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Party who had been prejudiced by an improp­er Verdict was either by the then impractical Proceeding to Attaint the Jury, or by an Ap­peal to a Court of Equity, which, under some-conditions, might procure New Trials. The first case in which it was said a New Trial was• granted at Law, In order to meet the inade­quacy of the Courts in refusing to set Verdicts-aside, was Wood v. Ounston,’° decided in 1655. But Lord Mansfield was of the opinion that New Trials were granted at Law at an earlier time?’
Note: New Trial—Exclusiveness Grounds, 5 Minn.L.Ilev. 564 (1921).
it Style 466, 82 Eng.Rep. 867(1655).
11. BrIght v. Eynon, 1 Burr. 390, (1757).

of StatuLoIy




97 Eng.Rep. 385-

Sec. 305


As heretofore indicated, at Common Law,

after a Nisi Prius Trial, the Losing Party could Move for a New Trial before the Court, En Bane, at Westminster, the Judge who pre­sided at the Trial being one of the members of this Court. As the procedure evolved in



the American Courts, the Motion for a New

Trial became one which was generally ad-dressed directly to the Judge who conducted

the Trial, and sought to persuade him that he had committed some Error in one or more of

his Various Rulings during the Trial, or that for some other reason Justice was not done.



it is altogether proper that this Motion should be heard by the very Judge who tried the Case, as he is personally acquainted with the Facts involved, and able to judge as to their bearing upon the merits of the controversy, as well as give them their proper evaluation. And it was for this very reason that it became

the established Rule that a Judge in passing

upon a Motion for a New Trial exercised his own discretion, which, in general, was not re­viewahle in an Anpeilate Court, as the Grant or Refusal of a New Trial could not be As­signed as Error in Another Court,


While the discretion exercised by the Trial

-Court in passing upon a Motion for a New Trial was not ordinarily subject to Appellate Review, it should be observed that some of the Errors urged in support of such a Motion may be and frequently are made the subject of Exceptions, and are thus incorporated into the Record by means of a Bill of Exceptions. In this way the same Errors which are urged below on Motion for a New Trial may be Re­viewed by Writ of Error, which brings the Bill of Exceptions to the Appellate Court, or by Statutory Appeal.


if the BiU of Exceptions reveals that the Trial Court committed Errors, as in improp­erly A&’nitting or Excluding Evidence, or in failing to correctly Instruct the Jury, the Ap­peilate Court may, on the ground of such Er­rors, Reverse the Judgment and grant a New Trial. Such a Course of Procedure involves

no revision of the decision ol’ the Trial Court on the Motion for New Trial; that which is revised is the Erroneous Ruling which oc­curred at the Trial. And the New Trial which is granted, is granted not because the Trial Judge Erred in refusing it, but on the ground that he had previously Erred in his hearing of the case and with respect to a Matter which Impaired the Validity of the Judgment.’2


Grounds for New Trial
AT Common Law there was a wide discre­tion in the Judge as to the Causes for gran­ting a New Trial, and the Statutory Grounds laid down in our Modem Codes and Practice Acts are not exclusive of all others.13
The Grounds for the Motion generally in­clude such Errors and Irregularities in the Conduct of the Trial as Errors in Impaneling the Jury, Bribes and Private Communications of the Prevailing Party to the Jury, which may have influenced their Verdict, or Misbe­havior of the Jury in their deliberations, as by intoxication, separation, private investi­gations, casting lots or drawing straws for the Verdict, or of the Jury bringing in a Verdict contrary to the weight of the evidence, so that the Judge is reasonably dissatisfied there­with, or if the Jury has given Excessive Dam­ages indicating passion and prejudice, or if the Judge has erroneously Excluded or Ad­mitted Evidence, or Misdirected the Jury on the Law controlling the case, so that in conse­quence they may have found an Unjustifiable Verdict; for these and any other reasons, which may amount for Error at the Trial, it is the duty of the Court to award a Retrial if
12. On the distinction between Review by Motion for New Trial and Review by Bill of Exception, see M’Lanalra,n v. Universal Ins. Co., I Pet. 170, 7 L Ed. 98 (1528).
23. See Note, New Trial—Exehisiveness of Statutory Grounds—Loss of Reporter’s Notes, 5 Minn.L.Rev.

564 (1921). See, also, the ease of Valerius v. Rich­ard, 57 Mimi. 443, 59 N.W. 584 (1894), per Canty J,, die so n tin g.

