writing a Jersey client for official evidence (not in the record) of certain births, 
deaths, and marriages in case they were disputed at the appellate hearing, although 
apparently not controverted below. 253 
In civil appeals from the plantations we find it a general rule that no evidence 
was admissible upon appeal which was not incorporated in the record 
254 In a 1707 Barbados chancery appeal respondent prayed a delay in the 
hearing until a certain Bible could be transmitted from Barbados to discover 
the practices of the appellant. But the Committee proceeded to hear and reverse 
the April, 1706, chancery decree. 255 Years later, in a 1760 Jamaica chancery 
appeal, the respondent offered to read an affidavit in support of facts contained 
in his bill, but the Committee was of the opinion that the affidavit 
should not be received and advised reversal. 258 This was in accord with the 
practice of the House of Lords on chancery appeals of excluding all written 
evidence except that which had been submitted to the court below. 257 
In the New England colonies, where a chancery-like record was employed 
at common law and where admission of new evidence upon appeal was orthodox 
practice, the limited scope of review by the King in Council was not 
fully comprehended. In 1740 we find agent Francis Wilks cautioning Connecticut 
that "nothing is more certain and established with us than that nothing 
can be made use of upon an appeale here but what was made use of in the 
cause below, and laid before the court and the jury and inserted and transmitted 
as part of the record." 258 In Isaacs v. Merritt, a 1758 Rhode Island appeal, 
we find the respondent objecting vigorously to the admission of new 
evidence at the Council Board as against constant conciliar practice and generally 
injurious to respondents. Respondent also asserted that the mere fact 
that evidence was under the colony seal, or even enclosed with the proceedings, 
was not conclusive as to admission below. 259 Presumably we have here 
the New England failure to utilize bill of exceptions procedure, adverted to 
253 Paris to James Pipon, July 20, 1731 (Soc. 
Jer. Lib.). 
254 The assertion of Pound (op. at., 67) that 
"any original documents used below which 
were not fully set forth in the proceedings or 
record" could be produced at the hearing has 
no relation to actual conciliar practice. 
255 Egginton v. Chamberlain (PC 2/81/379, 
380). 
253 Adams v. Nimbhard (PC 2/107/422-25). 
257 Macqueen, op. at., 174—75. 
258 2 Talcott Papers, 331. This caution was 
given in connection with appeals involving 
the validity of the Connecticut act governing 
intestacy; see infra, p. 573. 
-259 Appellant was endeavoring to give into 
evidence the proceedings of a former suit in 
which respondent, suing appellant as administrator 
of insolvent intestate Abraham Isaacs, 
was nonsuited upon a plea of plene administravit. 
The present action was against appellant 
personally on the basis of letters promising 
to pay the sums due respondent as soon as 
assets were realized. Forbearance to sue was 
the consideration alleged by respondent to 
ground the assumpsit. See Cases of Appellant 
and Respondent (L.C., Law Div.). Respondent, 
in his Case (pp. 5-6), reasoned against 
receiving new evidence as follows: "This most 
honourable Board, being a Court of Appeals, 
upon judgments before pronounced, in inferior 
jurisdictions, and at very remote dis-