Samuel Allen had also sought to enforce Masonian claims in the Massachusetts 
courts by an action of trespass and ejectment against Humphrey Spencer 
for lands in Kittery, Maine. A judgment for defendant in the July, 1704, term 
of the Inferior Court of Common Pleas of Massachusetts was affirmed in the 
Superior Court of Judicature in the November term. An appeal to the Queen 
in Council being prayed, the court was of the opinion that an appeal did not 
lie in the case. 158 The Queen in Council was then petitioned in July, 1705, that 
an appeal be allowed and that the Superior Court judges be ordered to certify 
the record of all the proceedings in the cause. The petition was referred to the 
Board of Trade to examine and report whether the form of proceeding as 
suggested by the petitioner was regular and proper. 157 A year later Thomas 
Allen petitioned as heir at law that the appeal be admitted. The Queen in 
Council ordered admission of the appeal, that security be given, that the record 
be sent over, and that the hearing be held at the first April, 1707, Council 
meeting. 158 But the appeal was never prosecuted. 
The Allen litigation is significant in several respects. It was one element contributing 
to agitation in England for stronger measures of imperial control. 159 
It clearly illustrates the interrelation of the various forms of conciliar control 
—the appeal, the complaint, and the disallowance. It was also one of the 
earliest cases in which the necessity of a special verdict upon which to base a 
conciliar judgment on the merits is found. 160 But the course of the cause also 
revealed the delays and expense inherent in conciliar jurisdiction and may 
have constituted a deterrent to potential appellants. 161 
Turning now to New York, we find a minor episode of appellate recalci- 
ed.], 328), Dean (Captain John Mason, 125), 
Bell (John Wheelright, 84), Hammond (The 
Mason Title and Its Relations to New Hampshire 
and Massachusetts, 26 Amer. Antiq. Soc. 
Proc. [n.s.], 252), and Fry (op. cit., 234). 
See also 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). 
156 8 Coll. and Proc. Maine Hist. Soc. (2d 
ser.), 176-91; MS Mass. Sup. Ct. Jud. Judgment 
Book., 1700-1714, 136. The probable 
ground of the denial was that under the 
charter terms appeals did not lie in real actions. 
This is discussed infra, p. 162 et seq. 
i«pc 2/80/388. 
■LMPC 2/81/238. 
169 See supra, n. 84. 
160 Although special verdict directions achieved 
small measure of success in the Allen cause, 
they were still recommended for use. Lieutenant-Governor 
Usher in discussing the need 
of an act for the preservation of the woods 
stated that if such acts were put into execution, 
the crown would never obtain judgments 
because of the attitude of the inhabitants. He 
advocated the passage of an act whereby, if 
either party in any case desired a special 
verdict, the judges were to direct juries so to 
find; "if nott all evidences being in writeing, 
may appeall to Superiour Courtt, and there 
give in reasons of apeall, which reason and 
answer shall be in nature of a spetiall verdictt 
and in case of apeall for England ye whole 
case with seal of province be remitted, and 
meritt case entered on in England and there 
either confirmation or revertion" (CSP, Col., 
1710-11, #510). 
161 Lieutenant-Governor Usher remarked that 
liberty of appeal to Great Britain was no advantage, 
but a ruin, the charges of the same 
being so great (ibid., 1708-9, #663).