I

RETROSPECTIVE MOTIONS 569

Ch. 27
Lion for ‘y Writ pon the r, after ror Oc­ice, the

k place­re-ex­emoval

Writ of Jon for gmgnt, Lly sus— ~ot the­?ace of 3dy for-ring in might.

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earlier

tatutory­

lop. 365-

LITIGATING THE CONTROVERSY

a fair hearing had not been had iii the Orig­inal Trial.’4


All such Grounds for a New Trial, it should be noted, fall Outside the Common Law Rec­ord, as there was no place on the Roll for the Entry of such Errors, being known to the Judge only by memory, or by representations made to him by the Parties and incorporated into Sworn Affidavits submitted to the Trial Court.
And, of course, the Motion for a New Trial, should be clearly differentiated from the Mo­tion for Veniyc l7acian Dc Novo.’5
Another Matter for which New Trials are sometimes granted is surprise, where a Party using all diligence and care is placed in a situation injurious to his interests without his own default.1° One may reguiarly Subpoena a Witness, and he may be actually in atten­dance, but absent himself at the time when needed, without the knowledge or consent of the Party or his Attorney. But to avail him­self of this Ground for a New Trial, the sur­prise must be such that there ~vas no oppor­tunity to Move for a Continuance of the Cause. If he liad the opportunity and neglect­ed it, he cannot take the chance of a Verdict in his favor, and afterward claim the benefit of a Rehearthgi
14. In order to bring the question of the suffieteney of the Evidence to sustain the Verdict before the Appellate Court for Review, it is necessary for the losing pasty to snake n Motion for a New Trial, and to include the Motion, the order over­ruling it. and the Exceptions in a Bill of Exceptions. Yarber s’. Chicago & A. R. Co., 23-5 III. 589, 85 N.E. 928 (1908).
i& See, Witliam v. Lewis, 1 Wils. iCE. 45, 55, 95 Eng.Rep. 485, 489 (1744).
16. Ituggles v. hall, 14 Julius. (N.Y.) 112 (1810). See.

also, State v. Morgan, 80 Iowa 413, 43 NW. 1070

(1800); Solomon v. Norton, 2 Ariz. 100, 11 P. 108

(1886); Albert v. Seller, 31 Mo,App. 241 (1888).


17. McClure v. King, 15 LaAnn. 220 ~1560) Grant

v. Popejoy, 15 Did. 311 (1860); Klein v. Gibson

(Ky.) 2 sw. no (1880).

THE MOTION FOR VENIRE

FACIAS DE NOVO15
306. The Motion for Venire Facias Dc Nova was, unlike the Motion for New Trinl, designed to Vacate the Verdict and obtain a Retrial on the basis of Defects Appearing on the Record; and if granted when it should not be, it was Er­ror, and the Award of it could be reversed, whereas a Motion for a New Trial was common­ly granted after a General Verdict for some Cause not Apparent on the Record, and was not Assignnble for Error,
THE Motion for Venire Facias Dc Novo was an Ancient Proceeding of the Common Law, in use long bc~2ore the Motion for a New Trial.
IS. In referring to tile distinction between a Motion
for Ve,zire Fades Dc Nero and a Motion for a New

Trial, in the ease of Witham v. Lewis, 1 Wils. KB.

48, 55, 05 Eng.llep. 485, 489 (2744), Chief Justice

Wilies declared:


“Tue Counsel at the Bar endeavored to confound a Ve. Pa. Be Ncro and a Motion for aXe-v,- Trial. but they ace very different th rigs they a err-a i isdeeti in some things, but differ -in many: thevegr cc in this, that a Ve. Pa. Dc Noro must be awarded Ia both, and that the Court may or may not grant either of them; but they differ first in this, that

* Fe. Fri. Be 2~ovo is tile ancient proceedi]sg of the Common Law, a New Trial is only a new invention; the first is as Ancient as the Law, wile’s attuints were in use, but Motions for New Triats were introduced in this manner; the Judgment in Attaint was very severe, and the punisl.nuent ox­cessively hard, and therefore to avoid that sever­ity it was thought bet icr to prrr-cerl in :1 milder way, and so Motions for New Trials were intro­duced, They likewise differ in this respect, that New Trials are generally granted where n General Verdict is found, a Fe. Fe, Dc Nero upon a Special Verdict.


