In those continental colonies in which the common law record was de 
rigueur the opinion seems to have persisted that special verdicts were desirable 
for appeal purposes, if not utterly necessary, but we have not seen any evidence 
that measures were taken as drastic as those in the West Indies. Most of the 
comment is professional. Thus, in a 1760 Maryland cause involving enforcement 
of proprietary rights a general verdict following a loose direction to bring 
in a special verdict was characterized as having "darkened the proper lights 
for an appeal." 58 Again, in 1763 Thomas Penn was advised in regard to a 
pending Pennsylvania suit of the necessity of a special verdict to obtain a conciliar 
judgment upon the merits. But his adviser, Henry Wilmot, declared 
that election to direct such verdict resided with the court, not with the parties, 
but that it would be "monstrous" in a jury to refuse to find specially upon such 
direction. 5T Counsel Benjamin Chew, better acquainted with Pennsylvania 
by the King in Council. See Mackaskell v. 
Robinson {PC 2/82/276, 287); Jones v. 
Tolleson (PC 2/86/381); Huggins v. Warren 
(PC 2/93/93); Mills v. Ottley (PC 2/102/87; 
PC 2/103/244, 262); Keeling v. Niles (PC 
2/121/403, 556). Cf. Bayer v. Warner (PC 
2/95/506). Similarly, in the case of an agreed 
statement of facts in lieu of a special verdict, 
see Burgess v. Hack (PC 2/94/293; Add. MS, 
36,216/105). Also a partial court might accept 
a special verdict which found only the evidence 
of one party to the cause. In Elliot v. Perne 
from Antigua a special verdict had been asked 
for by counsel, and the Court of Common 
Pleas had seemed to grant it, "but when the 
verdict was ready to be produced, was brought 
in and it appearing not to be a speciall verdict 
drawn upp in forme, whereby the whole fact 
according to the evidence given might appear; 
the said Mr. Pember and this deponent made 
several objections against the verdict, as that 
they found but one part of the fact arising 
only from the defendant's evidence, and take 
no notice of the plaintiff's evidence which was 
directly contrary to that of the defendant's, 
notwithstanding which and some hours argument, 
that the verdict might be drawne upp 
in forme by the counsell on both sides and 
a case made of it, the court overruled it and 
positively refused we should have any other 
verdict than what appears" (PC 1/47; see also 
6 APC, Col., #190). The appeal was dismissed 
as not regularly brought by way of 
appeal from the Governor and Council according 
to the rules of appealing (PC 2/82/312, 
317). Or the court might show partiality in 
the acceptance of evidence to ground the 
special verdict (2 Correspondence of Governor 
Horatio Sharps, 9 Md. Archives, 382-83). 
66 Ibid., 383. For further discussion o£ this 
case, Wright's Lessee v. Jones, see Md. H.R. 
Portfolio 4, #53 (d); Stephen Bordley to 
Governor Sharpe, July 4, 1760. For threats of 
removal from office because of irregular judicial 
behavior in this case, see ibid., #53 (e) (f). 
For the ability to secure a new trial upon a 
general verdict found contrary to judicial 
direction in Maryland, see Edmund Jennings 
to Lord Baltimore, May 27, 1743 (1 Gilmor 
MSS, Md. Hist. Soc). 
57 The suit was with the "Jersey Society" in 
regard to Callowhill Manor, and Wilmot was 
consulted as to a method for making the defendants 
consent to a special verdict. Wilmot 
wrote: "The necessity of a special verdict is 
evident, for if there be a general verdict no 
appeal can assist you for the evidence is not 
transmitted. So that though the verdict were 
ever so contrary to evidence, such evidence 
not appearing here, you could have no redress, 
and no evidence appearing to the contrary, the 
verdict must be presumed to be right. But if 
the whole facts as they appeared at the tryal 
be found specially, and the whole submitted 
by the jury in point of law to the court, then 
whichever way the court in Philadelphia determines, 
the other party (if he thinks he is 
injured) may appeal, and the whole merits 
(which must be transmitted upon the face of 
the record) will be determined here on the 
appeal, but there is no way to compel the 
defendants to consent to a special verdict. Nor 
can I conceive the necessity of the consent 
of the defendants to a special verdict. The