instructions to Governor Osborne, "of permitting appeals from any of the 
courts of common law in the said province," was clearly explained by the 
clause immediately following where the governor was directed "for that purpose 
to issue a writ in the manner which has been usually accustomed." Therefore, 
the custom and usage of the province, ever since its settlement, was the 
rule for construing the instruction and showing in any case whether a writ of 
error had been properly framed and issued. 201 This opinion obviously supported 
the views of the Supreme Court judges and utterly rejected the Coldenite 
interpretation. On November 15 the Committee on the basis of the crown 
law officers' report ordered the Board of Trade to suspend the proposed alteration 
until the merits of the pending appeal had been determined. 262 On 
November 22 the Board of Trade, agreeable to the Committee order, altered 
the said instruction and ordered the altered draft redelivered to the clerk of 
the Council. 283 
Simultaneously action in the cause was taking place in New York. On 
October 9, Colden laid before the colony council the July 26 Order in Council 
and a petition of Cunningham's representative praying admission and speedy 
hearing of the appeal, that further proceedings on the execution issued against 
appellant's bail be stayed, and that counsel be assigned for bringing on the 
appeal. 284 On October 15, when Colden put the question whether Cunningham 
should be admitted to his appeal, his council declared that the lieutenantgovernor 
should issue the writ. Thereupon, Colden issued an instrument under 
the colony seal directed to the justices of the Supreme Court, reciting the 32d 
instruction and its July 26 conciliar confirmation, enjoining further proceedings 
on the Supreme Court verdict and judgment, and directing the justices 
to cause the same to be before the council on November 26. Agent Waddel 
then petitioned the Supreme Court for admission of such appeal from both 
verdict and judgment; that the proceedings might be ordered laid before the 
council; that execution against appellant's bail be stayed; and that counsel be 
assigned to prosecute the appeal. 265 On October 22 Waddel was called upon 
by the Supreme Court to show his authority for presenting the aforesaid petition. 
Upon considering a power of attorney from Cunningham, the court 
201 7 Doc. Rel. Col. Hist. N.Y., 815-16; PC 
1/51. 
262 pC 2/111/406. 
283 JCTP, 1764-67, 226; PC 1/51. It would 
appear that the instruction to Governor Moore 
at 7 Doc. Rel. Col. Hist. N.Y., 764, is the rejected 
draft, since it contains the excised "in 
cases of error" clause. Moore was ordered to 
his government immediately, without waiting 
for his instructions; upon his arrival in the 
colony he desired and received Monckton's instructions 
{ibid., 794). 
26*29 MS Mins. N.Y. Council, 91-93; 2 
Journals General Assembly N.Y., 805. For the 
effect of the conciliar order in the province 
see Letter Book of John Watts, 390-91, 393; 
2 Aspinwall Papers, 579; Chalmers MSS, 
4 New York, 20. 
265 29 MS Mins. N.Y. Council, 93-94; 2 
Journals General Assembly N.Y., 805.