi: 14 Caroli in B R adjudged, and Omuleourie and Aires case adjudged
in a Writ of Error vpon a Judgm^t in Ireland, Mich, 13 Car in Banco Regis
Rot 332.

2: In the principall Case the information was brought ag^t the ship
vpon the Statute supposing that she had not observed the form of the Stat-
ute, but had taken on Board Tobacco before any Bond was given according
to the form of the Statute, and was thereby become forfieted to the King and
to the Informer Vpon this the Master of the ship appeared and pleaded not
guilty and puts himself vpon the Countrey, and the Informer Joynes issue.

The point in issue to be tryed was whether the ship tooke in Tobacco
before Bond given or not; and if the Def^t had given the Bond in Evidence
to the Jury at the Barr to Maintain and support the Matter in issue, if the
Bond was not a good Bond according to the form of the Statute, the Kings
Councill or they that were of Councill with the Informer ought to have de-
murred in Law to such Bond given in Evidence, and then vpon Demurrer
joyned the Judges would have given Judgm^t whether the bond was accord-
ing to the form of the Statute or not, and whether twas good Evidence or
not to the jury; for the Jurye cannot Trye whether the Bond be a good Bond
or not, but this must be tryed by the Judges, being a matter of Law, and it
cannot come before them but by Demurrer, and the Jury are sworn to Trye
the Fact only, Viz^t whether the ship tooke in Tobacco before bond given or
not; And if the Informer will not Demurr to the Bond when 'tis given in
Evidence to the Jury then it shall be taken to be a good Bond, and if the
Jury find against him, he cannot vpon a Writ of Error in a Superiour Court
Assign for Error that the bond was not a good bond, because he did not take
advantage thereof in the first Action, Vide Rolls tit Error Fol 781. 20 Ass:
gM: 40: 41 Eliz: B: R: Smith and Odyhams case adjudged p: 16. Jacobi.
B: R: Markham and S^r Era: Fortescues Case adjudged P. 9. Caroli. Lord