dron's counsel then moved that the verdict be recorded, as the motion should 
have been made before the jury brought in the verdict, no point o£ law having 
been moved. The court thereupon ordered the verdict recorded and gave 
judgment accordingly. No mention is made of the conciliar order. At any 
rate, Allen appealed to the Governor and Council. 139 
At this point measures were taken by the settlers to come to an accommodation 
with Allen, but the attempt was frustrated by the latter's untimely 
death. 140 Although Governor Dudley twice adjourned the court of the Governor 
and Council to permit the heir, Thomas Allen, to appear and prosecute 
the appeal, the governor was of the opinion that the result on appeal would be 
unchanged, all the Council members being tertenants in the province. l4l 
Usher, however, favored an appeal to the Queen in Council, either directly 
or following a hearing by the Governor and Council. 142 But the decision was 
not left to the appellant. Upon a petition of Thomas Allen to the King in 
Council for revival of the appeal to the Governor and Council abated by his 
father's decease, 143 the Attorney General reported that the appeal could not 
be revived, that a new "writ of error" was required. 144 Upon this blow to 
young Allen's hopes for an appeal, he petitioned for and was granted a renewal 
of the December 17, 1702, Order in Council, formerly made in his 
father's behalf for return of special verdicts in trials of his title in the province 
145 
Armed with this direction, Allen proceeded to law again in an ejectment 
action against the perennial defendant, Richard Waldron. 146 The jury in the 
trial held in the Inferior Court of Common Pleas in April, 1707, although di- 
139 MS N.H. Sup. Ct. Jud. Minute Book, 
1699-1738, 34-35- 
140 3 Doc. and Rec. Rel. Prov. N.H., 305-6; 
29 N.H. State Papers, 164-67, 297; CSP, Col, 
'704-5, #1109- 
141 Ibid., p. 658. 
142 Usher wrote the Board of Trade that the 
proof of title, possession, and constant claim 
were all in writing on file, evidence on both 
sides having been admitted without objection. 
Also it would be prejudicial to Allen to try the 
case anew, some of the witnesses being deceased 
(ibid., #1456). 
143 PC 2/81/5. The petition was referred by 
the Council to the Board of Trade which was 
petitioned by Allen that if a new action were 
necessary, he would lose by the death of 
witnesses the benefit of proof already made 
(CSP, Col., 1704-5, #1512)- 
144 csp 7 Col., 1706-8, #204. Attorney General 
Northey certified that the appeal, which 
was a writ of error, if the suit had been in 
England, should have been brought in the 
name of the lessee in ejectment and not in 
the name of the lessor. If it had been so 
done, the death of the lessor would not have 
abated such writ of error. But here the appeal 
was brought in the lessor's name, and the 
death of the plaintiff in the writ of error by 
law abated the writ of error and the same 
could not be revived. Cf. the puzzling interpretation 
of Bond (The Quit-Rent System in 
the American Colonies, 59) that conciliar 
refusal "to reopen a suit that had been appealed 
from New Hampshire" demonstrated 
that "the use of force was no part of the 
policy of the British government." The condensation 
of the Allen cause in 2 APC, Col., 
#818 misleadingly gives the impression that 
the application for revival was granted. 
li!i PC 2/81/199, 
140 2 Doc. and Rec. Rel. Prov. N.H., 516 
et seq.