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.