JB_106_103.xml

Title: [10 March 1807 Judicial Justice]

Description: 10 March 1807

Judicial Justice

Letter V

I. Shapes

1. Misdecision

Thus much as to misdecision pro tanto in respect of quantity.

By the inadequate simplicity of the original scheme Common Law, being alike debarred from recognizing the possibility of misdecision pro tanto in respect of conditionality, hence in any case where to render the decision commensurate to the ends of justice modification in respect of conditionality was requisite, and one amongst so many other proper grounds for the necessity of a recourse to the more unshackled authority of a Court of Equity, proceeding on the ground work of Roman Law.

When by a Court of Equity a decision is pronounced in favour of the Plaintiff, it may either accede to the demand either purely and simply, or annex to the service rendered to him any conditions that present themselves as suitable to the justice of the individual case.

When upon and after a definitive decision, pronounced by a Court of Equity, which decision is in that sort of Court called a Decree any change is made by a superordinate Court, whether it be in toto or pro tanto, and if pro tanto, whether in respect of quantity or conditionality, the instrument whereby the correction is administered is either termed, also a Decree, or else an Order: a decree, if administered by any other superordinate Court of Equity than the House of Lords: for example if administered by the Lord High Chancellor, in correction of a Decree framed by the Master of the Rolls: an Order, if administered by the House of Lords.

In both instances the application whereby such correctionary Decree or Order is prayed, is termed an Appeal.

In the same case likewise stands the practice of the other Courts of Rome-bred law - the Spiritual Courts, and the Admiralty Courts.

JB_106_098.xml

Title: [10 March 1807 Judicial Justice]

Description: 10 March 1807

Judicial Justice

Letter V

I. Shapes

1. Misdecision

In the English constitution, a peculiar feature, and as it will appear, a feature of peculiar advantage, is the separation so extensively made or endeavoured to be made in the system of judicature between the matter of law, and the question of fact.

In so far as the separation is made, or understood to have been made the decision on the matter of law is understood to appertain, and is accordingly committed to the permanent Judge or set of Judges: the decision on the matter of fact to the impermanent, ever-changing set of Judges, called the Jury.

In pursuance of this separation, the remedy applied in the character of a correction to misdecision, receives in the two cases a different denomination, and the application of it is governed by different rules.

It is only in the Common Law Courts that this separation has place. In the few instances (individual instances) in which it is made under the authority of the Equity Courts, it is made through the medium of the Common Law Courts.

When the misdecision is regarded as having for its subject the matter of law, the correction is applied by the decision of a superordinate Court, and the decision is called Judgment for the Plaintiff in Error: and the application whereby such judgment is prayed is called a Writ of Error.

JB_106_102.xml

Title: [10 March 1807 Judicial Justice]

Description: 10 March 1807

Judicial Justice

Letter V

I. Shapes

1. Misdecision

There remains then as the most natural, and under English Jury trial the only subject for liquidation, viz: money.

And here accordingly comes in the room for misdecision pro tanto, viz. in respect of quantity, as well as per toto. Accordingly a verdict pronounced by a Jury is liable to be set aside, either for being for the Plaintiff when it should have been for the Defendant, or vice versâ, or being for the Plaintiff, as well for deficiency as for excess of damages. On the ground of deficiency very rarely indeed does it happen to any such correction to be administered: but as to the why or wherefore it belongs not to this place.

On the question of law, the possibility of misdecision pro tanto and not per toto has not been recognized by English jurisprudence.

So long as the part of business is left to be performed by the Jury, the deficiency is not attended with any inconvenience. So far as quantity is concerned the enquiry is with peculiar propriety committed to the judges of fact and not of law. For the quantity due, depending commonly upon circumstances peculiar to the individual case, can seldom receive an exact liquidation from the tenor of the law. It stands therefore in this characteristic point of view in the same case with the question of fact: and with equal propriety may receive its decision from the same species of judicature.