440 Proceedings of the Council of Maryland, 1694 97.

       Lib. H. D.     dence to Averr, had I not been an Eye Witness and a hearer

             of Matters which make it evident; for which digression from

             the Quaere, I humbly beg your Exncies pardon.

               As to the third Quaere, which concerns the particular case

             of Esqr Randolph & Blackmore vpon an information exhibited

             by the sd Randolph against the Ship Anne whereof the sd

             Blackmore was Mastr for taking severall hogsheads of Tobacco

             on Board before such Bond given, as the Act of Parliamt in

             such case Requires; the said Master coming to Tryall in the

             Provll Court, and it being acknowledged & given for Granted

             that there was Tobacco taken on Board before any other Bond

             was given than the Bond then produced in Court & shewed

             to the Jury, the only question then Remaining to be determin'd

             was whether that Bond was a sufficient Bond according to the

             Act of Parliament, which being a Question of Law ought to be

             Judged off by the Judges, but the Jury taking the sd Matter of

             Law vpon themselves found the sd Blackmore and his said

             ship, not guilty & consequently Judged the sd Bond to them

             produced to be a sufficient Bond in Law, for which Reason the

             sd Randolph Appealed to your Excell & Councill & Assigned

             for Error the insufficiency of the sd Bond according to the Act

          P. 353 of Parliamt vpon which your EXnCY & Councill thought fit to

             Judge the sd Bond insufficient in Law & consequently to

             Reverse the Judgmt of the Provinciall Court whereby the said

             ship was cleared.

               I am therefore of Opinion that vpon the Reversall of the

             J udgmt of the Provinciall Court for the Reason aforesd the

             ship ought to be condemned, because that whensoever a Writ

             of Error is brought in a Superiour Court vpon a Judgmt given

             in an inferiour Court, if the Judgmt of the inferiour Court be

             Reversed for any Errors assigned then and in such Case the

             Superiour Court ought to give the same Judgmt as the infe

             riour Court ought to have given, if such Error had not

             happened; Now if the Error of Judging the sd Bond sufficient

             had not happened in the provinciall Court but that the sd Bond

             had been Judged there insufficient (as your Excell & Councill

             adjudged it) then without all dispute they ought to have Con

             demned the Ship, consequently your Excy & Councill having

             judged the sd Bond insufficient, and the not doing so being

             the Error of the Provinciall Court, The Judgmt to be given by

             your EXUCY & Councill (I humbly conceive) is that the ship be

             Condemned according to the directions of the Act of Parliamt

             and for any person to come now & Alledge in barr of such

             Judgment that there is Matter of fact to be still inquired into

             (vizt whether the said ship tooke in Tobacco before Bond

             given) is idle fforreign, and now too late to alledge, because it

             was given for Granted & allowed vpon the Tryall that Tobacco