“But the most material difference between them is this, that a Fe. Fe. Be Nero must he granted upon Matter appearing upon the Record, but a New Trial may be granted uu)on things out of it; if the Record be ‘lever so right; if the Verdict appear to he con­trary to the Evidence given at the Trial. or if it ap­pear that the Judge has given wrong directions, a Icew Trial will be granted: but it is otherwise as to a ye, Fe-. Dc Noro, which can only be granted in one or other of these two eases, as 1st., ii it appear upon the Face of the Verdict, that the Verdict is so imperfect that no Judgment can be given upon it; 2db’., where it appoars that the Jury ought to have found other facts differently, and it cannot be granted in any other case.”

570


Cli. 27

Its ObjeCt, of course, was to obtain a New Trial; and it was commonly employed after a Special Verdict imperfectly found, but always for some Cause Upon the Record.’9 It dif­fered from the Motion for New Trial, which was based on Matters Extraneous to the Rec­ord. If granted when it should not be, it was Error, and the Award of it could be reversed, whereas a Motion for a New Trial was com­monly granted after a General Verdict and was not assignable for Error. The Motion for Ventrc Fat-ia-s Dc Nova was granted where a Verdict was so imperfect that Judgment could not properly be grounded upon it.2° This might occur where the Verdict was not responsive to the Issue, or where some irreg­ularity in the Impaneling of the Jury was involved, provided such insufficiency or ir­regularity was Apparent on the Roll. If the Motion to Set Aside the Verdict and to

Award a Venis’e Facias Do No-vo was granted, a Writ was then issued requiring the Sheriff to Summon a New Jury to try the Cause.2
TIlE MOTION IN ARREST OF JUDGMENT
307. The Court will generally, on Motion, refuse to Enter Judgment upon a Verdict, De­fault, or Demurrer to Evidence, when substan­tial Defects exist in the Pleadings or the Ver­dict. And the Defect must be at least one which would have been fatal on a General Demurrer, and not one which a Verdict would cure; and it must be Apparent on the Face of the Record. If a Declaration shows No Cause of Action whatever, or a Plea is utterly Wanting in Stating a Defense, the Entry of a Judgment clearly cannot be allowed to repre­sent what has not been established. And, of course, a Motion in Arrest of Judgment must

be made After Verdict and Before Rendition of the Judgment. It operates, with significant differences, as a kind of Delayed Demurrer.


19. Butcher it. Metts, 1 Miles (D.C.Phila.) 233 (1830).
20. Kcigwin, Cases in Common Law Pleading, Bk. II, The Rules of Pleading, c. XVIII, Retrospective Mo­tions, 771 (2d ed. Rochester, 1934).

Definition
IN Legal Proceedings, a “Motion” is an ap­plication, either written or made viva voce, by a Party to an Action or a Suit for some kind of Relief.22 And a Motion in Arrest of Judgment is a procedural device, entered up­on the Record, and is designed to Stay 23 Judgment, or prevent its Entry, pending a de­termination of whether the Record will sup­port the Judgment. Such a Motion usually occurs after an Issue of Fact has been tried and a Verdict Found, but the Motion is also available after a Default, in which case it is treated exactly as if it had been a Demurrer to the Declaration, and not like a Motion made after Verdict,24
The Principle Underlying the Motion

TUE Theory of the Motion in Arrest of Judgment is that the Judgment of the Court is a Conclusion of Law from all the Facts as­certained and spread upon the Record, and as such Conclusion must rest upon and be col­lected from the Whole Record, the Party who does not, upon the Entire Record, appear entitled to Judgment, cannot have it, Thus, a Substantive Defect is available at the Plead­ing Stage, by Demurrer; After Verdict and Before Judgment, by Motion in Arrest of Judgment; and After Judgment, by Writ of Error. And this principle holds true even though a Verdict has been found, a Default suffered, or a Demurrer to Evidence deter­mined in favor of the Party, who, upon the Whole Record, appears not to be entitled to Judgment. For even in the face of such Ver­dict, Default or Final Ruling on a Demurrer to Evidence, the Record, as viewed as a whole, may disclose No Right of Action, or no Legal


22. State it. Warner Valley Stock Co., 08 Ore. 406, 137
P. 740 (1914).
23. 3 Blackstone, Commentaries Upon the Laws of -England, e. XXIV, Of Judgment and Its Incidents,

386—387 (7th en. Oxford, 1775).


24. Collins v. Gibbs, 2 Burr. 899, 900, 97 Eng,flep.

023, 024 (1759).

Sec. 307 RETROSPECTIVE MOTIONS

57i

Ch. 2-7

)e Novo Lesigned trial on Record;

was Er­eversed, orumon­)r some Was not


)vo was

11 Law,


V Trial,
1 liotion ,r a New il8. Kil.

