King in Council was taken from the judgment of the Governor and Council 
368 Atwood proceeded to condemnation of the Elizabeth and Catherine 
in the New York Vice-Admiralty Court on a new information by Weaver for 
the same June, 1699, violation. 369 An appeal from this judgment was prayed, 
but some doubts arose as to the proper appellate body and whether the appeal 
was taken in time. 370 Finally, however, an appeal was taken to the King in 
Council, but not prosecuted. 371 This unusual use of a prohibition was not for- 
ship had been unmolested until Thomas 
Weaver had seized it out of personal enmity; 
that although acquitted in the Court of Admiralty, 
another information had been laid 
against her in the Supreme Court (CSP, Col., 
lyoi, #862). A later petition to the Board 
further charged Weaver with improper conduct 
and prayed an order to prosecute no 
further (ibid., $896). The Board finally decided 
upon a letter to Lieutenant-Governor 
Nanfan (ibid., #861, 892, 926), in which it 
was pointed out that the Commissioners of 
the Customs had given orders for discharge 
of the ship, and that on other occasions the 
full vigor of the law had not been exerted, but 
reasonable time had been given for production 
of certificates of registration. Nanfan was directed 
to take care that there was no unfair 
stretching of the law in such cases, or in this 
particular case, and that no sinister motives 
influenced proceedings (ibid., #928). Nanfan 
replied that complaints against Weaver were 
only because of faithful discharge of duty, and 
repeated the opinion of Atwood on the letter 
from the Commissioners of Customs (ibid., 
1702, #54). Weaver also wrote that the complaints 
against his conduct were because of 
faithful discharge of official duties (ibid., 
#67). 
368 8 MS Mini. N.Y. Council, Part I, 282; 4 
Doc. Rcl. Col. Hist. N.Y., 924; CO 5/1047/ 
596. No trace of such appeal is found in the 
Privy Council register. Cf. The Case of William 
Atwood, Esq., 253. Andrews is in manifest 
error in his statement that "the Privy Council 
allowed the appeal . . . and the New York 
verdict was reversed" (Rec. Vice-Adm. Ct. 
R. 1., 1716-1752, Introduction, 46). 
369 This proceeding pending the appeal was 
based upon the clause in Governor Bellomont's 
commission (4 Doc. Rel. Col. Hist. N.Y., 269) 
that execution should not be suspended by 
reason of any appeal to the King in Council 
(The Case of William Atwood, Esq., 253). 
Wake refused to appear and plead to the new 
information, but his former attorney as amicus 
curiae offered the pendency of the appeal and 
a letter from the Commissioners of Customs in 
London to the effect that the ship was registered 
in August, 1699. Since this date was 
after the importation in question, Atwood conceived 
it no warrant to discharge the ship and 
undeniable evidence of the occurrence of the 
forfeiture (4 Doc. Rel. Col. Hist. N.Y., 931). 
For the proceedings and the November 24, 
i7or, judgment of condemnation see CO 
5/1047/592-96; Rawlinson MS, A 272/ 
128-31. It was also alleged that the nullifying 
prohibition was not produced in court or 
filed with the register until a fortnight after 
judgment on the information was given; see 
CO 5/1047/594. 
370 On November 24 Emott, counsel for the 
owners of the vessel, moved for an appeal 
to the King and Council or the Lords Delegate 
or "to who it properly belongs"; the court 
declared it would advise thereof (CO 5/1047/ 
594). On December 8 Emott moved that the 
appeal before desired might be granted to the 
High Court of Admiralty in England or "to 
such other Court to whom it properly belongs." 
Upon this motion the Court thought fit to 
make no order, no regular motion having 
been made in due time for the said appeal 
(ibid.). Atwood later wrote to Sir Charles 
Hedges, judge of the High Court of Admiralty, 
that an appeal was threatened to himself or 
his deputy in the cause, but that in the demand 
for an appeal Wake and the owners 
"did not know whither to direct it." Since no 
formal appeal had been lodged and sentence 
had been passed a month ago, Atwood submitted 
whether by rules of civil law any could 
be received, if otherwise there were ground 
for one (CSP, Col., lyoi, #1121). Sentence 
was put into execution and Wake acquired 
the ship at public vendue for .£7OO (4 Doc. 
Rel. Col. Hist. N.Y., 931). 
371 On June n, 1702, Wake and the owners 
presented a petition to the King in Council 
complaining of irregular proceedings of the 
Court of Admiralty in condemnation of the