and returned none of the evidence, so that the King in Council was precluded 
from judging of the propriety of a decree made upon evidence not transmitted 
or appearing in the cause. 129 To this charge respondent replied that the 
Master's report was not founded on viva voce examinations, but upon depositions, 
and that to annex all such proofs to the Master's report would introduce 
a cumbersome and expensive practice. 130 However, upon hearing, the Committee 
advised reversal, that the cause be referred back to the Master to pursue 
certain May, 1756, directions of the Court of Chancery, and that depositions 
be reduced to writing that they might be used as evidence in case of any future 
appeal. 131 
PROCEDURAL ERROR 
These two cases exemplify the insistence of the Council on the fullest possible 
record and a determination that this condition should not be evaded. Even 
more interesting is the group of appeals where procedural errors below were 
involved —the "technicalities" bemoaned by bewildered lay historians. 132 Here 
the development of an attitude on the part of the Council that as a court with 
unlimited equity powers the mistakes of rustic tribunals could fairly be condoned 
or overlooked spreads out even from chancery cases to common law 
actions. Of course, the colonists (when it was to their advantage) were particularly 
quick to argue the desirability of overlooking the shortcomings of 
judicial procedure in the wilds. As early as 1700 William Penn had sought of 
the Board of Trade that in hearing appeals the Committee make allowance 
"secundum aequum and bonum" and not judge according to the strictness of 
the laws of England, for in their infancy and ignorance the colonies did not 
have the benefit of able lawyers in commercial and real transactions. 133 Years 
elapse before we find consistent statements of the adoption of such liberal 
standards by the Committee. In Bontein v. Trelawney, a 1753 appeal from the 
Jamaica Chancery Court, the Committee affirmed an order overruling the 
demurrer of the appellant and ordering him to answer. 134 Counsel Charles 
129 It was alleged that if the evidence had 
been returned for the judgment of the King, 
it would have appeared that there was no 
evidence to support the report (Add. MS, 
36,219/110). 
130 T n } s appears in the following comment 
written upon appellant's printed "case" (Add. 
MS, 36,219/112). "The Master does not say 
that he founded his report on examination 
viva voce and the appellant's first and fourth 
exceptions show quite the reverse, that there 
were depositions taken before him and objects 
only because he had not annexed them 
to his report which it certainly was not the 
Master's business to do and if it was once 
to be ordered by the King in Council it would 
be Introducing a fine practice and expense 
to the parties—to have the report extended 
'to an immoderate length by annexing all the 
proofs in the Master's office to be filed with 
the report in the Register or Secretary's 
Office." 
ISI PC 2/110/568, 593. 
132 g ee Washburne, Imperial Control of Administration 
of justice, 72-73, 129, 149, 
133 CSP, Col, 1700, #984. 
134 PC 2/103/546.