It should be noted that the attitude revealed in Cunningham v. Forsey 
toward appellate judgment on the merits was not common to all the continental 
colonies. An entirely different attitude is found embodied in a statute 
of the colony of Virginia. By a 1748 act it was enacted that if upon trial in the 
General Court of any appeal, writ of error, or supersedeas the judgment or 
decree appealed from should be reversed, the General Court should "enter 
such judgment, or make such decree thereupon, as should have been entered 
or made in the inferior court." 291 Although this act was disallowed, 292 the 
same provision was again incorporated in a 1753 act. 293 Of course, where the 
appellate jurisdiction was equitable, there was no clash with the New York 
view. The divergence as to the scope of appellate common law jurisdiction 
may be explained by the extensive Virginian use of special verdicts and agreed 
cases. 294 A later North Carolina act of 1773 provided that if upon writ of error 
or appeal the judgment of any inferior court was reversed, the Superior Court 
should make such judgment as should have been made below. 295 
On the other hand, doubts and controversy as to the meaning of the appeal 
instruction were not confined to New York and South Carolina. In August, 
1766, Governor Johnstone of West Florida wrote to the Board of Trade that 
on the appeal of one Bruce the question arose whether an appeal would lie 
"from the verdict of a jury" to the Governor and Council. Explaining his 
understanding that the point had been much agitated in Forsey v. Cunningham, 
the governor stated his opinion that such an appeal would lie by the 
royal instructions, but not by the common law. However, he begged the best 
information of the Board for his future conduct. 296 Unfortunately there is 
no trace of a Board of Trade reply to this inquiry. 
In the recently acquired colony of Quebec some discussion also took place 
as to the proper appellate jurisdiction of the Governor and Council. In a 
February, 1765, report by the Attorney General to Governor Murray on the 
judicial establishment in Nova Scotia, as well as on the basis of the Quebec 
establishment, it was stated that the Governor and Council had an appellate 
jurisdiction in civil causes as to matters of law only. 297 Since the same instruction 
as to appeals was in force in Nova Scotia as in New York, this opinion 
accepted the anti-Coldenite view. In 1769 the Quebec authorities were of the 
opinion that appeals should be only as they then were, of the nature of writs 
of error in England to correct mistakes of law, not to reconsider facts—unless 
291 5 Hening, Stat, at Large Va., 467, 483. 
292 4 APC, Col, p. 139. 
293 6 Hening, Stat, at Large Va., 325, 340-41. 
294 See 5 ibid., 478; 6 ibid., 336. See the cases 
of Burgess v. Hack (PC 2/94/293); Meade v. 
Thrustout (PC 2/98/27); Starke v. Thrustout 
(PC 2/99/123); Jones v. Porter, Case of Appellant 
(L.C., Law Div.); McCarty v. McCarty, 
Case of Appellant (ibid.). 
295 Laws of North Carolina (1773), 511, 521. 
296 CO 5/575/B 6. 
297 CO 42/2/601.