Justice
forind a flu lint
a deers in

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his, that

g of the


a new

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V Trials

Iflent in

,e,,t cx­

t sever-milder

o intro-

-Ct, that General



Special
them is ed upon w Trial

- Record he con-if it ap­tions, a so as to d In o,,e appear

:rdict is II upon ught to asset be

21. Ibid.

572

LITIGATING THE CONTROVERSY

Ch. 2?

Defense, in his favor,2~ as the Case may be. And, therefore, if a Verdict is found for the plaintiff, upon a Declaration substantively defective—as in Ejectment in which there is a failure to allege title—or for the defendant, on a Plea in Bar totally void, Judgment must in either case be Arrested. The Motion in Arrest of Judgment, of course, must be made Before Judgment and it operates, with sig­nificant differences, as a kind of Belated De­murrer,2°


The Question on a Motion in Arrest of Judg­ment is One of Lay,

THE Motion in Arrest of Judgment raises a Question of Law; it in effect asserts that there is some Error Apparent on the Face of the Record which in Point of Law vitiated the proceedings culminating in the Verdict; that is, Judgments were Arrested only for intrin­sic causes.2’ And after the Statutes of Amendments and Jeofails, the Error Manifest upon the Face of the Record was required to

be One of Substance and Not One in Form.
Defects Available Upon Motion in Arrest of Judgment -

UNDER the Ancient Common Law a Mo­tion in Arrest of Judgment could reach mere Defects in Form in the Pleadings. After the Enactment of the English Statutes of Amend­ments and Jeofails, this Practice of using the Motion in Arrest to reach Formal Faults in


2& Bayard it. Malcolm, 2 Johns. (N.Y.) 550 (1807).
26. Hitchcock v, Haiglit, 2 Gil. (111.) 604 (1845); Sawyer it. Boston, 144 Mass. 470, 11 N.E. 711 (1887); Bedell it. Stevens, 28 N.H. 118 (1853).
The relief must be applied for before Final Judg­ment, Keller it. Stevens, 66 Md. 132, 6 A. 533 (1886). See, Miller it. Gable, 30 IILA.pp. 578 (1888); Smith it. Biesiada, 174 hid, 134, 90 N.E. 1009 (1909).
And the errors must be apparent on the Face of the Record. Jordan it. State, 22 PIn. 528 (1880).
But the EvIdence is no part of the Record. Bond V. Dustln, 112 11.5. 604, 5 S.Ct. 290, 28 LEd. 835 (1884).

the Pleadings, was corrected.25 In conse­quence of these Statutes, Judgments are now largely protected against Arrest for Defects in Form, as well as for Various other Defects, which had once been treated as Substantive, but which, by the combined impact of the Statute of Elizabeth in 1585 ~ and the Statute of Anne in 17O5,~° have been specifical)y enu­merated and expressly cured.31


At Common Law, and aside from any Stat­utory Provisions, there are Many Defects in Pleading which formerly have been treated as Substantive, and which would be regarded as fatal, except for their being Aided by Verdict. If a Defect is Cured by Verdict, a Motion in-Arrest of Judgment will not be sustained.
With respect to such imperfections as are Aided by Verdict at Common Law, it was early observed, “that where there is Any De­fect, Imperfection, or Omission in Any Plead­ing, whether in SubstanCe or Form, which would have been a Fatal Objection upon De­murrer; yet if the Issue Joined be such as necessarily required on the Trial Proof of the Facts so Defectively or Imperfectly Stated or Omitted, and without which it is not to be pre­sumed that either the Judge would Direct the Jury to give, or the Jury would have given the Verdict, such Defect, Imperfection, or Omission, is Cured by the Verdict by the Com­mon Law.” ~ And this Rule has subsequently been followed,33
28. Mekelvey, Principles of Common-Law Pleading,
174 (New York, 1914).
29. 27 Eliz. c. 3, § 1, 6 Statutes at Large 360 (1585).
30. 4 Anne, e. 16, § 1, 11 Statutes at Large 155 (1705).
31. The Motion In Arrest of Judgment Is succinctly discussed In Huger it. Cunningham, 126 Ga. 684, 58 S.E. 64 (1906).
32. Stennel it. Hogg, I Wms.Saund. 226, 228 note I.

85 Eng.Rep. 244, 245 (1669).


33. English: Smith v. Keating, 6 C.B. 136, 136 Eng.

Rep. 1203 (1848); KIdgill it. Moor, 9 (lB. 364, 137

Eng.Rep. 934 (1850); Massachusetts: Worster V.

Proprietors of Canal Bridge, 16 I’ick-.(Mass.) 541

(1835).

