1699 act was contrary to the laws of England and not warranted by the charter 
and that the land in question being held by the Great Seal of England was 
descendible only according to the rules of law of England. 276 On March 6, 
1732/3, the Superior Court affirmed the sentence appealed from and awarded 
respondent costs. 277 It was from this Superior Court sentence that the above 
appeal to the King in Council was prayed and allowed. 278 
Although no steps were taken to prosecute this appeal, in October, 1739, 
a Committee of the General Assembly proposed an address to the King that 
the nullified law might be revived and that the Courts of Probates might settle 
intestate estates according to the ancient usage. It was also proposed that agent 
Wilks, furnished with the proper records, should be directed to assist Tousey 
or any similarly situated respondent and to petition for favorable action on 
the voided act in case of affirmance. 279 In April and August, 1740, agent Wilks 
was supplied with the necessary records to prove the colony's contentions upon 
an appeal and with numerous arguments to support the nullified act. 280 But 
feeling that appeals would be governed by the precedent of Winthrop v. 
Lechmere, 291 Wilks informed the colony that the transmitted evidence as to 
usage would be inadmissible, since not laid before the court below and incorporated 
in the record. 282 
In March, 1740/1, Governor Talcott informed Wilks that by a February 
17 Superior Court judgment on a writ of review Tousey had been kept in 
possession of the realty held under the former distribution of the Court of 
Probates, and that plaintiff Clark was bringing an appeal to the King in 
Council therefrom. 283 A year later 
™lbid., 88. 
277 Ibid., 88; MS Conn. Superior Ct. Rec. 
1731-36, sub Sept. 6, 1732, Mar. 6, 1732/3 
9 Pub. Rec. Col. Conn., 587. 
278 Solicitor Paris had advised that in appeals 
threatened in cases where judgment had been 
given prior to the conciliar order in Winthrop 
v. Lechmere, such appeals should be primarily 
opposed on the ground of laches, rather than 
on the merits. As to judgment made after 
notice of Winthrop v. Lechmere, "I must own 
my surprise that the courts in Connecticut would 
go on to make determinations upon the foundation 
of their act, after they had notice of 
Winthrop's order, and without having made 
some previous application here" (2 Talcott 
Papers, 82-83). 
279 Ibid., 176-79; see also the earlier letter 
from Talcott to Wilks {ibid., 135). See ibid., 
225, for directions for securing records evidencing 
the constant usage in the colony in 
accordance with the voided act. 
Jonathan Law, successor to Governor 
280 Ibid., 243-47, 289-92. The arguments 
were the familiar ones urged in Philips v. 
Savage. 
281 i Law Papers, n Conn. Hist. Soc. Coll., 52. 
282 2 Talcott Papers, 330-31. But compare the 
evidence of usage recited in the Order in Council 
in Philips v. Savage, supra, p. 569, seemingly 
not made part of the record. See also 1 
Law Papers, 52, where use of evidentiary 
certificates on appeal was contemplated. 
283 2 Talcott Papers, 342-43. "The dispute 
was intirely whether the plantif should recover 
as heir at law against the defendant that 
claimed according to our custom of settling 
estates. What papers the parties put in, I am 
not informed. The defendant had not the 
benefitt of your cautions in the close of your 
letter" (see supra, n. 282). Yet further offer 
was made of evidence of colony usage. For the 
court proceedings see MS Conn. Sup. Ct. Rec, 
1736-41, sub Feb. 17, 1740/1; this was a review 
from an August 19, 1740, judgment