procedure with the use of juries in the appellate courts. In Catlyn v. Baldwin, before the Superior Court of Judicature in October, 1693, by writ of error, the parties agreed to have "an hearing of the originall cause at this court." The writ of error, declaration, and papers in the case being read and committed to the jury, a verdict was found for the plaintiff. 113 Yet in another case, Goreham v. Blagrove, in September, 1698, the Superior Court found no error and affirmed the judgment below without sending the case to a jury. ll4 In December, 1698, it was submitted to the legislature whether trials upon writs of error ought to be by jury. In the lower house it was resolved nemine contradicente that there ought to be a jury in such cases, but in the Council it was resolved that trials upon writs of error ought not to be by jury. lls Nevertheless, in Morey v. Wing, in March, 1700, upon writ of error the record, assignment of errors, and rejoinder thereto were submitted to a jury which found for the defendants. 110 In the years following, no use appears to have been made of writs of error. Despite the use of juries on appeals the Massachusetts judiciary regarded appeals as "of the nature of writs of error." This is clearly demonstrated in a September, 1703, opinion of the Superior Court of Judicature rendered to resolve doubts attending appellate proceedings upon nonsuits and abatements. 117 The judges, in their opinion that in the case of reversal upon appeal from a nonsuit or abatement the defendant should make an issuable plea and the cause proceed to trial in the Superior Court, relied heavily upon Coke's explanation of Magna Carta, c. 11. Since Coke was concerned with writs of error, the judges stated that appeals were accounted to be of the nature of writs of error. This was manifest from the form of reason of appeal, and from the answers thereto habitually employed by counsel and allowed by the bench. Furthermore, the General Court, in 1649, had ordered that appeals were to be accounted in the nature of writs of error. 118 We have already spoken of Shirley's allegation that the courts of Massachusetts disputed the right of the King to hear appeals in real actions and therefore would not oblige parties to give their evidence in writing, so that for want thereof the King in Council might be at a loss to proceed upon hearing appeals 119 In order to give judgment on the merits, evidence wrongfully ex- 113 MS Mass. Sup. Ct. Jud. Judgment Book, i6gz-95, 77. 114 Ibid., 1686-1700, 197. 115 40 MS Mass. Archives (Judicial, 1683- '724), 539. 116 MS Mass. Sup. Ct. Jud. Judgment Book, 1686-1700, 298. For the writ of error and assignment of errors see Suffolk County Court Files, #4604. 117 See 40 MS Mass. Archives (Judicial, 1683- 1724), 754-55- 118 Ibid., 777-79. 119 This statement is contained in Shirley's general heads of a plan of a civil government proposed for Nova Scotia, February, 1748/9. It was proposed that appeals to the King in Council be allowed in all actions, whether real, personal, or mixed, which exceeded the