or incorporated in the record. 264 In October, 1752, William Sharpe, Treasury 
Solicitor, questioned allowance of to Samuel Mason, appellant agent in 
Mohegan Indians v. Connecticut, on the ground of the superfluousness of 
London attendance, neither party being able to go out of the record. 265 Nevertheless, 
in 1765 Richard Jackson, Connecticut agent, was of the opinion in the 
same cause that some use might be made of affidavits taken years later than 
the 1743 commission judgment appealed from. 266 
From this review of the cases it can be generalized that after the early years 
of the century there was little opportunity to introduce new evidence upon 
appeal in any jurisdictional category. This diminution represents a limitation 
of the earlier "equitable" conception of the appellate function of the Council, 
and one arrived at under the influence of the stricter practice of orthodox 
English appellate review. 
In only one particular must some qualification of the new evidence restriction 
be made. This relates to the group of cases which for obvious reasons could 
not be fitted into the strait-jacket of common-law error procedure—those involving 
accounts —and here the Committee policy discloses strong Chancery 
influence. 
In the normal appellate course the Committee, or in a few cases the Council, 
was the body 267 before which the appeal was heard —no further delegation 
took place. 268 In the restricted class of cases just mentioned, however, the 
matter might be referred by the Committee to commissioners or referees to 
examine and report thereon. 269 Or in some cases parties at the Committee 
hearing agreed to delegate the matters of account to such commissioners. 270 
284 ibid., 292. 
285 TS ii/ioo6/# 3 BBB 
266 Jackson, however, knew "no effectual 
method of proving the deeds . . . before the 
Lords of the Counsel, but by some commission 
out of their own court, from hence, which 
can neither be obtained, nor would probably 
be worth while, but if any of the deeds could 
be procured and sent over and the execution 
of them be verifyed by affidavits possibly some 
use might be made of them" (2 Fitch Papers, 
18 Conn. Hist. Soc. Coll., 349-50). Cf. 1 
Fitch Papers, 17 Conn. Hist. Soc. Coll., 283-84, 
360. 
267 Supra, p. 137. 
208 s ee infra, p. 344 et seq., on the functions of 
the Board of Trade and the crown law officers. 
269 See Gardner v. Tirrell, a Barbados appeal 
from an August 12, 1713, order of the Court 
of Chancery (PC 2/85/105, 248); Perry v. 
Randolph, an appeal from an October 24, 
1723, sentence of the General Court of Virginia 
(PC 2/88/525; PC 2/89/15); Pons v. Magistrates 
of Minorca (PC 2/118/393, 441, 553; 
PC 2/119/24). Cf. Mackie v. Mauger, a 
Guernsey appeal, where the clerks of the 
Council were directed to adjust some articles 
not determined by the sentence appealed from 
(PC 2/85/466). 
270 See Tidmarsh v. Brandon, an appeal from 
an August, 1733, judgment of the Superior 
Court of Massachusetts. At the Committee 
hearing both sides agreed to refer the accounts 
in question to the examination of merchants 
residing in London. The Committee thereupon 
ordered the parties to draw up their 
agreement in writing and lay it before the 
Committee together with the names of such 
merchants as they should propose to be appointed 
commissioners for examination into 
and settling the accounts (PC 2/93/21, 469). 
As to the question whether such references 
could be made without the consent of the 
parties, it was alleged by one Banister, Comp-