date

7 March 1807 Judicial Justice
7 March 1807

Judicial Justice

Letter V

I. Shapes

1. Misdecision

Misdecision pro tanto admitts of considerable diversification. What there can be of error in it seems reducible to two heads: the one respecting quantity; the other, conditionality. In Misdecision pro tanto in so far as it regards quantity the error may either be on the side of defect, or on the side of excess. Thus the damages given by a Jury have sometimes been deemed insufficient, much more frequently excessive.

Misdecision respecting condionality may consist either in adjudging that absolutely which ought not to have been adjudged but upon conditions; or in adjudging upon conditions that which ought to have been adjudged absolutely; or where it was right that the adjudication should be affected by conditions, attaching to it some wrong condition or conditions, or omitting to attach to it some condition or conditions which ought to have been attached to it.

To the modes of misdecision in respect of conditionality correspond so many modes of correction, in the way of modification, as above. The enumeration of them may, it is supposed be spared.
Similar Items
  • Title: [3[?] March 1807 Judicial Justice]
    Description: 3[?] March 1807

    Judicial Justice

    Letter V

    Resolut. 10 &c

    III. Remedies or Corrective modes

     Rewrite this below?

    1. First as to the different operations, correspondent to the different shapes in which injustice, having its source in misconduct on the part of the Judge is apt to show itself.

    1. To injustice in the shape of misdecision, the remedy is either reversal or modification: reversal, if the decision pronounced below be erroneous in toto: as if it be pronounced in favour of the Plff., whereas it ought to have been in favour of the Defendant, or vice versâ: modification, if erroneous pro tanto: as if the value of the benefit adjudged to the plaintiff were too great or not great enough: or as if being adjudged absolutely it ought not to have been adjudged but under certain conditions - or being adjudged in certain conditions, such conditions were in any respect improper.
  • 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: [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.