442 Proceedings of the Council of Maryland, 1694 97.

     Lib. H. D.     cannot after that Assign any Error which is matter of ifact,

            Rolls Tit Error ffol 762.

             2: If he Assign Matter of ifact for Error a sci: fa: shall be

            Granted, 18H: 6:19.

             And it seemeth to me that vpon the Return of the Sci: ifac:

            & the Appearance of the Deft therevpon in that Court where

            the Writ of Error is Returnable, and where the Error is

            Assigned the Plaintiffe & Deft shall join issue, which issue

         p.    355 must be sent to that Court where the first Cause was Tryed,

            and shall be there tryed by Twelve Men, and then it shall be

            sent to that Court where the Writ of Error is depending, and

            then they must proceed accordingly. This I humbly submit

            to your Exncy as the Opinion of

                            Yor Excells most humble Servt

                                       R: Gouldesborough

      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    Robt Carvile

             In obedience to your Exncies Commands, to Certifye my

            Opinion, in the Case of Edward Randolph Esqr, who as well

            for our Soveraign Lord the King as for himself prosecuted

            against John Blackmore & the ship Ann &Ca I have considered

             1: That in the case of a Subject only & where the King is

            not concern'd in the Suit; if a Writ of Error be brought in a

            Superiour Court vpon a Judgmt given in an inferiour Court,

            and the Judgmt be therevpon Reversed for Error in the

            Judgmt 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 1st part, tit Error ffol

            774, Delamore & Hoskins Case, Lim 10 Car Rot 900 adjudg

            ed Hoskins & Cheles Case, Mich: 14 Caroli in B R adjudged,

            and Omuleourie & Aires case adjudged in a Writ of Error

            vpon a Judgmt in Ireland, Mich, 1 3 Car in Banco Regis Rot

           332.

             2: In the principall Case the information was brought agt

            the ship vpon the Statute supposing that she had not observed

            the form of the Statute, 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 In former

            Vpon this the Master of the ship appeared & pleaded not

            guilty & puts himself vpon the Countrey, and the Informer

            J oynes issue,