practice, differed as to the power of the court and the need for adversarial 
consent, but relied upon a bill of exceptions to secure a rehearing. 58 From 
Quebec, a few years later, came evidence that conciliar direction was necessary 
to secure a special verdict upon a new trial ordered. 59 Accordingly, in 1769 
jury are the judges of the fact, and that they 
may find as they will, but if from the several 
facts proved before them, there arises a point 
of law the court and not the jury is the judge 
of this. The court may determine the point 
and direct the jury to find accordingly upon 
the spot, if they please. But if the court doubts 
and thinks it worthy of consideration they 
direct the jury to find the whole specially and 
this never was refused here and I cannot conceive 
it would be refused by any jury in 
Pennsylvania. For it would be monstrous in 
a jury to refuse to find a point specially (which 
they have no right to determine) when the 
court (who only can determine it) doubt it 
and desire time to consider it, and to have it 
solemnly argued before them and all this 
without any consent of the parties, which is 
absurd to the last degree. For at this rate 
neither the court, nor jury, could doubt about 
the law, unless the parties would them leave 
and consent that they should doubt. This is 
not all, if a point of law arises here and the 
judge delivers his opinion upon it immediately, 
if the counsel of the contrary side being a man 
of abilities will assert that he thinks the point 
not clear, and ought to be further argued, 
there is not a judge upon the bench here that 
will not in such a case direct a special verdict 
that it may be further considered and all this 
without consent of the parties, which is absurd 
in itself. Suppose deeds or wills are proved, 
and the doubt arises upon the construction of 
them. The fact of the due execution of them 
the jury can judge of, but of the construction 
they are, as they always are, ignorant. If the 
court doubt the construction, or if the court, 
being clear are willing in compliment to 
council to postpone it to further consideration, 
is it not absurd to say that this shall not be 
done without consent of the parties? In short 
the consent of the parties is never necessary, 
and the jury are bound to find a special verdict 
whenever the court direct it" (Henry Wilmot 
to Thomas Penn, July 6, 1763 [7 MS Penn 
Letter 1761-63, 341-42]). William 
Allen, consulted earlier, was of the opinion 
that by a bill of exceptions any matter might 
be appealed against, but that in some cases a 
special verdict might be directed (8 ibid., 
1763-66, 71). For earlier expressions on the 
necessity of special verdicts for appeal on the 
merits see 2 ibid., 1742—50, 17, 166. 
58 William Peters to Thomas Penn, Dec. 24, 
1767 (10 MS. Penn Official Corres., 1765—71, 
121-22). 
59 Among some observations of appellant's 
solicitor, Joshua Sharpe, on Christie v. Knipe 
and Le Quesne, a 1768 Quebec appeal (see 5 
APC, Col., #55), is the following: "We must 
further strongly insist to get the judgment 
reversed upon the merits and a declaration 
or opinion of the Lords that the action would 
not lay, for otherwise the appellant will be 
harrassed again with a new action and never 
be at rest and it is more than probable that 
if they bring a new action they will take care 
to avoid all errors in point of form and by a 
general verdict without letting the merits appear 
on the face of the record oust us from 
all relief upon an appeal. 
"But if the Lords should not be of opinion 
to declare anything as to the merits or should 
incline to declare their reversal of the judgment 
should be without prejudice to the respondent 
bringing a new action, then we must 
urge that some direction be given that a 
special verdict should be found at the instance 
of either party and that the respondents should 
consent thereto, if they appear at all at die 
hearing, tho we are aware it may be said a 
jury is not bound to find a special verdict, 
but if the respondents consent they will be 
bound thereby and that the Lords would reverse 
any judgment given contradictory to 
such their order" (Add. MS, 36,220/159). Cj. 
the complaint of Francis Maseres, crown counsel 
in a Quebec suit for some duties on rum: 
"and as the fact of the existence of such duties 
was clearly proved, I exhorted them [the jury] 
to find a special verdict that the point of law 
might be determined by those who were the 
proper judges of it, the Chief Justice of the 
province here and the King in his Privy Council 
at home, and I represented it as their duty 
so to do; by which many of the pretended 
patriots at this place were much offended. 
But it is my sincere opinion that juries are 
bound in conscience to separate points of law 
from points of fact whenever they happen to