date

10 March 1807 Judicial Justice
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.
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  • Title: [7 March 1807 Judicial Justice]
    Description: 7 March 1807

    Judicial Justice

    Letter V

    I. Shapes

    1. Misdecision

    Misdecision, again, may either be in toto, or pro tanto. The distinction is no frivolous one: since according as the disorder wears the one or the other face, the remedy appropriated to it bears one or the other of two denominations: disorder, misdecision in toto, remedy, reversal: disorder, misdecision pro tanto, remedy not reversal but modification.

    Misdecision in toto is in its remedy, as in its nature extremely diversified. It may be in favour of the plaintiff's side alone, it may be in favour of the Defendant's side alone. Misdecision in toto in favour of the plaintiff's side is judgment simpliciter for the plaintiff, whereas it ought to have been for the defendant: misdecision in toto in favour of the defendant, is judgment simpliciter for the defendant, whereas it ought to have been for the plaintiff.
  • 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.
  • Title: [10 March 1807 Judicial Justice]
    Description: 10 March 1807

    Judicial Justice

    Letter V

    I. Shapes

    1. Misdecision

    Where in pursuance of any juridical demand a decision is pronounced in favour of the plaintiff, adjudging a service to be rendered to him at the charge of the Defendant, a question that commonly remains to be resolved, is - what shall be the quantity of the subject matter of that service: as in the case of the money, what shall be the quantity of money paid. The separation which thus takes place is not matter of accident or caprice, but results almost necessarily from the nature of the case. For it follows, not by any means that because that precise quantity which the plaintiff demands is not due to him, therefore nothing at all is due to him: and to require that where the first demand is deemed too great, that demand having thereupon been repelled shall be followed by demand after demand (in the manner of the Dutch substitute for an Auction) would be to require delay, vexation and expence in prodigious waste.

    In the nature of things whatsoever is susceptible of quantity, and that quantity susceptible to variation, is thus capable of being made the subject of liquidation: money, moveable property such as corn, wine, and oil: and land. But in English law under English Jury Trial, the only article which ever becomes the subject of liquidation, at least of liquidation made by the Jury, is money. So far as moveable property is concerned, the reason (meaning nothing more than the cause) is altogether curious. The Common Law Courts affording no means of recovery for corn, wine, oil or in a word for any one thing moveable that exists, hence the quantity of it never becomes (before the Jury at least) the subject matter of liquidation.