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.