Front Page Titles (by Subject) CHAP. XXXIII.: The same Subject continued. - Complete Works, vol. 2 The Spirit of Laws
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CHAP. XXXIII.: The same Subject continued. - Charles Louis de Secondat, Baron de Montesquieu, Complete Works, vol. 2 The Spirit of Laws 
The Complete Works of M. de Montesquieu (London: T. Evans, 1777), 4 vols. Vol. 2.
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The same Subject continued.
IN the practice of judicial combats, the person who had appealed one of the judges of false judgment, might lose his† cause by the combat, but could not possibly gain it. And indeed the party who had a judgment in his favour, ought not to have been deprived of it by another man’s act. The appellant, therefore, who had gained the battle, was obliged to fight likewise against the adverse party: not in order to know whether the judgment was good or bad (for this judgment was out of the case, being reversed by the combat) but to determine whether the demand was just or not; and it was on this new point they fought. From thence proceeds our manner of pronouncing decrees, “The court annuls the appeal; the court annuls the appeal, and the judgment against which the appeal was brought.” In effect, when the person who had made the appeal of false judgment, happened to be overcome, the appeal was reversed; when he proved victorious, both the judgment and the appeal were reversed: then they were obliged to proceed to a new judgment.
This is so far true, that when the cause was tried by inquests, this manner of pronouncing did not take place: witness what M. de la Roche Flavin* says, namely, that the chamber of inquests could not use this form at the beginning of its creation.
[† ]Défontaines, chap. 21. art. 14.
[* ]Of the parliaments of France, book 11, chap. 16.