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.