upon reversal the judgment was given for plaintiff that should have been 
given below is distinguishable, in that judgment was given on a verdict which 
had been erroneously set aside below. 9 In the ordinary case the giving of such 
judgment by the appellate court upon a general verdict would constitute an 
invasion of the realm of the jury by the bench. Yet it is not until 1757 that we 
find a specific statement from the courts at Westminster that "a general verdict 
can only be set right by a new trial." 10 
In relation to these general doctrines it is important to understand that common 
law error proceeding was based upon defects in the record and was in 
essence a trial of that record. The record proper was narrow in scope, but it 
was for review purposes supplemented by the bill of exceptions into which 
matters in the course of trial, such as admission of evidence and the charge 
to the jury, could, if excepted to, be entered and thus come before a superior 
court. Where a general verdict had been rendered, the matter in pais which 
the bill of exceptions brought up was usually fragmentary, since it was only 
issues of law that were in controversy, and consequently barring the unusual 
case, the reviewing court did not have before it data sufficient to assume the 
function of a jury even if it desired to do so. 
The disappearance of bills of exceptions in so many colonial appeals makes it 
possible only to conjecture in most instances how closely plantation practice 
adhered to the English. In provinces such as New York and New Jersey, which 
by 1730 were imitating all incidents of English practice, the inference is that 
error practice was identical. In Jamaica we have found that by a smooth trick 
of procedure all the evidence was pushed into the bill. And of course, in New 
England the practice of taking down all the evidence in writing and incorporating 
it in the record, even where there was a general verdict, actually served 
the same purpose as a special verdict. 
As a natural result of the variations in colonial practice there was marked 
recognition in the Council of the value of special verdicts upon appeals from 
jurisdictions which favored the narrow common law conceptions of error 
proceedings. To the Committee the special verdict was valuable, since it enabled 
that body to assume the function of the trial court—in conciliar terminology, 
to give "judgment on the merits." By such judgment the necessity of 
a new trial below upon reversal was dispensed with and the importance of the 
function of the colonial courts was diminished. For the successful litigant such 
judgment made possible escape from the rulings of a hostile colonial judiciary 
on a new trial and avoided the further expense incidental thereto. 
It is apparent from the appeals which in fact were prosecuted that no one 
9 Greene v. Cole (2 Wms. Saunders 252). The 
statements in Slocomb's Case (Cro. Car. 443) 
and Cuming v. Sibly (4 Burr. 2489) are dicta. 
The Anonymous Case (1 Sal\. 401) is too 
fragmentary to afford a reliable precedent. 
10 Bright v. Eynon (1 Burr. 390, 393)-