ous judgment in a court not of record. The remedies for a party aggrieved by an unjust verdict or error of fact were a writ of error coram nobis, writ of attaint, motion for a new trial (the usual practice), or audita querela. Judges were not concerned with any errors of fact, but such as might be made part of the record by a bill of exceptions. 217 Livingston argued that the royal intention not to alter the method of judicial proceedings was evident in the fact that the instruction was not directed to the judges and therefore not intended to regulate their conduct. It would be absurd for the judges to have recourse to the scraps of gubernatorial instructions communicated to them to spell out their duties. Making little of the "manner which has usually been accustomed" argument, Livingston emphasized that a writ of error would bring before the appellate body all that the judges of the inferior court had in their power to send up; any other writ would be useless. In civil law courts the evidence was reduced to writing and could be transmitted upon appeal. But here the evidence had been given to the jury mostly viva voce, and it was impossible for the judicial memory to retain it. If the bench made records of the testimony of each witness, the labor would be endless and the court of necessity continuously in session. 218 In some respects Livingston wandered from legal reality, Lord Mansfield having remarked earlier in Bright v. Eynon (1757) that "the writ of attaint is now a mere sound, in every case." 21 ° On December 26 Justice Jones returned to the council his answer to the question whether according to the laws and constitution of England an appeal lay from the verdict of a jury on the whole merits of a cause. 220 He stated that he knew nothing in favor of such an appeal; on the contrary, the rule was ad quaestionem juris respondent judices, ad quaestionem facti respondent juratores. The procedure formerly used to set aside a verdict was attaint; present practice favored the motion for a new trial where a verdict was given contrary to the evidence. Writ of error and certiorari did not have respect to the verdict of a jury, as appeared from 27 Elizabeth, c. 8. In conclusion, he was of the opinion that the appeal would not lie by the law and constitution of England. 221 Even while these vigorous views were being presented, Colden was seeking support for his conflicting interpretation from the Board of Trade. Colden emphasized the necessity of such review to avert calculated general verdicts, from which no appeals at present lay, in cases in which crown rights were involved. Grant of a new trial where the verdict was contrary to evidence was a 217 Rep. Forsey v. Cunningham, 24-25. been allowed, since he was not present in 218 Ibid., 25-26. court when the appeal was moved for (Rep. 219 1 Burr., 390, 393. Forsey v. Cunningham, 27). 220 29 MS Mins. N.Y. Council, 30-31. Jones 221 Ibid., 27-28. could not answer why the appeal had not