in January, 1752, and as he failed to produce any evidence, judgment was given 
for defendant Vassall. Upon appeal to the Superior Court of Judicature in 
February, the judgment was affirmed, Fletcher again failing to produce any 
evidence. Then, upon a writ of review, authorized by a provincial act (13 
William 111, c. 16) Fletcher to appellant's surprise introduced many witnesses, 
depositions, and affidavits and was given judgment for 106 Upon appeal 
to the King in Council, appellant claimed perversion of the writ of review, 
that such writ was chiefly intended for the relief of a defendant surprised 
at a former trial. The evidence brought in upon review in the instant case 
should have been presented in the inferior courts, as the Superior Court jurisdiction 
was appellate in nature and not original. 107 Respondent counterclaimed 
that it was customary in important causes to reserve the examination 
of witnesses to the review stage in order to save the trouble and expense attendant 
upon examination of witnesses in each court. 108 When the cause was 
argued before the Committee, "the majority of the Lords were of opinion 
the respondent was not at liberty to enter into evidence in the court of review 
when he had deserted his cause by making no proof in the inferior and superior 
court." The merits of the defamation were not entered into, although three 
Councilors favored such entrance. 109 Therefore, it was advised that the judgment 
on review be reversed, that the ,£2,000 be restored with interest, and that 
respondent be at liberty to bring a new action, in which appellant was not to 
plead the former judgments nor the statute of limitations. 110 Such was accordingly 
ordered. 111 
The appeal being the common course in New England, the Bay colony, for 
reasons unknown, supplemented the usual domestic appeal procedure by providing 
also for writs of error. 112 Writs of error, however, were seldom employed, 
probably because of the difficulty of reconciling orthodox writ of error 
105 Case of Appellant (L.C., Law Div. and 
Add. MS, 36,217/44); PC 2/103/506-7. 
Some estimate of the amount of evidence introduced 
by Fletcher upon review is obtainable 
from the pamphlet printed by Fletcher setting 
forth what is essentially the record in the 
case (Add. MS, 36,217/49-69). 
107 Case of Appellant (L.C., Law Div. and 
Add. MS, 36,217/44). 
108 Case of Respondent (L.C., Law Div. and 
Add. MS, 36,217/47). 
109 Endorsed upon Case of Respondent, p. 3 
(L.C., Law Div.). The majority comprised the 
Lord President, the Duke of Queensberry, 
Lord Berkeley, Lord Sandys, Sir Thomas 
Robinson. Contra for going into the merits 
were Willes, C. J., George Dodington, Sir 
George Lee. Sir John Rushout was doubtful. 
This endorsement is at variance with the 
entry in the Privy Council Register, where 
Robinson and Berkeley are not noted as 
present, while the Bishop o£ Sodor and Man 
is so listed (PC 2/104/25). 
110 PC 2/104/25-28. 
111 PC 2/104/32. An appeal was also entered 
in the defamation action of Knowles v. 
Douglass (PC 2/102/78), but not prosecuted. 
For discussion of this cause see Noble, Notes 
on the Libel Suit of Knowles v. Douglass in 
the Superior Court of Judicature, 3 Pub. Col. 
Soc. Mass., 213-39. 
112 1 Acts and Res. Prov. Mass. Bay, 73, 284, 
372-73.