the Council setting forth that appellant, being in Connecticut, had received 
no information of the granting of the earlier appeal, so that further proceedings 
had taken place in the colony, resulting in another appeal. Petitioner was 
informed by counsel that the second appeal could not be proceeded upon 
without the records of the court below, which petitioner was not able to 
obtain. Therefore, it was prayed that petitioner might be permitted to proceed 
on the earlier appeal and to give security for prosecuting that appeal. 287 Two 
years later, in July, 1745, the Committee to which the petition was referred 
heard counsel for and against the petition and advised that the petition should 
be dismissed. 288 On July 18 the dismissing Order in Council was issued. 289 
be shown to be not repugnant to the laws of 
England. Several kinds of descents taking place 
in England, he thought that the course of 
descents in Connecticut was composed of the 
several sorts of descents allowed by the law of 
England, and therefore "not repugnant but 
agreeable thereto" (i Law Papers, 75). A 
variant proceeding suggested was the passage 
of an act deviating in no essential respect from 
the voided act, a likely variation being not to 
vest realty in the administrator or the distribution 
thereof in the Court of Probates, but to 
leave the matter to be determined in courts of 
law. Such new act, strengthened by Philips v. 
Savage, could be supported without difficulty 
(ibid., 75-76). 
28T 9 Pub. Rec. Col. Conn., 591. In connection 
with this case Jonathan Law, who presided at 
the trial, wrote, "I suppose there is nothing of 
record or on the files saving the writt the plea 
which was general, the verdict of the jury and 
the judgment ... as my memory serves me 
all matters of fact were conceded to on both 
sides and whether the eldest son were heir at 
law was all the dispute between the parties" 
(1 Law Papers, 27). Stating the general trial 
usage in the colony Law said "on the parties 
conceeding to all the matters of fact layd in the 
declaration they proceed immediately to debate 
the point or points of law arising upon 
those facts and this alwayes verboteims and 
never becomes matter of record neither can it 
be filed" (ibid., 28). But writing at a later 
date Law remarked, "I have seen copies of 
the records and observe there was no concessions 
made of the matters of fact" (ibid., 
67). In the instructions to Palmer the agent 
was advised "to withstand the demandant in 
what he must be able to shew and maintain the 
matter of fact and the extent of the common 
law which desire you to be aware of in this 
case and let your answer to it be only by way 
of protestation. For the defendant never sett 
up his title but stood upon his defense on the 
general plea" (ibid., 68). Solicitor John Sharpe 
wrote, "as the matter appears upon the record 
transmitted, it is impossible for Clarke to have 
any success upon this appeal, the record by no 
means agreeing with the allegations in the 
petition, and no evidence appearing upon the 
record that the appellant is eldest son and heir 
of his father, or that his father dyed seized in 
fee of the premises in question; both which facts 
it is of absolute necessary for the appellant to 
make out, before the question of law can arise; 
and as neither of these facts appear by the 
record either to have been proved or admitted, 
it is impossible that Mr. Clarke can prevail 
upon this appeal." Sharpe asserted that this 
case was a result of his advice to the colony to 
allow several collusive suits of this nature, 
founded upon custom and not the 1699 act, to 
establish precedents; at the trials none of the 
evidence to be taken down in writing. If an 
adverse eldest son arose, such as Clark, "by 
thus taking care not to have the evidence taken 
clown in writing, nor any admission of the fact, 
it would be impossible to prevail upon an appeal 
home, because the evidence could not appear 
to the Lords upon which the verdict was 
founded, and without the evidence appearing 
it was impossible for the Lords to reverse the 
judgment" (ibid., 72-73). Cf. ibid., 77. 
2SB PC 2/99/133, 144. The Committee reporting, 
as listed in the Privy Council register, 
consisted of the Lord President (Duke of Dorset), 
Lord Monson, Chief Justice Willes, and 
George Dodington. Counsel for the province 
and respondent were the Attorney General and 
the Solicitor General (1 Law Papers, 343). 
Agent Palmer reported that the petition (termed 
a petition "for leave to appeal from the judgment 
of your courts pursuant to the Order of 
Councill in the year 1727 [sic]") "was ordered