Montesquieu

In the prac­tice of judi­cial com­bat, the appel­lant who had chal­len­ged one of the jud­ges could lose his suit by com­bat, and could not win it.1 Indeed, the party which had a jud­ge­ment in his favor was not to be depri­ved of it by the action of ano­ther. Therefore, the appel­lant who had won had to fight again against his adver­sary, not to see whe­ther the judg­ment was right or wrong – that judg­ment was no lon­ger at issue, since the com­bat had annul­led it – but to decide whe­ther the demand was legi­ti­mate or not, and it was over this new point that the com­bat was held. Whence, no doubt, our man­ner of pro­noun­cing decrees : The court annuls the appeal ; the court annuls the appeal and that which was appea­led. Indeed, when he who had appea­led for false judg­ment was defea­ted, the appeal was annul­led ; when he had won, the judg­ment was annul­led and even the appeal : they had to pro­ceed to a new judg­ment.

This is so true that when the mat­ter was being jud­ged by inquiry, this man­ner of pro­noun­cing did not apply : wit­ness what M. de la Roche-Flavinsays, that the cham­ber of inquiry could not make use of this form in the early times of its crea­tion.2

Défontaines, ch. xxi, art. 14.

Of the parlements of France, book I, ch. xvi.