the ,£3OO minimum upon conciliar appeals from the governor as Ordinary, 
the only available remedy. 30 In Turnbull v. Top ham (1752) application was 
made at the Council Board for leave to bring a writ of error before the Antigua 
Court of Errors, such leave having been denied below by virtue of the minimum 
restriction of the instructions. Petitioner complained of the great injustice 
of this instruction in that it prevented the Statute of Westminster 11, c. 31, 
giving a bill of exceptions, from applying in the island where most suits were 
under 31 
The sterling minimum for appeals to the Governor and Council was 
severely attacked in the 1755 case of Bryant v. O'Bryan in New York. In this 
cause the Supreme Court, in 1753, in an action of trespass on the case, gave 
judgment for plaintiff O'Bryan for % including costs. 32 The cause 
being removed by writ of error before the Governor and Council, respondent 
counsel in December, 1754, moved for a direction to appellant to show cause 
why the writ should not be quashed for noncompliance with the 26th article 
of Governor Osborne's instructions. 33 William Smith, Jr., counsel for appellant, 
thereupon filed elaborate reasons in support of the appeal, hoping 
that the provincial council board would take some measures to obtain a repeal 
of the instruction and a settlement of their jurisdiction in error. 34 
Smith argued that a writ of error was a writ of right due any subject prejudiced 
by an erroneous judgment and that such prejudice was recited in the 
records returned in the cause. The Governor and Council's long-established 
jurisdiction in error was a necessary part of the political constitution of the 
province. He claimed that this jurisdiction was not derived from or dependent 
upon any royal instruction, but rested upon foundations analogous to the 
jurisdiction of the House of Lords and, further, that it was unnatural for a 
judicial body to deprive itself of jurisdiction. Smith made the bold assertion 
that the instruction, being neither an act of Parliament nor of the province 
nor part of the common law, could not abridge the error jurisdiction of the 
Governor and Council and that, granting the validity of the instruction, it 
nevertheless applied only to appeals, not to writs of error. He proceeded then 
to the technical point that in any event the instruction could not bind until 
publication, which had not taken place here before the writ of error was 
30 MS Observations on the Present State of 
the Courts of ]udicature in His Majesty's 
Province of South Carolina (1730), 5 (L.C.). 
For discussion whether the instructions were 
intended to include the governor acting as 
Ordinary, see infra, p. 240. 
31 PC 2/102/437, 480-82. 
32 NYHR Parch., 228-D-1 
33 79 N.Y. Col. MSS, 106; 23 MS Mins. N.Y. 
Council, 258; NYHR Parch., 228-D-1. A bill 
of exceptions had been taken to the admission 
of some evidence in the Supreme Court. 2 
Wm. Smith MSS, 375; 2 Smith, Hist. Prov. 
N.Y., 5 NYHS Coll. (1830) 245. 
s*2 Wm. Smith MSS, 375-80. Smith noted 
that, "I thought this a most mischievous instruction 
and calculated to swell the power 
of the judges who at present were assuming 
and ignorant enough. I thought the public 
interest very much concerned in this case."