27. Walker it. Sargeant, 11 Vt. 327 (1839); Hughes it.

Fruni, 41 W.Va. 445, 23 S.E. 604 (1805).

Sec. 307
Since after the Statute of Demurrers,34 in 1585, Supplemented and Amended by the Statute of Anne in l705,~~ Formal Defects in the Record were Waived except on Special Demurrer, it followed that thereafter Judg­ment could not be Arrested for any other than a Substantive Defect. Such a fault may be found either in the Pleadings or in the Verdict if one has been rendered. Thus, where the plaintiff has been Awarded a Ver­diet on a Declaration Totally Defective in Substance—as where in Trover he fails to al­lege a Conversion—or varies totally from the Original Writ—as where the Writ sued out

- - was in Special Assumpsit for Breach of a Con­tract and the Verdict was in Case for a Tort— Judgment may be Arrested on the defendant’s Motion. But if the Declaration was Substan­lively Vaiid, and the Plea in Bar on which the

defendant obtained a Verdict is Substantively Defective—as where the defendant Pleaded


Not Guilty to a Declaration in Assumpsit— the Judgment may in turn be Arrested on the

Motion of the Plaintiff.36 In each instance the

Defect at which the Motion Struck was in the

Pleading.

The Defect may, however, be in the Ver­dict. Thus, where the Pleadings terminate in

a Perfect Issue, but the Jury finds a Verdict Materially at Variance with the Issue—as

where the Issue is whether the defendant owns Blackacre and the Jury by its Verdict finds that the defendant owns Greenacre— Judgment will be Arrested for the insuffi­ciency of the Verdict The Court cannot tell from such a Verdict for which Party the Judgment should be given. And, in general, it is a universal Rule in Arresting Judgment, that any Defect in the Record which would render erroneous a Judgment entered in pur­suance of a Verdict, constitutes a valid ground for Arresting the Judgment. “For,”
34. 27 EIiz. c. 5, 6 Statutes at Large 360 (1585).
35. 4 Anne, e. 16, 11 Statutes at Large 155 (1705).
36. Dighton it. Bartholomew, Cro. Eliz, 778, 78 Eng. Rep. 1008 (1600). -

says Gould, “no Court should do so nugatory an act, as to render a Judgment, which~ when Rendered, must be erroneous.” ‘~


Defects in the Pleadings

IT has been an invariable Rule that No Defect in the Pleadings which would not have been fatal to them on a General Demurrer can be available for Arresting a Judgment,38 Formal Defects being Cured by Statute or open only to Special Demurrer. The Con­verse of the Rule, however—that all Substan­tial Defects will support this Motion—is not universally true, as they may consist of the omission of particular Facts or circumstances which, in accordance with a Rule we have heretofore considered, the Court will presume, after a Verdict, to have been duly proved.3’ This distinction furnishes the true criterion as to what Defects in a Declaration or Plea are Grounds for Arresting Judgment. If they come within the Rule of Aider by Ver­dict, the Motion cannot be sustained.40
As Smith declares: “A Motion in Arrest of Judgment is the exact reverse of that for Judgment Non Obstante Veredicto. The ap­plicant in the one case insists that the plain-
37. Gould, A Treatise on the Principles of Pleading,

155 (6th Am. ed. by Will, Albany, 1909).


32. Pittsburg, C., C. & St. L. R. Co. V. City of Chi­cago, 144 Ill.App. 293 (1908).
A Misjoinder of Causes of Action or of parties is

ground for Arrest of Judgment. Bull it. Mathews,

20 RI. 100, 37 A. 536 (1897); Gulnnip it. Carter, 58

Ill. 296 (1871). Cf. Chicago & A. H. Co. it, Murphy,

198 lU. 462, 64 N.E. 1011 (1902).
39. Lane it. Maine Mut. Fire Ins. Co., 12 Me. 44 (1835); Avery it. Inhabitants of Tyringham, 3 Mass, 160 (1807); Bead v. Inhabitants of Cheims­ford, 16 Pick. (Mass.) 128 (1834).
40. ChIcago & A. B. Co. it. Clausen, 173 III. 100, 50 N.E. 680 (1898).
A Verdict will not mend the defect, where an essen­tial element of the case is not alleged in the Dee­laration, but it will cure an ambiguity or generality of statement. Thus, In a Contract Action, Judg­ment will be arrested for failure to allege perform­ance of conditions precedent. Rushton it. Aspia­all, 2 Doug. 679, 99 Engiiep. 430 (1781).

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