The instruction also established a uniform minimum of ,£3OO on appeals to 
the Governor and Council and £500 to the King in Council. 89 This minimum 
requirement was made equitable by a proviso that where the subject matter 
related to taking or demanding any duty payable to the crown or to any fee 
of office or annual rent or similar matter in which future rights might be 
bound, appeals to the King in Council were to be admitted, although the 
immediate sum appealed for was less than the minimum standard. 90 
Although remedial in nature, the changes wrought did not prove too felicitous. 
When Governor Popple of Bermuda questioned the validity of the instruction, 
the Board found that the additional instruction had not been incorporated 
in Popple's regular instructions and was contrary to a 1707/8 insular 
act confirmed by the crown. Therefore the crown was of the opinion that 
the instruction ought not to be considered as in force or to be put into execution 
91 From Virginia it was protested that the instruction could scarcely be 
calculated for that colony in that the inconveniences intended to be remedied 
could never exist there. 92 A decade later the language of the instruction gave 
rise to the famous Cunningham v. Forsey cause in New York, which we shall 
later consider in detail. 93 But regardless of shortcomings the instructions to 
new royal colonies embodied these changes and additions to the earlier provisions 
regulating appeals. 94 
Despite the equitable provision in relation to appeal minimums in the new 
instruction, application was made from New Hampshire, in 1754, for further 
89 The instruction was sent to the Bahamas, 
Barbados, Bermuda, Jamaica, New Hampshire, 
New Jersey, Nova Scotia, South Carolina, and 
Virginia. North Carolina received the instruction 
in 1754 (1 Labaree, Royal Instructions, 
#453). Pennsylvania and Massachusetts both 
received the instruction, although, as to Massachusetts, 
the minimum expressed conflicted 
with the charter provision in that regard. See 
1 Acts and Res. Prov. Mass. Bay, 15. 
90 1 Labaree, Royal Instructions, #453. It is 
possible that this liberalizing proviso stems 
from the petition of Wavel Smith and Savile 
Cust for leave to bring a writ of error from 
a judgment of the St. Christopher Court of 
King's Bench and Common Pleas to the 
Court of Errors and for either party to appeal 
from thence to the King in Council if 
aggrieved. As appears from the Committee 
report advising allowance of the petition, the 
case failed to meet the minimum required by 
the governor's 54th instruction, although the 
judgment affected rights of office much greater 
than the immediate sum sued for (PC 2/ 
103/315. 3 2 4. 345)- 
91JCTP, 1734/5-4*. 202-3. 
92 It was represented that the instruction forbade 
the governor or members of the council 
who sat on the first trial from sitting on appeal, 
but that by the law and constitution of 
the colony the governor or council never sat 
in a judicial capacity, but in the General 
Court from whence no appeal lay but to the 
King in Council; that this method was settled 
by the March 23, 1726/7, instruction whereby 
the General Court judges were to admit appeals 
in all cases at law or equity where the 
matter in dispute was of the value of £3°° 
sterling; that the present instruction had extended 
the sum to X5OO an d seemed to be 
confined to suits that had been depending in 
courts of common law and which had been 
primarily determined by the governor and 
some of the council and had afterwards come 
before them by appeal (CO 5/1328/W 184). 
See also 5 Executive Journals of the Council 
of Colonial Virginia, 1739-54 ( IQ 45)> 464-66. 
93 See infra, p. 390 et seq. 
ei These instructions were sent to Dominica 
(1770), East Florida (1773), Georgia (1754),