in September the assembly granted the petition. 624 When the cause accordingly 
came on to be heard before the Superior Court of Judicature, in March, 
1766, Holmes pleaded to the jurisdiction, but the plea was overruled. Holmes 
making no further defense, the former judgments were reversed and costs 
were awarded Freebody. Relying upon remedial action in the pending conciliar 
appeal, Holmes took no further appeal. But in May, 1767, despairing of 
prosecution of the pending appeal, Holmes was advised that the merits of the 
cause could only obtain conciliar consideration upon an appeal from a new 
trial. 825 In September, 1767, upon petition of Holmes, such new trial was 
granted by the General Assembly. 626 At the trial held accordingly in March, 
1768, at the Superior Court of Judicature the plea in bar of defendant Freebody 
was upheld. From this judgment Holmes was granted an appeal to the King 
and Council. 627 
In the meantime the solicitor of Holmes, ignorant of events in Rhode Island, 
made application to the Privy Council for dismissal for nonprosecution of 
Freebody's appeal from the March, 1765, judgment. In July, 1768, the Committee 
after hearing counsel for both parties advised dismissal of the appeal 
with sterling costs, and it was so ordered. 628 When this Order in Council 
was presented to the Governor and Company in General Assembly and a 
direction to the Superior Court for execution thereof prayed, it was resolved 
that such direction could not be granted, but that execution o r . the order should 
be postponed until the final determination of the pending appeal or further 
knowledge of the royal pleasure. 629 
The petition and appeal of Holmes entered in April, 1769, prayed reversal 
of the judgments of March, 1766, and March, 1767, declaration of the assembly 
acts granting new trials as void, and direction to execute the July, 1768, order of 
dismissal. 630 When the appeal came on to be heard, in April, 1770, the Committee 
advised reversal of both judgments appealed from and reaffirmance 
of the March, 1765, judgment. 631 At the hearing, Chief Justice Wilmot totally 
denied the right of the General Assembly to grant new trials, saying that it 
was an illegal and usurped jurisdiction to whicu he would give no countenance, 
and that it properly belonged to the court in which the trial was had 
to grant a new trial, if it was necessary or reasonable. Both the chief justice 
and counsel disapproved of the methods of appeal and new trials as practiced 
in the colony, the adduction of new evidence at such subsequent trials placing 
e2i MS Petitions to R.I. General Assembly, 
1762-65, #211. 
625 See the "cases" of the parties (Col. Univ. 
Law Lib.). 
626 MS Petitions to R.l. General Assembly, 
1766-68, #99. 
627 Cases of the parties; PC 2/114/332-40. 
028 PC 2/112/129; PC 2/113/239, 249; 5 APC, 
Col., #23. 
629 Case of Appellant; PC 2/114/332-40. 
630 PC 2/Ix3/549. 
2/114/332-40.