event, we find the same theory cropping up only a year later (1724) in relation 
to the famous Connecticut cause of Winthrop v. Lechmere. In the preliminaries 
of this litigation appellant was advised by colonial counsel that a trial 
of the matter could not take place in England. Trial of land titles had to be 
held locally, and unless a special verdict were found (which could not be obtained) 
the case would not be heard in England upon appeal. 18 
The Privy Council was, of course, not concluded by such views. It had not 
thus far expressed any direct opinion, although it could scarcely have been 
unaware of the notions prevailing overseas. The issue, however, came up very 
directly in March, 1728/9. At that time a day was appointed by the Committee 
for hearing the appeal of Wharton v. Northrup from a judgment of the General 
Court of Trials of Rhode Island. 17 When it appeared upon the hearing 
that the judgment appealed from was founded on a general verdict, the Committee 
postponed entering into the merits thereof, so that search could be made 
to see what precedents existed of appeals of this kind. 18 In December of the 
same year the Committee was attended by all parties concerned and took the 
point into consideration. Upon perusal of the precedents laid before it, the 
Committee was of the opinion that the appeal lay, notwithstanding the objection, 
"in regard it appeared that all the evidence given out to the jury was 
taken down in writing and transmitted as part of the record." 19 In other 
words, owing to the peculiar character of the New England "record," the 
technical objection that might have existed had a common law record been 
before the Committee was eliminated. Having delivered this staggering blow 
to the fond believers in the doctrine that a judgment on a general verdict was 
not reviewable, the Committee pavidly refrained from taking the next crucial 
step, for upon entering into the merits of the cause, the Committee advised 
reversal and a new trial in the General Court of Trials, when all the evidence 
offered on either side was to be taken down in writing. If any objections 
16 Counsel Robert Robinson writing from 
Salem, Massachusetts, advised Winthrop in 
August, 1724, in regard to Lechmere's actions 
that "to try it in England cannot be . . . because, 
the tryal of tyde of land is local and 
must be tryd where the land lyes, and without 
a spetial verdict found (which is not to be 
obtained) they have allready declared they 
will not try tytles in England (as in the case 
of Governor Usher at New Hampshire, and 
Holms and Carrs case from Rhode Island, both 
upon appeals to England)" (6 Winthrop 
Papers, 5 Mass. Hist. Soc. Coll. [6th ser.], 
412-13). Presumably the New Hampshire 
reference is to the litigation of Samuel Allen 
to establish the Masonian claims; see supra, 
p. 151 et seq. But it would appear that in Carr 
v. Holmes the Privy Council dismissed the appeal 
because no judgment had been entered 
upon the two verdicts below; see PC 2/86/ 
194. 35i» 362. 
17 PC 2/90/436. This was an ejectment action, 
first tried in the General Court of Trials on 
the first Tuesday in September, 1727. The 
jury verdict for defendant Northrup was accepted 
by the court, Wharton taking a writ 
of review to the next General Court of Trials. 
At the rehearing in March, 1727/8, the jury 
found for defendant Northrup in confirmation 
of the former verdict, and costs; this 
verdict was also accepted by the court (PC 
2/91/302). 
Ig PC 2/91/192. 
ia PC 2/91/302-3.