date

28 Feb y 1807 Letter V IV.
28 Feb y 1807

Letter V

IV. Application Modes

7

6. Writ of Error

6. Appeal from a decision (called a judgement) pronounced by a Court of Common Law; in a case where nothing that has passed at the trial before the Jury is included in the subject of complaint, is called a Writ of Error.

7. Appeal from a decision pronounced by a Court of Equity, the application being to another Court considered as a distinct as well as superior Court is called simply an appeal: so likewise is the case where the Court a quâ is a Spiritual Court or Court of Admiralty.

8. After a definitive decision pronounced by the Judge of an Equity Court, an application addressed to that same Judge and praying an alteration in such decision, is called a Bill for a Rehearing.

9. - if to a different Judge succeeding the former in that same Court, a Bill of Review.

10. Causing a suit already instituted in an inferior Court to be removed into a superior Court without notice taken whether before or after judgement, definitive or interlocutory.

To this head belong in English law the instruments called a Writ of Certiorari and a Writ of Pone: in Scotch Law, the instrument called a Bill of Advocation.

N.B. The Writ called Certiorari is applicable to other purposes besides.
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  • Title: [28 Feb y 1807 Letter V IV.]
    Description: 28 Feb y 1807

    Letter V

    IV. Application Modes

    Removal 1. some regard to decision. 2. in consideration of decision.

    Application; made to one Court in the character of a superior Court, on the occasion of a cause commenced or proferred to be commenced in another Court, may have any one of │ │ objects.

    1. Causing a definitive judgement pronounced in the Court below to be reversed: i.e. judgement for defendant, changed to judgement for plaintiff; or judgement for plaintiff changed into judgement for defendant.

    2. Causing a definitive judgement to be modified: viz. if in favour of the planitiff. 1. by taking away something from what is given; 2. by adding something to what is given: 3. by substituting something not given to something given: 4. by annexing conditions either 1. to what is given, or 2. to the defalcation, the addition, or the substitution above-mentioned.

    3. Causing an interlocutory judgement to be reversed as above.

    4. Causing an interlocutory judgement to be modified, as above.

    N.B. All these four modes of application are comparable under the word appeal taken in its largest sense.

    5. Appeal in the case where the decision complained of was expressed by the verdict of a Jury and the object of the application is to have the cause substituted to another Jury, is called in English law Motion for a New Trial.
  • Title: [6 Jan y 1807 Facienda Outline]
    Description: 6 Jan y 1807

    Facienda

    Outline

    Appeal & Jury

    On view of the Verdict given, on the occasion of any such Trial ordered by the Metropolitan Court of Appeal, together with the Minutes of the Trial power, to the Court to declare the Judgment final, on the principle of the perpetual Injunction granted by the English Courts of Equity.

    N.B. The question how far after a judgement already pronounced the case of any Court shall be open to applications for reversal or modification requires to be settled upon all comprehensive principles - comprehending demands of all sorts. The perpetual Injunction above mentioned is a technical /technically manufactured/ remedy to a technically produced /generated/ /begotten/ inconvenience. In general judgment except in case of appeal /arrest of judgement/, or writ of error, is conclusive on both parties; admitting no fresh action, (unless the useless and abusive action in lieu of execution in that same judgement) for the same cause. Hence it is that in general there is no room for application for perpetual injunction here[?] in general no ground to operate upon. In the fictitious action at Common Law employed for trying titles to property in immoveables (ejectment) one of the consequences is that fresh and fresh actions may be brought by the losing party in each instance to the end of time. Abuse infinite, remedy an enormous grievance.
  • 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.