Council for leave to appeal from the judgment, and his petition was referred 
to the Board of Trade to examine and report thereon. 114 The Board of Trade 
advised allowance of an appeal on the rationale that the title to the whole 
province was concerned, although the instant action involved less than the appealable 
minimum. 115 This representation meeting the approbation of the 
Council Board, the appeal was ordered admitted, and the appellant was directed 
to give security. 116 
Although ordered for the first council day in December, 1701, the cause 
was not finally brought to a hearing before the Committee until December, 
1702. 117 The Committee, after hearing the parties by their- counsel, advised 
that the judgment below be affirmed, but, since such judgment was not final, 
that appellant be at liberty to bring a new ejectment action in the province to 
try his title to the lands in question or to certain quit-rents payable out of such 
lands. 118 Directions as to the use of special verdicts in any new trials were also 
advised, so that on appeal the Queen in Council would be more fully informed 
in order to a final determination of the cause. 119 These Committee recom- 
and Council to the King in Council for matters 
exceeding "the real value or sum'e" of 
sterling (ibid., 630). No regulation of appeals 
to the Governor and Council was contained 
in these instructions. An August, 1699, provincial 
act provided that appeals should lie 
from the Superior Court to the Governor and 
Council in causes exceeding sterling, 
and to the King in Council where the "true 
value and sum" of the matter in controversy 
exceeded .£3OO sterling (ibid., 664). 
114 PC 2/78/174. Petitioner prayed that although 
the damages in the instant action 
might be under £300, yet in regard that this 
trial was for determining the proprietor's 
right to the whole province, that all the inhabitants 
were tenants and parties concerned, 
and that William Vaughan had been admitted 
to an appeal, that his appeal might be allowed 
(CSP, Col., 1701, #271). 
115 CSP, Col., 1701, #365. 
116 PC 2/78/191. Security of was given 
on December 26, 1701, by John Usher and 
one other (PC 2/78/285). 
117 By reason of the miscarriage of the admitting 
Order in Council it was impossible to 
summon the parties concerned against the 
appointed time, so that the hearing was on 
petition ordered for April, 1702. In July, 1702, 
the solicitors of the parties agreed to an 
October hearing (PC 2/78/275, 281, 285; PC 
V 79/177, 185). 
118 PC 2/79/258, 269. It has been alleged that 
Allen's attorney did not present proof that 
Mason had ever been legally in possession (1 
Belknap, History of New Hampshire [1784 
ed.], 311). See also 29 N.H. State Papers, 271 
(A State of Mason's Title) where want of 
proper evidence of plaintiff's possession is also 
mentioned; A Short Narrative of the Claim, 
Title, and Right of the Heirs of the Honourable 
Samuel Allen . . . to the Province of 
New-Hampshire in New England (1728), 9, 
that "when the Case came to be heard, the 
Lords seemed of opinion Mr. Allen had a good 
Right, but as his Attorney had neglected to 
send over the Proofs of Mr. Mason's Possession, 
the Appeal was dismist without cost." Apparently 
copies of the evidence presented in the 
earlier trial were used (CSP, Col., 1702, 
#1035). It is of interest to note that two 
clauses giving the reasons for the Committee 
report are deleted in the final draft of the report, 
i. e., "that in regard this appeal is from 
a judgment given upon a general verdict of a 
jury" and "in regard of the long and uninterrupted 
possession of the respondent" (PC 
1/46). 
XIS PC 2/79/258, 269. In a new trial if any 
doubt in law arose, the jury was to be 
directed to find the matter specially, that is, 
what title the parties respectively made out to 
the lands in question; the point of law was to 
be reserved to the court. If any doubts arose 
concerning the evidence given at such trial, 
such doubts were to be specially stated and