INTRODUCTION xxxix

The chancery appeals, it will be observed, were in the form of petitions, to
be answered by the appellee; and the higher court, in Maryland as in Eng-
land, determined the questions of fact in chancery cases as well as those of
law. Allowance of this appeal again involved review by judges of their own
decisions, for the governor, who served as chancellor down to the year 1776,
was the presiding judge of the appellate court and sat on chancery appeals
until the middle of the eighteenth century; and at times his associates in the
work of the chancery court were also members of the council. In the case of
Charles Carroll v. Thomas Wells? in this record, for instance, it appears
that in the chancery court below sat Governor Hart, with Holland, Young,
Hall, Addison, Lowe, and Ward as associates, and on the hearing of the ap-
peal from their decision sat Governor Hart, Holland, Young, Lloyd, Addi-
son, Tilghman, Lowe, and Bordley.

In decisions in cases of all kinds the governor and the members of the
council had equal votes, and that it should be so will be found decided in the
case of Miles Burroughs v. Tench, Governor Copley's Administrator.²

When Dent questioned whether in caac of a division of an even iiumbci u£

judges the governor did not have a "swaying voice," the governor an-
swered that he thought not. But there was precedent for Dent's view,
even in Maryland. An act of i642,³ concerning judges for the provincial
court and the county courts, had provided that " if the votes of the judges be
aequall, that judgment shall be entered w^ch is given by the Chiefe Judge in
Commission." In the act of 1718,* on the other hand, it was provided that
on appeals from chancery decrees each member should have a full voice.

Upon a reversal there was no new trial given in the same suit; if the
plaintiff wished to press his claim he must then have begun a new suit in the
trial court, and it was because of the necessity of bringing this second suit
within the period of limitations, if it should be brought at all, that plaintiffs
in some of the cases resisted continuances of the appeals.

The administration of justice depicted in this volume exhibits the vir-
tues and defects of the time. There was still a freedom and adaptability not
permitted later, as in the case of Adams v. Caldwell* in which, the Court of
Appeals, finding a bill to set aside fraudulent conveyances to be insufficient,
treated the proceeding as one to perpetuate the testimony taken in it; and in
Burroughs v. Copley's Administrator,⁶ in which, suspending the review
meanwhile, it ordered the provincial court to take the verdict of a jury on a
question of fact left open, and to certify the finding to the Court of Appeals
for its resumption of consideration of the case. In a case of Proprietary v.
King,¹ in 1732, the provincial court, reviewing an assize court conviction of
murder, found error in a refusal to instruct the jury to render a verdict of

1 Post, pp. 235, 236 ⁶ Post, p. 581.

2 Post, p. 54. « Post, p. 26.

s Chs. 3 and 22, Archives, I, 210. 7 i Harris & McHenry, 83.
* Ch. 10, ibid., XXXVI, 524.