SECTION IX. OF MOTIONS IN ARREST OF JUDGMENT, FOR A REPLEADER, AND FOR ground. The only ground of arresting judgment is some matter in- on what trinsic, appearing on the face of the record, which would render it erroneous or reversible; for though it seems to have been otherwise formerly, 22 yet it is now settled that judgment cannot be arrested for extrinsic or foreign matter, not appearing on the face of the record; but the court are to judge upon the record itself, that their successors may know the grounds, of their judgment.23 ment on de cannot move objection have been taken on de After judgment on demurrer, there can be no motion in After judg arrest of judgment, for any exception that might have been murrer, party taken on arguing the demurrer; the reason of which is that in arrest for the matter of law having been already settled by the solemn that might determination of the court, they will not afterwards suffer any murrer. one to come in as amicus curiæ,24 and tell them that the judgment which they gave upon mature deliberation is wrong: but it is otherwise after judgment by default, for that is not given in so solemn a manner.25 And when this court has reversed a judgment of a court of common pleas, and ordered a new trial, on which a verdict has been found for the plaintiff, the defendant cannot move in arrest of judgment, for a defect of the form in the record, which he had an opportunity of assigning for error.26 Nor for matter amenda after verdict. The parties cannot move an arrest of judgment, for any ble or cured thing that is aided after verdict, or that is amendable at common law, or that is amendable or cured as matter of form by statute: nor can a party take advantage of his own mispleading to arrest the judgment.28 Nor defend ant for what been pleaded in abate ment. It is likewise a rule, that the defendant cannot move in armight have rest of judgment for any thing that he might have pleaded in abatement.29 And if there be a misjoinder of counts, and a verdict for the plaintiff on the counts well joined, and for the defendant on the others, the misjoinder is not a cause for arresting the judgment.50 But where there are several counts in the declaration, and one bad, upon a general verdict, judgment will be arrested unless the verdict can be amended by the judge's notes, so as to apply it to the good counts; and it is not too late on a motion in arrest of judgment for the plaintiff to move for such amendment.31 Arrest after default. A defendant against whom a default has been taken, does not waive his right to move in arrest of judgment for a substantial defect in the declaration, by attending the execution of a writ of inquiry, though it may be otherwise as to mere formal defects.32 Where a declaration in assumpsit contained special counts, and also the common counts, and after the execution of a writ of inquiry, judgment was arrested for the insufficiency of the special counts, the plaintiff had leave, on payment of costs, to issue a writ of inquiry, de novo, on the common counts.33 And where there were several counts in a declaration, and after interlocutory judgment, damages were separately assessed upon each, and judgment was arrested upon the first count, there being no objection to the others, the plaintiff was allowed to enter a nolle prosequi on the first count, and take judgment on the others.34 Motions in arrest of judgment are brought on as enume- Motion, &c. .35 rated motions and are entitled to preference after cases to which a preference is given by statute.36 Notice of the motion must be given within the four first days of the term next after trial.$7 On an arrest of judgment, costs are given to neither party,sa An informal issue is aided after verdict by statute;89 but a Repleader. verdict cannot help an immaterial issue.40 An immaterial issue is, when that which is materially alleged by the pleadings is not traversed, but an issue taken on such point as will not determine the merits of the cause: an informal issue is where such allegation is not traversed in a proper manner. 41 Where the issue is immaterial the court will award a repleader respecting which the following rules were laid down in the case of Staple and Haydon :42 specting First, that at common law, a repleader was allowed before Rules re trial, because a verdict did not cure an immaterial issue; but now a repleader ought never to be allowed till trial, because the fault of the issue may be helped, after verdict, by statute :45 Secondly, that if a repleader be denied where it should be granted, or granted where it should be denied, it is error: Thirdly, that the judgment of repleader is general, namely, quod partes replacitent; and the parties must begin again at the first fault, which occasioned the immaterial issue ;44 thus if the declara 34 3 Johns. Rep. 189. 35 Rule 47. 38 Rule 52. 79 Cowen. Rep. 151. 11 Johns. Rep. 141. Cowp. 407. 1 Chitty on Plead. 8. See ante, Vol. 1. p. 596, 7. 40 Gilb. C. P. 147. 412 Tidd. Pract. 952. Cro. Eliz. 227. Carth. 371. 1 Lev. 32. 2 42 2 Salk. 579. et vide 6 Mod. 44 1 Ld. Raym. 169. Judgment non obstante veredicto. Distinction between re tion be ill, and the bar and replication are also ill, the parties must begin de novo; but if the bar be good and the replication ill, at the replication:45 Fourthly, no costs are allowed on either side:46 Fifthly, that a repleader cannot be awarded after a default at nisi prius. To which may be added, that a repleader can never be awarded after a demurrer, or writ of error, but only after issue joined ;47 nor where the court can give judgment on the whole record:48 and it is not grantable in favour of the person who made the first fault in pleading." Where a plea confesses the action, and does not sufficiently avoid it, judgment is given on the confession, without regard to a verdict for the defendant, which is called a judgment non obstante veredicto; and in such case a writ of inquiry may be issued.50 The proper mode of entering judgment in this case, appears to be, to set forth the pleadings, issue, and verdict, and the opinion of the court, that notwithstanding such verdict, judgment should be for the plaintiff.5 51 Motion for judgment non obstante veredicto must be on the record, and not on affidavits.52 The distinction between a repleader and a judgment non pleader and obstante veredicto, seems to be this: that where the plea is judgment verdicto. non obstante good in form, though not in fact, or in other words, if it contain a defective title, or ground of defence, by which it is ap parent to the court, upon the defendant's own showing, that in any way of putting it, he can have no merits, and the issue joined thereon be found for him, there, as the awarding of a repleader could not mend the case, the court, for the sake of the plaintiff, will at once give judgment non obstante veredicto 5 but where the defect is not so much in the title as in the manner of stating it, and the issue joined thereon is immaterial, so that the court know not for whom to give judgment, whether for plaintiff or defendant, there, for their own sake, they will award a repleader.54 A judgment therefore non obstante veredicto is always upon the merits, and never granted but in a very clear case:55 a repleader upon the form and manner of pleading.56 3 1 Salk. 173. 6 Mod. 1. 2 Ld. Raym. 924. 1 Str. 394. 2 Str. $73. Willes, 364. 1 Burr. Rep 301. Doug. 749. 2 Cowen. Rep. 626. 43 Salk. 305. 1 Ld. Raym. 391. 2 Str. 847. 994. 1 Burr. Rep. 301. 5 Taunt. 386. 1 Marsh. 95. 55 Raikes vs. Townsend, cited 2 Tidd. Pract. 953. 2 Smith. Rep. 9. 3 Taunt. 237. 56 See further, 1 Chitty on Plead. 632, 3, 4, and cases cited. |