Proceedings of the Council of Maryland, 1694 97. 443

       The point in issue to be tryed was whether the ship tooke Lib. H. D.

    in Tobacco before Bond given or not; and if the Deft had given p. 356

    the Bond in Evidence to the Jury at the Barr to Maintain &

    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

    demurred in Law to such Bond given in Evidence, and then

    vpon Demurrer joyned the Judges would have given Judgmt

    whether the bond was according 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 ifact only, Vizt 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 Evi

    dence 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 there

    of in the first Action, Vide Rolls tit Error ffol 781. 20 Ass:

    3M: 40: 41 Eliz: B: R: Smith & Odyhams case adjudged p: 16.

    Jacobi. B: R: Markham and Sr ffra: ffortescues Case adjudg

    ed P. 9. Caroli. Lord Powes & Kirtmans Case adjudged. Nat

    Brev ffo: 21. Brook tit Error 34. 3. H. 4. 6.

       Vbi Eadem Ratio ibi idem Jus esse debet.

       3: The Law seemeth to have a far greater care of the ifact

    than it hath of it self; for it will not believe the ifact vntill it be

    sworn by Twelve Men of the Vicinage where the ifact did

    arise, and if Eleaven of the Inquest be Agreed about the ifact,

    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 Judgmt what the Law is, although the other Judges

    dissent; but as to the ifact, the whole Inquest must Agree

    before there can be any Verdict, and when they are Agreed

    vpon the ifact, 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 &Ca

       4: When the Matter of ffact is once tryed, there is not any need

    to trye that again; for being once well & sufficiently tryed the

    Law is contented therewith; and in this principall case there is

    not any thing as touching the ffact 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, Vizt whether the ship had P. 357

    taken in Tobo before bond given or not, and they finding for the

    Deft it is as much as if they had in express Words said that

    she did not, & then there being not any Error in the prosecu