652 MARYLAND COURT OF APPEALS

Powes and Kirtmans Case adjudged, Nat Brev Fo: 21. Brook tit Error 34.
3. H. 4. 6.

Vbi Eadern Ratio ibi idem Jus esse debet.

3: The Law seemeth to have a far greater care of the Fact than it hath
of it self; for it will not believe the Fact vntill it be sworn by Twelve Men
of the Vicinage where the Fact did arise, and if Eleaven of the Inquest be
Agreed about the Fact, and the twelfth man not Agreed, there can be no
Verdict, but in the Law it is otherwise for there the Major part of the Judges
do give Judgm^t what the Law is, although the other Judges dissent; but as
to the Fact, the whole Inquest must Agree before there can be any Verdict,
and when they are Agreed vpon the Fact, and have delivered this to the
Court, then is it said to be a Verdict which is of so much esteem in the Law
that it shall be credited vntill it be vndone by Attaint etc"

4: When the Matter of Fact is once tryed, there is not any need to
trye that again; for being once well and sufficiently tryed the Law is con-
tented therewith; and in this principall case there is not any thing as touch-
ing the Fact Assigned for Error (but in Law that the bond was not a good
bond only) and the Law intends that the Jury tryed the fact, Viz^t whether
the ship had taken in Tob^o before bond given or not, and they finding for
the DeP it is as much as if they had in express Words said that she did not,
and then there being not any Error in the prosecution of the said informa-
tion, the Matter of Fact (as it seemeth to me) is determined and the Ver-
dict of the Jury is to stand in full force, and the Judges could do no other-
wise than Credit the Verdict and Give Judgm^t according to it; for the Judges
are not to take notice, as I do humbly conceive, whether the Bond was good
or not, being a thing meerly collaterall and was not any part of the Record
which was before them; But if the Kings Counsell or they that were of Coun-
sell with the Informer would not Demurr they have tacitly confessed the
bond given in Evidence to be good, and the Judges are to take it to be so,
vnless the Kings Counsell or the Counsell for the informer shew the con-
trary vpon their Demurrer.

5: In all cases where the King is party 'tis a Rule in Law that the King
being Caput Reipublicae et Juris, Requires th^l Justice should be done be-
tween him and his people with all the favour that may be towards his people
Vide Doc. and Stud. Chap. 48.

This I do humbly Offer to your Ex^ncy as my present Opinion in the
principal Case and begg leave to Subscribe my self
June 17'" 1696. May it please your Ex^ncy

Yo^r Ex^ncles most humble Serv^t

R Gouldesborough

June 22^th 1696.

I do concur with the above Opinion with this further Addition, that
I humbly conceive, that at the Tryall it was not Debated whether the Def^t