seal, together with the evidence excepted to, and the cause came on for hearing 
before the Committee. 32 At the hearing respondents insisted that no general 
verdict ever was or could be opened on appeal, 33 but the Committee advised 
reversal with liberty to appellants to proceed to a new trial below. 34 It was 
also advised and ordered that liberty be given to either party feeling aggrieved 
to appeal from thence to the King in Council and that the court upon application 
of either party should direct the jury to give in their verdict specially or 
otherwise cause the whole of the evidence given upon such new trial to be 
taken down in writing in order to be transmitted to the King in Council under 
seal. 35 
Another case indirectly controverts the pronouncement in Perry v. Churchill. 
In 1738 in the case of a misdemeanor fine under the instructional minimum 
the Committee advised allowance of a writ of error to the Court of Errors 
in Antigua, with further appeal to the King in Council. Nothing was made 
of the fact that the judgment in the local Court of King's Bench and Common 
Pleas was upon a general verdict. 30 Although an appeal was taken from the 
subsequent Court of Errors affirmance, 3 T it was never prosecuted. In addition 
to the refutatory cases here set forth, there are, as we have seen, several instances 
of conciliar reversal of judgments based on general verdicts, permitting 
new trials below with provision for special verdicts at the request of either 
party, 38 and, of course, at a later date the appeal in Cunningham v. Forsey was 
admitted from a judgment on a general verdict. 39 
From this conflicting evidence, what conclusions can be drawn as to the 
82 Case of Appellant, Add. MS, 36,217/199. 
33 Respondent in his printed case alleged that 
the cause was notable in its attempt to establish 
that "upon a general verdict, in a regular 
meer Court of Law, in Virginia, without 
having one single word of the evidence, given 
by one of the parties, to the jury, returned, 
such verdict shall be opened upon an appeal 
here to look into the justice of such verdict." 
It was further set forth that "there was evidence 
given by the defendant tho such evidence 
does not appear, not a syllable thereof, 
nor ever does, from Virginia; and no such general 
verdict from Virginia (nor here, in Great 
Britain) ever was opened or lookt into, or 
can be, by the laws of the land; which would 
be to find, without evidence, for the plaintiffs, 
where twelve men, upon their oaths, have, 
upon evidence, found for the defendant" 
(Case of Respondent, Add. MS, 36,217/203). 
34 PC 2/106/43. 
35 PC 2/104/43, 9 2 - 
36 Smith v. Rex (PC 2/94/601, 608, 616). 
Smith's petition for leave to bring a writ of 
error set forth that counsel for the prosecution 
refused to agree to have a special verdict found, 
so that the jury found a general verdict and 
none of the evidence was taken down in 
writing, merely to prevent the merits of the 
case from appearing before the King in Council 
(PC 1/49). 
37 PC 2/95/219 
38 See Selden v. Beverly, Va. (PC 2/79/512; 
PC 2/80/3); if either party desired it, in the 
new trial the matter of fact was to be found 
specially by the jury, so that on appeal the 
King might be more fully informed in order 
to final determination in the case. Cf. William 
and Mary College Quart. (1901), 94-100. In 
Johnstown v. Burton, Bermuda (PC 2/78/213, 
218), it was ordered that if in a new trial 
matter of law should arise, the jury was to be 
directed to find the matter of fact specially "to 
the end that upon a true state thereof justice 
may be done." 
39 See infra, p. 408.