as security in case of affirmance. 187 Colden, not a lawyer, found Attorney General Kempe reluctant to express an opinion, but Kempe, who was an able and learned lawyer, finally declared that the Governor and Council could not by law hear any cause except in a course of error. Colden being intent upon the meaning of the instruction rather than the "law," the Attorney General replied that the instruction neither warranted nor was designed for such an appeal as had been applied for. 188 Colden, nevertheless, communicated to his council the instruction of 1753 governing appeals (the 326. instruction to Governor Monckton), laid before it the appeal and bond, and informed it that it was incumbent upon him to issue the prayed for writ of appeal. 189 The provincial council opposed the construction adopted by Colden, but was informed that the writ could be quashed upon its return if judged illegal. 190 Shortly thereafter Cunningham's attorney applied to Colden for the writ of appeal, alleging that no counsel would advise in drafting it; he was told to get it drafted by the best advice possible. Since it was expected that execution would speedily issue on the judgment, Colden, on October 30, sealed what was called a "writ of inhibition" to the judges and other officers of the Supreme Court to stay proceedings in the cause. 191 On November 2 was sealed another writ, directing the Chief Justice to bring up the proceedings in the cause to the Governor and Council. 192 Before finishing taxation of costs, the Chief Justice was served with the inhibitory writ, but he completed the taxation notwithstanding and signed the judgment. The same instrument was served on the clerk of the Supreme Court, who in consequence thereof refused to seal plaintiff's execution, thus preventing levy of damages and costs. 193 187 7 Doc. Rel. Col. Hist. N.Y., 676. 188 4 Win. Smith MSS, sub Autumn, 1764. Cf. 7 Doc. Rel. Col. Hist. N.Y., 698. 189 29 MS. Mins. N.Y. Council, 4-8; 7 Doc. Rel. Col. Hist. N.Y., 676. 190 29 MS Mins. N.Y. Council, 4-8; 4 Wm. Smith MSS., sub Autumn, 1764; Chalmers MSS., 4 New York., 26; 2 Aspinwall Papers, 54i- 191 7 Doc. Rel. Col. Hist. N.Y., 676-77. For the petition for the writ of inhibition see CO 5/1071/PP 65. The writ is set out in Rep. Forsey v. Cunningham, 4. The legal adviser of Waddel appears to have been one John Coghill Knapp, who had been convicted for fraud in England in 1763 and sentenced to transportation (Letter Book of John Watts, NYHS Coll., Pub. Fund Ser. [1928] 307, 309; 2 Aspinwall Papers, 537, 542; 4 Wm. Smith MSS., sub Autumn, 1764). For excerpts from London newspapers of the trial and conviction of Knapp see New-York Gazette; or, The Weekly Post-Boy, #1157, March 7, 1765. Knapp and "old Nicolls" drew up the writ. It was later suggested that the form of the writ "was borrowed from the practice of Jersey or Guernsey, or extracted from some Scotch code of venerable antiquity, or fabricated from an old petition of doleance" (The Sentinel, No. 1, New-York Gazette; or, The Weekly Post-Boy, #1156, Feb. 28, 1765). The writ was criticized as designed to prevent any judgment from being given in the Supreme Court and in effect abolishing that court if obeyed. The writ was also alleged to be an indignity and an insult to the justices in that it assumed that they would violate their oaths and commissions in obedience thereto. 192 7 Doc. Rel. Col. Hist. N.Y., 676-77. The writ is set forth in Rep. Forsey v. Cunningham, 5. 193 Ibid., 3-5; 4 Wm. Smith MSS., sub Autumn, 1764. But cf. 2 Aspinwall Papers, 541.